Criminal Procedure

Double Jeopardy – Determining the Scope of Jeopardy

State v. Schultz, 2020 WI 24 (filed 4 March 2020)

HOLDING: When the entire record of the defendant’s first trial is considered, he was not placed twice in jeopardy by a later prosecution.

SUMMARY: The state charged defendant Schultz with repeated sexual assault of a child for engaging in sexual intercourse with the 15-year-old victim, M, in “late summer to early fall of 2012.” A jury acquitted him of this charge. Shortly thereafter, paternity test results revealed Schultz to be the father of M’s child. The state then charged Schultz with sexual assault of a child under 16 years of age occurring “on or about October 19, 2012,” the date M’s obstetrician determined the child was conceived. The defendant moved to dismiss the new charge claiming that it violated his constitutional protection against double jeopardy because the Oct. 19, 2012, date fell within the timeframe alleged in the first prosecution, which included “early fall.”

The circuit court denied the motion and the defendant thereafter pleaded guilty. The circuit court also denied the defendant’s postconviction motion that again raised the double jeopardy issue. In a published opinion, the court of appeals affirmed. See 2019 WI App 3. In a majority opinion authored by Justice R.G. Bradley, the supreme court affirmed the court of appeals.

In what the court called an issue of first impression in Wisconsin, it had to determine whether it could consider the entire record of the first proceeding to clarify the scope of jeopardy. It concluded that “when the State charges a defendant in a subsequent prosecution for conduct the defendant contends overlaps the first prosecution’s timeframe, courts may examine the entire record of the first proceeding to determine the actual scope of jeopardy in the first proceeding” (¶ 55).

In so holding, the court rejected the defendant’s argument that when the charging language in the earlier case is ambiguous, the proper inquiry considers how a reasonable person would construe the charging language at the time jeopardy attached in the first trial without considering evidence that was introduced at the previous trial.

In this case the court concluded that “[t]he record of Schultz’s first criminal prosecution – including the indictments, the police report, and trial testimony – establish a scope of jeopardy that excludes any conduct occurring in the month of October” (¶ 56). Among other things, the police report, which was incorporated into the criminal complaint, clarified that the conduct charged in that complaint concluded in early to mid-September and there was no evidence adduced at trial extending that end date. Accordingly, the two cases against Schultz did not involve the “same offence” under the Double Jeopardy Clause (¶ 56).

In a footnote, the court observed that “if the first trial produced evidence of a sexual assault occurring ‘on or about October 19,’ then regardless of the mid-September end date for the assaults alleged in the first prosecution, double jeopardy would preclude the State from subsequently prosecuting Schultz for a sexual assault occurring ‘on or about October 19’” (¶ 47 n.19)

The majority concluded with an admonition that “[o]ur opinion should not be read to approve attempts by the State to use imprecise charging language in an effort to skirt the protections against double jeopardy. As the court of appeals correctly noted, defendants faced with uncertain language in a charging document should raise the issue to the circuit court through an appropriate motion. See Wis. Stat. § 971.31 (pretrial motions including defects in the indictment); State v. Miller, 2002 WI App 197, ¶¶ 8-9, 257 Wis. 2d 124, 650 N.W.2d 850 (motion to dismiss based on vague or overbroad charging period and motion requesting a more definite and certain statement) …” (¶ 53).

Justice Hagedorn filed a dissent that was joined in by Justice A.W. Bradley and Justice Dallet. Said the dissenters: “In short, because evidence of a sexual assault on or about October 19 would have supported a conviction in his first trial without the need to amend the charging period in the complaint, the State’s second prosecution violated Schultz’s constitutional protection against double jeopardy. The State chose to charge Schultz for repeated sexual assault over a time period with a vague and ambiguous end point. It is inconsistent with a vigorous protection against double jeopardy to construe that ambiguity to conform to the more limited evidence presented, rather than to construe it broadly to encompass the very evidentiary indeterminacies that caused the State to pick an indeterminate timeframe in the first place” (¶ 90).

Employment Law

“Donning and Doffing” – Compensation

Piper v. Jones Dairy Farm, 2020 WI 28 (filed 19 March 2020)

HOLDINGS: 1) Under Wisconsin law, compensation for donning and doffing cannot be modified or eliminated through collective bargaining. 2) The time employees spent donning and doffing was not de minimis. 3) The circuit court erred when it summarily dismissed the employer’s equitable defenses.

SUMMARY: Current and former employees of Jones Dairy Farm (JDF) sought unpaid wages for time spent at the beginning and end of their shifts “donning and doffing” protective gear and walking to and from their workstations. JDF responded that this time had been subject to collective bargaining and, alternatively, the claims were barred by the de minimis doctrine.

The circuit court denied JDF’s summary-judgment motion. It concluded as follows: “(1) the donning and doffing time was compensable; (2) the employees could not modify or eliminate compensation for donning and doffing through collective bargaining; (3) the time was not rendered non-compensable by the de minimis doctrine; and (4) JDF’s four equitable defenses did not preclude the employees’ recovery of damages” (¶ 1). This appeal was heard on bypass from the court of appeals.

The supreme court, in an opinion authored by Justice Dallet, affirmed in part, reversed in part, and remanded the case for further proceedings. The court first addressed the question whether donning and doffing compensation can be modified or eliminated through collective bargaining. It concluded that “[b]ecause time spent donning and doffing comprises ‘hours worked’ under Wis. Admin. Code. § DWD 272.12, and the law does not exempt donning and doffing from the statutory requirement that employees be paid for all hours worked, the answer is no” (¶ 16). Nor could compensation for donning and doffing be modified or eliminated through collective bargaining” (¶ 34).

The court next took up JDF’s contention that the donning and doffing time was noncompensable under the de minims doctrine (see ¶ 35). The court assumed that the doctrine applied to claims under the Wisconsin Administrative Code and concluded that the time spent was not de minimis (see ¶ 38).

Finally, JDF raised four equitable defenses (promissory estoppel, waiver, laches, and unjust enrichment), which the circuit court summarily rejected without analyzing their merits (see ¶ 40). The supreme court concluded that the circuit court erroneously assumed that “the mere existence of a statutory cause of action bars equitable defenses.” See Wis. Stat. § 109.03(5) (right to unpaid wages). That statute, said the supreme court, was not a “complete bar to JDF’s equitable defenses” (¶ 43).

Justice Ziegler, joined by Chief Justice Roggensack, dissented. They concluded that compensation for donning and doffing is subject to collective bargaining and may be bargained away, modified, or waived (see ¶ 46).

Justice R.G. Bradley also dissented. She agreed with the majority that state law “precludes parties from bargaining away employees’ statutory rights to compensation” (¶ 74). Unlike the majority, however, she would have decided (not assumed) that the de minimis doctrine applied in this case and would have found that “the donning and duffing time in this case was de minimis” (id.).