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    Wisconsin Lawyer
    March 13, 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

    Criminal Procedure

    Search and Seizure – Suppression – Online Accounts

    State v. Bowers, 2023 WI App 4 (filed Dec. 29, 2022) (ordered published Jan. 25, 2023)

    HOLDING: The circuit court properly suppressed evidence that was unlawfully seized from an online account.

    SUMMARY: Bowers, a police officer, was charged with misconduct in public office for copying to his personal Dropbox account electronic files related to three open murder investigations. He shared the files with producers of a television show, who had been given permission by the police department to examine the “murder 1” files but not those from the two other murders. Bower did not have permission to copy the files.

    While investigating Bower’s misconduct, police department employees accessed Bower’s Dropbox account without his permission and without a warrant. Bowers moved to suppress the evidence. A key issue was whether Bowers held a protected privacy interest in the account. The trial judge first denied the motion but when given additional information, reversed the ruling and ordered the evidence suppressed (see ¶ 12).

    The court of appeals affirmed in an opinion authored by Judge Stark that addresses difficult issues involving privacy rights of cloud-based accounts, including third-party access. The court held that Bowers had a protected privacy interest in the account.

    “Although it was established using Bowers’ county [email] address, Bowers paid to create the private Account, the Account was password protected and accessible through Bowers’ private devices, and the Account was not stored on county property. In addition, although Bowers’ Account was held by Dropbox, an independent entity, Bowers did not grant a third party access to his password or the Account when sharing the case files. Thus, law enforcement engaged in a search of Bowers’ Account within the meaning of the Fourth Amendment. Further, while law enforcement had probable cause to search the Account for evidence of Bowers’ alleged misconduct in office, we conclude that no exigent circumstances justified a warrantless search of the Account” (¶ 3).


    Water Damage – Exclusions

    Secura Ins. v. 33 Allenton Venture L.L.C., 2023 WI App 3 (filed Dec. 7, 2022) (ordered published Jan. 25, 2023)

    HOLDING: An insurance policy excluded coverage for damage caused by water flowing from a broken pipe.

    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 insured owned a building that was damaged when a water pipe under the building and connected to a municipal water pipe failed, causing damage to the foundation and the property of its lessees. The insurer, Secura Insurance, paid some amounts under the policy but maintained that the policy’s water exclusion barred coverage of any additional amounts. The circuit court granted summary judgment in favor of the insureds.

    The court of appeals reversed in an opinion authored by Judge Gundrum. The court applied the analysis set forth in American Family Mutual Insurance Co. v. American Girl Inc., 2004 WI 2, 268 Wis. 2d 16, 673 N.W.2d 65. The parties stipulated to the first question by agreeing that the policy provided an initial grant of coverage (see ¶ 7).

    The court of appeals, however, agreed with Secura Insurance that the policy’s water exclusion blocked coverage in this case. The court “easily dispatched” the insured’s arguments against the exclusion’s application (¶ 9). Rejecting each contention, the court used the American Girl approach to conclude as follows: “Thus, as long as one exclusion in a policy excludes coverage – as the water exclusion does here – it does not matter that another exclusion does not exclude coverage, whether due to an exception or otherwise. Stated differently, assuming the exception to the wear and tear exclusion makes that exclusion inapplicable so that coverage is not excluded thereunder, that is the limit of the exception’s impact; it does nothing to undermine the fact that the water exclusion excludes coverage for the damage at issue” (¶ 16).

    Public Records Law

    Public Records – Email Addresses

    Gierl v. Mequon-Thiensville Sch. Dist., 2023 WI App 5 (filed Dec. 7, 2022) (ordered published Jan. 25, 2023)

    HOLDING: The circuit court did not err in granting summary judgment to the plaintiff, who sought from the school district the email addresses of parents and guardians of students in the district.

    SUMMARY: The Mequon-Thiensville School District sent an email inviting parents and guardians in its school community to participate in a webinar on the topic of privilege and race. Plaintiff Gierl thereafter requested from the district a list of the email addresses to which the invitation was sent. The district provided a list of staff email addresses but refused to provide the list of email addresses for parents and guardians. Gierl then filed a petition for a writ of mandamus pursuant to the public records law.

    The district contended that the balancing test used in the public records context (that is, whether permitting inspection of a public record would result in harm to the public interest that outweighs the legislative policy recognizing the public interest in allowing inspection) favored keeping the email list secret because disclosure would have a chilling effect on family members’ willingness to provide their email addresses to the district and thus stifle communications between the district and families (see ¶ 10). The circuit court granted summary judgment to Gierl, finding that the district failed to provide any support for this chilling-effect argument (id.).

    In an opinion authored by Judge Gundrum, the court of appeals affirmed the decision of the circuit court. It characterized the district’s desire as wanting to be able to use governmental resources to collect and use these email addresses to promote and advance the particular “community outreach” issues and positions of district leaders while denying other people in the community the opportunity to use the addresses to share other viewpoints (¶ 14).

    The court of appeals concluded that the circuit court did not err in applying the balancing test and awarding summary judgment to Gierl. “The District has failed to meet its burden to demonstrate that the public interest in keeping the parent [email] addresses secret – and preserving them solely for the District’s broad use, unless perhaps an apparently more favorable third-part requester requests the list… – outweighs the strong public policy in favor of releasing the records” (¶ 15).

    » Cite this article: 96 Wis. Law. 46-47 (March 2023).

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