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    Wisconsin Lawyer
    May 14, 2021

    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

    Confrontation – Hearsay – Law of the Case

    State v. Jensen, 2021 WI 27 (filed 18 March 2021)

    HOLDING: In the retrial of this murder case, the circuit court is bound by the earlier decision in State v. Jensen (2007) regarding the use of testimonial hearsay.

    SUMMARY: Julie Jensen died of poisoning in 1998. Before she died, she made statements to other people, including police officers, in which she accused her husband, Mark Jensen, of trying to kill her. Years later, the state charged Mark Jensen with Julie Jensen’s murder. In a 2007 decision, the supreme court upheld a lower court determination that many of these statements were inadmissible under the confrontation clause but left the door open for the circuit court to consider the “forfeiture-by-wrongdoing” exception. State v. Jensen (Jensen I), 2007 WI 26, 299 Wis. 2d 267, 727 N.W.2d 518.

    During the retrial, the circuit court admitted those statements under the forfeiture exception, and the jury convicted the defendant. Later case law, however, invalidated the state’s use of the forfeiture exception. Jensen appealed but lost again, the court of appeals holding that any error was harmless.

    In the ensuing rounds of federal habeas corpus litigation, the federal courts vacated Jensen’s conviction and remanded for a new trial. On remand, the circuit court accepted the state’s position that it was not bound by Jensen I because “a lot has happened” in the ensuing years; the judge ruled that the victim’s statements were now admissible based on later case law. The trial judge then reinstated Jensen’s conviction, reasoning that the evidence in any retrial would be identical to that introduced in the first trial (albeit on a different theory). In an unpublished decision, the court of appeals reversed.

    The supreme court affirmed in a majority opinion authored by Justice Dallet, although it disagreed with the rationale used by the court of appeals. Justice Dallet explained that Jensen I controlled under the law-of-the-case doctrine, not because the court of appeals lacked the power to overrule, modify, or withdraw language from its own opinions or those by the supreme court. Only Jensen I, however, constituted the law of the case; the later federal habeas cases fell outside the doctrine because they were not part of the criminal proceedings as such (see ¶ 15).

    Nor did the current case law on confrontation run athwart of Jensen I.
    Although later U.S. Supreme Court cases “represent developments” in the prevailing confrontation analysis, “neither is contrary to it” (¶ 18). The supreme court extensively discussed both cases, Michigan v. Bryant, 562 U.S. 344 (2011), and Ohio v. Clark, 576 U.S. 237 (2015), in relation to Jensen I.

    Justice Karofsky concurred in the opinion, with the exception of paragraph 35, because “Jensen I completely failed to consider the context in which [the victim] made her statements” (¶ 38). Here that context related to domestic abuse, which Justice Karofsky’s concurrence extensively discussed. Justice Ziegler joined the concurrence.

    Environmental Law

    Promulgation of Administrative Rules – Environmental Impact Statement

    Applegate-Bader Farm LLC v. Wisconsin Dep’t of Revenue, 2021 WI 26 (filed 16 March 2021)

    HOLDINGS: 1) Administrative agencies must consider indirect, as well as direct, environmental effects of proposed rules when deciding whether to prepare an environmental impact statement (EIS). 2) The Department of Revenue (DOR) failed to develop a reviewable record that demonstrates that it made a preliminary investigation and reached a reasonable conclusion about the environmental consequences of its amendment to Wis. Admin. Code section Tax 18.05(1)(d).

    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: Applegate-Bader Farm LLC operates a farm on 11,000 acres of land in southern Wisconsin. Roughly 2,000 of those acres are enrolled in a conservation easement program. The easement is permanent and therefore Applegate is unable to use the land subject to the easement for agricultural purposes. In this declaratory judgment action, Applegate challenged an amendment to Wis. Admin. Code section Tax 18.05(1)(d) excluding wetlands in agricultural conservation easements from the definition of “agricultural use” without preparing an EIS under the Wisconsin Environmental Policy Act (WEPA). (Note: For property tax purposes, agricultural land is assessed according to the income that could be generated from its rental for agricultural use (“use-value” assessment); nonagricultural, undeveloped land is assessed at 50% of its full value (see ¶ 5).)

    The circuit court determined that Applegate did not raise a claim that triggered judicial review of the DOR’s decision not to prepare an EIS. The court of appeals affirmed and in a published decision held that Applegate had not raised a bona fide claim because it alleged only indirect environmental effects. See 2020 WI App 7. In a majority opinion authored by Chief Justice Roggensack, the supreme court reversed.

    The court concluded that “administrative agencies must consider indirect, as well as direct, environmental effects of their proposed rules when deciding whether to prepare an EIS. Therefore, Applegate met its threshold burden even though it alleged only indirect environmental effects of the rule” (¶ 41). For example, Applegate contended that the rule would cause farmers to destroy sensitive wetlands by placing cows within the wetlands to achieve use-value assessment; would cause property owners not to enroll their wetlands in the federal conservation program; and would result in the further destruction, degradation, and loss of wetlands in Wisconsin (see ¶ 11). These allegations describe reasonably foreseeable consequences of the rule change (see ¶ 28).

    On review of the DOR’s decision not to prepare an EIS, the court held that the DOR failed to develop a reviewable record that demonstrates that it made a preliminary investigation and reached a reasonable conclusion about the environmental consequences of its action (see ¶ 41). “[W]hat is not present within this administrative record is any agency discussion of the environmental effects of the rule. Nor is there any discussion, memoranda, e-mail, transcript or other documentation that explains the [DOR]’s rationale behind its negative-EIS decision” (¶ 32).

    “Therefore, the [DOR] failed to comply with WEPA. Accordingly, we reverse the court of appeals’ decision that concludes to the contrary. We remand the WEPA claim to the circuit court with instructions to remand the WEPA matter to the [DOR] for further actions consistent with this decision. Additionally, we stay the enforcement of Wis. Admin. § Tax 18.05(1)(d) pending the [DOR]’s compliance with WEPA” (¶ 41).

    Justice Ziegler did not participate in this decision. Justice Hagedorn filed a dissenting opinion.

    Real Property

    Eminent Domain – Validity of Jurisdictional Offer

    Christus Lutheran Church of Appleton v. Wisconsin Dep’t of Transp., 2021 WI 30 (filed 1 April 2021)

    HOLDING: A jurisdictional offer made by the Wisconsin Department of Transportation (DOT) was “based” “upon” the appraisal of “all property proposed to be acquired” by eminent domain.

    SUMMARY: Christus Lutheran Church is located on property abutting a state highway. The DOT sought to acquire several acres of church property as part of a highway improvement project. The DOT notified Christus that it wanted to initiate negotiations for the purchase of those acres. It furnished an appraisal that had been prepared by a third-party appraiser and offered to purchase the land for the appraised value. It also offered to pay for an appraisal to be conducted by an appraiser of Christus’ choosing. Christus never arranged for its own appraisal.

    The DOT continued its attempt to negotiate a purchase, but the church council would not agree to a voluntary sale. Concerned that the initial appraisal might not accurately reflect the effects of the acquisition, DOT initiated its internal administrative-revision process and secured estimates on a few additional items that the appraiser had considered but did not compensate, for example, severance damages related to the church building’s increased proximity to the right of way, the cost to increase the size of the church’s parking lot to replace the loss of parking spaces, and the cost of moving a retention pond on the property.

    As a result of this additional research, the DOT increased the amount of its offer. Most of the allocations in this final offer were identical or close to the initial appraisal valuation. The DOT did not decrease any of the allocations. But it did add compensation for those items listed above that the appraiser noted but did not compensate.

    Christus did not accept the final offer and told the DOT to proceed with a jurisdictional offer to purchase. The DOT then advised Christus that it was acquiring the property through eminent domain by issuing an award of damages pursuant to Wis. Stat. section 32.05(7). The DOT provided the church with a check equal in amount to its final offer. Christus then commenced an action pursuant to Wis. Stat. section 32.05(5), alleging that the DOT violated the statutory requirement that a jurisdictional offer be “based” “upon” (hereinafter “based upon”) the appraisal of the property, as required by § 32.05(2)(b) and (3)(e).

    (Note: Wis. Stat. section 32.05 provides two methods for landowners to challenge a condemnation once damages have been awarded: 1) a right-to-take action under Wis. Stat. section 32.05(5), and 2) a just compensation proceeding under Wis. Stat. section 32.05(9)-(12). “A right-to-take action, which Christus filed, is used to contest the right of the condemnor to condemn the property described in the jurisdictional offer, for any reason other than that the amount of compensation offered is inadequate and is the only manner in which any issue other than the amount of just compensation … may be raised pertaining to the condemnation of the property described in the jurisdictional offer. [Wis. Stat.] § 32.05(5). The second method, a just compensation proceeding, is when a property owner challenges the amount of compensation in a just compensation trial after an award of damages has been recorded and is directed to defects in the procedure for determining just compensation…” (¶ 23) (internal quotations omitted).)

    In this case, Christus’ challenge was related to the DOT’s right to condemn Christus’ property. Christus asserted that the jurisdictional offer was void because it was not based upon an appraisal, as required by Wis. Stat. section 32.05(2)(b) and (3)(e); and that the appraisal did not value “all property proposed to be acquired,” pursuant to Wis. Stat. section 32.05(2)(a) (see ¶ 24).

    The circuit court granted summary judgment to the DOT. In a published decision, the court of appeals reversed the circuit court; it concluded that the jurisdictional offer was not sufficiently based upon the appraisal because it contained compensation for items not listed in the appraisal. See 2019 WI App 67. In a majority opinion authored by Justice Karofsky, the supreme court reversed the court of appeals.

    The majority concluded that the jurisdictional offer was valid because it was based upon an initial appraisal of all property proposed to be acquired, pursuant to Wis. Stat. section 32.05(2)(a)-(b) and (3)(e) (¶ 2). A mere difference in dollar amounts between the initial appraisal and the jurisdictional offer does not mean that the jurisdictional offer was not based upon the appraisal. See Otterstatter v. City of Watertown, 2017 WI App 76, 378 Wis. 2d 697, 904 N.W.2d 396.

    “‘[B]ased’ ‘upon’ does not mean ‘equal to’” (¶ 30). Using a legal dictionary’s definition of the verb “base” as meaning in part “serving as a foundation for,” the court concluded that adding additional amounts for the parking lot, retention pond, and so on did not make the initial appraisal something other than a foundation for the jurisdictional offer. “To the contrary, the fact that most of the allocations remained unchanged from the beginning to the end of the process demonstrates that the appraisal served as the foundation for the offer” (¶ 31).

    As for the “all property” requirement, the court concluded that Christus failed to identify any portion of its property (as defined in Wis. Stat. chapter 32) that the initial appraisal excluded (see ¶ 34).

    Lastly, the supreme court rejected a requirement enunciated by the court of appeals in this case: “[I]f the DOT, based solely upon its independent review of an appraisal, believes additional statutory items of just compensation warrant inclusion in the jurisdictional offer, it must obtain a new appraisal that substantiates that belief and provides an opinion as to the value of those interests” (¶ 35). Among other things, the supreme court said, this requirement finds no support in the statutory text (see id.).

    Chief Justice Roggensack filed a dissenting opinion that was joined in by Justice Ziegler and Justice R.G. Bradley.

    Zoning – Nonconforming Use – Abandonment

    Village of Slinger v. Polk Props. LLC, 2021 WI 29 (filed 1 April 2021)

    HOLDING: A property owner did not abandon the property’s lawful nonconforming use because the owner continued to use the property in the same manner in which it had been used before the zoning was changed.

    SUMMARY: This case involves a “long-term legal conflict” between the village of Slinger and Polk Properties LLC, which owned an 82-acre parcel of land. In 2004, Polk purchased the land from Melius, who had long used it as a farm. After 2004, Melius continued to farm the land, while Polk worked to convert the land from farming to a residential subdivision. The village agreed to rezone the land and installed the necessary infrastructure for the subdivision by 2008. Polk’s plans stalled in 2008 when the economy went into a recession. Meanwhile, Melius continued to farm the land with Polk’s consent.

    The village eventually took legal action against Polk, resulting in forfeitures, a damages award for lost property tax revenue, and attorney fees. In an unpublished decision, the court of appeals affirmed.

    The supreme court reversed in an opinion authored by Justice R.G. Bradley. “The issue in this case is whether Polk abandoned the nonconforming use of its property after the zoning classification was changed from agricultural to residential use” (¶ 7). The village contended that despite Melius’s “farming,” Polk’s actions to convert the property to residential use constituted an abandonment of its lawful nonconforming use.

    The court disagreed, laying out the applicable law in paragraph 9. “Generally, when the zoning restrictions applicable to a property are changed, property owners may continue to use their property in a manner that was allowed under the prior zoning ordinance.… Although prohibited under the newly applicable zoning ordinance, the existing use becomes a lawful nonconforming use.”

    A case from the 1930s set forth a two-part test to determine if an owner abandoned a lawful prior use: “(1) actual cessation of the nonconforming use, which requires more than just a ‘mere suspension’ of the use; and (2) an intent to abandon the nonconforming use”
    (¶ 10). The circuit court record “irrefutably conveys Polk’s intent to convert the land from agricultural use into a residential subdivision. These acts, however, do not equate to actual cessation of the lawful nonconforming use” (¶ 21).

    Changes made to the property “did not alter or expand the nonconforming use of farming; instead, the changes initiated the development of the property into residential conforming use” (¶ 24). “It would be illogical to hold that reducing the nonconforming use somehow enlarges or expands the nonconforming use. If farming occurred on the property before rezoning, it may continue as a legal nonconforming use until the property owner actually abandons that use by terminating the farming altogether” (¶ 25).

    In sum, Polk did not abandon the lawful nonconforming use because farming occurred “continuously on the property before, during, and after the rezoning” (¶ 27).

    Justice Hagedorn did not participate in this case. Justice Ziegler concurred in the majority’s conclusion but wrote separately to explain that “the voluntary abandonment doctrine is inapplicable in cases where the parties rely upon a nonconforming use statute or ordinance with a definite legislative time limit” (¶ 29).

    State Government

    Public Health Emergencies – Power of Governor to Declare Additional States of Emergency

    Fabick v. Evers, 2021 WI 28 (filed 31 March 2021)

    HOLDING: Governor Tony Evers’ successive declarations of a COVID-19 public health emergency after the expiration of his original 60-day order violated Wis. Stat. section 323.10.

    SUMMARY: On March 12, 2020, Gov. Evers issued an executive order proclaiming that a public health emergency existed in the state of Wisconsin as a result of the coronavirus. The order expired 60 days after it was issued, and the Wisconsin Legislature never extended it. Since then, Gov. Evers has issued multiple successive orders declaring public health emergencies as a result of the virus. The most recent order was issued on the same day that the legislature revoked the previous order.

    In this original action brought by petitioner Fabick challenging the executive orders that extended the public health emergency, the question before the supreme court was whether Gov. Evers exceeded his authority under Wis. Stat. section 323.10 when he proclaimed states of emergency related to COVID-19 after a prior state of emergency, also for COVID-19, had existed for 60 days and was not extended by the legislature.

    In a majority opinion authored by Justice Hagedorn, the court first concluded that a justiciable controversy existed such that declaratory relief would be proper. Gov. Evers contended that the petitioner failed to establish two of the conditions necessary for a justiciable controversy to exist: 1) the controversy must be one in which a claim of right is asserted against one who has an interest in contesting it; and 2) the party seeking declaratory relief must have a legal interest in the controversy, that is, a legally protectable interest (see ¶ 9).

    In this case, the majority concluded that petitioner Fabick, as a taxpayer, had a legal interest to contest governmental actions leading to an illegal expenditure of taxpayer funds (see ¶ 10). Fabick also had a legally protected interest in the controversy (a requirement often referred to in terms of standing) because he had taxpayer standing to challenge the state of emergency itself (see ¶ 11).

    Turning to the merits of the case, the majority looked to Wis. Stat. section 323.10, which specifies that no state of emergency may last longer than 60 days unless it “is extended by joint resolution of the legislature,” and that the legislature may cut short a state of emergency by joint resolution.

    Said the majority: “The statutory language suggests the legislature gave the executive branch expansive, but temporary, authority to respond to emergencies. When the governor employs those powers beyond the time limits imposed by the legislature, or after revocation of those powers by the legislature, he wields authority never given to him by the people or their representatives. We conclude that Wis. Stat. § 323.10’s duration-limiting language forbids the governor from declaring successive states of emergency on the same basis as a prior state of emergency, and that the governor may not reissue a new emergency declaration following legislative revocation of a state of emergency declared on the same basis” (¶ 36).

    The majority rejected Gov. Evers’ argument that each of his declarations was lawful because each was supported by differing on-the-ground conditions related to COVID-19 (see ¶¶ 37-40).

    Justice R.G. Bradley filed a concurring opinion that was joined in by Chief Justice Roggensack. Justice A.W. Bradley filed a dissent that was joined in by Justice Dallet and Justice Karofsky.




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