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    Supreme Court Digest

    In this column, Prof. Daniel D. Blinka and Prof. Thomas J. Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

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    Criminal Evidence

    Evidence – Other Acts – Domestic Violence Cases

    State v. Dorsey, 2018 WI 10 (filed 25 Jan. 2018)

    HOLDING: In a domestic violence-related prosecution, alleged other acts of domestic violence were properly admitted under the “greater latitude” leeway provided by amended Wis. Stat. section 904.04.

    SUMMARY: The defendant was charged with four domestic violence-related offenses involving his then girlfriend. The circuit court admitted evidence from 2011 of other acts of domestic violence against another former girlfriend based on the “greater latitude” language that appears in Wis. Stat. section 904.04(2)(b)1. A jury convicted the defendant on several counts and acquitted him on one count. In an unpublished decision, the court of appeals affirmed, albeit on other grounds.

    The supreme court affirmed in a majority opinion authored by Justice Ziegler. Other-acts evidence is subject to the three-step approach set forth in State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998): 1) Is the other act offered for a proper purpose? 2) Is it relevant to that purpose? 3) Is its probative value substantially outweighed by the factors listed in Wis. Stat. section 904.03?

    The court held that recently amended Wis. Stat. section 904.04(2)(b)1. grants “greater latitude” in the application of this standard in domestic violence cases, although its wording creates ambiguities that the majority opinion resolved through statutory construction. Put succinctly, “the greater latitude rule allows for more liberal admission of other-acts evidence” (¶ 31). The court further held that the defendant’s other acts of violence were properly admitted under the greater latitude standard, which applies to all three steps of the Sullivan analysis (¶ 36). The majority opinion assessed each separate step in the analysis.

    Justice Abrahamson did not participate in this case. Justice R.G. Bradley concurred, joined by Justice Kelly. The concurring justices disagreed with the majority’s construction of the amended statute.

    Criminal Procedure

    Sentencing – Expunction of Record – Wis. Stat. section 973.015

    State v. Arberry, 2018 WI 7 (filed 19 Jan. 2018)

    HOLDING: Expunction of the defendant’s record must be ordered at the time of the defendant’s sentencing; it cannot be raised in a postconviction motion for sentence modification.

    Daniel D. Blinkaedu daniel.blinka marquette Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. Hammeredu thomas.hammer marquette Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: At the defendant’s sentencing, no mention was made of his eligibility for expunction (also known as expungement) of his record, even though he met the threshold requirements. In a postconviction motion for sentence modification, he sought entry of amended judgments of conviction finding that he was eligible for expunction.

    The circuit court denied the motion, holding that Wis. Stat. section 973.015 requires that a determination of expunction be made at the time of sentencing. In a published decision, the court of appeals affirmed. See 2017 WI App 26.

    In a unanimous opinion authored by Justice Ziegler, the supreme court affirmed the court of appeals and held that a defendant may not seek expunction after sentence is imposed because both the language of Wis. Stat. section 973.015 and State v. Matasek, 2014 WI 27, 353 Wis. 2d 601, 846 N.W.2d 811, require that the determination regarding expunction be made at the sentencing hearing (see ¶ 5).

    The court declined to address the defendant’s argument that expunction can be raised in a postconviction motion for sentence modification inasmuch as sentence modification is a “time of sentencing” determination under Wis. Stat. section 973.015 and eligibility for expunction is a “new factor” warranting modification if it was unknowingly overlooked and highly relevant to the sentence.

    Said the court: “We do not address the ‘new factor’ arguments because we conclude that a post-sentencing motion seeking expunction is procedurally barred” (¶ 16). Under the statute, expunction must be decided “at the time of sentencing” and this means “only at the time when sentence is imposed”; it does not encompass post-sentencing motions for sentence modification (¶ 17).

    Employment Law

    Employment Agreements – Nonsolicitation-of-employees Provision – Applicability of Wis. Stat. section 103.465

    Manitowoc Co. v. Lanning, 2018 WI 6 (filed 19 Jan. 2018)

    HOLDINGS: 1) The nonsolicitation-of-employees provision in defendant Lanning’s employment agreement is a restraint of trade governed by Wis. Stat. section 103.465. 2) The nonsolicitation-of-employees provision under review is not enforceable under Wis. Stat. section 103.465.

    SUMMARY: Defendant Lanning’s employment agreement with The Manitowoc Co. (Manitowoc) included a nonsolicitation-of-employees (NSE) provision. It prohibited him from directly or indirectly soliciting, inducing, or encouraging any employee of Manitowoc to terminate employment with Manitowoc or to accept employment with a competitor, supplier, or customer of Manitowoc. The scope of the NSE provision includes all of Manitowoc’s 13,000 employees throughout the world regardless of an employee’s position within Manitowoc or the employee’s connection to Lanning.

    Lanning left Manitowoc and took a position with SANY America, a direct competitor of Manitowoc. Manitowoc claimed that Lanning then engaged in several actions that violated the NSE provision. It brought suit, and the circuit court granted summary judgment in Manitowoc’s favor, awarding damages, attorney fees, and costs.

    In a published decision the court of appeals reversed, concluding the NSE provision Manitowoc imposed as part of Lanning’s employment agreement is governed by Wis. Stat. section 103.465 (restrictive covenants in employment contracts), and that it is unenforceable under the statute. See 2016 WI App 72.

    The supreme court affirmed the court of appeals. The first issue the court addressed was whether Wis. Stat. section 103.465, which explicitly refers to a “covenant not to compete,” applies to the NSE provision to which Lanning agreed. The court’s lead opinion, authored by Justice Abrahamson, “conclude[d], as prior cases have concluded, that although Wis. Stat. § 103.465 explicitly refers to a covenant not to compete, the plain meaning of § 103.465 is not limited to a covenant in which an employee agrees not to compete with a former employer…. Rather, § 103.465 has been applied to agreements viewed as restraints of trade” (¶ 5).

    “We conclude that Lanning’s non-solicitation of employees provision restricts Lanning’s ability to engage in the ordinary competition attendant to a free market, specifically restricting Lanning’s freely competing for the best talent in the labor pool. In addition, the limitation on Lanning also affects access to the labor pool by a competitor of Manitowoc Company (including Lanning’s current employer, SANY America). Accordingly, we conclude that Lanning’s non-solicitation of employees provision is a restraint of trade governed by Wis. Stat. § 103.465” (¶ 9).

    The court next considered whether the NSE provision is enforceable under Wis. Stat. section 103.465. Beginning with Lakeside Oil Co. v. Slutsky, 8 Wis. 2d 157, 98 N.W.2d 415 (1959), the court has interpreted section 103.465 as establishing several prerequisites that a restrictive covenant must meet to be enforceable. One of those requirements is that the restraint be necessary for the protection of the employer, that is, the employer must have a protectable interest justifying the restriction imposed on the employee’s activity (see ¶ 40).

    The court concluded that the NSE provision under scrutiny here does not meet the statutory requirement that the restriction be reasonably necessary for the employer’s protection (¶ 10). Said the court: “[W]e conclude, as did the court of appeals, that the non-solicitation of employees provision is overbroad on its face. Without a specified territory or class of employees, the provision restricts Lanning’s conduct as to all employees of Manitowoc Company everywhere. Lanning’s non-solicitation of employees provision covers each of the 13,000 Manitowoc Company employees regardless of the business unit in which they work or where in the world they are located” (¶ 59).

    Justice R.G. Bradley filed a concurring opinion in which she joined the lead opinion in holding that Wis. Stat. section 103.465 applies to Lanning’s NSE and that the NSE is unreasonable under the Lakeside Oil prerequisites. She wrote separately “because the lead opinion neglects to undertake a textual analysis of § 103.465, instead grounding its interpretation of the statute almost exclusively in Wisconsin case law in which the court has interpreted and applied § 103.465 expansively, sometimes straying far from the text in advancing policy choices that should be made legislatively, not judicially” (¶ 65). Justice Gableman and Justice Kelly joined this concurrence.

    Chief Justice Roggensack dissented. She concluded that Lanning’s NSE “does not come within the plain meaning of Wis. Stat. § 103.465 and is enforceable” (¶ 131). Justice Ziegler joined this dissent.

    Public Records

    Union Certification Elections – Request for Names of Voters

    Madison Teachers Inc. v. Scott, 2018 WI 11 (filed 6 Feb. 2018)

    HOLDING: The records custodian in this case lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighs the public interest in favor of openness of public records.

    SUMMARY: In November 2015, the Wisconsin Employment Relations Commission (WERC) conducted the annual Act 10 certification election for collective bargaining representatives of the Madison School District’s employees. To be certified as the elected representative of a bargaining unit, a labor organization (in this case Madison Teachers Inc. (MTI)) must receive the votes of at least 51 percent of the total number of employees in the bargaining unit. In this secret-ballot election, the voting occurred via telephone and the internet. While the election was still in progress, MTI made public records law requests seeking the names of school district employees who had already cast their votes.

    The chair of WERC, who was also the records custodian, denied the requests. Among his reasons for doing so was his determination that, while the election was ongoing, the public interest that elections remain free from voter intimidation and coercion outweighed the public interest in favor of openness of public records (see ¶ 2).

    MTI filed a complaint under the public records law pursuant to Wis. Stat. section 19.37(1)(a) seeking an order for mandamus, punitive damages, and attorney fees and costs. The circuit court granted summary judgment in MTI’s favor. This case was before the supreme court after it granted WERC’s petition to bypass the court of appeals. The issue before the supreme court was whether the public interest that elections remain free from voter intimidation and coercion in this certification election was sufficient to outweigh the public interest in favor of openness of public records.

    In a majority opinion authored by Chief Justice Roggensack, the court concluded that “[the records custodian] lawfully performed the balancing test in concluding that the public interest in elections free from voter intimidation and coercion outweighs the public interest in favor of openness of public records” (¶ 3).

    Said the court: “[G]iving MTI lists of employees who had voted at various dates before the election process was concluded, through simple deletion of voter names from the list of all members of a bargaining unit, also would give MTI names of all who had not voted by those dates. Those non-voting employees could then become individual targets of MTI’s most forceful efforts because if they did not vote by the conclusion of the election, MTI may have been unable to secure ‘yes’ votes from 51 percent of the members in the bargaining unit and thereby fail in its certification efforts” (¶ 33). The court also noted that the records custodian reported that he had received complaints of coercion in other certification elections (see ¶ 36).

    Justice A.W. Bradley filed a dissent concluding that the records custodian in this case “failed to overcome the presumption of open access to public records. The unfounded speculation that the records might be used for improper purposes does not outweigh the strong public interest in opening the records to inspection” (¶ 44). Justice Abrahamson joined this dissent.

    Real Property

    Riparian Rights – Public Trust Doctrine

    Movrich v. Lobermeier, 2018 WI 9 (filed 23 Jan. 2018)

    HOLDING: Owners of property bordering a flowage could not place a pier from their land into the flowage because it violated the fee simple rights of adjacent property holders, who owned the flowage’s waterbed.

    SUMMARY: Jerome and Gail Movrich (M) owned property that bordered a flowage, but the property line ended at the water. David and Diane Lobermeier (L) owned the waterbed of the flowage where M’s property met the water. L claimed that the presence of navigable water over L’s property (the waterbed) did not affect L’s property rights, including the right to prohibit M from installing a pier that would extend into the waterbed L owned. The circuit court ruled that M could install the pier; the court of appeals affirmed in a published decision. See 2016 WI App 90.

    The supreme court affirmed in part and reversed in part in an opinion authored by Chief Justice Roggensack that addressed the nature of M’s and L’s property rights, their riparian rights, and the public trust doctrine. The lower courts erred by assuming that the public trust doctrine controls the case, yet “neither the public trust doctrine nor riparian rights principles addressed private property interests between abutting property owners. The presence of navigable waters does not cancel private property rights, although it may modify those rights” (¶ 30).

    As a fee simple owner, L had the right to prohibit M from installing a pier on L’s waterbed. Based on case law and the record, the court held that M “failed to establish that they are entitled to those riparian rights that are incidental to property ownership along a naturally occurring body of water where the lakebed is held in trust by the state or that the public trust doctrine creates an exception to [L’s] property rights in the waterbed that is sufficient for placement of [M’s] pier on [L’s] property” (¶ 55).

    Although M could not install the pier without L’s consent, “as [a] member[] of the public” M is entitled to access and exit the flowage by way of M’s own shoreline, consistent with the public trust doctrine (see ¶ 56). The majority’s three holdings are explained in depth at paragraphs 58-61.

    Justice R.G. Bradley concurred in part and dissented in part, joined by Justice Abrahamson (in part) and Justice A.W. Bradley. They criticized the majority opinion on grounds that it “sweeps away” many “cherished and longstanding property rights and extinguishes riparian rights for those with cottages or homes on Wisconsin’s waters called flowages” (¶ 64).

    Taxation

    Property Tax Assessments – Mass Appraisals – Wis. Stat. section 70.32(1)

    Metropolitan Assocs. v. City of Milwaukee, 2018 WI 4 (filed 10 Jan. 2018)

    HOLDINGS: 1) The city’s assessment of the plaintiff’s properties complied with Wis. Stat. section 70.32(1). 2) The circuit court’s findings of fact regarding the reliability of the respective appraisals of plaintiff’s properties were not clearly erroneous.

    SUMMARY: Metropolitan Associates (Metropolitan) brought an excessive-property-tax-assessment action in the circuit court. It argued that the city of Milwaukee violated Wis. Stat. section 70.32(1) when it assessed Metropolitan’s properties because the city failed to use the “best information” available when it relied on mass appraisal rather than single-property appraisal. The mass appraisal technique is a process whereby an assessor values entire groups of property using systematic techniques and allowing for statistical testing (see ¶ 9).

    In a majority opinion authored by Justice A.W. Bradley, the supreme court concluded that “the City’s assessment of Metropolitan’s property complied with Wis. Stat. § 70.32(1). The City permissibly utilized mass appraisal for its initial assessment and appropriately defended its initial assessment with single property appraisals demonstrating that the assessment was not excessive” (¶ 3).

    The Wisconsin Real Estate Assessment Manual makes clear that mass appraisal is accepted at the initial assessment stage (see id.) and the value reflected in the initial mass appraisal can constitute the value of the property for tax assessment purposes if the value is not excessive (see ¶ 40). Wisconsin Statutes section 70.32(1) dictates that an assessment must be based on “the best information that the assessor can practicably obtain.”

    “At the initial assessment stage, the best information the City can ‘practicably’ obtain is often that underlying a mass appraisal. Because its use is provided for by the Manual and it allows the City to efficiently assess a large number of properties, mass appraisal comports with Wis. Stat. § 70.32(1). We thus reaffirm that mass appraisal is appropriately utilized as a manner of valuing property under § 70.32(1)” (¶ 45).

    The supreme court further concluded that “the circuit court’s findings of fact regarding the reliability of the respective appraisals are not clearly erroneous. Because the circuit court’s findings are sufficient to support its determination regardless of whether the presumption of correctness was employed, we need not address whether the presumption of correctness attached to the assessment based on the initial mass appraisal” (¶ 5).

    The presumption to which the majority referred is derived from Wis. Stat. section 70.49(2), which provides that a tax assessment being challenged pursuant to Wis. Stat. section 74.37 is entitled to a presumption that it was justly and equitably made, giving rise to a presumption of correctness (see ¶ 50).

    Justice R.G. Bradley and Justice Kelly filed a joint dissenting opinion.

    Torts

    Recreational Immunity – Agents – Owners

    Westmas v. Creekside Tree Serv. Inc., 2018 WI 12 (filed 7 Feb. 2018)

    HOLDING: A company hired by a property owner to trim trees was not entitled to recreational immunity for the death of a person killed by a falling branch.

    SUMMARY: While walking with her son on a public path through property owned by Conference Point Center, Jane Westmas was killed by a falling branch cut by Creekside, a company hired to trim and remove trees. Her family sued Creekside and others, but the circuit court ruled that Creekside was protected by the recreational immunity doctrine. In a published decision, the court of appeals reversed. See 2016 WI App 92.

    The supreme court affirmed the court of appeals in an opinion authored by Chief Justice Roggensack. In sum, Creekside was not entitled to recreational immunity under Wis. Stat. section 895.52(2)(b), either as an agent of the owner or as an “occupier” of the property.

    The opinion carefully assesses the statute’s text and legislative history and related case law. An “agent is one who acts on behalf of and is subject to reasonably precise control by the principal for the tasks the person performs within the scope of the agency” (¶36). The analysis is fact specific.

    The court held that the owner, Conference Point, lacked control over Creekside’s tree-trimming as well as any right to control the details of Creekside’s tree-trimming (see ¶ 42). Thus, Creekside was not an agent. Nor was it an “owner” or “occupier” as construed by case law. Creekside’s presence on the property did not exceed “mere use” or approach any “degree of permanence” (¶ 48). Legislative history and public policy supported both conclusions; the statute does not immunize third parties that are not responsible for opening the land to the public for recreation (see ¶ 53).

    Justice Abrahamson did not participate in this case. Justice R.G. Bradley and Justice Kelly dissented on grounds that the court is perpetuating a narrow scope of immunity not reflected by the statute’s text (see ¶ 59).




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