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    Wisconsin Lawyer
    December 09, 2022

    Court of Appeals Digest

    In this column, Profs. Daniel D. Blinka and Thomas J. Hammer summarize select published opinions of the Wisconsin Court of Appeals. Full-text decisions are linked below.

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Law

    “Len Bias” Law – Aiding and Abetting Commission of Crime

    State v. Hibbard, 2022 WI App 53 (filed 21 Sept. 2022) (ordered published 26 Oct. 2022)

    HOLDINGS: 1) The evidence was sufficient to prove that the defendant committed first-degree intentional homicide (a “Len Bias law” violation) as an aider and abettor of the crime. 2) Wis. Stat. section 939.05(2)(b) is not unconstitutionally vague as applied in this case.

    SUMMARY: This appeal involved Wisconsin’s Len Bias law, which makes the “manufacture, distribution or delivery” of a controlled substance a first-degree reckless homicide offense if “another human being uses the controlled substance … and dies as a result of that use.” Wis. Stat. § 940.02(2)(a). It also involved Wis. Stat. section 939.05(2)(b), which makes a person liable for a criminal offense if the person “[i]ntentionally aids and abets” commission of the offense.

    Defendant Hibbard was convicted of first-degree reckless homicide as a party to the crime (aider and abettor) as a result of his involvement in a drug deal that led to the death of his daughter (Taralyn) from an overdose of heroin and fentanyl. The evidence demonstrated that Hibbard drove his daughter to the seller’s (Poe’s) apartment knowing that the purpose of the trip was for the daughter to purchase heroin from Poe. After the sale, the daughter took the drugs to the defendant’s home and into the room where she was found dead the next day.

    On appeal, Hibbard contended that the evidence was insufficient to prove that he aided and abetted Poe’s delivery of the drugs to his daughter. He argued that, at most, he assisted his daughter in buying drugs – not Poe in selling them – and that his exclusively “buyer-side conduct” was insufficient to show that he aided in the delivery of the heroin. In an opinion authored by Judge Neubauer, the court of appeals disagreed.

    Said the appellate court: “Hibbard’s repeated characterization of his actions as ‘buyer-side conduct’ is inaccurate. It rests on the fundamentally incorrect premise that his conduct could only aid Poe or Taralyn, but not both. In picking up Taralyn – who could not drive – and driving her to meet Poe, Hibbard assisted both Poe’s delivery of heroin and his daughter’s acquisition of it. That Hibbard did not communicate directly with Poe, and may have wanted to obtain some of the drugs for his own use, does not change the fact that his conduct assisted Poe in delivering the drugs to Taralyn. Hibbard’s conduct falls within the text of the statutes” (¶ 20).

    Hibbard also argued that the interplay between Wis. Stat. section 940.02(2)(a) and Wis. Stat. section 939.05(2)(b) renders the former statute unconstitutionally vague as applied to aiders and abettors (see ¶ 22). The court construed this argument as an “as-applied” attack on the statute and rejected it. The court concluded that “intentionally aids and abets” in Wis. Stat. section 939.05(2)(b) is not unduly vague as applied in this case (see ¶ 31).

    “First, Wis. Stat. § 939.05(2)(b) requires that the conduct at issue have a specific purpose – assisting another in committing a criminal offense. Applying that general purpose to this case, the statutes informed Hibbard that any conduct he undertook to assist Poe in the manufacture, distribution, or delivery of heroin exposed him to liability for first-degree reckless homicide if someone died as a result of using it” (¶ 32).

    “Second, § 939.05(2)(b) applies only to assistance that is ‘intentionally’ rendered – that is, only if the person who engages in the assisting conduct knows that another person is committing a crime or intends to do so, and intends their conduct to assist in the commission of the crime. See WIS JI— CRIMINAL 400. As applied here, the statutes informed Hibbard that, because he knew Poe intended to sell heroin to Taralyn, anything he did to facilitate that sale with the intent that the sale occur could subject him to liability for a homicide resulting from a person’s use of the drugs that were sold” (id.).

    Education Law

    School Districts – Bans from Property

    Klosterman v. School Dist. of Omro, 2022 WI App 54 (filed 28 Sept. 2022) (ordered published 26 Oct. 2022)

    HOLDING: A school board reasonably exercised its power to ban an individual from the school district’s property even after he had resigned his position as a teacher for the district.

    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: The plaintiff had been employed by the school district as a teacher. He was placed on administrative leave after it was learned that he had engaged in “physical contact” with middle-school students. (The conduct dated back to 2018.) The school board also banned him from district property. The ban continued after the plaintiff resigned his teaching job (see ¶ 3).

    The plaintiff filed this declaratory-judgment action seeking to have the ban declared unlawful (see ¶ 20). The circuit court granted summary judgment in favor of the school district.

    The court of appeals affirmed in a majority opinion authored by Judge Gundrum. The court began the opinion by emphasizing that the parties’ focus on Wis. Stat. section 120.13(35), which pertains to “buildings” operated by a school district, was incorrect. The pertinent statutes “provide that a school board has the power to do ‘all things reasonable to promote the cause of education’ and the duty to care for, control and manage the property and affairs of the District, and we are required to broadly construe such already broad powers and duties so as to authorize ‘any’ school board action that is within the ‘comprehensive meaning’ of the terms of such powers and duties, so long as the action – here, the banning of an individual from District property – is not prohibited by state or federal laws” (¶ 25).

    The board needed neither a criminal charge nor a revocation of the plaintiff’s teaching license to ban the plaintiff from its property (see ¶¶ 31-32). “[T]he record before the school board was replete with evidence supporting the ban” (¶ 33).

    Judge Grogan dissented on the grounds that the ban was unreasonably broad and was based on noncurrent information (see ¶ 43).

    » Cite this article: 95 Wis. Law. 52 (December 2022).


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