Criminal Procedure
Search in Foreign Country – Reasonable Reliance on Foreign Authority’s Interpretation of Foreign Law – “Good Faith” Exception to Exclusionary Rule Applied
State v. Johnson, 2013 WI App 140 (filed 13 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: The “good faith” exception to the exclusionary rule applies to a search in a foreign country when it was objectively reasonable for American law enforcement officials to rely on assurances of foreign authorities that the search was legal under foreign law.
SUMMARY: In this Waukesha County homicide prosecution, the defendant, Johnson, an American citizen, moved to suppress evidence that was obtained in a warrantless search of his rented residence in Rosarito, Mexico. Before conducting the search, Waukesha investigators contacted an FBI agent who serves as the liaison between Mexican and American law enforcement authorities. The FBI agent called his counterpart liaison in Mexico and told the Mexican liaison that U.S. law enforcement authorities wanted to search Johnson’s residence and needed to make sure that the search was lawfully conducted so that the resulting evidence could be used in a U.S. court. The Mexican liaison told the FBI agent that, according to the attorney general for Baja California, Mexico, where Johnson’s residence was located, a warrantless search would be legal provided that Johnson’s landlord consented to it.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
Mexican and American authorities searched Johnson’s residence after Johnson’s landlord consented to the search.
Johnson argued in his motion to suppress that the warrantless search was illegal under Mexican law and violated his Fourth Amendment rights. The circuit court denied the motion, and the defendant was convicted following a jury trial. In a decision authored by Judge Reilly, the court of appeals affirmed.
The parties in this case did not dispute that the Fourth Amendment applies to the search of the defendant’s Mexican residence. And the state apparently conceded that the record does not support a finding that Mexican law includes an exception for landlord searches. Therefore, the court of appeals assumed that the search was not legal under Mexican law. Nonetheless, it concluded that the good faith exception to the exclusionary rule applies in this case.
Said the court, “[i]t was objectively reasonable for American law enforcement to believe in the legality of a joint Mexican-American search under the control of Mexican law enforcement that was carried out based on contact between the FBI liaison to Mexico and his counterpart in Mexico who contacted the head law enforcement officer in Baja California who advised as to how a warrantless search could occur” (¶ 12). Accordingly, the good faith exception to the exclusionary rule applies (see ¶ 1), and the circuit court’s denial of the defendant’s motion to suppress evidence was proper.
Employment Law
Public Sector Labor Law – Effect of Acts 10 and 32 on Preexisting Employment Contracts and Piggybacked Contracts
Local 321, Int’l Ass’n of Fire Fighters v. City of Racine, 2013 WI App 149 (filed 20 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: 2011 Wisconsin Act 10 and Act 32 do not apply to public sector employees covered by a preexisting collective bargaining agreement (CBA) until the CBA expires; the same is true for piggybacked CBAs that were agreed on before the enactment of Act 10 and Act 32.
SUMMARY: Before enactment of 2011 Wisconsin Act 10 and Act 32, which greatly limit public sector collective bargaining in Wisconsin, the city of Racine and various unions representing municipal workers entered into two CBAs at the same time. One CBA covered the period of 2011-12 and the other was for 2013-14. There is no dispute between the parties that the 2011-12 CBA is enforceable. This is because Act 10 and Act 32 expressly provide that the changes in the law become applicable to employees “covered by” an existing CBA only after expiration of the CBA.
The issue before the court of appeals was whether the piggybacked CBA covering 2013-14 is likewise enforceable. The city argued that the 2013-14 CBA is not enforceable because it was not “in effect” when Act 10 and Act 32 became operative. In a majority decision authored by Chief Judge Brown, the court rejected the city’s argument.
“We agree with the circuit court … that the legislation was not designed to retroactively invalidate CBAs that were freely and voluntarily entered into by governmental entities and public sector unions before the acts took effect” (¶ 1). “We find in Acts 10 and 32 no clear expression of the intention to retroactively upend the settled expectations of piggybacked CBAs that were negotiated and agreed upon months before those acts took effect. To the contrary, the acts disclaim any such intention by exempting employees ‘covered by’ already-existing CBAs until after those CBAs end or are modified” (¶ 25).
Judge Gundrum filed a concurring opinion.
Public Safety Employees – Collective Bargaining – Health Care Plans – Deductibles
Wisconsin Prof’l Police Ass’n v. WERC, 2013 WI App 145 (filed 27 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: Collective bargaining regarding the allocation of responsibility between employees and employers to pay deductibles required under health care coverage plans is not prohibited by Wis. Stat. section 111.70(4)(mc)6.
SUMMARY: This case concerns two related limitations on public sector collective bargaining under the Municipal Employment Relations Act (Wis. Stat. § 111.70 (2011-12)), as amended by 2011 Wisconsin Act 32. The new limitations prohibit bargaining regarding the “design and selection” of health care coverage plans for public safety employees and regarding the “impact” of the “design and selection” of such plans “on wages, hours, and conditions of employment.” The single question presented on appeal was whether bargaining is prohibited for public safety employees on the subject of what the court called “deductible payment allocation,” that is, the allocation of responsibility between employees and employers to pay deductibles required under a health care coverage plan.
The Wisconsin Employment Relations Commission (the commission) interpreted the new statutory provision (Wis. Stat. § 111.70(4)(mc)6.) to prohibit Eau Claire County and the Wisconsin Professional Police Association (the association) from bargaining regarding the deductible payment allocation. The commission concluded that the deductible payment allocation involves the “content” of a plan and has an effect on wages, hours, and conditions of employment, and is therefore a prohibited subject of bargaining. On review under Wis. Stat. chapter 227, the circuit court disagreed, holding that the deductible payment allocation is “extrinsic” to a plan, and that, as a consequence, such an allocation is neither part of the “design and selection” of a plan nor an effect of plan design and selection on wages, hours, and conditions of employment (¶ 2).
In a decision authored by Judge Blanchard, the court of appeals affirmed the circuit court’s decision. The court of appeals proceeded from the premise that, under the governing statutes, the county “is free to design and select, in any manner it chooses and without negotiation with the [a]ssociation, a plan that includes no deductibles or deductibles of any amount. That is, the existence and amounts of deductibles are elements of a plan, or elements of plan design, that the [c]ounty may unilaterally create or pick in any way” (¶ 24).
However, the deductible payment allocation is not part of the design and selection of a health care coverage plan nor does it constitute a subject that involves the impact of the design and selection of a plan on the wages, hours and conditions of employment (¶ 22). The appellate court thus reached the same conclusion as that reached by the circuit court, that is, the deductible payment allocation is extrinsic to the health care coverage plan and therefore bargaining regarding it is not prohibited by the statute cited above.
Termination – Contract
Ashker v. Aurora Medical Grp. Inc., 2013 WI App 143 (filed 20 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: A physician who was fired for attempting to delete medical records was entitled to 90 days’ pay under the terms of his contract.
SUMMARY: Aurora employed Ashker as a radiologist. Under the employment contract, Aurora could terminate Ashker in one of three ways: “(1) termination immediately upon the occurrence of any one of seven specific events; (2) termination upon a material breach of the contract, provided Aurora gave Ashker written notice specifying the breach and gave Ashker thirty days to cure the breach; and (3) termination for any reason (i.e., ‘without cause’) with ninety days’ notice and ninety days’ pay” (¶ 1).
Aurora fired Ashker for trying to cover up alleged medical malpractice by attempting to delete medical records. Ashker’s conduct did not fall within the seven events described in category one, but Aurora did not comply with categories two and three because Ashker’s conduct was “uncurable.” The circuit court awarded Ashker 90 days’ pay but ruled against him on defamation and tortious interference claims, which related to his failed efforts to find other jobs.
The court of appeals affirmed in an opinion authored by Judge Reilly. Under the terms of the contract, which expressly limited Aurora’s ability to terminate, Aurora could fire Ashker only under the catch-all “without-cause” provision (category three); thus, Aurora owed him 90 days’ pay (see ¶ 9). Ashker’s defamation claim was properly dismissed because he failed to plead the “particular words,” as required by Wis. Stat. section 802.03(6) (see ¶ 11). As to his tortious interference claim, Ashker failed to overcome the presumption that Aurora’s statements to other prospective employers were made in good faith (see ¶ 12).
Judge Neubauer concurred, writing separately to address contract remedies sounding in rescission and their relation to termination. She agreed that there was “no unstated eighth ‘catch-all’ right to terminate immediately in the event of an incurable material breach not listed in the contract” and that Aurora’s insistence on termination triggered the contract’s 90-day option (¶ 16).
Evidence
Other-Act Evidence – Hearsay
State v. Adamczak, 2013 WI App 150 (filed 5 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDINGS: The circuit court erred in admitting dissimilar other-act evidence, although it was harmless error. Also, the circuit court properly admitted, as an admission by a party, a letter written to the victim by defense counsel at the defendant’s direction.
SUMMARY: A jury convicted the defendant of one count of sexual exploitation by a therapist. At trial, the judge permitted other witnesses to testify concerning sexual misconduct by the defendant, including grossly inappropriate comments made by the defendant during therapy sessions. The state also introduced a letter written by the defendant’s lawyer, at the defendant’s direction, asking the victim not to report the matter to authorities because of the defendant’s mental health.
The court of appeals affirmed in an opinion written by Judge Curley. The circuit court erred when it admitted other-act evidence by patients who claimed the defendant made sexually offensive remarks during therapy sessions. Unlike evidence involving the defendant’s sexual contacts with other patients, the offensive remarks were not offered for an acceptable purpose nor were they relevant to the charged offense because they were so dissimilar to the charged offense (see ¶¶ 14-15). Nonetheless, the error was harmless if only because these alleged inappropriate remarks were so dissimilar to the charged offense and other evidence of the defendant’s physical contact with patients. Various emails also proved the charged offense (see ¶ 18).
Second, the trial judge properly admitted a letter written by the defendant’s trial counsel to the victim asking her not to report this matter to authorities and raising concerns about the defendant’s mental stability. Although hearsay, the letter was admitted as a party admission because the defendant authorized counsel to write it (see ¶ 22). Nothing in the letter suggested the lawyer was trying to bribe or intimidate the victim, who reported the defendant’s misconduct shortly after receiving it (see ¶ 24).
Family Law
Custodial Parent – Authority of Court to Restrict Intrastate Moves
Derleth v. Cordova, 2013 WI App 142 (filed 5 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: The circuit court erred in imposing, as part of the child custody determination in a divorce judgment, a 45-mile limit on the custodial parent’s potential relocation.
SUMMARY: The parties obtained a divorce in the Oneida County Circuit Court, located in Rhinelander. The court ordered joint custody of the children with shared physical placement. It also imposed a 45-mile moving restriction on the mother, finding that such a restriction would be in the best interest of the children. This order was in response to the mother’s expressed desire to relocate with the children from Rhinelander to Menasha (a distance of approximately 147 miles). The mother subsequently filed a motion to allow a move of less than 150 miles. A different judge in Oneida County granted the motion. The father appealed.
Among the issues before the court of appeals was whether the circuit erred in imposing the 45-mile moving restriction on the mother. In a decision authored by Judge Hoover, the appellate court concluded that under the controlling statutes, a circuit judge has the power to regulate intrastate moves of 150 or more miles and may prohibit such moves if the court finds the prohibition to be in the child’s or children’s best interest (see ¶ 14). See Wis. Stat. § 767.481. Accordingly, the circuit court in this case had no authority to prospectively order that the mother not move farther than 45 miles from the marital home in Rhinelander (see ¶ 15). As for the circuit judge’s finding that such a restriction was in the best interest of the children, the appellate court noted that the legislature, by its enactment of section 767.481, “has made a judgment that moves of less than 150 miles are not subject to the best interests of the children standard” (id.).
Insurance
Indemnification – Defense – Spoliation
FABCO Equip. Inc. v. Kreilkamp Trucking Inc., 2013 WI App 141 (filed 13 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: A party breached its duty to defend and indemnify in a lawsuit brought by the estate of a deceased employee.
SUMMARY: FABCO, which leases construction equipment, contracted with Kreilkamp Trucking to deliver FABCO’s equipment to customers. A Kreilkamp employee was killed while unloading a FABCO truck. His estate and his widow sued FABCO and others. FABCO tendered its defense to Kreilkamp (the employer) based on an indemnification provision in the delivery contract. When Kreilkamp refused the tender, FABCO brought this action. The circuit court ruled in Kreilkamp’s favor regarding indemnification.
The court of appeals reversed in part and affirmed in part in an opinion authored by Judge Gundrum. First, the indemnification provision obligated Kreilkamp to defend and indemnify FABCO “despite the fact the complaint also alleged that FABCO’s own negligence contributed, at least in part, to the death” (¶ 12). The case was remanded for a determination of FABCO’s reasonable defense and settlement costs. The court also held that FABCO’s insurer, which paid most of the defense and settlement costs, was not barred from recovering its damages caused by Kreilkamp’s refusal of the tender of defense (see ¶¶ 15-16).
Second, Kreilkamp also breached its agreement with FABCO by failing to add FABCO as an “additional insured” on Kreilkamp’s policies. The court held that FABCO was “automatically added” as an additional insured (see ¶ 17).
Finally, the court remanded the matter for a sanctions hearing on the destruction by Kreilkamp of various emails. FABCO met its burden of showing that the emails were “lost,” so Kreilkamp assumed the burden to show they were lost because of “the routine, good faith operation of an electronic system.” If so, the burden shifts back to FABCO to show “exceptional circumstances” that warrant sanctions regardless (see ¶ 21).
Real Property
Condemnation – Value
118th St. Kenosha LLC v. Wisconsin Dep’t of Transp., 2013 WI App 147 (filed 20 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: A property owner should have been allowed to offer evidence of the diminution in value of its property resulting from a loss of direct access and proximity from a public road as a result of a road improvement.
SUMMARY: A business called 118th Street Kenosha (hereinafter, the owner) operated a commercial property just off a highway; it had one driveway entrance from a private road and another from a public road. The Department of Transportation’s (DOT’s) highway reconstruction left the owner with two driveway entrances, both from the private road. In creating the new entrance, the DOT took a temporary easement from the owner along the private road. Before a trial on the issue of the taking’s value, the circuit court granted the DOT’s motion prohibiting any evidence of the diminution in value of the property because of the loss of direct access and proximity to the property from the public road.
The court of appeals reversed in an opinion written by Judge Gundrum. “[T]he DOT acquired the easement to add the new double-throated private road entry point so that it could vacate 118th Avenue and eliminate [the owner’s] direct access to that street, as called for in the DOT’s reconstruction project plans. As such, the taking of the temporary easement was integrally connected with the property’s loss of direct access and proximity to 118th Avenue” (¶ 9).
Under Wis. Stat. section 32.09(6)(g), “the appropriate amount of compensation is determined by deducting the fair market value of the property immediately after the date of evaluation from the fair market value immediately before that date, ‘assuming the completion of the public improvement.’ Because of the integral connection between the taking of the temporary easement to create a new entrance and the elimination of the relevant stretch of 118th Avenue and the entrance to the property from that street, the ‘complet[ed] … public improvement’ related to the easement includes the vacation and rerouting of that street and elimination of that entrance. Thus, on remand, [the owner] may introduce at trial evidence related to the property’s fair market value before and after the taking of the easement, including the loss of direct access and proximity resulting from the vacating and rerouting of 118th Avenue” (¶ 10).
Real Property
Mortgage Foreclosure – Abandoned Property – Court’s Authority to Order Sale After Expiration of Five-Week Redemption Period
Bank of New York v. Carson, 2013 WI App 153 (filed 26 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: Following a foreclosure action the circuit court had authority to order the sale of the property, which had been abandoned, upon expiration of the five-week redemption period provided for in Wis. Stat. section 864.102.
SUMMARY: Carson, a 62-year old widow who was physically and financially unable to care for her residential property, vacated the premises. Thereafter the Bank of New York (the bank) initiated a mortgage foreclosure action against her. The circuit court granted the bank’s motion for default judgment. The bank did not maintain the vacant property (it was vandalized and burglarized, and trash and other debris accumulated on the property), and the redemption period passed, but no sheriff’s sale was ever scheduled. “In sum, the property was not maintained, was not sold, and became what is commonly known as a lender walkaway or a ‘zombie’ property” (¶ 5).
More than 16 months after the judgment of foreclosure was entered and more than one year after the redemption period had expired, Carson filed a motion to amend the judgment pursuant to Wis. Stat. section 806.07(g) and (h). Carson requested that the judgment be amended to include a finding that the property was abandoned under Wis. Stat. section 846.102 and an order requiring a sale of the property to be made on the expiration of five weeks from the date of the amended judgment so that the foreclosure would comply with section 846.102. The bank opposed the motion, arguing that neither the applicable statutory language nor equity permitted the circuit court to order it to hold a sale.
The circuit court denied Carson’s motion. It concluded that it did not have the authority to order the sale of the property. Additionally, the circuit court construed section 846.102 to mean that only the bank could elect the five-week abandonment period provided in the statute.
In a decision authored by Judge Curley, the court of appeals reversed. It concluded that the circuit court erred as a matter of law when it held that only the bank could elect the five-week abandonment period provided for in section 846.102 (see ¶ 12). The court further held that the circuit court had the power to order the bank to sell the property upon expiration of the five-week redemption period (¶ 13).
“We conclude that the plain language of the statute directs the court to ensure that an abandoned property is sold without delay, and it logically follows that if a party to a foreclosure moves the court to order a sale, the court may use its contempt authority to do so. To hold otherwise would not only run contrary to the plain language of the statute, but would also strip individuals in Carson’s situation of any remedies at law and allow lenders to leave properties in limbo for years. This is certainly not what the legislature had in mind when it drafted Wis. Stat. § 846.102” (¶¶ 13-14).
Sexually Violent Persons
Discharge Petitions – Expert Evidence
State v. Alger, 2013 WI App 148 (filed 19 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: Petitions to discharge are part of the court’s continuing authority over persons committed under Wis. Stat. chapter 980; thus, for a person committed in 2004, a discharge petition filed in April 2011 is controlled by the former rules governing expert testimony, not the current rules governing actions commenced on or after Feb. 1, 2011.
SUMMARY: In April 2011, Alger petitioned for a discharge from his commitment as a sex offender pursuant to Wis. Stat. chapter 980. At issue was whether expert evidence at the hearing was governed by the former relevancy rule or instead by the “reliability” rules in current Wis. Stat. section 907.02, which applies to actions and special proceedings commenced on or after Feb. 1, 2011. The trial judge ruled that the discharge hearing was a continuation of the 2004 action that resulted in Alger’s chapter 980 commitment; thus, the former rule applied.
The court of appeals affirmed in an opinion authored by Judge Stark. The discharge petition did not constitute a “special proceeding,” as Alger conceded (¶ 11). Discussing the nature of a chapter 980 commitment, particularly the circuit courts’ continuing administrative authority following a commitment, the court held that a “petition for discharge does not start a new lawsuit or legal process distinct from the original commitment. Instead, a discharge petition is merely a continuation of the existing lawsuit that began when the petition for commitment was filed” (¶ 19).
This holding does not lead to “absurd results,” as Alger contended. Finally, Alger’s right to equal protection was not violated by applying the former rule to his discharge petition based on a rational-basis review (see ¶ 27).
Reexaminations – Right to Counsel – Independent Examiners
State v. Jones, 2013 WI App 151 (filed 13 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: Reversible error occurred because the circuit court did not address the petitioner’s request for the appointment of counsel and an independent examiner before reviewing and denying his petition for discharge from a Wis. Stat. chapter 980 commitment.
SUMMARY: Jones was committed as a sexually violent person under Wis. Stat. chapter 980 in 2005. In connection with his annual reexamination, Jones requested both the appointment of counsel and an independent examiner. The department submitted its reexamination and treatment progress report along with Jones’ requests to the circuit court. Jones also filed a petition for discharge, which the circuit court denied on a paper review. He never received counsel or an independent examiner.
The court of appeals reversed in an opinion written by Judge Neubauer. The court reviewed the evolution of chapter 980 procedures over the years. The court held that “when the legislature took away the obligatory hearing on every discharge petition, it extended the right to counsel from the onset for discharge petitions filed in conjunction with the annual reexamination” (¶ 10). “We see nothing in § 980.03(2) that suggests that the legislature intended to preempt the clear prohibition against proceeding on an annual reexamination petition for discharge prior to referral for an indigency determination and appointment of counsel under § 980.075. These provisions provide different rights under different circumstances. To the extent there is any conflict between the § 980.075 right to counsel at the time of reexamination and the general § 980.03(2) right to counsel at any hearing, § 980.075 controls” (¶ 11).
Jones also has the right to an independent examiner, pursuant to Wis. Stat. section 980.031(3). And this right is not contingent on a finding that there are sufficient facts to warrant a hearing. “That the independent examiner is also to participate at trial or a hearing involving testimony does not limit his or her initial role in examining the committed person ‘at the time of a reexamination.’ The committed person does not have to wait until his or her petition has passed the paper review; indeed, the independent examiner is meant to help assess the petitioner’s readiness for discharge and gather facts to support the petition, if appropriate” (¶ 13). Finally, neither error here was harmless.
Torts
Immunity – Recreational Activity
WEA Prop. & Cas. Ins. Co. v. Krisik, 2013 WI App 139 (filed 7 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: The use of a chainsaw to cut branches was an immunized recreational activity.
SUMMARY: The plaintiff was severely injured while standing on a ladder cutting branches with a chainsaw. The homeowner’s insurer brought this declaratory judgment action to establish that there was no coverage. The circuit court granted summary judgment in favor of the insurer, finding that the plaintiff was engaged in an immunized recreational activity.
The court of appeals affirmed in an opinion authored by Judge Higginbotham. The definition of recreational activity in Wis. Stat. section 895.52(1)(g) specifically includes “cutting or removing wood” (¶ 14). When an activity is specifically enumerated by statute, it is unnecessary to examine the purpose and nature of the activity (for example, why the men were cutting the branches).
Second, the plaintiff’s injury occurred while he was being assisted by the property’s “occupant,” who was an “owner” under Wis. Stat. section 895.52(a)(d)(1). This individual “used the property for over thirty years, during which time he mowed the lawn, cared for the trees, and put in gravel as needed” (¶ 22). Nor must the owner be engaged in recreational activity; only the injured party must be using it for recreation (see ¶ 25).
Privacy – First Amendment
Dumas v. Koebel, 2013 WI App 152 (filed 5 Nov. 2013) (ordered published 18 Dec. 2013)
HOLDING: The circuit court properly limited discovery and granted summary judgment in favor of the defendants on claims for invasion of privacy and intentional torts.
SUMMARY: Dumas drove a bus for a public school system. As part of a news story, a television reporter confronted Dumas about her misdemeanor conviction for prostitution. Dumas’s complaint against the television station made a number of claims, which were dismissed on summary judgment. Dumas appealed.
The court of appeals affirmed in an opinion written by Judge Curley. First, the circuit court properly limited discovery before deciding the summary judgment motion. Here, the defense claimed to rely on publicly available information that is protected by the First Amendment. Second, the circuit court properly granted summary judgment on the various claims. The invasion-of-privacy claim failed because the reporter properly relied on information in public records, including the plaintiff’s name and arrest history. Wis. Stat. § 995.50(2)(c).
The plaintiff’s claims for intentional infliction of emotional distress and intentional interference with a contract also failed because the information was a “matter of public concern” even while it may have been “controversial,” “inappropriate,” and certainly “embarrassing” (¶¶ 28-29). The information, when viewed in context, was used to “illustrate a perceived problem” regarding child safety (see ¶ 29).
