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    Wisconsin Lawyer
    March 09, 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

    Employment Law

    Police Officers – Termination of Probationary Officers

    State ex rel. Massman v. City of Prescott, 2020 WI App 3 (filed 17 Dec. 2019) (ordered published 29 Jan. 2020)

    HOLDING: The petitioners were not entitled to a “just cause” determination before they were terminated from employment as probationary police officers.

    SUMMARY: Petitioners Massman and Most were terminated without a hearing from their employment as police officers during the 18-month probationary period for new hires established by the applicable collective bargaining agreement with the city of Prescott. They alleged that as a matter of contract they could only be terminated for just cause. Petitioner Most additionally argued that he was entitled to statutory protection against termination without just cause because he had served on a probationary basis for more than one year. Both petitioners asserted that the city of Prescott deprived them of notice of the reasons for their termination and a hearing at which they could challenge whether those reasons met the just-cause standard (see ¶ 1).

    After they were dismissed, the petitioners filed a complaint seeking certiorari review of their terminations. The circuit court granted summary judgment in the city’s favor.

    In an opinion authored by Judge Hruz, the court of appeals affirmed. It concluded that the just-cause protections under the collective bargaining agreement do not apply to new officers who have not yet completed the initial probationary period as provided for in the contract (see ¶ 2). The agreement, when read as whole, “unambiguously excluded probationary employees like Most and Massman from the category of officers for whom just cause was required to terminate employment” (¶ 22).

    The court also rejected petitioner Most’s argument that, because he had been employed for more than one year as an officer, he qualified for protection against termination without cause under Wis. Stat. section 62.13(5)(em) (the statute governing disciplinary actions against fire and police personnel). “Most’s assertion that he is entitled to Wis. Stat. § 62.13(5) disciplinary protocols runs headlong into Kaiser [v. Board of Police & Fire Comm’rs of Wauwatosa, 104 Wis. 2d 498, 311 N.W.2d 646 (1981)], which held that such mechanisms were unavailable to probationary employees” (¶ 25).

    To avoid Kaiser, petitioner Most argued that Wis. Stat. section 165.85(4)(a)3., which deals with the exercise of police powers by probationary employees, limits a probationary term of employment for police officers to one year.

    The court of appeals disagreed. “We conclude that, by its plain terms, Wis. Stat. § 165.85(4)(a)3 does not limit the length of a probationary employment period established by a municipal contract for new law enforcement officers” (¶ 29).

    Family Law

    Termination of Parental Rights – Continuing CHIPS Ground for Termination – Applicable Statute

    Dane Cty. Dep’t of Human Servs. v. J.R. (In re Termination of Parental Rights to K.T.), 2020 WI App 5 (filed 27 Nov. 2019) (ordered published 29 Jan. 2020)

    HOLDING: The circuit court correctly determined that the current version of Wis. Stat. section 48.415(2)(a) applies in the respondent’s TPR case, even though when the child-in-need-of-protection-or-services (CHIPS) orders removing respondent’s children from the parental home were issued, a prior version of Wis. Stat. section 48.415(2)(a) was in effect.

    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: In May 2017, the circuit court entered orders in two CHIPS cases placing respondent J.R.’s children outside the home. At that time Wis. Stat. § 48.415(2)(a) (2015-16) set out the elements for terminating parental rights because of the children’s continuing need of protection or services (the so-called continuing CHIPS ground for termination). The elements of the continuing CHIPS ground for termination were changed when Wis. Stat. section 48.415(2)(a) (2015-16) was amended by 2017 Wis. Act 256, § 1.

    In November 2018, about seven months after that amendment took effect, Dane County filed petitions to terminate J.R.’s parental rights (TPR petitions) and included in the petitions the elements of the continuing CHIPS ground set forth in the amended statute. [Editors’ Note: The prior version of the continuing CHIPS statute required the petitioner to show that there was a substantial likelihood that the parent would not meet the conditions established for the safe return of the child to the parental home within the nine-month period following the fact-finding hearing. The new statute contains a different set of time parameters.]

    J.R. moved the circuit court to rule that Dane County, to succeed in these TPR cases, had to prove the elements of the prior version of the continuing CHIPS statute. The circuit court denied J.R.’s motion. In this appeal of the circuit court’s nonfinal orders, the court of appeals affirmed. In a decision authored by Judge Fitzpatrick, the court of appeals concluded that Dane County is required to establish the elements for the ground of continuing CHIPS set forth in the amended version of Wis. Stat. section 48.415(2)(a) (see ¶ 3).

    The court rejected J.R.’s argument that Wis. Stat. section 990.04 (“Actions Pending Not Defeated by Repeal of Statute”) requires application of the prior version of the statute (see ¶ 27). The court also rejected the argument that applying the amended version of the statute in J.R.’s TPR proceedings is a retroactive application of the amended version of the statute, that retroactive application is unconstitutional as applied to him, and the prior version of the statute must be applied to cure the constitutional violation (see ¶ 18).


    Prejudgment Interest – Wis. Stat. section 628.46

    Estate of Payette v. Marx, 2020 WI App 2 (filed 10 Dec. 2019) (ordered published 29 Jan. 2020)

    HOLDING: An insurer did not violate Wis. Stat. section 628.46 (2015-16), which awards 12 percent interest per annum if the insurer does not “promptly pay” a claim.

    SUMMARY: This appeal arises out of a wrongful death and survival action. The circuit court ordered the defendant and his insurer to pay prejudgment interest at the rate of 12 percent per year because they had violated Wis. Stat. section 628.46 (2015-16). That statute “requires an insurer to ‘promptly pay every insurance claim’ within thirty days of an insurer being provided ‘written notice of the fact of a covered loss and of the amount of the loss’ unless ‘the insurer has reasonable proof to establish that the insurer is not responsible for the payment’” (¶ 1).

    In an opinion authored by Judge Seidl, the court of appeals reversed in part and remanded the case. Case law applies Wis. Stat. section 628.46 to third-party claims when three conditions are met: “a third-party claimant is entitled to prejudgment interest under § 628.46 where: (1) ‘there can be no question of liability on the part of the insured’; (2) ‘the amount of the damages [is] in a sum certain amount’; and (3) ‘the claimant [provides] written notice of both liability and the sum certain amount owed’ to the insurer” (¶ 2) (citation omitted).

    The court focused on the “sum certain” condition. “We determine that this condition is not satisfied where a third-party claimant relies upon an assertion of general damages to support a demand that an excess insurer pay a specific amount, and the insurer reasonably concludes it is not certain the amount demanded is the amount it may actually owe the claimant. Such was the case here” (¶ 4).

    The court discussed the varying interpretations of the “sum certain” condition” set forth by the parties. It also addressed the deficiencies in the plaintiff estate’s “demand package,” such as its failure to show what benefit the wrongful death beneficiaries would have derived from the decedent’s lost earning power (¶ 31).

    Sex Offenders

    Registry Statute – First Amendment

    State v. Jackson, 2020 WI App 4 (filed 26 Dec. 2019) (ordered published 29 Jan. 2020).

    HOLDING: Wisconsin’s sex-offender-registry statute does not violate the First Amendment to the U.S. Constitution.

    SUMMARY: Defendant Jackson was convicted of sexually assaulting a 14-year-old girl in 1990. The court ordered him to comply with the requirements of the sex-offender-registry statute, Wis. Stat. section 301.45, which mandates that individuals convicted of certain sex-related crimes disclose their email addresses, internet usernames, profiles, and so on to the Wisconsin Department of Corrections (DOC). In 2016 police learned that Jackson was using his housemate’s computer to communicate with minors. He was charged as a repeat violator of the sex-offender-registry statute because he had failed to inform the DOC of a Facebook profile or an email address associated with it. Jackson pleaded guilty but argued that the statute violates his First Amendment rights. The circuit court disagreed.

    The court of appeals affirmed in an opinion authored by Judge Reilly, which also rejected the defendant’s bevy of First Amendment claims. First, the court of appeals concluded that Jackson waived his “as applied” challenge when he pleaded no contest (see ¶ 11).

    Second, the court rejected Jackson’s overbreadth challenge. The court “construed” the statute and then applied an “intermediate scrutiny” standard: “is Wis. Stat. § 301.45(2)(a)6m. narrowly tailored to a significant government interest?” (¶ 17). Clearly, the government has a significant interest in cases such as this, namely, protecting children against repeat sex offenders who use the internet (see ¶ 19). In taking up the “narrowly tailored” element, the court distinguished the Wisconsin statute from statutes held unconstitutional in other states (¶ 24). In particular, the court noted “that a registrant’s Internet identifiers are not subject to unrestricted public disclosure” (¶ 28).

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