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    Wisconsin Lawyer
    April 07, 2020

    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

    Venue – Multiplicity

    State v. Brantner, 2020 WI 21 (filed 25 Feb. 2020)

    HOLDINGS: 1) The case against the defendant was properly venued in Fond du Lac County. 2) The two counts of possessing oxycodone without a prescription were multiplicitous.

    SUMMARY: Fond du Lac County sheriff’s deputies arrested defendant Brantner in Kenosha in connection with a homicide that had occurred 30 years previously. They transported Brantner to Fond du Lac County and, once there, he went through the booking process.

    During that process the defendant was asked to remove the boots he was wearing; inside one of them the booking officer found a cache of pills, including almost three dozen 20mg oxycodone pills and two 5mg oxycodone pills. The defendant was charged with many crimes, including one count of possessing the 20mg oxycodone pills and an additional count of possessing the 5mg oxycodone pills (both without a prescription). The oxycodone charges were both brought under Wis. Stat. section 961.41(3g)(am).

    The jury found the defendant guilty on all counts. He filed a postconviction motion in which he claimed that venue in this case did not lie in Fond du Lac County and that the two charges for possessing oxycodone were multiplicitous. The court denied the motion, and the court of appeals summarily affirmed. In a majority opinion authored by Justice Kelly, the supreme court affirmed in part and reversed in part.

    With respect to the venue challenge, the defendant argued that he should not have been tried in Fond du Lac County because he did not “possess” the drugs when the deputy discovered them. He did not dispute that the drugs were found in his boot; instead, he argued that the arrest in Kenosha County terminated, as a matter of law, his ability to possess any contraband on his person.

    The supreme court disagreed. “Mr. Brantner did not lose possession of the drugs in his boot upon his arrest in Kenosha County. And because he still possessed the drugs in Fond du Lac County, venue there was proper” (¶ 1). It has never been the law in Wisconsin that an individual ceases to control and consequently ceases to possess everything on his or her person upon arrest. Courts in this state regularly uphold convictions in which law enforcement officers discover contraband after arresting the person who possesses it (see ¶ 17).

    The court next addressed the defendant’s claim that the two oxycodone charges were multiplicitous. “Claims are multiplicitous when the State charges a defendant more than once for the same offense” (¶ 24). The first step in multiplicity analysis is a determination whether the charges are identical in law and in fact. If they are, it is presumed that the legislature did not intend to permit multiple punishments (although the state can rebut that presumption) (see ¶ 25). In this case the two charges were identical in law; the statute under which the defendant was charged does not make a distinction between possessing a pill containing 20mg of oxycodone as opposed to one containing only 5mg (see ¶ 27). The state argued, however, that the two counts were different in fact.

    The court disagreed. The evidence showed that the defendant possessed 20mg and 5mg oxycodone pills. But nothing in the record directly or inferentially established that he obtained the different dosages via two different volitional acts or temporally separated acts of acquisition (see ¶¶ 29-33). Because the two charges were the same in law and in fact, the court presumed that the legislature did not intend to allow multiple punishments. In this case the state offered no argument against that presumption (see ¶ 36). The supreme court remanded the case to the circuit court to exercise its discretion in determining whether resentencing the defendant is appropriate (see ¶ 38).

    Chief Justice Roggensack filed a concurring opinion that was joined in by Justice Ziegler.

    Justice Hagedorn did not participate in this case.

    Sentencing – Consideration by Court of Previously Unknown Information

    State v. Counihan, 2020 WI 12 (filed 13 Feb. 2020)

    HOLDINGS: 1) The defendant did not forfeit her direct challenge to the circuit court’s consideration of previously unknown information at sentencing by failing to object at the sentencing hearing. 2) The defendant’s due-process rights were not violated by the circuit court’s use of previously unknown information regarding sentences imposed on similarly situated defendants.

    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 Counihan pleaded no contest to five misdemeanor counts of theft in a business setting (Wis. Stat. § 943.20(1)(b)) for using an organization’s credit card to pay personal expenses while she was employed as the executive director of the Door County Humane Society.

    At sentencing the court relied on the usual factors that judges consider. However, without any advance notice to the defendant, the court also specifically referenced its research on the disposition of similar cases in the county. The judge did so because he was relatively inexperienced and wanted to determine the “institutional memory” of the court with regard to sentencing in these types of cases. There was no defense objection at the sentencing hearing to the court’s consideration of the other cases.

    The defendant sought postconviction relief, arguing that her counsel was ineffective at sentencing for failing to object and seek an adjournment to review the similar cases the court cited in fashioning the defendant’s sentence. The circuit court denied relief and, in an unpublished decision, the court of appeals affirmed.

    The supreme court first addressed the state’s argument that the defendant forfeited her direct challenge to the previously unknown information considered at sentencing because she failed to object at the sentencing hearing. In a majority opinion authored by Justice A.W. Bradley, the supreme court concluded that when “previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at the sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion” (¶ 52).

    The court next considered the defendant’s argument that the circuit court’s consideration of the sentences given in similar cases without providing her with notice that it would do so violated her due-process right to rebut information presented at sentencing. She asserted that she is entitled to resentencing because she was not given the opportunity to review the information in the other case files referenced and on which the circuit court relied (see ¶ 42).

    The supreme court disagreed. Circuit courts may consider information about the distribution of sentences in cases similar to the case before it. See State v. Gallion, 2004 WI 42, ¶ 47, 270 Wis. 2d 535, 678 N.W.2d 197. “Such a practice is congruent with the general policy that consistency in criminal sentencing is desirable” (¶ 44) (internal quotations and citation omitted). Said the court: “We are loath to adopt a rule that would prevent a circuit court from accessing its institutional memory, thereby requiring it to view each exercise of its discretion in a vacuum…. The circuit court’s actions in this case are no different from long-tenured judges reaching back into their memories without the aid of hard-copy files” (¶ 48).

    The supreme court further concluded that the failure to provide notice of the cases considered did not violate due process. “When a circuit court accesses its institutional memory without the aid of written material, it is not required to inform the parties of all past cases that came to mind. The use of hard copy files does not occasion a different rule” (¶ 49). Because there was no due-process violation, the court did not address the defendant’s argument that her counsel provided ineffective assistance at sentencing (see ¶ 53).

    Justice R.G. Bradley filed a concurring opinion that was joined in by Justice Kelly.


    Coverage Disputes – Judicially Preferred Procedures – Attorney Fees

    Choinsky v. Employers Ins. Co. of Wausau, 2020 WI 13 (filed 13 Feb. 2020)

    HOLDINGS: An insurer did not breach its duty to defend because it followed a judicially approved method to resolve a coverage dispute; the court also rejected arguments related to delayed payment of attorney fees and the four-corners rule.

    SUMMARY: Retired teachers brought a class action against a school district for terminating their group long-term care coverage in 2012. The school district tendered its defense to its insurer, which denied the claim under an intentional-acts exclusion (see ¶ 7). The insurer, however, filed a complaint for a declaratory judgment on whether it had a duty to defend. In the coverage litigation, the court determined that the school district had behaved negligently; thus, the insurer had a duty to defend (see ¶ 11).

    In a jury trial on liability, the court found in favor of the school district. The trial judge later issued an order on attorney fees, observing that the insurer had followed a “judicially preferred approach to the coverage dispute.” In a published decision, the court of appeals affirmed. See 2019 WI App 12.

    The supreme court affirmed the court of appeals in an opinion authored by Justice R.G. Bradley. “This case presents an insurance coverage duty-to-defend issue of first impression: does an insurer breach its duty to defend its insured when it denies a tendered claim and then follows the judicially preferred procedure of filing a motion to intervene and stay the underlying lawsuit pending a coverage determination, which is ultimately resolved in the insured’s favor? Additionally, we consider the insurer's obligations in order to avoid breaching its duty to defend when the circuit court denies the motion to stay” (¶ 2).

    The opinion reviewed case law setting forth various “judicially preferred procedures for an insurer to follow in order to avoid breaching its duty to defend” and exposing itself to fee awards (¶ 15) and summarized four such procedures at paragraph 17.

    “This case presents a problem with the fourth option when the circuit court denies the bifurcation or stay motion, resulting in the insured defending itself for a period of time on both liability and coverage. We remedy that problem by clarifying the bifurcation/stay procedure: if a circuit court denies bifurcation or a stay of the liability case, in order to protect itself from being found in breach of its duty to defend, the insurer must defend its insured under a reservation of rights so that the insured does not have to pay to defend itself on liability and coverage at the same time. Additionally, the insurer must reimburse its insured for reasonable attorney fees expended on a liability defense, retroactive to the date of tender” (¶ 19) (footnote omitted).

    The court summarized its holding as follows: “We hold: (1) the Insurer’s initial denial of coverage did not breach its duty to defend because the Insurer promptly followed a judicially-approved method to resolve the coverage dispute; further, it defended the School District upon denial of the stay motion, agreeing to reimburse the School District for liability attorney fees retroactive to the date of the tender; (2) a delay in payment of liability attorney fees alone does not mean an insurer breached its duty to defend and an insurer is obligated to pay only reasonable attorney fees; and (3) the four-corners rule applies in determining whether a duty to defend exists but does not preclude a court’s consideration of whether the insurer unilaterally denied coverage or whether it chose a judicially preferred method of resolving a coverage dispute, in assessing whether an insurer breached its duty to defend. We affirm the decision of the court of appeals” (¶ 5).

    Justice Hagedorn did not participate. Justice Kelly dissented, observing the following: “Until today, however, no part of the judicially-prescribed options allowed an insurer to refuse its defense obligations in favor of reimbursing its insured’s defense costs at some undefined future date” (¶ 60).

    Jurisdiction of Courts

    Municipal Courts – Subject-Matter Jurisdiction – Competency

    City of Cedarburg v. Hansen, 2020 WI 11 (filed 11 Feb. 2020)

    HOLDINGS: 1) The municipal court had subject-matter jurisdiction to adjudicate an operating while intoxicated (OWI) case even though the defendant had a prior OWI conviction. 2) The defendant forfeited any objection to the municipal court’s competence to adjudicate the case.

    SUMMARY: In 2003, defendant Hansen was convicted of OWI in Florida. In 2005, he was arrested for OWI in Wisconsin and prosecuted in a Wisconsin municipal court as an OWI first offender because the Wisconsin authorities were unaware of his prior OWI in Florida. In 2016, he was arrested again in Wisconsin for OWI and prosecuted as an OWI third offender. In that case he collaterally attacked the validity of the 2005 municipal court conviction, claiming that the municipal court lacked subject-matter jurisdiction because the 2005 prosecution was factually a second-offense OWI, which is a criminal offense over which municipal courts have no jurisdiction.

    The circuit court concluded that the municipal court lacked subject-matter jurisdiction to adjudicate the 2005 offense. The case was before the supreme court on bypass from the court of appeals.

    In a majority decision authored by Chief Justice Roggensack, the supreme court reversed. The issue before the court was whether the municipal court’s lack of knowledge about the defendant’s 2003 Florida conviction affected its subject-matter jurisdiction or only its competence to proceed in the 2005 case (see ¶ 14).

    Subject-matter jurisdiction refers to the power of a court to decide certain types of actions. “In other words, subject matter jurisdiction is about the type or category of case brought” (¶ 49). “Competence presupposes a court has subject matter jurisdiction and is about a court’s ability to exercise its jurisdiction in an individual case” (id.).

    The supreme court concluded that the 2005 OWI municipal citations invoked the municipal court’s subject-matter jurisdiction, which was granted by article VII, section 14 of the Wisconsin Constitution. Therefore, the municipal court had power to adjudicate the allegation that the defendant operated a motor vehicle while intoxicated in violation of a municipal ordinance (see ¶ 3).

    Said the majority, “[w]e conclude that the municipal court did not entertain a suit for a second-offense OWI because there was no allegation of a prior offense in the charging documents. Therefore, he was prosecuted for ordinance violations shown on the civil citations he was issued” (¶ 32).

    In this case, however, the municipal court might have lacked competence to exercise its jurisdiction over the defendant’s case because the municipal court did not follow Wisconsin’s statutory scheme that mandates progressively more severe penalties for successive OWI convictions. But an objection to a court’s competence may be forfeited if it is not raised in a timely manner.

    “Hansen was silent about his 2003 Florida OWI conviction until he was again arrested for OWI in 2016. We conclude that, by his 11 years of silence, Hansen has forfeited any competence objection that could exist. Accordingly, both his 2005 and 2003 convictions were countable offenses in 2016 for purposes of Wisconsin’s statutory progressive penalty requirements, and we reverse the order of the circuit court” (¶ 55).

    Justice Kelly, joined by Justice R.G. Bradley, joined the majority opinion but wrote separately to respond to the dissent authored by Justice Hagedorn. In the dissent, Justice Hagedorn argued that “[o]ur law makes clear that municipal courts are courts of limited subject-matter jurisdiction that may only hear ordinance violations. A second-offense OWI is a criminal offense, not an ordinance violation, and must be brought as such. Accordingly, the municipal court lacked subject-matter jurisdiction to entertain the improperly charged OWI offense, and the judgment is null and void” (¶ 86). Justice A.W. Bradley and Justice Dallet joined the dissent.

    (Editors’ Note: The Wisconsin legislature recently addressed the situation that arose in this case. Section 800.09(4) of the Wisconsin Statutes has been created to read as follows: “Notwithstanding ss. 755.045 or 800.115 (2), no municipal judgment alleged by the defendant to be void due to the existence of a conviction, suspension, or revocation arising from another matter that existed at the time of the municipal judgment shall be considered void by any court unless the defendant disclosed the conviction, suspension, or revocation with specificity and in writing to the municipal court and to the prosecuting attorney prior to the entry of municipal judgment.” See 2019 Wis. Act 70.)

    Motor Vehicle Law

    OWI – Calculation of Penalty Enhancements

    State v. Neill, 2020 WI 15 (filed 14 Feb. 2020)

    HOLDING: The circuit court erroneously calculated the minimum fine for third-offense OWI when multiple penalty enhancers were involved.

    SUMMARY: Defendant Neill was convicted of third-offense OWI. His appeal challenged the fine that the circuit court imposed. The determination of the fine in this case was complicated because two penalty enhancers were involved: One penalty enhancer required the doubling of the fine for third-offense OWI because the defendant had a minor passenger in his car; another enhancer required a quadrupling of the fine for third-offense OWI because the defendant drove with a high blood-alcohol concentration (0.25 or higher).

    For the first enhancer the circuit court doubled the $600 minimum fine for third-offense OWI (2 x $600) and then for the second enhancer quadrupled that subtotal ($1,200) to reach a total fine of $4,800 (4 x $1,200). In a published opinion, the court of appeals affirmed the $4,800 fine. See 2019 WI App 4.

    In a unanimous decision authored by Justice R.G. Bradley, the supreme court reversed the court of appeals. The controlling statutes require calculation of each penalty enhancer with reference to the applicable fine for the base offense (see ¶ 3) “Neill’s first penalty enhancer for OWI with a minor passenger, Wis. Stat. § 346.65(2)(f)2., requires ‘the applicable fine’ be doubled. Accordingly, the circuit court should have started with $600 and multiplied it by two for an enhanced fine of $1,200. Neill’s second penalty enhancer for OWI with a high [blood alcohol concentration], Wis. Stat. § 346.65(2)(g)3., requires ‘the applicable fine’ in [Wis. Stat. section] 346.65(2)(am)3. be quadrupled. Consequently, the circuit court should have started with $600 and multiplied it by four for an enhanced fine of $2,400. These two fines total $3,600, not $4,800” (¶ 4).

    Municipal Law

    Annexation – Golf Courses – Contiguity – Rule of Reason – Statutory Requirements

    Town of Wilson v. City of Sheboygan, 2020 WI 16 (filed 14 Feb. 2020)

    HOLDING: A city properly annexed land for purposes of creating a golf course that a town opposed.

    SUMMARY: The Kohler Co. wanted to convert a large parcel of land in the town of Wilson into an exclusive golf course. When the town balked, Kohler successfully engineered the annexation of that land into the city of Sheboygan, which supported the golf course plans. The town then filed this action for a declaratory judgment to the effect that the annexation was unlawful. The circuit court ruled in favor of the annexation. The supreme court accepted the case on bypass from the court of appeals.

    The supreme court affirmed in an opinion authored by Justice Dallet; all parts of the opinion had the support of a majority and some parts were unanimous. The annexation fulfilled the requirements set forth in the statutes and case law.

    As for the element of “contiguity,” the court clarified prior case law: contiguity is a legislative mandate located in the statute and not a part of the rule of reason (see ¶ 23). On the facts, the court held that there was sufficient contiguity between the city’s land and the Kohler parcel (see ¶ 20).

    The annexation also comported with the judicially created “rule of reason,” which has three requirements: “First, exclusions and irregularities in boundaries must not be the result of arbitrariness. Second, some reasonable present or demonstrable future need for the annexed property must be shown. Finally, no other factors must exist which would constitute an abuse of discretion” (¶ 25).

    Nor did the annexation offend the so-called “signature requirement,” by which property owners might “veto” it, as provided by Wis. Stat. section 66.0217(3)(a)1. Without dispute, the petition in support of the annexation carried signatures of 91 percent of the territory as measured by assessed value (see ¶ 45). The annexation also met the demands of the “population certificate requirement,” contrary to the town’s contention that the Wisconsin Department of Administration had failed to issue the appropriate certification.

    Justice R.G. Bradley, joined by Justice Kelly, concurred. She contended that case law establishing the rule of reason test should be overruled because it has no support in the statute. She joined the court’s opinion as to contiguity as well as the signature and certification issues (see ¶ 51).

    Justice Hagedorn joined the majority opinion but delivered the “bad news … that our cases are about as straightforward as a Halloween corn maze, and employ interpretive principles that should strike terror into everyone committed to the rule of law rather than the rule of judges” (¶ 76).


    Eminent Domain – Claim Preclusion – Private Claim

    DSG Evergreen Family Ltd. P’ship v. Town of Perry, 2020 WI 23 (filed 27 Feb. 2020)

    HOLDING: Claim preclusion did not bar a declaratory judgment action brought by a landowner against a town following an eminent domain trial; however, the landowner did not have a private cause of action against the town relating to the later road construction, and the matter was not ripe for a declaratory judgment.

    SUMMARY: The town of Perry used its power of eminent domain to obtain a parcel of property owned by DSG, a family partnership. In exercising that power, the town committed itself to building a replacement road over part of the acquired property. Efforts to negotiate a sale failed. A jury awarded DSG an amount greater than the town’s jurisdictional offer.

    DSG, however, was dissatisfied with the town’s work on the road and brought a declaratory judgment action in which it alleged that the town failed to build a road that conformed with state statutes governing town roads or the condemnation petition. The circuit court ruled that DSG had no private cause of action and that claim preclusion barred DSG’s complaints about the town’s road building. In an unpublished opinion, the court of appeals affirmed.

    The Wisconsin Supreme Court reversed in a unanimous opinion authored by Justice Kelly. The court first took up the claim-preclusion issue. It disagreed that DSG had conceded that it could have litigated its objections to the road’s construction in the right-to-take case. No other authority was cited to suggest that DSG could do so (see ¶ 25).

    The supreme court also held that the just-compensation case was limited to questions of title and valuation (see ¶ 27). “We conclude that neither the Right-to-Take Case nor the Just Compensation Case bars DSG’s Petition Standards Claim, its Town Road Claim, or its Damages Claim. But that is all we decide in this portion of our opinion.… Therefore, we express no opinion on the construction standards required by the condemnation petition, nor the current field road’s compliance with them. We are simply concluding that claim preclusion does not serve as a bar to DSG’s complaint” (¶ 35).

    The court next took up whether DSG could maintain this declaratory judgment action or a private claim for damages. “Because Wis. Stat. § 82.50 does not impose on the Town a mandatory and non-discretionary obligation to improve the Parkway to town road standards, DSG can have no cognizable claim of right until, at the earliest, the town’s discretionary authority resolves to a particular course of action. And because that has not yet occurred, DSG’s Town Road Claim is also not ripe for review” (¶ 46).

    Finally, the statutes did not create a private cause of action for a town’s failure to comply with applicable road-construction standards (see ¶ 49).


    Recreational Immunity – Agents

    Lang v. Lions Club of Cudahy Wis. Inc., 2020 WI 25 (filed 5 March 2020)

    HOLDING: The defendant was entitled to summary judgment based on recreational immunity.

    SUMMARY: A city’s Lions Club sponsors an annual festival. In 2012, the plaintiff was injured at the festival when she tripped over an electrical cord in a music tent. The entity that laid the cord, Fryed Audio, moved for summary judgment under the recreational use immunity statute. See Wis. Stat. § 895.52(1)(d). The circuit court granted the motion, finding that Fryed Audio was an agent of the Lions Club. The court of appeals reversed on grounds that the Lions Club lacked the right to control Fryed Audio. See 2018 WI App 69.

    The supreme court reversed the court of appeals but could not agree on an opinion. Chief Justice Roggensack, joined by Justice Ziegler, announced the court’s mandate. In their opinion, the undisputed facts showed that the Lions Club had the right to control Fryed Auto and its “subagent” who laid the cord.

    Justice R.G. Bradley, joined by Justice Kelly, concurred. They disagreed with the lead opinion’s agency analysis but joined the mandate (see ¶ 61).

    Justice Dallet dissented, joined by Justice A.W. Bradley. Their dissent saw no “coherent stopping point for recreational immunity” (¶ 75).

    Justice Hagedorn filed a separate dissent, which focused on the distinction between an agency relationship and an independent contractor (see ¶ 88).

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