Civil Procedure

Judicial Substitution – Timeliness

State v. Mathews, 2020 WI App 33 (filed 12 May 2020) (ordered published 24 June 2020)

HOLDING: The circuit court properly found that the respondent’s request for substitution of judge was untimely.

SUMMARY: The state filed a petition in the Milwaukee County Circuit Court seeking an order committing the respondent as a sexually violent person under Wis. Stat. chapter 980. On Aug. 15, 2018, the court adjourned a scheduled probable-cause hearing at the request of the respondent, who needed time to prepare. On the adjourned date, Aug. 29, 2018, the respondent requested a judicial substitution. The trial judge denied the request as untimely, because the state had opposed the motion for adjournment and the respondent had waived the time limits for the hearing. The chief judge of the Milwaukee County Circuit Court affirmed the order denying the substitution.

The court of appeals affirmed in an opinion authored by Judge Dugan. Applying prior case law, the court held that there had been no abuse of discretion in denying the substitution. When the circuit court granted the respondent’s request for an adjournment, its decisions “had implications for further proceedings on the merits of the State’s petition to commit Matthews as a sexually violent person” (¶ 22). That decision constituted a “preliminary contested matter,” which constituted a watershed for filing a request for substitution.

Contracts

Right of First Refusal – Stand-alone Prices – Valuation

Country Visions Coop. v. Archer-Daniels-Midland Co., 2020 WI App 32 (filed 6 May 2020) (ordered published 24 June 2020)

HOLDING: The circuit court properly found that a right of first refusal (ROFR) was valid and enforceable and that the defendants had artificially inflated the value of the subject property to defeat the ROFR.

SUMMARY: Country Visions held an ROFR for property that Archer-Daniels-Midland (ADM) sold to United, along with other property not subject to the ROFR. Country Visions did not exercise its ROFR because of the inflated value placed on the subject property, later alleging the $20 million sale was a sham.

After the sale closed, Country Visions sued ADM and United. Country Visions alleged that the defendants “purportedly carved out the sale of the subject parcel into a separate, standalone transaction after Defendants had initially negotiated a single $25 million ‘package deal’ for that parcel, three other parcels, and accompanying business assets” (¶ 3). The circuit court found the sale was a sham: “that in reality ADM and United agreed to an artificially inflated ‘standalone’ price of $20 million for the property after learning of, and in order to defeat, Country Visions’ ROFR, while tying this sham sale to a collective sale of the other three parcels and all business assets at an artificially deflated price of $5 million” (id.).

The court of appeals, in an opinion authored by Judge Davis, affirmed in part and reversed in part, remanding the case to ensure that the ROFR exercise price is based on an “apples-to-apples” comparison. First, the circuit court properly concluded that the $20 million offer to Country Visions was a sham. It was “disingenuous” for the defendants to argue that two separate transactions were involved when there was sufficient evidence that the value placed on the subject property was “interconnected” and was done to defeat the ROFR (¶ 25).

Second, the circuit court properly ordered that the remedy was specific performance at a court-determined price, relying on Wilber Lime Products Inc. v. Ahrndt, 2003 WI App 259, 268 Wis. 2d 650, 673 N.W.2d 339 (see ¶ 29).

Third, the circuit court appropriately determined a price derived from the defendants’ valuation methodology, which looked to United’s “unique ability” to generate income from the property. The court of appeals discussed the variety of approaches that may be useful for valuing property. The trial judge properly considered the “unique synergies” that United brought to the transaction with an eye to avoiding a ROFR carrying an “artificially low exercise price” (¶ 37).

Fourth, the circuit court might have clearly erred in setting the exercise price, which might have included personal property in addition to the real property (see ¶ 39). The matter was remanded so that the circuit court could supplement or modify its decision as appropriate. Depending on its ruling, the trial judge may have to revisit whether Country Visions is entitled to compensatory damages (see ¶ 44). Finally, the ROFR was properly found to be valid and enforceable.

Criminal Law

Unfair Trade Practices – Failure of Landlord to Return Security Deposit or to Provide Tenants with a Security Deposit Withholdings Statement

State v. Lasecki, 2020 WI App 36 (filed 19 May 2020) (ordered published 24 June 2020)

HOLDINGS: 1) A landlord’s failure to provide former tenants with a statement explaining why he was withholding their security deposits is a crime cognizable under Wisconsin law. 2) The defendant landlord had fair notice that the failure to provide the withholdings statements is a crime. 3) Misleading jury instructions require reversal of the defendant’s convictions. 4) The circuit court ordered restitution in excess of the amount authorized by the restitution statute (Wis. Stat. § 973.20).

SUMMARY: The defendant landlord was convicted by a jury of two misdemeanor counts of engaging in unfair trade practices. The charges were premised on the landlord’s failure to return security deposits to former tenants and failure to provide the tenants with statements explaining why he was withholding their security deposits (“withholdings statements”). In an opinion authored by Judge Hruz, the court of appeals affirmed in part and reversed in part.

The defendant claimed that the circuit court lacked subject-matter jurisdiction over the “withholdings statements” count because the failure to provide such statements is not a crime. The appellate court disagreed. It concluded that “a landlord’s failure to provide a tenant with a security deposit withholdings statement can be a crime in and of itself, irrespective of whether the landlord was actually authorized by statute to keep any or all of the tenant’s security deposit” (¶ 48).

It also held that the defendant had fair notice that his conduct could result in criminal liability. “[W]e conclude that an ordinary person – here, a reasonably prudent landlord – would be able to understand, by reviewing the relevant statutes and administrative code provisions, that upon withholding some or all of a tenant’s security deposit, the landlord may be held criminally liable for failing to provide a tenant with a statement of withholdings” (¶ 14).

Nevertheless, the court of appeals reversed the defendant’s convictions because of misleading jury instructions that, among other things, combined two separate crimes (the failure to return the security deposits and the failure to provide the withholdings statements) into a single element. “By presenting two independent criminal acts in one element, we cannot know the basis on which the jury determined that the State met its burden of proof” (¶ 52).

Said the court: “In this case, as well as in similar cases in the future, the trier of fact is to determine whether the landlord committed an unfair trade practice by either: (1) violating Wis. Stat. § 704.28 – including by failing to timely return any portion of a security deposit without having a lawful basis to do so under the statute; (2) violating Wis. Admin. Code § ATCP 134.06(4) by failing to provide a required withholdings statement; or (3) violating both requirements” (¶ 53).

The court of appeals also reversed the order of the circuit court that imposed restitution in excess of the victims’ pecuniary losses. In short, the circuit court ordered the defendant to pay each victim twice the amount of the security deposit that had not been returned. It is true that Wis. Stat. section 100.20(5) provides that a tenant may sue for such damages and “shall” recover twice the amount of the tenant’s pecuniary loss. However, the appellate court concluded the restitution statute, Wis. Stat. section 973.20, only authorizes payment for special damages – not general damages. “Special damages encompass harm of a more material or pecuniary nature and represent the victim’s actual pecuniary losses” (¶ 59) (internal quotations and citation omitted).

Accordingly, the court of appeals agreed with the defendant that “the effect of the court’s decision to award as restitution the double damages permitted by Wis. Stat. § 100.20(5) was either to punish [the defendant] or to compensate [the tenants] for a nonpecuniary injury – i.e., general damages – in violation of Wis. Stat. § 973.20” (¶ 60).

Criminal Procedure

Sentencing – Huber Law – Sheriff’s Limited Authority to Deny Huber Release

State ex rel. Coogan v. Michek, 2020 WI App 37 (filed 28 May 2020) (ordered published 24 June 2020)

HOLDING: A sheriff did not have authority to deny Huber Law release to a county jail inmate who was granted Huber release privileges by the sentencing court.

SUMMARY: The circuit court sentenced the defendant to a county jail term with the release privilege created by the Huber law. The Huber law permits a sentencing court to order that a county sheriff allow a county jail inmate to pursue certain types of opportunities, such as employment or education, outside the jail facility during necessary and reasonable hours. See Wis. Stat. § 303.08. In this case the sheriff refused to release the defendant because he determined that a major disciplinary violation committed by the defendant warranted a custody status of “maximum” under the sheriff’s inmate-classification system.

The defendant thereafter brought an action for a writ of mandamus against the sheriff that would direct the sheriff to follow the court order granting him Huber release. The circuit court dismissed the writ petition on the ground that the sheriff had authority under the state constitution and statutes other than the Huber law to disregard an order for Huber release contained in a judgment of conviction.

In an opinion authored by Judge Blanchard, the court of appeals reversed. It interpreted the Huber Law “to require Wisconsin sheriffs to follow all sentencing court orders granting jail inmates the release privilege created by the Huber Law, absent a legitimate temporary suspension by the sheriff [which by statute can last for up to five days] or the withdrawal of the order by the sentencing court” (¶ 12). The court of appeals rejected the sheriff’s argument that he had the unilateral authority to prevent any Huber release whatsoever for the defendant because the sheriff’s inmate classification system dictated that result (see ¶ 17). If the sheriff believed that the Huber release privilege needed to be revoked because of the defendant’s disciplinary violations, he could have requested an order to that effect from the court (see ¶ 8). The court of appeals also rejected the sheriff’s argument that he had the authority under the state constitution and statutes other than the Huber law to disregard the sentencing court’s order for Huber release (see ¶ 28).

Search and Seizure – OWI – Warrantless Blood Draw

State v. Hay, 2020 WI App 35 (filed 27 May 2020) (ordered published 24 June 2020)

HOLDING: Exigent circumstances did not justify the warrantless blood draw from the defendant following his arrest for operating while intoxicated (OWI).

SUMMARY: A police officer conducted a traffic stop of Hay at 12:50 a.m. The officer learned that Hay had been drinking, had four prior OWI convictions, and thus was subject to the 0.02 blood alcohol concentration (BAC) limit. A preliminary breath test indicated that Hay had a 0.032 BAC. Hay was arrested at 1:09 a.m. After securing the defendant and then waiting for another officer to arrive who would monitor Hay’s vehicle until a tow truck arrived, the arresting officer conveyed Hay to a hospital 10-15 minutes away for a blood draw.

At about 1:45 a.m. Hay refused the test. The officer consulted with an assistant district attorney and then obtained a warrantless blood draw at 2:25 a.m. No attempt was made to secure a search warrant for the draw. In his testimony the officer indicated that in his experience it takes 60-90 minutes to obtain a blood draw warrant. The test results on the blood draw showed a 0.00 BAC but it did indicate the presence of cocaine in the defendant’s blood.

In an OWI prosecution (premised on the defendant having a detectable amount of a restricted controlled substance in his blood), the defendant moved to suppress the results of the blood test. The circuit court granted the motion, concluding that exigent circumstances did not exist to justify the drawing of Hay’s blood without a search warrant. In an opinion authored by Judge Gundrum, the court of appeals affirmed.

The U.S. Supreme Court has held that in investigations of alleged drunk driving in which police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See Missouri v. McNeely, 569 U.S. 141 (2013).

In this case the state argued that exigent circumstances justified proceeding without a warrant. It suggested that “with the PBT reading indicating a BAC around .032, there was a risk that if the blood draw was delayed for a warrant, Hay’s BAC would drop to .00 before the draw could be performed, in which case there would be no way an expert could estimate if Hay’s BAC was at or above .02 at the time of driving” (¶ 13).

“Significantly, the State contends that whether exigent circumstances exist to justify drawing a suspect’s blood without a warrant should be analyzed only from the moment a defendant refuses to submit to a blood draw and not before” (¶ 14).

The court of appeals disagreed, finding that the state’s proposed rule is at odds with the exigent circumstances analysis contemplated by McNeely (see ¶ 15). McNeely indicated that a court’s exigent circumstances analysis should consider whether law enforcement officers could have taken steps while en route to a medical facility without significantly increasing the delay in procuring a blood sample (see id.).

The record in this case suggests that there were meaningful opportunities shortly after Hay’s arrest during which the officer could have begun the warrant application process while other officers searched the defendant’s car and handled the tow. “In this day and age, it may well be that the [arresting officer] could have completed his portion of the warrant application process from his squad car via computer or cell phone” (¶ 20). Because Hay’s BAC apparently was low at the time of arrest, the officer knew he would be “in a rush” to secure a blood sample (¶ 22).

“Thus, based on the facts as [the arresting officer] understood them at the time of Hay’s arrest, a reasonable officer would have believed that had he begun the warrant process after securing Hay in his squad car, it is likely he would have received a response on the warrant application in time to draw Hay’s blood before the alcohol in his system dissipated to .00. [The arresting officer] unreasonably failed to seek a warrant after Hay was secured in his squad car and, with such failure, impermissibly created the exigency that existed after Hay later refused the blood draw” (¶ 23).

The court concluded its opinion with this caution: “It is important to point out the limited nature of our holding in this case. For example, had Hay been subject to a .08 BAC limit instead of .02, the evidence available to [the arresting officer] at the time of arrest would not have provided probable cause to arrest Hay and seek a blood sample. Also, even with the .02 BAC limit, had Hay’s PBT reading been significantly higher than .032, it would have been reasonable for [the arresting officer] to wait until after he requested a blood sample from Hay at the hospital before considering applying for a warrant in the event Hay refused, because with a significantly higher PBT reading, a reasonable officer would know he would still have sufficient time if Hay refused to then seek a warrant without risking Hay’s BAC dropping to .00. But based upon the unique facts of this case, a reasonable officer would have known right at the time of Hay’s arrest that time was of the essence and there likely would not be sufficient time to procure a warrant after a refusal at the hospital” (¶ 26).

Speedy Trial – Effective Assistance of Counsel

State v. Provost, 2020 WI App 21 (filed 14 April 2020) (ordered published 27 May 2020)

HOLDINGS: 1) The defendant was not denied his constitutional right to a speedy trial. 2) The defendant was not denied the effective assistance of counsel.

SUMMARY: Provost was convicted of causing a child to view sexual activity. He claimed that he was denied his constitutional right to a speedy trial under the traditional four-factor test articulated in Barker v. Wingo, 407 U.S. 514 (1972). Those factors are 1) the length of the delay, 2) the reasons for the delay, 3) whether the defendant asserted the right to a speedy trial, and 4) whether the delay prejudiced the defendant (see ¶ 26). Applying these factors, the court of appeals, in an opinion authored by Judge Seidl, held that the defendant was not denied his right to a speedy trial.

In this case the delay was substantial. Delay is presumptively prejudicial when it approaches one year (see ¶ 27), and in the defendant’s case it took 34 months to bring him to trial.

As for the reasons for the delay, the circuit court found that the entirety of the delay in bringing Provost to trial occurred “to accommodate Mr. Provost and the defense” (¶ 29). The appellate opinion recounts the numerous adjournments made at the request of the defendant and the successive representation of Provost by four different lawyers.

Provost argued that two of these lawyers failed to adhere to the “minimum performance guidelines” set by the Wisconsin State Public Defender, and he urged the court of appeals to adopt and apply the Brillion exception to the general rule that delays caused by defense counsel are properly attributed to the defendant. Brillion allowed for delay to be charged to the state when it results from a systemic breakdown in the public defender system. See Vermont v. Brillion, 556 U.S. 81 (2009).

The court of appeals saw no “systemic breakdown” in Provost’s case. “[T]he failure of two individual attorneys to meet the standards set by the SPD does not show a problem that is institutional in origin or debilitating in scope – especially where, as here, Provost presented no evidence that the individual attorneys’ alleged failures resulted from a lack of funding, training or supervision in the SPD system” (¶ 41).

The third Barker factor considers whether the defendant requested a speedy trial. Although Provost requested a speedy trial, this factor does not weigh in favor of his speedy trial claim because he did not demand a speedy trial until more than two years had passed since the inception of his case. After the demand was made, he was brought to trial in less than eight months.

The fourth Barker factor looks at prejudice to the defendant as a result of the delay. Here the interests considered are prevention of oppressive pretrial incarceration, the accused’s anxiety and concern, and impairment of the defense. In this case the defendant was incarcerated for eight months immediately before trial but this was due to his failure to appear at a mandatory pretrial conference (see ¶ 49). He did suffer the loss of an exculpatory witness, but this witness died in a motorcycle accident less than one year after the defendant was charged in this case. The witness thus became unavailable even before the delay in the defendant’s case became presumptively prejudicial (see ¶ 48).

In sum, “although the length of the delay in this case was presumptively prejudicial under the first Barker factor, we conclude that the three remaining factors do not support Provost’s argument that he was deprived of his constitutional right to a speedy trial” (¶ 51).

In an unrelated case, the defendant entered a guilty plea to OWI (seventh offense). He thereafter claimed that his attorney rendered ineffective assistance of counsel by failing to collaterally attack two of the prior convictions that occurred in Minnesota. Specifically, he claimed that those convictions were obtained in violation of his right to counsel.

The court of appeals concluded that Provost failed to demonstrate that he was prejudiced by the failure to bring the collateral attack. This is because in Minnesota he incurred not only two OWI convictions but also two administrative revocations under Minnesota’s implied-consent law that were associated with the OWI convictions (see ¶ 22). These administrative revocations are countable as prior offenses under Wisconsin’s OWI laws (see ¶ 56), and there was no Sixth Amendment right to counsel in Minnesota’s implied-consent proceedings because they are civil in nature (see ¶ 24 n.8).

Search and Seizure – OWI – Constitutionality of Implied-Consent Statute Authorizing Chemical Testing of Incapacitated Driver

State v. Prado, 2020 WI App 42 (filed 25 June 2020) (ordered published 29 July 2020)

HOLDINGS: 1) The incapacitated-driver provision of Wisconsin’s implied-consent statute does not satisfy the Fourth Amendment. 2) The circuit court erred when it suppressed the test result in this case because the state met its burden to prove that the officer who drew the defendant’s blood acted in objective good-faith reliance on the constitutionality of the incapacitated-driver provision.

SUMMARY: Prado was seriously injured in an accident in which the other driver was killed. While Prado was unconscious at a hospital, a law enforcement officer directed that a sample of her blood be drawn for chemical testing. The officer who directed the blood draw did not obtain a warrant and instead relied on the incapacitated-driver provision of Wisconsin’s implied-consent statute.

The implied-consent statute provides that drivers are “deemed to have given consent” to a blood draw when they drive on a Wisconsin road and certain probable-cause requirements are met. See Wis. Stat. § 343.305(2). The statute’s incapacitated-driver provision, which addresses suspects who are unconscious or otherwise not capable of withdrawing consent, provides that incapacitated drivers are “presumed not to have withdrawn” the consent that is implied by statute. See § 343.305(3)(ar)1., 2., (3)(b).

In this case the defendant argued that the blood draw was unconstitutional because implied consent does not satisfy the Fourth Amendment. In an opinion authored by Judge Graham, the court of appeals agreed.

The precise question before the court was “whether the ‘implied consent’ that incapacitated drivers are deemed to have given by the implied consent statute and presumed not to have withdrawn by its incapacitated driver provision satisfies the Fourth Amendment” (¶ 2). The court noted that it had certified this question to the Wisconsin Supreme Court on three prior occasions, and it was also taken up by the U.S. Supreme Court on certiorari review of a Wisconsin appeal. However, no majority on either court has directly answered the question.

Concluding that an answer to the question is of significant importance to the functioning of the state court system, the court of appeals held that “the consent that incapacitated drivers are deemed to have given by Wisconsin’s implied consent statute and presumed not to have withdrawn by its incapacitated driver provision does not satisfy any exception to the Fourth Amendment’s warrant requirement” (¶ 63).

“Thus, because the incapacitated driver provision purports to authorize warrantless searches that do not fit within any exception to the warrant requirement, the searches it authorizes will always violate the Fourth Amendment, unless the searches are justified by a separate warrant exception…. If a court ultimately determines that such a search is constitutional in any given case, it will be on the basis of an exception such as exigent circumstances, not on the basis of anything set forth in the implied consent statute itself” (¶ 64). The court of appeals declined to recognize a new warrant exception for statutorily implied consent (see ¶ 62).

However, in this case, the court reversed the circuit judge who had suppressed the results of the blood draw from the defendant. Said the court of appeals: “[W]e also conclude that the circuit court should not have suppressed the test result in this case because the State has met its burden to prove that the officer who drew Prado’s blood acted in objective good-faith reliance on the constitutionality of the incapacitated driver provision” (¶ 3).

Polygraphs – Admissibility of Statements Given in Post-Polygraph Interview

State v. Vice, 2020 WI App 34 (filed 19 May 2020) (ordered published 24 June 2020)

HOLDINGS: 1) The polygraph examination and the post-polygraph interview of the defendant were discrete events. 2) The statements made by the defendant during the post-polygraph interview were involuntary.

SUMMARY: This case presented the question whether the circuit court properly granted Vice’s motion to suppress his confession to sexually assaulting a young child. Vice confessed during an interview that occurred after he failed a polygraph examination.

The court applied a two-step test to determine the admissibility of statements made following a polygraph examination. “First, we consider whether the statements are so closely associated with the polygraph examination that the examination and statements are one event, rather than two discrete events. If so, the statements must be suppressed. If we instead conclude that the examination and statements are two discrete events, we then consider whether the statements survive constitutional due process considerations of voluntariness” (¶ 43) (citations and quotations omitted).

To determine whether the polygraph examination and statements were discrete events, a court considers “(1) whether the defendant was told the [examination] was over; (2) whether any time passed between the [examination] and the defendant’s statement; (3) whether the officer conducting the [examination] differed from the officer who took the statement; (4) whether the location where the [examination] was conducted differed from where the statement was given; and (5) whether the [examination] was referred to when obtaining a statement from the defendant” (¶ 47) (citation omitted).

In this case the court of appeals, in a majority opinion authored by Judge Stark, concluded that the examination and the post-polygraph interview were discrete events. “[T]he undisputed facts of this case show that: Vice signed a form stating that the polygraph examination was over and that any subsequent questions were not part of the polygraph examination; the examination and post-polygraph interview took place in different rooms; ten to fifteen minutes elapsed between the examination and interview; and the interview involved a second officer who did not participate in the polygraph examination. Under these circumstances, we cannot conclude Vice’s statements during the interview were so closely associated with the polygraph examination that the examination and interview were one event rather than two” (¶ 53) (citation and quotations omitted).

Nonetheless, the court of appeals concluded that the defendant’s confession during the post-polygraph interview was involuntary under the specific circumstances of this case, which included “(1) numerous, repeated references to the polygraph results throughout the course of the post-polygraph interview; (2) repeated assertions that those results showed Vice – who claimed not to remember the assault – did remember it; (3) the officers’ failure to respond to Vice’s statement that he must have assaulted the victim because the test said he did; and (4) the officers’ failure to inform Vice that the test results would be inadmissible in any criminal proceedings against him. While any of these circumstances, standing alone, may have been insufficient to render Vice’s confession involuntary, together they demonstrate a level of coercion sufficient to overcome Vice’s ability to resist. In particular, we caution law enforcement officers that if they plan to rely on polygraph results in order to elicit a defendant’s confession, they need to inform the defendant that those results are inadmissible in court” (¶ 81).

“Critically, we do not hold that a confession made during a post-polygraph interview must be suppressed any time law enforcement refers to the polygraph results during the interview” (id.).

Judge Hruz concurred in part and dissented in part. He agreed that the polygraph examination and the post-polygraph interview were discrete events. However, he disagreed with the majority’s conclusion that the statements made during the post-polygraph interview were involuntary (see ¶ 82).

Evidence

Dog Scent-detection Proof – Expert Evidence – Ineffective Assistance of Counsel

State v. Bucki, 2020 WI App 43 (filed 2 June 2020) (ordered published 29 July 2020)

HOLDINGS: The circuit court properly admitted evidence about the actions of cadaver and tracking dogs, and the defendant’s trial counsel was not ineffective.

SUMMARY: Bucki was convicted of murdering his estranged wife. He denied any involvement in her murder. The trial judge admitted evidence that cadaver dogs had “alerted to the scent of human remains” on Bucki’s property. The state also relied on testimony by handlers of “trailing dogs” that near the location where the victim’s body was discovered the dogs had “detected” a scent from a pair of shoes taken from Bucki’s house. The trial judge conducted a two-day evidentiary hearing on the admissibility of the scent-detection evidence. Bucki was convicted, and he appealed.

The court of appeals affirmed in an opinion authored by Judge Hruz. The opinion addressed both the admissibility of the scent-detection evidence and allegations of ineffective assistance of trial counsel. Essentially, the circuit court property exercised its discretion in admitting the expert testimony by the handlers of the cadaver dogs and the trailing dogs. The analysis applies Wis. Stat. section 907.02 and the case law explicating how Wisconsin courts are to interpret the rule’s requirements. The circuit court’s extensive record regarding the reliability of both types of evidence is laid out in considerable detail in a long opinion.

Of more general interest, the court of appeals elaborated on the factors that bear on the reliability of any expert witness’s methods and principles, including those drawn from federal authority (see ¶ 52). The court rejected the defense contention that there must be some form of “corroboration” for the scent-detection evidence (¶ 57). Federal and state authority was considered (see ¶ 60).

The court also rejected the defense arguments that trial counsel was ineffective on multiple grounds. These grounds included an alleged error in failing to call at trial a defense expert on canine scent evidence (see ¶ 83); a failure to “adequately present evidence” of contamination regarding a shoe linked to the defendant (¶ 97); and the defense’s failure to challenge the state’s so-called shallow grave theory, which related to “disturbed earth” near the victim’s body (¶ 98).

Family Law

Termination of Parental Rights – “Continuing CHIPS” Ground for TPR – Application of Amended Statute

Eau Claire Cnty. Dep’t of Human Servs. v. S.E., 2020 WI App 39 (filed 13 May 2020) (ordered published 24 June 2020)

HOLDING: The circuit court correctly held that the current version of Wis. Stat. section 48.415(2)(a) should be applied in the respondent’s termination of parental rights (TPR) case.

SUMMARY: In June 2016, S.E.’s son was placed outside her home. In August 2016, the circuit court entered a child in need of protection or services (CHIPS) order, and the son’s placement continued with the issuance of additional CHIPS orders. At the initial out-of-home placement hearing and at four permanency plan review hearings, the court, as required by statute, gave S.E. written and oral notice that her parental rights could be terminated pursuant to the “continuing CHIPS” ground.

As relevant here, that ground previously required the department to prove there was a substantial likelihood that S.E. would not meet the conditions established for the return of her son to her home within nine months following a TPR fact-finding hearing. See Wis. Stat. § 48.415(2)(a)3. (2015-16).

The Wisconsin Legislature changed the continuing CHIPS ground’s elements in April 2018 when it passed 2017 Wis. Act 256, section 1, which amended Wis. Stat. section 48.415(2)(a)3. (2015-16). The amended version eliminated a prospective analysis under the continuing CHIPS ground for a TPR if the child had already been placed outside the parent’s home for at least “15 out of the most recent 22 months.” See Wis. Stat. § 48.415(2)(a)3. (2017-18).

A few months after the amendment took effect, the Eau Claire County Department of Human Services petitioned to terminate S.E.’s parental rights based on the continuing CHIPS ground. The petition stated the continuing CHIPS elements set forth by the amended version of the statute. S.E. asserted that the amended version of Wis. Stat. section 48.415(2)(a) should not be used as a basis to terminate her parental rights because the notice she was given when the CHIPS orders were first issued included the continuing CHIPS elements set forth in the prior version of the statute. In an opinion authored by Judge Hruz, the court of appeals disagreed.

The court of appeals held that in S.E.’s TPR proceedings, the circuit court must use the current, amended version of Wis. Stat. section 48.415(2)(a) (see ¶ 4). The court of appeals concluded as a matter of statutory construction that nothing within the prior or amended version of Wis. Stat. section 48.415(2)(a) prohibits the department from pursuing a TPR against S.E. using the elements for the continuing CHIPS ground found in the amended version of the statute (see ¶ 42).

The court also held that applying the amended version of the statute to S.E.’s circumstances did not violate her constitutional rights to due process. Applying binding precedent from Dane County Department of Health Services v. J.R., 2020 WI App 5, 390 Wis. 2d 326, 938 N.W.2d 614, the court rejected S.E.’s claim that using the amended version of Wis. Stat. section 48.415(2)(a) would impermissibly make the statute operate retroactively (see ¶ 15).

Further, the change between the prior version and the amended version of the statute is not substantive. “Under both versions of the statute … the conduct at issue is the same – the parent’s ability or inability to meet the conditions for return of the child during an extended period of time – and, under both versions, the child must have been placed outside of the parent’s home for at least six months. Thus, the legislature’s amendment of § 48.415(2)(a)3. did not substantially change the type of conduct that may lead to the termination of S.E.’s parental rights” (¶ 23).

Marital Property Agreement – Pensions – Statutory Time Limits

Schwab v. Schwab, 2020 WI App 40 (filed 5 May 2020) (ordered published 24 June 2020)

HOLDING: The circuit court erred when it applied its equitable powers in ruling that enforcement of a marital property agreement in a family law action was not subject to the 20-year rule codified at Wis. Stat. section 893.40.

SUMMARY: The parties were divorced in 1992. In a marital settlement agreement, the husband agreed to a division of his “non-vested” military pension. The husband retired from the military in 2008 and began collecting the pension in 2013. The wife brought this contempt action to compel him to share the pension’s proceeds, which he refused to do. In this contempt action, the circuit court ruled that the 20-year bar of Wis. Stat. section 893.40 did not preclude this action.

The court of appeals reversed in an opinion authored by Judge Brash. The opinion distinguished Johnson v. Masters, 2013 WI 43, 347 Wis. 2d 238, 830 N.W.2d 647, which involved a unique set of facts. Johnson did not categorically exempt family law judgments from Wis. Stat. section 893.40, which requires that actions upon a judgment or court decree must be commenced within 20 years after the decree is entered (see ¶ 9).

“In short, while the controlling opinion in Johnson noted the unique nature of family law matters, and the possibility of making exceptions to the time constraints of [Wis. Stat.] § 893.40 in cases where its application appears to produce inequitable results, under the only rationale joined by a majority of justices – and in the absence of legislative change – there is no legal basis for not applying the statute of repose to family law judgments” (¶ 16). In this case, the circuit court “contradict[ed] the current state of the law” (¶ 19).

Insurance

Coverage – “Concealment or Fraud” – Domestic Abuse – Innocent Spouse

Kemper Indep. Ins. Co. v. Islami, 2020 WI App 38 (filed 27 May 2020) (ordered published 24 June 2020)

HOLDING: The circuit court properly denied to an innocent spouse insurance coverage for property damage caused by her estranged husband, who set the fire and lied on a claims form.

SUMMARY: Ismet and Ydbi Islami owned property that was insured. Ydbi intentionally set a fire that damaged the property. Ismet sought coverage, which the insurer denied under the policy’s “concealment or fraud” clause. Ydbi, also an insured, “lied about his misdeeds in sworn post-loss statements” to the insurer. It was undisputed that Ismet had “nothing to do” with Ydbi’s arson or false statements (¶ 2). The two were legally separated and Ismet claimed that various laws on domestic violence should allow coverage for her despite Ydbi’s criminal conduct. The circuit court granted summary judgment in favor of the insurer.

The court of appeals affirmed in an opinion authored by Judge Davis. First, the domestic abuse statutes had no application. “Nowhere in her summary judgment submissions does Ismet suggest that Ydbi has ever committed any act of physical violence or sexual assault against her, or committed any ‘physical act’ that would reasonably cause fear of such conduct, let alone that any such act resulted in the loss in question. Instead, Ismet claims that Ydbi’s ‘arson, in and of itself is the egregious act of domestic abuse in this case.’ The relevant definitions, however, belie this contention” (¶ 9).

Second, under the insurance contract Ydbi was an “insured” despite his legal separation from Ismet. Both signed the proof-of-loss statement, which identified each of them as an “insured” (see ¶ 13). Third, the policy’s “concealment or fraud” clause is “joint,” not “several,” and applies even to “innocent co-insureds” (¶ 14). The court was “not authorized to rewrite the terms of the agreed-upon policy” (¶ 26).

UIM Coverage – Insureds

Brey v. State Farm Mut. Auto. Ins. Co., 2020 WI App 45 (filed 25 June 2020) (ordered published 29 July 2020)

HOLDING: Policy language that excluded an insured from underinsured motorist (UIM) coverage violated Wis. Stat. section 632.32.

SUMMARY: Elliot Brey, a minor, was an insured under a State Farm policy that provided UIM coverage. His father, who was not an insured under that policy, died in a car accident. State Farm denied UIM coverage to Brey. Both Brey and State Farm agreed that the policy language required that an insured suffer “bodily injury” for there to be UIM coverage (see ¶ 1). Brey had suffered no injury. The circuit court ruled that the State Farm policy provided no UIM coverage to Brey.

The court of appeals reversed in an opinion authored by Judge Fitzpatrick. The insurance policy’s terms were not ambiguous. Nonetheless, the policy’s terms violated Wis. Stat. section 632.32(2)(d).

“We repeat the pertinent terms of Wis. Stat. § 632.32(2)(d) for context: ‘“[u]n-derinsured motorist coverage” means coverage for the protection of persons insured under that coverage who are legally entitled to recover damages for bodily injury [or] death … from owners or operators of underinsured motor vehicles.’ This is an unambiguous statement establishing that UIM coverage protects any person who meets three requirements: (1) the person who makes the UIM claim must be an insured under the UIM coverage of the policy; (2) that person must be legally entitled to recover damages for bodily injury or death; and (3) that person must be legally entitled to recover from an owner or operator of an underinsured motor vehicle. We see no language in [Wis. Stat.] § 632.32(2)(d) which allows an insurer to require that UIM coverage be limited to insureds who sustain bodily injury or death” (¶ 22).

The court considered and rejected multiple arguments by State Farm. Prior case law was not to the contrary (see ¶ 29), the result was not absurd (see ¶ 31), the decision does not “unsettle” case law (¶ 36), and cases from other jurisdictions were not persuasive (see ¶ 37).

Mental Commitments

Extensions – Dangerousness Findings – Weak Records

Winnebago Cnty. v. S.H., 2020 WI App 46 (filed 17 June 2020) (ordered published 29 July 2020)

HOLDING: The circuit court properly extended the respondent’s mental commitment.

SUMMARY: S.H. was involuntarily committed under Wis. Stat. chapter 51. In May 2019, the county petitioned for a one-year extension of her commitment. The only witness was her treating physician. The circuit court granted the extension. S.H. appealed.

The court of appeals affirmed in an opinion authored by Judge Davis that addresses shortcomings in the record made by the circuit court, particularly as it relates to future dangerousness. “A county seeking to initiate a Wis. Stat. ch. 51 involuntary commitment must prove by clear and convincing evidence that an individual is (1) mentally ill, (2) a proper subject for treatment, and (3) dangerous under one of the five standards of Wis. Stat. § 51.20(1)(a)2.a.-e.” (¶ 8).

Extensions are governed by the same three elements, except that dangerousness may be established through an ”alternative evidentiary path” as provided by Wis. Stat. section 51.20(1)(am) (id.). Future dangerousness may be shown by establishing, through the treatment rec-ord, that an individual would be a proper subject for commitment if treatment were withdrawn (see ¶ 9).

The court of appeals underscored that “both the County and the [circuit] court could have done more in this case to address dangerousness” (¶ 14). The supreme court’s recent decision in Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d. 231, 942 N.W.2d 277, requires that “going forward” circuit courts are to make specific findings with references to the pertinent subdivision selected under Wis. Stat. section 51.20(1)(a)2. The order here predated the D.J.W. case, so the court assumed that the circuit court had “implicitly accepted” the treating physician’s opinions. The record revealed that in the past S.H. had “gone off medications” when not involuntarily committed, which led to further commitment and hospitalization. The physician testified that she would likely do so again, if not treated pursuant to a commitment (see ¶ 15).

“As guidance to litigants going forward, we note that we have arrived at this result despite the County’s failure during its case in chief to present sufficient evidence of dangerousness.… We take this opportunity to point out that reliance on assumptions concerning a recommitment at some unidentified point in the past, and conclusory opinions parroting the statutory language without actually discussing dangerousness, are insufficient to prove dangerousness in an extension hearing” (¶ 17).

The record in this case, however, included a cross-examination that brought up specific instances of dangerous behavior before commitment. Put differently, it was the cross-examination, not the direct examination, that provided the necessary link between past dangerousness and a recurrence (see id.)

Municipal Law

Denial of Conditional Use Permit – Certiorari Review – Mandamus

Hartland Sportsmen’s Club Inc. v. City of Delafield, 2020 WI App 44 (filed 17 June 2020) (ordered published 29 July 2020)

HOLDING: The circuit court correctly issued a writ of mandamus directing the defendant municipality to issue a conditional use permit to the plaintiff.

SUMMARY: In 2011, Hartland Sportsmen’s Club (HSC), which operates a sport shooting range, applied to the city of Delafield for a conditional use permit (CUP), which the city denied. On certiorari review the circuit court concluded that denial of the application was arbitrary and capricious. The city’s denial was based on safety concerns, but it never precisely articulated the aspects of HSC’s application that did not satisfy the city’s safety concerns.

The court of appeals affirmed the decision of the circuit court in an unpublished decision. See Hartland Sportsmen’s Club Inc. v. City of Delafield, No. 2016AP666, 2017 WL 3741466 (Wis. Ct. App. Aug. 30, 2017). Neither the circuit court nor the court of appeals remanded the matter to the municipality for further proceedings. Later, rather than issuing the CUP, the city reconsidered the matter, held new hearings, took new evidence, issued new findings, and again denied the CUP.

Thereafter HSC brought an action for a writ of mandamus, arguing that the prior court rulings required the city to issue the CUP. The circuit court agreed with HSC and issued the writ directing the city to issue the CUP. In an opinion authored by Chief Judge Neubauer, the court of appeals affirmed.

Said the court: “In sum, the City provides no authority for a re-do with new evidence and new grounds when the circuit court invalidates a municipality’s decision due to the absence of a factual basis for the denial. The circuit court acted appropriately in granting HSC’s writ of mandamus, ordering the City to grant the CUP pursuant to HSC’s application and applicable law” (¶ 24). “As the circuit court aptly stated, the City had its opportunity to put forth its best evidence and reasoning, which was found wanting. The law of certiorari does not afford the municipality a second [attempt] under these circumstances” (¶ 22).