Criminal Procedure
Expungement of Convictions – Expungement is Self-Executing on Successful Completion of Sentence
State v. Hemp, 2014 WI 129 (filed 18 Dec. 2014)
HOLDING: The circuit court lacked authority to revisit an expungement decision after the defendant successfully completed his sentence because on successful completion, the defendant had earned and was entitled to the expungement.
SUMMARY: Defendant Hemp was convicted in Milwaukee County of possession of 200 grams or less of THC with intent to deliver (a Class I felony). At Hemp’s sentencing, the circuit court found him eligible for expungement, conditioned on his successful completion of probation.
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
Hemp petitioned for expungement one year after successfully completing probation but the circuit court denied the petition, concluding that not only did Hemp have the responsibility to petition for expungement but also that he had the responsibility to do so in a timely fashion. The circuit court explained that Hemp’s desire for expungement did not ripen until he was charged with new drug offenses in Walworth County after his successful completion of probation on the Milwaukee County charge. “The implied time element…coupled with the defendant’s tardy action in seeking expungement” led the circuit court to deny his petition.
In a published decision, the court of appeals affirmed. See 2014 WI App 34. In a unanimous decision authored by Justice Gableman, the supreme court reversed the court of appeals. It concluded as follows:
1) Under the plain language of the expungement statute (Wis. Stat. § 973.015), Hemp’s successful completion of probation “automatically entitled him to expungement of his conviction” (¶ 24). Said the court, “[i]f a circuit court finds an individual defendant eligible for expungement and conditions expungement upon the successful completion of the sentence, then the plain language of the statute indicates that once the defendant successfully completes his sentence, he has earned, and is automatically entitled to, expungement” (¶ 23).
2) Section 973.015 placed no burden on Hemp to petition the circuit court within a certain period of time to effectuate the expungement. “[T]he detaining or probationary authority must forward the certificate of discharge to the court of record upon the individual defendant’s successful completion of his sentence and at that point the process of expungement is self-executing. Wisconsin Stat. § 973.015(2) places no burden on the individual defendant to forward his certificate of discharge to the court of record and petition for expungement within a certain period of time” (¶ 26).
3) Once Hemp successfully completed probation, the circuit court did not have the discretion to refuse to expunge his record. Said the supreme court, “[n]othing in the expungement statute grants the circuit court the authority to revisit an expungement decision” (¶ 40).
Drunk-Driving Related Offenses – Warrantless Blood Draws – Exigent Circumstances – Good-Faith Exception to Exclusionary Rule
State v. Kennedy, 2014 WI 132 (filed 26 Dec. 2014)
HOLDING: The warrantless blood draw from the defendant violated the Fourth Amendment but the good-faith exception to the exclusionary rule saves the evidence because police officers reasonably relied on Wisconsin precedent at the time of the search.
SUMMARY: After the defendant’s arrest for a drunk-driving related offense, police officers obtained a warrantless blood draw at a local hospital. The evidence obtained from that draw (0.216 blood-alcohol level) was admitted over the defendant’s objection in his trial for homicide by intoxicated use of a vehicle.
At the time of the defendant’s arrest, Wisconsin law clearly established that the rapid dissipation of alcohol on its own constitutes an exigent circumstance sufficient for law enforcement officers to order a warrantless investigatory blood draw. See State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). [Note: Bohling also established other requirements for warrantless blood draws.]
However, while the appeal in this case was pending, the U.S. Supreme Court held in Missouri v. McNeely, 133 S. Ct. 1552 (2013), that when law enforcement officers can reasonably obtain a warrant before a blood sample is drawn, the Fourth Amendment mandates that they do so (see ¶ 30). Accordingly, the holding of Bohling is no longer an accurate interpretation of the Fourth Amendment (see ¶ 32).
In a majority opinion authored by Justice Gableman, the supreme court concluded that police officers had probable cause to arrest the defendant for a drunk-driving related offense (a summary of the facts supporting probable cause can be found at paragraph 23). The court concluded that the holding in McNeely retroactively applies to this case and, inasmuch as the state did not argue that exigent circumstances justified the warrantless blood draw from the defendant, the blood draw violated the Fourth Amendment.
However, because the police officers acted in objectively reasonable accord with the clear and settled Wisconsin precedent (articulated in Bohling)existing when they performed the warrantless investigatory blood draw on the defendant, the good-faith exception to the exclusionary rule applies (see ¶ 41). The officers’ reliance on Bohling was reasonable, and the results of the blood draw on the defendant will not be suppressed (see ¶ 37).
Chief Justice Abrahamson filed a concurring opinion.
Drunk-Driving Related Offenses – Warrantless Blood Draws – Exigent Circumstances – Good-Faith Exception to Exclusionary Rule – No-Merit Report of Postconviction Counsel
State v. Foster, 2014 WI 131 (filed 26 Dec. 2014)
HOLDINGS: The warrantless blood draw from the defendant violated the Fourth Amendment but the good-faith exception to the exclusionary rule saves the evidence because police officers reasonably relied on Wisconsin precedent at the time of the search; and the court of appeals properly accepted postconviction counsel’s no-merit report.
SUMMARY: After the defendant was arrested for operating a motor vehicle while intoxicated (OWI), police officers obtained a warrantless blood draw at a local hospital. At the time of the defendant’s arrest, Wisconsin law clearly established that the rapid dissipation of alcohol constitutes an exigent circumstance sufficient for law enforcement officers to order a warrantless investigatory blood draw. See State v. Bohling, 173 Wis. 2d 529, 494 N.W.2d 399 (1993). [Note: Bohling also established other requirements for warrantless blood draws.]
However, while the appeal in this case was pending, the U.S. Supreme Court held in Missouri v. McNeely, 133 S. Ct. 1552 (2013), that when law enforcement officers can reasonably obtain a warrant before a blood sample is drawn, the Fourth Amendment mandates that they do so (see ¶ 39). Accordingly, the holding of Bohling is no longer an accurate interpretation of the Fourth Amendment (see ¶ 40).
In a majority opinion authored by Justice Crooks, the Wisconsin Supreme Court concluded that the holding in McNeely retroactively applies to this case (see ¶ 42) and, inasmuch as the state did not argue that exigent circumstances justified the warrantless blood draw from the defendant, the blood draw violated the Fourth Amendment (see ¶ 46). However, because the police officers acted in objectively reasonable accord with the clear and settled Wisconsin precedent (articulated in Bohling) existing when they performed the warrantless investigatory blood draw on the defendant, the good-faith exception to the exclusionary rule applies (see ¶ 56). The officers’ reliance on Bohling was reasonable and the results of the blood draw on the defendant will not be suppressed (see ¶ 8).
The court also addressed the defendant’s postconviction claim that his trial counsel was ineffective for failing to collaterally attack prior out-of-state OWI convictions that were used to enhance his sentence in the present case; the contention was that those convictions were obtained in violation of the defendant’s right to counsel. The supreme court concluded that the court of appeals properly accepted postconviction counsel’s no-merit report.
“Because it is apparent that the court of appeals examined all of the relevant facts and exercised reasonable and lawful discretion in determining that there was no arguable merit to [the defendant’s] ineffective assistance claim, we affirm the court of appeals” (¶ 72).
Chief Justice Abrahamson filed a dissenting opinion that was joined in part by Justice Bradley.
Drunk-Driving Related Offenses – Warrantless Blood Draws – Exigent Circumstances
State v. Tullberg, 2014 WI 134 (filed 26 Dec. 2014)
HOLDING: Probable cause and exigent circumstances justified a warrantless blood draw from the defendant.
SUMMARY: In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the U.S. Supreme Court held that when law enforcement officers can reasonably obtain a warrant before a blood sample is drawn, the Fourth Amendment mandates that they do so. The issue before the Wisconsin Supreme Court in this case (which involved many counts, including homicide by intoxicated use of a vehicle) was whether probable cause and exigent circumstances existed such that it was reasonable for the officer to order a warrantless blood draw from the defendant. In a majority opinion authored by Justice Ziegler, the court answered in the affirmative.
“A warrantless, nonconsensual blood draw of a suspected drunken driver complies with the Fourth Amendment if: (1) there was probable cause to believe the blood would furnish evidence of a crime; (2) the blood was drawn under exigent circumstances; (3) the blood was drawn in a reasonable manner; and (4) the suspect did not reasonably object to the blood draw” (¶ 31). The court’s opinion examines only probable cause and exigent circumstances; the defendant did not contend that his blood was drawn in an unreasonable manner or that he did not consent to the draw.
The blood draw in this case occurred at the hospital nearly three hours after the defendant was involved in a horrific accident. After the accident, the defendant left the scene and later was located at a hospital in another county where he went for treatment. Although he was not arrested at the time of the draw, the court concluded that the officer had probable cause to believe that he was the driver of the vehicle involved in the accident (even though the defendant denied that he was the driver) based on the officer’s investigation of the accident’s circumstances. Further, the officer had probable cause to believe the defendant was under the influence of an intoxicant at the time of the accident based on his slurred speech, bloodshot and glassy eyes, smell of intoxicants, and the defendant’s admission that he had consumed multiple drinks.
The court further concluded that exigent circumstances existed, which made it reasonable for the officer to proceed without a warrant to obtain a blood sample. It took almost three hours for the officer to investigate the accident scene, determine the location of the defendant, drive 30 minutes to the hospital to which the defendant had gone, and contend with the defendant’s denial of driving in the face of other evidence indicating he was the driver. The officer did not have probable cause until approximately 2.5 hours after the accident. When he learned that the defendant was about to undergo what could have been a lengthy CT scan, he ordered the blood draw, knowing that a blood sample should be taken within three hours to ensure its accuracy and admissibility as evidence.
Said the court, “[v]iewing the totality of these facts and circumstances, Deputy Hoffman reasonably responded to the accident, secured the scene, investigated the matter, and ultimately was left with a very narrow time frame in which Tullberg’s blood could be drawn so as to produce reliable evidence of intoxication. This sort of ‘now or never’ moment is the epitome of an exigent circumstance. … However, we do not mean to suggest that a warrantless blood draw would always require a ‘now or never’ situation in order to be justified by exigent circumstances. Rather, exigent circumstances justify a warrantless blood draw if delaying the blood draw would ‘significantly undermin[e] [its] efficacy.’ The ‘now or never’ moment in the present case quite clearly meets that test” (¶ 50) (citations omitted).
Lastly, the court rejected the defendant’s argument that the blood draw was unconstitutional because it was not preceded by an arrest. Said the court, “the Fourth Amendment provides sufficient protection such that an arrest need not precede a warrantless blood draw. When there is probable cause for a blood draw, as there is in the case at issue, there also is probable cause to arrest for operating while intoxicated. An arrest is not a prerequisite to a warrantless blood draw justified by probable cause and exigent circumstances” (¶ 55).
Chief Justice Abrahamson filed a concurring opinion.
Eminent Domain
Temporary Easement – Highways – Damages
118th Street Kenosha LLC v. Wisconsin Dep’t of Transp., 2014 WI 125 (filed 10 Dec. 2014)
HOLDING: A limited liability company’s loss of direct access to a busy road because of a Wisconsin Department of Transportation (DOT) road-relocation project was not compensable.
SUMMARY: A limited liability company (LLC) owns commercial property that had direct access to a busy street, 118th Avenue, before 2010. A DOT road-relocation project created a new driveway but left the LLC with only indirect access to 118th Avenue. Although the DOT paid the LLC approximately $20,000 for the temporary limited easement that created the new driveway, the LLC contended that its property value declined by $400,000 because of its loss of direct access to 118th Avenue. The LLC brought this action under Wis. Stat. section 32.09 to recover damages for the property’s diminished value.
The circuit court excluded evidence of the diminished value but, in a published opinion, the court of appeals reversed. See 2013 WI App 147.
The supreme court reversed the court of appeals in a majority opinion, authored by Justice Ziegler, which canvasses the general law on highway compensation (see ¶ 30) and damages for easements under Wis. Stat. section 32.09(6g) (see ¶ 35).
“We conclude that the LLC is precluded from seeking damages under Wis. Stat. § 32.09(6g) for the commercial property’s diminution in value which resulted from its loss of direct access and proximity to 118th Avenue due to the 118th Avenue relocation.The temporary limited easement did not cause the commercial property to lose direct access and proximity to 118th Avenue, so damages under § 32.09(6g) for the temporary limited easement cannot include damages for the loss of direct access and proximity to 118th Avenue.Because the LLC seeks damages for its loss of direct access and proximity to 118th Avenue, the circuit court did not err by excluding evidence of those damages in the § 32.09(6g) claim for taking an easement. Thus, the LLC improperly seeks compensation under § 32.09(6g) for the commercial property’s diminution in value based on its lost direct access and proximity to 118th Avenue when 118th Avenue was relocated.Because our resolution of the narrow issue presented disposes of the LLC’s claim, we need not address the other issues presented” (¶ 61).
Chief Justice Abrahamson concurred. Temporary limited easements are governed by Wis. Stat. section 32.09(6g). She noted the majority’s “qualms” about whether such easements are so governed even though the majority “assumes without deciding” that they are (see ¶¶ 71, 72). The issue is one, she asserted, that the DOT frequently confronts, and so it should be resolved (see ¶ 65).
Employee Benefits
Governmental Pensions – Prospective Change in Benefits Calculation Formula
Stoker v. Milwaukee Cnty., 2014 WI 130 (filed 19 Dec. 2014)
HOLDING: Milwaukee County’s prospective change in the formula used to calculate the plaintiff’s pension did not breach the collective bargaining agreement with the plaintiff’s union.
SUMMARY: Milwaukee County calculates pension payments for its retired employees by multiplying a retiree’s final average salary by a certain percentage known as a multiplier, and the resulting number is then multiplied by the retiree’s total years of county service. When plaintiff Stoker’s county service began, a 1.5 percent multiplier applied to her service.
In 2000, Milwaukee County passed an ordinance that increased the multiplier to 2 percent for service rendered on and after Jan. 1, 2001. In 2011, consistent with the terms of a collective bargaining agreement with the union to which the plaintiff belonged, Milwaukee County passed an ordinance that reduced the multiplier from 2 percent to 1.6 percent for all county service performed on and after Jan. 1, 2012. The 2 percent multiplier continued to apply to service rendered by Stoker from 2001 through 2011.
Stoker argued that this reduction of the multiplier is a breach of contract because she had a vested right to have the 2 percent multiplier apply to her post-2011 county service. Milwaukee County and the Milwaukee County Pension Board replied that the reduction is authorized because Stoker had no vested right to have the 2 percent multiplier apply to her post-2011 county service. The circuit court granted summary judgment and declaratory and injunctive relief to the plaintiff. In a published opinion, the court of appeals affirmed. See 2013 WI App 144.
In a majority decision authored by Justice Ziegler, the supreme court reversed the court of appeals. “We conclude that Milwaukee County did not breach the contract with Stoker when it amended the pension multiplier from 2% to 1.6%. The amendment did not breach Stoker’s contractual right to retirement system benefits earned and vested because it had prospective-only application to future service credits not yet earned, specifically, on and after January 1, 2012. We conclude that the legislature preserved Stoker’s rights and benefits already accrued but also gave Milwaukee County home rule authority with the flexibility to enact such prospective-only changes. We conclude that Stoker does not have a vested right to have the 2% multiplier apply to her then-unearned post-2011 service. In other words, Milwaukee County could so amend the formula and apply it prospectively because that prospective application does not ‘diminish or impair’ benefits accrued from service credits already earned” (¶ 47).
Justice Bradley filed a dissenting opinion that Chief Justice Abrahamson joined.
Insurance
Pollution Exclusion – Septic Waste
Preisler v. Kuettel’s Septic Serv. LLC, 2014 WI 135 (filed 30 Dec. 2014)
HOLDING: For purposes of an insurance policy exclusion, a reasonable insured would understand that septage is a “contaminant” and thus a “pollutant” when it decomposes and seeps into a water supply.
SUMMARY: The Preislers operate a dairy farm and raise cattle. When cattle began dying at an “uncharacteristic rate” and milk production decreased, the Preislers learned that their well water contained elevated levels of nitrates, which are produced as septage decomposes. A new well slowed the rate of cattle deaths. The Preislers sued the defendants and their insurers, who ran a septic pumping service on a nearby property. The Preislers had even permitted the use of some septage as a fertilizer, supposedly in conformity with Wisconsin Department of Natural Resources (DNR) directives.
The circuit court granted summary judgment in favor of the insurers under the policies’ pollution exclusions. In an unpublished decision, the court of appeals affirmed.
The supreme court affirmed in a majority opinion authored by Justice Roggensack. The sole issue was whether the pollution exclusion precluded coverage for the Preislers’ alleged damages (see
¶ 17). First, the court looked at whether the policy made “an initial grant of coverage” for the claim, which compelled it to assess what constitutes an “occurrence” (¶ 22). “Here, the ‘accident’ was the seepage of decomposing septage into the Preislers’ water supply. Seepage into the water supply was not ‘intended, anticipated, or expected’” (¶ 28).
The next issue was whether the policy excluded coverage for this occurrence. More precisely, would a reasonable insured “consider decomposing septage to be a pollutant when it seeps into a water supply [?]” (¶ 40). Septage, the court observed, is regulated by both the DNR and the U.S. Environmental Protection Agency (see ¶ 43). “A reasonable insured would not understand exposure of water supplies to decomposing septage as ‘an everyday activity gone slightly, but not surprisingly awry’” (¶ 49).
Justice Bradley concurred, yet found it unnecessary for the court to assess what constitutes an occurrence, let alone to do so in a way inconsistent with recent case law (see ¶ 60). The result is “unclear, unnecessary, and inconsistent precedent” (¶ 65).
Chief Justice Abrahamson dissented. She said that the majority’s approach to the pollution exclusion clause “unnecessarily departs from precedent, undercuts the limiting principles our prior cases have applied to pollution exclusion clauses, and further confuses this murky area of law” (¶ 69).
Pollutants – Manure
Wilson Mut. Ins. Co. v. Falk, 2014 WI 136 (filed 30 Dec. 2014)
HOLDING: Manure spread on farm fields that contaminated nearby wells constituted a pollutant for purposes of the pollution exclusion in the insurance policies.
SUMMARY: The Falks spread liquid cow manure on their fields as fertilizer. Neighbors complained, however, that the manure contaminated their wells. Wilson Mutual had issued to the Falks a farmowner policy that contained a pollution exclusion. The circuit court ruled that the pollution exclusion precluded both the insurer’s duty to defend and the insurer’s duty to indemnify. In a published decision, the court of appeals reversed, finding that manure is “liquid gold” and not a pollutant. See 2014 WI App 10.
The supreme court reversed the court of appeals in a majority opinion authored by Justice Gableman. The covered occurrence in this case was not the spreading of manure, but manure’s contamination of the wells (see ¶ 28). An occurrence is “unexpected or unintended resultant damage” (¶ 32). Turning to the exclusion, the court had to determine “only whether manure is a pollutant at the point it entered the injured parties’ wells” (¶ 34). From the standpoint of a reasonable insured, “manure is unambiguously a pollutant when it seeps into a well” (¶¶ 36, 38).
“A reasonable insured may not consider manure safely applied on a field to be a pollutant; however, a reasonable insured would consider manure in a well to be a pollutant. Just because manure may be beneficial when spread on a field, does not mean it is not a pollutant” (¶ 49). The court refused to distinguish between the manure itself and nitrates contained in the manure (see ¶ 50).
The court also ruled that a liability endorsement to the policy did not make an initial grant of coverage for bodily injury related to the pollution (see ¶ 53), and that an “incidental coverages section” indemnified the Falks up to $500 for each separate well that may have been contaminated (see ¶ 64).
Concurring, Justice Bradley pointed to an inconsistency between the majority’s “occurrence” analysis and its discussion of a “cause” theory. She also agreed with the dissent’s position on the liability endorsement.
Chief Justice Abrahamson dissented. She said the majority’s position that manure is a pollutant when it seeps into a well “departs from precedent, undercuts the limiting principles our prior cases have applied, and further confuses this murky area of law” (¶ 80), emphatically disagreed with the majority’s determination of the number of occurrences (see ¶ 115), and parsed the endorsement’s distinction between orders to remediate and claimants seeking to recover money damages (see ¶ 132).
Mental Health Law
Involuntary Commitments –Threats to Self – Pattern of Acts
Outagamie Cnty. v. Michael H., 2014 WI 127 (filed 16 Dec. 2014)
HOLDING: Sufficient evidence supported a Wis. Stat. chapter 51 commitment on grounds that the respondent was a danger to himself.
SUMMARY: A jury found that Michael H., who suffered from mental illness, was a danger to himself. The county alleged that he had made recent threats of suicide and had demonstrated “impaired judgment” through a pattern of recent acts. The circuit court committed Michael for involuntary treatment under Wis. Stat. chapter 51. In an unpublished decision, the court of appeals affirmed.
The supreme court affirmed in a unanimous opinion, authored by Justice Crooks, which addressed the meaning of suicide “threats” and “pattern of acts” under Wis. Stat. chapter 51. The court underscored that the standard of review was “significant” because ultimately the issue was sufficiency of evidence to support the jury’s verdict (see ¶ 21). After outlining the history of chapter 51 commitment law, the court disclaimed any requirement that the petitioner prove “an articulation of a specific plan” for suicide (¶ 37). Michael “undisputedly acknowledge[d] that he was suicidal” (¶ 36). It was for the jury to decide whether he had “an intent to follow through and harm [himself]” (id.).
The evidence also showed “the pattern of his paranoia and increasing distress” (¶ 39). Michael’s “repeated trips to the hospital to seek help” showed that his “symptoms were worsening and he was becoming distressed to the point that there was a substantial probability of injury to himself” (¶ 40). These events, coupled with his unwillingness to take medication or “avail himself of the help that was offered,” supported the jury’s findings (¶ 41).
Torts
Dog Bite Statute – “Harborer”
Augsburger v. Homestead Mut. Ins. Co., 2014 WI 133 (filed 26 Dec. 2014)
HOLDING: Under the dog bite statute, a landowner who did not reside on the land did not “harbor” the dogs that injured the plaintiff.
SUMMARY: Kontos purchased property on which he permitted his daughter and her family to live so that she could be closer to her mother. He did not reside on this property. The daughter did not pay rent. Kontos knew that the daughter’s family had horses and dogs.
While visiting the daughter, the plaintiff was attacked and injured by four of the daughter’s dogs. The plaintiff sued Kontos under Wis. Stat. section 174.02. The circuit court granted summary judgment in favor of the plaintiff, finding Kontos was a harborer and thus an “owner” of the dogs. In a published decision, the court of appeals affirmed. See 2013 WI App 106.
The supreme court reversed in a majority opinion authored by Justice Bradley. Under Wis. Stat. section 174.001(5), an owner is one who “owns, harbors or keeps a dog” (¶ 19). It was undisputed that Kontos neither owned the dogs nor kept them. Construing case law that addressed the status of harborer, the court held that “the determination is based on a totality of the circumstances”; whether the person (Kontos) lived on the property is an “important factor” (¶ 22). The focus “is not on the official relationship between the dog owner and the landowner; rather our focus is on the amount of control the landowner exerts over the premises on which the dog is kept – whether the dog’s legal owner is more akin to a houseguest or a tenant” (¶ 30).
A “narrow interpretation” of the term harborer accorded “with the canons of statutory construction” (¶ 38). A keeper exercises control over the dog while a harborer controls the property (see ¶ 39). Ownership of the property is “insufficient to establish that an individual is a harborer” (¶ 42). The facts here demonstrated that Kontos was not a harborer (see ¶ 47).
Justice Prosser dissented. While agreeing that “mere ownership” is insufficient to make one a harborer, he concluded that Kontos exercised sufficient control here to be deemed a harborer. Kontos sheltered the daughter’s family and horses as well as the dogs (see ¶ 86).
