Wisconsin Lawyer
Vol. 83, No. 7, July 2010

• Criminal Procedure
• Real Property

Criminal Procedure

State v. Jensen, 2010 WI 38 (filed 20 May 2010)

The state charged former State Representative Scott Jensen with three counts of felony misconduct in public office and one misdemeanor count of intentional misuse of public positions for private benefit; the complaint alleged that the acts relating to the alleged violations occurred in Dane County. Jensen was then tried and convicted in Dane County. While the second of Jensen’s appeals was pending, the legislature enacted Wis. Stat. section 971.19(12), which provides that defendants charged with certain violations of, arising from, or in relation to the elections, ethics, and lobbying regulation laws are to be tried in the county where the defendant resides. See 2007 Wis. Act 1, § 205.

After Act 1 took effect, Jensen moved the court to transfer his case from Dane County Circuit Court to Waukesha County Circuit Court (the county where Jensen resides). The circuit court denied Jensen’s motion and, in a published decision, the court of appeals affirmed. See 2009 WI App 26. In a majority decision authored by Justice Roggensack, the supreme court reversed the court of appeals.

Section 971.19(12) describes three categories of offenses for which venue is in the county where the defendant resides. The first category applies to actions “for a violation of chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19.” This portion of the statute establishes that allegations that a defendant violated any matter relating to elections, ethics, or lobbying regulations have venue in the circuit court for the county where the defendant resides (see ¶ 18). The parties agreed that this category is not at issue in this case because the defendant has no pending charges that come within the described laws (see ¶ 24).

The “home-county-venue” statute also applies to two other categories of offenses. The second category consists of “violation[s] of any other law arising from or in relation to the official functions of the subject of the investigation.” The third category consists of “violation[s] of any other law arising from or in relation to ... any matter that involves elections, ethics, or lobbying regulation under chs. 5 to 12, subch. III of ch. 13, or subch. III of ch. 19.” In this case, the supreme court had to determine whether the allegations against Jensen fall within the ambit of either the second or the third categories (see id.).

As to the second category of offenses, the court held that “venue is proper in the county in which the defendant resides when charged with a violation of any other law arising from or in relation to the official functions of the subject of the investigation commenced by the district attorney, the former Elections Board, the former Ethics Board or the Government Accountability Board…. Applying that interpretation of category two of Wis. Stat. § 971.19(12) to the case before us, we conclude that venue for the crime of which Jensen has been accused is in Waukesha County Circuit Court, ‘the circuit court for the county where the defendant resides,’ because it is an action alleging ‘a violation of any other law arising from or in relation to the official functions of the subject of the investigation.’ Jensen was the subject of an investigation by the former Elections Board and the Dane County District Attorney for what were alleged to be violations of his official functions” (¶¶ 42-43).

As to the third category of offenses to which the home-county-venue provision applies, the supreme court concluded that “proper venue is in Waukesha County Circuit Court, ‘the circuit court for the county where the defendant resides,’ because the State’s action against Jensen alleges a violation arising from or in relation to a matter involving elections under chs. 5 to 12. This is so because Jensen was charged with a violation of Wis. Stat. § 946.12(3), misconduct in public office. That charge alleges a violation of ‘any other law’ arising from or in relation to elections” (¶ 52). In so holding, the court rejected the state’s argument that the third category of offenses is limited to violations of administrative regulations. Rather, said the court, “it encompasses violations of any matter that involves elections, ethics, and lobbying regulation” (¶ 47).

Chief Justice Abrahamson filed a concurring opinion that was joined in by Justice Bradley. Justice Prosser did not participate in this case.

State v. Carter, 2010 WI 40 (filed 25 May 2010)

A jury convicted Carter of sexually assaulting a young child. In postconviction proceedings, he alleged that his trial counsel provided ineffective assistance, based on the attorney’s refusal to introduce evidence that the five-year-old victim had allegedly been sexually assaulted by another man, which provided “an alternative explanation for her detailed sexual knowledge” (¶ 1). The circuit court denied the motion but the court of appeals reversed and remanded for further proceedings on the ineffective-assistance claim.

The supreme court reversed in an opinion authored by Justice Ziegler. First, trial counsel had not exhibited deficient performance. He had made a “strategic decision” to not present evidence of the alleged prior assault by a third party, because of concerns about the relevance of the evidence and that it might “build sympathy” for the victim (see ¶ 24). Moreover, the court held, the attorney reasonably concluded that such evidence might undercut “his chosen theory of defense” (¶ 32). The supreme court also rejected the contention that trial counsel was deficient for failing to further investigate the facts of the prior assault or the law governing its admissibility (see ¶ 34). Second, aside from the issue of deficient performance, Carter was not prejudiced “because evidence of the previous sexual assault would have been inadmissible” under Wisconsin’s rape-shield law, Wis. Stat. section 972.11(2) (¶¶ 38–39). In making this determination, the court applied the Pulizzano doctrine to the facts before it. See State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990).

Justice Bradley concurred in an opinion that was joined in by Chief Justice Abrahamson. They agreed that there was insufficient evidence of prejudice based on trial counsel’s failure to try and admit the evidence. They disagreed, however, with the majority’s decision to place its “imprimatur on the attorney’s ‘strategic decision,’ which was apparently made in ignorance of the law and left unaddressed a question that was fundamental to the defense in this case” (¶56).

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Real Property

Ash Park LLC v. Alexander & Bishop Ltd., 2010 WI 44 (filed 3 June 2010)

Ash Park LLC filed suit against Alexander & Bishop after the latter breached a contract to purchase a parcel of real estate. The circuit court granted summary judgment in favor of Ash Park, ordered specific performance of the contract, and imposed interest on the purchase price (see ¶ 1). Additional details regarding this complex transaction and litigation appear below. The court of appeals affirmed the trial judge’s exercise of discretion in ordering specific performance and interest. “Further, it rejected Alexander & Bishop’s argument that when specific performance is ordered in favor of a seller, ‘the actual remedy is an order for judicial sale’ and deficiency judgment” (¶ 29).

The supreme court affirmed the court of appeals in an opinion written by Justice Bradley. The court opened by reviewing the remedies available to a seller, including various damages and specific performance. “Here, the parties’ contract provided specific performance as one of several remedies Ash Park could seek in the event of Alexander & Bishop’s breach. When a contract specifies remedies available for breach of contract, the intention of the parties generally governs” (¶ 37). Next, the court held that the circuit court properly exercised its discretion in awarding specific performance. “In the context of contracts for land ... Wisconsin law does not require a seller to demonstrate the inadequacy of a remedy at law as a prerequisite to an award of specific performance. Wisconsin statutes provide that ‘specific performance of contract or covenant’ is an available remedy for ‘any person having an interest in real property ... unless the use of a remedy is denied in a specific situation.’ Wis. Stat. § 840.03(1)(f). Further, Wisconsin courts have not restricted a seller’s remedy of specific performance to cases in which a remedy at law is inadequate” (¶¶ 42-43). This approach is “consistent with the general rule across jurisdictions” (¶ 45).

Next, the court rejected Alexander & Bishop’s impossibility defense. Even if its alleged inability to obtain “financing for a shopping mall development without an anchor tenant is true – a question of fact we do not decide on appeal – it does not necessarily follow that it is impossible for Alexander & Bishop to specifically perform this contract. The order for specific performance does not require Alexander & Bishop to finance and develop a shopping mall, which could indeed require a large investment of capital. Rather, the order requires that it purchase only this parcel of vacant land” (¶ 53).

Alexander & Bishop proposed that the supreme court “tweak” Wisconsin property law in one of three ways, an invitation the court declined in deference to long-standing law. In summary, the three alternatives involved (1) restricting specific performance to instances in which money damages are inadequate whether the sale involves goods or realty, (2) “graft[ing] onto the doctrine of specific performance a mandatory procedure for turning an equitable order into a judgment for money by requiring a judicial sale and money judgment for any deficiency” (¶ 64), and (3) clarifying that “‘an important component of specific performance is that the seller must take adequate steps to minimize its damages’” (¶ 83). The court carefully considered and rejected each proposal for reasons elaborated on in the opinion.

Finally, the supreme court held that the circuit court properly imposed interest on Alexander & Bishop. The amount of interest was not governed by Wis. Stat. section 815.05(8), which is limited to money judgments (see ¶ 91). Interest was imposed to “motivate” the buyer to perform and to compensate the seller. “Originally, Alexander & Bishop represented to the court that the parties were on the verge of closing. As time passed and the parties failed to close, the court was justified in ordering a higher rate of interest to motivate Alexander & Bishop to close. Although the circuit court was not required to set interest at the statutory rate, it did not erroneously exercise its discretion by doing so” (¶ 95).  

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