Vol. 73, No. 2, February 2000

Supreme Court Digest

By Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

| Criminal Law | Criminal Procedure | Motor Vehicle Law | Real Estate |

Criminal Law

Soliciting Prostitution - Extortion

State v. Kittilstad, No. 98-1456-CR (filed 17 Dec. 1999)

The state has charged the defendant with four counts of soliciting prostitution under section 944.32 of the Wisconsin Statutes and one count of extortion under section 943.30(1). This appeal followed his preliminary hearing and the filing of an information.

At the preliminary hearing five Panamanian students whom the defendant sponsored to come to the United States testified that the defendant repeatedly offered to pay them if they would bring women back to his house where the students were staying, have sex with them, and allow the defendant to watch. One student testified that the defendant threatened to throw him out of the defendant's home and interfere with his study program if the student refused his requests. On appeal the defendant argued that this evidence, even if true, cannot establish solicitation of prostitution or extortion under the statutes cited above.

In a unanimous decision authored by Justice Wilcox, the supreme court concluded that the statutes encompass the conduct alleged at the preliminary hearing. Section 944.32 prohibits, among other things, intentionally soliciting any person to practice prostitution. Any student who acquiesced in the defendant's alleged requests would have engaged in prostitution, and this is true whether the women involved in the contemplated sexual activity were aware of the underlying commercial transaction or knew that the solicitor was engaged in solicitation. The court also concluded that the evidence was sufficient to establish that the defendant solicited the students to "practice" prostitution, as section 944.32 requires. To "practice" prostitution means to engage in repeated, ongoing acts of prostitution. In this case the students testified that over the course of many months the defendant repeatedly requested that they commit acts of prostitution.

The court also concluded that the facts alleged under the extortion count constituted a crime under section 943.30(1). The statute prohibits anyone from threatening to injure the person, property, business, profession, calling, or trade of another with the intent to compel the person to do some act against the person's will. The threats to terminate a student's studies if he did not commit acts of prostitution were threats to injure the student's "profession, calling, or trade" within the meaning of the statute. Further, the threats to end financial support may also have been threats to injure the student's "person, property, business, profession, calling, or trade" as those terms are used in the statute.

Criminal Procedure

Habitual Criminality - Proof of Repeater Allegation

State v. Liebnitz, No. 98-2182 (filed 21 Dec. 1999)

The defendant was charged with numerous felony counts as a habitual criminal (repeater) pursuant to section 939.62 of the Wisconsin Statutes. At the initial appearance the judge carefully explained to him the penalties for each of the charged felonies as well as the impact that the habitual criminality allegations could have on his maximum sentence. The parties subsequently entered into a plea agreement under which the defendant agreed to enter a plea of no contest. The agreement included a sentencing recommendation that could only be attained through application of the repeater statute. The judge accepted the plea and imposed the recommended penalty.

On appeal the defendant contended that the years of incarceration attributable to his status as a repeater are void. He argued that section 973.12(1), which requires the state to prove, or the defendant to admit, any prior convictions that form the basis of the repeater status, was not satisfied in his case.

A majority of the supreme court, in a decision authored by Justice Bablitch, disagreed with the defendant's position. It concluded that the record established that the defendant fully understood the nature of the repeater charge. Based upon the totality of the record, the court held that the defendant's plea constituted an admission of repeater status under section 973.12. This is true even though the state did not offer any additional proof at the plea and sentencing phase of the case to establish the defendant's status as a repeater. The facts supporting the repeater allegation were contained in the criminal complaint and recited to the defendant at his initial appearance. Further, at the plea hearing, the court inquired of the defendant as to whether, by his plea, he had chosen not to contest the allegations contained in the complaint, to which the defendant responded in the affirmative.

Justice Bradley filed a dissenting opinion that was joined by Chief Justice Abrahamson.

Motor Vehicle Law

OWI - Preliminary Breath Test - Quantum of Evidence
Needed to Request PBT

Jefferson County v. Renz, No. 97-3512 (filed 22 Dec. 1999)

Section 343.303 of the Wisconsin Statutes provides that "if a law enforcement officer has probable cause to believe that the person is violating or has violated [the OWI law]," the officer may request the person to submit to a preliminary breath test (PBT). For commercial drivers, the officer may request a PBT upon the detection of "any presence" of an intoxicant or if the officer has "reason to believe" that the driver is operating a vehicle while intoxicated.

This case concerns noncommercial drivers and the amount of evidence the officer must have in order to request the driver to submit to a PBT. As indicated above, the statute uses "probable cause to believe" as the standard.

In a majority decision authored by Justice Wilcox, the supreme court concluded that "probable cause to believe" refers to a quantum of proof greater than the reasonable suspicion necessary to justify an investigative stop, and greater than the "reason to believe" that is necessary to request a PBT from a commercial driver, but less than the level of proof required to establish probable cause for arrest. This is consistent with the use of the PBT as an investigative device and with the legislative intent to allow an officer to request a PBT as a screening test before establishing probable cause for an OWI arrest.

Chief Justice Abrahamson filed a concurring opinion that was joined by Justice Bradley.

Real Estate

Property Tax Assessments - Inclusion of Management Income
from Nearby Properties

ABKA Limited Partnership v. Board of Review of the Village of Fontana-on-Geneva-Lake, No. 98-0851 (filed 23 Dec. 1999)

ABKA owns and manages the Abbey on Geneva Lake Resort. In 1996 the Abbey was assessed at $8.5 million. The assessor included ABKA's income from the management of rental condominiums located adjacent to the resort. ABKA challenged the inclusion of the management fees in the assessment of the resort property.

ABKA does not own the condominiums located near the resort. They are separately owned and assessed. Pursuant to annual rental agreements between ABKA and the condominium owners, however, ABKA receives 50 percent of the gross revenues from the rental of each unit. The owners retain the remaining 50 percent.

In return for its percentage of rental revenues, ABKA provides a myriad of services for the renters of the condominiums. Renters make reservations through the Abbey, where they also check in and check out. Rental prices for the condos are advertised in the Abbey's brochures and ABKA retains sole discretion to set rental rates. In addition, the condominium renters have access to the full amenities of the Abbey Resort, subject to the same additional charges as resort guests. The resort also provides advertising, individualized accounting, cleaning supplies and toiletries, and maid and switchboard services. This management arrangement has been in effect since 1978.

The Fontana Board of Review upheld the assessment as did the circuit court. The court of appeals affirmed the circuit court with respect to issues ultimately considered by the supreme court. The court of appeals held that the management income was "inextricably intertwined" with the resort property and thus was properly included in the assessment.

In a majority decision authored by Justice Bradley, the supreme court affirmed the court of appeals. The court concluded that ABKA's management income is inextricably intertwined with the Abbey. The management fees are generated both by and on the land on which the Abbey is located, and the ability to earn the fees is transferable to future purchasers of the Abbey. As value that is inextricably intertwined with the Abbey, the management income appertains to the Abbey under Wis. Stat. section 70.03 and was properly included in the Abbey assessment.

Justice Wilcox filed a dissenting opinion that was joined by Justice Prosser.

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.

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