Sign In
    Wisconsin Lawyer
    December 08, 2020

    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

    Alcohol Regulation

    “Bowling Centers” – Underage Persons – Exemptions

    City of Stoughton v. Olson, 2020 WI App 69 (filed 3 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: A statutory exemption for “bowling centers” permits underage persons to be lawfully present throughout the bowling center, including in the “bar area.”

    SUMMARY: A bowling center held a Class B alcohol license that allowed it to sell alcohol for consumption anywhere on the premises. A police officer issued a citation to the owner because an underage person was playing pool in the “bar area” of the bowling center. The minor was not observed consuming alcohol. The municipal court held that the individuals cited were guilty, but the circuit court dismissed the citations on grounds that a statutory exemption for “bowling centers” covered the “entire facility” (¶ 5).

    The court of appeals affirmed in an opinion authored by Judge Graham. The opinion interprets the current statute, which exempts a “bowling center,” in light of a 1966 case, State v. Ludwig, 31 Wis. 2d 690, 143 N.W.2d 548 (1966),that dealt with a narrower exemption for “bowling alleys” (¶ 16). The court rejected the city’s contention that there was a “carve out” in the exemptions, including for “bowling centers,” for areas “dedicated primarily” to the sale or consumption of alcohol (¶ 23). The court’s holding rested on a reading of Ludwig, the statutory history of such exemptions, and the fact that such a reading would render some of the exemptions “meaningless” (¶ 27). Nor was the court persuaded that this construction contravened the statute’s purpose. Citations may be issued where alcohol is served to underage individuals (see ¶ 32).

    Criminal Law

    Immunity – Drug Overdose – “Aiders”

    State v. Lecker, 2020 WI App 65 (filed 1 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: The circuit court improperly dismissed drug-related charges against an individual who provided assistance to a person who overdosed on heroin.

    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: Lecker (the defendant) obtained medical assistance for a person who overdosed on heroin. The next day, when interviewed by police officers, the defendant consented to their search of his apartment and admitted to drug-related activities. The state charged him with numerous drug-related offenses. The circuit court judge, however, granted a defense motion to dismiss the charges, finding a “sufficient nexus” between them and the aid the defendant provided to the overdose victim.

    The court of appeals reversed in an opinion authored by Judge Hruz that discussed the limited immunity granted by Wis. Stat. section 961.443(2)(a) to people who aid drug-overdose victims. One pending charge against the defendant, possession of an illegally obtained prescription drug, was not subject to immunity under the statute (see ¶ 13). Although the remaining charges were within the immunity statute’s purview, they fell outside its requirement that such crimes occurred “under the circumstances surrounding or leading to” rendering aid for the overdose victim (¶ 14). “[The] phrase ‘surrounding circumstances’ means that the facts forming the basis for the criminal charge must be closely connected to the events concerning the rendering of aid” (¶ 16). No such “close connection” was shown by the facts of this case (¶ 17).

    Criminal Procedure

    Sentencing – Conditions of Extended Supervision – Restrictions on Internet Use

    State v. King, 2020 WI App 66 (filed 17 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: Court-ordered conditions of supervision limiting the defendant’s internet use were not overly broad and did not improperly infringe on his First Amendment rights to freedom of speech and freedom of association.

    SUMMARY: Defendant King was convicted of using a computer to facilitate a child sex crime and child enticement. The circuit court imposed a bifurcated-imprisonment sentence on the count of using a computer to facilitate a child sex crime. The court also imposed extended-supervision conditions that restricted King’s access to the internet. King’s extended supervision was twice revoked for violating those conditions.

    On the child-enticement count, King was sentenced to 10 years’ probation, which began after completion of his sentence for the use of a computer to facilitate a child sex crime. The probation conditions imposed by the circuit court included restrictions on his access to the internet. King’s probation was revoked for, among other reasons, violating those court-ordered conditions that restricted his access to the internet. After revocation, the circuit court imposed a bifurcated-imprisonment sentence for the child-enticement count.

    When King is released to extended supervision, he will be subject to court-ordered conditions of extended supervision that restrict his access to the internet. Those conditions 1) allow the defendant to possess device(s) capable of accessing the internet only with the permission of his extended-supervision agent; 2) allow him to access the internet only as approved by his agent (though the agent may not withhold permission for access through public devices for purposes of obtaining employment or performing any legitimate government functions, for example,filing taxes); and 3) require the defendant to provide his agent with specified information about his internet usage.

    On appeal King argued that pursuant to the U.S. Supreme Court’s opinion in Packingham v. North Carolina, 137 S. Ct. 1730 (2017), the court-ordered extended-supervision conditions restricting his access to the internet are overly broad and, as a result, his First Amendment rights to freedom of speech and freedom of association are improperly infringed. King also contended that the circuit court erred in denying his motion for resentencing and for a reduction in his imprisonment sentence on the child-enticement conviction because the Packingham decision was a “new factor” that was overlooked at sentencing.

    In an opinion authored by Judge Fitzpatrick, the court of appeals affirmed. It concluded that the extended-supervision conditions that will restrict the defendant’s access to the internet are not overly broad and do not improperly infringe on his First Amendment rights to freedom of speech and freedom of association (see ¶ 4). “The internet conditions set by the court are not constitutionally overbroad, are reasonably related to King’s rehabilitation, and are narrowly tailored” (¶ 67). The internet conditions are not a “blanket ban” on the defendant’s possession of a device to access the internet or his access to the internet (¶ 56).

    The court of appeals further concluded that the Packingham decision does not control the issue of the constitutionality of internet-access supervision conditions ordered by a court as part of a sentence for a crime (see ¶ 43). (Packingham invalidated a state statute that prohibited registered sex offenders from accessing certain websites because it was not narrowly tailored to serve the significant governmental interest of protecting victims of sexual offenses (see ¶ 34); the statute applied even after individuals had completed their sentences and its internet restrictions would remain in effect until the people were no longer registered sex offenders (see ¶ 43).) The court of appeals also concluded that the decision in Packingham was not a new factor requiring resentencing of the defendant on the child-enticement court (see ¶ 4).


    Additional Insured – Insured Contract – Direct Action

    Dhein v. Frankenmuth Mut. Ins. Co., 2020 WI App 62 (filed 23 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: The circuit court erroneously granted summary judgment in favor of a comprehensive general liability (CGL) insurer on coverage grounds.

    SUMMARY: City Centre owned a large tract of industrial land. A wind turbine company, Broadwind, leased several parcels. Tenants could use “common areas” owned by City Centre, which was required to maintain and repair those areas. A Broadwind employee, Dhein, was injured when his snorkel lift fell into a drainage basin in the common area. Apparently, Broadwind’s use of that area frequently dislodged grates that covered the drainage basins and Broadwind handled the repairs itself; it never notified City Centre of the problem or asked it to fix the issues. The lease between City Centre and Broadwind required the latter to carry a CGL policy that named City Centre as an “additional named insured” with coverage for injuries arising out of the “use and occupancy” of the land and to hold City Centre harmless from claims arising out of accidents, and so on.

    ACE American Insurance Co. issued the CGL policy to Broadwind. The circuit court granted summary judgment to ACE because Dhein’s accident did not occur on premises rented by Broadwind and no evidence showed that Broadwind negligently caused Dhein’s injuries. The circuit court also found that City Centre had constructive notice of the defective grates as a result of repeated problems with them (see ¶ 11).

    The court of appeals reversed in an opinion authored by Judge Reilly. The court closely analyzed multiple parts of the CGL contract, summarizing its holding as follows: “We conclude that the additional insured endorsement provides coverage to City Centre for liability incurred for bodily injury caused by Broadwind’s ‘acts or omissions,’ regardless of whether Broadwind is legally negligent. [See ¶ 19.] Even in the absence of our first conclusion, a genuine issue of material fact would exist as to Broadwind’s causal negligence so as to trigger coverage for any resulting liability under the additional insured endorsement to the extent, upon further appeal, negligence is deemed a required element for coverage under the endorsement. [See ¶ 25.] Moreover, Broadwind has coverage under the same policy for certain contractual indemnification obligations it may owe to City Centre as a result of Broadwind’s negligence. We also conclude, however, that City Centre cannot invoke the direct action statute to enforce Broadwind’s rights to that coverage as the direct action statute only permits an action against a liability insurer to recover insurance proceeds attributable to a negligence action, and, in this case, Broadwind’s underlying liability to City Centre can only result from contractual indemnity” [¶ 34] (¶ 3).


    Foreign Judgments – Domestication – Comity

    Hennessy v. Wells Fargo Bank N.A., 2020 WI App 64 (filed 15 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: The circuit court properly found that a Mexican court’s judgment was valid under Mexican law and entitled to domestication in Wisconsin state courts; the Mexican judgment was also properly given effect under principles of comity.

    SUMMARY: The Hennessys borrowed $7.5 million from Wells Fargo’s predecessor to develop condominiums in Mexico. As required by Mexican law, the property was held in trust by a Mexican entity, but the Hennessys were obligated to make timely payments. When they failed to make payments, Wells Fargo pursued its remedies in Mexican courts, obtaining a judgment in 2014 against the Hennessys for $7.5 million plus interest and costs of collection. Wells Fargo later asked a Wisconsin circuit court to domesticate the Mexican judgment, “declaring, as a matter of comity, that the Mexican judgment against the Hennessys is a valid, final money judgment enforceable against the Hennessys that should be entered on the Milwaukee County judgment and lien docket” (¶ 9).

    The circuit court held a two-day hearing, which included expert testimony and legal authority on Mexican law. The court found that the Mexican judgment was valid under Mexican law and that principles of comity required that it be recognized as a valid judgment under Wisconsin law (see ¶ 11). The upshot is that Wells Fargo was permitted to enforce the Mexican judgment.

    The court of appeals affirmed in an opinion authored by Judge Blanchard. Wisconsin law provides that issues involving the meaning of foreign laws (here, Mexican law) are treated as issues of fact. A judge’s findings on foreign law are not to be set aside unless clearly erroneous (see ¶ 16). Reviewing the record, the court of appeals discerned no clear error in the circuit court’s ruling on the Mexican judgment’s validity (see ¶ 33). On the comity issue, the court rejected the Hennessys’ contentions that the Mexican judgment was not a “final money judgment” enforceable in Mexico (¶ 38), that it did not grant Wells Fargo a specified sum of money (see ¶ 42), and that its enforcement would disrespect the Mexican judicial process (see ¶ 46).

    Motor Vehicle Law

    Operating While Intoxicated – Informing the Accused Form – Accuracy of Information Provided to Arrested Driver

    State v. Heimbruch (In re Refusal of Heimbruch), 2020 WI App 68 (filed 24 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: The defendant was adequately informed of his rights under the implied-consent law, and thus the circuit court erroneously dismissed the implied-consent refusal case against him.

    SUMMARY: Defendant Heimbruch was arrested for operating a vehicle while intoxicated (OWI). The arresting officer, Repinski, read to the defendant the standard Informing the Accused form, which accurately stated the consequences of a refusal for individuals arrested for OWI. The defendant refused to submit to chemical testing, and an implied-consent prosecution followed.

    At the refusal hearing, the defendant moved to dismiss the proceedings because a part of the Informing the Accused form, which does not apply to drivers arrested for OWI, inaccurately states the consequences of a refusal for a person who, unlike Heimbruch, was involved in a motor vehicle accident but was not otherwise suspected of operating while intoxicated. The circuit court granted the motion to dismiss.

    In an opinion authored by Judge Kloppenburg, the court of appeals reversed. In State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, the supreme court held that the language in the Informing the Accused form inaccurately states the potential implied-consent penalties that can be imposed on an individual who was involved in an accident but not otherwise suspected of operating while intoxicated.

    However, that language did not apply to Heimbruch. Rather, he was arrested for operating while intoxicated, and the court of appeals concluded that he was “adequately informed of his rights under the law.” See Washburn Cnty. v. Smith, 2008 WI 23, 308 Wis. 2d 65, 746 N.W.2d 243. Said the court: “[t]he notice of intent to revoke was erroneously dismissed because: (1) Repinski accurately read the statutorily required form to Heimbruch; (2) the inaccurate information in that form does not apply to Heimbruch; (3) the information in that form that does apply to Heimbruch is accurate; and (4) thus, Heimbruch was ‘adequately informed of his rights under the law,’ despite the inclusion of the inapplicable-to-him inaccurate information” (¶ 14) (citation omitted).

    Municipal Law

    Cooperative Plans – Boundaries – Judicial Review – Department of Administration Approval

    City of Mayville v. Wisconsin Dep’t of Admin., 2020 WI App 63 (filed 3 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: A city affected by a “cooperative plan” that involved the “attachment” of property between a town and a village had standing to challenge the plan, which the court held failed to comply with applicable statutes.

    SUMMARY: A village and a town entered into a “cooperative plan” by which the village “attached” all territory located in the town, thereby eliminating the boundary between the two. As a result, the plan also eliminated the town and created a new village (Williamstown) and a “detachment area” that was “adjacent and proximate” to the city of Mayville. The Wisconsin Department of Administration (DOA) approved the plan. Mayville opposed the plan. The circuit court ruled that Mayville had standing under the judicial review statutes to challenge the plan and further ruled that the DOA erred in approving the plan, because it violated Wis. Stat. section 66.0307(2).

    The court of appeals affirmed in an opinion authored by Judge Kloppenburg. First, Mayville had standing to challenge the DOA’s decision by judicial review. Moreover, it was undisputed that the “detachment area” provision will physically alter Mayville’s geographic city limits, thereby changing its boundary line. “Because the Plan comes within the purview of § 66.0307(2)(b) and (c) regarding Mayville’s boundary line changes, Mayville is required to be a party to the Plan under § 66.0307(2). However, the Plan does not include Mayville as a party to the Plan, in violation of § 66.0307(2). Because the Plan is not in compliance with § 66.0307(2), the Department made an error of law when it determined that the Plan complies with state laws and approved the Plan” (¶ 41).

    The opinion also explains why the court rejected arguments advanced by the town and the village in support of the plan, as approved by the DOA.

    Public Records

    Public Records Litigation – “Prevailing Party” – Attorney Fees

    Friends of Frame Park U.A. v. City of Waukesha, 2020 WI App 61 (filed 16 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: The plaintiff was entitled to attorney fees because it prevailed in whole or in substantial part in this public records litigation.

    SUMMARY: This is a public records case involving a draft contract, exchanged between the city of Waukesha (the city) and a private entity, Big Top Baseball LLC (Big Top), setting forth proposed terms under which Big Top’s professional baseball team would play in a stadium to be constructed in Waukesha’s Frame Park. The plaintiff, Friends of Frame Park U.A. (Friends), is a community organization whose members are interested in the details of the plan, such as how taxpayer funds would be used and to what extent Big Top would profit from the project. Friends was rebuffed in its attempt to obtain the draft contract from the city and sought a writ of mandamus. The city then released the record and, some months later, moved for summary judgment.

    The circuit court granted the city’s motion, reasoning that the city properly relied on a public records law exception (that permits nondisclosure whenever competitive or bargaining reasons so require) to initially withhold the draft contract and that in any event, Friends’ lawsuit did not cause the record’s eventual release (that is, Friends was not a “prevailing party” entitled to attorney fees). Friends appealed.

    In an opinion authored by Judge Davis, the court of appeals reversed. It acknowledged that the city voluntarily released the draft contract shortly after Friends filed suit. Ordinarily, when a party obtains the relief it seeks while litigation is pending, the case becomes moot. “In public records cases, however, the relief sought typically includes more than the release of records – it also includes the requesting party’s attorney fees. The public records statute allows fees to a requesting party who ‘prevails in whole or in substantial part.’ Wis. Stat. § 19.37(2)(a)” (¶ 2). Thus, the issue before the court was whether Friends substantially prevailed in this action.

    According to the court, the test most often invoked to determine the prevailing party in a public records case is based on causation; it asks whether the lawsuit is “a cause, [if] not the cause, of the records’ release” (¶ 3) (citation omitted). Here, the city denied that the lawsuit caused the release; it maintained that it released the record because the statutory exception it initially invoked no longer applied.

    The court of appeals held that when “litigation is pending and an authority releases a public record because a public records exception is no longer applicable, causation is not the appropriate inquiry for determining whether the requesting party has ‘substantially prevailed.’ Rather, the key consideration is whether the authority properly invoked the exception in its initial decision to withhold release. This result follows from the language of the statute, which requires compliance with a records request ‘as soon as practicable and without delay.’ See Wis. Stat. § 19.35(4)(a). A plaintiff with standing to seek a withheld record in a mandamus action should generally be considered to have ‘substantially prevailed’ where it demonstrates a violation of this statute; that is, an unreasonable delay caused by the improper reliance on an exception” (¶ 4).

    In this case the court of appeals concluded that the city’s reliance on the “competitive or bargaining reasons” exception was unwarranted and led to an unreasonable delay in the record’s release. The city’s first stated reason for not releasing the draft contract was that it could suffer competitive harm if the document were disclosed. This document, however, was marked up and exchanged among city and Big Top representatives in a succession of back-and-forth edits; thus, any harm from disclosing this document could not relate to the city’s negotiating strategy with respect to Big Top (see ¶ 43). Nor did the city show that it would have suffered any other type of competitive harm had it made the contract available to a member of the public when the records request was made.

    The city’s second justification – that the draft contract required common-council review before release – fared no better. The evidence did not demonstrate how nondisclosure before common-council review would have created any competitive advantage for the city (see ¶ 46). (The court noted that the situation would be different if the city had been able to demonstrate that disclosure before common-council review would have impeded its negotiation strategy (see ¶ 48).)

    The court of appeals thus reversed and remanded the matter to the circuit court to grant summary judgment in favor of Friends. Because Friends “prevail[ed] in whole or in substantial part,” it is entitled to some portion of its attorney fees (¶ 5). The court of appeals concluded this lengthy opinion by articulating the factors to be addressed by the circuit court in arriving at an award of reasonable attorney fees (see ¶¶ 52-55).

    Real Property

    Adverse Possession – Parcel of Land Held by Town “For Highway Purposes”

    Casa De Calvo v. Town of Hudson, 2020 WI App 67 (filed 9 Sept. 2020) (ordered published 29 Oct. 2020)

    HOLDING: The circuit court correctly granted summary judgment to the town of Hudson on the plaintiff’s adverse-possession claim.

    SUMMARY: The circuit court granted summary judgment to the town of Hudson in an adverse-possession claim brought by Timothy Casa De Calvo (the plaintiff). The claim related to a parcel of land adjacent to the plaintiff’s property that was dedicated as a street on a subdivision plat that was recorded in 1986. Casa De Calvo purchased the property in 1986 and built a house on it in 1987. The parcel in question has never been developed as a road, and over the years the plaintiff constructed a driveway on it, erected a fence, put up “private drive” signs, planted trees, brought in dirt, graded the soil, planted grass seed, cleared fallen trees, and so on.

    In a decision authored by Judge Stark, the court of appeals concluded that the circuit court properly granted summary judgment to the town. “It is undisputed that the parcel in question, although not currently used as a highway, was dedicated as a street on a subdivision plat that was recorded in 1986. As such, under Wis Stat. § 236.29(1), the recorded subdivision plat vested fee simple ownership of the disputed parcel in the Town, which holds that parcel ‘in trust’ for use as a street. We agree with the circuit court that, under these circumstances, the disputed parcel is held by the Town for highway purposes. Consequently, Wis. Stat. § 893.29(2)(c) provides that the parcel is not subject to adverse possession” (¶ 2). The town’s intent with respect to the use of the disputed parcel and its present need to build a road there were irrelevant (see ¶ 24). Likewise, the plaintiff’s use of the land platted for a road and the town’s failure to prevent that use were irrelevant (see ¶ 26).

    In a footnote, the court observed that adverse-possession statutes have prospective application only. Therefore, because the plaintiff’s claimed period of adverse possession began in 1987, the court assessed his claim using the adverse-possession statutes “found in the 1987-88 biennium” (¶ 1 n.2).

    Cite to 93. Wis. Law. 67-71 (December 2020).

Join the conversation! Log in to comment.

News & Pubs Search

Format: MM/DD/YYYY