Wisconsin Lawyer
Vol. 75, No. 10, October
2002
Supreme Court Digest
This column summarizes all decisions of the Wisconsin Supreme Court
(except those involving lawyer or judicial discipline, which are
digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas
J. Hammer invite comments and questions about the digests. They can be
reached at Marquette University Law School, 1103 W. Wisconsin Ave.,
Milwaukee, WI 53233, (414) 288-7090.
by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer
Criminal Procedure
Judicial Notice of an Element of a Penalty Enhancer -
Constitutional Error - Application of the Harmless Error
Rule
State v. Harvey,
2002 WI 93 (filed 9 July 2002)
The defendant was charged with possession of cocaine with intent to
deliver. To this charge the state added a penalty enhancer alleging that
the underlying offense occurred within 1,000 feet of Penn Park in the
city of Madison. This penalty enhancer increased the potential maximum
imprisonment for the underlying crime by five years.
At trial, over the defendant's objection, the circuit court took
judicial notice that Penn Park is a "city park" within the meaning of
the penalty enhancer statute. See Wis. Stat. §
961.49(1)(b)1. It instructed the jury that it was to accept the
judicially noticed fact as true. The defendant was convicted of the
enhanced offense and the court of appeals affirmed the conviction.
In a majority decision authored by Justice Sykes, the supreme court
affirmed the court of appeals. The court began its analysis by examining
the jury instruction described above. The court relied on Apprendi
v. New Jersey, 530 U.S. 466 (2000), which held that the elements of
a penalty enhancer (other than a prior conviction) are elements of the
offense, which must be submitted to the jury and proven beyond a
reasonable doubt. The court concluded that a jury instruction that
directs a jury to accept as true a judicially-noticed fact that
constitutes an element of the crime "is indistinguishable from a
mandatory preclusive presumption on an elemental fact, which is
unconstitutional...." (¶ 5)
The court further held that under State v. Kuntz, 160 Wis.
2d 722, 467 N.W.2d 531 (1991), and Neder v. United States, 527
U.S. 1 (1999), this type of constitutional instructional error is
subject to application of the harmless error rule. It concluded that the
error was harmless because in this case it cannot be and is not disputed
that the park in question is a city park. "It is clear beyond a
reasonable doubt that a properly instructed, rational jury would have
found the defendant guilty of the enhanced offense. Under these
circumstances, the error cannot have contributed to the verdict" (¶
48).
Justice Crooks filed a concurring opinion that was joined by Justice
Wilcox. Chief Justice Abrahamson filed a dissent that was joined by
Justice Bradley.
Detention During Execution of Search Warrant - Voluntariness
of Consent to Search
State v. Vorburger,
2002 WI 105 (filed 16 July 2002)
Police obtained a warrant to search a motel room for controlled
substances. While that warrant was being obtained, officers observed
three people, including Amerie Becker, approach the room. When one of
the individuals inserted a key into the lock, the officers approached
the trio, handcuffed them and performed pat-down searches but discovered
no weapons. The trio was detained in the motel hallway, each separated
from the others. The time was about 9:20 p.m. An officer told Ms. Becker
that she was being detained and was not free to leave while the officers
conducted an investigation, but that she was not under arrest. Early in
the detention Becker asked to use the bathroom but ultimately declined
to do so when a female officer told her that she would have to accompany
her.
The search warrant arrived at the motel at about 10:05 p.m. and was
executed about 10 minutes later. Fourteen pounds of marijuana were found
during the search. Just after
10:30 p.m. an officer began questioning Becker. She was taken into a
nearby room, her handcuffs were removed, and she was advised of her
Miranda rights. At approximately 11:15 p.m. the interrogating
officer told other officers that Becker had given consent for a search
of the apartment she shared with another one of the detained persons.
Becker was then transported to the apartment and during the search
numerous controlled substances were found.
Several Fourth Amendment questions were raised in connection with the
facts as described above. In a majority decision authored by Justice
Prosser, the supreme court concluded that: 1) the investigative stop and
detention of Becker constituted a seizure for Fourth Amendment purposes;
2) the stop and initial detention of Becker and the others were based on
reasonable suspicion that they were about to commit a crime and the stop
and initial detention were therefore lawful; 3) the officers acted
reasonably in detaining Becker during the execution of the warrant even
though the subject motel room was not registered to her; 4) the length
of the detention related to the procurement and execution of the search
warrant was roughly 70 minutes and this period of detention was not
unreasonable given the time of day and the distance separating police
headquarters, the residence of the judge who issued the search warrant,
and the motel; 5) the officers acted reasonably in detaining Becker for
questions after the warrant was executed, and the detention did not
escalate into an arrest; and 6) Becker's consent to search her apartment
was voluntarily given.
Chief Justice Abrahamson filed a dissenting opinion that was joined
by Justices Bablitch and Bradley.
Labor Law
Civil Service Employees - Wrongful Discharge - Use of
"After-acquired Evidence" to Limit Award of Damages
Board of Regents v. Personnel
Comm'n, 2002 WI 79 (filed 28 June 2002)
The appellant was a longtime employee of the University of
Wisconsin-Milwaukee (UWM) Police Department. He was terminated from that
position but successfully challenged that discharge before the Wisconsin
Personnel Commission (the commission). During a hearing on damages for
the wrongful discharge, the commission refused to permit UWM to admit
evidence related to additional alleged misconduct committed by the
officer during his employment with UWM. UWM had discovered this evidence
after the discharge and argued that the evidence should have been
admitted to limit any award of back pay to the officer. [UWM's theory
was that this additional misconduct would have warranted termination and
thus would limit the back pay due for the wrongful discharge.] The
circuit court reversed the commission's decision to exclude this
evidence, and the court of appeals certified the appeal to the supreme
court.
The supreme court first considered whether the commission properly
excluded UWM's evidence of the officer's subsequent misconduct when it
was offered, without prior notice, during a hearing on damages to reduce
the amount of back pay for the officer's wrongful discharge. In a
majority decision authored by Justice Bablitch, the supreme court
concluded that the commission properly exercised its discretion in
excluding this evidence because the officer did not receive proper
notice, consistent with due process and the civil service statutes,
prior to the introduction of this evidence. It held that UWM was
required to provide notice to the officer as contemplated by the civil
service statutes and as required under due process before it could
introduce evidence related to the alleged misconduct that occurred after
the unlawful discharge. "Notice and a proper hearing addressing this
misconduct is required to remain faithful to the due process interests
of civil service employees in Wisconsin and to remain consistent with
the policies of security of tenure and impartial evaluation prior to
termination" (¶ 30).
The court also considered whether the commission properly denied fees
and costs to the officer based on its conclusion that UWM's disciplinary
actions against the officer were substantially justified. On the facts
of this case and, granting great weight deference, the supreme court
upheld the commission's determination.
Chief Justice Abrahamson did not participate in this decision.
Justice Sykes filed a dissenting opinion.
Property Law
Condominiums - Definition of "Condominium Unit" - Conveyance
of Riparian Rights
ABKA Ltd. Partnership v.
Department of Natural Resources, 2002 WI 106 (filed 16 July
2002)
ABKA purchased the Abbey Harbor Marina on Geneva Lake in 1973. Over
time the marina came to include 407 boat slips. Until 1995 the slips
were rented to the public on a seasonal basis.
In 1995 ABKA filed a condominium declaration in order to convert the
marina into a condominium form of ownership under Wis. Stat. chapter
703. The declaration provided for the creation of 407 units, with a unit
defined as a four-by-five-by-six inch "lock box" to be located in the
Harbor House. The configuration was similar to a set of small post
office boxes. The unit definition in the declaration also provided that
each unit would include "as an appurtenance standard riparian rights of
owners of waterfront real estate under Wisconsin law, and the use of an
assigned boat slip...."
In a majority decision authored by Justice Bradley, the supreme court
concluded that the lock boxes are not "units" within the meaning of the
condominium statutes. The statutory definition of a "unit" provides that
it is a "part of a condominium intended for any type of independent
use...." Wis. Stat. § 703.02(15). The court concluded that the lock
boxes are not intended for any type of independent use within the
meaning of the statute but, rather, they are phantom units that do not
meet the statutory definition. In contrast to the lock boxes, the boat
slips are clearly intended for a type of independent use (docking a
boat), but the slips are not the "units" under ABKA's declaration. Nor
could the court identify any legislative intent to permit a boat slip to
be conveyed as a condominium unit. Because the lock boxes are not units
within the meaning of the statute, there are no valid units and
therefore there was no valid condominium conveyance of real
property.
Without a valid condominium unit, the transfer of riparian rights
that ABKA's declaration purports to accomplish is in violation of Wis.
Stat. section 30.133, which provides that "no owner of riparian land
that abuts a navigable water may convey, by easement or by similar
conveyance, any riparian right in the land to another person, except for
the right to cross the land in order to have access to the navigable
water." Under section 30.133, riparian rights must be conveyed as
attached to something; in this case, they are attached to nothing. The
court concluded that ABKA violated the public trust doctrine because it
attempted to convey condominium property contrary to section 30.133.
The court also held that the Department of Natural Resources had
jurisdiction over ABKA's conversion of its marina to a condominium form
of ownership.
Justice Bablitch filed a concurring opinion.
Justice Sykes filed a dissenting opinion that was joined by Justice
Prosser.
Sexually Violent Persons
1999 Amendments to Wis. Stat. Chapter 980 - Double Jeopardy,
Ex Post Facto and Due Process Challenges Rejected
State v. Rachel,
2002 WI 81 (filed 1 July 2002)
This case involved a number of constitutional challenges to several
1999 amendments to the sexually violent persons law (Wis. Stat. chapter
980). The primary impact of these amendments is to limit a chapter 980
respondent's ability to obtain supervised release. For example, under
prior law, the circuit court could order commitment to supervised
release immediately after the chapter 980 trial, and an
institutionalized individual could petition for supervised release after
six months of institutional placement. Under the 1999 amendments the
circuit court no longer has the option to order commitment directly to
supervised release after trial, and the individual must wait at least 18
months to petition for supervised release.
The respondent claimed that these amendments constitute ex post facto
legislation and violate his right against double jeopardy. When
analyzing these two claims, the threshold question is whether chapter
980 is civil or criminal in nature. Resolving this question is essential
because to violate the Due Process or Ex Post Facto clauses, a statute
must be criminal rather than civil in nature. In a majority decision
authored by Justice Wilcox, the supreme court concluded that the amended
statute is not criminal or punitive in nature and, consequently, a
commitment under chapter 980 does not violate either the Double Jeopardy
or Ex Post Facto clauses.
The court reached this conclusion by applying the "intent-effects
test" derived from Hudson v. United States, 522 U.S. 93 (1997).
The court concluded that the legislature intended that chapter 980 be a
civil commitment statute, passed for the purposes of control and
treatment of the individual. It further held that the respondent did not
show "by the clearest proof" that the statute is so punitive either in
purpose or effect as to transform what was clearly intended as a civil
remedy into a criminal penalty.
The respondent also challenged the 1999 amendments on due process
grounds. The court concluded that the amendments do not put chapter 980
in violation of substantive due process guarantees. "The statute
continues to serve the compelling state interests of treatment of the
dangerously mentally ill and protection of the public, and is narrowly
tailored to meet those interests" (¶ 70).
Justice Bradley filed a concurring opinion. Chief Justice Abrahamson
and Justice Bablitch filed dissents.
Wisconsin
Lawyer