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    Wisconsin Lawyer
    June 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


    Sleeping Arbitrator – Award Vacated – Wis. Stat. section 788.10

    Loren Imhoff Homebuilder Inc. v. Taylor, 2022 WI App 14 (filed 31 March 2022) (ordered published 27 April 2022)

    HOLDING: In setting aside an arbitrator’s award, the circuit court properly determined that the arbitrator had slept through important parts of testimony and that the respondent homeowners had met their burden by clear and convincing evidence that the award must be vacated under Wis. Stat. section 788.10(1)(d).

    SUMMARY: This is the latest installment of a case that has produced two earlier opinions: Imhoff I (2020 WI App 80), reversed by Imhoff II (see 2022 WI 12). Because of a 3-3 split, the supreme court in Imhoff II directed the court of appeals, on remand, to resolve the “merits” of the dispute for the first time.

    A home-builder company brought suit against owners of a residence (the homeowners) because of disputes that arose during a remodeling project. The case went to arbitration, resulting in an award in favor of the builder. The homeowners moved to vacate the award on the ground that the arbitrator had slept during key parts of the testimony. The circuit court heard conflicting accounts regarding the arbitrator’s behavior and eventually vacated the arbitrator’s award under Wis. Stat. section 788.10(1)(d).

    Addressing the appeal’s merits, the court of appeals, in an opinion authored by Judge Blanchard, held that the circuit court correctly vacated the arbitrator’s award. The first issue concerned the correct standard of review governing the circuit court’s fact finding based on testimony going beyond the arbitral record. After reviewing state and federal authority, the court held that “the clearly erroneous standard applies to our review of facts found by the circuit court in a case such as this one” (¶ 26).

    The factual issues in this case could not be determined on the face of the arbitral record alone (see ¶ 29). “Pertinent circumstances here include the fact that the sleeping issue was raised with the arbitrator before he made the award, there were no clear findings on this issue in the record of arbitration, and the circuit court reasonably determined that there was a need for it to assess the credibility of potential witnesses to alleged sleeping or lack of sleeping” (¶ 30).

    Second, none of the circuit court’s findings were contrary to the great weight and clear preponderance of the evidence. The circuit court’s findings on credibility were significant to the court of appeals on this point (see ¶ 32).

    In this light, the court of appeals applied Wis. Stat. section 788.10(1)(d) to the scenario (see ¶ 43). The court concluded that “the homeowners have shown that the arbitrator failed to perform a fundamental duty required of him as an arbitrator, namely, to remain aware for what the circuit court found were ‘substantial parts’ of the material evidence” (¶ 44). The court distinguished federal cases involving miscalculated damages and misconstrued documents from the “unusual situation here” (¶ 52).

    Criminal Procedure

    Search and Seizures – Warrantless Entry – Threats

    State v. Bourgeois, 2022 WI App 18 (filed 23 March 2022) (ordered published 27 April 2022)

    HOLDING: A warrantless entry by police officers into a hotel room was not supported by exigent circumstances.

    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: Police officers made a warrantless entry into a hotel room, from which they seized a handgun that had been reported stolen. The handgun was used as evidence in the defendant’s trial on charges of theft and threatening law enforcement officers, after the circuit court denied the defendant’s motion to suppress this evidence.

    The court of appeals reversed in part and affirmed in part in an opinion authored by Judge Gundrum. First, the court vacated the theft conviction because the police officers had unlawfully entered the hotel room and seized the stolen handgun. Exigent circumstances did not support the warrantless entry. The court determined that the defendant was not likely to try to flee the hotel room, and nothing suggested the defendant might destroy the evidence (see ¶ 19).

    The court briefly took up the fact that the police officers partially (and unlawfully) opened the door and peered into the room, but even this did not support exigent circumstances. Neither the defendant’s conduct nor his statements were threatening, and no evidence suggested that he was injured or needed medical attention (see ¶ 27).

    Although the unlawful entry justified suppressing the evidence recovered during the hotel room search, it did not fatally taint the defendant’s conviction for threatening police. In no sense was the gun “derivative evidence” as it related to the threat charge (¶ 30).

    Restitution – Payment from Prisoner’s Wages and Gifted Funds

    State ex rel. Ortiz vs. Carr, 2022 WI App 16 (filed 17 March 2022) (ordered published 28 April 2022)

    HOLDINGS: 1) The deduction of more than 25% of the inmate’s prison wages for payment of restitution violated the terms of the judgment of conviction and was unlawful. 2) The Department of Corrections was authorized to deduct 50% of the gifted funds in the inmate’s prison account for payment of restitution.

    SUMMARY: The judgment of conviction (the judgment) for a criminal case in which Victor Ortiz was sentenced to prison states in pertinent part: “Court ordered restitution to be paid from 25% of prison wages.” Ortiz, a prison inmate, brought a complaint in which he argued that the department violated the restitution order in the judgment when the department deducted for payment of restitution 50% of Ortiz’s prison wages and 50% of gifted funds deposited in Ortiz’s prison account. The Secretary of the Department of Corrections dismissed the complaint.

    Ortiz then petitioned the circuit court for a writ of certiorari regarding the department’s decision. The circuit court reversed the department’s decision and concluded that the department acted contrary to law when it deducted more than 25% of Ortiz’s prison wages to pay his restitution obligation. The circuit court did not explicitly rule on the department’s deduction from funds given to Ortiz.

    In an opinion authored by Judge Fitzpatrick, the court of appeals affirmed in part and reversed in part. With respect to the 50% deduction from Ortiz’s prison wages, the court concluded as follows:

    “[The judgment] requires the Department to deduct not more, and not less, than 25% from Ortiz’s prison wages for the payment of restitution. We also conclude that, in these circumstances, the sentencing court has the authority to determine the percentage or amount that is to be deducted from Ortiz’s prison wages to satisfy his restitution obligation, and that the Department is required to adhere to the sentencing court’s order regarding deductions from Ortiz’s prison wages for payment of restitution. It then follows that the Department does not have exclusive authority in that regard. Accordingly, we affirm the circuit court’s order requiring the Department to deduct only the 25% from Ortiz’s prison wages to pay his restitution obligation that was ordered by the sentencing court” (¶ 3).

    As for the deduction from gift funds in Ortiz’s prison account, the court concluded that “the Department has authority to deduct money from a prisoner’s gifted funds for payment of restitution, so long as the Department’s deduction of that money does not conflict with an order from the sentencing court” (¶ 64).

    Before reaching the conclusions above, the court of appeals discussed the potential applicability of 2015 Wis. Act 355 to the issues in Ortiz’s appeal. The judgment in Ortiz’s case was entered in 2010. The Wisconsin Legislature later amended Wis. Stat. section 301.32(1) and created new Wis. Stat. section 973.20(11)(c). See 2015 Wis. Act 355 (effective July 1, 2016). Wis. Stat. section 973.20(11)(c) requires that the sentencing court order the defendant “to authorize the department to collect, from the defendant’s wages and from other moneys held in the defendant’s prisoner’s account, an amount or a percentage the department determines is reasonable for payment to victims.” Additionally, 2015 Wis. Act 355 added the phrase “victim restitution under s. 973.20(11)(c)” as one of the purposes under Wis. Stat. section 301.32(1) for which the department may use money that has been delivered to a prisoner’s account (see ¶ 12).

    Ortiz argued that the provisions of 2015 Wis. Act 355 did not apply to him because he was sentenced before Act 355 became effective. For its part, the department conceded that the provisions of Act 355 did not apply to Ortiz.

    As a result, said the appellate court, “we do not rely on Act 355’s amendment to Wis. Stat. § 301.32(1) and Wis Stat. § 973.20(11)(c) in determining whether the Department has the authority to deduct 50% from Ortiz’s prison wages and gifted funds for the payment of restitution. Likewise, we do not decide the circumstances in which the provisions of § 973.20(11)(c), when those do potentially apply to a case, permit the Department to independently decide the percentage at which money is deducted from a prisoner’s wages or gifted funds for the payment of restitution (generally, the ‘restitution deduction percentage’). More specifically, we do not decide whether § 973.20(11)(c), in effect, allows the Department to override or nullify an order of a sentencing court made previous to, or after, the effective date of § 973.20(11)(c) regarding the restitution deduction percentage” (¶ 14).

    Harassment Injunctions

    Intimidation – Anti-abortion Protests – Freedom of Speech

    Kindschy v. Aish, 2022 WI App 17 (filed 8 March 2022) (ordered published 27 April 2022)

    HOLDING: The circuit court properly issued a harassment injunction against an individual who, while protesting, targeted a specific clinic employee.

    SUMMARY: A circuit court issued a harassment injunction against Aish based on his aggressive encounters with a nurse practitioner who worked at a clinic that provided family counseling. The clinic does not provide abortions. The court held a two-day evidentiary hearing before granting the injunction to protect the nurse practitioner.

    The court of appeals affirmed in an opinion, authored by Judge Gill, that rejected multiple claims of error.

    First, the circuit court properly found that Aish’s conduct was harassing and intimidating within the meaning of Wis. Stat. section 813.125. Essentially the “evidence established a pattern of repeated actions that frightened” the nurse practitioner (¶ 19).

    Second, the circuit court also found that Aish’s behavior “served no legitimate purpose” (¶ 24).

    Finally, Aish’s conduct was not protected by the First Amendment. He was not protesting at a clinic where abortions are provided, and his goal was not “changing the minds of the general public or legislators.” Rather, he “was attempting to convince a private citizen to end her employment with a private organization, by making comments that instilled fear and trepidation” (¶ 27).

    Municipal Law

    Raze Orders – Calculating the Cost of Repairs

    U.S. Black Spruce Enter. Grp. Inc. v. City of Milwaukee, 2022 WI App 15 (filed 15 March 2022) (ordered published 28 April 2022)

    HOLDING: The circuit court applied an erroneous standard in finding that raze orders issued by the city of Milwaukee were reasonable.

    SUMMARY: This case concerns property in Milwaukee that was once the Northridge Mall. The mall was closed in 2003 and, according to testimony developed by the city, the buildings have sat vacant, fallen into disrepair, and been repeatedly targeted by trespassers and vandals. In 2019, the city issued raze orders for the buildings. The owner, U.S. Black Spruce Enterprise Group Inc., challenged these orders before Milwaukee’s Standards and Appeals Commission, which affirmed them. Black Spruce then sought to enjoin the orders before the circuit court, which also upheld them.

    Wis. Stat. section 66.0413(1(b)1 provides that “[i]f a building is old, dilapidated or out of repair and consequently dangerous, unsafe, unsanitary or otherwise unfit for human habitation and unreasonable to repair, [a municipality may] order the owner of the building to raze the building or, if the building can be made safe by reasonable repairs, order the owner to either make the building safe and sanitary or to raze the building, at the owner’s option.” Repairs are presumed unreasonable if their cost exceeds 50% of the value of the building (see ¶ 19).

    The issue in this case was whether the circuit court used the proper calculation in determining the cost of repairs and whether those repairs would be reasonable. The city argued that it had shown that it is unreasonable to repair the buildings because the cost of doing so exceeds 50% of each building’s assessed value. In agreeing with the city, the circuit court considered the cost to repair the buildings to make them compliant with code requirements for developed buildings open to the public.

    In a majority opinion authored by Judge Dugan, the court of appeals concluded that this was an erroneous standard. Rather, the circuit court should have used a standard for determining cost of repairs based on the owner’s current intended use of the buildings as vacant, unoccupied buildings from which the public is excluded (see ¶ 18). Because the circuit court used an incorrect standard in determining the cost of repairs, the court of appeals was unable to determine the reasonableness of the raze orders and it remanded the matter to the circuit court to apply the correct legal standard (see ¶ 38).

    Judge Donald filed a dissenting opinion.

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