Court of Appeals Digest
By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
This column summarizes all decisions of
the Wisconsin Court of Appeals. Prof. Daniel D. Blinka and Prof. Thomas
J. Hammer invite comments and questions about the digests. They can be
reached at the Marquette University Law School, 1103 W. Wisconsin Ave.,
Milwaukee, WI 53233, (414) 288-7090.
Criminal law
Controlled Substances - "Parks" Enhancer - Meaning and
Constitutionality
State v. Lopez,
No. 95-3250-CR (filed 11 Dec. 1996) (ordered published 28 Jan. 1997)
Section 161.49 of the Wisconsin Statutes (1993-94) enhances the
penalty for possessing certain drugs "within 1,000 feet of a state,
county, city, village or town park" with the intent to deliver them. In
this case the defendant argued that this penalty enhancer is void for
vagueness. In the alternative, he argued that the state violated his due
process rights by seeking the enhancer when the park in question is a
"passive" park, but is not a place where children congregate. In a
decision authored by Judge Anderson, the court of appeals disagreed with
both of the defendant's contentions.
Since "park" is not defined in the statute, the court looked to
standard dictionary definitions for guidance. One of those sources
defines a park as "a tract of land maintained by a city or town as a
place of beauty or public recreation." The court concluded that the
ordinary and accepted meaning of "park" encompasses a passive or
undeveloped park such as the one at issue in this case. It further
concluded that the proximity to a public park, including an undeveloped
park, is rationally related to the protection of the public's health and
safety from drug-trafficking activities. Because the defendant possessed
more than 45 pounds of marijuana within 1,000 feet of a park, his right
to due process was not violated by the state charging him with the
penalty enhancer.
The court also concluded that section 161.49 provides fair warning
that the term "park" as contemplated by the statute encompasses parks
that may be designated by signs or contain park benches, as well as
passive or undeveloped parks such as the one in this case. Accordingly,
it rejected the defendant's argument that the statute is void for
vagueness.
Criminal procedure
Sentence Credit - Time Spent in Intensive Sanctions Program
State v. Collett,
No. 96-1952-CR (filed 3 Dec. 1996) (ordered published 28 Jan. 1997)
The defendant violated his probation and, as an alternative to
revocation, he was offered placement in the Department of Intensive
Sanctions (DIS) program, which he accepted. He participated in the DIS
program for one year and was discharged. He again violated his
probation, which this time was revoked, and three five-year concurrent
sentences that previously had been imposed and stayed were implemented.
The defendant moved for sentence modification arguing that he should
have been credited for the year he spent in the DIS program. The motion
was denied and this appeal followed.
The court of appeals, in a decision authored by Judge Myse, affirmed.
Section 973.155(1)(a) of the Wisconsin Statutes authorizes sentence
credit and reads: "A convicted offender shall be given credit toward the
service of his or her sentence for all days spent in custody in
connection with a course of conduct for which sentence was imposed." The
defendant argued that the time he spent in the DIS program constituted
"custody" within the meaning of this statute and therefore should be
credited against his sentence.
The appellate court concluded that whether an individual is in
"custody" in the DIS program, and therefore entitled to sentencing
credit, depends upon an evaluation of the restrictions upon the
defendant's freedom imposed by the DIS program. In an earlier decision
the appellate court discussed the degree of control that must be exerted
over an individual in order for him or her to be considered in custody.
In State v. Cobb, 135 Wis. 2d 181, 400 N.W.2d 9 (Ct. App. 1986), the
court found that a defendant who spent time in a drug treatment facility
as a condition of probation was in custody only if he was "locked in at
night." The DIS program, however, allows for a wider variety of
restrictions on liberty than just nightly confinement. In fact, DIS has
a broad range of sanctions available that restrict freedom to varying
degrees. For example, assignments in the program could range from
community service to confinement in a jail. Further, these restrictions
can be used in conjunction with one another over the course of an
individual's placement in DIS with some time spent in confinement and
other times spent in one of the other programs.
Because of the variety of restrictions on liberty within the DIS
program, the court of appeals concluded that a bright-line rule for
determining whether a person in DIS is in custody for sentence credit
purposes would be impractical. To earn sentence credit, the defendant
must endure restrictions that are so substantial as to amount to being
locked in at night or its equivalent. While each case must be
individually determined, sentence credit is only given if the
restriction on a participant's freedom is the functional equivalent of
confinement. Custody exists only if the individual's DIS program
sufficiently infringes upon his or her freedom to equate with being
under the state's control for a substantial period of time.
In this case the record contained no evidence of the defendant's
restrictions in the DIS program. Accordingly, the appellate court could
not determine whether the defendant was in custody for purposes of
sentence credit and the case was remanded so that the trial court could
examine the extent to which the defendant's freedom was limited during
his year in the DIS program.
Search and Seizure - Consent
State v. Gaulrapp,
No. 96-1094-CR (filed 27 Dec. 1996)(ordered published 28 Jan. 1997)
The defendant appealed his conviction for possession of cocaine and
marijuana, arguing that the police had illegally seized the controlled
substances from his car. The defendant conceded that he was legally
stopped by police for a traffic violation. He contended, however, that
the police then illegally expanded the scope of the traffic stop when
they asked about drugs and requested permission to search him and his
vehicle. The defendant consented to the search, according to police.
The court of appeals, in an opinion written by Judge Vergeront,
affirmed the convictions. The case fell within the recent holding of
Ohio v. Robinette, 1996 WL 662461. The Fourth Amendment does not require
that "a lawfully seized person be advised that he or she is free to go
before his or her consent to search will be recognized as voluntary."
The key is reasonableness. The defendant's detention was not
unreasonably prolonged by the officers' asking permission to search the
defendant. The delay that followed resulted from the defendant's
permission to allow the search.
Searches - Invalid Third-party Consent
State v. Kieffer,
No. 96-0008-CR (filed 11 Dec. 1996)(ordered published 28 Jan. 1997)
The defendant was convicted for possessing psilocybin mushrooms in
violation of the controlled substances law. The court of appeals, in an
opinion written by Judge Snyder, reversed the conviction based upon the
illegal seizure of evidence.
The court held that a man named Garlock lacked the authority to
permit the police to enter and search a loft area. Garlock owned the
property and allowed his daughter and the defendant, his son-in-law, to
live there. Garlock did not occupy or use the loft space. Only the
defendant and the daughter had keys to the loft. Garlock never went
there unless he had their permission.
Nor could the police claim that they reasonably believed that Garlock
could grant such permission. The police asked only whether the defendant
and the daughter paid rent. They did not ask Garlock whether he ever
went into the loft without defendant's permission. In short, the police
could not reasonably rely upon the single question about rent. Moreover,
the daughter's later request for a search warrant totally negated any
vestige of third-party consent.
Elder law
Abuse or Neglect of Nursing Home Residents - Wis. Stat. section
50.07(1)(e) - No Private Cause of Action
Hausman v. St. Croix Care
Center Inc., No. 96-0866 (filed 10 Dec. 1996) (ordered
published 28 Jan. 1997)
Section 50.07(1)(e) of the Wisconsin Statutes provides that no person
may "intentionally retaliate or discriminate against any resident or
employee for contacting or providing information to any state official,
or for initiating, participating in, or testifying in an action for any
remedy authorized under this subchapter." Section 50.07(2) provides that
violators of the above section may be fined up to $l,000, imprisoned up
to six months, or both, for each offense.
The plaintiffs were employed at the St. Croix Care Center and they
contended that section 50.07(1)(e) creates a private cause of action for
their alleged retaliatory discharge for having disclosed abuse or
neglect of elderly nursing home residents.
The court of appeals, in a decision authored by Judge Myse, concluded
that no private right of action is created by section 50.07(1)(e). In
determining whether the statute creates a private cause of action, the
court considered the enforcement method the Legislature has chosen.
Section 50.07(2) provides for a fine or imprisonment or both for
violations. The Legislature thus established a clear mechanism to
enforce the statute: A violation of this law is a criminal and public
matter rather than a private one. The only enforcement mechanism
contained in the statute is a criminal penalty; it is silent as to any
private cause of action. Had the Legislature intended to create a
private cause of action, said the court, it could have provided for dual
enforcement. The existence of the penalty provision and the presumption
against implying private rights of action compelled the court to
conclude that the Legislature did not intend section 50.07(1)(e) to
create a private cause of action.
Insurance
Lead Paint - Coverage Exclusions
Vance v. Sukup,
No. 95-2851 (filed 23 Dec. 1996)(ordered published 28 Jan. 1997)
The plaintiffs sued their landlord and his insurer, American Family,
for injuries allegedly caused by lead paint on the premises that they
rented. American Family denied coverage under a "Business Key policy."
The trial judge denied American Family's motion for summary judgment
based upon its lack of coverage, resulting in this appeal.
The court of appeals, in an opinion written by Judge Fine, affirmed.
The trial judge correctly ruled that lead paint was not categorically a
"contaminant" in the paint within the meaning of the policy's pollution
exclusion. Nevertheless, the policy exclusion "may apply to damages
caused by that lead if there is also a 'discharge, dispersal, seepage,
migration, release or escape' of the lead." The plaintiff alleged that
he was damaged by lead that left the painted surfaces as well as by lead
from "intact accessible painted surfaces." The former may fall within
the exclusion; the latter does not. Since some of the allegations are
within the policy's coverage, the insurer has a duty to defend the
landlord.
Medicaid
Eligibility - Divestment of Assets - Failure to Claim Against Estate
of Deceased Spouse
Tannler v. Wisconsin
Department of Health and Social Services, No. 96-0118 (filed 12
Nov. 1996) (ordered published 19 Dec. 1996)
This case concerns the continuing eligibility of the petitioner for
Medical Assistance (Medicaid) ("MA") benefits. To be eligible to receive
Medicaid benefits, an individual must meet strict income and asset
limits. In determining whether a person is entitled to benefits, a state
may only consider the income and assets actually "available" to the
applicant. An individual is prohibited from divesting himself or herself
of assets in order to meet the limits.
The definition of "assets" is significant in cases involving MA
eligibility and the term is statutorily defined as follows: "the term
'assets,' with respect to an individual, includes all income and
resources of the individual and of the individual's spouse, including
any income or resources which the individual or such individual's spouse
is entitled to but does not receive because of action ... by the
individual or such individual's spouse."
The facts in this case were not in dispute. The petitioner was
initially determined to be eligible for MA benefits in 1993 when a
"community spouse asset allocation" was completed, transferring certain
assets to her husband. The husband died in 1994 leaving a will that
bequeathed all of his assets and property to a grandson, while leaving
his wife (the petitioner) nothing. The petitioner did not object to the
admission of the will to probate, nor did she file any elections or
requests for classification of marital property or allowances.
The petitioner continued to receive MA benefits until 1995 when the
Department of Health and Social Services notified her that it was
terminating her eligibility because she "is refusing to take action to
claim the statutorily required portion of a deceased spouse's estate."
The department ultimately terminated the petitioner's MA eligibility,
relying in part upon the definition of "assets" quoted above and upon an
interpretation of that definition contained in the MA Handbook, which
states that divestment actions that cause income or assets not to be
received "because of action" by the spouse include "refusing to take
action to claim the statutorily required portion of a deceased spouse's
or parent's estate." The petitioner sought judicial review and the
circuit court reversed the department's decision. In a decision authored
by Judge LaRocque, the court of appeals reversed the circuit court.
The appellate court concluded that reasonable persons could attribute
different meanings to the word "action" as it is used in the definition
of assets quoted above. It could mean, as the petitioner argued, only
affirmative or active conduct. It could also mean, as the department
contended, "acts of omission" as well. Because the statute is ambiguous,
the court considered its purpose. Medical Assistance is a joint
federal-state program aimed at providing medical services to the poor
and needy. The divestment provisions of that program are an attempt to
prevent the government, and therefore the taxpayers, from having to
subsidize the medical care of individuals who are, but for divestment,
able to pay the cost of their own care. The department's interpretation
of the statute referred to above is consistent with this purpose: A
failure to file a claim for one's statutorily required share of an
estate results in the government subsidizing the health care of that
individual when, but for the failure to file, the individual would be
able to pay the cost of his or her own care.
Giving due weight to the department's final decision and order, the
court of appeals concluded that the petitioner's decision not to file a
claim against her husband's will was an "action" within the meaning of
the statute because her decision resulted in exactly the type of
divestment which that provision was designed to address.
Judge Cane filed a dissenting opinion.
Motor vehicle law
OWI - Administrative Suspension - Finding of No Probable Cause -
Issue Preclusion in Subsequent Criminal Prosecution
State v. Kasian,
No. 96-1603-CR (filed 27 Dec. 1996) (ordered published 28 Jan. 1997)
The defendant was arrested for OWI. He submitted to a chemical test
that showed he had a prohibited alcohol concentration and he therefore
was notified that his operating privileges were administratively
suspended pursuant to Wisconsin's Administrative Suspension law. See
Wis. Stat. 343.305(7). The defendant sought a Department of
Transportation administrative review of his suspension pursuant to
section 343.305(8). At the administrative hearing the defendant argued
that probable cause did not support his arrest. This is an issue at the
administrative hearing and the hearing examiner agreed with the
defendant's position. Accordingly, the administrative suspension was
lifted.
Thereafter the state issued a criminal complaint charging the
defendant with OWI and operating a motor vehicle with a prohibited
alcohol concentration. The defendant raised various challenges to the
prosecution, including a motion to suppress the chemical test evidence
because the police did not have probable cause to arrest him. He took
this argument one step further and contended that because the issue of
probable cause had already been conclusively decided against the state
in the administrative suspension proceeding, the state was precluded
from arguing against his motion to suppress in the criminal prosecution.
The circuit court denied the motion to suppress and the defendant pled
guilty to the OWI charge.
The principal issue on appeal was whether the circuit court was
obligated on grounds of issue preclusion to follow a prior
administrative determination by the Department of Transportation that
probable cause did not support his arrest. In a decision authored by
Judge Nettesheim, the court of appeals concluded that the circuit court
was not precluded from litigating the issue of probable cause on the
merits. Accordingly, it affirmed the defendant's conviction.
Issue preclusion is designed to limit the relitigation of issues that
have been actually litigated in a previous action. Wisconsin courts have
moved away from a formalistic approach to issue preclusion in favor of a
more equity-based approach. Among the reasons the court cited for
holding that a probable cause determination in a DOT administrative
review proceeding does not preclude consideration of the same issue at
the circuit court level in a criminal proceeding were: 1) under the
statutes the state has no mechanism for causing the hearing examiner's
decision to be reviewed; 2) the administrative suspension hearing is
highly informal and does not create or invite an "adversary proceeding"
in the traditional sense of that phrase; 3) the statutes make no
provision for any entity to serve as the prosecutor in the
administrative suspension hearing; 4) the DOT proceeding is not of the
quality or extensiveness that the law requires for issue preclusion to
apply; and 5) as a matter of public policy the state should not lose
potentially important and relevant evidence on the basis of the cursory
administrative proceeding envisioned by the administrative suspension
statute.
Open records law
Police Reports - Reports Documenting Use of Deadly Force by Police
Officers
State ex rel.
Journal/Sentinel Inc. v. Arreola, No. 95-2956 (filed 17 Dec.
1996) (ordered published 28 Jan. 1997)
A newspaper reporter made an open records request for certain
information from the Milwaukee Police Department. In sum, the reporter
sought copies of reports filled out when a police officer discharges his
or her weapon. The police records custodian denied the request,
indicating that the information would not be released because it
involved internal personnel matters. Among other things the city also
contended that disclosure: 1) would adversely affect the police
department's ability to conduct effective investigations; 2) would
impinge on officers' reputational and privacy interests; 3) would give
the requestor greater access to the records than the employee has; 4)
would impinge upon the department's ability to attract and retain
competent personnel; and 5) would discourage victims and witnesses from
providing information.
The circuit court issued a writ of mandamus requiring the city to
release certain of the documents requested and the court of appeals, in
a decision authored by Judge Wedemeyer, affirmed in part and modified in
part.
The appellate court held that the public is entitled to inspection of
all the factual information regarding the use of deadly force by the
police. It interpreted this information to include: 1) who discharged a
weapon; 2) when it was discharged; 3) the general circumstances
surrounding the incident; and 4) the names and identifying information
of any victims or witnesses, unless those individuals have requested
confidentiality.
The court further concluded that the public is not entitled to
inspect those portions of the reports prepared by police supervisors
that contain conclusions, recommendations or other comments involving
potential or actual disciplinary actions. The court also held that
officers' home addresses should not be subject to disclosure. These
items must be redacted because the privacy concerns attached to such
outweigh the public's right to access this limited information.
Paternity
Putative Father - Blood Tests - "Parental Fitness"
Thomas M.P. v. Kimberly
J.L., No. 96-0697 (filed 10 Dec. 1996) (ordered published 28
Jan. 1997)
Thomas filed a paternity action attempting to establish that he was
the father of Kimberly's baby. He claimed that the child was conceived
during a "romantic relationship" but Kimberly claimed that Thomas had
"raped" her. The trial court conducted a "pre-blood test hearing" and
determined that it was not in the child's best interest to establish
whether Thomas was the father.
The court of appeals, in an opinion written by Judge Cane, reversed.
Section 767.48 of the Wisconsin Statutes "expressly provides the alleged
father of a child the right to a determination of paternity, regardless
of the circumstances of the case or the circumstances out of which
paternity may have arisen." Thus, the Legislature has not provided for a
"best interests" hearing. Nor has the Legislature eliminated the
standing of an alleged father even where the mother claims that she was
raped by him. Thomas's fitness to be a parent must be decided in the
context of an action to terminate parental rights. Finally, the court
held that the Legislature's classifications did not violate the equal
protection clause.
Property
Damages - Illegal Tree Cutting - Offsets
Tydrich v.
Bomkamp, No. 96-2086 (filed 27 Dec. 1996)(ordered published 28
Jan. 1997)
The plaintiff appealed a damage award under section 26.09 of the
Wisconsin Statutes for the unlawful cutting of 35 large trees on his
farm. The court of appeals, in an opinion written by Judge Deininger,
affirmed.
First, the court rejected the plaintiff's argument that he was
entitled to the "highest market value" of the cut logs and that the
trial judge erred in deducting tree cutting costs from the timber's
market value, leaving him with only the "stumpage value." Tracing the
legislative history of section 26.09, the court observed that the
Legislature had repealed a "highest market value" provision and that
section 26.09 contemplated a "common law" remedy. Second, the trial
court acted properly when it offset the net sale proceeds that the
plaintiff received for the logs against the statutory double damage
award.
Torts
Governmental Immunity - Equitable Actions Seeking Injunctive
Relief
Johnson v. City of
Edgerton, No. 96-0894 (filed 5 Dec. 1996) (ordered published 28
Jan. 1997)
The plaintiffs appealed from a summary judgment dismissing their
action against the City of Edgerton. They sued the city for injunctive
relief and damages when they were unable to gain access to their
property from the unimproved "stub-end" of a city street. The circuit
court dismissed the action, concluding that the city was immune from
suit under the "governmental immunity" provisions of section 893.80(4)
of the Wisconsin Statutes for its refusal to open the street to the
plaintiffs' lot line.
One of the critical issues before the court of appeals was whether
the immunity granted by the statute cited above is limited to actions in
tort, or whether it extends to equitable actions seeking injunctive
relief. In a decision authored by Chief Judge Eich, the court of appeals
concluded that the official immunity provisions of the statute are not
limited to tort or money-damage actions, but are equally applicable to
actions which, like the plaintiffs,' seek injunctive relief against a
governmental subdivision or employee.
Governmental Immunity - Discretionary Acts - Exceptions
Bauder v. Delavan-Darien
School District, No. 95-0495 (filed 27 Nov. 1996)(ordered
published 28 Jan. 1997)
The plaintiff was injured when a deflated soccer ball struck him in
the eye during a school gym class, which had been moved inside because
of bad weather. The trial judge dismissed the complaint against the
school district on the ground of governmental immunity.
The court of appeals, in an opinion written by Judge Brown, affirmed.
First, the teacher's actions were discretionary. The teacher moved the
class inside because of bad weather. He also decided to deflate the
soccer ball to reduce the chance of injury. These decisions were not
rendered "ministerial" because state statutes require school districts
to provide physical education classes.
Second, this case did not fall within any of the recognized
"exceptions" to the governmental immunity defense. The deflated soccer
ball did not present a "known present danger"; nor was it "clear and
absolute" that school gyms should be used "only for basketball and
nothing else." The court also rejected the assertion that the teacher's
discretionary decisions fell outside the "context" of the governmental
activity (teaching gym). The supreme court has limited this latter
exception to cases involving medical discretion.
Third, the plaintiff had no nuisance claim. (Nuisance is not affected
by governmental immunity.) In a nutshell, using a gym to teach a
physical education class did not create a nuisance under any reasonable
construction of the facts.
Wisconsin
Lawyer