Criminal Law

Sexual Assault by a Correctional Officer – “Correctional Institution” – Home Detention

State v. Hilgers, 2017 WI App 12 (filed 26 Jan. 2017) (ordered published 22 Feb. 2017)

HOLDING: A person detained at his or her residence by virtue of participation in the home-detention program is “confined in a correctional institution” for purposes of Wis. Stat. section 940.225(2)(h), which prohibits sexual assault of an individual confined in a correctional institution.

SUMMARY: A.C., an adult woman, was confined in a Dane County jail facility as a condition of probation. While there, she met defendant Hilgers, who was employed as a Dane County Sheriff’s Department correctional officer. A.C. was later placed in the home-detention program pursuant to Wis. Stat. section 302.425(2) and detained at her personal residence, where her movements were restricted and monitored. While A.C. was detained at her personal residence, she and Hilgers began a consensual sexual relationship. Hilgers did not have supervisory authority over A.C. while she was in home detention.

Hilgers was charged with second-degree sexual assault, contrary to Wis. Stat. section 940.225(2)(h), which makes it a criminal offense for a correctional officer to have “sexual contact or sexual intercourse with an individual who is confined in a correctional institution.” The ultimate issue in the case was whether A.C. was confined in a correctional institution while she was on home detention at her residence.

In a decision authored by Judge Sherman, the court of appeals concluded that “a person detained at his or her residence by virtue of participation in the home detention program is ‘confined in a correctional institution’ for purposes of Wis. Stat. § 940.225(2)(h)” (¶ 17). The court reached this result by applying several definitional statutes. Among them was Wis. Stat. section 302.425, which provides that when a prisoner is “confined in jail,” the prisoner may be “detained at the prisoner’s place of residence” as part of a home-detention program.

“We conclude that under § 302.425, a prisoner participating in the home detention program remains at all times ‘confined,’ that is to say imprisoned, in a jail. However, under the program, the prisoner’s confinement in jail may consist of detention in the prisoner’s residence. The fact that the prisoner is ‘detained’ during the prisoner’s participation in the program at a location other than a jail facility does not negate the fact that the prisoner remains confined in a jail for purposes of § 302.425 and, therefore, ‘confined in a correctional institution’ for purposes of Wis. Stat. § 940.225(2)(h)” (¶ 15).

Insurance

Exclusions – Breach of Contract

Great Lakes Beverages LLC v. Wochinski, 2017 WI App 13 (filed 18 Jan. 2017) (ordered published 22 Feb. 2017)

HOLDING: An insurance policy’s breach-of-contract exclusion barred coverage for claims arising out of the failed purchase of a business.

SUMMARY: In 2009, Wochinski sold his interests in a beverage distribution business. He entered into an asset-purchase agreement that included a covenant not to compete and the buyer’s agreement to purchase supplies from Wochinski’s other businesses. The business relationship “quickly soured” and Wochinski rescinded the agreement because of the buyer’s alleged breaches (¶ 4). The buyer sold its interests to successor entities, which sued Wochinski for violating his noncompete agreement. Wochinski later filed counterclaims, thereby triggering insurance coverage issues. The circuit court ruled that Wochinski’s tortious-interference claims were excluded from coverage (see ¶ 11).

The court of appeals affirmed in an opinion authored by Judge Stark. The policy’s breach-of-contract exclusion barred coverage (see ¶ 18). The court pointedly rejected Wochinski’s attempts to narrow the exclusion.

“In essence, Wochinski argues the breach of contract exclusions in AMCO’s policies apply only to claims seeking damages directly caused by a breach of a contract between the plaintiff and the insured. We conclude, however, that Wochinski interprets the exclusions too narrowly, as the policies exclude coverage for claims ‘arising out of’ a breach of contract. Although no published Wisconsin case has interpreted a breach of contract exclusion similar to the ones found in AMCO’s policies, this court has addressed other policy provisions containing the connecting phrase ‘arising out of.’ In so doing, we have broadly construed that language” (¶ 20).

“Applying this broad interpretation of the phrase ‘arising out of’ to the case at hand, we conclude a reasonable insured would understand that the tortious interference alleged in Wochinski’s amended third-party complaint `arose out of’ a breach of contract” (¶ 22). Here the contract was the failed asset-purchase agreement. The allegations included instances, for example, of “falsely telling” clients that Wochinski was subject to an (invalid) noncompete. The court of appeals also rejected Wochinski’s arguments sounding in the policy’s alleged ambiguity (see ¶ 27).

Real Property

Condemnation – Eminent Domain – Apparent-authority Doctrine

Haas v. City of Oconomowoc, 2017 WI App 10 (filed 25 Jan. 2017) (ordered published 22 Feb. 2017)

HOLDING: In this suit for just compensation for property taken by eminent domain, the appellants properly sued the city of Oconomowoc – rather than the city’s Community Development Authority (CDA) – as the condemnor of the appellants’ property.

SUMMARY: Haas and other individuals appealed from an order dismissing their complaint against the city of Oconomowoc for just compensation for their property, which was taken by eminent domain, and also appealed from an order denying their motion for reconsideration. They argued that the circuit court erred when it dismissed the action on the basis that the CDA was the condemnor of the property and they “should have … named” the CDA as a defendant. Asserting the doctrine of apparent authority applies in this case, appellants contended that the city, not the CDA, condemned the property by performing all the necessary steps for condemnation either directly or through the CDA acting as the city’s agent.

The city countered that the CDA was the condemnor of the property and the court lacked personal jurisdiction over the CDA because the appellants did not name it as the defendant.

In a decision authored by Judge Gundrum, the court of appeals reversed the decision of the circuit court. It agreed with the appellants that the city – not the CDA – condemned the property and thus the appellants properly named the city as the condemnor-defendant (see ¶ 2).
The condemnation process involves multiple steps: appraisals, negotiations, jurisdictional offer, lis pendens filing, and award of damages. In this case the record demonstrated that the city completed the first two steps directly and performed the remaining steps “through” the CDA (¶ 18).

“As appellants argue, the City was only able to accomplish those steps which were directly performed by the CDA because the CDA had the apparent authority to act on behalf of the City” (¶ 19). “The record demonstrates the CDA was acting with the apparent authority of the City and thus was acting as the City’s agent” (¶ 20).

In response to the city’s assertion that the court lacked personal jurisdiction over the CDA, the appellate court “point[ed] out that appellants have never named, sought redress from, or advocated for jurisdiction over the CDA, and thus the City’s contention the court lacked jurisdiction over the CDA goes nowhere” (¶ 2).

Sexually Violent Persons

Wis. Stat. ch. 980 Commitments – Discharge Petition – Discharge Trial Standard

State v. Hager, 2017 WI App 8 (filed 24 Jan. 2017) (ordered published 22 Feb. 2017)

HOLDING: The circuit court erred as a matter of law in failing to grant a trial on the issue of discharge from a Wis. Stat. chapter 980 commitment.

SUMMARY: Hager was convicted of incest in 1995 and was committed under Wis. Stat. chapter 980 as a sexually violent person in 2008. He filed several petitions for a discharge trial, including one in 2013. The circuit court denied his petition despite his contention that 2013 Wis. Act 84 changed the standards under Wis. Stat. section 980.09 governing when a petitioner is entitled to a discharge trial.

The court of appeals reversed the circuit court in an opinion authored by Judge Hruz. Assessing the impact of Act 84, the court held that the framework set forth in State v. Arends, 2010 WI App 46, 325 Wis. 2d 1, 784 N.W.2d 513, “largely remains good law” (¶ 4). Nonetheless, Act 84 substantially altered the standard for granting a discharge trial.

“Whereas a mere possibility of success was previously sufficient, a petitioner now must demonstrate a reasonable likelihood of success to obtain a discharge trial. This change accomplished a material increase in the petitioner’s burden of production. However, as we shall explain, the change does not allow, much less require, the circuit court to determine, at this preliminary stage, whether the facts supporting the petitioner are more compelling or credible than evidence unfavorable to the petitioner – at least, not to any extent greater than contemplated by Arends” (¶ 32) (citations omitted).

The new standard did not, however, “clearly signal” a transition “to a procedure allowing the ‘weighing’ of facts or expert opinions” (¶ 35). “Instead, the court must determine whether the facts in the record favorable to the petitioner, including those facts contained within or referenced by the enumerated items, establish a reasonable likelihood of success at an ensuing discharge trial” (¶ 37). “Given our conclusion that the legislature’s modifications to Wis. Stat. § 980.09 do not require the ‘weighing’ of evidence presented for and against the petition, we need not directly address whether those modifications improperly and unconstitutionally shift the burden of proof to the petitioner” (¶ 44).

Hager’s petition “was supported by an expert report applying two actuarial risk instruments that were not available at the time of Hager’s initial commitment trial. This new research, combined with changes the expert observed in Hager following his commitment, led this expert to conclude that Hager’s lifetime risk of committing another sexually violent offense fell below the requisite fifty percent threshold” (¶ 5).

Wis. Stat. ch. 980 Commitments – Discharge Petition – Discharge Trial Standard

State v. Carter, 2017 WI App 9 (filed 24 Jan. 2017) (ordered published 22 Feb. 2017)

HOLDING: The petitioner’s attorney was not ineffective for failing to raise the issue that amendments to Wis. Stat. section 980.09(1) and (2) operated retroactively and thereby violated his client’s due-process rights.

SUMMARY: In 2009, Carter was committed under Wis. Stat. chapter 980 as a sexually violent person. He filed multiple, annual petitions for discharge, including a December 2013 petition that resulted in an expert report supporting his discharge petition. The circuit court denied his 2013 petition seeking discharge with a trial. Later, he unsuccessfully asked the court to reconsider and asserted as well that his trial counsel was ineffective for failing to attack amendments to Wis. Stat. chapter 980 enacted in 2013 Wis. Act 84 as unconstitutional.

The court of appeals affirmed in an opinion authored by Judge Hruz that is essentially a companion to State v. Hager (see discussion above), decided the same day. Essentially, Carter argued that the Act 84 amendments violated his due-process rights when applied retroactively. The court held that the Act 84 amendments were procedural, not substantive (see ¶ 15).

Subsections 980.09(1) and (2) “create ‘a two-step process … aimed at weeding out meritless and unsupported petitions, while still protecting a petitioner’s access to a discharge hearing.’ As such, … these provisions serve to deter baseless filings, to promote the speedy determination of litigation on the merits, and to promote judicial efficiency. They prescribe the legal mechanisms by which a committed person may obtain a discharge trial” (¶ 16) (citations omitted).

The court rejected Carter’s contention that he had a “vested right” to a discharge trial while nonetheless conceding that an ability to receive a discharge trial is integral to Wis. Stat. chapter 980’s constitutionality (¶ 18). “When the existence of a right is contingent on an uncertain future event (here, Carter’s satisfaction of the preliminary requirements under subsections (1) and (2)), and that event has not occurred prior to the enactment of a statute, there is no vested right to the application of the prior law” (id.).

In short, the retroactive application of Act 84’s amendment did not violate Carter’s due-process rights. And, finally, for the same reasons, his trial attorney was not ineffective by failing to object on these grounds.