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    Wisconsin Lawyer
    July 20, 2018

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Sentencing – Fines – Sentencing Record

    State v. Vesper, 2018 WI App 31 (filed 25 April 2018) (ordered published 31 May 2018)

    HOLDING: The principal holding was that the court’s sentencing colloquy applied equally to both the imprisonment term and the fine imposed on the defendant; there was no need for a separate explanation justifying the fine.

    SUMMARY: Defendant Vesper was convicted of his seventh operating while intoxicated (OWI) offense. The circuit court sentenced him to 50 months’ confinement following by five years’ extended supervision, with the sentence to run “consecutive to whatever [Vesper is] serving” (¶ 5). The court also imposed a $1,900 fine (out of a maximum $25,000).

    In pronouncing sentence, the court “discussed factors both aggravating (high BAC of 0.139, repeat offender, and driving while on extended supervision and without a license) and mitigating (cooperative and remorseful attitude and taking responsibility for his actions), but emphasized the aggravating. Throughout its colloquy, the court explicitly and appropriately considered protection of the community (Vesper continued to put others at risk), the gravity of the offense (repeated offenses even when prohibited from driving), and the character and rehabilitation of Vesper (despite being a good person, he has not dealt well with his serious alcohol problem)” (¶ 16).

    Although the circuit court did not explicitly refer to the OWI sentencing guidelines in place for the local judicial district, those guidelines call for a $1,900 fine and initial confinement of 42-54 months in a case like this.

    The defendant filed a postconviction motion arguing that the court should vacate the fine because it had not separately explained why it was imposed or determined his ability to pay. He also sought sentence reduction on the basis of new factors. The court denied the motion. In a majority opinion authored by Chief Judge Neubauer, the court of appeals affirmed.

    Vesper argued that, when a court imposes both imprisonment and a fine, the court must provide a separate explanation for each penalty. The appellate court disagreed. “As we held in [State v.] Kuechler, [2003 WI App 245, 268 Wis. 2d 192, 673 N.W.2d 335], when the court’s sentencing colloquy supports both imprisonment and the fine, no separate explanation of the fine is needed” (¶ 13).

    “[W]e conclude that the court’s sentencing colloquy sufficiently supported the imposition of the fine and there was no need for a separate explanation. In other words, the colloquy applied equally to both the term of imprisonment and the fine” (¶ 19).

    As to the defendant’s other challenges, the court held that 1) the record contains sufficient information (employment history, education, and spousal support) from which to conclude that the defendant will be able to pay the fine during the course of his lengthy sentence; 2) the removal of 76 days of sentencing credit because it was double-counted in connection with another sentence the defendant was serving was not a new factor warranting resentencing; and 3) the defendant’s reconfinement in prison for four years for his sixth OWI, which was ordered after his sentencing in this case for his seventh OWI, was also not a new factor warranting resentencing in the seventh OWI case; potential reconfinement (of which the judge in the seventh OWI case was aware) or its length “was not highly relevant to his sentence [for the seventh OWI]” (¶ 42).

    Judge Hagedorn filed an opinion concurring in part and dissenting in part. His dissent was based on the decision in State v. Ramel, 2007 WI App 271, 306 Wis. 2d 654, 743 N.W.2d 502, which he summarized as “require[ing] circuit courts to explain the reasons for imposing a fine – as distinct from the sentence more generally – and for this rationale to be documented on the record” (¶ 44).

    Employee Benefits

    Pensions – Milwaukee County Employees’ Retirement System – Reduction of Pension Benefits Due to Errors in Original Pension Calculation

    Baldwin v. Milwaukee Cty., 2018 WI App 29 (filed 19 April 2018) (ordered published 31 May 2018)

    HOLDING: The Milwaukee County Pension Board erred by reducing the plaintiff’s pension payments and determining that she must reimburse the Employees’ Retirement System for the overpayments.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: Plaintiff Baldwin was an employee of Milwaukee County. At the time of her

    retirement in 2003, the pension board, which oversees the Milwaukee County Employees’ Retirement System (ERS), approved her monthly pension payment, and she started receiving that approved monthly payment in 2003. In 2014, the ERS informed Baldwin that it had made a mistake in 2000 in determining her eligibility to receive certain service credits and the error affected the pension board’s 2003 determination of her monthly pension payment; as a result, the pension payments Baldwin received were incorrect; and she had received overpayments totaling approximately $223,000. In 2015, the ERS informed Baldwin that her monthly pension payment would be reduced significantly to adjust for the service credit error and to recoup the overpayments.

    In 2015, Baldwin appealed to the pension board, challenging the ERS’s determinations that she was ineligible to receive the service credits and that her monthly pension payments would be reduced to account for the service credit mistake and to recoup the overpayments. The pension board denied Baldwin’s appeal. On certiorari review the circuit court affirmed the board’s decision.

    In an opinion authored by Judge Fitzpatrick, the court of appeals affirmed in part and reversed in part the circuit court. The court of appeals did not have to contend with any issues relating to Baldwin’s eligibility to receive the service credits that greatly enhanced her pension because she conceded on appeal that she was not eligible for those credits. The appellate court accepted that concession and affirmed the circuit court in that respect.

    However, the appellate court agreed with Baldwin that, under Pension Board Rule 1001, the board had only one year from the date on which it determined her benefits in 2003 to address any errors related to her pension payment. It concluded that “the plain language of Pension Board Rule 1001 establishes that the Pension Board no longer had the authority in 2015 to reduce Baldwin’s pension benefits to correct for the service credits mistake. Therefore, the Pension Board erred by reducing Baldwin’s pension payments and determining that Baldwin must reimburse the ERS for the overpayments” (¶ 14).

    The court also concluded that “the ERS will not suffer adverse federal tax consequences if the overpayments are not collected from Baldwin because of the operation of Board Rule 1001” (¶ 64).

    Family Law

    Paternity – Name Change

    Scace v. Schulte, 2018 WI App 30 (filed 19 April 2018) (ordered published 31 May 2018)

    HOLDING: The circuit court lacked authority to change a child’s name.

    SUMMARY: Scace gave birth to a child in 2014; Scace’s surname appeared on the birth certificate. Schulte formally acknowledged he was the child’s father. The parents stipulated to custody, visitation, and child support but disagreed about the child’s surname. The circuit court ruled it had the authority to change the child’s surname and changed it to “Scace-Schulte.”

    The court of appeals reversed in an opinion authored by Judge Sherman, holding that the court lacked authority to order the name change in cases when paternity is determined by a voluntary acknowledgment under Wis. Stat. section 767.805. The statutory authority “to change a child’s name is provided in the statute governing what a circuit court may order in a paternity judgment, but not in the statute governing what a circuit court may order after voluntary acknowledgment of paternity” (¶ 12).

    It follows that circuit courts lack authority to change the child’s name in cases in which paternity is acknowledged, not litigated (id.). The court did not address whether it was in the child’s best interest to change the child’s name.

    Municipal Law

    Annexation – Direct Annexation by Unanimous Approval

    Town of Lincoln v. City of Whitehall, 2018 WI App 33 (filed 17 April 2018) (ordered published 31 May 2018)

    HOLDING: In this challenge by the town of Lincoln to annexation ordinances adopted by the city of Whitehall, the town was limited by statute to challenging the annexed territory’s contiguity to the city and, on that claim, the circuit court properly granted the city’s motion for summary judgment.

    SUMMARY: In 2015, the Whitehall common council passed four annexation ordinances detaching territory from the town of Lincoln. The annexation was the initiative of Whitehall Sand and Rail LLC, which was interested in locating a sand mine to the northwest of the city’s then-current borders and desired to have it within the city limits. Whitehall Sand and Rail selected the property to be included in the annexed territory, and it then approached the property owners with offers to purchase their land, contingent on annexation.

    Each of the ordinances was adopted pursuant to a method of annexation known as “direct annexation by unanimous approval.” This is a grassroots annexation method that requires “all of the electors residing in the territory and the owners of all of the real property in the territory” to petition the city or village for direct annexation. See Wis. Stat. § 66.0217(2). Such annexation petitions are presented to the municipality on a “take it or leave it” basis. Subject to certain filing requirements and a statutory requirement that the annexed territory be “contiguous” to the annexing authority, the municipality may adopt an annexation ordinance by a two-thirds vote of its governing body.

    The town sought a declaratory judgment that the annexation ordinances were invalid. The circuit court concluded that the town was statutorily barred from challenging the ordinances on any basis except the requirement that the annexed territory be contiguous to the annexing municipality. The court subsequently granted summary judgment to the city on the town’s contiguousness claim. In a decision authored by Judge Hruz, the court of appeals affirmed.

    Under the undisputed facts here, the appellate court first concluded that “the circuit court properly dismissed all of the Town’s claims other than the statutory contiguousness claim. Based upon the interplay between various provisions of the direct annexation statute – namely, Wis. Stat. § 66.0217(6)(d)1., (6)(d)2., and (11)(c) – we conclude a town is limited in a court action to challenging contiguity and county parallelism, the latter of which is not at issue here. Given this statutory bar, the court properly concluded that only the town’s challenge to contiguity remained viable” (¶ 2).

    The appellate court also held that the circuit court properly granted summary judgment on the town’s contiguousness claim. “Contiguity between the annexed territory and the annexing municipality is satisfied, at a minimum, in instances where there is a significant degree of physical contact between the two. That is plainly the case here, where the annexed territory shares an approximately three-quarter-mile border with the City” (¶ 3).

    Lastly, the appellate court found that summary judgment in the city’s favor was appropriate to the extent statutory contiguity also requires that the annexed territory not be arbitrarily selected for inclusion.

    “Because the petition at issue was owner initiated, the relevant case law instructs that a town can challenge arbitrariness only if the annexation is of an exceptional shape, or if the annexing municipality is itself either a petitioner or the ‘real controlling influence’ behind the annexation. We conclude, as a matter of law, that the annexed territory here is of an ‘unexceptional shape’ that does not warrant further scrutiny of the territory’s boundaries. Further, based on the record evidence before us, no factfinder could reasonably conclude the City was either a petitioner or the ‘real controlling influence’ directing the annexation proceedings” (¶ 4).

    Public Records Law

    Accident Reports – “Bulk” Access

    Media Placement Servs. Inc. v. Wisconsin DOT, 2018 WI App 34 (filed 24 April 2018) (ordered published 31 May 2018)

    HOLDING: A firm demanding traffic accident reports was not entitled to free, online, bulk access, in a format of its choice.

    SUMMARY: Media Placement collects information on Milwaukee traffic accidents. The Wisconsin Department of Transportation (DOT) is the custodian of traffic accident reports and handles access to them. It receives approximately 520 such reports each business day and 2,600 per week (see ¶ 12). The DOT charges approximately $6 per report and allows electronic access through a website, if the requester provides specific information. Media Placement filed this mandamus action that essentially sought free and unfettered online access to such reports under the public records law (see ¶ 6). The circuit court ruled in favor of the DOT.

    The court of appeals affirmed in an opinion authored by Judge Kessler. Wisconsin’s public records law and other statutes permit the DOT to charge access fees for certain records, including both “operator records as well as accident reports” (¶ 16). Furthermore, the fee runs to the act of “furnishing” the information and may be assessed whether the demand is to inspect or to receive copies.

    Finally, case law does not extend the right to access such records to the underlying databases (see ¶ 6). Safety and privacy concerns forestall unfettered access to the databases (see ¶ 22). The court also observed that “high-volume requesters” such as Media Placement may pay a weekly subscription fee of $250 for the information sought (¶ 21).


    Internet Firearms Sales – Immunity

    Daniel v. Armslist LLC, 2018 WI App 32 (filed 19 April 2018) (ordered published 31 May 2018)

    HOLDING: A website facilitating firearms sales was not immunized against a claim arising out of an unlawful firearms sale through that website.

    SUMMARY: Using the website Armslist, Radcliffe purchased a firearm from a private seller who had no duty to conduct a background check. Radcliff was prohibited from possessing a firearm under a domestic violence injunction. After purchasing the firearm, Radcliffe shot and killed his wife and others at her place of work before committing suicide. The plaintiffs filed this tort action against Armslist for its role in facilitating the firearm’s sale. Evidence showed that private sellers and buyers skirted firearms regulation by using the internet. The circuit court dismissed the action against Armslist, however, finding that Armslist was immune under the Communications Decency Act of 1996 (the Act). See 47 U.S.C. § 230(c)(1), (e)(3).

    The court of appeals reversed in an opinion authored by Judge Blanchard that addressed two issues. First, the circuit court erred in dismissing a claim sounding in negligence per se. Case law provides that one who violates a criminal statute must be held negligent per se in a civil action for damages based on that violation. Armslist effectively conceded this point (see ¶ 22).

    Turning to the second and primary issue, the court held that the immunity provided by the Act applies “only when the allegations treat the website as the publisher or speaker of third-party content, and the Act does not protect a website operator from liability that arises from its own conduct in facilitating user activity, as is the case here” (¶ 3).

    Congress “limited immunity to a single circumstance: when a theory of liability treats the website creator or operator ‘as the publisher or speaker of any information provided by another information content provider.’ Nothing in this language speaks more generally to website design and operation” (¶ 42). Put differently, the Act does not immunize “content” created by the website operators and designers (see ¶ 44).

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