Court of Appeals counts small-claims time limit tightly, though statutes suggest looser approach

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How do small-claims parties count time? It seems like a small question that should have a simple answer, but in practice it has proven a vexing one. In Team Property Management, LLC v. Reiss, No. 2016AP2163 (Wis. Ct. App. May 24, 2017) (unpublished), the Wisconsin Court of Appeals determined that the ten-day window after a commissioner issues an oral ruling in a small-claims action for a party to request a trial rather than have the ruling mature into a judgment does not exclude weekends and holidays. While this opinion accords with another recent appellate decision, it appears to be at odds with the plain text of the Wisconsin Statutes and other related authority.

Team Property began as a small-claims action in which a circuit court commissioner ruled that Reiss owed $6,879.50 to Team Property Management. Fourteen calendar days later, Reiss requested a circuit court trial. The circuit court granted that request, and after a trial, determined that Reiss owed a smaller amount of $5,250.50. Team Property Management appealed, arguing that Reiss’s request for a trial was untimely and therefore that the judgment should reflect the initial, higher award determined by the commissioner.

Small-claims procedures are set out in chapter 799 of the Wisconsin Statutes. Section 799.207(2) gives a party ten days from the date of a commissioner’s oral decision (or fifteen days from the date of a written decision) to request a trial. But the statute does not specify how to calculate the passage of time. The question in Team Property was thus whether the ten-day window excluded weekends and holidays, as is the default civil procedure rule, or whether small-claims proceedings have a different counting mechanism.

Under Wis. Stat. § 801.15(1)(b),  “[w]hen the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation.”  This general counting rule appears to be incorporated into small-claims procedure by Wis. Stat. § 799.04(1), which explicitly allows the general provisions of Wisconsin civil procedure to fill the gaps where Chapter 799 is silent: “except as otherwise provided in this chapter, the general rules of practice and procedure in chapters 750 to 758 and 801 to 847 shall apply to actions and proceedings under this chapter.”

The interaction between sections 799.04(1) and 801.15(1) notwithstanding, the Team Property court concluded that weekend days should have been counted in calculating Reiss’s deadline for requesting a trial. Team Property, ¶3. On this basis, the court held that Reiss’s trial request, filed on the tenth business day—but the fourteenth calendar day—after the commissioner’s oral ruling was not timely and should not have been honored. Id. In reaching this determination, the Court of Appeals relied on Hoeller v. Kula, 2015 WI App 68 (unpublished). In that case, which also concerned a request for a trial after a small-claims ruling, the court declared—without any consideration of section 799.04(1)—that section 801.15(1)(b)’s exclusion of weekends and holidays “does not apply to calculations of time under § 799.207(2).” Hoeller, ¶7.

The Team Property decision does acknowledge that the small-claims chapter incorporates chapters 801-847 unless a “different procedure is prescribed by statute or rule,” but it sidesteps that incorporation by observing that chapter 799 “is the exclusive procedure to be used in actions where the amount claimed is $10,000 or less.” ¶3. Based on that exclusivity, the court held that section 801(1)(b) does not apply to chapter 799: “Wisconsin Stat. § 799.207(2)(b) prescribes the procedure to be exclusively applied in this case.” Id.

This conclusion fails to recognize that the statutes it considers do not conflict. Chapter 799 specifies the time period in which a party may request a trial, but it is silent regarding how the end of that period should be calculated. By contrast, section 801.15 directs how periods of time are to be calculated but says nothing about what those periods of time are. Thus, with respect to calculating the end of a given time period, no “different procedure prescribed by statute or rule” is “otherwise provided” in chapter 799.

Further, additional persuasive authority suggests that both Team Property and Hoeller reached the wrong conclusion. The Wisconsin Judicial Benchbook—published by Wisconsin Supreme Court’s Office of Judicial Education—advises judges that the time to demand a trial after an oral ruling in a small-claims action runs “10 days from date of oral decision, (Saturdays, Sundays, and holidays excluded in the computation).” Wis. Office of Judicial Educ., Wisconsin Judicial Benchbook, Vol. II § 41.33 (5th ed. 2016). The Benchbook cites both section 799.207 and section 801.15(1)(b). Additionally, a federal court has concluded that the counting methodology of section 801.15(1)(b) applies to time periods established in chapter 799. See DKCLM, Ltd. v. Eagle Movers, Inc., No. 11-C-933, 2014 WL 4954460, at *5 (E.D. Wis. Sept. 30, 2014).

On a more practical note, courts are closed on weekends and city holidays. With the Court of Appeals’ recent ruling, an order issued on, say, November 22 of this year (the Wednesday before Thanksgiving) would have until December 2 to request de novo review. However, the court is closed November 23 (Thanksgiving), November 24 (“Thanksgiving Holiday”), November 25 (Saturday), November 26 (Sunday), and December 2 (Saturday). So, to be absolutely safe, the party would have only until December 1 to request a jury trial. That equates to five actual working days—only half the time afforded by statute.

While the statutory basis for the rulings in Hoeller and Team Property is questionable, practitioners and litigants should take note. Until a Wisconsin appellate court says otherwise, the short clock on requests for a trial after a small-claims ruling will continue to tick on weekends and holidays.

Law clerk Charles Ureña assisted in researching and writing this post.

New Standard for Designating Attorney Who Drafts Will To Serve as Estate’s Personal Representative

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The Wisconsin Court of Appeals recently limited the circumstances under which an attorney might serve as personal representative of an estate. In In Re the Estate of Ann H. McMaster Dewey, No. 2016AP865, 2017 WL 1497548 (Wis. Ct. App. Apr. 26, 2017), a decedent nominated her estate planning attorney, Robert Wilmot, as her successor personal representative. Upon the decedent’s death, her first-choice personal representative declined to serve in that role. Wilmot filed an application for informal administration and sought to be appointed as personal representative.

The decedent’s children objected, arguing that Wilmot was an unsuitable personal representative and therefore that his nomination should be disallowed under Wis. Stat. § 856.23(1)(e)’s catchall provision, “for good cause shown.” The trial court found Wilmot unsuitable and appointed the decedent’s daughter to serve as personal representative. Wilmot appealed.

In affirming the trial court’s determination that Wilmot was unsuitable, the Court focused on the lack of personal relationship between Wilmot and the decedent. The Court noted that before their initial estate planning consultation, Wilmot did not have knowledge of the decedent’s finances or her children.

Interestingly, the Court of Appeals also wrote that the Will was “silent” as to the decedent’s intent as to her choice of personal representative. The Court characterized the section of the Will naming Wilmot as personal representative as a mere recitation. The Court’s analysis is likely premised upon existing cases in which a testator included specific language confirming the intent to name the drafting attorney as personal representative. But, the Court’s language raises an interesting question: How can a Will that expressly nominates a personal representative—indeed, a first choice and a successor—be said to be silent as to the decedent’s intention in nominating a personal representative? Must the Will include a rationale for any term that the testator wants enforced? Is a Will that does not explain the decedent’s intent in distributing the assets “silent” as to the dispositive provisions? What more does a decedent need to do to ensure that his or her intent will be executed as expressed on any issue in a Will, other than execute the Will as required by Wisconsin law?

The Court ultimately concluded that Wilmot’s nomination as successor personal representative might have been valid if the Will had contained language specifically stating that the nomination was intentional and did not result from Wilmot’s solicitation and there was evidence of a more significant relationship between Wilmot and the decedent prior to Wilmot’s drafting of the Will. The Court’s decision neither found nor implied any wrongdoing on Wilmot’s part, but it essentially held that he, as the testator’s lawyer, bore the burden of preventing even the appearance that he solicited further work for himself. According to the Court, he could have prevented that appearance by having the testator put in her Will that there was no solicitation.

The practical effect of this decision is unclear. While the Court seeks to prevent solicitation on the part of nefarious drafting attorneys, this ruling may not achieve that result. After all, the ruling basically requires an additional legal disclaimer to make effective a Will provision that is not all that uncommon. And many clients express their testamentary wishes to their lawyers but then trust that the legal documents properly reflect those wishes. A client who executes a Will without reading or agreeing to the nominated personal representative is not likely to raise concerns about additional legalese in the Will confirming that choice.

Following this case, it appears that a drafting attorney’s nomination to serve as personal representative will survive a challenge only where the attorney and decedent had more than the typical attorney-client relationship and the Will itself contains a clear expression that the attorney did not solicit the nomination.

Wisconsin Court of Appeals Rejects Novel Argument Against Enforcing Personal Guarantee

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In Bank Mutual v. Sherman, No. 2015AP2357 (Ct. App. May 17, 2017) (per curiam), the Wisconsin Court of Appeals held that an ex-husband continued to be liable for a commercial debt he guaranteed years earlier, for his then-wife. The court was not persuaded by the ex-husband’s novel argument that after the couple’s divorce and her subsequent remarriage, his ex-wife became a new legal entity thereby relieving him of his liability as a personal guarantor.

In 2005, Daniel Bohringer personally guaranteed credit that Bank Mutual extended to his then-wife, Carol. Id., ¶2. The guarantee was broad, reaching “credit previously granted, credit contemporaneously granted, and credit granted in the future.” Id. Carol and Daniel divorced roughly five years later. Id., ¶3. Their property division awarded Daniel the couple’s business, Sammy’s Taste of Chicago, and awarded Carol the commercial building that housed the business. Id. Daniel also received the couple’s farm in Lancaster, Wisconsin. Id.

After the divorce, Carol incurred further debt obligations with Bank Mutual. Daniel did not receive notice of the notes Carol entered into, nor did he give consent. Id., ¶4. When Carol later defaulted on the note, Bank Mutual foreclosed on and sold the commercial property. Id. When sale of the building resulted in a deficiency of more than $50,000, the bank executed on Daniel’s farm in Lancaster to collect. Id.

Daniel moved to stay execution on his farm. He argued that his farm was exempt as his homestead under Wis. Stat. § 815.20(1). Id., ¶5. He also argued that he was not liable as a guarantor. The circuit court ruled in the bank’s favor on both grounds. Id.

On appeal, Daniel argued that the guarantee is unenforceable because his wife became a “different legal entity” once they divorced and she remarried. Id., ¶7. Daniel cited no authority for this novel theory. Id., ¶8. The court of appeals rejected this argument in one fell swoop, holding that the contract’s language keeps Daniel on the hook for the debt regardless of the divorce and remarriage. Id., ¶9. Additionally, the court noted that Daniel had expressly waived notice of future loans subject to the guaranty, such that extending the guaranty to Carol’s post-divorce loans did not violate either her or the bank’s duty of good faith and fair dealing. Id., ¶11.

After determining that the guaranty remains enforceable, the court of appeals affirmed the circuit court’s holding that Daniel’s farm was not exempt from execution. Id., ¶13. The court found record support for the circuit court’s conclusion that the farm was not Daniel’s homestead as defined in Wis. Stat. § 990.01(14). The circuit court relied on factors including that:

  •  Daniel neither receives mail nor has any utility services at the farm;
  •  Daniel keeps his clothes in an Oconomowoc apartment;
  •  Daniel notified both the Department of Motor Vehicles and the local election board that his apartment in Oconomowoc was his residence;
  •  Daniel’s tax filings identify the Oconomowoc apartment as his residence; and
  •  Daniel receives the property tax bill for the farm at his Oconomowoc address.

Based on these findings, the court held that the circuit court did not err in “restat[ing] its previous finding that Bohringer’s Oconomowoc apartment is where he makes his home because he has equipped the apartment as his home, with all of the comforts and conveniences, and he treats the apartment like his home.” Id., ¶16.

Bank Mutual v. Sherman reaffirms that courts enforce clear contract language. That clear language led the court to dismiss Daniel’s argument that his divorce and his ex-wife’s subsequent remarriage vitiated his obligations as a guarantor. This decision highlights that personal guaranty agreements are written broadly, and leave little room, if any, to discharge the obligations therein. Business lawyers should be aware that courts will enforce the broad language sometimes contained in personal guarantees. Family lawyers may want to consider the existence of any personal guarantees relating to property being apportioned in a divorce proceeding.

Law clerk Olivia Pietrantoni assisted in researching and writing this post.

Wisconsin Court of Appeals Clarifies when a Plaintiff’s Claim Accrues for Limitations Purposes

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To bring a lawsuit, a plaintiff must file suit in a timely manner. Different kinds of claims face different time limits—limitation periods, in legalese. These limitation periods generally measure time from when the plaintiff’s cause of action first accrues. But that in itself is not very helpful. The Wisconsin Court of Appeals in Bleecker v. Cahill, No. 2016AP1231 (Wis. Ct. App. March 15, 2017), clarified when an action “accrues” and thereby starts the limitation clock ticking.

Facts and procedural history

Lee Bleecker sued his attorney, Terence Cahill, for legal malpractice in connection with a lease agreement Cahill reviewed and Bleecker then signed in 2003. Under Wis. Stat. § 893.53, legal malpractice claims must be filed within six years. The issue before the Court of Appeals was whether Bleecker’s malpractice claim was timely filed, which in turn depended on when the claim accrued. If Bleecker’s claim accrued when the lease was signed, his claim was barred as untimely; alternatively, if it did not accrue until Bleecker learned that the lease did not accomplish what he anticipated, his claim could proceed.

In 2003, Bleecker agreed to lease property to Aurora Medical Group, Inc. and authorized Aurora to build a clinic on the land. Id., ¶2. The lease ran for ten years and gave Aurora the option to extend for three subsequent five-year periods. The parties agreed that Bleecker would finance the construction costs, which Aurora would reimburse in monthly payments to Bleecker for the first fifteen years of the lease or until an “earlier date on which the Lease terminates.” Id., ¶3. After Cahill reviewed the lease, Bleecker signed it without reading the document. Id.

According to Bleecker, Cahill advised him that the lease ensured he would recover from Aurora all of the money he laid out for construction. Id., ¶2. According to Cahill, he informed Bleecker that Aurora’s payments could stop if the lease terminated after the initial ten-year term. Id., ¶2. Aurora chose not to extend the lease after the initial ten-year period expired, and, once the lease ended, it stopped making monthly construction payments to Bleecker. Id., ¶4.

In June 2014, Bleecker sued Cahill for legal malpractice. Id. The circuit court held Bleecker’s suit untimely. In the court’s view, Bleecker’s legal malpractice claim accrued when he signed the lease, with the result that the time for his suit expired in 2009. Id., ¶5. On appeal, Bleecker argued that his claim did not accrue until 2013, when Aurora terminated the lease and its obligation to make construction payments ended. Id. Under Wisconsin law, a claim accrues when it is “capable of present enforcement,” which occurs when “the plaintiff has suffered actual damage.” Id., ¶8 (quoting Hennekens v. Hoerl, 160 Wis. 2d 144, 152, 465 N.W.2d 812 (1991)). The Court of Appeals thus had to determine when Bleecker suffered actual damage.

Prior case law

The appellate court looked primarily to Meracle v. Children’s Service Society of Wisconsin, 143 Wis. 2d 476, 421 N.W.2d 856 (Ct. App. 1988), aff’d, 149 Wis. 2d 19, 437 N.W.2d 532 (1989). In that case, the Meracles engaged an adoption agency to adopt “a normal, healthy child.” Id. at 478. Before the adoption was finalized, the agency disclosed that the child’s biological paternal grandmother had died from Huntington’s disease. Id. The agency also told the potential adoptive parents that the child’s biological father had tested negative for the inherited disorder. Id. A few months after the adoption, the adoptive parents learned that there was no test at that time to determine if someone has the genetic mutation that causes Huntington’s disease and therefore that the agency’s representation about their child’s biological father testing negative could not be truthful. Id. at 479. Almost four years after the adoption, the child developed Huntington’s. Id.

The question the Meracle case presented to the court of appeals was when the parents’ claim accrued—at the time the parents learned there was no genetic test and therefore that their child was at risk for the disease, or years later when the child actually developed the disease. Id. at 482. The court determined the parent’s claim did not accrue until the child developed the disease. Id. The court explained that the parent’s injury was not the diagnosis itself, but rather the medical expenses and other damages the disease imposed on their family. Id. at 482-83. The parents could not have sued to recover these damages prior to the diagnosis, because their fear that the child might develop the disease would not have been a sufficient basis to justify redress of these damages. Id.

The court of appeals also looked to General Accident Insurance Company v. Schoendorf & Sorgi, 195 Wis. 2d 784, 537 N.W.2d 33 (Ct. App. 1995), aff’d, 202 Wis. 2d 98, 549 N.W.2d 429 (1996). In that case, which also involved the limitation period for legal malpractice, the court of appeals held that a claim had not accrued when “the damage was inchoate.” Schoendorf, 195 Wis. 2d at 798 n.9. The Supreme Court affirmed, reiterating a prior ruling that “actual damage is not the mere possibility of future harm.” Schoendorf, 202 Wis. 2d at 112 (internal quotation marks and citation omitted).

The Bleecker decision

Applying these precedents, the Bleecker court held that Cahill’s allegedly defective legal advice about the lease did not, on its own, inflict actual damage. Bleecker, ¶14. Rather, Bleecker first suffered actual damage when Aurora notified him that it was terminating the lease and therefore had no obligation to make further repayment for construction costs. Id., ¶15. Only when Bleecker received that notification did it become “reasonably certain” that financial loss would “occur in the future.” Id. Bleecker had no presently enforceable claim in 2003 when he signed the lease, because had Aurora exercised its option to extend the lease, Bleecker would not have suffered harm. Id., ¶17. Because Bleecker was first harmed in 2013, that is when his claim accrued, and it was timely filed in 2014, well within the applicable six-year limitation period. Id.

The court’s decision in Bleecker clarifies that, for purposes of a statute of limitation, a claim does not accrue when it is merely a possibility, or even a likelihood; a claim accrues when the plaintiff suffers actual damage. Actual damage for Bleecker occurred when Aurora acted to Bleecker’s detriment. The court’s decision should assists plaintiffs in determining when they will run out of time to assert their claims.

One final note: Generally, in tort actions (including legal malpractice), there is an exception to applicable limitation periods—the discovery rule—which provides that a claim does not accrue until the earlier of the date on which the plaintiff’s injury is discovered or with reasonable diligence should have been discovered. See, e.g., Hansen v. A.H. Robins, Inc., 113 Wis. 2d 550, 560, 335 N.W.2d 578 (1983). The circuit court in Bleecker did not apply the discovery rule because it determined Bleecker had not acted with reasonable diligence when he signed the lease without reading it. Bleecker, n.2. The court of appeals did not reach this issue, concluding that Bleecker’s claim was timely without resort to the discovery rule. Id. By loosening the strictures of accrual, Bleecker may lessen reliance on the discovery rule.

Law clerk Olivia Pietrantoni assisted in researching and writing this post.

In Which the Wisconsin Court of Appeals Fails to Distinguish Between a Dog and a Horse

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In July 2011, Jerome Drexler died riding his motorcycle. He crashed into a horse on Highway 97 in Marathon County. The horse (whose post-crash condition the court of appeals does not report), along with three others also running loose that day, belonged to Edward Schwartz. Under an oral agreement, Schwartz and his horses were residing on property owned by James Weiland. To pay off a debt he owed to Weiland, Schwartz was installing a new roof on Weiland’s house. As part of the deal, Schwartz got to live in the house and pasture his horses on Weiland’s land while he did the work. 

Drexler’s widow filed suit against Weiland, alleging common law negligence. (Schwartz apparently could not be located and was not part of the suit.) The circuit court held that Weiland bore no liability because he was not the horse’s keeper. The court of appeals recently affirmed, rejecting Mrs. Drexler’s argument that Weiland could be legally responsible for not repairing the fence around his property, from which the horses escaped. Drexler v. McMillan Warner Mut. Ins. Co., No. 2015AP2047 (Wis. Ct. App. Feb. 22, 2017).

The case is fascinating because the courts ruled primarily as a matter of public policy, extending case law developed around liability for injuries caused by dogs, which are household pets, to this incident involving a horse.

Both the courts and Weiland relied primarily on Smaxwell v. Bayard, in which the Wisconsin Supreme Court determined that landowners and landlords cannot be held liable for injuries caused by dogs on their premises unless they own the dogs. 2004 WI 101, ¶2, 274 Wis. 2d 278, 682 N.W.2d 923. The Smaxwell decision was motivated by several distinct public policy concerns:

  • “[A] landlord should not become the insurer for the acts of his tenant simply by virtue of owning the premises.” Id., ¶46 (citing Gonzales v. Wilkinson, 68 Wis. 2d 154, 158, 227 N.W.2d 907 (1975))

  • “[A]llowing recovery against landowners or landlords who are neither the owners nor keepers of dogs—that is, landowners or landlords who do not have control over or custody of dogs—causing injury to someone on or around their property would simply have no sensible or just stopping point.” Id., ¶47

  • “[E]xposing landowners to such liability would essentially force them to fence in their property.” Id., ¶48

  • “Charging [] landlords with constructive knowledge of the propensities and behavioral history of each tenant’s dog and exposing them to liability would have drastic results.” Id., ¶52

  • Under “Wis. Stat. § 174.02, which imposes strict liability for injuries caused by a dog[,] … liability is limited to owners.” Id., ¶51 (emphasis added)

These concerns address situations involving dogs kept in residential areas. It is far from obvious that they translate with full force to the keeping of other animals in rural areas. Nor is it clear that any of them maps onto the specific facts of the Drexler case in any sensible way.

Moreover, Smaxwell also set forth clear principles governing landlord liability. Reiterating a prior decision, the Court made clear that Wisconsin law has “abolish[ed] the general cloak of immunity enjoyed by landlords” at common law. Smaxwell, 2004 WI 101, ¶17. Thus, “‘a landlord is under a duty to exercise ordinary care in the maintenance of the premises.’” Id., ¶19 (quoting Pagelsdorf v. Safeco Ins. Co. of Am., 91 Wis. 2d 734, 741, 284 N.W.2d 55 (1979)). Moreover, the Court explained, the Pagelsdorf decision “specifically concerned a landlord’s duty to maintain the physical premises and keep it free from defects.” Id., ¶36 (citing Pagelsdorf).

Mrs. Drexler’s argument—that Weiland was negligent in allowing an existing fence on his property to fall into disrepair, thereby leading to the escape of his tenant’s horses—seems to fall squarely within the duty Pagelsdorf imposes upon landlords. Unlike the concern in Smaxwell that imposing liability would force all landowners to erect fences, here, Weiland already had a fence. The alleged negligence was failing to maintain the fence he chose to have, not in failing to have a fence at all.

Nonetheless, the court of appeals held Mrs. Drexler’s negligence claim failed as a matter of law. Disputed factual questions—about the condition of the fence and about whether Schwartz had agreed to maintain the fence while he occupied the property—were not material and did not require a jury trial. Drexler, slip op. at n.3. Instead, the court of appeals explained “‘Smaxwell explicitly forecloses landlord liability on a broad basis … unless the landlord … qualif[ies] as an owner or keeper of the dog.’” Id. ¶8 (citing Ladewig ex rel. Grischke v. Tremmel, 2011 WI App 111, ¶25, 336 Wis. 2d 216, 802 N.W.2d 511).

Mrs. Drexler did not argue that Smaxwell’s reasoning is limited to cases involving dogs. Id. ¶ 7. Though this potential argument seems reasonable—and maybe even intuitive—the court of appeals brushed it away in a terse footnote. See id. n.5. According to the court, Smaxwell cannot be limited to dogs because precedent requires a specific jury instruction must be given in all common law negligence cases seeking to impose liability on an owner or keeper of an animal for injuries caused by that animal. Id. (citing Ollhoff v. Peck, 177 Wis. 2d 719, 503 N.W.2d 323 (Ct. App. 1993)). This is a non sequitur: nothing in that pattern jury instruction—which is itself not binding law, see Ollhoff, 177 Wis. 2d at 724—precludes the possibility of the jury finding negligence by others, in addition to or instead of an animal’s owner or keeper.

The Drexler court too readily assumed that Smaxwell’s applicability extends beyond dogs. Smaxwell’s public policy reasoning is far less compelling when applied to horses. And Drexler’s ruling is inconsistent with Pagelsdorf, which the Smaxwell court discussed at some length, in approving terms. It is disappointing that the court of appeals did not use the Drexler case to fully explore the extent to which Smaxwell should apply to cases beyond those involving household pets. Perhaps Mrs. Drexler will petition for review and the Wisconsin Supreme Court will have the opportunity to consider this issue.

Law clerk Olivia Pietrantoni assisted in researching and writing this post.

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.

SNOOPING ON YOUR SPOUSE MAY VIOLATE FEDERAL PRIVACY LAWS - And Complicate Your Divorce

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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.

Divided Wisconsin Supreme Court Changes Law on Fourth Amendment

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In State of Wisconsin vs. Richard L. Weber, 2014AP304-CR (Wis. Nov. 29, 2016), a divided Wisconsin Supreme Court ruled that a police officer does not violate the Fourth Amendment to the U.S. Constitution by pursuing an individual suspected of a minor traffic violation into that suspect’s own home. The Fourth Amendment, like a similar provision of the Wisconsin Constitution, provides that individuals will not be subject to unreasonable searches or seizures by the government.

The case is notable not only for its groundbreaking result, but also because it splintered the Court in an unusual way, with Justice Rebecca Bradley, a conservative, joining liberal Justices Ann Walsh Bradley and Shirley Abrahamson in dissent. New, conservative Justice Dan Kelly also rejected one of the central tenets of the lead opinion, though he chose not to dissent and instead concurred in the outcome on other grounds.

Facts:

On April 20, 2012, Deputy Calvin Dorshorst of the Wood County Sheriff’s Department noticed that Richard Weber’s car had a defective tail light; he flashed his lights in an effort to get Weber to stop. Weber did not stop, but continued 100 feet, turned into his driveway and parked in his attached garage. Deputy Dorshorst followed him into the driveway, parking 15 to 20 feet outside the garage. Deputy Dorshorst contacted dispatch and indicated he was conducting a traffic stop. He exited his vehicle and ran forward, stating that he needed to speak with Weber, who continued up the steps to his house. Weber did not stop until Deputy Dorshorst entered the garage and grabbed him by the arm. Deputy Dorshorst then asked Weber to return to the vehicle so that Deputy Dorshorst could “point out exactly the reason for the stop and which light was defective.” Weber, slip op., ¶ 5.

At that point, Deputy Dorshorst testified, Weber tried to pull away and enter the house. Importantly, all of Deputy Dorshorst’s actions to that point related to the defective tail light. Deputy Dorshorst did not articulate a basis to believe Weber might be intoxicated until he made contact with Weber, observed “slow, slurred speech” and “glassy, bloodshot eyes,” and smelled “a strong odor of intoxicants.” Id. Under prior Fourth Amendment case law, an officer needed to have a particularized suspicion that a driver was operating while intoxicated before he could expand a traffic stop or investigation. Deputy Dorshorst’s suspicions arose only after he had expanded his investigation by entering Weber’s garage and grabbing his arm.

Weber and Deputy Dorshorst left the garage and walked onto the driveway. When the Deputy asked Weber if he had been drinking, Weber said that he had. Weber refused to perform field sobriety tests, and Deputy Dorshorst placed him under arrest. Among other offenses, Weber was cited for Operating While Intoxicated-10th offense, Operating with a Prohibited Alcohol Concentration-10th offense, and Resisting Arrest.

Proceedings below:

Weber sought to exclude evidence of his intoxication on the grounds that the Deputy’s observations and all evidence obtained subsequent to the arrest were tainted because Deputy Dorshorst had violated Weber’s constitutional right to be free from unlawful search and seizure. The circuit court denied Weber’s suppression motion, reasoning that Deputy Dorshorst’s actions were justified by exigent circumstances arising from his hot pursuit of Weber. See id., ¶12. Weber eventually pled guilty and was sentenced to four years of initial confinement and four years of extended supervision. See id., ¶13. Weber appealed the denial of his suppression motion.

The court of appeals reversed the trial court order denying Weber’s suppression motion. The appellate court concluded that hot pursuit alone was an insufficient basis for warrantless entry and held that hot pursuit plus other exigent circumstances were required for a warrantless entry. Id., ¶41. The appellate court explained that the “exigent circumstances requirement means that there must be a potential for danger to life, risk of evidence destruction, or likelihood of escape.” Id., ¶14. It then held that those factors did not exist in this case and observed that “the State appeared to assume that all hot pursuits qualify as exigent circumstances” but provided no legal argument to support that assumption. Id. Because the court itself failed to discern why an immediate warrantless entry was justified, it held that Deputy Dorshorst was not in hot pursuit under sufficiently exigent circumstances to justify a warrantless entry into Weber’s garage. Id., ¶41. The State filed a petition for review in the Wisconsin Supreme Court.

The Wisconsin Supreme Court’s decision:

The Wisconsin Supreme Court analyzed three factors to conclude Deputy Dorshorst’s entry into Weber’s garage was constitutionally reasonable: (1) hot pursuit, (2) exigent circumstances, and (3) the scope of the intrusion. First, the court found that Deputy Dorshorst was engaged in “immediate or continuous pursuit of a suspect from the scene of a crime.” Id., ¶36. The court found that Deputy Dorshorst was attempting to apprehend Weber, who was fleeing from the Deputy’s lawful traffic stop on a public highway. See id. The court concluded that there was no record evidence of a delay in the Deputy’s response that would have interrupted the immediacy and continuity of the situation to dissipate the exigency. See id. The continuity of the situation, the court held, justified Deputy Dorshorst’s warrantless entry into Weber’s garage. See id.

The court then turned to exigent circumstances. Unlike the court of appeals, which had started by defining exigent circumstances and then compared the definition to the facts of Weber’s case, the supreme court began by looking at the specifics of the statutory violations Weber was alleged to have committed. See id., ¶37. Both Operating While Intoxicated and Resisting Arrest are jailable offenses. The supreme court deemed that a relevant factor in evaluating whether exigent circumstances justified Deputy Dorshorst’s warrantless entry. See id. This is a significant change in the law. None of the factors that courts have traditionally required before finding exigent circumstances was present here—as the court of appeals had already determined. But the supreme court decided that, if the alleged infraction under investigation carries a possible jail sentence, exigency can exist regardless of the circumstances. See id.

Third and finally, the court held that the intrusion was minimal in nature. Deputy Dorshorst did not damage any property, open any doors or windows, or pull any weapons. Rather, “he simply stepped into Weber’s garage and seized his arm.” Id., ¶38. To the court’s majority, these “[t]wo actions, entry and apprehension, were calculated to accomplish no more than was absolutely necessary to halt Weber’s escape.” Id. This holding, like the exigent circumstances ruling, appears to deviate from the court’s precedents. Previously, the court used the phrase “minimal intrusion” only in the context of a traffic stop. Weber is an unprecedented application of that concept to excuse police entry into a protected place—that is, a place where the owner has a reasonable expectation of privacy.

Having found that Deputy Dorshorst’s actions did not violate Weber’s Fourth Amendment rights, the supreme court affirmed the denial of Weber’s motion to suppress and his convictions.

Additional opinions:

The Weber decision also featured the first opinion written by Justice Kelly, who became the court’s newest member when Governor Walker appointed him in July to the remainder of retired Justice David Prosser’s term. In Justice Kelly’s view, Deputy Dorshorst lacked probable cause to arrest Weber for jailable offenses before the Deputy entered the garage, which would preclude utilization of the hot pursuit doctrine. He joined the majority in denying Weber’s suppression argument, however, because he believed that Weber had consented to Deputy Dorshorst’s entry into the garage. See id., ¶46 (Kelly, J., concurring). Justice Kelly concluded that Weber, by entering the garage, chose that as the venue for his interaction with Deputy Dorshorst and thereby invited the Deputy into the garage. See id., ¶73. This approach deviates significantly from the court’s previous opinions about consent.

The dissenting opinion by Justice A.W. Bradley (joined by Justices Shirley Abrahamson and Rebecca Bradley) concluded that, prior to entering the garage, Deputy Dorshorst had no probable cause to believe Weber had committed a jailable offense. See id., ¶85 (Bradley, J., dissenting). Nor did sufficiently exigent circumstances exist at the time to justify a warrantless entry. See id. The dissent summarized that “the lead opinion conflates legal doctrines, disregards controlling United States Supreme Court precedent and engages in flawed circular reasoning.” Id., ¶136. The dissent evinces concern over the erosion of constitutional rights and complains that the Weber decision sets a “trajectory where bit by bit, almost unnoticed, we may awaken one day to discover that the freedoms for which so many have fought and sacrificed have been severely curtailed.” Id. ¶83.

Court of Appeals Allows Riparians to Place a Pier on Privately Owned Flowage Bed

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A recent case from District III of the Wisconsin Court of Appeals, Movrich v. Lobermeier, No. 2015AP583 (Ct. App. Nov. 29, 2016), addresses the right of owners of property adjacent to a flowage to access the flowage and install a pier on the flowage bed when the portion of the flowage bed abutting that owners’ property is owned by someone else.  Jerome and Gail Movrich, the owners of property adjacent to a flowage, filed suit against David and Diane Lobermeier, the owners of the flowage bed adjacent to the Movriches’ property, seeking a declaration of the Movriches’ ability to access the flowage and to install a pier attached to the bed of that flowage.  The trial court concluded that the Movriches could access the water from their property and install a pier on the flowage bed, and the Lobermiers appealed that decision.  The court of appeals affirmed.

The flowage at issue was created around 1941 by the Town of Fifield’s damming of Sailor Creek.  At that time, the owner of the land to be flowed, Margaret Hussmann, granted to the Town and its assigns and successors “the perpetual right, privilege and easement” to flood a portion of lands.  Hussmann retained the interest in the submerged land as well as adjacent upland property. Overtime, Hussmann’s interest in this land was transferred to various parties. One such party was the Lobermeiers, who became owners of upland waterfront property as well as a portion of the bed underlying the flowage. The Lobermeiers eventually sold their upland property but retained their interest in the submerged land. In 2006, the Movriches purchased waterfront property abutting the flowage. A portion of the Lobermeiers’ submerged property abuts the Movriches’ upland waterfront property.

When the Movriches’ purchased their property, there was already a pier installed that extended from their property into the flowage.  The Movriches used their property and the flowage in various ways, including fishing, mooring their boat to the pier, wading in the water, and kayaking, up until 2011 or 2012.  At that time, the Lobermeiers began asserting their exclusive right to use the flowage bed adjacent to the Movriches’ property.

The Movriches brought suit against the Lobermeiers, seeking a declaration of their rights to access the flowage from their waterfront property and to install a pier extending into the flowage.  The circuit court concluded that the public trust doctrine allows the Movriches the right to access the flowage directly from their property and to erect, maintain, and use a pier anchored to their property and to the bed of the flowage.   

The court of appeals concurred with the circuit court that this case turned on the interaction between riparian rights and the public trust doctrine, which preserves for the public the right to use navigable waters for navigation and “incidents of navigation.”  Before the court of appeals, the Lobermeiers conceded that the public trust doctrine applies to the flowage.  However, they argued that the public trust doctrine does not grant the Movriches a right to access the flowage from the Movriches’ property, as opposed to from a public access point, nor does the public trust doctrine give the Movriches the right to place a pier on the flowage bed owned by the Lobermeiers. The court rejected the Lobermeiers’ arguments on two main grounds. 

First, the court rejected the Lobermeiers’ reliance on a cases involving waterbodies located entirely within the boundaries of one owner’s property.  The court distinguished those cases, wherein adjacent property owners did not obtain riparian rights, from the instant case, on the ground that the Lobermeiers did not own the entire flowage bed and neither the flowage bed nor the flowage itself were entirely within the boundaries of the Lobermeiers’ property. The court explained that such cases were not determinative on the facts in the instant case. 

Second, the court opined that because the flowage was created by the damming of a navigable river, the Lobermeiers’ property interests were subordinate to the public’s right to use the flowage pursuant to the public trust doctrine.  The court explained that it was required to interpret the public trust doctrine in a manner that allows the public to fully enjoy its benefits.  The court further explained that because piers aid in navigation, the Movriches’ rights under the public trust doctrine include the right to access the water from their property and the right to erect a pier on the privately owned flowage bed. 

The court’s authorization of access to public trust waters in this case is in keeping with well-established law. However, allowing a riparian to place a pier on a privately owned flowage bed is an extension of current law. In Munninghoff v. Wisconsin Conservation Commission, 255 Wis. 252, 39 N.W.2d 712 (1949), the court held that the public trust doctrine did not give members of the public the right to place structures, in that case muskrat traps, on privately owned beds because trapping was not an “incident of navigation.” Although the court in Movrich did not discuss Munninghoff, it used the “incidents of navigation” rationale to authorize the placement of a pier on a privately owned flowage bed at least by a riparian owner.

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