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    Wisconsin Lawyer
    February 12, 2019

    Supreme Court Digest

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

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Restitution – Crime Considered at Sentencing

    State v. Wiskerchen, 2019 WI 1 (filed 4 Jan. 2019)

    HOLDING: The circuit court had the authority to order restitution in this case and did not misuse its discretion when calculating restitution.

    SUMMARY: This appeal concerns restitution the circuit court ordered after the defendant was found guilty of committing a burglary at the victim’s residence on May 8, 2018. In an unpublished decision, the Wisconsin Court of Appeals affirmed the restitution order. In an opinion authored by Chief Justice Roggensack, the Wisconsin Supreme Court affirmed the court of appeals.

    The first issue before the supreme court was whether the restitution statute (Wis. Stat. § 973.20) authorized the circuit court to order restitution to the victim in this case. The court held that it did. Section 973.20(1r) requires that the sentencing court order the defendant to pay restitution to any victim of a “crime considered at sentencing.” A “crime considered at sentencing” means the crime of conviction and any read-in crime. Wisconsin courts have interpreted “crime considered at sentencing” quite broadly.

    “The crime encompasses ‘all facts and reasonable inferences concerning the defendant's activity related to the “crime” for which the defendant was convicted, not just those facts necessary to support the elements of the specific charge of which the defendant was convicted.’ The victim needs to show that there is a ‘causal nexus’ between the crime and the victim’s losses, such that the defendant’s criminal activity was a ‘substantial factor’ in causing the losses. The court considers the defendant’s ‘entire course of conduct’ in committing the crime of conviction, not merely the facts necessary to support the conviction” (¶ 25) (internal citations omitted).

    In this case the defendant was convicted of burglarizing the victim’s home on May 8. The burglary was a “crime considered at sentencing” because it was a crime for which the defendant was convicted. Section 973.20 thus authorized the circuit court to order the defendant to pay restitution to the victim (see ¶ 27).

    The supreme court also concluded that the victim of the burglary met her burden of proving her losses as a result of a crime considered at sentencing. Although the circuit court did not itemize which stolen items were included in the restitution award, the finding of fact that the victim proved her loss was not clearly erroneous (see ¶ 29). There was no evidence that the defendant or anyone else had stolen the victim’s property on any other date; only the defendant’s mother’s hearsay statement (as relayed by the victim) implied that there could have been other thefts. The circuit court therefore did not misuse its discretion in calculating restitution (see ¶ 46).

    Justice A.W. Bradley, joined by Justice Abrahamson, concurred. They believe the record demonstrates that some of the property for which restitution was ordered was actually taken by the defendant during earlier entries into the victim’s home.

    In their view restitution is nevertheless appropriate in this case based on prior case law: “[W]here a circuit court makes specific factual findings regarding uncharged conduct that is ‘related to’ the crime of conviction, and there is a causal nexus between the conduct and the loss, restitution is permissible for uncharged conduct” (¶ 63). They noted that the circuit court had found a “nexus” between the defendant’s conduct and the victim’s loss.

    Justice R.G. Bradley filed a separate concurrence.

    Dispute Resolution

    Arbitration – Superseding Contract – Arbitrability

    Midwest Neurosciences Assocs. LLC v. Great Lakes Neurosurgical Assocs. LLC, 2018 WI 112 (filed 19 Dec. 2018)

    HOLDINGS: Courts have the duty to determine whether a contract calls for arbitration; when a dispute exists as to whether a second contract without an arbitration clause supersedes a first contract with such a clause, the determination of arbitrability must be decided in the first instance by the circuit court rather than the arbitrator.

    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: This litigation arose from the breakup of a neurosurgery practice and the implications of two contracts. The first contract, the operating agreement, provided that all disputes were to be arbitrated, including any issues of “substantive arbitrability.” The second contract, the redemption agreement, released various parties from all obligations under the operating agreement, including any agreement to arbitrate disputes. The parties disputed the effect of the redemption agreement on the operating agreement, including whether the former was a valid contract (see ¶¶ 92-93).

    The circuit court ruled that the redemption agreement was valid and the dispute was not subject to arbitration. The court of appeals reversed in an unpublished decision and remanded with instructions that the circuit court compel arbitration of the disputed issues.

    The supreme court reversed the court of appeals in an opinion authored by Justice Ziegler. “[I]t is a court’s duty to determine whether a contract calls for arbitration and when a dispute exists as to whether a second contract without an arbitration clause supersedes a first contract with such a clause, the determination of arbitrability must be decided in the first instance by the circuit court rather than the arbitrator” (¶ 5).

    As to the second contract, “[f]undamental principles clearly militate in favor of the ability to freely contract, even if that changes the forum of dispute resolution” (¶ 50). The opinion clarified that prior case law does not provide “that once arbitration is contracted as the forum for dispute resolution, parties can never later contract for an alternative forum for dispute resolution” (¶ 67).

    Finally, the record manifests a disputed issue of material fact regarding the validity of the redemption agreement. The supreme court remanded the case for a determination of its validity (see ¶ 83).

    Justice Dallet withdrew from participation. Justice Abrahamson concurred but wrote separately to provide a “clear analytic framework” for disputes such as this while also clarifying federal case law (¶ 94). Justice R.G. Bradley dissented on grounds that the majority “nullifies” the parties’ arbitration agreement (¶ 129).

    Motor Vehicle Law

    Second-offense Operation While Intoxicated – Proof of Prior Conviction – Use of Expunged Conviction to Enhance Penalty

    State v. Braunschweig, 2018 WI 113 (filed 21 Dec. 2018)

    HOLDINGS: 1) Expunged operating while intoxicated (OWI)-related convictions can be used to enhance the penalties in later OWI-related prosecutions. 2) In a prosecution for second-offense OWI, the existence of a prior OWI-related conviction is not an element of the crime that must be proved to the trier of fact beyond a reasonable doubt; rather, the burden of proof is by a preponderance of the evidence, which may be satisfied with a certified Wisconsin Department of Transportation (DOT) record.

    SUMMARY: The defendant was charged with OWI and operating with a prohibited alcohol concentration (PAC) based on an incident that occurred in 2016. The state prosecuted him as a repeat offender (second offense); the defendant’s 2011 conviction for injuring another person by operation of a vehicle while intoxicated was the predicate offense for enhancing the penalties for the current offenses. Because that prior conviction had been expunged, the defendant argued in a pretrial motion that the 2011 conviction could not be used as the basis to prosecute him as a second offender for the 2016 offenses.

    The circuit court denied the motion. It also denied a pretrial motion in which the defendant argued that the existence of a prior conviction is a status element in a second-offense OWI case and, absent a stipulation, must be proved beyond a reasonable doubt to the trier of fact.

    After his conviction on the 2016 offenses, the defendant appealed and, in an unpublished decision, the court of appeals affirmed. In a unanimous opinion authored by Justice Ziegler, the supreme court affirmed the court of appeals.

    The court first considered whether an expunged OWI-related conviction constitutes a prior conviction under Wis. Stat. section 343.307(1) for purposes of determining the penalty for later OWI-related offenses. It concluded that a prior expunged conviction must be counted under section 343.307(1) (see ¶ 2). Wisconsin Statutes section 340.01(9r) defines conviction for purposes of the Motor Vehicle Code as an “unvacated adjudication of guilt.”

    “Vacatur invalidates the conviction itself, whereas expunction of a conviction merely deletes the evidence of the underlying conviction from court records. Expunction, unlike vacatur, does not invalidate the conviction” (¶ 22). Thus, a conviction – even though expunged – “remains ‘an unvacated adjudication of guilt’ and thus, must be counted for purposes of supporting a prior conviction in OWI-related offenses” (¶ 25).

    The court next considered the question of the burden of proof the state must meet in proving a prior conviction in second-offense OWI-related cases. It held that the state must prove the prior conviction by a preponderance of the evidence and that this burden can be satisfied with a certified DOT record. The prior conviction is not an element in a second-offense OWI prosecution and need not be proved beyond a reasonable doubt (see ¶¶ 39-40).

    The court was careful to note that in some PAC cases the predicate prior conviction will be an element of the crime, which the state must prove beyond a reasonable doubt (see ¶ 36). “The holding that preponderance of the evidence is the burden of proof applies only when the prior convictions are not an element of the offense, such as in second offense OWI cases, but not so when the prior convictions become an element of the offense as in some PAC cases where the prior convictions lower the ‘[p]rohibited alcohol concentration’” (¶ 32 n. 14).

    Municipal Law

    Cemeteries – Transfer to Town for Management by Town

    DeWitt v. Ferries, 2018 WI 117 (filed 27 Dec. 2018)

    HOLDING: The plaintiffs failed to establish that a particular parcel of land is a “cemetery” and thus subject to transfer to the local town for management.

    SUMMARY: Pursuant to Wis. Stat. section 157.115(1)(c), the plaintiffs (hereinafter the DeWitts) sought to transfer a one-acre parcel of property to the town of Forest for management by the town as a town cemetery. They claimed that the parcel is a cemetery where they believe their relatives are buried and that the parcel is neglected or abandoned. There are references to a “cemetery” in various conveyances of the property that took place in the 1890s; however, there are no headstones or grave markers anywhere on the parcel.

    The circuit court ordered transfer of the parcel to the town. The court of appeals reversed this decision in an unpublished decision. In a unanimous opinion authored by Justice A.W. Bradley, the supreme court affirmed the court of appeals.

    The dispositive issue on this appeal was whether the one-acre parcel was actually a “cemetery” and thus subject to transfer to the town under Wis. Stat. section 157.115(1)(c). The supreme court concluded that it was not. It held that “the parcel does not satisfy the statutory definition of a ‘cemetery.’ The detailed statutes and regulations governing cemeteries indicate that a certain degree of formality is required to form a cemetery. The record does not support a determination that any such formalities were met here. Absent the formation of a cemetery, the cemetery transfer statute, Wis. Stat. § 157.115(1)(c), cannot be invoked” (¶ 38).

    In particular, the court noted that “there is no evidence in the record that a cemetery authority was ever formed, or that it platted land or filed a plat or map with the register of deeds” (¶ 37). Even in the late 19th century there were certain formalities required to form a cemetery (see ¶ 48).

    In prior case law the supreme court has concluded that various formalities have long been required to form and manage a cemetery. The decision in Town of Blooming Grove v. Roselawn Memorial Park Co., 231 Wis. 492, 286 N.W. 43 (1939), “supports the proposition that formality beyond [interment] of bodies – namely the forming and incorporating of a cemetery authority, recording plats, dividing those plats into lots, and conveying those lots – is required to establish a cemetery” (¶ 52).


    Governmental Immunity – “Known-danger” Exception

    Engelhardt v. City of New Berlin, 2019 WI 2 (filed 4 Jan. 2019)

    HOLDING: The “known-danger exception” stripped the city of its governmental immunity in a lawsuit brought after the drowning of a minor in a municipal swimming pool.

    SUMMARY: While visiting a city swimming pool on a field trip sponsored by the municipal recreation department, eight-year-old Lily, who did not know how to swim, drowned in the pool. She was alone near the pool while staff members and other children were in the locker rooms. Lily’s parents sued the city. The circuit court refused to dismiss the city on grounds of governmental immunity, but the court of appeals reversed in an unpublished decision.

    The supreme court reversed the court of appeals in an opinion authored by Justice Abrahamson. Governmental immunity did not apply because the city breached a nondiscretionary (ministerial) duty, thereby triggering the known-danger exception. The danger to the child was “compelling and self-evident.” Lily’s mother had advised staff members that Lily could not swim, she was not tested, no one watched over her near the pool, she was not in a lifejacket, and so on (¶¶ 6, 55-60).

    The majority carefully reviewed the existing case law on the known-danger exception and its application to the facts before it. The court declined an invitation to “reverse course on the past 40 years” of case law by interpreting Wis. Stat. section 893.80(4) in a way that would expose municipalities to “liability in a far greater number of circumstances” (¶ 23).

    Justice Dallet concurred, joined by Justice R.G. Bradley and Justice Kelly. She lamented the “artificial distinction” between ministerial and discretionary acts, a distinction that is “impracticable” and results in “jurisprudential chaos” (¶ 69). The concurrence argued that the known-danger exception is inapplicable on these facts but that the city is nonetheless liable because the text (“plain language”) of Wis. Stat. section 893.80(4) does not confer immunity based on the city’s conduct (¶ 81).

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