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    Wisconsin Lawyer
    September 08, 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

    Attorney Malpractice

    Criminal Client – Actual-Innocence Bar

    Skindzelewski v. Smith, 2020 WI 57 (filed 18 June 2020)

    HOLDING: A defendant who was wrongfully jailed because the statute of limitation had run on a theft prosecution was precluded by the actual-innocence bar from suing his former defense counsel, who had missed the issue.

    SUMMARY: The defendant was charged with theft by contractor, a misdemeanor. He admitted to the offense before he was charged. The State Public Defender appointed an attorney to represent him. The defendant pleaded guilty and was sentenced to eight months in jail. While he was serving his jail sentence, his new lawyer raised a statute-of-limitation issue: The theft occurred in 2010, the case was charged in 2014, and the offense was subject to a three-year statute of limitation because it was a misdemeanor. The original defense counsel, the prosecutor, and the judge had all missed the issue.

    In 2016, the defendant’s conviction was vacated, and he sued his former trial counsel for malpractice. The judge granted summary judgment in favor of the former lawyer on grounds of the actual-innocence rule. In an unpublished decision, the court of appeals affirmed.

    The supreme court affirmed the court of appeals in an opinion authored by Justice R.G. Bradley. The actual-innocence rule requires the plaintiff in a lawyer malpractice action to prove that he or she is factually innocent of the crimes in question. The rule has been in effect for more than two decades. The parties did not challenge the rule itself; rather, the plaintiff urged the supreme court to recognize an exception for instances like this one (that is, he was guilty but not subject to lawful prosecution). The party requesting an exception bears the burden of establishing that it is warranted. In this case the defendant did not satisfy that burden (see ¶ 11). In so holding, the court distinguished the foreign cases on which the defendant relied (see ¶ 19). In short, the plaintiff received the appropriate remedy for his erroneous conviction – he was released from jail (see ¶ 22).

    Justice Hagedorn concurred. He expressed doubts about the public policy behind the actual-innocence rule, but that issue was not before the court. And in light of those reservations, he could not craft an exception to that rule (see ¶ 32).

    Justice Dallet dissented. The rationale underlying the actual-innocence rule did not apply to this case. She would instead create a narrow exception that permits such malpractice actions against defense lawyers who fail to raise a statute-of-limitation defense.

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

    Criminal Law

    Gambling Machines – “Cellphone Charging Kiosks”

    Quick Charge Kiosk LLC v. Kaul, 2020 WI 54 (filed 12 June 2020)

    HOLDING: The “cellphone charging kiosks” that are the subject of this litigation are illegal gambling machines.

    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: Quick Charge Kiosk LLC places what it describes as cellphone charging kiosks in various convenience stores and gas stations throughout the state. It constructs the kiosks by modifying standard gambling machine equipment purchased from third parties to enable a cellphone-charging functionality.

    A customer who puts money into a Quick Charge kiosk receives two potential benefits. First, the kiosk gives the customer credits to play a video game on the kiosk’s screen with a chance to win a cash prize. For every dollar inserted, a customer receives 100 credits. Customers wager the credits throughout different rounds and either win or lose those credits based on the game’s results. These results are determined by a random number generator. If all credits are not lost, the customer can print a ticket representing his or her winnings. That ticket is redeemable for cash from the store where the kiosk is located. If all credits are lost, the customer receives no cash prize and cannot continue playing the video game without inserting more money. The kiosks’ video game pays out around 65 percent of all money inserted. Inserting money into a kiosk also allows a customer to charge a cellphone using the kiosk’s attached charging cord. Charging time is based on the amount deposited – $1 earns one minute of charging time (see ¶¶ 5-6). The machines also have a free-play option.

    The Wisconsin Attorney General opined that these kiosks are illegal gambling machines as defined by Wis. Stat. section 945.01(3). The statute defines a gambling machine as “[1] a contrivance [2] which for a consideration [3] affords the player an opportunity to obtain something of value, [4] the award of which is determined by chance, even though accompanied by some skill and whether or not the prize is automatically paid by the machine” (¶ 10). After several kiosks were seized by law enforcement authorities, Quick Charge sought a declaration that the kiosks were not illegal gambling machines. The circuit court granted summary judgment in favor of the Attorney General and, in a published opinion, the court of appeals affirmed. See 2019 WI App 51. In a unanimous decision authored by Justice Hagedorn, the supreme court affirmed the court of appeals.

    Quick Charge argued that its kiosks are not gambling machines because they do not satisfy the “consideration” requirement under the gambling machine definition in Wis. Stat. section 945.01(3). Quick Charge pointed to the definition of consideration for lotteries under section 945.01(5) and an exception from that definition for “in-pack chance promotions” under Wis. Stat. section 100.16(2). This same definition and exception should apply to gambling machines, Quick Charge contended, suggesting its kiosks are legally compliant in-pack chance promotions. Further, Quick Charge argued there is no consideration even if the ordinary legal definition of consideration applies because a free-play option is available (see ¶ 2).

    The supreme court disagreed. “While the lottery statute expressly excludes in-pack chance promotions from its definition of consideration, the gambling machine statute does not. The logical implication of this textual distinction is that meeting the requirements of an in-pack chance promotion does not exempt a mechanical device from the consequences of being an illegal gambling machine. Moreover, consideration is present here because the kiosks can be used exactly like a standard gambling machine notwithstanding a free play option also being available. That is, customers can pay for an opportunity to obtain something of value by chance. We therefore hold that Quick Charge’s kiosks meet the definition of a gambling machine under Wis. Stat. § 945.01(3)” (¶ 3). “Likewise, the kiosks are no less gambling machines just because they can also be used for non-gambling purposes, including cellphone charging and limited gratuitous use of their video game function” (¶ 22).

    Criminal Procedure

    Vehicle Impoundment – Law Enforcement Officers’ Community Caretaker Function

    State v. Brooks, 2020 WI 60 (filed 25 June 2020)

    HOLDING: The impoundment of the defendant’s vehicle by law enforcement officers was not a valid exercise of the “community caretaker” exception to the Fourth Amendment warrant requirement.

    SUMMARY: Deputy sheriffs stopped the defendant in a mixed commercial and residential neighborhood for speeding. They cited but did not arrest the defendant for speeding and for operating a vehicle with a suspended driver’s license. They would not allow him to drive away from the scene because he did not have a valid license. Although the defendant told the deputies that he could have a licensed driver retrieve the vehicle, they told him that departmental policy required them to have the vehicle towed to an impound lot.

    In anticipation of the tow, the deputies conducted an inventory search of the vehicle and found a firearm. Because the defendant was a convicted felon, he was arrested for possession of the firearm. The defendant moved to suppress the firearm, arguing that the “community caretaker” exception to the Fourth Amendment’s warrant requirement did not justify the seizure of his vehicle, which led to the discovery of the firearm. The circuit court denied the motion after which the defendant entered a guilty plea. The court of appeals affirmed in an unpublished per curiam opinion. In a unanimous opinion authored by Justice Kelly, the supreme court reversed the court of appeals.

    To justify a seizure pursuant to the community caretaker doctrine, “the State must demonstrate the circumstances at hand called upon the police to perform one of their non-investigatory functions, such as protecting persons or property, providing first aid, intervening in a crisis, serving as a peacemaker, or otherwise acting as society’s problem solvers when no other solution is apparent or available” (¶ 23) (internal quotations omitted). When the state claims the community caretaker role justifies a search or seizure, courts evaluate the following three criteria: “(1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised” (¶ 12). In this case, the court focused on the second of these elements.

    The court concluded that the deputies were not exercising a bona fide community caretaker function when they decided to impound the defendant’s vehicle. In this case “there was no property or person in need of protection, no crisis, and no problem that did not have an apparent and available solution. There was just a man in a car on the side of a road making arrangements for someone to take him home” (¶ 23). The state did not show that there was any necessity to remove the vehicle because it was impeding traffic flow (see ¶ 20). With regard to the department’s impoundment policy, the court indicated that “even if we were to accept that there is a Departmental policy that explicitly requires impoundment under these circumstances, the policy’s existence is not evidence that the deputies were acting as community caretakers” (¶ 21). “A standardized policy may provide some evidence that the police performed their community caretaker role reasonably, but it cannot establish the predicate – that they were acting as community caretakers” (id.).

    As for the search of the defendant’s vehicle, the court stated that “[w]hen law enforcement officers have a constitutionally legitimate reason for impounding a vehicle, they may inventory its contents without a warrant and without violating the constitution” (¶ 24). “But the permissibility of such inventory searches depends entirely on the constitutionality of the seizures that precede them…. Because the seizure in this case violated the Fourth Amendment and Article I, Section 11 of the Wisconsin Constitution, so did the ensuing inventory search” (¶ 25).

    Vehicle Stops – Duration – Questions Related to the “Mission” of the Traffic Stop

    State v. Brown, 2020 WI 63 (filed 3 July 2020)

    HOLDING: A police officer did not unlawfully extend a traffic stop when asking a driver whether there was anything on his person that the officer “needed to know about” or “be concerned about.”

    SUMMARY: At 2:44 a.m., a Fond du Lac police officer noticed a car coming from a dead-end street containing only closed commercial properties. A record check revealed that the vehicle belonged to a car rental company. After observing the vehicle failing to make a complete stop at a stop sign, the officer initiated a traffic stop. The officer asked the driver (defendant Brown) about his destination, and Brown stated that he was going “nowhere really.” The officer learned that Brown was from Milwaukee. Brown stated that he had been visiting a friend in Fond du Lac but could not provide the last name of the friend or the friend’s address. He also told the officer that he had come directly from Speedway, although the officer had just witnessed him come from a dead-end street with closed businesses.

    After the officer completed writing a traffic ticket but before he gave the ticket to the defendant, he had Brown step out of his vehicle, led him to the front of the squad car, and asked Brown if there was anything on Brown’s person that the officer “needed to know about” or “be concerned about” (¶ 5). Brown answered in the negative, and the officer asked for consent to search Brown’s person. The search revealed the presence of crack cocaine and $500 in cash.

    In the ensuing controlled-substance prosecution, Brown moved to suppress the cocaine and cash, claiming that they were the fruits of an unlawful search because the officer’s actions unlawfully extended the stop and the officer lacked reasonable suspicion. The circuit court denied the motion, and the defendant thereafter entered a no-contest plea. In a published decision, the court of appeals affirmed. See 2019 WI App 34. In a majority opinion authored by Justice R.G. Bradley, the supreme court affirmed the court of appeals.

    The supreme court determined that the outcome in this case is governed by its recent decisions in State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560, and State v. Wright, 2019 WI 45, 386 Wis. 2d 495, 926 N.W.2d 157 (see ¶ 11). These cases stand for the proposition that “a traffic stop’s permissible duration depends on the stop’s ‘mission,’ which includes ‘(1) addressing the traffic violation that warranted the stop; (2) conducting ordinary inquiries incident to the stop; and (3) taking negligibly burdensome precautions to ensure officer safety.’ We held that a stop is impermissible if it extends past the point when the mission is, ‘or reasonably should have been, completed.’ We explicitly stated that questions related to an officer’s safety ‘are part of the traffic stop’s mission … [and] those questions do not cause an extension of the stop.’ We noted the [U.S.] Supreme Court ‘concluded that the Fourth Amendment tolerate[s]’ even those investigations unrelated to the stop’s mission, ‘so long as those inquiries do not measurably extend the duration of the stop’” (¶ 16) (citations omitted).

    In this case the majority concluded that the officer lawfully asked Brown to exit his vehicle, lawfully directed him to move to the area in front of the squad car, and lawfully asked him about things on his person because the question was “negligibly burdensome and pursuant to the stop’s mission because it concerned officer safety” (¶ 28).

    The court rejected the defendant’s argument that the officer’s question violated the Constitution because the officer did not specifically ask about “weapons.” It declined to adopt a “magic words” approach. The officer testified that the reason for his question was to inquire about any possible weapons on Brown’s person. “During a traffic stop, knowledge of weapons carried by occupants of a vehicle is integral to officer safety…. [The officer’s] question was negligibly burdensome and pursuant to the stop’s mission because it concerned officer safety” (id.).

    Moreover, “the Fourth Amendment allows unrelated investigative inquiries not related to the mission of the stop, provided such inquiries do not ‘measurably extend the duration of the stop.’ [The officer’s] question regarding Brown’s possession of any concerning items did not ‘measurably extend the duration of the stop’ because it was posed ‘concurrently with mission-related activities’” (¶ 29) (citations omitted).

    (Editors’ Note: In this case the parties disputed whether the defendant ever gave consent for the search of his person and the circuit court never resolved this dispute (see ¶ 5 n.2). However, the defendant did not raise the consent issue either at his plea hearing (where he pleaded no contest) or at sentencing. Accordingly, the court found that he abandoned the issue under the guilty-plea waiver rule (see ¶ 33 n.8).)

    Justice R.W. Bradley, joined by Justice Kelly, wrote a concurrence to address Justice Dallet’s dissent and the concurring opinion that Judge Reilly authored when this case was before the court of appeals.

    Justice Dallet filed a dissenting opinion.

    Justice Hagedorn did not participate in this case.

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

    Ineffective Assistance of Counsel – Forum for Filing Claims of Ineffective Assistance After Conviction

    State ex rel. Warren v. Meisner, 2020 WI 55 (filed 11 June 2020)

    HOLDING: The defendant’s claim – that his postconviction counsel was ineffective for failing to file a motion for postconviction relief in the circuit court asserting ineffectiveness of trial counsel – should have been filed in the circuit court.

    SUMMARY: This case involved identifying the appropriate forum for filing a claim that defendant’s postconviction counsel was ineffective for failing to assert an ineffective trial counsel claim. In a unanimous decision authored by Justice A.W. Bradley, the supreme court concluded that the proper forum was the circuit court.

    The court reaffirmed that “the Knight/Rothering framework remains the correct methodology for determining the appropriate forum for a criminal defendant to file a claim relating to the alleged ineffectiveness of counsel after sentencing” (¶ 5). See State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992); State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) (per curiam). The traditional rule has been that claims of ineffective assistance of counsel premised on errors occurring before the circuit court should be pursued in the circuit court and claims of ineffective assistance of counsel premised on errors occurring before an appellate court should be pursued in the appellate court where the alleged error occurred (see ¶¶ 5, 36).

    In this case the defendant’s claim was that his postconviction counsel was ineffective for failing to file in the circuit court a motion for postconviction relief that asserted ineffectiveness of trial counsel. Because postconviction counsel’s alleged error of omission took place in the circuit court, the circuit court was the proper forum in which to file such a claim.

    (Editors’ Note: In this decision the supreme court withdrew a portion of its language from State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, and it modified other parts of the Starks opinion.)

    Miranda – Custodial Interrogation – Expert Testimony – False Confessions

    State v. Dobbs, 2020 WI 64 (filed 3 July 2020)

    HOLDING: The circuit court properly excluded defense expert testimony on false confessions; any violations of the Miranda doctrine were harmless error.

    SUMMARY: While driving a car, the defendant struck and killed a pedestrian. He claimed not to recall having struck the victim. When police officers “detained” the defendant shortly after the incident, officers noticed a can of compressed air in the car. The defendant later admitted, multiple times, that he had been “huffing” from an air duster, he lost consciousness, and his car struck the victim while he was unconscious. The circuit court denied a motion to suppress, on Miranda grounds, the incriminating statements. The judge also excluded a defense expert on false confessions. The jury convicted the defendant of homicide by intoxicated use of a vehicle. In an unpublished decision, the court of appeals affirmed.

    The Wisconsin Supreme Court affirmed in a majority opinion authored by Justice Dallet. (Different groups of justices supported different sections of the opinion, as described by the court.)

    First, the circuit court properly exercised its discretion in excluding expert testimony on false confessions. The expert was proffered to testify in the form of “exposition,” that is, to present a lecture on false confessions without offering any opinions or referring to the facts. Exposition is permitted by the current version of Wis. Stat. section 907.02, which governs expert testimony, as well as its pre-2001 version (see ¶ 42).

    Nonetheless, exposition testimony is “not automatic.” It must still assist the trier of fact and otherwise comport with Wis. Stat. section 907.02 (qualifications and so on) In this case, the trial judge found that the expert’s testimony did not “fit” the facts before it, because the defense proffered no evidence that any factors to be discussed were present in this case (¶¶ 45-46, 51).

    Second, the supreme court held that the defendant had been subjected to custodial interrogation without having been read his Miranda rights; hence, no valid waiver was shown. The first main issue concerned whether the defendant was in “custody” for Miranda purposes while being “detained” by police officers before his “formal” arrest later that morning. The issue compelled the supreme court to address State v. Morgan, 2002 WI App 124, 254 Wis. 2d 602, 648 N.W.2d 23. Although the supreme court upheld Morgan, the court clarified the different analysis that attends Fourth Amendment rights (seizures) and Fifth Amendment rights (custody for Miranda purposes) (see ¶¶ 57-59).

    “We conclude that Dobbs was in custody for purposes of Miranda protections because, under the totality of the circumstances, a reasonable person would have considered himself restrained to a degree associated with formal arrest” (¶ 61). The court addressed those circumstances in its opinion.

    Second, police officers interrogated the defendant before he received his Miranda warnings. Some of the interrogation took on the form of “express questioning” while other parts were its “functional equivalent.”

    Nonetheless, any errors in the admission of those statements were harmless. “To the extent that Dobbs’s five pre-Miranda statements introduced into evidence were incriminating, they were also independently testified to by other witnesses or were inconsequential to the crime of homicide by intoxicated use of a vehicle, the only crime for which Dobbs was convicted” (¶ 69). The court also rejected the defendant’s argument that, independent of Miranda, his statements were involuntary. The defense failed to show any police misconduct in the questioning (see ¶ 73).

    Justice Ziegler concurred in the majority opinion’s discussion of expert testimony. She did not join the majority’s analysis or reasoning as to the Miranda issue. In her view, the defendant was not in custody before being formally advised of his Miranda rights and the majority’s discussion of the Fourth Amendment perspective might “seriously undermine” the authority of police to make investigative detentions. Chief Justice Roggensack and Justice Hagedorn joined her opinion.

    Justice Kelly concurred. He disagreed with the majority’s analysis of Wis. Stat. section 907.02. He was joined by Justice R.G. Bradley.

    Restitution – Effect of Civil Settlements – Accord and Satisfaction

    State v. Muth, 2020 WI 65 (filed 7 July 2020)

    HOLDING: There was no majority opinion in this case, although a majority of the justices affirmed the circuit court’s restitution order.

    SUMMARY: Muth drove while intoxicated, and his vehicle collided with T.K.’s vehicle, killing T.K. Muth and his insurance company settled with T.K.’s three adult children for $100,000. The civil settlement did not enumerate which part of the $100,000 covered special damages and which part covered general damages, instead purporting to be a release from all liability.

    After the settlement was reached, Muth pleaded no contest to one count of homicide by the intoxicated use of a vehicle. The circuit court sentenced him to 13 years’ initial confinement followed by 13 years’ extended supervision. The court also held a restitution hearing at which the three children sought compensation for various expenses, such as funeral costs, and two of the children sought restitution for their spouses’ lost wages attributable to the defendant’s criminal conduct.

    The circuit court set restitution at $34,869.42, which included an amount for the lost wages. Muth filed a written objection to all restitution, arguing that 1) the civil settlement precluded restitution to the adult children (premising his argument on the doctrines of accord and satisfaction and setoff), and 2) T.K.’s sons-in-law were not victims and thus the court should not have imposed restitution for their lost wages. The circuit court upheld the restitution order.

    In a per curiam decision, the court of appeals affirmed in part and reversed in part. It concluded that the civil settlement did not preclude restitution; however, it remanded the case to the circuit court with directions to reduce the amount of restitution attributable to the lost wages.

    The supreme court affirmed in part and reversed in part the court of appeals’ decision. There was no majority opinion. However, a majority of the justices concluded that Muth failed to meet his burden in presenting the defenses of accord and satisfaction and setoff and that the circuit court properly awarded restitution for the lost wages of the victims’ spouses.

    Despite the absence of a majority opinion, the portion of Justice Dallet’s concurring opinion dealing with accord and satisfaction garnered the support of a majority of the justices. Justice Dallet wrote that “Muth did not prove the defense of accord and satisfaction because he did not show that the entry of restitution would result in T.K.’s adult children receiving double recovery. The $100,000 insurance settlement agreement, divided into $33,333.33 for each of T.K.’s adult children, covered both special and general damages, and used broad, vague terms like ‘costs,’ ‘expenses,’ and ‘lost wages.’ There is no evidence that the losses compensated by the restitution granted to T.K.’s adult children had already been satisfied by payment from the insurance settlement. Muth ultimately provided no evidence to the circuit court that the $34,869.42 awarded to the adult children as restitution would result in them receiving double recovery for those special damages as a result of the money paid by the insurance settlement” (¶ 75).

    Justice Dallet (again with the support of a majority) also addressed the interpretation that has been accorded to State v. Walters, 224 Wis. 2d 897, 591 N.W.2d 874 (Ct. App. 1999): “To the extent that Walters has been interpreted to mean that the defense of accord and satisfaction can never prevent a circuit court from ordering restitution to compensate a victim for a loss caused by the defendant, that interpretation cannot stand. As discussed above, the defense of accord and satisfaction is a defense to a circuit court’s order of restitution when a defendant successfully proves that as a result of money received pursuant to a settlement agreement, the restitution order will result in double recovery to the victim. Ultimately, Muth failed to meet that burden here” (¶ 78).

    Chief Justice Roggensack wrote the lead opinion in this case. As indicated above, Justice Dallet filed a concurring opinion. Justice Kelly filed an opinion concurring in part and dissenting in part. Justice Hagedorn filed a dissenting opinion.

    Health Law

    Medicaid – Recoupment – Documentation

    Papa v. Wisconsin Dep’t of Health Servs., 2020 WI 66 (filed 9 July 2020)

    HOLDING: The Department of Health Services (DHS) recoupment policy for service providers, which hinged on the adequacy of the documentation irrespective of the actual provision of appropriate care, exceeded the DHS’s authority.

    SUMMARY: Professional Homecare Providers Inc. (PHP), which provides nursing care, challenged the DHS’s authority to recoup Medicaid payments made to providers of such nursing services. The Medicaid payment system and the DHS’s recoupment practices are described in the opinion. Essentially, the DHS sought recoupment of payments made to the nurses if its later audits showed inadequate documentation of which services were provided.

    PHP challenged the DHS, alleging that its documentation policy required “perfection” and exceeded the DHS’s authority. The circuit court granted declaratory relief and an injunction in favor of PHP. In an unpublished split decision, the court of appeals reversed.

    In an opinion authored by Justice Ziegler, the supreme court reversed in part and affirmed in part the court of appeals. “[T]he issues we review in this case are: whether PHP’s Perfection Policy claim is ripe; whether the Perfection Policy is in excess of DHS’s recoupment authority; and whether the supplemental order and order for costs and attorney fees were proper” (¶ 28).

    First, the court concluded that the issues were ripe; there was nothing hypothetical or contingent (see ¶ 31). Second, the “perfection policy” exceeded the DHS’s authority. “The difference between imperfect records and no records at all is a significant one” (¶ 38). No statute or promulgated rule “requires or permits recoupment based on mere imperfection” (¶ 42).

    Third, the circuit court’s supplemental order did not impermissibly expand the scope of the original order (see ¶ 45). The supreme court thus reinstated it: “DHS may recoup Medicaid payments from service providers only in cases where DHS cannot verify one of the following: (1) the actual provision of covered services; (2) that the reimbursement claim is appropriate for the service provided; and (3) that the reimbursement claim is accurate for the service provided” (¶ 3). The circuit court erred, however, by ordering costs and attorney fees (see ¶ 48).

    Justice Kelly, joined by Justice R.G. Bradley, concurred in part but dissented regarding the denial of costs (see ¶ 51).

    Justice Hagedorn did not participate in this decision.


    Bias – Social Media Contacts

    Miller v. Carroll, 2020 WI 56 (filed 16 June 2020)

    HOLDING: A judge’s social media contacts with a party rebutted the presumption of judicial impartiality and violated due process.

    SUMMARY: Carroll and Miller were divorced in 2011 and agreed to joint legal custody of their son. In 2016, Carroll filed a motion to modify the divorce judgment, seeking sole legal custody, primary physical placement, child support payments, and a change of residence. She also alleged acts of domestic violence by Miller, who “vigorously opposed” her motion.

    The court held a “highly contested two-day evidentiary hearing” and then granted the parties one week to submit briefs, which they did. The judge issued his decision, favoring Carroll on all points, 25 days later.

    Unknown to Miller, Carroll initiated Facebook contact with the judge just three days after the briefs were filed. The judge accepted Carroll’s “friend” request. The opinion catalogues the numerous social media contacts that Carroll posted that involved the judge, many on topics relevant to the case and fawning in substance (see ¶¶ 8-9). The guardian ad litem (GAL) became aware of Carroll’s social media relationship with the judge on the same day that the judge issued his decision, and the GAL alerted counsel for Miller.

    The trial judge admitted the social media contacts but asserted he was unbiased. In a published decision, the court of appeals disagreed, finding that the judge’s conduct had “created a great risk of actual bias” and appeared partial (¶ 13). See 2019 WI App 10.

    A majority of the supreme court affirmed the court of appeals in an opinion authored by Justice Dallet. The opinion discusses social media contacts (especially Facebook “friends”) (see ¶ 20) and the law on judicial bias and due process, namely, whether there is a high probability of actual bias that is constitutionally intolerable (see ¶ 22).

    Although presuming that the judge was impartial, the court looked to 1) the timing of the Facebook friendship, 2) the fact that the judge took the “affirmative step” of accepting Carroll’s “friend request,” 3) the likelihood that the judge would have seen Carroll’s many postings, 4) the “context and nature” of the pending litigation, 5) the number and substance of Carroll’s postings that related to the litigation, and 6) the judge’s failure to disclose the contacts before rendering a decision (¶ 33).

    “The totality of the circumstances and the extreme facts of this case, viewed objectively, rise to the level of a serious risk of actual bias, which rebuts the presumption of Judge Bitney’s impartiality” (¶ 35).

    Justice A.W. Bradley concurred, joining the majority opinion but writing separately to discuss an “appearance of impartiality” standard.

    Justice Ziegler joined the majority but concurred separately to express her disagreement with Justice A.W. Bradley’s “appearance” standard.

    Justice Dallet, joined by Justice Hagedorn, wrote a concurring opinion to provide “additional guidance and clarification for the bench and bar” regarding social medial contacts. No rule prevents such contacts themselves, and there is “nothing inherently inappropriate” about social media relationships (¶ 100).

    Justice Hagedorn dissented. Applying U.S. Supreme Court case law, “recusal is constitutionally required only when actual bias is present or when the facts of a case are so extreme as to constitute a serious risk of actual bias” (¶ 105). The dissent challenged the majority’s application of Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). Justice R.G. Bradley and Justice Kelly joined the dissent.

    Municipal Law

    Trucks – Weight Restrictions – Federal Regulations

    Town of Delafield v. Central Transp. Kriewaldt, 2020 WI 61 (filed 26 June 2020)

    HOLDING: Seasonal weight limitations placed on trucks by a municipality fell within the scope of “reasonable access” mandated by federal law.

    SUMMARY: Central Transport was cited for operating a tractor-trailer in violation of a town’s seasonable weight limitations, as imposed by a local ordinance. Central Transport contested the citation, arguing that local ordinances imposing weight limits were preempted by provisions of the federal Surface Transport and Assistance Act (STAA) and related regulations. The circuit court rejected the argument. In a published decision, the court of appeals did likewise. See 2019 WI App 35.

    The supreme court affirmed the court of appeals in a majority opinion authored by Justice Hagedorn. The opinion opens with an examination of the pertinent federal statutes, which only entitle Central Transport to “reasonable access” to those roads. The circuit court record reflected that “at the time Central Transport received its citation, seasonal weight limitations were normal and known for those making commercial deliveries during that time of year in Wisconsin. Calls to the highway department or sheriff’s office to determine the nature and effective date of any limitations were likewise commonplace. The record also indicates that Central Transport’s truck could have obtained a permit to reach its destination, and if past is prologue, likely would have received one if so requested” (¶ 28).

    The federal statutes and regulations only require that trucks be allowed “reasonable access to its destination. Central Transport’s driver could have checked the website or called ahead to determine whether any restrictions were in effect. Or, upon seeing the seasonal weight limitation was posted, the driver could have contacted the Town, driven to the office, and obtained a permit that would have allowed the tractor-trailer to lawfully traverse necessary roads. The weight limitation was also based on a reasonably tailored and well-founded police power consideration – damage to roads that were especially vulnerable during the spring thaw” (¶ 29).

    Justice Kelly concurred in the judgment only, joined by Justice R.G. Bradley. He contended that the court should have resolved the case based on Central Transport’s failure to prove that its destination was a “termina” (see ¶ 40).

    State Constitutional Law

    Appropriation Bills – Governor’s Partial Veto Authority

    Bartlett v. Evers, 2020 WI 68 (filed 10 July 2020)

    HOLDING: There was no majority opinion in this case. However, a majority of justices reached conclusions on the validity of several challenges to Gov. Tony Evers’ partial vetoes of the state’s 2019-21 biennial budget bill.

    SUMMARY: Article V, section (10)(1)(b) of the Wisconsin Constitution provides that the governor may approve appropriation bills “in whole or in part.” In this original action, the petitioners asserted that Gov. Evers exceeded this constitutional authority to partially veto appropriation bills. Specifically, the petitioners alleged that four series of partial vetoes in 2019 Wis. Act 9, the state’s 2019-21 biennial budget bill, were unconstitutional.

    As described in Chief Justice Roggensack’s opinion concurring in part and dissenting in part, the petitioners “challenge a series of vetoes that changed a school bus modernization fund into an alternative fuel fund. They also challenge another series that removed conditions from a local road improvement fund, effectively changing it into a fund for ‘local grants’ or ‘local supplements.’ Third, they challenge a series of vetoes that altered a vehicle fee schedule by changing the amount truck owners must pay to register their vehicles. Lastly, they challenge one veto that altered a section that imposed a tax on ‘vapor products’ by expanding the definition of vapor product to include liquid heated by a vaping device” (¶ 10).

    There was no majority opinion in this case. Rather, the court issued a per curiam decision explaining that, although no rationale has the support of a majority, five justices (Chief Justice Roggensack and Justice Ziegler, Justice R.G. Bradley, Justice Kelly, and Justice Hagedorn) concluded that the vetoes to the school bus modernization fund are unconstitutional. The same five also concluded that the vetoes to the local roads improvement fund are unconstitutional. Four justices (Justice Ziegler, Justice R.G. Bradley, Justice Kelly, and Justice Hagedorn) concluded that the vetoes to the vapor products tax are unconstitutional. Five justices (Chief Justice Roggensack and Justice A.W. Bradley, Justice Ziegler, Justice Dallet, and Justice Hagedorn) concluded that the vetoes to the vehicle fee schedule are constitutional (see ¶ 4).

    “Accordingly, rights are declared such that the vetoes to the school bus modernization fund, the local roads improvement fund and the vapor products tax are unconstitutional and invalid. Relief is granted such that the portions of the enrolled bills that were vetoed are in full force and effect as drafted by the legislature. The vetoes to the vehicle fee schedule are constitutional, and no relief is granted with respect to these vetoes” (¶ 9).

    Appropriation Bills – Governor’s Partial Veto Authority – Challenge to Vetoes in 2017-19 Biennial Budget – Laches

    Wisconsin Small Bus. United Inc. v. Brennan, 2020 WI 69 (filed 10 July 2020)

    HOLDING: The doctrine of laches bars the petitioners’ challenge to Gov. Tony Evers’ partial vetoes in the 2017-19 budget bill.

    SUMMARY: The 2017-19 biennial budget, as modified by the partial vetoes at the heart of this action and other partial vetoes, became law on Sept. 23, 2017. No vetoes were overridden by the legislature, and the biennium came and went. In 2019, another biennial budget was proposed, negotiated, passed, and signed into law. The 2019-21 biennial budget went into effect as 2019 Wis. Act 9 on July 4, 2019. It was not until Oct. 28, 2019, nearly four months after the old biennium had ended and the new biennial budget had been in effect, that the petitioners filed this petition for original action challenging two of the partial vetoes in the 2017-19 budget bill (see ¶ 9).

    The petitioners claimed that two partial vetoes in 2017-19 budget bill exceeded the governor’s constitutional authority to partially veto appropriations bills. These vetoes delayed the effective dates of certain budgetary provisions.

    In a majority opinion authored by Justice Hagedorn, the supreme court declined to reach the merits of the petitioners’ claim. Rather, the majority concluded that the equitable doctrine of laches should be applied here to dismiss the original action. The majority concluded that the respondents proved the three elements of a laches claim – unreasonable delay, lack of knowledge by the respondents that a claim would be brought, and prejudice (¶ 1). “And given the reliance interests at stake and the need for stability and certainty in the enactment of state budget bills, we exercise our discretion to apply laches based on the facts of this case” (see id.).

    Said the majority: “WSBU [the petitioners] challenges two partial vetoes in the biennial budget enacted in September 2017. But WSBU waited until October 2019 to file this action. The 2017-19 biennium has closed, and a new biennial budget has since been enacted relying in part on the law enacted in 2017. The respondents have established the elements of laches and demonstrated that application of the equitable doctrine is appropriate here” (¶ 32).

    Justice R.G. Bradley filed a dissenting opinion. She criticized the majority for failing to reach the merits of the original action, thereby “shirk[ing] its responsibility to decide a fundamental issue of constitutional law” (¶ 36). Justice Kelly joined this dissent.

    Separation of Powers – Curbs on Governor and Attorney General

    Service Employees Int’l Union (SEIU), Local 1 v. Vos, 2020 WI 67 (filed 9 July 2020)

    HOLDINGS: 1) Legislation directed at curbing the authority of an incoming governor and an incoming attorney general was constitutional on its face. 2) Certain provisions pertaining to “guidance documents” were unconstitutional, whereas others were not.

    SUMMARY: After the Democratic Party candidates won the offices of governor and attorney general in the November 2018 election, the Republican leaders of the Wisconsin Assembly and Senate immediately proposed legislation directed at curbing the authority of these offices. This litigation challenged the constitutionality of the enacted statutory provisions.

    In two lengthy “writings” (majority opinions) by two different justices, the court addressed the legislation in two different batches. As to one batch, a majority of the supreme court upheld specified limits placed on the governor and the attorney general. The second batch regulated so-called guidance documents intended for administrative agencies; a different majority upheld some of these provisions but declared others facially unconstitutional.

    The first “writing,” by Justice Hagedorn, rejected facial challenges to various legislative acts curbing powers of the governor and the attorney general. “Judicial modesty” compelled the supreme court to uphold legislation against facial challenges unless the statute cannot be constitutionally applied “under any circumstances” (¶¶ 42-43).

    The first statute conferred on the legislature or its committees power to participate in litigation involving the constitutionality of a statute (see ¶ 51). It also limited the attorney general’s authority to settle litigation (see ¶ 52). A second statute related to control over security at the Capitol (see ¶ 74). A third provision related to multiple suspensions of administrative rules (see ¶ 78). A fourth provision “partially codifie[d]” the holding in Tetra Tech EC Inc. v. DOR, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, which “ended” the practice of the courts deferring to administrative agencies’ conclusions of law (¶ 84). The opinion repeatedly emphasized its standard of review when scrutinizing facial challenges (see ¶ 86).

    The second “writing,” by Justice Kelly, was the court’s majority opinion regarding other legislation aimed at guidance documents, as set forth in 2017 Wis. Act 369. Guidance documents are a feature of modern administrative law and are defined in the statutes (see ¶ 89). The court struck down two provisions (sections 33 and 38) as unconstitutional but upheld others (sections 31, 65-71, 104, and 105) as constitutional on their face (see ¶ 88). The court elaborated on the nature of guidance documents” (they are not “rules,” ¶ 101), including their “essential attributes,” for example, “[t]hey simply ‘explain’ statutes and rules” yet do not carry “the force or effect of law” (¶ 102).

    Although the executive branch has the “native authority” to create guidance documents, the legislature has some authority to prescribe the content or method of disseminating such documents. Creation and dissemination of guidance documents “fall within the executive’s core authority” (¶ 105). Accordingly, the court held that sections 33 and 38 were facially unconstitutional (see ¶ 108). The other provisions survived facial challenges. Justice Kelly’s opinion also addressed objections by Justice Hagedorn and Chief Justice Roggensack.

    Chief Justice Roggensack concurred in part and dissented in part. She objected to the majority’s conclusion that the creation and dissemination of guidance documents fall within the core authority of the executive branch. Her opinion addresses the “fundamental flaw” in Justice Kelly’s opinion to the contrary (¶ 137).

    Justice Dallet, joined by Justice A.W. Bradley, concurred in part and dissented in part. The dissent centered on the “litigation control” provisions (¶ 164).

    Justice Hagedorn also concurred in part and dissented in part. He would hold that all the guidance document provisions survive a facial challenge to their constitutionality (see ¶ 191).

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