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    Wisconsin Lawyer
    February 07, 2023

    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

    Administrative Law

    “Siting Law” – Political Subdivisions – Judicial Review – “Credible” Facts

    Town of Ledgeview v. Livestock Facility Siting Rev. Bd., 2022 WI App 58 (filed Nov. 30, 2022) (ordered published Dec. 27, 2022)

    HOLDING: Under the “siting law,” a political subdivision can deny an application that is not based on credible information as to compliance with state standards.

    SUMMARY: Ledgeview Farms LLC (the farm) applied to the town of Ledgeview for permits to expand its livestock facility. The town held a public hearing and denied the application on multiple grounds, including the farm’s “extensive history” of past noncompliance with state and federal laws, material misrepresentations, and refusal to permit an inspection (¶ 5). The farm appealed, and the Livestock Facility Siting Review Board affirmed on one of the multiple grounds. Both the farm and the town sought judicial review. The circuit court affirmed the board’s denial of the application.

    The court of appeals affirmed the circuit court in an opinion authored by Judge Grogan. The appeal centered on the board’s determination as reviewed under the principles set forth in Tetra Tech EC Inc. v. Wisconsin Department of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, and the plain meaning of the governing statutes.

    The opinion canvassed the 2004 siting law, which is a “complex” amalgam of statutes and sundry administrative regulations (¶ 13). An earlier supreme court opinion on the siting law, Adams v. State Livestock Facilities Siting Review Board, 2012 WI 85, 342 Wis. 2d 444, 820 N.W.2d, “left unaddressed” when a “political subdivision can deny a permit application . . . based on a failure” to comply with statutory and administrative regulations (¶ 20).

    In the present case the court of appeals held that “a harmonized reading of the Siting Law and Wis. Admin. Code ch. ATCP 51 requires that credibility determinations be made based on both the application materials and additional clear and convincing documentation and information in the record – whether it supports the application materials or does not. Only if the application satisfies all requirements in Wis. Stat. § 93.90(4)(d) and Wis. Admin. Code §§ ATCP 51.30 and 51.34 do we look to the exceptions enumerated in Wis. Stat. § 93.90(3)(a)” (¶ 31).

    On the record before it the court upheld the board’s determination, which was based on violations tied to “the state standard for runoff management” (¶ 35).

    Criminal Procedure

    Jury Instructions – Theories of Liability – “Len Bias” Law

    State v. Harvey, 2022 WI App 60 (filed Oct. 6, 2022) (ordered published Dec. 27, 2022)

    HOLDINGS: The principal holding in this case is that it was erroneous to instruct the jury on a theory of liability that was unsupported by the evidence; however, that error did not violate due process when the jury also was instructed on a theory that was supported by sufficient evidence. Additional holdings are summarized in the text that follows.

    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: Defendant Dreama Harvey appealed a judgment convicting her of one count of first-degree reckless homicide by delivery of heroin (a so-called Len Bias law violation) (count 1) and a separate charge of delivery of heroin (count 2). The state presented evidence at trial that Harvey delivered heroin to D.B. and that D.B. died later that same night as a result of ingesting that heroin. As for count 2, the state presented evidence that Harvey delivered a second packet of heroin to D.B. before his death but that D.B. did not ingest that heroin. On appeal the defendant raised several issues as described below. In an opinion authored by Judge Fitzpatrick, the court of appeals affirmed.

    The defendant raised multiple challenges to the substance of the jury instructions the circuit court gave with regard to the Len Bias count (count 1). Those instructions informed the jury that it could convict the defendant if it found that she directly delivered to D.B. the heroin that resulted in D.B.’s death. The instructions also gave the jury the option of convicting the defendant if it found that D.B. aided and abetted another person in the delivery of heroin to D.B. (hereinafter “party to a crime”) or if the defendant was one participant in the chain of delivery of heroin to D.B. (hereinafter “chain of delivery”).

    Although there was sufficient evidence to convict the defendant on a theory that she delivered the heroin directly to D.B., there was no evidence to support the party-to-a-crime or chain-of-delivery theories of liability. In a general verdict the jury convicted the defendant on count 1 and count 2. On appeal, the defendant claimed that the circuit court violated her right to due process by instructing the jury on two methods of proof that were not supported by sufficient evidence.

    The court of appeals concluded that although the circuit court erroneously instructed the jury on two methods of proof (party to a crime and chain of delivery) that were not supported by sufficient evidence, that error did not violate the defendant’s right to due process because the jury was also instructed on a method of proof (direct delivery of heroin to D.B.) that was supported by the evidence (see ¶ 4).

    To reach this conclusion, the court had to deal with a conflict between decisions of the Wisconsin Supreme Court and the U.S. Supreme Court. In State v. Crowley, 143 Wis. 2d 324, 422 N.W.2d 847 (1988), the Wisconsin Supreme Court concluded that a conviction resting on two potential factual methods of proof will not be upheld under federal due-process principles if one theory is supported by sufficient evidence and the other is not (see ¶ 43).

    However, in Griffin v. United States, 502 U.S. 46 (1991), the U.S. Supreme Court held that although a jury instruction is erroneous if it includes methods of proof that are not supported by sufficient evidence, such an error does not violate due process when the jury is also instructed on a theory that is supported by sufficient evidence (see ¶ 42). In the current case the court of appeals concluded that “Crowley has been abrogated by Griffin” (¶ 43).

    With regard to other issues raised by the defendant, the court concluded that as a whole the jury instructions that referred to another actor would not lead a reasonable jury to conclude that the jury could convict the defendant if the other actor alone delivered the heroin without the defendant’s involvement (see ¶ 32).

    The court of appeals also rejected the defendant’s argument that the judgment of conviction must be reversed because the circuit court altered the written instructions given to the jury after the jury instruction conference and without informing counsel of the changes, contrary to a directive of the supreme court. On this issue, the court of appeals said, the defendant’s argument “fails from a factual standpoint” (¶ 4).

    Moreover, even if the change violated the supreme court’s directive that circuit courts of this state must inform counsel of changes they make to jury instructions following the instructions conference [see State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991)], “there has been no showing by [defendant] Harvey that her substantial rights have been affected by the purported error” (¶ 58). Lastly, the court of appeals rejected the defendant’s claim that the sentence imposed by the circuit court was unduly harsh (see ¶ 63).

    OWI With Minor Passenger in Vehicle – Minor Passenger’s Right to Seek Restitution

    State v. Gahart, 2022 WI App 61 (filed Nov. 2, 2022) (ordered published Dec. 27, 2022)

    HOLDING: A minor passenger in a vehicle driven by one who is under the influence of intoxicants (OWI) is a “victim” for purposes of the restitution statute.

    SUMMARY: Defendant Gahart was convicted of second-offense OWI with a minor passenger under the age of 16 years in the vehicle. The narrow question presented by this appeal was whether the minor passenger and her mother were “victims” of this crime and thus entitled to seek restitution.

    In an opinion authored by Judge Neubauer, the court of appeals concluded that the minor child and her mother were “victims” as defined by Wisconsin’s restitution statutes. Wis. Stat. section 950.02(4)(a)1. defines a victim as “[a] person against whom a crime has been committed.” If a child is a victim, the child’s parent is also a “victim” if that parent was “nonoffending” (that is, did not commit the crime). See Wis. Stat. § 950.02(4)(a)2., (b).

    In the case of OWI with a minor passenger in the vehicle, the state must prove as an element of the offense that a minor passenger was in the vehicle driven by the OWI defendant. “By directing his daughter to ride in a vehicle he was too intoxicated to drive safely, Gahart committed a crime against her” (¶ 13). The court of appeals rejected the defendant’s argument that the crime he committed was a victimless crime (see id.).

    Because the minor child and her mother were victims of the defendant’s crime, they have a right to seek restitution. The court of appeals remanded this case to the circuit court to determine whether an award of restitution for claimed damages is appropriate (¶ 14).

    Guardianships and Protective Placements

    Guardianship and Protective Placement Hearings – Right of Ward to Be Present

    Racine Cnty. v. P.B. (In re Guardianship & Protective Placement of P.B.), 2022 WI App 62 (filed Nov. 30, 2022) (ordered published Dec. 27, 2022)

    HOLDING: The circuit court lacked competency to rule on Racine County’s petition for guardianship and protective placement because the county failed to ensure that the proposed ward was afforded an opportunity to attend her final hearing in person and her guardian ad litem did not waive her attendance.

    SUMMARY: Racine County filed a petition for guardianship over P.B. under Wis. Stat. chapter 54 and a petition for protective placement under Wis. Stat. chapter 55. The final hearing, which was conducted via Zoom, was attended by P.B., her guardian ad litem, and other people. At the conclusion of the hearing, the circuit court ordered guardianship and protective placement of P.B.

    P.B. filed a postdisposition motion asking the circuit court to vacate the guardianship and protective placement orders because she was not permitted to attend the final hearing in person and did not consent to participation by videoconference. The circuit court denied the motion.

    In an opinion authored by Judge Neubauer, the court of appeals reversed. “The guardianship and protective placement statutes give certain rights to individuals who are the subject of guardianship or protective placement petitions, including the ‘right to be present’ at the final hearing on the petitions. See Wis. Stat. §§ 54.42(5), 55.10(4) (2019-20). The statutes also require a petitioner (here, the County) to ensure that the individual who is the subject of a petition ‘attends’ the final hearing, unless the individual’s guardian ad litem waives the attendance. Wis. Stat. §§ 54.44(4)(a), 55.10(2)” (¶ 1).

    The court of appeals concluded that these statutes protect an individual’s right to be physically present in the room where the hearing is held. Because the county failed to ensure that P.B. was afforded an opportunity to attend her final hearing in person, and her guardian ad litem did not waive her attendance, the circuit court lacked competency to rule on the petitions (see ¶ 25). The court of appeals thus vacated the guardianship and protective placement orders and remanded the case to the circuit court so that a hearing can be conducted in accordance with the statutes.

    [Editors’ Note: The court of appeals acknowledged that the Wisconsin Supreme Court had issued several orders in light of the COVID-19 pandemic that suspended most in-person proceedings in the circuit court. However, those orders were terminated effective May 21, 2021 – 12 days before the final hearing in this case (see ¶ 24).]


    Information Technology Breaches – Negligence – Privacy Claims – Intentionality – Breach of Contract

    Reetz v. Advocate Aurora Health Inc., 2022 WI App 59 (filed Nov. 22, 2022) (ordered published Dec. 27, 2022)

    HOLDING: The circuit court’s dismissal of a host of claims arising from a computer security breach that exposed employees’ personal information was affirmed in part and reversed in part.

    SUMMARY: In February 2020, the information technology systems of Advocate Aurora Health Inc. were breached. Aurora locked out the intruder but later determined that personal information of current and former employees had been placed at risk. This personal information included Social Security numbers, addresses, and banking information. The direct-deposit information of more than 60 employees was changed so as to deposit paychecks into the intruder’s accounts (see ¶ 3).

    Reetz, a former employee, was among those whose information was at risk, but her direct-deposit information was not among that purloined by the intruder. Reetz filed this class action against Aurora alleging a variety of claims. The circuit court dismissed her claims with prejudice in early 2021.

    The court of appeals affirmed in part and reversed in part in an opinion authored by Judge White. First, Reetz had standing: “Her operative complaint alleged an injury in fact from cybercriminals unlawfully accessing Aurora’s HR systems, which allowed them to access current and former employees’ personally identifiable information…” (¶ 8). Second, Reetz successfully stated a claim for negligence and damages in support of her claim. The negligence claim was not barred by the economic loss doctrine (see ¶ 15). The court remanded the case for further proceedings on the negligence claim and its “class action ramifications” (¶ 17).

    Reetz’s invasion of privacy claim under Wis. Stat. section 995.50 raised a question of first impression, the court holding that “the publicity of private facts cause of action requires intentional conduct in Wisconsin” (¶ 19). Although Reetz alleged that Aurora’s systems were “outdated” and “insecure,” these allegations were conclusory and insufficient: “an allegation of failing to prevent a data breach is not an allegation that Aurora intended the disclosure or publicity of private facts” (¶ 22).

    Nor did Reetz adequately allege any valid breach-of-contract claims. References to Aurora’s code of conduct did not establish any modification of her employment contract by mutual assent (see ¶ 26). Therefore, Reetz’s claim of an implied contract of some sort also failed. For instance, it was unclear what benefit Aurora reaped from possessing Reetz’s personal information (see ¶ 29). For similar reasons, her claims asserting a breach of the covenant of good faith and fair dealing also failed (see ¶ 30).

    » Cite this article: 96 Wis. Law. 55-57 (February 2023).

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