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    Wisconsin Lawyer
    September 21, 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

    Administrative Law

    Environmental Law – Authority of Department of Natural Resources – Impact of Wis. Stat. Section 227.10(2m)

    Clean Wis. Inc. v. Wisconsin Dep’t of Natural Resources, 2021 WI 71 (filed 8 July 2021)

    HOLDING: The Wisconsin Department of Natural Resources (DNR) had the explicit authority to impose animal unit maximum and off-site groundwater conditions on the respondent’s Wisconsin Pollutant Discharge Elimination System (WPDES) permit.

    SUMMARY: The DNR imposed an animal unit maximum condition and an off-site groundwater monitoring condition on a WPDES permit it reissued to Kinnard Farms Inc. for Kinnard’s concentrated animal feeding operation (CAFO). At the heart of the dispute is the meaning of Wis. Stat. section 227.10(2m), which was enacted as part of 2011 Wis. Act 21 and which provides that “[n]o agency may implement or enforce any standard, requirement, or threshold … unless that standard, requirement, or threshold is explicitly required or explicitly permitted by statute or by a rule that has been promulgated in accordance with this subchapter.” (Emphasis added.)

    The parties disputed the meaning of “explicitly required or explicitly permitted” in the context of the DNR imposing conditions on Kinnard’s reissued WPDES permit. Kinnard argued that “explicit” means “specific,” and that for the DNR to impose a condition on a WPDES permit, without promulgating a rule, the condition must be listed verbatim in a statute or in the administrative code. Because there is no literal enumeration or verbatim mention of an animal unit maximum or off-site groundwater monitoring condition in the statutes or administrative code, Kinnard contended that Wis. Stat. section 227.10(2m) precludes the DNR from imposing such conditions upon its reissued WPDES permit (see ¶ 22).

    Clean Wisconsin responded that such a reading of the statute is too narrow and overlooks the broad authority granted to the DNR in Wis. Stat. section 283.31(3)-(5) to prescribe such conditions (see ¶ 23).

    In a majority opinion authored by Justice Karofsky, the Wisconsin Supreme Court concluded that the terms “explicit” and “specific” are not synonymous and that “an agency may rely upon a grant of authority that is explicit but broad when undertaking agency action, and such an explicit but broad grant of authority complies with § 227.10(2m)” (¶ 25).

    Having determined that explicit authority can be broad in scope, the majority examined Wis. Stat. section 283.31(3) and (4) to determine whether these provisions granted the DNR the explicit authority to impose the animal unit maximum and off-site groundwater monitoring conditions. It concluded that “the DNR had the explicit authority to prescribe the animal unit maximum condition, pursuant to Wis. Stat. § 283.31(4), in order to assure compliance with effluent limitations, as specified in § 283.31(3)(a), and pursuant to § 283.31(5)” (¶ 36). [“Effluent limitations” are restrictions on the amount of pollutant a point source may release into bodies of water (see ¶ 29).]

    The court also held that “the DNR had the explicit authority to prescribe the off-site groundwater monitoring condition, pursuant to Wis. Stat. § 283.31(4), in order to assure Kinnard’s compliance with effluent limitations and groundwater protection standards, as enumerated in
    § 283.31(3)(a) and (f)” (¶ 39).

    Justice Dallet, joined by Justice A.W. Bradley and Justice Karofsky, joined the majority opinion in full but also submitted a concurrence. Justice Roggensack filed a dissenting opinion that was joined in by Justice R.G. Bradley. Justice R.G. Bradley also filed a dissent.

    Justice Hagedorn did not participate in this case.

    Environmental Law – Authority of Department of Natural Resources – Impact of Wis. Stat. Section 227.10(2m)

    Clean Wis. Inc. v. Wisconsin Dep’t of Natural Resources, 2021 WI 72 (filed 8 July 2021)

    HOLDING: The Wisconsin Department of Natural Resources (DNR) erroneously interpreted the law when it concluded that it had no authority to consider the environmental effects of eight wells when evaluating applications to operate those wells.

    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: As in the case digested immediately above (2021 WI 71), the meaning and application of Wis. Stat. section 227.10(2m) were at the heart of this case. Specifically, the court needed to determine whether this statute prohibits the DNR from considering the potential environmental effects of a proposed high capacity well when such consideration is not required by Wis. Stat. section 281.34(4).

    In Lake Beulah Management District v. DNR, 2011 WI 54, 335 Wis. 2d 47, 799 N.W.2d 73, the court concluded that the DNR has “the authority and the general duty” to consider the environmental impact of proposed high capacity wells, especially when it is presented with evidence of potential environmental harms (¶ 18). Specifically, the Lake Beulah court held that the DNR has both a constitutional duty and the statutory authority to consider the environmental effects of all proposed high capacity wells and that the DNR’s constitutional public-trust duty stems from the legislature delegating to the DNR that obligation via Wis. Stat. sections 281.11 and 281.12 (see ¶ 17).

    In this case the DNR argued that Lake Beulah is no longer good law because Wis. Stat. section 227.10(2m), enacted at roughly the same time that the court decided Lake Beulah, limits an agency’s actions to only those “explicitly required or explicitly permitted by statute or by a rule,” and, for these wells, a formal environmental review was not required under Wis. Stat. section 281.34. Thus, the question presented was whether Wis. Stat. section 227.10(2m) commands a different conclusion here than in Lake Beulah.

    In a majority opinion authored by Justice Dallet, the supreme court held that the DNR erroneously interpreted the law when it concluded that it had no authority to consider the environmental effects of the eight wells at issue in this case (see ¶ 2). Said the majority: “Because the legislature explicitly granted the DNR broad authority to consider the potential environmental impact of proposed high capacity wells, we conclude that the enactment of Wis. Stat. § 227.10(2m) does not change our holding in Lake Beulah. The DNR’s authority to consider the environmental effects of all high capacity wells is consistent with § 227.10(2m) and the DNR erred when it concluded otherwise” (¶ 27).

    Justice R.G. Bradley filed a dissenting opinion that Justice Roggensack joined.

    Justice Hagedorn did not participate in this case.

    Criminal Law

    Self-defense – Jury Instructions – Lesser-included Offenses – Other-acts Evidence

    State v. Johnson, 2021 WI 61 (filed 16 June 2021)

    HOLDINGS: 1) In a murder prosecution, the circuit court erred by not instructing the jury on perfect self-defense and second-degree reckless homicide. 2) The circuit court properly excluded the defendant’s proffer of “other-acts” evidence.

    SUMMARY: The bizarre facts in this case involve a man (the defendant) who “snuck” into his own brother-in-law’s home in the middle of the night to search for child pornography on the brother-in-law’s personal computer. The defendant was armed because he allegedly feared the brother-in-law based on past instances of physical and sexual abuse to himself and others. When the brother-in-law later confronted the defendant while the defendant was searching the computer, the defendant, who allegedly feared for his own life, shot his brother-in-law.

    A jury convicted the defendant of first-degree reckless homicide but acquitted him of burglary and first-degree intentional homicide. In a published decision, the court of appeals reversed, concluding that the trial judge erred in not instructing the jury on perfect self-defense and in failing to also instruct the jury on second-degree reckless homicide. See 2020 WI App 50.

    The supreme court affirmed the court of appeals in a majority opinion authored by Justice Hagedorn. First, the jury should have been instructed on perfect self-defense. The court emphasized that the burden of proof here is exceedingly modest: whether there is “some” evidence to support a claim of perfect self-defense. Credibility is for the jury. Although the defendant could not recall the details of how or why he shot the victim, his assertions of fear were sufficient (notwithstanding his surreptitious entry into the victim’s home and the fact that the victim was unarmed) (see ¶ 21). The court’s discussion is necessarily fact intensive.

    Second, for similar reasons, the jury should have been instructed on second-degree reckless homicide. The “only difference” between first-degree and second-degree reckless homicide is that first-degree reckless homicide requires proof that the defendant acted in “utter disregard of human life” (¶ 28). The court was satisfied that a jury may have found that the defendant did not act with such “utter disregard” (¶ 30).

    Third, the circuit court did, however, properly exercise its discretion by excluding evidence of what the defendant allegedly found on the victim’s computer. The circuit court found that such evidence would be unfairly prejudicial and was thus inadmissible, applying the long-standing three-part test governing other-acts evidence. See State v. Sullivan, 216 Wis. 2d 768, 576 N.W.2d 30 (1998). Nor did the exclusion of such evidence violate the defendant’s right to present a defense.

    Chief Justice Ziegler dissented, joined by Justice Roggensack and, in part, by Justice Karofsky. The dissent feared that “the teaching from the majority’s opinion is that criminal home invaders should go armed, shoot first, and later claim to be afraid so as to avoid conviction” (¶ 39).

    Criminal Procedure

    Search and Seizure – Cell Phone Data – Consent – Exclusionary Rule – “Fitbit” Authentication

    State v. Burch, 2021 WI 68 (filed 29 June 2021)

    HOLDINGS: 1) In a situation in which the defendant’s cell phone data was obtained by one law enforcement agency from another, any “constitutional defect” in the transfer did not warrant exclusion of the data. 2) The circuit court properly admitted information from a “Fitbit” even though it was unaccompanied by expert testimony.

    SUMMARY: The defendant was convicted of murdering a woman. At trial he claimed that another man (the victim’s boyfriend) murdered her. Key evidence against the defendant came from his own cell phone data, which placed him at four different locations connected with the victim’s murder (a bar she visited that night, a place near her residence, the spot where her body was found, and the highway entrance ramp where her clothing was discovered) (see ¶ 8). The state also introduced exculpatory data from the boyfriend’s Fitbit device, which revealed that he moved only 12 steps during the hours in which the murder occurred, thereby undercutting the defendant’s theory (see ¶ 4). The court of appeals certified the defendant’s appeal to the supreme court, which granted certification.

    The supreme court affirmed the conviction in a majority opinion authored by Justice Hagedorn. As to the cell phone data, a different law enforcement agency investigating an apparently unrelated matter had obtained the defendant’s consent to download the data from the phone. The defendant contended that his consent did not reach the data actually collected from the phone, police officers had no right to retain the data, and police officers wrongfully shared it with the agency investigating the murder.

    The majority opinion elides these issues by concluding that regardless of any Fourth Amendment infirmities, suppression of the data was not justified. Construing the state and federal cases, the majority held that “unless evidence was obtained by sufficiently deliberate and sufficiently culpable police misconduct, ‘[r]esort to the massive remedy of suppressing evidence of guilt is unjustified’” (¶ 21). On these facts, the supreme court found no justification for suppressing the cell phone data (see ¶ 26).

    The majority also held that the Fitbit evidence was properly admitted even though the state did not call any expert witnesses to authenticate it. The circuit court properly exercised its discretion and determined that such technology is generally understood by laypeople. In short, there was nothing “‘unusually complex or esoteric’ [about the Fitbit] that the jury needed an expert to understand it” (¶ 31).

    Justice R.G. Bradley concurred in full but wrote separately to address “the application of the Fourth Amendment to warrantless second searches of smartphones without consent” (¶ 35).

    Justice Dallet concurred in part and dissented in part. She disagreed with the majority’s opinion, which “ignores the novel constitutional problems presented by private cell phone information” while undermining the exclusionary rule and the Fourth Amendment (¶ 64). Justice Karofsky joined the opinion; Justice A.W. Bradley joined the discussion of the Fourth Amendment issues but disagreed with the conclusion that the Fitbit evidence was properly admitted.

    Justice A.W. Bradley dissented on grounds that the Fitbit evidence was improperly admitted into evidence. The key issues involved how a Fitbit counts steps and the reliability of such data; an expert witness was needed on these issues.

    “Stipulated Trials” – Guilty Plea Waiver Rule

    State v. Beyer, 2021 WI 59 (filed 15 June 2021)

    HOLDING: “Stipulated trials” that are based wholly on stipulated facts and a stipulated finding of guilt are not permissible in Wisconsin.

    SUMMARY: In this prosecution for possession of child pornography, the defendant, Beyer, filed a motion to discover the state’s computer and its “uncover” software. The circuit court denied the motion. It likewise denied a motion to suppress evidence obtained with a search warrant.

    After the circuit court denied Beyer’s motion to suppress, Beyer indicated that he did not intend to go to trial. Rather, the state and Beyer agreed to a truncated procedure wherein the parties “stipulate[d] and agree[d] that the
    [c]ourt may make a finding of guilt based upon the following set of facts.” The stipulation listed nine facts, which satisfied the elements of possession of child pornography. Stipulation 10 stated that “Jacob Beyer waives his right to a jury trial and agrees to have the [c]ourt find him guilty based upon the above stipulated set of facts” (¶ 6).

    [Editors’ note: Apparently, the defendant did not want to enter a guilty plea, fearing that he would lose his right to appeal the denial of the discovery motion if he pleaded guilty. Ordinarily, a defendant who pleads guilty or no contest waives all nonjurisdictional defects, including constitutional claims. There are limited exceptions to this rule; for example, Wis. Stat. section 971.31(10) provides that an order denying a motion to suppress evidence or a motion challenging the admissibility of a statement of the defendant may be reviewed on appeal notwithstanding the fact that the defendant was found guilty on a plea of guilty or no contest.]

    The circuit court agreed to the “stipulated trial” procedure described above and found the defendant guilty. Beyer thereafter appealed and the court of appeals certified the case to the supreme court, which granted certification. In a majority opinion authored by Justice Roggensack, the supreme court reversed.

    The court first considered whether the “stipulated trial” as described above was actually a trial or whether it was the functional equivalent of a guilty plea. It concluded that the “stipulated trial” more closely resembled a guilty plea than a trial. “The record shows that the parties stipulated to every fact necessary to convict Beyer of possession of child pornography. Furthermore, they stipulated to the circuit court finding Beyer guilty. In turn, all the circuit court was left to do was enter ‘judgment and determine [the] punishment,’ which is the functional equivalent of a guilty plea” (¶ 17). Beyer affirmatively waived the ordinary aspects of a trial: No witnesses were sworn or examined, no additional evidence was introduced, and the parties made no arguments regarding the legal sufficiency of the state’s factual foundation (see id.).

    The court next determined whether “stipulated trials” that also stipulate to the defendant’s guilt are permissible in Wisconsin. The court concluded that they are not. Said the court: “[W]e will not permit parties to stipulate to every fact that satisfies a defendant’s guilt and the defendant’s guilt as well. This is true whether the proffered procedure is agreed upon to preserve appellate review of issues that the defendant would otherwise waive by entering a guilty plea or whether it was employed due to other factors” (¶ 20).

    “Simply put, Wisconsin’s rules of criminal procedure do not expressly permit conditional guilty pleas as the Federal Rules of Criminal Procedure do. The conditional guilty plea rule under the Federal Rules provides as follows: ‘With the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.’ Fed. R. Crim. P. 11(a)(2). The procedure that occurred here was, in essence, an attempt at a conditional guilty plea intended to preserve appellate review of an otherwise waived discovery issue. We have expressly disallowed parties from attempting conditional guilty pleas without a statute so permitting” (¶¶ 21-22).

    In sum, what occurred in the circuit court was neither a guilty plea nor a court trial. Although parties can stipulate to facts for purposes of a criminal trial, trials based on stipulated facts and a stipulated finding of guilt are not permissible in Wisconsin. Accordingly, the court concluded that Beyer cannot be held to the stipulation he entered in circuit court because he entered it relying on a procedure that was invalid. The supreme court remanded the matter to the circuit court so that Beyer can choose whether to enter a plea or proceed to trial (see ¶ 2).

    Justice Hagedorn joined only part of the majority opinion.

    Polygraph Exams – Post-test Interrogation – Voluntariness

    State v. Vice, 2021 WI 63 (filed 16 June 2021)

    HOLDING: An individual’s statements made during a police interrogation after a “failed” polygraph exam were not barred by the inadmissibility of the polygraph test itself; the defendant’s statements were voluntary for purposes of the Fifth Amendment.

    SUMMARY: An individual suspected of sexually abusing a child agreed to take a polygraph exam, as suggested by a police officer. The defendant was not represented by counsel. Several days later, he underwent the exam after signing myriad waivers and, following the exam, he agreed to a “post-polygraph interview” during which he made incriminating statements. The next day he was charged with a felony sexual abuse offense.

    The circuit court suppressed the defendant’s statements as having been made involuntarily. Several rounds of appeals followed. In a 2016 appeal, the court of appeals remanded the matter for factual determinations regarding the statements’ voluntariness.

    On remand, the circuit court again found the defendant’s statements involuntary because of the repeated references to the failed polygraph during the post-exam interview. The state again appealed. The court of appeals ruled that the post-exam interview was “discrete” from the exam, as required, but it affirmed the circuit court’s findings that the statements made were involuntary (¶ 19; see 2020 WI App 34).

    The supreme court affirmed in part and reversed in part in an opinion authored by Justice Karofsky. First, the post-exam “interview” and the polygraph exam itself were discrete events. Case law and Wis. Stat. section 905.065(2) provide that polygraph exams themselves and statements made during the sessions are inadmissible. A post-exam interview that is discrete from the exam itself, however, might be admissible. The pertinent factors are set forth in the case law, as discussed at paragraph 26.

    Next the court held that the defendant’s statements during the post-exam interview were not involuntary (reversing the court of appeals). Involuntariness requires a threshold finding of “coercive police practices.” A reference by a law enforcement officer to the polygraph exam results (for example, “You flunked, let’s talk”) is not “per se coercive” (¶ 37).

    In reversing the court of appeals on this issue, the supreme court separately addressed each of the four factors that the lower court had found offensive (see ¶¶ 39-47). For instance, the failure by police officers to tell the defendant that the polygraph results were inadmissible against him at trial did not render his statements involuntary (see ¶ 47). The supreme court also considered a plethora of other factors (see ¶ 49).

    Justice Hagedorn concurred, joining the majority opinion except for paragraph 25 and footnote 14. Justice A.W. Bradley withdrew from participation.

    Expungement – Violations of Conditions of Probation Imposed by Department of Corrections

    State v. Lickes, 2020 WI 60 (filed 15 June 2021)

    HOLDING: The circuit court erred in expunging the defendant’s convictions because the defendant violated the probation conditions that the Wisconsin Department of Corrections (DOC) imposed.

    SUMMARY: Pursuant to Wis. Stat. section 973.015(1m)(a), for individuals under the age of 25 at the time of an offense, a court “may order at the time of sentencing that [the individual’s] record be expunged upon successful completion of the sentence.” If the individual is placed on probation, Wis. Stat. section 973.015(1m)(b) provides that the individual “has successfully completed the sentence if … [the individual] has satisfied the conditions of probation,” among other things.

    There were two issues before the supreme court in this case: 1) whether the phrase “conditions of probation” in the statute quoted above includes conditions set by the DOC; and 2) whether circuit courts have discretion to determine that a defendant has “satisfied [the defendant’s] conditions of probation” despite having violated one or more of those conditions. The circuit court expunged the defendant’s convictions even though he violated multiple conditions of probation that the DOC had imposed.

    In a published decision, the court of appeals reversed the decision of the circuit court. See 2020 WI App 59. In a majority opinion authored by Justice R.G. Bradley, the supreme court affirmed the court of appeals.

    The majority concluded that the circuit court erred in expunging the defendant’s convictions. The supreme court concluded that the phrase “conditions of probation” in Wis. Stat. section 973.015(1m)(b) means conditions set by both the DOC and the sentencing court (see ¶ 3). It further held that “the statute does not give circuit courts discretionary authority to declare an individual has ‘satisfied [his] conditions of probation’ if the record demonstrates an individual has violated one or more ‘conditions of probation,’ including DOC-imposed conditions” (id.).

    Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Dallet.

    Child Pornography Surcharge – Nonpunitive Sanction – Application to Read-in Offenses

    State v. Schmidt, 2021 WI 65 (filed 18 June 2021)

    HOLDINGS: 1) The child pornography surcharge is a collateral consequence of conviction, and the judge need not inform the defendant about the surcharge during a guilty-plea colloquy. 2) The circuit court correctly imposed the child pornography surcharge for images associated with charges that were dismissed but read in for purposes of sentencing.

    SUMMARY: Defendant Schmidt was charged inter alia with 14 counts of possession of child pornography. As part of a plea agreement, he pleaded guilty to six of the child pornography counts and the state dismissed and read in for purposes of sentencing the remaining counts. At sentencing, the court imposed a lengthy term of imprisonment and also imposed a $500 child pornography surcharge under Wis. Stat. section 973.042(2) for each of the 14 images of pornography for which the defendant was charged.

    In a postconviction motion, the defendant sought to withdraw his guilty plea, arguing that the circuit court failed to adequately inform him during the plea colloquy about the child pornography surcharge, which he alleged was a punishment attaching to his convictions. He also contended that the court could not impose the surcharge for the eight images that formed the basis of the read-in charges. The circuit court denied the motion. This case was before the supreme court on bypass from the court of appeals.

    In a majority opinion authored by Chief Justice Ziegler, the supreme court affirmed. It concluded that the child pornography surcharge is not punitive and therefore the circuit court did not need to inform the defendant about the surcharge during the guilty-plea colloquy (¶ 4). It reached this conclusion by application of the “intent-effects test” from Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). Under this test, if either the statute’s primary function is punitive or the sanction is in effect punitive in character, the sanction must be deemed punitive (see ¶ 23).

    In this case the court agreed with both parties that the primary function of the surcharge is not punitive; rather, it is linked to funding investigations of sexual exploitation of children and possession of child pornography and to making grants to certain public agencies and nonprofits that provide counseling services to victims of sexual assault (see ¶ 28). The court further concluded that an analysis of the seven factors spelled out in Mendoza-Martinez for evaluating whether a sanction is punitive in character leads to a conclusion that the child pornography surcharge is not punitive in effect (see ¶¶ 29-45).

    The court next considered whether the child pornography surcharge can be applied to read-in offenses. Wisconsin Statutes section 973.042(2) provides: “If a court imposes a sentence or places a person on probation for a crime under [§§] 948.05 or 948.12[,] the court shall impose a child pornography surcharge of $500 for each image or each copy of an image associated with the crime. The court shall determine the number of images or copies of images associated with the crime by a preponderance of the evidence and without a jury” (emphasis added). As used in this statute, the term “associated with the crime” means that the image “is connected or brought into relation with the convicted individual’s offense of sexual exploitation of a child or possession of child pornography” (¶ 53).

    “[T]he facts of this case demonstrate that the images of child pornography that formed the basis of Schmidt’s read-in charges of possession of child pornography were connected to and brought into relation with Schmidt’s offense of possession of child pornography. The images that formed the basis of Schmidt’s read-in charges were collected at the same time and found on the same devices as the images that formed the basis of Schmidt’s conviction of possession of child pornography. Such a connection between the images of child pornography that formed the basis of Schmidt’s read-in charges of possession of child pornography and Schmidt’s offense of possession of child pornography was sufficient for the circuit court to impose the child pornography surcharge for those images of child pornography that formed the basis of Schmidt’s read-in charges of possession of child pornography” (¶ 55).

    Accordingly, the supreme court affirmed the circuit court’s judgment imposing the surcharge on all 14 images of child pornography.

    Justice Roggensack joined the majority opinion but wrote separately in a concurrence joined by Justice R.G. Bradley. Justice Hagedorn filed an opinion concurring in part and dissenting in part that was joined in by Justice A.W. Bradley and Justice Dallet.

    Emergency Public Health Orders

    Power of Local Health Officers to Close Schools – Free Exercise of Religion

    James v. Heinrich, 2021 WI 58 (filed 11 June 2021)

    HOLDINGS: 1) A local health officer’s order closing schools during the pandemic exceeded the officer’s powers under Wis. Stat. section 252.03. 2) The order also violated the petitioners’ fundamental constitutional right to the free exercise of religion.

    SUMMARY: The supreme court exercised its original jurisdiction to consider three consolidated cases in which the petitioners challenged the authority of Janel Heinrich, acting in her capacity as a local health officer of Public Health of Madison and Dane County, to issue an emergency order (hereinafter the order) closing all schools in Dane County for in-person instruction in grades 3-12 because of the coronavirus. The petitioners contended that the order exceeds Heinrich’s statutory authority under Wis. Stat. section 252.03 and that the order violates their fundamental right to the free exercise of religion under article I, section 18 of the Wisconsin Constitution. Petitioners in this case included the Wisconsin Council of Religious and Independent Schools and several parishes and religiously affiliated schools.

    In a majority opinion authored by Justice R.G. Bradley, the supreme court concluded that “[b]oth the plain text of Wis. Stat. § 252.03 as well as its legislative and statutory history lead to only one reasonable conclusion: Heinrich exceeded her statutory authority under Wis. Stat. § 252.03 when she issued the Order closing all schools in Dane County” (¶ 31). The statute delineates the powers of local health officers regarding communicable diseases. “Because the legislature expressly granted local health officers discrete powers under Wis. Stat. § 252.03 but omitted the power to close schools, local health officers do not possess that power” (¶ 18).

    As for the petitioners’ constitutional challenge to the order, “[w]hen examining a law alleged to violate an individual’s or organization’s freedom of religious exercise, ‘we have generally applied the compelling state interest/least restrictive alternative test. Under this test, the [individual] or religious organization has to prove (1) that it has a sincerely held religious belief, and (2) that such belief is burdened by the application of the … law at issue. Upon this showing the burden shifts to the state to prove (3) that the law is based upon a compelling state interest (4) that cannot be served by a less restrictive alternative’” (¶ 39) (citations omitted).

    The court concluded that Heinrich’s order fails the strict-scrutiny test: “the application of the Order burdens the Petitioners’ sincerely-held religious beliefs, and Heinrich fails to demonstrate why the Order, although based upon a compelling interest, cannot be met by less restrictive alternatives. Accordingly, Heinrich’s Order violates Article I, Section 18 of the Wisconsin Constitution, which the government may not override, even in a pandemic” (¶ 48).

    Justice Hagedorn filed a concurring opinion; he joined the majority opinion authored by Justice R.G. Bradley except for one footnote in that opinion. Justice Dallet filed a dissenting opinion that was joined in by Justice A.W. Bradley and Justice Karofsky.

    Education Law

    Transportation Benefits – Private Schools Affiliated With Same Religious Denomination

    St. Augustine Sch. v. Taylor, 2021 WI 70 (filed 2 July 2021)

    HOLDING: In determining whether schools are “affiliated with the same religious denomination” pursuant to Wis. Stat. section 121.51, which deals with transportation benefits, the Wisconsin Superintendent of Public Instruction is not limited to consideration of a school’s corporate documents exclusively. In conducting a neutral and secular inquiry, the superintendent may also consider the “professions” of the school with regard to the school’s self-identification and affiliation, but the superintendent may not conduct any investigation or surveillance with respect to the school’s religious beliefs, practices, or teachings.

    SUMMARY: In Wisconsin, private schools are entitled to receive public funding to transport children to their schools, but only one affiliated school per “religious denomination” can receive the funding in each “attendance area.” See Wis. Stat. §§ 121.51, 121.54. In this case, plaintiff St. Augustine School, which describes itself on its website “as an independent and private traditional Roman Catholic School,” applied for these transportation benefits. In its application, St. Augustine asserted that it is unaffiliated with the Archdiocese of Milwaukee.

    The superintendent denied the application on the ground that another school of the same religious denomination within the same attendance area was already receiving the benefit. That other institution was St. Gabriel Catholic School, which is a Catholic school affiliated with the Archdiocese of Milwaukee. The superintendent indicated that she could not determine St. Augustine’s affiliation with a religious denomination from its corporate documents, but she ultimately concluded that St. Augustine School is – like St. Gabriel School – affiliated with the Roman Catholic denomination; she reached that conclusion by looking at information provided by St. Augustine School on its own website.

    St. Augustine responded to the adverse decision from the superintendent by filing suit in state court against the superintendent and the school district in which St. Augustine is located, asserting a claim pursuant to 42 U.S.C. § 1983 that its rights under the Free Exercise and Establishment Clauses of the First Amendment were violated; it also claimed that the superintendent and the school district violated Wis. Stat. section 121.51(1).

    The defendants removed the case to federal court, where a federal judge granted summary judgment to the defendants on the federal claims. This federal litigation is now pending before the U.S. Court of Appeals for the Seventh Circuit.

    The case was before the Wisconsin Supreme Court to resolve a question certified to it by the Seventh Circuit: “For purposes of determining whether two or more schools are ‘private schools affiliated with the same religious denomination’ for purposes of Wis. Stat. [§] 121.51, must the state superintendent rely exclusively on neutral criteria such as ownership, control, and articles of incorporation, or may the superintendent also take into account the school’s self-identification in sources such as its website or filings with the state” (¶ 1).

    In a majority opinion authored by Justice A.W. Bradley, the supreme court concluded that in determining whether schools are “affiliated with the same religious denomination” pursuant to Wis. Stat. section 121.51, “the Superintendent is not limited to consideration of a school’s corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school’s self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school’s religious beliefs, practices, or teachings” (¶ 55).

    An investigation or surveillance with respect to religious beliefs, practices, or teachings would implicate the Establishment Clause’s “entanglement doctrine,” which prohibits the excessive entanglement of the state in religious matters (¶ 42).

    Said the majority: “As long as the Superintendent considers the school’s professions and not its practices, the Superintendent remains on the correct side of the line. In other words, a superintendent attempting to determine that a school is affiliated with a specific religious denomination may rely on any evidence of affiliation between the school and a denomination that does not violate the First Amendment and that does not inquire into the religious beliefs of the school or the denomination” (¶ 49).

    Justice Hagedorn, though joining the majority, filed a concurring opinion. Justice Roggensack also filed a concurrence. Justice R.G. Bradley filed a dissenting opinion that was joined in by Chief Justice Ziegler.

    Family Law

    Enforcement of Divorce Judgments – Statute of Repose

    Schwab v. Schwab, 2021 WI 67 (filed 22 June 2021)

    HOLDING: The statute of repose did not bar enforcement of the parties’ marital settlement agreement.

    SUMMARY: The parties in this case, Kathy Siech and Paul Schwab, divorced in 1992. The circuit court incorporated into the divorce judgment the parties’ marital settlement agreement, in which Paul promised to pay Kathy one-half of his pension “when and if” that benefit first became available to him. This is a military pension, and Paul could not begin receiving the pension benefits until his 60th birthday. Twenty-one years after the divorce, Paul turned 60 and began receiving his pension; however, he refused to pay Kathy her share.

    Kathy sought to judicially enforce their agreement in a contempt action. Paul responded that her action was barred by a 20-year statute of repose. This statute, which is codified at Wis. Stat. section 893.40, bars any “action upon a judgment or decree of a court” brought more than “20 years after the judgment … is entered.” The circuit court concluded that it had the authority to order Paul to comply with the marital settlement agreement. However, in a published decision, the court of appeals reversed the circuit court, holding that Wis. Stat. section 893.40 barred Kathy’s action. See 2020 WI App 40.

    In a majority opinion authored by Justice Dallet, the supreme court reversed the court of appeals. It held that “[Wis. Stat. section] 893.40 does not bar Kathy’s action because it was impossible for Paul to perform on his promise – and therefore for Kathy to enforce that promise – until after the statutory period of repose had run” (¶ 1). The “when and if” condition also made it impossible for Kathy to judicially enforce the agreement during those first 21 years following the divorce because that action would not be ripe until Paul’s pension became available.

    Said the majority: “It would be unreasonable to interpret [Wis. Stat. section] 893.40 as barring enforcement now of a marital property division that was impossible to enforce during the 20 years prior” (¶ 10). Barring enforcement of the marital settlement agreement would also be unreasonable “because it would render Paul’s promised pension division illusory and deny Kathy the benefit she bargained for in the marital settlement agreement” (¶ 11).

    The majority stated that its conclusion in this case comports with the purpose of Wis. Stat. section 893.40. “The purpose of a statute of repose is to provide defendants relief, or ‘repose,’ from the uncertainty of potential liability arising from some long-ago act by extinguishing all causes of action once the statutory period has lapsed” (¶ 13).

    These concerns were not present in this case. “No uncertainty hangs over Paul. He voluntarily promised to pay Kathy ‘when and if’ his pension became available to him. Although that event was not possible until 21 years later, once it occurred, his liability to Kathy was certain. As for stale evidence concerns, a divorce judgment incorporating a settlement agreement uniquely obviates those concerns as the only evidence necessary to litigate that liability is the agreement itself,” which circuit courts are required to retain for at least 30 years after entry of a judgment of divorce (¶ 14).

    Chief Justice Ziegler filed a dissenting opinion that was joined in by Justice R.G. Bradley and Justice Hagedorn. Justice R.G. Bradley also filed a separate dissent.

    Juvenile Law

    CHIPS – TPRs

    Eau Claire Cnty. Dep’t of Human Servs. v. S.E., 2021 WI 56 (filed 10 June 2021)

    HOLDING: In a termination of parental rights (TPR) action, 1) the circuit court can apply the “15 out of 22 months” timeframe codified in the 2018 version of Wis. Stat. section 48.415(2)(a)3., 2) that timeframe began to run when the parent received written notice accompanying a 2016 child in need of protection or services (CHIPS) order, and 3) the parent’s due-process rights are not violated by this statutory interpretation.

    SUMMARY: In 2016, the Eau Claire County Department of Human Services (the county) removed a young child from the care of his mother, S, because her drug addiction left her unable to properly care for him. In the two years that followed, S was arrested on “numerous occasions” in connection with her drug use.

    In 2018 the county filed a petition to terminate S’s parental rights to the child, citing her abandonment and the continuing CHIPS order as grounds. At a 2019 hearing, the circuit court ruled that it would apply a version of Wis. Stat. section 48.415(2)(a)3. as amended in 2018, which, as described below, was a much easier burden for the county. The circuit court adjourned the TPR trial to permit S to appeal this nonfinal order. In a published decision, the court of appeals granted S’s appeal and affirmed the circuit court’s ruling. See 2020 WI App 39.

    The supreme court affirmed the court of appeals in an opinion authored by Justice R.G. Bradley. The opinion reviews CHIPS and TPR actions generally and the 2018 amendments in detail. The court held that “(1) the ‘15 out of 22 months’ timeframe, as codified in the 2018 amended version of Wis. Stat. § 48.415(2)(a)3. (2017-18), began to run when [S] received written notice accompanying the initial 2016 CHIPS order; and (2) starting the ‘15 out of 22 months’ timeframe in 2016 does not violate [S’s] due process rights” (¶ 5).

    Before the amendment, the factfinder had “to look forward nine months from the date of the TPR factfinding hearing to determine whether the parent had a ‘substantial likelihood’ of meeting the conditions established for the safe return of her child” (¶ 18). The 2018 version “replaced the forward-looking nine-month period with a ‘15 of the most recent 22 months’ timeframe. Only if the child has been placed outside the home for less than 15 of the most recent 22 months may the factfinder consider whether there ‘is a substantial likelihood that the parent will not meet [the] conditions as of the date on which the child will have been placed outside the home for 15 of the most recent 22 months.’ If the child has been placed outside the home for more than 15 of the most recent 22 months, the third subpart is satisfied by evidence proving that the parent failed to meet the conditions established for the safe return of the child” (¶ 19).

    Although S did not receive written notice of the 2018 version until 2018 (of course), the new timeframe nonetheless began to run in 2016 when S received statutory written notice with the first CHIPS order (see ¶ 29).

    Justice Dallet dissented, joined by Justice A.W. Bradley and Justice Karofsky. In their view, application of the 2018 timeframe violates both “the heightened statutory notice requirement” in TPR cases and S’s due-process rights (¶ 42).

    Motor Vehicle Law

    Implied Consent – Incapacitated Driver Provision Unconstitutional – Good-faith Exception to Exclusionary Rule Applied

    State v. Prado, 2021 WI 64 (filed 18 June 2021)

    HOLDINGS: 1) The incapacitated driver provision of Wisconsin’s implied-consent law is unconstitutional. 2) The “good-faith” exception to the exclusionary rule applied in this case and thus the evidence obtained from the defendant’s blood draw need not be suppressed.

    SUMMARY: This case involved a facial challenge (see ¶ 38 n.12) to the constitutionality of the incapacitated driver provision of Wisconsin’s implied-consent law. This statute provides as follows: “A person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection ….” Wis. Stat. § 343.305(3)(b). “As a result, if a law enforcement officer has probable cause to believe that an incapacitated person has violated the OWI statutes, the statute indicates that the officer may take blood from the person for testing without a search warrant” (¶ 25).

    In this case, defendant Prado was charged with homicide by intoxicated use of a vehicle and other crimes arising out of a car accident. The defendant sought to suppress the results of a blood test that had been administered at the officer’s request while the defendant was unconscious and being treated at a hospital.

    The officer did not apply for a search warrant, and he testified that it did not occur to him to do so because the incapacitated driver provision of the implied-consent law applied in this situation. The defendant argued that the incapacitated driver provision amounts to an unconstitutional per se exception to the warrant requirement in situations in which a driver is unconscious (see ¶ 11). The circuit court agreed and granted the motion to suppress; the court declined to apply the good-faith exception to the exclusionary rule to save the evidence from suppression (see ¶ 12).

    In a published decision, the court of appeals agreed with the circuit court that the incapacitated driver provision is unconstitutional; however, it held that the state met its burden of showing that the officer who ordered the warrantless blood draw acted in objective good-faith reliance on the incapacitated driver provision and thus the blood test results need not be suppressed. See 2020 WI App 42.

    In a majority opinion authored by Justice A.W. Bradley, the supreme court affirmed the court of appeals. It concluded that “the incapacitated driver provision is unconstitutional beyond a reasonable doubt. The provision’s ‘deemed’ consent authorizes warrantless searches that do not fulfill any recognized exception to the warrant requirement and thus the provision violates the Fourth Amendment’s proscription of unreasonable searches” (¶ 54).

    Though searches may be conducted with consent, the constitution requires actual consent – not “deemed” consent. Consent for Fourth Amendment purposes must be unequivocal and specific. “Consent that is ‘deemed’ by the legislature through the incapacitated driver provision is neither of these things” (¶ 46).

    Despite holding that the incapacitated driver provision of the implied-consent law is unconstitutional, the court nonetheless concluded that “under the facts of this case[,] law enforcement drew Prado’s blood in reasonable reliance on a statute that had not been determined to be unconstitutional. Accordingly, the good faith exception to the exclusionary rule applies and the evidence resulting from the draw of Prado’s blood need not be suppressed” (¶ 69).

    The purpose of the exclusionary rule is to deter misconduct by law enforcement officers. See State v. Kerr, 2018 WI 87, 383 Wis. 2d 306, 913 N.W.2d 37. The court declined the defendant’s invitation to redefine the breadth of the exclusionary rule so as to apply it “not as a deterrent to police misconduct, but as a remedy in and of itself to constitutional violations” (¶ 66).

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

    Municipal Law

    Cooperative Plans – Boundaries – Standing

    City of Mayville v. Wisconsin Dep’t of Admin., 2021 WI 57 (filed 11 June 2021)

    HOLDINGS: 1) The city had standing to challenge a cooperative plan entered into by a town and village with the Department of Administration’s (DOA’s) approval. 2) Because the plan changed the city’s boundary lines, statutes required that the city should have been made a party to the plan.

    SUMMARY: This case involves a town, a village, and a city, Mayville, all located in Dodge County. The village is completely surrounded by the town’s territory. Mayville also is surrounded by the town’s territory, but it does not share a border with the village. Faced with difficulties, the town and the village decided to consolidate their territories through a cooperative plan that required approval by the DOA. The town and the village proposed multiple iterations of plans that Mayville opposed even though it was not a party to the plan. Finally, the DOA approved a plan between the town and the village.

    Mayville filed a petition for judicial review under Wis. Stat. section 227.52. The circuit court ruled that Mayville had standing to bring the action. It further ruled that a cooperative plan could not be used to consolidate two municipalities; thus, the court reversed the DOA but stayed the action pending appeal (see ¶ 11). In a published decision, the court of appeals affirmed on modified grounds. See 2020 WI App 63.

    The supreme court unanimously affirmed in an opinion authored by Justice Roggensack. First, Mayville had standing to bring this action. The plan effectively extinguished various statutorily granted rights held by Mayville, especially regarding expansion. Because Mayville’s “legally protectable interests” were adversely affected by the plan, Mayville had standing to challenge the DOA’s approval of the plan (¶ 23).

    The court next turned to the details of the plan itself. The court quoted at length and discussed pertinent provisions of the plan in light of the applicable statutes. “We conclude that the Plan includes a type of boundary change that is described in Wis. Stat. § 66.0307(2)(b) and that the Plan sets conditions to effect that change as contemplated by § 66.0307(2)(c). Accordingly, before such a change could be effective, Mayville was required to be a party to the Plan. Because it was not, the Department erred as a matter of law in approving the Plan” (¶ 36).

    Torts

    Malicious Prosecution – Favorable Termination Element

    Monroe v. Chase, 2021 WI 66 (filed 22 June 2021)

    HOLDING: A party’s withdrawal of a prior proceeding “may” satisfy the “favorable termination” element of the tort of malicious prosecution.

    SUMMARY: This lawsuit for malicious prosecution arises out of a contentious divorce case between Chase and Monroe. After their divorce, Chase filed a termination of parental rights (TPR) action against Monroe, alleging Monroe had abandoned their child. Chase ultimately dismissed this action shortly before a scheduled hearing (see ¶ 6). Monroe, meanwhile, had filed this malicious prosecution action against Chase, alleging that the TPR action was baseless and false. Chase moved the court to dismiss the malicious prosecution claim on grounds that his dismissal of the TPR meant that Monroe could not establish an element of the claim, namely, that the former proceedings were terminated in Monroe’s favor. The circuit court agreed and dismissed Chase’s tort claim. The court of appeals certified Chase’s appeal to the supreme court, which granted certification.

    The supreme court reversed in a unanimous opinion authored by Justice Karofsky. The sole issue before the court was whether the withdrawal of a prior proceeding can ever satisfy the “favorable-termination” element, which is one of six elements comprising the tort. The court held that it can, depending on the facts. The opinion examines Wisconsin case law on the favorable-termination element on which the trial judge relied (see ¶ 12). The court clarified that, read “in context,” a footnote from an earlier case did not support the trial judge’s decision (¶ 19). The supreme court adopted the Restatement (Second) of Torts section 674 comment j because it was “consistent with our cases.”

    Thus, according to both the case law and the Restatement, “whether a withdrawal constitutes a favorable termination depends upon the circumstances of the withdrawal. In this case, it is undisputed that Chase’s withdrawal was a final termination of the second lawsuit. Whether it was favorable to Monroe, however, depends upon the circumstances of the withdrawal” (¶ 22). The supreme court remanded the matter for a factual determination regarding the withdrawal of Chase’s TPR claim.


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