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    Wisconsin Lawyer
    September 11, 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

    Administrative Law

    Public Service Commission Orders – Judicial Review

    Town of Holland v. Public Serv. Comm’n of Wis., 2018 WI App 38 (filed 30 May 2018) (ordered published 27 June 2018)

    HOLDINGS: 1) The Public Service Commission of Wisconsin (PSC) properly found that a new transmission line was necessary; 2) the environmental impact statement (EIS) was legally sufficient; 3) the PSC demonstrated a rational basis for a contested part of its order; and 4) the court had the authority to review the PSC’s decision denying a rehearing.

    SUMMARY: The PSC approved the construction of a high-voltage transmission line near La Crosse. The circuit court upheld the PSC’s order generally and the sufficiency of the EIS that accompanied it. As to a dispute about whether an existing transmission line might be used over a seven-mile stretch, the court remanded the question to the PSC for a reevaluation and rational-basis determination. The circuit court also ruled that it did not have jurisdiction to review the PSC’s order denying a petition for a rehearing.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge Brash that relied on the great-weight-deference standard set forth in Clean Wisconsin v. PSC, 2005 WI 93, 282 Wis. 2d 250, 700 N.W.2d 768 (see ¶ 27).

    First, a rational basis supported the PSC’s determination that the project was needed (¶ 34). Second, the EIS was sufficient, the court noting that “not every possible environmental impact and possible alternative needs to be addressed” (¶ 40).

    Third, the circuit court erred by remanding the dispute over how an existing transmission line might be used; the PSC demonstrated a rational basis for its original determination (see ¶ 46). (Here the court also discussed the validity of injunctions involving the PSC.) Finally, the court held that it had jurisdiction to review the PSC’s order denying a rehearing, which is itself an “administrative decision” (¶ 52). Again applying great-weight deference, it held that the PSC properly denied the petition for a rehearing (see ¶ 57).

    Criminal Procedure

    Motions to Suppress Evidence – Particularity Requirements to Obtain a Hearing

    State v. Radder, 2018 WI App 36 (filed 16 May 2018) (ordered published 27 June 2018)

    HOLDING: Given what the appellate court described as the “perfunctory and conclusory nature” of the defendant’s Fourth Amendment motion to suppress evidence, the circuit court appropriately exercised its discretion to deny a hearing on the motion.

    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: Defendant Radder was arrested for operating a motor vehicle while intoxicated (OWI), and he appealed from an order denying his amended pretrial motion to suppress all evidence “derived from [an] unlawful stop, detention, and arrest” (¶ 5). The circuit court concluded that the motion and a subsequently amended version were not sufficiently particular, and it denied relief without a hearing. The issue before the appellate court was whether the circuit court erred by not conducting an evidentiary hearing.

    Radder’s chief argument was that the pretrial-pleading standards established in State v. Velez, 224 Wis. 2d 1, 589 N.W.2d 9 (1999), are inapplicable, or at least significantly lower, on a motion to suppress evidence because the state bears the burden to show that warrantless searches and seizures are reasonable.

    In a majority opinion authored by Judge Hagedorn, the court of appeals disagreed. It concluded that Velez sets forth the proper standards to determine whether a pretrial motion requires an evidentiary hearing, and Radder’s motion failed to satisfy these standards (see ¶ 1).

    In the Velez case the supreme court clarified that the legal standards governing postconviction motions are largely applicable to pretrial motions as well. In the postconviction context, if a defendant’s motion alleges facts that, if true, would entitle the defendant to relief, the circuit court must hold an evidentiary hearing. This means alleging the “who, what, where, when, why, and how” to enable reviewing courts to meaningfully assess a defendant’s claim (¶ 10).

    If the defendant fails to allege sufficient facts in his or her motion to raise a question of fact, or presents only conclusory allegations, or if the record conclusively demonstrates that the defendant is not entitled to relief, then the circuit court has discretion to deny the motion without a hearing (see ¶ 11). See Nelson v. State, 54 Wis. 2d 489, 195 N.W.2d 629 (1972), and State v. Bentley, 201 Wis. 2d 303, 548 N.W.2d 50 (1996).

    “In the context of pretrial motions, however, the Velezcourt recognized that the Nelsonstandards are not, by themselves, sufficient to protect a defendant’s due process rights when he is bringing a motion prior to trial. The court noted the inherent difficulties a defendant may have in developing the facts necessary to support a pretrial motion in contrast to the plentiful record often available to a defendant making a postconviction motion. Accordingly, when assessing whether a hearing is required for a pretrial motion, the court adopted the safeguard we established in State v. Garner [207 Wis. 2d 520, 558 N.W.2d 916 (Ct. App. 1996)]:

    ‘[A]lthough a defendant may be unable to allege sufficient specific facts to warrant relief, a trial court must provide the defendant the opportunity to develop the factual record where the motion, alleged facts, inferences fairly drawn from the alleged facts, offers of proof, and defense counsel’s legal theory satisfy the court of a reasonable possibility that an evidentiary hearing will establish the factual basis on which the defendant’s motion may prevail’” (¶ 12) (citations and internal quotations omitted).

    “Thus, where there is a reasonable possibility that the defendant will establish the factual basis at an evidentiary hearing, the circuit court must provide the defendant the opportunity to develop the factual record” (¶ 13) (citation and internal quotations omitted).

    The court rejected the defendant’s assertion that a different burden applies to a Fourth Amendment motion to suppress evidence because the state bears the burden to show that warrantless searches and seizures are reasonable. The movant “still bears the burden of demonstrating a need for an evidentiary hearing in the first place. An evidentiary hearing exists to expose and settle factual disputes, and such a hearing is only warranted when a movant can, at the very least, show a reasonable possibility that a hearing is needed to allow the defendant to establish the necessary factual basis to succeed on the motion” (¶ 15).

    “The court is under no obligation to hold an evidentiary hearing if a defendant’s motion presents nothing more than conclusory allegations and fails to show that there are any factual disputes that require a hearing” (¶ 16).

    In this case, “Radder’s claim that the stop and detention were not supported by a warrant or reasonable suspicion was nothing more than a bare conclusion, and the circuit court reasonably denied a hearing on that issue. The claim that Radder was arrested without probable cause articulated in the amended motion offered a bit more detail, but without alleging any factual dispute a hearing would resolve…. [T]he court reasonably determined that Radder had failed to demonstrate a reasonable possibility that an evidentiary hearing would establish the factual basis for his claim that he was arrested without probable cause. Given the perfunctory and conclusory nature of Radder’s motion, the circuit court appropriately exercised its discretion to deny a hearing” (¶ 25) (citations and internal quotations omitted).

    In conclusion the court indicated that “[w]hen defendants file a pretrial motion to suppress, the clear weight of our law suggests that an evidentiary hearing should ordinarily be held. The circuit court could have done so in this case. However, this was, as the circuit court recognized, a boilerplate motion full of legal conclusions that told neither the State nor the court what Radder intended to challenge and why. While significant leeway in the pretrial context should be afforded, it is not, and need not be, limitless. We conclude that the circuit court’s line drawing here was not in error and affirm” (¶ 26).

    Judge Reilly filed a concurring opinion.

    Sex Offenders

    GPS Monitoring – Fourth Amendment – Ex Post Facto Clause

    Kaufman v. Walker, 2018 WI App 37 (filed 30 May 2018) (ordered published 27 June 2018)

    HOLDING: The statute imposing GPS tracking for sex offenders is lawful.

    SUMMARY: The plaintiff was convicted of multiple child sexual assaults in 1997. Ten years later the Wisconsin Department of Corrections revoked his probation for more sex offenses; the judge sentenced him to prison. He was granted parole in 2013 but was required to wear a GPS tracking anklet. Acting pro se, the plaintiff brought this declaratory judgment action attacking the lawfulness of the GPS tracking statute. The circuit court denied his claim.

    The court of appeals affirmed the circuit court in an opinion authored by Judge Dugan. GPS tracking for sex offenders is governed by Wis. Stat. section 301.48 (see ¶ 14). First, the court rejected the plaintiff’s contention that section 301.48, enacted after his convictions, violates the ex post facto clause. The statute embodies a regulatory scheme; it is not punitive. The same argument was rejected by the supreme court in State v. Muldrow, 2018 WI 52, which is controlling precedent (see ¶ 21).

    Second, the GPS tracking order did not violate the plaintiff’s Fourth Amendment rights. The opinion describes how the monitoring is administered, finding it reasonable under the totality of the circumstances in light of the plaintiff’s diminished privacy interests and the state’s compelling interest in preventing future crime. The court also found the GPS tracking protocols comported with the “special needs” doctrine, considering especially “the State’s special need to protect children from sex offenders, the GPS’s relatively limited scope, and Kaufman’s diminished expectation to privacy” (¶ 44).

    Finally, the court upheld the state’s need for both sex “offender registries and GPS tracking” without further requiring a particularized showing of the offender’s future dangerousness (¶ 50).

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