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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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    Attorneys

    Counsel of Choice – Necessary Parties

    Koschkee v. Evers, 2018 WI 82 (filed 27 June 2018)

    HOLDINGS: The Wisconsin Superintendent of Public Instruction and the Wisconsin Department of Public Instruction (DPI) were entitled to counsel of their choice in this lawsuit, and the governor was not a necessary party to the same suit.

    SUMMARY: Tony Evers (Wisconsin’s superintendent of public instruction) and the DPI brought this original action seeking a declaratory judgment regarding whether the department must comply with the so-called REINS Act, which purportedly regulates the lawfulness of proposed administrative rules. At the suit’s inception, the Wisconsin Department of Justice (DOJ) asserted that it would represent both Evers and the DPI; Evers and the DPI objected and insisted that their own counsel be appointed, especially because the DOJ had taken a position on the merits contrary to theirs.

    The Wisconsin Supreme Court ruled that Evers and the DPI are entitled to counsel of their choice. The holding rests on the court’s supervisory authority over the practice of law and on the facts of this case (see ¶¶ 11-12). The court refused to “foist” upon Evers and the DPI “an attorney they do not want” and who has taken a position with which they disagree. The court also declined to invest the DOJ with “breathtaking power” that would make it “a gatekeeper for legal positions taken by constitutional officers, such as the governor or justices of this court sued in their official capacity” (¶ 13).

    A second issue involved the DPI’s insistence that the governor was a necessary party. The court rejected this contention. Neither Wis. Stat. section 803.03, which controls the joinder of necessary parties, nor the Declaratory Judgment Act, Wis. Stat. § 806.04(11), supported it.

    Justice R.G. Bradley, joined by Justice Kelly, concurred in part and dissented in part. They concurred in the position that the governor was not a necessary party. They contend, however, that the majority has set a “dangerous precedent” in using the court’s supervisory authority to disqualify the DOJ from representing the DPI and Evers.

    Administrative Law

    Administrative Agencies – Judicial Deference to Agencies’ Conclusions of Law Terminated

    Tetra Tech EC Inc. v. Wisconsin Dep’t of Revenue, 2018 WI 75 (filed 26 June 2018)

    HOLDINGS: 1) Five justices concluded that the judicial practice of deferring to conclusions of law rendered by administrative agencies should be terminated, but no rationale for doing so garnered the support of a majority of the justices. 2) Certain dredging activities (described below) were taxable under Wis. Stat. section 77.52(2)(a)11. because they constitute the “processing” of tangible personal property within the meaning of that statute.

    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: The Wisconsin Department of Revenue imposed a tax on the petitioners pursuant to Wis. Stat. section 77.52(2)(a)11. (2007-08) for the “processing” of river sediments into waste sludge, reusable sand, and water. The petitioners contended that the statutory term processing is not expansive enough to cover the separation of river sediment into its component parts, and so they argued that the supreme court should reject the department’s interpretation of that term. Because resolving this question implicates the authoritativeness of an administrative agency’s interpretation and application of a statute, the court asked the parties to also address the following issue: “Does the practice of deferring to agency interpretations of statutes comport with Article VII, Section 2 of the Wisconsin Constitution, which vests the judicial power in the unified court system?” (¶ 2).

    Responding to that very significant question, five justices concluded that the judicial practice of deferring to administrative agencies’ conclusions of law should be abandoned. However, no rationale for making this change garnered the support of a majority of the court. Justice Kelly (joined by Justice R.G. Bradley) wrote in the lead opinion that “[w]e are leaving our deference doctrine behind because it is unsound in principle. It does not respect the separation of powers, gives insufficient consideration to the parties’ due process interest in a neutral and independent judiciary, and risks perpetuating erroneous declarations of the law” (¶ 83) (internal quotations omitted).

    Justice Kelly continued: “Today, the core judicial power ceded by our deference doctrine returns to its constitutionally-assigned residence. Henceforth, we will review an administrative agency’s conclusions of law under the same standard we apply to a circuit court’s conclusions of law – de novo” (¶ 84).

    Justice Ziegler, joined by Chief Justice Roggensack, wrote in concurrence that “the analysis that the lead opinion employs to reach its conclusions is concerning. First, in my view, it is both unnecessary and inadvisable to rely on constitutional grounds for ending our practice of deferring to administrative agencies’ conclusions of law. Deference to administrative agencies was a court-created doctrine and, thus, is one that can be court eliminated. We need not reach for the constitution to so act” (¶ 135).

    Justice Gableman, joined by Chief Justice Roggensack, wrote in concurrence to agree that the court should no longer give deference to administrative agencies’ conclusions of law. However, unlike Justice Kelly, Justice Gableman would apply the doctrine of constitutional avoidance and eliminate deference by withdrawing the language in Harnischfeger Corp. v. LIRC, 196 Wis. 2d 650, 539 N.W.2d 98 (1995), that indicated deference is mandatory (see ¶ 159).

    Though the majority has terminated the judicial practice of deferring to administrative agencies’ conclusions of law, Justice Kelly indicated in the lead opinion that “pursuant to Wis. Stat. § 227.57(10), we will give ‘due weight’ to the experience, technical competence, and specialized knowledge of an administrative agency as we consider its arguments” (¶ 3).

    Justice Kelly’s opinion was a majority opinion on the legal issue that brought this case before the court. All justices agreed that the dredging activities described above were taxable under Wis. Stat. section 77.52(2)(a)11. because they constitute the processing of tangible personal property within the meaning of that statute (see ¶ 104).

    Justice A.W. Bradley, joined by Justice Abrahamson, filed a concurring opinion agreeing that the dredging activities were taxable. However, on the issue of judicial deference to administrative agencies’ conclusions of law, the concurring justices “would not jettison a past practice that has served us well” (¶ 113).

    Business Regulations

    Anti-Combination Statutes – Funerary Businesses

    Porter v. State, 2018 WI 79 (filed 27 June 2018)

    HOLDING: Wisconsin statutes barring the joint ownership or operation of cemeteries and funeral homes are constitutional.

    SUMMARY: Plaintiffs attacked the constitutionality of Wis. Stat. sections 157.067(2) and 445.12(6). These “anti-combination laws” prohibit the joint ownership or operation of cemeteries and funeral homes. The circuit court upheld their constitutionality and, in a published decision, the court of appeals affirmed. See 2017 WI App 65.

    The supreme court affirmed in a majority opinion authored by Justice Abrahamson. The court applied the five-criteria analysis set forth this term in Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78 (summarized below), that now controls rational-basis scrutiny (see ¶ 34). Under this test, the statutes violated neither equal protection nor substantive-due-process protections (see ¶ 36).

    Dissenting were Justice R.G. Bradley and Justice Kelly, who concluded that there was no “legitimate government interest” fostered by the statutes even under the most “deferential review” standard (¶ 54).

    Constitutional Law

    “Takings” Claims – Obstructing Street View of Billboards

    Adams Outdoor Advertising Ltd. P’ship v. City of Madison, 2018 WI 70 (filed 19 June 2018)

    HOLDING: In takings jurisprudence, a right to visibility of private property from a public road is not a cognizable right giving rise to a protected property interest.

    SUMMARY: In 2007, Adams Outdoor Advertising purchased a parcel of land near the Beltline Highway in Madison on which had been constructed a billboard structure with two panels (one facing east and the other west). Pursuant to a Madison city ordinance, the billboard is a nonconforming use, which means the billboard is permitted to remain in place, but Adams cannot modify its height or location.

    In 2013, the city of Madison built a pedestrian and bicycle overpass crossing the Beltline Highway; the bridge is located adjacent to, but not on, Adams’ property. The bridge obstructs the view of the west-facing side of the billboard from Beltline traffic, and Adams claims that it has not been able to sell advertising space on the west-facing panel since the bridge was constructed. The city never compensated Adams for any damages sustained due to the construction of the bridge.

    Asserting that the city’s construction of the bridge deprived Adams of substantially all beneficial uses of its property and sign, Adams initiated an inverse condemnation action pursuant to Wis. Stat. section 32.10 in which it claimed the city took its property and sign without compensation. This statute, which codifies the inverse condemnation procedure, “is the legislative direction for fulfilling the mandate of the just compensation clause of the Wisconsin Constitution” (¶ 12 n.6). The circuit court granted summary judgment in favor of the city and, in an unpublished decision, the court of appeals affirmed. In a majority opinion authored by Justice A.W. Bradley, the supreme court affirmed the court of appeals.

    To determine whether there has been a taking of property, a court must define property and determine which interests in property are significant enough to be protected from a taking without compensation (see ¶ 30). In this case the majority determined that the property interest asserted by Adams is based on a right of visibility of private property from a public road (see id.). Having made that determination, the court then considered whether this is a recognized property right under its takings jurisprudence.

    Relying on Randall v. City of Milwaukee, 212 Wis. 374, 249 N.W. 73 (1933), the supreme court concluded that “a right to visibility of private property from a public road is not a cognizable right giving rise to a protected property interest. Because Adams’ claim, in essence, rests on asserting this unrecognized right, its takings claim must fail” (¶ 5). This result is in accord with the position taken by numerous jurisdictions (see ¶ 40).

    Justice R.G. Bradley filed a dissenting opinion that was joined in by Chief Justice Roggensack and Justice Kelly.

    Criminal Procedure

    Ineffective Assistance of Counsel – Legal Experts Testifying at Machner Hearings

    State v. Pico, 2018 WI 66 (filed 15 June 2018)

    HOLDINGS: 1) Trial counsel did not render deficient performance by failing to further investigate the defendant’s mental capacity. 2) Testimony by a legal expert at a Machner hearing on the ultimate question whether trial counsel performed deficiently is not admissible. 3) The trial court did not impose a longer sentence because of the defendant’s continued assertion of innocence.

    SUMMARY: The defendant was convicted of sexually assaulting a young girl. In a postconviction motion he claimed that his trial counsel provided ineffective assistance because, among other things, he failed to investigate a traumatic brain injury the defendant suffered in a motorcycle accident 20 years earlier. The injury caused the defendant to experience double vision for which he still wears an eyepatch.

    Trial counsel was aware of the injury and discussed it with the defendant and his family; no one mentioned any lingering effects of the accident (other than the double vision) nor did anyone say that it affected the defendant’s behavior. Nonetheless, the defendant contended that, had his lawyer properly investigated his mental capacity, he would have suggested to the defendant that a plea of not guilty by reason of mental disease or defect be considered. He also argued that there would have been a basis to suppress the statements the defendant made to the police because the injury left him unusually susceptible to the interrogation techniques used by the officer.

    At a Machner hearing [see State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979)] to litigate the defendant’s ineffective-assistance-of-counsel claim, there were multiple witnesses, including the defendant’s trial counsel and a neuropsychiatrist who testified that the defendant’s records reflect that he had been diagnosed with “frontal lobe syndrome,” the symptoms of which include deficits in cognitive, emotional, and behavioral functioning. The defense also called a legal expert who opined that trial counsel had not provided constitutionally adequate representation.

    The circuit court concluded that the defendant’s trial counsel had performed deficiently, and it vacated the conviction. In an unpublished decision, the court of appeals reversed the circuit court. In a majority opinion authored by Justice Kelly, the supreme court affirmed the court of appeals.

    The supreme court concluded that trial counsel’s decision not to further investigate the defendant’s mental capacity was reasonable and fell within the wide range of professionally competent assistance (see ¶ 28). “An investigation into a client’s mental capacity is unwarranted unless the information known before trial suggests the need for such an exploration” (¶ 26). Had the information presented by the neuropsychiatrist at the Machner hearing been known to trial counsel before trial, it may have been enough to require him to further investigate the defendant’s mental capacity.

    “But the important point here is that is was not known to counsel before trial” (id.). “The information available to Mr. Pico’s counsel before trial was much more limited than what Mr. Pico presented at the Machner hearing. He knew that Mr. Pico experienced double vision as the result of a motorcycle accident, and that he was flustered when questioned by the police about a very serious crime. Mr. Pico expects these two facts to carry more weight than they can bear…. Double vision and nervousness during a police interview, alone, are insufficient to suggest there may be a need to investigate the defendant’s mental capacity. There is nothing in the record suggesting double vision interferes with (or impacts or affects or alters) mental capacity. And nervousness under these circumstances could be the result of any number of factors that have nothing to do with a brain injury” (¶ 27).

    The supreme court also concluded that the court of appeals did not improperly substitute the circuit court’s findings of fact at the Machner hearing with its own when it assessed the sufficiency of trial counsel’s performance.

    The court also addressed the propriety of having a legal expert testify at a Machner hearing. It held that such expert testimony “is admissible in the Machner context, but only to the extent the expert focuses on factual matters and does not offer his opinion on the reasonableness of trial counsel’s conduct” (¶ 47). Expert testimony about the “reasonableness” of counsel’s performance “is inadmissible because it addresses a question on which the court is the only expert” (¶ 45).

    Lastly, the court concluded that there is no evidence that the circuit court imposed a longer sentence on the defendant because of his continued assertion of innocence (see ¶ 54).

    Justice R.G. Bradley wrote a concurring opinion in which she joined the majority but wrote separately to offer clarification about the testimony of legal experts at a Machner hearing as follows:

    “When a circuit court determines the testimony of a Strickland expert would be helpful, the expert may testify as to what actions a reasonable attorney could take in the same or similar circumstances. These include ‘factual matters’ such as alternate actions the defendant’s lawyer could have taken and different strategies defense counsel could have employed. The expert lawyer may also testify regarding the existence of alternative strategies available to defense counsel under the particular facts and circumstances of the case. However, the expert may not testify as to the ultimate question of law the circuit court must decide. Specifically, the expert may not offer an opinion on whether the trial lawyer performed deficiently. That is a question of law left to the circuit court” (¶ 57).

    Justice Kelley, the author of the majority opinion in this case, joined this concurrence.

    Justice Abrahamson filed a dissenting opinion that was joined in by Justice A.W. Bradley.

    Competency – Involuntary Medication

    State v. Scott, 2018 WI 74 (filed 20 June 2018)

    HOLDINGS: 1) The circuit court’s order that the defendant be involuntarily medicated until he regains competency was invalid because it failed to comport with case law; 2) such orders are “final” orders, appealable as of right; 3) the court of appeals erred by not explaining its reasoning for denying a stay motion; and 4) henceforth, such orders are subject to automatic stays pending appeal.

    SUMMARY: The defendant was convicted of crimes in 2009 and later initiated postconviction challenges. In 2015, counsel persuaded the court that the defendant was not competent; an expert evaluation found him incompetent and noted he had rejected medication because of his illness. The circuit court ordered him to be involuntarily medicated and later lifted its own temporary stay.

    The court of appeals rejected the defendant’s emergency motion for a stay of involuntary treatment. After seven months’ treatment with medication, the defendant became competent (see ¶ 20). This case was before the supreme court on bypass from the court of appeals.

    The supreme court reversed the circuit court in a unanimous opinion authored by Justice Abrahamson. The opinion addresses four related but discrete issues.

    First, the circuit court erred by not following the procedures set forth in State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994), a case that regulates those rare instances when a defendant may be involuntarily medicated during postconviction proceedings (see ¶ 25). Thus, the court’s order was premature and invalid (see ¶ 26). Second, an order finding a defendant incompetent and requiring involuntary treatment is a “final” order that is appealable as of right (see ¶ 34).

    Third, the court of appeals erred by failing to explain its reasons for denying the defendant’s motion for a stay of the involuntary medication order. Discretionary decisions must be explained by the courts (see ¶ 40). Fourth, to prevent a defendant’s rights from being reduced to a nullity, as occurred here, the court held that in future cases, “we hereby order that involuntary medication orders are subject to an automatic stay pending appeal” (¶ 43).

    Jury Instructions – Sufficiency

    State v. Langlois, 2018 WI 73 (filed 20 June 2018)

    HOLDINGS: Jury instructions correctly stated the law when read as a “whole,” and sufficient evidence supported the defendant’s conviction for homicide by negligent handling of a weapon.

    SUMMARY: The defendant fatally stabbed his brother. He was charged with reckless homicide but convicted of a lesser offense of homicide by negligent handling of a dangerous weapon. The jury acquitted him of first- and second-degree reckless homicide; a self-defense instruction was also given. In a published decision, the court of appeals affirmed the conviction. See 2017 WI App 44.

    The supreme court affirmed the court of appeals in a majority opinion, authored by Justice Ziegler, that addressed the accuracy of the jury instructions and the sufficiency of the evidence. First, the instruction on “accident” accurately stated the law; when viewed in the “context” of other instructions, it accurately recited the “risk” that the state must prove (¶ 42).

    Second, the jury instruction on self-defense also correctly stated the law. When the instructions are read in “context,” the jury was properly informed that self-defense applied to all the homicide counts, contrary to the defendant’s argument that the jury may have been misled into thinking self-defense did not apply to the negligent-homicide count because it was not explicitly instructed to apply it (see ¶ 47). Because the instructions accurately stated the law, the court also rejected the defendant’s related claims of ineffective assistance and due-process violations.

    Third, sufficient evidence supported the jury’s verdict. The court’s reasoning is necessarily fact intensive.

    Justice Abrahamson dissented on grounds that the self-defense instructions were defective and the case was on “all fours” with State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833.

    Justice R.G. Bradley also dissented on grounds that the self-defense instructions failed to tell the jury that the state had the burden of disproving the self-defense claims beyond a reasonable doubt.

    Suppression – Invalid Arrest Warrant

    State v. Kerr, 2018 WI 87 (filed 6 July 2018)

    HOLDING: Absent police misconduct, evidence seized pursuant to a search based on an invalid arrest warrant should not have been suppressed.

    SUMMARY: Police officers arrested the defendant based on an outstanding arrest warrant. When searching the defendant, officers found drugs on his person, for which he was charged. Conceding that there had been no misconduct by police, the defendant moved to suppress the drugs on grounds that the arrest was based on an invalid warrant.

    The circuit court ruled that the municipal bench warrant was invalid and suppressed the evidence on grounds of “judicial integrity.” (The municipal judge had issued the bench warrant without complying with statutes requiring notice and hearings on the person’s ability to pay.) This case was before the supreme court on bypass from the court of appeals.

    The supreme court reversed in a majority opinion authored by Justice Ziegler. The sole basis for the exclusionary rule is to deter police misconduct, not to remedy other wrongs. Absent any allegation of police misconduct, the circuit court erred by suppressing the evidence. Police must be able “to rely on dispatch in the same way that they are able to rely on their computer records” (¶ 22).

    Justice Ziegler filed a concurrence to her own opinion, joined by Chief Justice Roggensack and Justice Gableman. The concurrence addressed issues related to the validity of the underlying municipal arrest warrant. It underscored that the bench warrant here was not void ab initio (see ¶ 43).

    Justice A.W. Bradley, joined by Justice Abrahamson, dissented. They contend that Wisconsin should depart from U.S. Supreme Court precedent and recognize “judicial integrity” as an independent basis for suppressing evidence (¶ 64).

    Justice R.G. Bradley also dissented. “Longstanding precedent … controls this case” and supports suppression of the evidence based on an invalid arrest warrant (¶ 84).

    Employment Law

    Wisconsin Fair Employment Act – Termination Because of Disability – “Inference Method” of Finding Discriminatory Intent

    Wisconsin Bell v. LIRC, 2018 WI 76 (filed 26 June 2018)

    HOLDINGS: 1) The Labor and Industry Review Commission (LIRC) must not conclude that a violation of Wis. Stat. section 111.322(1) occurred by using the “inference method” of proving intentional discrimination unless the employee proves the employer knew the employee’s disability caused the conduct on which the employer based an adverse employment decision. 2) The record in this case lacked substantial evidence that the employer knew that the employee’s disability caused the conduct that resulted in his termination.

    SUMMARY: An employee claimed that Wisconsin Bell intentionally discriminated against him when it terminated his employment because of his disability. LIRC employed the “inference method” to determine discriminatory intent on the part of the employer and concluded that Wisconsin Bell had violated the Wisconsin Fair Employment Act (WFEA) when it terminated the employee.

    An employment discrimination claim under Wis. Stat. section 111.321 can succeed only if the following three propositions are true: 1) The employee has a disability; 2) the employer terminated his employment “because of” that disability; and 3) the employer had no justification under Wis. Stat. section 111.34 for terminating the employment (see ¶ 32). LIRC claimed it may use either of two methods in determining whether Wisconsin Bell intentionally terminated the discharged employee “because of” his disability.

    “The first method asks whether the employer held ‘actual discriminatory animus against an employee because that employee was an individual with a disability.’ The alternative method, known as the ‘inference method,’ finds intent to discriminate when an employer bases its adverse action on ‘a problem with that employee’s behavior or performance which is caused by the employee’s disability.’ (‘If an employee is discharged because of unsatisfactory behavior which was a direct result of a disability, the discharge is, in legal effect, because of that disability.’)” (¶ 34) (citations omitted).

    In this case LIRC employed the “inference method” and the issue before the supreme court was whether LIRC’s version of the inference method preserves the employee’s burden of proving an employer’s intent to discriminate against the employee because of the employee’s disability (see ¶ 35).

    In a majority decision authored by Justice Kelly, the supreme court found that LIRC’s inference methodology is “structurally flawed” (¶ 41). “We hold that LIRC may not conclude that a violation of Wis. Stat. § 111.322(1) occurred by using the inference method of proving intentional discrimination unless the employee proves the employer knew his disability caused the conduct on which the employer based an adverse employment decision. And the employer must have had this knowledge at the time it made the decision” (¶ 54).

    In this case the court further concluded that the record lacked substantial evidence that Wisconsin Bell knew that the employee’s disability caused the conduct that resulted in the employee’s termination (see id.).

    Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

    Insurance

    Choice of Law – Indemnification

    American Family Mut. Ins. Co. v. Cintas Corp. No. 2, 2018 WI 81 (filed 28 June 2018)

    HOLDING: A contract’s indemnification clause was governed by Ohio law, which required that the plaintiff indemnify and defend the tortfeasor for damages caused by the tortfeasor’s own negligence.

    SUMMARY: A fire badly damaged an assisted living facility because the building’s fire-suppression system failed. The building’s owner had contracted with Becker to manage the property. Becker, in turn, contracted with Cintas Corp. No. 2 (hereinafter Cintas) to provide various services, including maintenance of the failed fire-suppression system. The owners sued Becker, which tendered its defense to Cintas.

    Citing an indemnification clause that was purportedly controlled by Ohio law, Cintas moved for summary judgment. The clause effectively permitted the tortfeasor, Cintas, to demand that Becker defend and indemnify Cintas for Cintas’s own negligence. Denying the motion, the circuit court ruled that Cintas had a duty to defend and indemnify under Wisconsin law, which protects against such contractual dodges, but conceded that Ohio law would permit such an outcome.

    In an unpublished decision, the court of appeals reversed, ruling that even under Wisconsin law “the Contract required Becker to defend and indemnify Cintas for its own negligence and for the breach of implied warranty claim” (¶ 8).

    The supreme court affirmed the court of appeals in a majority opinion authored by Justice Kelly, albeit on different grounds. First, the court held that the contract’s choice-of-law provision validly imposed Ohio law. Wisconsin’s rule requiring the strict construction of indemnification promises did not “nullify” the parties’ choice of law, lest it “unnecessarily impair ‘certainty and predictability in contractual relations’” (¶ 16). There is no requirement in Wisconsin that such choice-of-law provisions be “conspicuous” in the contract (¶ 19).

    Applying Ohio law, the majority held that Cintas could unload its own liability back on Becker under this clause: “We could not say this language does not cover Cintas’s own negligence without doing considerable damage to the Contract” (¶ 24). The clause did create a (very) limited guaranty, one that the court deemed not to be illusory (see ¶ 26).

    Dissenting, Justice A.W. Bradley, joined by Justice Abrahamson, contended that the indemnification clause was both “ambiguous and unconscionably inconspicuous,” and that Ohio law should not be invoked to “circumvent important Wisconsin public policy considerations” (¶ 39).

    Motor Vehicle Law

    OWI – Warrantless Blood Draw – Exigent Circumstances – More Severe Sentence Imposed Because Defendant Refused to Consent to Blood Draw

    State v. Dalton, 2018 WI 85 (filed 3 July 2018)

    HOLDINGS: 1) Defense counsel did not perform deficiently when she failed to challenge a warrantless blood draw from the defendant; such a motion would have been meritless because the blood draw was performed under exigent circumstances. 2) The circuit court erroneously exercised its discretion when it sentenced the defendant to a more severe penalty because he refused to consent to a blood draw following his arrest for operating while intoxicated (OWI).

    SUMMARY: This case arose from a single-vehicle crash in which the defendant driver and his passenger were both injured. Washington County sheriff’s deputies responded to the scene at 10:07 p.m. They found Dalton unconscious on the roof of the car. He was taken by ambulance to a nearby location from which a Flight for Life helicopter airlifted him to a hospital in Milwaukee. The chief investigating deputy remained at the scene to complete the investigation and then drove to the hospital in Milwaukee to which Dalton had been transported; he arrived there at 11:54 p.m. Another deputy accompanied the injured passenger to a different hospital.

    Meanwhile, most of the other deputies on duty were dispatched to handle other calls; only two deputies remained available to patrol all of Washington County. At 12:05 a.m. the chief investigating deputy informed Dalton, who had regained consciousness, that he was under arrest. The deputy informed him about the implied consent law, and the defendant refused to consent to a blood draw. Believing there were exigent circumstances that would obviate the need for a search warrant, the deputy instructed a nurse to draw the defendant’s blood. A subsequent test revealed a blood alcohol content of 0.238.

    The defendant entered a no-contest plea to second-offense OWI (a criminal charge) and operating after revocation. At sentencing the court specifically indicated that the defendant would be punished for his refusal to consent to a blood test following his arrest.

    In a postconviction motion, the defendant sought to withdraw his plea, arguing that his attorney had rendered ineffective assistance of counsel by failing to seek suppression of the blood test. Alternatively, he sought resentencing on a claim that the circuit court erroneously exercised its sentencing discretion by explicitly punishing him for his refusal to consent to a blood draw. The circuit court denied these motions.

    In an unpublished opinion, the court of appeals affirmed. In a majority opinion authored by Justice A.W. Bradley, the supreme court reversed.

    The court first considered whether the defendant had been denied the effective assistance of counsel because his attorney did not move to suppress the blood alcohol evidence. It concluded that counsel did not perform deficiently because such a motion would have been meritless (see ¶ 53).

    There is an exception to the warrant requirement for exigent circumstances. In an OWI case the natural dissipation of alcohol in the bloodstream may present a risk that evidence will be destroyed, but this does not create an exigency per se. Rather, whether a warrantless blood draw is reasonable must be determined on a case-by-case basis taking into account the totality of the circumstances. See Missouri v. McNeely, 569 U.S. 141 (2013).

    “Given the surrounding circumstances, the dissipation of alcohol in Dalton’s blood and the rapidly closing three-hour window to accomplish a presumptively admissible and accurate blood draw, [the chief investigating deputy] was presented with an exigent circumstance. Wis. Stat. § 885.235(1g). Such events gave rise to a reasonable belief that a delay in procuring a warrant would risk the destruction of evidence” (¶ 52). In a footnote the court observed that at the time these events occurred, Washington County did not have a procedure in place for warrants to be obtained by email or phone (see id. n.8).

    Despite its holding that the defendant was not denied the effective of assistance of counsel, the supreme court nonetheless reversed the court of appeals and remanded the matter to the circuit court for resentencing. In doing so, it relied on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), in which the U.S. Supreme Court invalidated a law that made it a crime for a motorist to refuse to be tested after being arrested for OWI; the Court found that such a law violates the Fourth Amendment’s proscription against unreasonable searches and seizures. Wisconsin’s implied consent law does not provide for criminal penalties for a driver who refuses to submit to chemical testing.

    Nonetheless, in the present case, the majority concluded that the imposition of a lengthier jail sentence on the defendant for his refusal to consent to a blood test “[was] certainly a criminal penalty” and thus a violation of Birchfield (¶ 59). Said the majority: “Pursuant to the circuit court’s unequivocal sentencing remarks, [the defendant] was criminally punished for exercising his constitutional right” (¶ 61).

    Chief Justice Roggensack filed a dissenting opinion contending that the sentencing of the defendant did not violate Birchfield. “Because the majority opinion misunderstands the directive of Birchfield and expands the statutory opportunity to withdraw consent pursuant to Wis. Stat. § 343.305(4) into a constitutional right to refuse a blood draw contrary to South Dakota v. Neville, 459 U.S. 553 (1983), I respectfully dissent” (¶ 70). Justice Gableman joined this dissent. Justice Ziegler also filed a dissent in which Justice Gableman joined.

    OWI – Implied Consent – Withdrawal of Blood from Unconscious Arrestee

    State v. Mitchell, 2018 WI 84 (filed 3 July 2018)

    HOLDING: There was no majority opinion in this OWI case though five justices agreed that the withdrawal of blood from the unconscious defendant did not violate his Fourth Amendment rights.

    SUMMARY: This case involved the withdrawal of blood from an unconscious person who had been arrested for OWI. The arresting officer invoked the procedures of Wisconsin’s implied consent law, which provides that a person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent and, if the officer has probable cause to believe that the person has violated the OWI law (or one of several other statutorily identified offenses), a blood sample (or one of the other samples identified in the statute) may be taken. See Wis. Stat. § 343.305(3)(b).

    The blood sample drawn from the defendant revealed an alcohol content of 0.222 and he was charged with OWI (seventh offense). He moved to suppress the results of the blood draw, contending that the draw was a search conducted in violation of the Fourth Amendment. The circuit court denied the motion and a jury thereafter convicted the defendant. The defendant appealed, and the court of appeals certified the case to the supreme court, which granted certification.

    The supreme court affirmed the judgment of the circuit court. Five justices agreed that the results of the blood test were admissible. However, there was no majority opinion. Chief Justice Roggensack wrote the court’s lead opinion that was joined in by Justice Ziegler and Justice Gableman. The lead opinion concluded that “[the defendant] voluntarily consented to a blood draw by his conduct of driving on Wisconsin’s roads and drinking to a point evidencing probable cause of intoxication. Further, through drinking to the point of unconsciousness, [the defendant] forfeited all opportunity, including the statutory opportunity under Wis. Stat. § 343.305(4), to withdraw his consent previously given; and therefore, § 343.305(3)(b) applied, which under the totality of circumstances reasonably permitted drawing [his] blood” (¶ 66).

    Justice Kelly, joined by Justice R.G. Bradley, concurred “because performing a blood draw on an unconscious individual who has been arrested for operating a motor vehicle while intoxicated in violation of Wis. Stat. § 346.63 (‘OWI’) is reasonable within the meaning of the Fourth Amendment to the United States Constitution” (¶ 67).

    Synthesizing several opinions of the U.S. Supreme Court, Justice Kelly wrote that the warrantless blood draw from the defendant was reasonable “because he had been arrested for OWI, evidence of the offense was continually dissipating, there was no telling how long he would be unconscious, his privacy interest in the evidence of intoxication within his body had been eviscerated by the arrest, and no less intrusive means were available to obtain the evanescent evidence” (¶ 80).

    Justice A.W. Bradley, joined by Justice Abrahamson, dissented. She determined that “implied consent” is not the same as “actual consent” for purposes of a Fourth Amendment search and that consent provided solely by way of an implied consent statute is “constitutionally untenable” (¶ 89).

    In a footnote, Justice A.W. Bradley observed that four justices disagree with the reasoning of Chief Justice Roggensack’s lead opinion. “Importantly, contrary to the lead opinion, four justices [Abrahamson, A.W. Bradley, R.G. Bradley, and Kelly] determine that the implied consent laws cannot justify the warrantless blood draw performed in this case” (¶ 88 n.1).

    Municipal Law

    Tax Incremental Financing – Declaratory Judgment – Certiorari Review

    Voters with Facts v. City of Eau Claire, 2018 WI 63 (filed 6 June 2018)

    HOLDINGS: 1) The circuit court correctly dismissed the plaintiffs’ claims for declaratory judgment on their various challenges to the creation of a new tax incremental district and the expansion of another district by the city of Eau Claire. 2) The plaintiffs are entitled to certiorari review to test the validity of the legislative determinations made by the city.

    SUMMARY: This case arose out of the approval of a redevelopment project in the city of Eau Claire, which relied in part on funds derived from two tax incremental districts (TIDs). When a municipality seeks to expand or create a TID, it must resolve to do so for one of the purposes identified by statute. In this case the city’s declared purpose was to address blight, and, to support that purpose, the city’s local legislative body had to find, among other things, that “[n]ot less than 50%, by area, of the real property within the district is … a blighted area.” Wis. Stat. § 66.1105(4)(gm)4.a. A TID must also be approved by the city’s joint review board (JRB), which must find, among other things, that “in its judgment, the development … would not occur without the creation of a [TID].” Wis. Stat. § 66.1105(4m)(b)2.

    In this litigation numerous plaintiffs challenged the city’s actions with regard to the TIDs. Their first and second claims seeking declaratory relief (one each for the two TIDs under attack) challenged the validity of the city’s findings of blight and the JRB’s “but-for” findings as described above. With regard to the city’s findings, the plaintiffs alleged that the city did not articulate the factual basis for its conclusion that the areas covered by the TIDs were blighted. With regard to the JRB’s findings, the plaintiffs alleged that the JRB could not have reasonably concluded on the record evidence that the development would not occur in the TIDs without tax incremental financing. The plaintiffs thus argued that the TIDs lacked a public purpose in violation of the public purpose doctrine.

    The third claim seeking declaratory judgment challenged the validity of the city’s disbursement of cash grants pursuant to the project plan for one of the TIDs. The plaintiffs alleged that the development agreement violated Wis. Stat. section 66.1105(2)(f)1.a. – which excludes destruction of historic properties from the definition of “project costs” – because the project plan unlawfully reimburses the developer for demolishing historic properties.

    The fourth claim for declaratory relief also challenged the validity of the city’s disbursements of cash grants pursuant to the project plan for the TIDs. The plaintiffs alleged that the cash grants function as a tax rebate or tax credit because the developer, who is also the owner of taxable property, is given substantial cash payments, effectively reimbursing the owner-developer in advance for all or a part of the taxes paid on its property; this, the plaintiffs argued, violates the uniformity clause of the Wisconsin Constitution because the owner-developer is being taxed at a more favorable rate than an owner of identically assessed property elsewhere in Eau Claire (see ¶¶ 11-13).

    Finally, the plaintiffs asserted certiorari review as an alternative basis for relief; here they argued that the city’s and the JRB’s actions were arbitrary, capricious, and outside the scope of their lawful authority (see ¶ 14). The circuit court dismissed the plaintiff’s complaint. In a published opinion, the court of appeals affirmed the dismissal as to declaratory judgment, but it reversed and remanded for certiorari review. See 2017 WI App 35.

    In a majority decision authored by Justice Ziegler, the supreme court affirmed. The court concluded that the “[p]laintiffs’ complaint was properly dismissed as to declaratory judgment because it fails to state claims upon which relief may be granted. The first and second counts fail because the City Common Council’s findings of blight and the JRB’s ‘but for’ assertions are legislative determinations that do not present justiciable issues of fact or law; the third count fails because it does not allege facts which plausibly establish that the City’s cash grant for TID 10 was used to reimburse the developer’s costs associated with demolishing historic buildings; and the fourth count fails because it does not allege facts which plausibly establish that cash grants are intended or used to pay developers’ property taxes” (¶ 68).

    However, the court held that the plaintiffs’ first and second claims are reviewable under certiorari. “We conclude that certiorari review is appropriate and adequate to address Plaintiffs’ claims regarding the municipality’s findings of blight and ‘but for’ assertions because certiorari review is the mechanism by which a court should test the validity of a municipality’s legislative determinations” (¶ 70). The court found that the record before it did not contain a municipal record sufficient to enable its review; it thus remanded the matter to the circuit court for certiorari review of the plaintiffs’ first and second claims (see ¶ 74).

    Justice R.G. Bradley and Justice Kelly filed a joint dissent.

    Pension Boards – Voting – Size

    Milwaukee Police Ass’n v. City of Milwaukee, 2018 WI 86 (filed 6 July 2018)

    HOLDING: The city of Milwaukee lacked the authority to reduce individual employee-members’ right to vote for pension board members and to increase the board’s size.

    SUMMARY: This case addresses the rights of members of the Employee Retirement System (ERS) to vote for members of the ERS Annuity and Pension Board; it also addresses the board’s size. When the ERS was created in 1937, each employee-member of the ERS had the right to vote for three employees to serve on the board. Later legislation gave Milwaukee limited authority to manage the ERS, subject to statutory protections.

    In 2013, Milwaukee reduced the voting rights of employees by permitting them to vote for only a single board member. It also increased the board’s size to 11 members. Several unions challenged the changes. The circuit court ruled in the city’s favor and, in an unpublished decision, the court of appeals affirmed.

    The supreme court reversed in an opinion authored by Chief Justice Roggensack. A 1947 act empowered the city to manage the ERS yet precluded modification of the “annuities, benefits or other rights of any persons who are members” of the ERS. The court held that the term “other rights” includes the right of each employee-member to vote for three employees of his or her choice to become board members. The city had no power to alter this right (¶ 34).

    Second, the city lacked the power to increase the board’s size to 11 in 2013 by providing that six members were to be political appointees. This alteration “diluted” the employees’ right to address their concerns (¶ 37). Finally, the legislature’s protection of the city employees’ retirement benefit was a matter of statewide concern that did not impinge on home rule (see ¶ 43).

    Justice R.G. Bradley concurred, but wrote separately to respond to the dissents. Justice Gableman joined this concurrence.

    Justice Abrahamson, joined by Justice A.W. Bradley, dissented, arguing that a 1947 act granted the city power to administer the ERS, which extended to the size and composition of the board.

    Justice Kelly also dissented on grounds that the majority had “manufactured” a right to proportional representation on the board that was not grounded in the applicable legislation.

    Torts

    Medical Malpractice – Damage Caps

    Mayo v. Wisconsin Injured Patients & Families Compensation Fund, 2018 WI 78 (filed 27 June 2018)

    HOLDING: Damages caps on injured patients’ pain and suffering are constitutional; the supreme court overruled prior case law.

    SUMMARY: Mayo was grievously injured as a result of medical malpractice; her arms and legs had to be amputated because of a misdiagnosed infection. A jury awarded her more than $15 million for pain and suffering. The circuit court refused to reduce the award to comport with the statutory damages cap of $750,000, finding it unconstitutional. In a published decision, the court of appeals affirmed. See 2017 WI App 52.

    The supreme court reversed in a majority opinion authored by Chief Justice Roggensack. Initially, the court held that “rational basis” scrutiny was the appropriate standard of review when considering the constitutionality of the statutory damages caps. It overruled its earlier decision in Ferdon ex rel. Petrucelli v. Wisconsin Patients Compensation Fund, 2005 WI 125, 284 Wis. 2d 573, 701 N.W.2d 440, which had set forth a standard labelled “rational basis with teeth” on grounds that it “usurps the policy forming role of the legislature and creates uncertainty under the law” (¶ 32).

    Rejecting attacks on the damages caps under both equal protection and due process grounds, the court held that the statute had a “rational basis” based on a five-point analysis the court laid out in the opinion (see ¶¶ 43-55). It also found the statute constitutional “as applied” to the parties in this case (¶ 62).

    Concurring, Justice R.G. Bradley, joined by Justice Kelly, joined the majority opinion but wrote separately to critique the court’s use of an “evidentiary burden of proof” – “beyond a reasonable doubt” – when scrutinizing statutes’ constitutionality.

    Justice A.W. Bradley, joined by Justice Abrahamson, dissented. The damages cap, they contend, is an “unfair and illogical burden only on catastrophically injured patients” that violates equal protection (¶ 102).

    Unemployment Compensation

    Termination for Misconduct – Absenteeism

    DWD v. LIRC, 2018 WI 77 (filed 26 June 2018)

    HOLDING: Wisconsin Statutes section 108.04(5)(e) allows an employer to adopt its own absenteeism policy that differs from the policy set forth in section 108.04(5)(e), and such termination for the violation of the employer’s absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employer’s policy is more restrictive than the absenteeism policy set forth in the statute.

    SUMMARY: Wisconsin’s unemployment compensation statutes provide that an employee whose work is terminated by an employing unit for “misconduct” by the employee is ineligible to receive unemployment compensation benefits. “Misconduct” includes “[a]bsenteeism by an employee on more than 2 occasions within the 120-day period before the date of the employee’s termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature….” Wis. Stat. § 108.04(5)(e) (emphasis added).

    In this case the employer had a written attendance policy that was stricter than the two-occasions provision of the statute quoted above. The employee (a registered nurse) had signed the attendance policy and was terminated for failing to adhere to it. She filed for unemployment compensation benefits, but the Department of Workforce Development (DWD) denied benefits because she violated the employer’s attendance policy.

    The employee then appealed this decision to LIRC, which reversed the DWD’s decision; LIRC concluded that an employee is not disqualified from unemployment compensation benefits when the employee is terminated for violating an absenteeism policy that is more restrictive than the two in 120 days’ standard codified in Wis. Stat. section 108.04(5)(e).

    The circuit court adopted the DWD’s interpretation of the statute and reversed LIRC’s decision. In a published decision, the court of appeals reversed the decision of the circuit court; it adopted LIRC’s interpretation of the statute. See 2017 WI App 29.

    The single issue before the supreme court in this case was whether Wis. Stat. section 108.04(5)(e) allows an employer to adopt an attendance or absenteeism policy that differs from that set forth in section 108.04(5)(e) such that termination of an employee for violating the employer’s policy results in disqualification for unemployment compensation benefits even if the employer’s policy is more restrictive on the employee (see ¶ 4).

    In a unanimous decision authored by Justice Abrahamson, the court held that “the plain language of Wis. Stat. § 108.04(5)(e) allows an employer to adopt its own absenteeism policy that differs from the policy set forth in § 108.04(5)(e), and that termination for the violation of the employer’s absenteeism policy will result in disqualification from receiving unemployment compensation benefits even if the employer’s policy is more restrictive than the absenteeism policy set forth in the statute. [The employee in this case] was terminated for not complying with her employer’s absenteeism policy. Accordingly, we conclude that [she] was properly denied benefits” (¶ 5).