Wisconsin Supreme Court Decision Leaves Certified Questions Unanswered

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In State v. Howes, 2017 WI 18, the Wisconsin Supreme Court analyzed a warrantless blood draw in an OWI in light of, Missouri v. McNeely, 133 S. Ct. 1552 (2013), in which the U.S. Supreme Court addressed the constitutionality of warrantless blood draws to prevent dissipation in alcohol concentration.  Howes, however, may not provide Wisconsinites all of the guidance that many anticipated.

The defendant, David Howes, was involved in a motorcycle versus deer crash.  By the time a deputy responded, emergency personnel were already treating an unconscious Howes.  The deputy could not find any witnesses, but a bystander reported that Howes smelled of intoxicants.  Howes was hospitalized.  On his way to the hospital, the deputy checked Howes’ record and found out that Howes had three prior OWI/PAC. This meant that Howes was subject not to the general 0.08% limit on blood alcohol concentration while driving but, as a repeat offender, to a stricter 0.02% limit.  The deputy also spoke with the EMTs who treated Howes, one of whom reported smelling intoxicants emanating from Howes.  The deputy arrested Howes, then unconscious, for operating a motor vehicle with a prohibited alcohol concentration based on the smell reported by others, the 0.02% threshold and the crash itself.  While Howes was still unconscious the deputy read him the Informing the Accused form and asked if he would submit to a blood test. Receiving no response and without first seeking a warrant, the deputy instructed the hospital staff to draw a blood sample.  The results showed Howes’ blood alcohol concentration was 0.11%. 

In his trial for OWI (4th offense) and operating with a prohibited alcohol concentration, Howes moved to suppress the results of the blood draw.  The circuit court granted the motion.  The court found the deputy had probable cause to arrest Howes.  However, the court held Wisconsin’s implied consent law was unconstitutional as it related to a blood draw of an unconscious person without a warrant or exigent circumstances.

The State appealed and the court of appeals certified the case to the Wisconsin Supreme Court.  The court of appeals certified a single issue: whether the portions of Wisconsin’s implied consent law that allow for warrantless blood draws from unconscious suspects violate the Fourth Amendment to the Constitution.

The lead opinion, authored by Chief Justice Roggensack, reversed the decision by the trial court, but on grounds that appear to diverge from the reasoning of the trial court and the issue certified by the court of appeals.  First, the court found the deputy had probable cause to arrest Howes for the same reasons outlined by the trial court.  The court focused its analysis on exigent circumstances sufficient to justify a warrantless blood draw.  Citing extensively to Schmerber v. California, 384 U.S. 757 (1966), and McNeely, the court found there were exigent circumstances, stating "Under the totality of the circumstances presented herein, which included a seriously injured, unconscious person, who was being subjected to medical treatments for his injuries and who had 0.02 percent as his PAC threshold, a reasonable officer could have concluded that further delay in drawing Howes’ blood would have led to the destruction of evidence through the dissipation and dilution of alcohol in Howes’ bloodstream."  Howes, ¶ 51.  The court remanded the case for further proceedings.

The majority concluded that exigent circumstances existed at the time due to the possible dissipation or destruction of evidence (alcohol) in Howes’ blood had the deputy waited to obtain a warrant. This was not the question presented in the circuit court, nor was it the question certified by the Court of Appeals.

Justice Gableman, joined by Justice Ziegler, concurred.  While Justices Gabelman and Ziegler agreed with the majority’s mandate, Justice Gableman focused on the question certified by the court of appeals – “whether provisions in Wisconsin’s implied consent law authorizing a warrantless blood draw from an unconscious driver based on the driver’s implied consent are unconstitutional under the Fourth Amendment to the United States Constitution.”  Id. ¶ 52.  Noting that McNeely was not relevant to this consideration, he found Howes did not prove beyond a reasonable doubt that the portions of the implied consent law applicable to unconscious drivers, namely the portions that indicate a driver consents unless he or she expressly revokes consent, are unconstitutional.  The concurrence concluded the presumption established by the implied consent law that an unconscious driver does not withdraw consent was not per se unreasonable and in such a circumstance, there was no need for a warrant because the unconscious driver has voluntarily consented to the blood draw.

The dissent, authored by Justice Abrahamson and joined by Justice Walsh Bradley in full and Justice Kelly in part, held the portions of the implied consent law authorizing warrantless blood draws on unconscious individuals to be unconstitutional.  Harshly criticizing the lead opinion’s focus on exigent circumstances, the dissent explained “because unconscious drivers have not freely and voluntarily consented to the warrantless blood draw under the Fourth Amendment . . . the warrantless blood test in the instant case should be suppressed.”  Id. ¶ 136.  More specifically, the dissent evaluated the issue in the context of searches incident to arrest, arguing that if the U.S. Supreme Court will not establish blood draws as a per se rules that warrantless blood draws are authorized under the search incident to arrest exception, then warrantless blood draws cannot be allowed based solely on statutorily imputed implied consent.

Ultimately, the split decision does not provide direct authority on the issue of the constitutionality of the implied consent law.  Instead, this decision suggests that officers must continue to evaluate the totality of the circumstances and with an eye toward the issues relevant to exigent circumstances.  The only clear-cut instruction at this point may be to obtain a warrant whenever possible.

Only Wisconsin Case Before U.S. Supreme Court this Term Should Not Be Decided

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There is only one Wisconsin case at the U.S. Supreme Court this Term. Murr v. Wisconsin (No. 15-214) will be heard on March 20—but the Court should not decide it.

As this blog has previously detailed, the Murr case involves a dispute about how land-use regulations adopted to protect the Lower St. Croix River apply to a riverside property in northwestern Wisconsin. The Wisconsin state courts uniformly turned aside the Murr family’s claims that the regulations as applied by St. Croix County unconstitutionally reduced the value of their land. In January 2016, the U.S. Supreme Court granted the Murrs’ petition to review the case.

There is no shortage of intriguing storylines intertwined in the Murr case. Among them:

  • The dispute is over the balance between private property rights and government regulation, which is always a hot-button issue. Whether the conflict here has constitutional dimensions and how to determine that are both contentious questions. In addition to numerous organizations that have chosen sides, nine states have filed a brief supporting Wisconsin’s position, and nine other states filed in support of the Murrs.
  • The case has dragged on, even by the standards of extensive litigation. St. Croix County denied the Murrs’ request for a zoning variance in 2006. Once the case wended through the courts and the Supreme Court accepted review, it then left the case in limbo, so that it is hearing the case almost a year later than anticipated—all without explanation.
  • The case will be heard by a short-handed, eight-member Supreme Court on the same day that the Senate Judicial Committee will convene hearings on the nomination of Judge Neil Gorsuch to fill the Court’s vacancy. If that’s not enough inside baseball, the Murr argument will also mark the debut of Wisconsin Solicitor General Misha Tseytlin before the Supreme Court.

But one of the most interesting aspects of the case is that there are several reasons that the Supreme Court should not decide the dispute at all. There’s no need to reach the constitutional question, and courts generally avoid making new constitutional law unless doing so is necessary. The Murrs’ case was dismissed in 2013 because it was not filed within the time limits prescribed by Wisconsin law. St. Croix County also argued at that stage that the Murrs had not taken all of the steps required before filing suit.

Either argument, if correct, would dispose of this case without a controversial constitutional ruling. Neither argument was fully explored in the Wisconsin appellate courts. As it has done before, the Supreme Court should send the case back to the state courts for resolution of these antecedent issues and should consider the constitutional question only if necessitated by the lower courts determining that the other issues don’t end the case.

We made this argument in an amicus brief (available here), filed on behalf of three membership organizations that, among them, represent every level of local government in the state of Wisconsin. The brief urges the Court to follow its own precedent, to allow this case to be resolved on the narrowest possible grounds, and to avoid wading into a complex constitutional conflict unless absolutely necessary. In light of the fact that Murr will be decided by a shorthanded Court comprised of Justices who could easily split evenly on the constitutional issues in the case, the option of sending the case back to the Wisconsin courts may be particularly welcome.

Check back with the Stafford Rosenbaum Appellate Practice Blog for coverage of additional developments in Wisconsin v. Murr.

For media inquiries please contact attorney Jeff Mandell at (608) 210-6303 or jmandell@staffordlaw.com


Court of Appeals Expands Municipal Protection Conferred by Wisconsin’s Recreational Immunity Statute

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Wisconsin’s recreational immunity statute, Wis. Stat. § 895.52, provides municipalities with broad immunity from liability for injuries to any person engaged in recreational activities on municipal property. The statute sets forth a three-part definition of recreational activity. The first part of the section defines recreational activity as “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure, including practice or instruction in any such activity.” The second part of the statutory definition of recreational activity lists 29 specific activities denominated as recreational. The third part of the statutory definition broadly adds “and any other outdoor sport, game or educational activity.”

Wisconsin courts have wrestled with applying the recreational immunity statute to varied fact situations since its enactment. The line between recreational and non-recreational activities can be difficult to draw under Wis. Stat. § 895.52, and the issue has been litigated with some frequency, most recently in Wilmet v. Liberty Mutual Ins. Co., 2015AP2259 (Wis. Ct. App. Feb. 28, 2017). The case is of particular importance to municipalities, because the court construed the statute to broaden municipal recreational-related immunity.  

Mrs. Wilmet was at a city-owned and operated swimming pool to drop off her grandchildren. After dropping them off, she remained outside the premises, supervising her grandchildren from behind the fenced perimeter of the pool as they swam. Mrs. Wilmet’s grandson shouted to her that he was going to jump off the high dive. When Mrs. Wilmet observed there were no lifeguards in the area, she became concerned about her grandson’s safety and told her grandson to wait. She then entered the pool premises without paying the entry fee (but with the attendant’s permission), and went immediately from the entrance through the locker room and toward the high dive. Mrs. Wilmet did not plan to swim at the pool or stay on the premises following her grandson’s dive. As she walked toward the high dive, she tripped on a cement doorstop and was injured.

The Wilmets sued the municipality and its insurer. The city invoked the recreational immunity statute as an affirmative defense and sought the action’s dismissal on that basis.  The city argued that Mrs. Wilmet’s activity of supervising her grandson, who was himself engaged in a recreational activity, was sufficient to bring the Wilmets’ claims within the ambit of the recreational immunity statute.  The court of appeals agreed, basing its holding on principles of statutory interpretation and previously developed tests under which courts consider, among other factors, whether the activity in question was undertaken in circumstances substantially similar to the circumstances of recreational activities set forth in the statute.

The court reasoned that supervising other persons, who are themselves engaged in recreational activities, involves actively overseeing or directing the performance of the recreational activity of another. Thus, the court concluded, “supervision” was akin to, and subsumed within, “practice” and “instruction” in a recreational activity, which the legislature specifically identified as giving rise to immunity. In addition, the court found that conferring recreational immunity for supervision is consistent with the legislature’s purpose in enacting the recreational immunity statute. Because it was undisputed that Mrs. Wilmet was supervising her grandson’s recreational activity on the city’s pool grounds at the time of her injury, the city was entitled to immunity under § 895.52 from her claims.

For more information about statutory exceptions to recreational immunity and case law interpretations of the recreational immunity statute that might expose a municipality to potential liability, contact any member of Stafford Rosenbaum LLP Government Team.

Plain Language in Oshkosh Special Events Ordinance Prevails

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Many municipal ordinances do not define each term in each section. Instead, municipalities may rely on a common meaning to define an ordinance term. The Wisconsin Court of Appeals in City of Oshkosh v. Kubiak, 2016AP804 (Wis. Ct. App. Feb. 15, 2017) (unpublished opinion) (recommended for publication), affirmed this fact. In Kubiak, the Wisconsin Court of Appeals reversed a circuit court ruling that the meaning of “organizer” in the City’s special events ordinance was unconstitutionally vague.

For many years, college students in the Oshkosh area have participated in the semi-annual (April and October) Oshkosh Pub Crawl where students walk downtown Oshkosh and patronize the local taverns. On January 1, 2011, the City of Oshkosh enacted a special events ordinance. The ordinance required an event organizer to obtain a permit before holding a special event. The ordinance also required the applicant to reimburse the City for any costs incurred by the City for providing extraordinary services for the event. For the semi-annual pub crawls in 2011, 2012, and 2013, the defendant, Joseph Kubiak, through Oshkosh Pub Crawl, LLC, applied for a permit and made the required payments for extraordinary services in accordance with the ordinance. However, in April and October 2014, Kubiak did not get a permit for the Pub Crawl.

The City filed suit in circuit court against Kubiak for failing to apply for a permit. The City argued that Kubiak was the organizer of the event under the ordinance. Kubiak disagreed. The circuit court dismissed the lawsuit, ruling that the meaning of “organizer” was unconstitutionally vague.

The court of appeals reversed, holding that the term “organizer” in the ordinance was not unconstitutionally vague. The court held that “people of ordinary intelligence can read and sufficiently understand the requirements of the [o]rdinance.” Id. ¶ 14. The court pointed to the standard definition of organizer for guidance and stated that “an organizer must have some direct effect on arranging the event.” Id. The court concluded that the ordinance restricts its applicability to those who take an active role in the special event, not merely those who encourage others to attend. Thus, the court remanded this action to the circuit court to determine whether Kubiak was an organizer under the ordinance and, if so, whether he violated that ordinance.

This case reinforces the idea that when drafting an ordinance a municipality need not define every term, or even most terms. The municipality should be aware that if ordinance terms are not defined, courts may interpret terms according to the term’s ordinary meaning often found in a recognized dictionary.

Wisconsin’s Property Tax Assessment Statutes Challenge to be Decided by the Wisconsin Supreme Court

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The Wisconsin Supreme Court will soon decide whether Wisconsin’s law on property tax assessment is constitutional. The Court heard oral arguments for Milewski v. Town of Dover, No. 2015AP152, 2016 WL 1761988 (Wis. Ct. App. May 4, 2016) (unpublished opinion) last month, and the Wisconsin Realtors Association, the Institute for Justice, and the Wisconsin Department of Justice filed amicus briefs in support of the plaintiffs. The Milewski case could significantly change how municipalities appraise home values for purposes of assessing property taxes.

The Town of Dover hired Gardiner Appraisal Service, LLC to perform a new assessment of all real property in the town for the 2013 tax year. The plaintiffs, Vincent Milewski and Morganne MacDonald, are homeowners in the Town of Dover. They received a notice stating that an assessor—a Gardiner representative—would be stopping by to view the interior of their home. The plaintiffs denied the assessor entry into their home. Gardiner sent another letter to the plaintiffs, stating that their property needed to be assessed. The second letter explained that, Wis. Stat. § 70.32(1), requires an assessor to value property based upon “actual view or from the best information that the assessor can practicably obtain,” and that Wis. Stat. § 70.47(7)(aa) prohibits homeowners from contesting their assessments if they refused “a reasonable written request…to view [their] property.”

When the plaintiffs did not provide the assessor access to the interior of their home, Gardiner assessed the value of the property at $307,100. This assessment was a 12.12% increase in the value from the previous assessment. Milewski, slip op., ¶5. Gardiner explained that it reached this figure by taking into account several factors including: (1) the possibility that the plaintiffs remodeled over the past nine years (although this had not been verified); (2) its inability to evaluate if the effective age of the home increased or decreased; and (3) the fact that assessed values of many area homes had increased that year. Id. Citing Wis. Stat. § 70.47(7)(aa), the board of review rejected the plaintiffs’ request to review the assessment because the board found the plaintiffs had refused a reasonable request to view the property. Id.

Having struck out with the board of review, the plaintiffs filed a complaint in circuit court, arguing that the Wisconsin statutes for property tax assessment and appeals were unconstitutional and that Gardiner had over-assessed their property. The circuit court granted the Town’s and Gardiner’s motions for summary judgment, dismissing the claims against them. The Wisconsin Court of Appeals affirmed that ruling.

The plaintiffs argued on appeal that the Fourth Amendment, which guarantees a right to privacy, protects them from compelled interior inspections. Id. ¶13. For support, the plaintiffs relied on Camara v. Municipal Court, 387 U.S. 523 (1967), which held that a housing inspector needed a warrant to enter the plaintiff’s apartment to conduct routine annual inspections. Id. The Court of Appeals distinguished Camara because no civil or criminal penalties resulted from the plaintiffs’ decision to deny the tax assessor entry. Id. ¶14. The Court of Appeals likened this case to Wyman v. James, 400 U.S. 309, 317-18 (1971), where the Supreme Court held that social worker visits conducted pursuant to New York’s welfare program were not Fourth Amendment searches because the visitation was not forced and the beneficiary’s denial to enter the home was not a criminal act. Here, the Court of Appeals reasoned that the plaintiffs were not being forced to allow Gardiner entry and they could refuse.

The plaintiffs also argued, to no avail, that Gardiner retaliated against them with a higher-than-reasonable assessment because they had not allowed an assessor to view their home’s interior. Milewski, slip op., ¶22. The Court of Appeals said the plaintiffs failed to show that Gardiner intentionally assessed their property for greater than true value. In addition, the Court of Appeals held that Gardiner followed the law in appraising the property, rejecting the plaintiffs’ argument that Gardiner had ignored the statutory requirement to base appraisals on the “best information.” Id., ¶24. Therefore, the Court of Appeals dismissed all of plaintiffs’ claims.

The Wisconsin Supreme Court must now decide whether Wisconsin’s property tax assessment laws invade the right to privacy guaranteed by the Fourth Amendment. If the Fourth Amendment is implicated, the Court must decide whether it is reasonable for the property tax assessment laws to mandate warrantless searches. If the Supreme Court reverses the lower courts, Wisconsin homeowners might be able to freely deny interior property appraisals without forfeiting the ability to contest the resulting assessment to the board of review. This could complicate municipal efforts to assess properties for taxation purposes.

U.S. Supreme Court to Clarify State’s Treatment of Military Disability Benefits in Divorce Case

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On March 20, 2017, the Supreme Court will hear arguments in Howell v. Howell, No. 15-1031 (U.S.). The case involves a conflict between a federal law, the Uniformed Services Former Spouses’ Protection Act (“USFSPA”), and a state court spousal support order. The Supreme Court is now hearing this case because different states have reached different conclusions about how the USFSPA affects state court orders.

Specifically, the Howell case presents the following question: does the USFSPA pre-empt a state court order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s share of the veteran’s military retirement pay, when that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability? 

The facts are as follows:  John Howell, a veteran, and Sarah Howell were divorced in Arizona in 1991. The divorce judgment provided that Sarah would receive fifty percent of John’s “military retirement when it begins.”  Once John retired in 1992, both he and Sarah began receiving an equal share of his military retirement pay.  In 2005, the Department of Veterans’ Affairs determined that, as a result of a service-connected shoulder injury, John qualified for a 20 percent disability rating.  John elected to waive a corresponding portion of his military retirement pay so that he could receive disability benefits.  Disability pay, unlike retirement pay, is exempt from taxation and cannot be divided.  However, John’s unilateral decision to receive disability pay in lieu of some retirement pay meant that Sarah’s share of his retirement pay was also diminished.  After John accepted the disability benefits, Sarah’s share of the retirement pay dropped by approximately $125 per month. 

In response to the reduction in the amount of retirement pay she was receiving, Sarah sought relief from the family court in Arizona.  In 2013, she requested an arrearage for the amount of retirement pay she had expected but had not received since John accepted the disability benefits (a grand total of $3,813 at that time).   John moved to dismiss Sarah’s request.  The family court sided with Sarah and ordered John to indemnify—that is, to pay—her for the amount of the reduction.  The family court’s decision was affirmed by the intermediate appellate court and then the supreme court of Arizona.  The U.S. Supreme Court granted John’s petition for review in the U.S. Supreme Court in December 2016. 

The Supreme Court must now decide whether the state court’s order violated the USFSPA as interpreted in Mansell v. Mansell, 490 U.S. 581 (1989).  The USFSPA permits state courts to treat “disposable retired pay” in accordance with the law of the jurisdiction of such court.  “Disposable retired pay” does not include the amount a veteran waives in order to receive disability benefits.  Mansell therefore interpreted the USFSPA as foreclosing state courts from treating as community property the portion of military retirement pay a veteran has waived in order to receive disability benefits.  That means that in a divorce, a state court may treat retirement pay as community property, but federal law preempts the state court from treating a veteran’s disability pay as community property.

Howell differs from Mansell in several respects.  In Mansell, the husband was retired at the time of the divorce and had already waived a portion of his retirement pay in order to receive disability benefits.  Additionally, the Mansells’ divorce judgment specifically provided the wife with fifty percent of the husband’s “total military retirement pay, including that portion of retirement pay waived so that [the veteran] could receive disability.”  Such is not the case in Howell.  John Howell’s waiver of retirement pay occurred nearly fifteen years after the court entered his divorce judgment.  Additionally, neither the divorce judgment nor the family court’s order requiring John to indemnify Sarah purported to treat John’s disability pay as community property. 

The Arizona courts found that the divorce judgment gave Sarah a right to fifty percent of John’s full retirement benefits.  The courts held that John violated his obligations under Arizona law by unilaterally decreasing the amount to which Sarah was entitled.  They further concluded that indemnification was an appropriate remedy, and that the USFSPA did not prohibit indemnification because the order did not divide John’s disability benefits, require that John rescind his waiver of retirement pay, or direct him to pay Sarah his disability benefits.

The fact pattern in which a divorced veteran waives some amount of retirement income and instead opts to receive disability pay—to the detriment of his or her spouse—arises frequently.  State supreme courts have split on the question as to whether an indemnification order like the order in Howell is pre-empted by the USFSPA.  Some state courts have upheld indemnification orders, asserting that the orders provide an ex-spouse what he or she would have received had the veteran spouse not gone on disability.  Other state courts have found indemnification orders to be an impermissible attempt at distributing the veteran’s disability benefits.  Wisconsin courts have not confronted this issue.  The Supreme Court’s upcoming decision—likely in May or June—will provide guidance concerning the scope of the USFSPA preemption in divorces throughout the country.


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In the midst of an acrimonious divorce, Paula Epstein surreptitiously placed an auto-forwarding “rule” on her husband’s email account that automatically—and unbeknownst to him—forwarded a copy of every email he received to her. Through this arrangement, Paula discovered emails between her husband (Barry) and several women. She then accused him of infidelity as part of the divorce action.  Due to the accusations, Barry’s attorney sent a document request to Paula for all communications related to Barry’s alleged adultery. When Paula’s attorney produced the intercepted emails in response, Barry realized that Paula had somehow gained access to his email account. Barry filed a federal law suit alleging that Paula and her attorney had violated the Wiretap Act, 18 U.S.C. § 2511. The litigation resulted in the Seventh Circuit’s recent decision, Epstein v. Epstein and Frank, No. 15-2076 (7th Cir. Dec. 14, 2016).

The Wiretap Act makes it unlawful to intentionally intercept any wire, oral, or electronic communication. The Act also prohibits the intentional disclosure or use of the contents of an unlawfully intercepted communication. Barry argued that Paula had violated the Act by intercepting the emails and that her attorney, Jay Frank, intended to use the unlawfully intercepted emails as part of the divorce litigation. Both Paula and Frank moved to dismiss the action, arguing that only intercepting an email contemporaneously with transmission violates the Act. (If the interception is not contemporaneous, the transmittal is governed by the Stored Communications Act.) The trial court agreed and dismissed the action.

The Seventh Circuit affirmed the ruling as to Frank but held that the claim should not have been dismissed as to Paula. The court found that Frank did not unlawfully disclose the communications because the disclosure resulted from Barry’s discovery requests in the divorce litigation. Essentially, Barry consented to the disclosure by making the request. Barry also could not identify any way Frank made actual use of the emails in the divorce litigation. As such, his mere possession or likely intent to use the intercepted emails did not violate Act.

With respect to Paula, by contrast, the court held that the claim should proceed so that the parties could determine whether the emails were intercepted contemporaneously.  Though there appeared to be gaps between when the emails were received by Barry and then intercepted by Paula, the appellate court held that more information was needed about the auto-forwarding rule to conclude that the interceptions could not possibly be contemporaneous. Barry’s claim against Paula was sent back to the trial court to resolve those outstanding questions.

Judge Posner wrote a separate, concurring opinion that questions whether the Wiretap Act should even apply. In Judge Posner’s view, federal law should not necessarily protect all types of privacy, including the concealment of criminal activity (adultery remains a criminal offense in Illinois where Barry resides). Thus, Judge Posner argues, the Wiretap Act should not apply to communications intercepted to obtain evidence of a crime, even for a crime that is almost never subject to prosecution.

Barry’s federal suit turned on the definition of contemporaneous and how specific email servers work, rather than the substance of the communications as emphasized by Judge Posner. In contrast, family court cases are often more focused on the substantive facts than specific interpretation of detailed statutory definitions. However, whether the interception of the emails or the bad acts of either party will have an effect on the outcome of the divorce has yet to be seen. As of the date of publication of the Seventh Circuit opinion, the divorce case has been pending for more than five years and remains unresolved.

Wisconsin Supreme Court: Blood Draw by EMT in County Jail for OWI Test

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Under Wisconsin law, blood can be drawn from a person arrested for operating a vehicle while intoxicated “OWI”) to determine the presence or quantity of alcohol in the person’s body. However, only a physician, registered nurse, medical technologist, physician assistant, phlebotomist, or other medical professional who is authorized to draw blood, or person acting under the direction of a physician may withdraw the blood. The Wisconsin Supreme Court, in Wisconsin v. Kozel, 2017 WI 3, ___ Wis. 2d ___, ___ N.W.2d ___, recently concluded that an EMT who drew an alleged drunk driver’s blood was a “person acting under the direction of a physician” under Wis. Stat. § 343.305(5)(b), and therefore fell within the category of individuals authorized to draw blood.  As a result, the Court concluded that the suspect’s blood was drawn in a constitutionally reasonable manner.

In August 2013, a Sauk County Deputy Sheriff arrested Patrick Kozel for allegedly driving while intoxicated. At the Sauk County jail, Kozel consented to have his blood drawn. An EMT employed by Baraboo District Ambulance Service conducted the blood draw. Testing by the Medical Toxicology Section of the Wisconsin State Laboratory of Hygiene showed a blood ethanol level of 0.196 g/100 mL, in excess of the legal limit of 0.08 g/100 mL. See Wis. Stat. § 340.01(46m). In October 2013, the Sauk County District Attorney’s office charged Kozel with one count of operating a motor vehicle while intoxicated, second offense, and one count of operating with a prohibited alcohol concentration, second offense.

Subsequently, Kozel filed a motion to suppress the results of his blood test. Kozel argued that: (1) his blood was not taken by a person statutorily authorized to do so, namely a “person acting under the direction of a physician,” Wis. Stat. § 343.305(5)(b); and (2) his blood was taken in a constitutionally unreasonable manner, see U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”). Kozel, 2017 WI 3, ¶ 10. The State introduced the following evidence during the motion hearing:

  • As of August of 2013, the EMT was both licensed and certified by the State of Wisconsin to “perform legal blood draws.”

  • The EMT had been performing legal blood draws since June of 2009 under the supervision of a physician licensed in the State of Wisconsin who is the “medical director” of the Ambulance Service.

  • As the medical director, the doctor “signs off on not only [EMT] licenses, which allow [the EMTs] to practice medicine, but also any of the additional training and/or procedures that require approval.”

Id. ¶ 14.

Based on these facts, the circuit court denied Kozel’s motion to suppress the blood draw result. Kozel appealed. The court of appeals reversed, remanding the case to the circuit court to suppress the evidence obtained from Kozel’s blood. The court of appeals concluded that “the evidence was insufficient to establish that the EMT [who drew Kozel’s blood] was operating under the direction of a physician.” Id. ¶ 28. Given that conclusion, the court of appeals found it unnecessary to analyze whether the blood draw was constitutionally reasonable. The State appealed.

The supreme court reversed. First, the court concluded that the State’s evidence demonstrated that the EMT was acting under the direction of a physician because the doctor was in charge of the blood-drawing activities conducted by the EMT. See id. ¶ 39. The court rejected Kozel’s argument that the statute requires a specific type or degree of direction. Second, the court held that the blood draw in this case was constitutionally reasonable. Under the Fourth Amendment, the taking of a blood sample is a search, and therefore it must be reasonable. The court found that the evidence demonstrated the EMT was thoroughly trained and experienced in properly drawing blood, it was not unreasonable for the blood draw to occur in the non-medical setting of the jail, and Kozel failed to demonstrate that he had objected to the particular circumstances of the blood draw. See id. ¶¶ 44-47.

Justice Ann Walsh Bradley, joined by Justice Shirley Abrahamson, dissented. They concluded that there was insufficient evidence to support a finding that the EMT who drew Kozel’s blood was a “person acting under the direction of a physician” as required by Wis. Stat. § 343.305(5)(b), and that Kozel’s blood draw was not constitutionally reasonable based upon the facts of record.  See id. ¶ 55 (Bradley, J., dissenting). The dissent also argued the fact that the EMT was authorized to act under a physician’s license was not evidence of acting under the physician’s direction for purposes of the statute. The dissent made a distinction between “directed” and “authorized,” and concluded that there was insufficient evidence to establish the EMT was working under the direction of a physician. See id. ¶ 72 (Bradley, J., dissenting). The dissent also concluded the record was silent as to the existence of written protocols detailing how to conduct a blood draw. This appears to be the critical distinction between Kozel’s case and existing precedent. Based on the record deficiencies, the dissent concluded that there was insufficient evidence to support the majority’s conclusion that the EMT was acting “under the direction of a physician” as required by the statute. See id. ¶ 87 (Bradley, J., dissenting).

The dissent also analyzed the constitutional reasonableness of the blood draw. The dissent concluded it was unreasonable because there was no evidence of any written protocols or procedures in the record. Specifically, the supervising physician did not train the EMT, never witnessed the EMT perform a blood draw, and never approved the EMT’s blood-draw techniques. See id. ¶ 98 (Bradley, J., dissenting). The record also failed to establish evidence of safety and accuracy as required by cases that concluded the blood draw was constitutionally reasonable.

This case presents interesting questions regarding the location and staffing of blood draws.  Further, this case affirmed the blood-draw procedures employed by many Wisconsin jails. This case also provides a framework for how lower courts will likely analyze the constitutional implications of future blood draws, should they be challenged under the Fourth Amendment. Contact your Stafford Rosenbaum LLP criminal defense or municipal law attorney should you have any further questions.

Top 10 Municipal Law Developments of 2016

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Stafford Rosenbaum’s Government Law and Government Relations teams continuously stay apprised of the latest developments in Wisconsin municipal law. Below, in no particular order, are the top 10 municipal law developments of 2016.

Public records; open meetings. Three important cases affecting Wisconsin Public Records and Open Meetings Law came down this year.

First, in New Richmond News v. City of New Richmond, 2016 WI App 43, 370 Wis. 2d 75, 881 N.W.2d 339, the Wisconsin Court of Appeals held that police departments are permitted to release unredacted copies of accident reports upon request. However, the Court remanded several issues relating to the release of incident reports upon request, questioning whether police departments should release unredacted incident reports containing driver’s information from the DMV. We posted about this decision in May.

Second, in Voces de la Frontera, Inc. v. Clarke, 2016 WI App 39, 369 Wis. 2d 103, 880 N.W.2d 417, review granted (June 15, 2016), the Wisconsin Court of Appeals held that, according to Wisconsin’s Public Records Law, the Milwaukee County Sheriff must produce unredacted immigration detainer forms received from U.S. Immigration and Customs Enforcement.

Finally, in State ex rel. Krueger v. Appleton Area Sch. Dist. Bd. of Educ., No. 2015AP231, 2016 WL 3510300 (Wis. Ct. App. June 28, 2016) (unpublished), review granted, (Oct. 11, 2016), the Wisconsin Court of Appeals held that a committee created by members of the Appleton School District curriculum department “on their own initiative” was not a “governmental body” subject to the open meetings law.

The Wisconsin Supreme Court has granted petitions for review in both Voces de la Frontera and Krueger. We previewed the Supreme Court’s consideration of the Krueger case here

Home rule; preemption. In Milwaukee Police Association v. City of Milwaukee, 2016 WI 47, ___ Wis. 2d ___, ___ N.W.2d ___, the Wisconsin Supreme Court held that Wis. Stat. § 66.0502, which essentially prohibits local governments from enacting residency requirements, precluded the City of Milwaukee from enforcing its residency requirement. We posted about this case when it was decided in June.

Alcohol licensing; social host ordinances. In County of Fond du Lac v. Muche, 2016 WI App 84, ___ Wis. 2d ___, ___ N.W.2d ___, the Wisconsin Court of Appeals invalidated Fond du Lac County’s social host ordinance because it did not strictly conform with Wis. Stat. § 125.07(1) regulating underage drinking. The Court stated that Wis. Stat. § 125.07 does not penalize social hosts for conduct in private residences because “premises” is a defined term that only includes places under permit or license to supply alcohol, not private residences. The Court concluded that the social host ordinance that penalizes underage drinking at private residences prohibits conduct allowed under the state statute and thus does not “strictly comply” with state law. For more on this case, see our post from November.

Zoning ordinances. Generally, 2015 Wisconsin Act 391 created and amended legislation regarding shoreland zoning. It has several provisions that will significantly affect property owners and development. One interesting provision that applies to all Wisconsin land, near water or not, created Wis. Stat. § 895.463. That new statutory provision states that, in any dispute, “the court shall resolve an ambiguity in the meaning of a word or phrase in a zoning ordinance or shoreland zoning ordinance in favor of the free use of private property.” As detailed in this post from July it is not clear how, if at all, this will affect zoning disputes.

Voter apportionment; redistricting. In Evenwel v. Abbott, 578 U.S. ___ (2016), the United States Supreme Court held that states and local governments may apportion legislative districts based on total population under the one‑person, one‑vote rule. The challengers in this case had argued that Texas should not have considered total population but instead should have looked at the population of eligible voters in each district. The Supreme Court held that such an approach would be permissible, but is not required, as states draw congressional districts and seek to make those districts have populations that are close to equal. We explained the import of this decision in April.

In Whitford v. Gill, No. 15-CV-421-BBC, 2016 WL 6837229 (W.D. Wis. Nov. 21, 2016), a panel of three federal judges held that Wisconsin’s 2012 redistricting involved an unconstitutional partisan gerrymander. Of particular import, the decision accepted a new measure, known as the efficiency gap, of how much partisan effect the placement of district lines has. In 2017, the three-judge panel will consider possible remedies for the improper districts, and then the case will almost certainly be appealed to the U.S. Supreme Court. When, as a result of the Whitford decision or as a matter of course after the 2020 census, Wisconsin next draws district lines, both the Whitford decision and the Evenwel decision will be at the forefront of legislators’ minds.

Takings. On January 15, 2016, the U.S. Supreme Court granted certiorari review of the Wisconsin Court of Appeals decision, Murr v. Wisconsin, 2015 WI App 13, 359 Wis. 2d 675, 859 N.W.2d 628 (unpublished) (per curiam), cert. granted, 136 S. Ct. 890 (2016). In Murr, the Wisconsin Court of Appeals held that an ordinance effectively merging the Murrs’ two adjacent, riparian lots for development purposes, did not deprive the Murrs of all or substantially all practical use of their property and was not an uncompensated taking of property. The Supreme Court’s decision in this case has the potential to substantially alter takings jurisprudence; however, the Court has not scheduled oral argument in this case, which has been fully briefed since July. For a more in-depth discussion on this case, see our discussion of an amicus brief we filed on behalf of municipal government interests in June here.

Eminent domain; compensation. In Hoffer Properties, LLC v. State, Department of Transportation, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, the Wisconsin Supreme Court held that Wis. Stat. § 84.25(3) authorizes the DOT to change a property owner’s access to state highways in whatever way it deems “necessary or desirable.” Such changes, including elimination of direct access points, are duly authorized exercises of the police power and are not compensable under Wis. Stat. § 32.09, (the just compensation statute), as long as alternate access is provided. Further, the Court held that as long as alternate access is given or exists, a property owner is precluded as a matter of law from challenging the reasonableness of the access and receiving compensation under § 32.09.

Annexation. In Town of Burnside v. City of Independence, 2016 WI App 94, ___ Wis. 2d ___, ___ N.W.2d ___, the Wisconsin Court of Appeals upheld the dismissal of an intervening town’s challenge to a city’s annexation ordinance where the town intervened in an action started by two other towns outside the applicable statute of limitations.

Preemption. On January 11, 2016, the Wisconsin Supreme Court accepted Wisconsin Carry’s petition for review in Wisconsin Carry, Inc. v. City of Madison, 2015 WI App 74, 365 Wis. 2d 71, 870 N.W.2d 675, review granted, 2016 WI 16, 367 Wis. 2d 125, 876 N.W.2d 511. In Wisconsin Carry, Inc., the Court distinguished between agency rules and ordinances or resolutions in applying the preemption provision in Wis. Stat. § 66.0409 when it upheld a City of Madison Transit and Parking Commission rule prohibiting riders on city buses from carrying weapons. The decision in this case could have a significant impact on the ability of municipal agencies to regulate firearms. The Court held oral arguments in September; thus, we expect the Court to issue a decision in the first half of 2017. For more on this case, see this post from March.

Dane County Zoning. 2015 Wisconsin Act 178 (which, despite its name, was enacted on February 29, 2016) establishes a process for certain towns to withdraw from county zoning. This Act applies only to towns in counties with a population of at least 485,000, and therefore, effectively applies only to towns located in Dane County, as there are no towns within Milwaukee County.

Seventh Circuit Continues to Limit Federal Jurisdiction Over Class-Actions, Despite CAFA Statute

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In 2005, Congress passed the Class Action Fairness Act (“CAFA”) “to facilitate adjudication of certain class actions in federal court.” Dart Cherokee Basin Operating Co., LLC v. Owens, 135 S. Ct. 547, 554 (2014). CAFA relaxed the strictures of diversity jurisdiction to allow more plaintiffs to file class actions in federal court, and it provided separate removal authority that made it easier for class-action defendants to insist upon a federal forum. But, as the Seventh Circuit’s recent decision in Tri-State Water Treatment, Inc. v. Bauer, No. 16-3938 (7th Cir. Jan. 5, 2017), illustrates, courts have not interpreted CAFA to be as much of a break with general jurisdictional rules as Congress envisioned.

Federal jurisdiction, class actions, and CAFA

Federal courts have limited jurisdiction. They adjudicate cases that involve questions of federal law (federal question jurisdiction) or arise between citizens of different states (diversity jurisdiction). As a general matter, federal diversity jurisdiction reaches any case in which no plaintiff is a citizen of the same state as any defendant and there is at least $75,000 at stake. 28 U.S.C. § 1332. When a plaintiff chooses state court as the forum to litigate a suit that meets the criteria for federal diversity jurisdiction, the defendant(s) can remove—that is, transfer—the case to federal court. 28 U.S.C. § 1441.

Class actions are a particular kind of lawsuit that seek to aggregate the claims of large groups of plaintiffs for resolution in a single proceeding. In some circumstances, class actions are essential, because each plaintiff’s individual harm is real, yet too slight to justify litigation on its own. Consider, for example, a scenario where several companies that produce a popular consumer product allegedly conspired to fix prices at an inflated level. If every consumer who bought the product in the past few years overpaid by $2 per unit purchased, even those consumers who used the product most heavily suffered losses of only a few hundred dollars—nowhere near enough to offset the costs of litigating a large antitrust action. But if millions of consumers bought the product, their total losses could be enough to make litigation, on a class-wide basis, feasible.

The class-action mechanism is ripe for abuse, however, because the threat of a massive judgment—even a small judgment per plaintiff adds up when awarded to a class with hundreds of thousands of members—can threaten a defendant’s viability. Plaintiffs and their lawyers can use that threat as leverage to extract settlements that shield defendants from the risk of outsized judgments and highly compensate the plaintiffs’ lawyers, while providing nominal (or even no) benefits to most members of the plaintiff class.

Such leverage is particularly effective—and therefore the potential for abuse is especially acute—in some state courts, where the procedural rules are more favorable to class-action plaintiffs than they are in federal court. CAFA sought to ameliorate this concern by bringing more class actions into federal court, rather than state court. It allowed plaintiffs to file in federal court, even if some members of the plaintiff class hailed from the same states as one or more defendants, so long as the plaintiff class included at least 100 people and there was at least $5 million at stake. 28 U.S.C. § 1332(d)(2).

CAFA also made it easier for class-action defendants to remove litigation to federal court. It created specific authorization for the removal of class actions from state court to federal court. 28 U.S.C. § 1453(b). It also excepted class-actions from several restrictions that generally apply to removal, including that removal must be sought within one year of the suit’s beginning, that removal is prohibited if a defendant is a citizen of the state in which the suit was brought, and that all defendants must unanimously seek removal. Id. And CAFA authorized an immediate appeal to settle disputes over the proper forum, see id. § 1453(c), whereas issues of removal and remand typically cannot be appealed until after final judgment.

Courts have not acted upon the full breadth of CAFA’s removal provisions. As I argued in an amicus brief to the U.S. Supreme Court, the plain text of CAFA authorizes removal by a defendant in any class action, without regard to whether there are at least 100 plaintiffs and $5 million at stake. Notwithstanding the text of CAFA’s removal provision, which does not reference the requirements to file a class action in federal court, courts have routinely held that removal is available to class-action defendants only if the suit involves at least 100 plaintiffs and $5 million. See, e.g., Appert v. Morgan Stanley Dean Witter, Inc., 673 F.3d 609, 617 (7th Cir. 2012); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675, 679 (7th Cir. 2006).

The Seventh Circuit’s decision in Bauer rejects an attempted removal of a class action on different grounds. The Bauer holding is not directly contrary to CAFA’s text, but it exposes a fascinating tension between CAFA’s purpose and its integration into the larger federal jurisdictional scheme.

Bauer holds that not all class-action suits can be removed from state court

Bauer began as a collection action in small claims court in Illinois. Tri-State Water Treatment, Inc. installed a water treatment system at the home of Stacey and Michael Bauer. When the Bauers did not pay Tri-State’s bill, Tri-State filed suit. In response, the Bauers filed a counterclaim, alleging—on behalf of a putative class of buyers across several states—that Tri-State used fraudulent sales tactics. Several months later, the Bauers amended their counterclaim to add two additional counterclaim defendants, including Home Depot U.S.A., Inc. The Bauers allege the counterclaim defendants offered free in-home water tests and used the results to mislead consumers into purchasing unneeded water treatment systems.

Home Depot responded by invoking CAFA’s removal provision to transfer the suit from state to federal court. At the Bauers’ request, the federal court sent the case back to state court. The remand order reasoned that CAFA did not authorize Home Depot to remove the case. Home Depot then invoked CAFA’s provision allowing petitions for interlocutory appeal and asked the Seventh Circuit to decide where the case should proceed. The Seventh Circuit agreed to hear the appeal and affirmed the district court’s conclusion that Home Depot cannot remove this case from state court.

The Seventh Circuit’s decision turned on its conclusion that CAFA “does not support treating an original counterclaim-defendant different from a new one.” Bauer, slip op. at 2. This proposition grows out of an earlier decision, First Bank v. DJL Properties, LLC, 598 F.3d 915 (7th Cir. 2010). These decisions, individually and together, undermine CAFA’s purpose and its efficacy.

First Bank held that a plaintiff who chose to litigate in state court could not then seek removal to federal court solely because the original defendant filed a class-action counterclaim. Id. at 916-17. There is an intuitive logic to this. It is not obvious the original plaintiff should get to reconsider its strategic decision to litigate in state court just because the defendant raises a class-action counterclaim. There is a legal logic to it as well. The Seventh Circuit explained that CAFA authorizes removal by a “defendant,” which term has been long understood in other removal statutes to exclude a litigant who files an action as a plaintiff in state court and then, after the original defendant files a counterclaim, “wears two hats, one as plaintiff and one as defendant.” Id. at 916 (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100 (1941)).

However, the First Bank court gave short shrift to counterarguments. While the court placed significant import on the original plaintiff’s choice of forum, it did not consider that often, including in the underlying claims giving rise to the First Bank case, the plaintiff has no choice between filing in state or federal court because there is not enough money at stake to trigger federal diversity jurisdiction. And, though the Seventh Circuit asserted that CAFA “did not say anything similar to: ‘Courts may allow removal whenever the case involves a large, multi-state class action,’” id. at 918, that is essentially the correct reading of CAFA and accords with Congress’s goals in passing the statute.

Bauer compounds these errors. It acknowledges that a party, like Home Depot, added to litigation for the first time as an additional class-action counterclaim defendant “is not one who voluntarily chose state court.” Slip op. at 8. It nonetheless falls back on the notion that such a party falls outside the meaning of “defendant” as developed in longstanding removal case law and summarized in First Bank. The Bauer decision considers three options—(1) allowing removal of the entire case, (2) splitting the class-action counterclaim so that the new defendant can remove and the original plaintiff cannot, and (3) denying any right of removal—before concluding that “the one that does the least damage to both the jurisdictional statutes providing for removal and litigation efficiency is the third.” Id. at 9. But in weighing these options, the decision pays insufficient attention to CAFA itself, and how CAFA differs from other jurisdictional statute providing for removal.

Bauer most clearly reveals its shortcomings when it addresses CAFA most directly. In the court’s words:

CAFA only selectively increased federal jurisdiction over multi-state class actions. It did not roll out the welcome mat for all multi-state class actions. Instead, it established restrictions on what class actions the federal courts could and could not entertain. These restrictions include amount-in-controversy and numerosity requirements…

Id. at 12 (emphasis in original). This oversimplifies CAFA—and sells the statute short. CAFA expressly did invite removal of all multi-state class actions. There is no basis in CAFA for applying the referenced restrictions to class actions removed from state court. Bauer is perhaps the most jarring of several decisions in which the Seventh Circuit has imposed constraints on the expanded federal jurisdiction Congress passed CAFA to provide.

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