Wisconsin Lawyer
Vol. 84, No. 3, March 2011

• Criminal Law
• Family Law
• Prisoners
• Real Property

Criminal Law

State v. Conner, 2011 WI 8 (filed 9 Feb. 2011)

A jury convicted Conner of stalking a man with whom she once had a relationship. The crime was classified as a Class H felony, elevated from Class I because of a 2003 conviction. The court of appeals affirmed her conviction. See 2009 WI App 143.

The supreme court affirmed the court of appeals in a majority opinion, authored by Justice Crooks, that catalogues dozens of acts, some vicious, others mean-spirited, that Conner committed against the victim and his family. The case presented two issues. First, Conner claimed that she did not have constitutionally sufficient notice of the charges, particularly those relating to the “course-of-conduct” element under the stalking statute. The supreme court noted that the complaint attached and explicitly incorporated various police reports and other documents that chronicled at least 27 other acts (see ¶ 24). Conceding that the complaint could have been drafted “more precisely,” the court held it nonetheless was sufficient in light of the attached documents (see ¶ 29). “Because the complaint charged a course of conduct and incorporated documents listing detailed acts along with specific dates on which they allegedly occurred, we hold that the complaint and information stated an offense to which Conner was ‘able to plead or prepare a defense,’ and we concur with the State that ‘conviction or acquittal is a bar to another prosecution for the same offense.’ … [T]he complaint was sufficient, and we affirm the court of appeals’ decision on that issue” (¶ 32).

Second, Conner asserted that it was improper for her to be convicted of a Class H felony. The court rejected her reading of the statute. “The text and context of this statute indicate that the statutory language does not have the meaning Conner suggests. First, there is no language in the provision itself that limits the meaning of ‘present violation’ to a course of conduct that occurs in its entirety only after the earlier conviction. Second, and more persuasively, the surrounding language makes clear that the continuum of conduct – acts ‘carried out over time, however short or long’ – is the essence of a stalking crime; to read the language as Conner does would result in shearing off evidence of a course of conduct that had been continuous and was punctuated by a conviction in 2003, which conviction was itself a part of the continuous conduct the statute criminalizes” (¶ 40).

The majority opinion closed with two caveats. First, the court said, it was unnecessary for the court to address double-jeopardy issues (see ¶ 43). Second, the court observed that the charges could have been framed differently and in a way that would have obviated the course-of-conduct issues that occupied this appeal (see ¶ 44).

Chief Justice Abrahamson dissented and was joined by Justice Bradley. First, they concluded that the jury instructions were erroneous because they may have induced the jury to consider acts that preceded Conner’s 2003 conviction on the course-of-conduct element. Second, the charges deprived Conner of due process by failing to provide adequate notice regarding which acts constituted her course of conduct.

Family Law

Brown County Dep't of Health Servs v. Brenda B., 2011 WI 6 (filed 4 Feb. 2011)

Brown County filed a termination of parental rights (TPR) action against Brenda. Brenda pleaded no contest in the first phase, which resulted in a finding of parental unfitness. The circuit court then conducted a dispositional hearing, finding that it was in the child’s best interests that Brenda’s parental rights be terminated. Brenda filed a motion to withdraw her no-contest plea, which the court denied. In an unpublished opinion, the court of appeals affirmed.

The supreme court affirmed in an opinion authored by Justice Bradley. The court first reviewed the nature of parental rights and the procedures governing TPR actions generally (see ¶ 28). It then focused on the required colloquy for the taking of no-contest pleas. Brenda claimed that she was not properly advised that she was waiving her constitutional right to parent nor was she informed of the “full range of dispositions” (see ¶ 37). The supreme court held that parents need not be advised that they are losing a “constitutional” right to parent because a finding of unfitness does not automatically result in termination (see ¶ 40). The opinion then canvasses the rights that must be covered in the colloquy (see ¶¶ 41-44). “What is important is that the parent understands the import of the rights at stake rather than the sources from which they are derived” (¶ 3).

Moreover, the court held, the colloquy adequately apprised Brenda of the full range of dispositions. The court said that Brenda’s contention that Wis. Stat. section 48.427 compels the circuit court to discuss all potential dispositions under the statute had arguable merit (see ¶ 50). But on closer examination, the court said, the argument failed. “Based on the statutory language, it is not accurate to say that there are five independent dispositions, and the court must choose one of them. Rather, the court must first choose between the two independent dispositions set forth in sub. (2) and sub. (3) – it must dismiss the petition or terminate parental rights. If the court terminates parental rights, the court may exercise several alternatives for designating custody, guardianship, and care of the child. The availability of the alternatives set forth in sub. (3m), sub. (3p), and sub. (4) are contingent upon the court’s determination that parental rights should be terminated under sub. (3)” (¶ 52). In sum, “the parent must be informed of the two independent dispositions available to the circuit court. … [T]he court may decide between dismissing the petition and terminating parental rights” (¶ 4).

Finally, the supreme court held that “the colloquy in this case fulfilled the requirements set forth above and … Brenda has failed to present a prima facie case that her plea was not entered knowingly, voluntarily, and intelligently” (¶ 5).

Prisoners

Jackson v. Buchler 2010 WI 135 (filed 14 Dec. 2010)

In a disciplinary proceeding, a prison adjustment committee found Jackson guilty of inciting a riot. As a result of this decision, his release date was extended by 179 days. Jackson filed a writ of certiorari, which the circuit court denied. An appeal, supreme court review, and remand to the circuit court followed. The case then went back to the supreme court, which held against Jackson in a majority decision authored by Justice Bradley.

The supreme court’s focus in this case was on whether the procedures employed by the adjustment committee satisfied due process. In Wolff v. McDonnell, 418 U.S. 539 (1974), the U.S. Supreme Court “set forth three hallmarks of due process that must be satisfied in prison disciplinary actions: (1) a written notice of the claimed violation; (2) a written statement of the evidence relied upon and the reasons for the disciplinary action taken; and (3) an opportunity to call witnesses and present documentary evidence. Jackson’s arguments relate to his disciplinary hearing and thus emanate from the third hallmark of due process” (¶ 50) (citation omitted).

One of Jackson’s contentions was that there was insufficient evidence upon which to find him guilty of inciting a riot; he argued that video evidence contradicted or undermined certain confidential informants’ testimony. Jackson acknowledged that these statements were admissible under Department of Corrections rules. He also acknowledged that, without more, the statements would be sufficient evidence of guilt to satisfy due process (see ¶ 56). As for the video evidence at the heart of Jackson’s sufficiency-of-evidence challenge, the court concluded that it is inconclusive and neither undermines nor contradicts the informants’ statements (see ¶ 68). Said the court, “[w]ith or without the video evidence, reasonable minds could arrive at the same conclusion reached by the adjustment committee. Accordingly, we conclude that the evidence of Jackson’s guilt was sufficient to satisfy due process” (id.).

Jackson also raised the issue of whether inmates accused in prison-disciplinary proceedings have a right under Brady v. Maryland, 373 U.S. 83 (1963), to examine exculpatory or impeaching evidence the government possesses. The video evidence referred to above was not disclosed to Jackson before his hearing, and the court determined the video evidence was inconclusive. “It is that same determination that leads us to conclude that we need not and should not decide in this case whether any version of Brady – limited or otherwise – applies in the prison disciplinary setting” (¶ 71).

In a footnote, the court observed that “[t]he United States Supreme Court has not addressed this question. The Seventh Circuit Court of Appeals has concluded that inmates have a qualified right to the disclosure of exculpatory evidence. See Piggie v. McBride, 277 F. 3d 922 (7th Cir. 2002). We are not bound by the Seventh Circuit’s interpretation of the United States Constitution” (¶ 70 n.26).

Last, the court rejected Jackson’s assertion that his due process right to an impartial decisionmaker was violated because a member of his adjustment committee also had “substantial involvement” (see Wis. Admin. Code § DOC 303.82(2)) in the incident because she participated in the investigative process. Based on the record, the court could not conclude as a matter of law that the committee member’s involvement in the incident was “substantial” (see ¶ 82).

Chief Justice Abrahamson filed a dissenting opinion.

Real Property

Northrup v. Opperman, 2011 WI 5 (filed 3 Feb. 2011)

This case involves a disputed boundary. The circuit court found that the center line of Henn Road is the boundary separating the parcel of land owned by the Boersts from the parcel of land owned by the Oppermans (see ¶ 4). The trial record touched on evidence and events going back to 1886 and traced disputes over the same line that continued until the warring parties reached a stipulation in 1917. The stipulation stood for 88 years until a surveyor found a concrete boundary marker in a swamp in 2005, thus shattering the “boundary peace” (¶ 15). New surveys were commissioned, which triggered more border disputes and finally this litigation. The circuit court concluded that it was no longer possible to locate the original boundary line by using the deed language or boundary markers. Turning to extrinsic evidence, the circuit court found “‘that a longstanding common usage and acquiescence to ownership and possession to real estate has occurred in the area of the Henn Road in Ashland County near the common sections of 4, 5, 8, and 9 [and] [t]he centerline of the existing Henn Road is determined to be the boundary line between the property owners in this case’” (¶ 23). The court of appeals affirmed that determination. See 2010 WI App 80.

The supreme court affirmed in an opinion authored by Chief Justice Abrahamson. The court noted that this boundary dispute was fact-driven, as is ordinarily the case in such disputes (see ¶ 6). “No attempt is made to include herein an exhaustive list of the formulations, terminology, or categories used by this court in the numerous boundary dispute cases. Instead we have included a number of the more commonly used formulations to illustrate the language used in our case law to resolve boundary disputes and the historic inability of the court to consistently classify boundary disputes into doctrinal categories” (¶ 30). “After reviewing the case law, we conclude that the instant case most closely approximates and is governed by the principles set forth in boundary dispute cases in which a survey is in conflict with a longstanding landmark. In these cases, the survey raises questions about the accuracy of a landmark that has generally been accepted by property owners as the boundary line for a substantial period of time” (¶ 39).

The court especially looked to “survey/fence cases for guidance” (¶ 41), which set forth a rule that “an ancient fence (or other landmark) may be competent evidence of the location of the boundary when original monuments cannot be found” (¶ 49). The circuit court properly relied on the best evidence available when making its findings. “The best evidence of the boundary line in the present case is, as the circuit court found, the long occupation of the properties by the parties to the present case, their neighbors and their predecessors in title. According to the record, for more than a century the center line of Henn Road has been honored as the boundary between the properties by not only the parties in this suit (and their predecessors in interest), but also generally throughout the surrounding area and by the government” (¶ 52). Prior case law established that “[b]oundary lines may be established by ‘practical location and undisturbed possession for a great many years, and there does not seem to have been any necessity to disturb them at this late day’” (¶ 55).

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