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    Wisconsin Lawyer
    July 27, 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

    Administrative Law

    Administrative Rulemaking – COVID-19 – Validity of DHS Secretary-Designee’s “Safer at Home Order”

    Wisconsin Leg. v. Palm, 2020 WI 42 (filed 13 May 2020)

    HOLDING: Department of Health Services (DHS) Secretary-Designee Andrea Palm’s Emergency Order 28, also known as the “Safer at Home Order,” was unlawful, invalid, and unenforceable.

    SUMMARY: On March 12, 2020, Gov. Tony Evers issued an executive order “Declaring a Health Emergency in Response to the COVID-19 Coronavirus.” Among other things, the order proclaimed that a public health emergency existed in Wisconsin and directed the DHS to take all necessary and appropriate measures to prevent and respond to incidents of COVID-19 in the state.

    This original action before the Wisconsin Supreme Court was not about Gov. Evers’ emergency order or the governor’s powers (see ¶ 1). Instead, it was a challenge to Emergency Order 28 (Order 28), issued on April 16, 2020, by DHS Secretary-Designee Palm. Order 28 relied solely on the authority vested in Palm “by the Laws of the State, including but not limited to [Wis. Stat. §] 252.02(3), (4) and (6)” (¶ 7). Among its many commands and prohibitions, Order 28 orders all individuals in Wisconsin “to stay at home or at their place of residence” with certain limited exceptions approved by Palm or risk punishment “by up to 30 days imprisonment, or up to a $250 fine, or both” (id.). The Wisconsin Legislature challenged Order 28 in an emergency petition for original action filed in the supreme court.

    The court granted the petition and assumed jurisdiction over two issues: “(1) whether Palm violated Wis. Stat. § 227.24, governing emergency rules, by issuing Emergency Order 28 without complying with § 227.24’s procedures, and (2) even if Palm did not violate § 227.24, whether Palm’s Order 28 exceeds her authority under Wis. Stat. § 252.02 by ordering all persons to stay at home, forbidding all ‘nonessential’ travel and closing all ‘nonessential’ businesses” (¶ 9).

    In a majority opinion authored by Chief Justice Roggensack and joined in by Justice Ziegler, Justice R.G. Bradley, and Justice Kelly, the court concluded that “Emergency Order 28 is a rule under the controlling precedent of this court, Citizens for Sensible Zoning Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979), and therefore is subject to statutory emergency rulemaking procedures established by the Legislature. Emergency Order 28 is a general order of general application within the meaning of Wis. Stat. § 227.01(13) which defines ‘Rule.’ Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28. Because they were not, Emergency Order 28 is unenforceable” (¶ 58).

    “Furthermore, Wis. Stat. § 252.25 required that Emergency Order 28 be promulgated using the procedures established by the Legislature for rulemaking if criminal penalties were to follow. Because Palm did not follow the law in creating Order 28, there can be no criminal penalties for violations of her order. The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people” (id.).

    “We further conclude that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02, upon which Palm claims to rely” (¶ 59). Accordingly, the court declared Order 28 to be unlawful, invalid, and unenforceable.

    Chief Justice Roggensack filed a concurring opinion. Justice R.G. Bradley filed a concurring opinion in which Justice Kelly joined. Justice Kelly filed a concurring opinion in which Justice R.G. Bradley joined. Justice A.W. Bradley filed a dissenting opinion in which Justice Dallet joined. Justice Dallet filed a dissenting opinion in which Justice A.W. Bradley joined. Justice Hagedorn filed a dissenting opinion in which Justice A.W. Bradley and Justice Dallet joined in part.

    Criminal Procedure

    Search and Seizure – Vehicle Search Following Arrest of Recent Occupant of Vehicle

    State v. Coffee, 2020 WI 53 (filed 5 June 2020)

    HOLDING: There was no majority opinion in this case. Five justices heard the case. Four of them agreed that the “reasonableness approach” described below is to be used in evaluating the search of the defendant’s vehicle following his arrest for operating while intoxicated (OWI), but they split (2-2) on the application of this test to the facts of this case. Ultimately, three of the five justices voted to uphold the search.

    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 case concerned the search of the passenger compartment of a vehicle incident to the arrest of the driver for OWI. This type of search is principally governed by Arizona v. Gant, 556 U.S. 332 (2009). Gant held that a search of the passenger compartment incident to the arrest of a recent occupant may be conducted when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. It also held that circumstances unique to the vehicle context justify a search incident to arrest when it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle.

    The latter authority to search was at issue in this case because the defendant had already been secured in a squad car when a search of a bag in the passenger compartment revealed the presence of controlled substances. The defendant thereafter sought to suppress evidence regarding the controlled substances.

    The interpretation of Gant’sauthorization for a search when it is reasonable to believe that evidence relevant to the crime of arrest might be found in the vehicle has generated conflicting interpretations among courts in the United States.

    Some have adopted a “categorical approach” looking only to the nature of the offense as justification for a search. For example, some courts have concluded that OWI is, by its very nature, a crime for which there might be relevant evidence in the passenger compartment (see ¶ 28).

    Other courts have rejected the “categorical approach” in favor of a “reasonableness approach” looking at commonsense factors and evaluating the totality of the circumstances to determine whether it is reasonable to conclude that evidence of the crime of arrest might be found in the vehicle (¶ 30).

    Relevant circumstances could include “[w]hether the officer observed the driver using an intoxicant; whether the officer observed an intoxicant in plain view inside the passenger compartment; whether an occupant made a statement indicating that an intoxicant is in the automobile; whether the officer smelled an intoxicant emanating from the passenger compartment; whether ‘the driver was traveling from a location such as a recreational area or campground where alcohol is not available unless it is transported in by private vehicle;’ whether the occupant made ‘furtive movements,’ indicating that the occupant might be trying to conceal evidence; whether the occupant evidenced extreme intoxication; whether the officer had knowledge of prior unlawful conduct by an occupant involving an intoxicant in an automobile; whether the officer had knowledge regarding the likelihood of locating an intoxicant in an automobile driven by an intoxicated person” (¶ 35) (footnotes omitted).

    Only five justices participated in the decision of this case, and there was no majority opinion. However, the lead opinion (authored by Chief Justice Roggensack and joined by Justice Ziegler) and the dissenting opinion (authored by Justice Dallet and joined by Justice R.G. Bradley) produced four votes for use of the “reasonableness approach” described above (see ¶¶ 50, 83).

    However, these four justices split evenly on the application of the test to the facts of this case, which are summarized at paragraphs 3-13 in the lead opinion and analyzed at length in both the lead opinion and in the dissent. Ultimately the lead opinion concluded that the police had reasonable suspicion that evidence of the crime of arrest would be found in the defendant’s vehicle; the dissenters disagreed.

    Justice Kelly concurred in the judgment in this case, joining Chief Justice Roggensack and Justice Ziegler in voting to uphold the search. He argued that “it must necessarily be true that the United States Supreme Court believes that the offense of arrest, without more, can extend the scope of a post-arrest evidentiary search to an automobile recently occupied by the arrestee. That principle … leads, almost mechanically, to the conclusion that in this case the scope of the post-arrest evidentiary search appropriately encompassed [the defendant’s] vehicle” (¶¶ 79-80).

    Justice Hagedorn did not participate in this case, and Justice A.W. Bradley withdrew from participation.

    DNA Evidence – Other Acts – Juror Bias

    State v. Gutierrez, 2020 WI 52 (filed 3 June 2020)

    HOLDINGS: 1) The circuit court properly excluded DNA evidence offered by the defense and properly admitted other-act evidence offered by the prosecution. 2) The defendant was not denied his right to an impartial jury.

    SUMMARY: The defendant was convicted of multiple counts of sexual assault and enticement of a minor. In a published opinion, the court of appeals reversed the conviction based on the exclusion of DNA evidence offered by the defense. See 2019 WI App 41.

    In an opinion authored by Justice Dallet, the supreme court reversed the court of appeals on the DNA issue but affirmed on other issues. The trial judge properly excluded evidence that unidentified DNA was found on the victim’s perioral and underwear swabs. No known male was identified. The DNA was from neither semen nor saliva. It could have been from skin cells or something else or “some other source deposited during an innocuous encounter” (¶ 23). The victim had given inconsistent accounts of clothing she was wearing when she was assaulted.

    The supreme court affirmed the lower courts on the admissibility of other-act evidence, namely, prior assaults dating back many years. Applying the greater-latitude standard (see ¶ 29), the court worked through the three-step test (proper purpose plus relevance plus unfair prejudice) mandated by prevailing law, finding no abuse of discretion in the circuit court’s decision to admit it.

    Nor was the defendant denied his right to an impartial jury. A prospective juror indicated uncertainty about being impartial. In rejecting the defendant’s argument, the supreme court considered the “sparse record” before it in light of the presumption of juror impartiality (¶ 42).

    Finally, and relatedly, the court denied the defendant’s claim of ineffective assistance of counsel based on his lawyer’s failure to further question the prospective juror or to exercise a peremptory strike on that juror. No prejudice had been shown (see ¶ 45).

    Justice A.W. Bradley and Justice Hagedorn did not participate in this decision.

    Motor Vehicle Law

    OWI – Burden of Proof Regarding Prior Convictions

    City of Cedarburg v. Hansen, 2020 WI 45 (filed 20 May 2020)

    HOLDING: On reconsideration of its first decision in this case, the court clarified the state’s burden of proving a defendant’s prior OWI convictions at sentencing when the defendant is charged as a repeat offender.

    SUMMARY: This opinion was filed after the supreme court granted the city of Cedarburg’s motion for reconsideration of the court’s prior decision in this case. See 2020 WI 11, 390 Wis. 2d 109, 938 N.W.2d 463. Referring to the proof of prior OWI-related convictions when the defendant is a repeat offender, the court in its first decision on the matter stated that “the State must prove a defendant’s status as a prior offender at sentencing, where prior convictions must be established beyond a reasonable doubt.” 2020 WI 11, ¶ 30, 390 Wis. 2d 109.

    The city of Cedarburg sought reconsideration of this statement of the proof burden in light of State v. Braunschweig, 2018 WI 113, 384 Wis. 2d 742, 921 N.W.2d 199, in which the court held that the proof burden regarding prior convictions is a preponderance of the evidence.

    On reconsideration, the court in a per curiam opinion modified paragraph 30 of its original decision in this case to read that “the State must prove a defendant’s status as a prior offender at sentencing by a preponderance of the evidence” (¶ 3).

    (Editors’ Note: In some prohibited alcohol concentration (PAC) cases, the defendant is subject to a lower (0.02) PAC because of the individual’s prior OWI record. In these cases, the text of the statute makes the predicate offense an element of the crime, and the state must prove it beyond a reasonable doubt at trial. See ¶ 2.)


    Safe Place – Constructive Notice

    Correa v. Woodman’s Food Mkt., 2020 WI 43 (filed 19 May 2020)

    HOLDING: For the purpose of applying the safe-place statute, there was sufficient evidence to show the store had constructive notice of an unsafe condition.

    SUMMARY: The plaintiff was injured when he slipped on a substance and fell while shopping in a grocery store. There was no proof of what the substance was or how long it had been there. A surveillance video showed customers and employees walking near the area before the plaintiff fell. It also showed the fall itself and an employee wiping a substance from the floor as well as the bottom of the plaintiff’s shoe. The video’s quality did not permit a view of the substance itself.

    The jury returned a verdict in favor of the plaintiff on his claim under the safe-place statute. See Wis. Stat. § 101.11. In an unpublished decision, the court of appeals reversed, ruling that without evidence of how long the substance had been on the floor, the plaintiff had failed to show constructive notice.

    The supreme court reversed in a unanimous opinion authored by Justice Kelly. The sole issue was whether the plaintiff’s case-in-chief had demonstrated sufficient evidence of constructive notice. First, the court held that “identifying the moment in time at which a condition becomes unsafe is not a sine qua non of the test described” by case law. The element is functional: would a vigilant owner have had sufficient opportunity to discover and remedy the situation? (see ¶ 18).

    Noting the “increasing prevalence” of surveillance video, the court observed that if the video reveals that there was sufficient time to satisfy the constructive-notice element, “there is no need to rewind the video even further to discover when it arose” (¶ 19).

    Second, the video in this case provided sufficient evidence of constructive notice to support the jury’s findings. The video recorded both the plaintiff’s fall and the 10 minutes before the fall. Furthermore, a store employee testified that he reviewed the 80 minutes before that sequence without observing the substance fall to the floor (see ¶ 23). In short, there was sufficient evidence that the substance had been on the floor for at least 90 minutes before the plaintiff fell. This was sufficient evidence of constructive notice of the unsafe condition.

    Justice A.W. Bradley withdrew from participation in this case.

    Malpractice – Insurance Agents

    Emer’s Camper Corral LLC v. Alderman, 2020 WI 46 (filed 21 May 2020)

    HOLDING: In a malpractice action against an insurance agency, the plaintiff must prove not only that the coverage requested was commercially available but that an insurer actually would write the policy for the insured.

    SUMMARY: A hailstorm severely damaged numerous motor homes that were for sale at Emer’s Camper Corral. When Camper Corral filed its insurance claim, it learned that coverage for each damaged camper carried a deductible of $5,000. Emer, one owner of Camper Corral, thought the company’s policy carried a deductible of $1,000 per camper with a $5,000 aggregate deductible limit. Camper Corral sued its insurance agent, Alderman, for malpractice. An insurance agent opined that given Camper Corral’s claims history in the two prior years, it could not have obtained a policy with a $1,000 hail deductible and a $5,000 aggregate deductible. The circuit court granted a directed verdict in favor of Alderman. In a published opinion, the court of appeals affirmed. See 2019 WI App 17.

    The supreme court affirmed in a majority opinion authored by Justice Kelly. Camper Corral contended that it only must show that a policy with a $1,000 hail deductible and a $5,000 aggregate deductible was commercially available.

    The court disagreed. An insured’s claims history affects coverage, terms, and premiums (see ¶ 23). Terms vary among insureds (see ¶ 24). Essentially, Camper Corral was asking the court to create an “evidentiary presumption.” Proof of a policy’s “commercial availability” would compel an insurance agent to prove “that no insurer in the market would insure Camper Corral under the requested terms” (¶ 26). The argument had no support in the case law (see ¶ 28).

    Turning to other issues, the court also held that no evidence in the record supported an argument based on detrimental reliance (see ¶ 41). Still other arguments were forfeited because they were not presented in Camper Corral’s petition for review (see ¶ 44).

    Chief Justice Roggensack dissented. Among other things, she argued that the majority created “a new and rigid evidentiary burden for causation that immunizes an insurance agent’s misrepresentations about the insurance policy he said that he was providing and the policy he actually provided, all at the expense of the consumer” (¶ 46).

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