Civil Procedure

General Jurisdiction – Foreign Corporations

Segregated Account of Ambac Assurance Corp. v. Countrywide Home Loans Inc., 2017 WI 71 (filed 30 June 2017)

HOLDING: The defendant foreign corporation did not consent to general jurisdiction in Wisconsin when it appointed a registered agent in this state pursuant to Wis. Stat. section 180.1507.

SUMMARY: Ambac Assurance Corp. is a Wisconsin corporation with its principal place of business in New York. As an insurer of financial instruments, Ambac issued polices in 2005 insuring against losses stemming from residential mortgage-backed securities containing Countrywide mortgage loans, including loans made to Wisconsin residents and secured by property in this state. Countrywide Home Loans Inc. is a New York corporation with its principal place of business in California. Authorized to do business in Wisconsin since 1986, Countrywide appointed a registered agent for service of process in this state. It did not maintain any offices, employees, or business presence in Wisconsin.

Ambac filed this suit against Countrywide alleging that Ambac incurred substantial liability under the insurance policies only because Countrywide fraudulently misrepresented the quality of the mortgages underlying the securities. Countrywide moved to dismiss the complaint for lack of personal jurisdiction. Ambac opposed the motion, arguing that Countrywide consented to general personal jurisdiction in Wisconsin when it appointed a registered agent under Wis. Stat. sections 180.1507 and 180.1510. The circuit court dismissed the complaint for lack of personal jurisdiction, concluding that Wisconsin courts cannot exercise general jurisdiction over Countrywide.

In an unpublished opinion, the court of appeals reversed the circuit court; it concluded that appointing a registered agent for service of process constituted consent to general jurisdiction in Wisconsin. In a majority opinion authored by Justice Rebecca G. Bradley, the supreme court reversed the court of appeals.

A corporation may be subject to personal jurisdiction in a forum state under a theory of “specific jurisdiction” if it has certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Exercise of specific jurisdiction requires a nexus between the defendant’s activities in the state and the suit against it. Availability of specific jurisdiction obviates the need for states to use registration statutes to secure personal jurisdiction over foreign corporations’ activities (see ¶ 11).

By contrast, a state may exercise “general jurisdiction” over a corporation if its continuous corporate operations within the state are so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities. If a defendant is subject to general personal jurisdiction in a forum, it may be sued there even in the absence of any relationship between the litigation and the defendant’s contacts with the state (id.).

“In recent years, the Supreme Court clarified the limits the Fourteenth Amendment’s Due Process Clause places on the scope of general jurisdiction: A court may assert general jurisdiction over foreign … corporations to hear any and all claims against them when their affiliations with the State are so ‘continuous and systematic’ as to render them essentially at home in the forum State” (id.) (internal quotations omitted).

In this case the issue was whether appointment of a registered agent under Wis. Stat. section 180.1507, which requires each foreign corporation authorized to transact business in this state to maintain a registered office and registered agent here, constitutes consent to general jurisdiction in this state. The supreme court concluded that “[b]ecause the text of § 180.1507 does not even mention jurisdiction, much less consent, Countrywide’s compliance with the statute does not, on its own, confer jurisdiction. We therefore hold that compliance with § 180.1507 does not subject Countrywide to general jurisdiction in Wisconsin…” (¶ 1).

The majority noted that “our holding does not bar the courtroom door to plaintiffs with claims against foreign corporations. Under the doctrine of specific jurisdiction, plaintiffs may seek relief from foreign corporations in Wisconsin courts when a nexus exists between the cause of action and the corporation’s in-state activities. Indeed, we remand to the court of appeals to consider whether Wisconsin courts may exercise specific jurisdiction over Countrywide in this case. But the Fourteenth Amendment’s Due Process Clause restricts the exercise of general jurisdiction over foreign corporations to those cases in which the nature of a foreign corporation’s operations render it ‘at home’ in this state. Because Countrywide is incorporated and maintains its principal place of business elsewhere, it is not ‘at home’ in Wisconsin” (¶ 30).

Justice Ann Walsh Bradley filed a dissenting opinion that was joined in by Justice Abrahamson. Justice Kelly did not participate in this case.

Constitutional Law

Crime Victims Rights Board – Power to Discipline a Judge – Separation of Powers

Gabler v. Crime Victims Rights Bd., 2017 WI 67 (filed 27 June 2017)

HOLDING: Wisconsin Statutes sections 950.09(2)(a), (2)(c)-(d), and (3), and 950.11 (2015-16) are unconstitutional with respect to judges.

SUMMARY: Eau Claire County Circuit Judge William Gabler ordered separate trials in a case in which the defendant was charged with sexually assaulting two minors. The trial involving the first victim was held in January 2012 and resulted in a jury verdict convicting the defendant. The trial involving the second victim was scheduled for August 2012, and Judge Gabler decided to postpone the sentencing in the first matter until after the second trial was completed. The judge articulated numerous reasons for exercising his discretion with respect to scheduling the sentencing in this case, which took into account both the rights of the first victim and the defendant’s rights.

The first victim filed a formal complaint with the Crime Victims Rights Board (the Board) alleging that Judge Gabler’s decision to postpone sentencing abridged her speedy disposition right under Wis. Stat. section 950.04(1v)(k) and her rights to timely disposition and protection from the accused under article I, section 9m of the Wisconsin Constitution.

After Judge Gabler filed a response to the complaint, the Board issued a probable-cause determination that the judge violated the first victim’s statutory and constitutional rights to a timely disposition of the criminal matter by postponing the defendant’s sentencing on the January 2012 conviction. It later issued a final decision and order to the same effect. As a remedy, the Board chose to “issue a Report and Recommendation directed to Gabler consistent with its Final Decision and Order” (¶ 22).

Judge Gabler then sought review of the Board’s decision under Wis. Stat. chapter 227. In that case the circuit court reversed the Board’s decision and remanded the matter to the Board with directions to dismiss the complaint against Gabler. The Board appealed to the court of appeals. The court of appeals certified the case to the supreme court, which granted certification. In a majority opinion authored by Justice Rebecca G. Bradley, the supreme court affirmed the circuit court.

The majority identified the fundamental constitutional question posed by this case as follows: “May an executive agency, acting pursuant to authority delegated by the legislature, review a Wisconsin court’s exercise of discretion, declare its application of the law to be in error, and then sanction the judge for making a decision the agency disfavors?” (¶ 36). Applying separation of powers principles, the court concluded that “the answer to this question is unequivocally no” (id.).

Said the court, “[n]either the executive branch nor the legislature may reprimand or otherwise discipline a Wisconsin judge. The Wisconsin Constitution reserves such disciplinary powers for the supreme court alone. Nor may the legislature empower the executive branch to threaten any judicial officer with repercussions for exercising constitutional power vested exclusively in the judiciary…. By statutorily authorizing executive action against the judiciary, the legislature unconstitutionally conferred power on an executive board to impair, improperly influence, and regulate the judiciary’s exercise of its constitutional duties. Specifically, the legislature transgressed the constitutional boundaries of its powers by authorizing the Crime Victims Rights Board (the ‘Board’) to investigate and adjudicate complaints against judges, issue reprimands against judges, and seek equitable relief and forfeitures through civil actions against judges. We therefore affirm the decision of the circuit court and hold that Wis. Stat. §§ 950.09(2)(a), (2)(c)-(d) and (3) and 950.11 (2015-16) are unconstitutional with respect to judges” (¶¶ 1-2).

The majority closed its opinion by reaffirming the supreme court’s commitment to upholding the crime victims’ rights enshrined in our statutes and constitution. Said the court: “Although we prohibit the Board from disciplining judges because executive review of judicial decisions violates fundamental separation of powers principles, crime victims nonetheless have recourse for their grievances against judges. Wisconsin Stat. § 950.105 assures victims a mechanism for directly asserting their own rights in court. We reserve for future cases more comprehensive discussion of the interplay between victims’ rights and procedural tools, such as intervention, writs of mandamus, and supervisory writs” (¶ 59).

Justice Abrahamson filed a separate opinion concurring in part and dissenting in part. Justice Ann Walsh Bradley did not participate in this case.

Criminal Law

Failure to Protect a Child from Sexual Assault – First-degree Sexual Assault of a Child Under Age 13 – Child Enticement – Multiplicity

State v. Steinhardt, 2017 WI 62 (filed 21 June 2017)

HOLDINGS: 1) Charges of failure to protect a child from sexual assault and first-degree sexual assault of a child under the age of 13 years were not multiplicitous. 2) Charges of failure to protect a child from sexual assault and child enticement were not multiplicitous.

SUMMARY: Over the course of three years, the defendant’s husband repeatedly expressed to the defendant an interest in having sex with the defendant’s daughter. Ultimately the defendant acquiesced and brought her daughter into a bedroom of their home where the husband was lying on the bed under the covers. The defendant told her daughter to take off her clothes. While the defendant remained in the room sitting on the bed, the husband engaged in three distinct sexual acts with the daughter. After the husband was finished, the daughter left the room to take a shower, and her mother (the defendant) followed her into the bathroom.

The state charged the defendant with failure to protect a child from sexual assault contrary to Wis. Stat. section 948.02(3) (Count 1), first-degree sexual assault of a child under 13 as a party to a crime contrary to Wis. Stat. sections 948.02(1)(e) and 939.05 (Count 2), and child enticement contrary to Wis. Stat. section 948.07(1) (Count 3). The defendant pleaded no contest to all three counts and received a lengthy sentence.

In a postconviction motion, the defendant asked the circuit court to vacate her conviction on Count 1, arguing that Counts 1 and 2 are multiplicitous. The circuit court denied the motion and, in an unpublished per curiam decision, the court of appeals affirmed. In a majority decision authored by Justice Gableman, the supreme court affirmed the court of appeals.

The court uses a two-pronged test to determine whether charges are multiplicitous. Under the first prong, the question is whether the charged offenses are identical in law and in fact. In this case there was no trial, and no testimony about the facts of the case was elicited at the plea hearing; thus, the court looked to the criminal complaint to resolve the multiplicity issue. It concluded that Counts 1 and 2 are identical in law by operation of Wis. Stat. section 939.66(2)(p), which makes failure to protect a child from sexual assault a lesser-included offense of first-degree sexual assault of a child under the age of 13 (see ¶ 15).

However, the court concluded that the two crimes are not identical in fact. Charged offenses are not multiplicitous if the facts are either separated in time or are of a significantly different nature. Though the pleadings in this case did not reveal exactly how much time elapsed between the crimes, the court was able to discern acts that are significantly different in nature such that it could conclude that Counts 1 and 2 are not multiplicitous (see ¶ 19).

“Here, we have an act of omission – [the defendant] sitting on the bed observing [the husband] sexually assault her child – supporting Count 1 and an act of commission – [the defendant] bringing her daughter to the bedroom – supporting Count 2…. [T]here is a difference in [the defendant’s] conduct that amounts to a significant change in activity. Sitting on the bed is a departure from bringing [the daughter] to the bedroom and represents a change in [the defendant’s] activity such that her conduct is different in nature…. [H]ere we have a change that had to take place between [the defendant] acting in the first instance (bringing her daughter into the bedroom) and [the defendant] failing to act (sitting on the bed and observing [the husband] sexually assault her daughter) in the second. Furthermore, [the daughter] was subjected to a new and different humiliation, danger, and pain with each act her mother took. Consequently, we conclude that Counts 1 and 2 are not identical in fact…” (¶ 23).

Having determined that Counts 1 and 2, while identical in law, are not identical in fact, the majority turned to the second prong of the test for multiplicity to determine whether the legislature intended cumulative punishments for the defendant’s conduct. The defendant bears the burden of proving that the legislature did not intend to authorize cumulative punishments.

The courts use four factors to examine legislative intent under this second prong: 1) all applicable statutory language; 2) the legislative history and context of the statutes; 3) the nature of the proscribed conduct; and 4) the appropriateness of multiple punishments for the conduct (see ¶ 25). In reviewing these four factors, the majority found nothing “either individually or in the aggregate, that overcomes the presumption that the legislature intended for cumulative punishments” (¶ 35).

The defendant also argued that concluding that her convictions on Count 1 and Count 2 do not violate double jeopardy creates a double jeopardy problem with Count 3 because Count 3 is supported by the same conduct as Count 1. The court rejected this contention “because child enticement is a wholly different statute with different elements, making Count 3 different in law from Count 1”
(¶ 36). And, again using the four-factor test described above, the majority concluded that the defendant failed to overcome the presumption that it is appropriate to impose multiple punishments.

Justice Abrahamson filed a dissenting opinion that was joined in by Justice Ann Walsh Bradley.

Self-defense – Jury Instructions

State v. Stietz, 2017 WI 58 (filed 13 June 2017)

HOLDING: The trial court committed reversible error in not instructing the jury on self-defense.

SUMMARY: The defendant was convicted of resisting law enforcement officers and intentionally pointing a firearm at an officer. The case arose from a confrontation between the defendant and DNR wardens, whom the defendant allegedly mistook for armed trespassers. The trial court refused to instruct the jury on self-defense. In an unpublished decision, the court of appeals affirmed.

The supreme court reversed the conviction in an opinion authored by Justice Abrahamson, joined by three other justices. The opinion discusses self-defense in depth, concluding that sufficient evidence supported a self-defense instruction. A reasonable factfinder could have found that the defendant reasonably and actually believed that the two armed men on his property were trespassers, not DNR wardens, who were hunting illegally and that their attempts to disarm him constituted unlawful interference with his person that caused him to fear for his life when he pointed his own handgun at them.

“In sum, the jury could conclude that the defendant threatened to use force as he reasonably believed necessary to prevent or terminate the interference with his person” (¶ 6). Although the defendant’s story was inconsistent and contradicted, he nonetheless satisfied the “some evidence” standard that entitled him to the instruction (¶ 60). The error affected his substantial rights.

Justice Rebecca G. Bradley concurred in the majority’s self-defense analysis but also concluded that the trial court erred by not permitting the defendant’s “trespass” defense (¶ 72). She was joined by Justice Kelly and, except for part II, by Chief Justice Roggensack.

Justice Ziegler, joined by Justice Gableman, dissented. They concluded that the trial court properly rejected the defendant’s request for a self-defense instruction and that any error was harmless (see ¶¶ 102-103).

Justice Ann Walsh Bradley did not participate in this case.

Criminal Procedure

Expungement – Failure to Successfully Complete Conditions of Probation

State v. Ozuna, 2017 WI 64 (filed 22 June 2017)

HOLDING: The circuit court correctly denied expungement of the defendant’s convictions because he failed to successfully complete the conditions of his probation.

SUMMARY: Defendant Ozuna was convicted of two misdemeanors and placed on probation for 12 months. The circuit court determined that Ozuna’s convictions were eligible for expungement under Wis. Stat. section 973.015 if Ozuna satisfied the probation conditions, one of which was that he refrain from consumption of alcohol.

After Ozuna was discharged from probation, the Department of Corrections filed a form with the circuit court entitled “Verification of Satisfaction of Probation Conditions for Expungement.” The agent marked a box on the form indicating that the defendant had successfully completed probation but also noted on the form that he had failed to comply with the probation condition regarding alcohol consumption. Thereupon the circuit court entered an order denying expungement of Ozuna’s record. In an unpublished decision, the court of appeals affirmed the circuit court.

In a majority opinion authored by Justice Gableman, the supreme court affirmed the court of appeals. The expungement statute provides a three-part definition of what it means to “successfully complete the sentence” for purposes of earning expungement: A person has successfully completed the sentence if 1) the person has not been convicted of a subsequent offense and, if on probation, 2) the probation has not been revoked, and 3) the probationer has satisfied the conditions of probation. See Wis. Stat. § 973.015(1m)(b). If a probationer satisfies these three criteria, he or she has earned expungement and is automatically entitled to expungement of the underlying charge. See State v. Hemp, 2014 WI 129, 359 Wis. 2d 320, 856 N.W.2d 811. In this case defendant Ozuna clearly violated a court-ordered condition of probation (a violation he did not contest), and thus he did not satisfy the conditions of his probation. Accordingly, the circuit court properly denied expungement of his record (see ¶ 19).

The defendant also argued that the circuit court deprived him of his constitutional right to procedural due process by denying expungement without notice and an opportunity to be heard. The majority rejected this challenge because Ozuna did not point to any relevant factual dispute that such a hearing could have resolved. “Because Ozuna was not entitled to expungement based on his failure to satisfy the no-alcohol condition, we also conclude that there was no violation of due process in this case, because Ozuna does not challenge the underlying facts” (¶ 26).

In a footnote, the majority indicated that this case did not provide the occasion in which to set forth the procedures a court should use when factual matters affecting expungement are disputed (see ¶ 14 n.9).

Justice Ann Walsh Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

Substitutions – Timeliness

State v. Zimbal, 2017 WI 59 (filed 14 June 2017)

HOLDING: Under the unique circumstances of this case, the defendant’s request for substitution was timely because he followed the circuit court’s instructions.

SUMMARY: In this criminal case, the circuit court and the court of appeals found that the defendant had not timely invoked his right to substitute the circuit court judge. The defendant’s request, following a remittitur, came after the 20-day time limit set forth in Wis. Stat. section 971.20(7).

The supreme court reversed in an opinion authored by Justice Ann Walsh Bradley. “We conclude that under the unique circumstances presented here, when a defendant follows a circuit court’s instruction to defer filing a request for substitution of a judge until after counsel is appointed, that strict compliance with the 20-day deadline for filing a request for substitution after remittitur is not warranted” (¶ 3). Essentially, the circuit court extended the deadline until after the defendant’s trial counsel was appointed (see id.).

The opinion also addresses the distinctions between a “recusal” and a “substitution” (¶ 23). The majority stressed that the normal rule is one of “strict adherence” to the statute (¶ 40).

Chief Justice Roggensack concurred but did not join the majority’s opinion because it was too “amorphous” to provide meaningful guidance in future cases (¶ 54). She was joined by Justice Rebecca G. Bradley and Justice Kelly.

Justice Ziegler also concurred. She joined the opinion of the court but wrote separately to emphasize that judicial substitutions are matters of “legislative grace, not constitutional mandate” (¶ 74).

Subpoenas – Service

State v. Wilson, 2017 WI 63 (filed 22 June 2017)

HOLDING: A witness was properly served with a subpoena left at the witness’s abode, pursuant to Wis. Stat. section 885.03.

SUMMARY: Facing drug charges, the defendant moved to suppress evidence based on an unlawful stop of his vehicle. A crucial defense witness did not appear at the suppression hearing even though a subpoena had been left at her residence. The trial judge ruled that she had been improperly served because only one attempt had been made to serve her; the judge refused to issue a body attachment or adjourn the hearing. The trial court denied the motion to suppress, and the defendant pleaded guilty. In an unpublished opinion, the court of appeals affirmed.

The supreme court reversed the court of appeals in an opinion authored by Justice Ann Walsh Bradley that parses the statutes governing subpoena service in both civil and criminal cases.

“Because Wis. Stat. § 972.11(1) explicitly references Chapter 885, it is the more specific textual provision. In contrast, the rules of civil procedure are only generally applied to criminal cases through Wis. Stat. § 972.11(1). Thus, service of a witness subpoena in a criminal proceeding is controlled by Wis. Stat. § 885.03, rather than by the rules of civil procedure” (¶ 36).

“[A] lthough both the civil and criminal procedures statutes incorporate Wis. Stat. § 805.03, they do so differently. In the civil context, Wis. Stat. § 885.03 is modified by Wis. Stat. §§ 805.07 and 801.11 by providing for substituted service premised on a reasonable diligence requirement. However, in the criminal context, the procedures set forth in Wis. Stat. § 885.03 are unaltered” (¶ 46).
These procedures include leaving a subpoena at the witness’s abode with no reasonable diligence mandated (see id.).

Thus, the defense witness was properly served. Accordingly, the supreme court reversed the court of appeals and remanded the case to the circuit court for a continuance of the suppression hearing so that the defendant may take the witness’s testimony (see ¶ 54).

Justice Ziegler, joined by Justice Gableman, dissented on grounds that the error should have been assessed as ineffective assistance of counsel because counsel failed to object.

Severance – Bruton Rule – Confrontation

State v. Nieves, 2017 WI 69 (filed 29 June 2017)

HOLDING: The state’s use of a nontestimonial, incriminating statement by a codefendant did not violate the confrontation right or necessitate severance under the Bruton rule.

SUMMARY: Defendant Nieves and an accomplice, Moldanado, were jointly tried and convicted for a murder. Among the evidence the state introduced was Maldonado’s incriminating postarrest statement to another jail inmate. The circuit court had denied Nieves’ motion to sever, and Maldonado did not testify. In an unpublished decision, the court of appeals reversed on Bruton grounds.

The supreme court reversed the court of appeals in an opinion authored by Chief Justice Roggensack. The Bruton rule (see 391 U.S. 123 (1968)) excludes evidence of an accomplice’s postarrest statement unless the accomplice testifies, thus providing an opportunity for cross-examination by the defendant. The court agreed with case law from other states and a majority of federal circuits holding that Bruton had been reconfigured by the Crawford rule, which currently governs the right of confrontation. See Crawford v. Washington, 541 U.S. 36 (2004) (¶¶ 33-34).

When an accomplice’s postarrest statement is not “testimonial” under the Crawford rule, Bruton does not apply. Statements to “non-law enforcement individuals” are “unlikely” to be testimonial (¶ 44). Examining the setting, context, and content of the accomplice’s jail statements, the court held that these were nontestimonial (see ¶ 50). Briefly addressing two other issues, the court held that any error in failing to sever the trials pursuant to Wis. Stat. section 971.12(3) was harmless, as was the state’s use of a piece of inadmissible hearsay.

Justice Ann Walsh Bradley, joined by Justice Abrahamson, dissented on grounds that the joint trial violated the clear language of Wis. Stat. section 971.12(3) and that the error was not harmless. The dissent saw no need to plunge into Bruton’s current status.

Search and Seizure – Automobiles – Community Caretaking

State v. Asboth, 2017 WI 76 (filed 6 July 2017)

HOLDING: A warrantless seizure of a car was lawful under the community caretaker doctrine.

SUMMARY: Police officers arrested the defendant while he was at a storage facility. His car remained parked in an alley nearby, impeding access to several storage units. Officers had the car towed to the police station, where they conducted an inventory search. Among the items recovered was a pellet gun of the type used in a recent robbery for which the defendant was a suspect. The circuit court denied the defendant’s motion to suppress evidence seized during the car search. In an unpublished decision, the court of appeals affirmed.

The supreme court affirmed the court of appeals in an opinion authored by Justice Rebecca G. Bradley that plumbs the so-called community caretaker doctrine. The doctrine applies when police officers 1) seize property 2) while “exercising a bona fide community caretaker function,” provided 3) the public interest outweighs the intrusion on privacy (¶ 13). 

“Collectively, the functions of removing an obstruction inconveniencing the property’s users and protecting an arrestee’s property during his detention, combined with uncertainty regarding the true ownership of the vehicle, establish that the officers had a bona fide community caretaker purpose when impounding Asboth’s car” (¶ 21). That the police may have also harbored an “additional investigatory interest” did not change the outcome (id.).

The court rebuffed the argument that the police must act under preexisting standards in conducting an inventory search. Adopting an approach taken by three federal circuits, the court held it was a matter of reasonableness. “Accordingly, we hold that the absence of standard criteria does not by default render a warrantless community caretaker impoundment unconstitutional under the Fourth Amendment reasonableness standard. Nor does law enforcement officers’ lack of adherence to standard criteria, if they exist, automatically render such impoundments unconstitutional” (¶ 27).

The court held that the police in this case acted reasonably in seizing the car and conducting the inventory search regardless of any standards (see ¶ 36).

Justice Ann Walsh Bradley, joined by Justice Abrahamson, dissented. They criticized Wisconsin’s adoption of a “minority rule” that does not require that police followed standardized procedures during community caretaking impoundments and inventory searches. The majority opinion, they contend, “errs by expanding an already bloated community caretaker exception” (¶ 39).

Traffic Stops – Lawful Duration – Consent to Search

State v. Floyd, 2017 WI 78 (filed 7 July 2017)

HOLDINGS: A deputy sheriff did not prolong the traffic stop of the defendant in violation of the Fourth Amendment, and the defendant’s consent to search obtained during the stop was freely and voluntarily given.

SUMMARY: A deputy sheriff stopped a vehicle driven by defendant Floyd for a registration violation. In the initial contact with Floyd, the deputy determined that he had no driver’s license or insurance information with him. After obtaining Floyd’s state identification card, the deputy returned to his squad to draft traffic citations and to contact his dispatcher to send a canine unit or other backup squad. No canine unit was available but a backup squad did arrive while the deputy was completing the citations.

The deputy reestablished contact with Floyd approximately five to six minutes after pulling him over and, while maintaining possession of Floyd’s identification card and the multiple citations, asked Floyd to exit the vehicle so he could explain the citations. After Floyd complied, the deputy asked him if he had any weapons or anything that could harm him. After Floyd indicated he did not, the deputy asked if he could perform a search for his safety. Floyd consented and, during the ensuing search, the deputy discovered the illegal drugs that led to the charges in this case.

The defendant moved to suppress the drugs, claiming that the deputy unlawfully extended the traffic stop in violation of the Fourth Amendment and that the consent to search was accordingly tainted. The circuit court denied the motion and the defendant was convicted on a plea of no contest. In a published decision, the court of appeals affirmed. See 2016 WI App 64. In a majority decision authored by Justice Kelly, the supreme court affirmed the court of appeals.

The majority commenced its analysis by noting that “[a] motorist is lawfully seized during the proper duration of a traffic stop, but unlawfully seized if it lasts longer than necessary to complete the purpose of the stop” (¶ 15). “[W]e draw the line between traffic stops of proper duration and those that extend into unconstitutional territory according to functional considerations…. Generally speaking, an officer is on the proper side of the line so long as the incidents necessary to carry out the purpose of the traffic stop have not been completed, and the officer has not unnecessarily delayed the performance of those incidents” (¶ 22).

While in this case the deputy could certainly take the necessary time to write the citations, the defendant claimed that he unlawfully extended the stop by asking about weapons and for permission
to search. The majority replied that
“[a]lthough Mr. Floyd’s argument incorporates the principle that the ‘mission’ of the traffic stop defines its acceptable duration, he does not account for how the officer’s safety fits within that mission” because “officer safety [is] an integral part of every traffic stop’s mission”
(¶ 26). “Thus, the questions to which Mr. Floyd objects are appropriate if they are negligibly burdensome precautions to ensure the officer’s safety during the stop” (¶ 27).

On the facts of this case the court concluded that the questions specifically related to officer safety and they were negligibly burdensome; accordingly, they were part of the traffic stop’s mission and did not cause an unlawful extension of the stop (see ¶ 28).

Having determined that the consent was obtained during the lawful parameters of a traffic stop, the majority next considered whether the consent was freely and voluntarily given. It concluded that “[t]he routine act of retaining an identification card or driver’s license during a traffic stop, without more, is insufficient evidence of the type of duress or coercion capable of making consent something less than voluntary. If it were otherwise, it would be virtually impossible to obtain consent to a search during a traffic stop” (¶ 32).

Moreover, the deputy did not employ any misrepresentation, deception, or trickery in seeking consent nor were any threats or physical intimidation used. And, though the deputy did not inform Floyd that he could withhold consent, that factor was insufficient by itself to question the voluntariness of the consent (see ¶ 33).

Lastly, the court concluded that Floyd did not receive ineffective assistance of counsel when his attorney failed to pre-sent certain evidence at the suppression hearing (see ¶¶ 35-42).

Justice Ann Walsh Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

Fair Dealership Law

Cities – Municipal Golf Courses – Immunity

Benson v. City of Madison, 2017 WI 65 (filed 22 June 2017)

HOLDINGS: The Wisconsin Fair Dealership Law (WFDL) applies to cities, Madison’s relationships with golf professionals managing municipal golf courses were dealerships, their lawsuit was not time barred, and the city was not immune from the lawsuit.

SUMMARY: The city of Madison owns four public golf courses. It entered into operating agreements with golf pros to manage each course. In 2012, the city gave notice that it would not renew the agreements. The golf pros sued the city on grounds that it had violated their dealership rights under the WFDL. The circuit court granted summary judgment in favor of the city and, in an unpublished decision, the court of appeals affirmed.

The supreme court reversed the court of appeals in an opinion authored by Justice Ziegler. The court held that “the WFDL applies to the City; that the relationships between the Golf Pros and the City are ‘dealerships’ under the WFDL; that the Golf Pros’ lawsuit is not time-barred; and that the City is not immune from the lawsuit” (¶ 5).

First, cities fell within the WFDL’s definition of “person” and were not among those parties excluded from its reach (¶¶ 24, 32). Second, the city’s relationships with the golf pros constituted dealerships, the court’s analysis centering on the right to sell or distribute goods and services and the creation of a “community of interest” (¶ 47). In particular, there was a continuing financial interest between the grantor and grantee; the city had the power to terminate, cancel, or not renew the relationship – a “substantial threat” to the golf pros’ “economic health” (¶ 53).

The court also held that the golf pros’ lawsuit was not time barred when considered in the context of the notice-of-claims requirements, which gave them one year and 120 days to file (see ¶ 60). Finally, the city’s decision was not shielded by immunity, even though it was discretionary (see ¶ 62).

Justice Kelly concurred in the opinion but elaborated on the “goods and services” aspect of the dealership analysis.

Justice Abrahamson, joined by Justice Ann Walsh Bradley, dissented on grounds that this was an issue of first impression and that the WFDL does not apply to municipalities (see ¶ 70).

Motor Vehicle Law

Operating After Revocation Causing Death – Felony-Misdemeanor Classification of Offense

State v. Villamil, 2017 WI 74 (filed 6 July 2017)

HOLDINGS: 1) The defendant was appropriately convicted of a Class H felony for causing the death of another person while driving with a license that he knew was revoked. 2) Consideration of the operating after revocation (OAR) sentencing factors codified in Wis. Stat. section 343.44(2)(b) is mandatory.

SUMMARY: Defendant Villamil drove into the rear of another vehicle, killing the other driver. At the scene of the accident, he admitted to a police officer that his operating privilege had been revoked because of an operating while intoxicated (OWI) conviction. Villamil was charged with OAR, causing death, contrary to Wis. Stat. section 343.44(1)(b) and (2)(ar)4. Section 343.44(1)(b), operating after revocation, provides in relevant part that no person may knowingly operate a motor vehicle after revocation. Additionally, section 343.44(2)(ar)4, provides that a person who violates section 343.44(1)(b) and causes the death of another person shall be charged with a misdemeanor, except “if the person knows at the time of the violation that his or her operating privilege has been revoked, the person is guilty of a Class H Felony.”

The defendant challenged this statutory scheme, claiming that it is ambiguous as to whether he should have been charged with a felony or a misdemeanor and that the rule of lenity requires a charge only at the misdemeanor level. He also contended that the statutory scheme violates due process because it fails to give fair notice of the proscribed conduct and its consequences. He also lodged an equal protection claim.

The circuit court rejected these challenges and, in a published decision, the court of appeals affirmed. See 2016 WI App 61. In a majority decision authored by Justice Ann Walsh Bradley, the supreme court affirmed the court of appeals.

The defendant’s principal argument focused on the “knowledge” element in the two OAR crimes under scrutiny. A person’s knowledge that his or her operating privilege is revoked is an element of the misdemeanor offense. Yet it is that same knowledge that distinguishes the felony from the misdemeanor offense.

The majority concluded that this statutory scheme is ambiguous. However, it declined to apply the rule of lenity because it could discern the intent of the legislature by resort to legislative history.

Said the court: “the legislative history clarifies that the legislature intended to write these provisions so that when a person causes the death of another while committing an OAR violation, the penalty would be less severe if the defendant did not know his license was revoked and more severe if he knew. Specific to this case, the legislative history shows the legislature’s intent to treat an OAR-causing death offense as a misdemeanor if the defendant did not know his license had been revoked and as a Class H felony if he knew” (¶ 33).            

“It appears, however, that the legislature failed to remove the ‘knowledge’ element from the misdemeanor language of Wis. Stat. § 343.44(1)(b) [in recent amendments to that statute] and thus failed to accomplish the first part of this intent. Nevertheless, in his case, Villamil caused the death of another and knew his license had been revoked. The legislative history shows, and Villamil acknowledges, that the legislature intended to treat his offense as a Class H felony. Given this clarification, the rule of lenity cannot be invoked” (¶ 34). Villamil was appropriately charged with the Class H felony (see ¶ 38).

The majority also concluded that the defendant failed to demonstrate that the OAR statute is unconstitutional. As for his due process (lack-of-notice) challenge, the court concluded that “[a]lthough a defendant could be charged with a misdemeanor instead of a felony for a knowing violation of OAR-causing death, the public is on notice that this offense may be punished as a Class H felony pursuant to Wis. Stat. §§ 343.44(1)(b) and (2)(ar)4. Because Villamil knew he was operating after his license was revoked, the statutes provide sufficient notice that this violation could be charged as a felony” (¶ 49).

Further, regarding the equal protection challenge, the court found no evidence to support a claim that the decision to charge the defendant with a felony was based on an unjustifiable standard such as race, religion, or other arbitrary classification (see ¶ 5).

Although it upheld the OAR statute in the face of these challenges, the court nonetheless remanded the case to the circuit court for resentencing. It did so because at the original sentencing hearing the trial judge failed to consider the specific factors that the OAR statute specifies “shall” be considered at sentencing. See Wis. Stat. § 343.44(2)(b). Consideration of these factors is mandatory (see ¶ 60).

Justice Kelly filed a concurring opinion that was joined in by Justice Rebecca G. Bradley. Justice Abrahamson filed a dissent.

Implied Consent – Drivers Involved in Accidents Causing Death or Great Bodily Harm – Wis. Stat. Section 343.305(3)(ar)2.

State v. Blackman, 2017 WI 77 (filed 7 July 2017)

HOLDINGS: 1) Revocation of the operating privilege is unenforceable against a driver who has refused a test under Wis. Stat. section 343.305(3)(ar)2. if the driver requests a refusal hearing. 2) The defendant’s consent to a blood draw was coerced because he had been misinformed about the consequences of a refusal to consent to a blood draw.

SUMMARY: Traditionally, the implied-consent law (Wis. Stat. section 343.305) has applied to drivers arrested for an operating while intoxicated (OWI)-related offense. However, in 2009, the legislature amended the statute to include situations in which the driver has been involved in an accident causing death or great bodily harm to another and the officer has reason to believe that the driver violated any state or local traffic law. See Wis. Stat. § 343.305(3)(ar)2.

In this case, defendant Blackman was involved in an accident that caused great bodily harm to a bicyclist. The investigating deputy had no reason to suspect that Blackman was driving under the influence of an intoxicant but he nonetheless invoked the implied consent law and sought a blood sample from the defendant. He read to Blackman the Informing the Accused form (standard practice when seeking a breath, blood, or urine sample under the implied consent law). That form told Blackman that his operating privilege would be revoked if he refused to submit to a test. Blackman consented and a test of his blood revealed an alcohol concentration of 0.104.

A bevy of OWI-related charges followed. In that prosecution the defendant moved to suppress the results of the blood draw, arguing that revocation of the operating privilege is not possible when a driver has refused a test under Wis. Stat. section 343.305(3)(ar)2. if the driver requests a refusal hearing. This is because at such a hearing the prosecution must prove inter alia that the officer had probable cause to arrest the driver for an OWI-related offense.         

Because the officer lacked such probable cause in his case, Blackman argued that his consent to the blood draw was coerced because the officer threatened him with revocation when that result could not happen if the defendant requested a refusal hearing. The circuit court agreed and suppressed the evidence. In a published decision, the court of appeals reversed. See 2016 WI App 69.

In a majority decision authored by Justice Abrahamson, the supreme court reversed the court of appeals. It concluded that “revocation of the operating privilege is unenforceable against a driver who has refused a test under Wis. Stat. § 343.305(3)(ar)2. if the driver requests a refusal hearing” (¶ 40). As stated above, the prosecution of the implied-consent case is doomed to failure if the officer did not have probable cause to believe that the driver was under the influence because this is one of the elements of an implied-consent case.

“Because the State cannot prevail at a refusal hearing following a driver’s denial of a request for a blood test under Wis. Stat. § 343.305(3)(ar)2., the Deputy Sheriff’s reading of the text of the `Informing the Accused’ form misstated that Blackman’s operating privilege will be revoked” (¶ 51).

The majority further concluded that Blackman’s consent to the blood draw was obtained through this misrepresentation about the consequences of a refusal, thus rendering his consent coerced. “Considering the totality of the circumstances, we conclude that the State failed to meet its burden to prove that Blackman voluntarily and freely consented to the blood draw under the Fourth Amendment. All things considered, Blackman’s consent to the blood draw was not voluntary and free, and was not an unconstrained choice; it was the product of coercion, express or implied, and therefore was invalid under the Fourth Amendment” (¶ 66).

Lastly, the majority declined to rescue the State’s evidence in this case by application of the “good faith” exception to the exclusionary rule (see ¶¶ 68-82).

Justice Ziegler filed a concurring opinion that was joined in by Justice Gableman. Chief Justice Roggensack filed a dissent.

OWI – Consent to Withdraw Blood – Implied Consent

State v. Brar, 2017 WI 73 (filed 6 July 2017)

HOLDING: There was no majority opinion in this case. However, five justices agreed that the circuit court correctly denied the defendant’s motion to suppress the results of a blood test administered after he was arrested for operating while intoxicated (OWI).

SUMMARY: Defendant Brar was arrested for OWI. The officer read to him the standard Informing the Accused form used to advise arrestees about the implied-consent law. The circuit court found that Brar consented to a blood draw after being read the information from the form. After he consented to the draw, Brar inquired whether the officer needed a warrant to take his blood; the officer responded in the negative. The blood was drawn and the results showed that Brar had a blood alcohol content of 0.186. He moved to suppress this evidence in the subsequent OWI prosecution. The circuit court denied the motion, finding that Brar consented to the blood draw. In an unpublished opinion, the court of appeals affirmed.

The supreme court affirmed the court of appeals; however, there was no majority opinion in this case. The court’s lead opinion was authored by Chief Justice Roggensack and joined in by Justice Ziegler and Justice Gableman. The lead opinion began its analysis by noting that consent under the Fourth Amendment may be in the form of words, gesture, or conduct and that, through conduct, one may impliedly consent to be searched (see ¶ 17). “An individual’s consent given by virtue of driving on Wisconsin’s roads, often referred to as implied consent, is one incarnation of consent by conduct” (¶ 21).

Thus, in this case, Brar consented to the blood draw under Wisconsin’s implied-consent law because he had “availed himself of the roads of Wisconsin” (¶ 29). See Wis. Stat. § 343.305. Moreover, the lead opinion also concluded that Brar reaffirmed his consent to the blood draw through his responses to the officer’s questions that asked him if he would submit to the blood draw (see ¶ 30).

Lastly, the lead opinion found that Brar’s consent to the blood draw (obtained under the implied-consent law and in his later reaffirmation of his previously given implied consent) was voluntary under the totality of the circumstances. Brar was informed of his opportunity to withdraw consent when the officer read him the Informing the Accused form (see ¶ 39). And the officer’s response that he did not need a warrant given in reply to Brar’s question about a warrant “did not vitiate the voluntariness of Brar’s consent. After all, the officer did not need a warrant because Brar already had consented” (¶¶ 36-37).

Justice Rebecca G. Bradley filed a separate opinion concurring in the court’s mandate to affirm the court of appeals; she also joined the part of Justice Kelly’s concurrence that joined the lead opinion’s discussion of Brar’s express consent to the blood draw. Justice Kelly did not join any part of the lead opinion’s discussion of implied consent.

Justice Abrahamson filed a dissenting opinion that was joined in by Justice Ann Walsh Bradley.

Municipal Law

Town Board Highway Orders – Time Limit for Seeking Certiorari Review

Pulera v. Town of Richmond, 2017 WI 61 (filed 20 June 2017)

HOLDING: There was no majority opinion in this case. A synopsis of the lead opinion’s conclusions is presented below.

SUMMARY: This case was before the supreme court on certification from the court of appeals. The issue certified was as follows: what event triggers the 30-day period under Wis. Stat. section 68.13(1) (2013-14) during which certiorari review may be obtained for a town board’s highway order (see ¶ 1).

To address this issue, the court had to interpret the terms of Wis. Stat. section 68.13(1), the statute affording certiorari review, in accord with Wis. Stat. section 82.15, the statute governing appeals of highway orders (id.).

There was no majority opinion in this case. The lead opinion, authored by Chief Justice Roggensack and joined in by Justice Ziegler and Justice Gableman, concluded that “the thirty-day period during which certiorari review is available for a town board’s highway order to lay out, alter or discontinue a highway begins to run on the date that the highway order is recorded by the register of deeds. This interpretation best comports with the language and structure of Wis. Stat. § 68.13 and Wis. Stat. § 82.15. And, in addition, it provides aggrieved persons and parties a date certain for commencement of the thirty-day period during which judicial review of a highway order is available” (¶ 2).

Justice Rebecca G. Bradley filed a concurring opinion in which she joined in the mandate of the lead opinion remanding this matter for certiorari review but did not join in the lead opinion’s reasoning. Justice Ann Walsh Bradley filed a dissenting opinion joined in by Justice Abrahamson. Justice Kelly did not participate in this case.

Open Meetings Law

“Governmental Bodies” – School District Committees

State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., 2017 WI 70 (filed 29 June 2017)

HOLDING: The Appleton Area School District’s Communication Arts 1 Materials Review Committee (CAMRC) met the definition of “governmental body” under Wisconsin’s open meetings law and therefore was subject to its terms.

SUMMARY: The issue before the supreme court in this litigation was whether the Appleton Area School District’s CAMRC was a “governmental body” subject to Wisconsin’s open meetings law. Wisconsin Statutes section 19.82(1) provides in pertinent part that a “governmental body” means “a state or local agency, board, commission, committee, council, department or public body corporate and politic created by constitution, statute, ordinance, rule or order … or a formally constituted subunit of any of the foregoing….”

In this case the parent of a child who attended school in the Appleton District sued CAMRC and the Appleton Area School District Board of Education (the Board), alleging that CAMRC failed to comply with the open meetings law. The circuit court granted summary judgment in favor of the Board and CAMRC, concluding that CAMRC was not subject to the open meetings law. In an unpublished decision, the court of appeals affirmed the circuit court’s grant of summary judgment.

In a majority decision authored by Justice Gableman, the supreme court reversed the decision of the court of appeals and held that CAMRC met the definition of a “governmental body” under the open meetings law and therefore was subject to its terms.

Said the majority: “Where a governmental entity adopts a rule authorizing the formation of committees and conferring on them the power to take collective action, such committees are ‘created by … rule’ under § 19.82(1) and the open meetings law applies to them. Here, the Board’s Rule 361 provided that the review of educational materials should be done according to the Board-approved Assessment, Curriculum, & Instruction Handbook…. The Handbook, in turn, authorized the formation of committees with a defined membership and the power to review educational materials and make formal recommendations for Board approval. Because CAMRC was formed as one of these committees, pursuant to authority delegated to it by the Board by means of Rule 361 and the Handbook, it was ‘created by … rule’ and therefore was a ‘governmental body’ under § 19.82(1)” (¶ 2).

Justice Abrahamson filed a concurring opinion that was joined in by Justice Ann Walsh Bradley.

Taxation

Assessments – Homes

Milewski v. Town of Dover, 2017 WI 79 (filed 7 July 2017)

HOLDING: The town’s procedure requiring that homeowners permit a home inspection as a condition for challenging an assessment was not lawful.

SUMMARY: A town reassessed the value of homes for property tax purposes. Homeowners objected to the assessed value of their residence but refused to permit an assessor to inspect the home’s interior, as required by the town as a condition for challenging the assessment. Of the 43 homes in the parcel, the only two that saw an increased assessment were those whose owners refused to permit an inspection of the homes’ interiors. When the homeowners challenged the assessment, the circuit court ruled in favor of the town because the homeowners had failed to permit the inspection, as required for any challenge. In an unpublished decision, the court of appeals affirmed.

The supreme court reversed but produced no majority opinion. The lead opinion by Justice Kelly concluded that the town’s procedures, rooted in statute, violated the homeowners’ due process and Fourth Amendment rights. Essentially, the inspection constituted a search that did not qualify under the “special needs” doctrine and was unconstitutional absent a warrant or consent. Justice Rebecca G. Bradley joined this opinion.

Chief Justice Roggensack concurred only in the mandate. By statute the homeowners were entitled to a hearing despite their denial of an inspection. She further concluded that it was unnecessary to reach the constitutional issues.

Justice Ziegler also concurred in the mandate but declined to join the lead opinion. She disagreed with “the lead opinion’s unprecedented decision to rely on the ‘unconstitutional conditions doctrine,’ a term absent from the briefing in this case” (¶ 101). Justice Gableman joined this concurrence.

Justice Abrahamson, joined by Justice Ann Walsh Bradley, dissented on grounds that the homeowners failed to overcome the presumption that statutes are constitutional (see ¶ 107).

Torts

Civil Conspiracy – Misappropriation of Trade Secrets

North Highland Inc. v. Jefferson Machine & Tool Inc., 2017 WI 75 (filed 6 July 2017)

HOLDING: The circuit court properly granted summary judgment dismissing claims for civil conspiracy and misappropriation of trade secrets because the underlying evidence was speculative and raised no disputed issue of material fact.

SUMMARY: Unbeknownst to his employer, Trewyn entered into a partnership to form a new company that would compete with his current employer. The new company, Jefferson Machine & Tool Inc., submitted confidential bids on a manufacturing project for Tyson foods, as did Trewyn’s current employer, North Highland Inc. Jefferson Machine won the bid, but Tyson cancelled the contract when North Highland threatened legal action because Trewyn had been its employee and never disclosed the conflict. North Highland sued Jefferson Machine and others, alleging among other claims misappropriation of trade secrets and civil conspiracy (see ¶ 10). The circuit court granted summary judgment dismissing the claims for misappropriation and conspiracy. In an unpublished decision, the court of appeals affirmed.

The supreme court affirmed the court of appeals in an opinion authored by Justice Ann Walsh Bradley that confined itself to the summary judgment record. The court discussed civil conspiracy claims, concluding that there was insufficient evidence of such a conspiracy. No evidence showed that others in Jefferson Machine knew that Trewyn had bid for both competing companies (see ¶ 28). Thus, the record yielded only conjecture and speculation (see ¶ 34). For the same reasons, the misappropriation of trade secrets claim was also properly dismissed (see ¶ 43).

The supreme court declined to consider whether a bid amount constitutes a trade secret, concluding instead that there was no evidence of misappropriation (see ¶ 39).

Chief Justice Roggensack dissented. She contended that the defendants were not entitled to summary judgment and that claim preclusion did not bar North Highland’s claims (see ¶ 117).

Justice Rebecca G. Bradley, joined by Justice Kelly, also dissented. They concluded that a bid can be a trade secret and that Trewyn’s bankruptcy proceeding did not preclude North Highland’s claims.

Worker’s Compensation

Disability – Compensable Injury

Flug v. LIRC, 2017 WI 72 (filed 30 June 2017)

HOLDING: An employee is not eligible for benefits under Wis. Stat. section 102.42(1m) if the disability-causing treatment was directed at something other than the employee’s compensable injury.

SUMMARY: Flug worked at Wal-Mart. She suffered from both a soft-tissue strain and a degenerative disc disease. While being treated for the degenerative disc, she developed a permanent partial disability and sought worker’s compensation. The Labor and Industry Review Commission (LIRC) denied her claim. The circuit court affirmed on grounds that her surgery was unrelated to her compensable injury.

In an unpublished decision, the court of appeals reversed. It concluded that when, as here, an employee had a good-faith belief that her treatment was for a work-related injury, she could be compensated if the treatment left her disabled.

The supreme court reversed the court of appeals in an opinion authored by Justice Kelly. The court held “that an employee is not eligible for benefits under Wis. Stat. § 102.42(1m) if the disability-causing treatment was directed at treating something other than the employee’s compensable injury. Because Ms. Flug’s surgery treated her pre-existing condition, not her compensable injury, her claim must be disallowed” (¶ 42).

Chief Justice Roggensack dissented. She concluded that “Flug, who has sustained a compensable (work-related) injury from which began a continuing course of pain and who underwent surgery upon the advice of her medical doctor to alleviate that pain, is entitled to compensation pursuant to Wis. Stat. § 102.42(1m) if she accepted the physician’s advice and undertook surgery with the good faith belief that surgery would treat her work-related injury, even though surgery was unnecessary treatment for that injury” (¶ 45).

Justice Ann Walsh Bradley, joined by Justice Abrahamson, also dissented. They underscored the “messy record” made by LIRC and urged the matter be remanded to LIRC for a new hearing (¶ 111).