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2013

Wisconsin Supreme Court accepts four new cases

Madison, Wisconsin - June 25, 2013

The Wisconsin Supreme Court has voted to accept four new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. The Court of Appeals' opinions for the newly accepted cases are hyperlinked where available.

2011AP2902 UW System Board of Regents v. Decker
This case examines whether the UW System Board of Regents is eligible to obtain a harassment injunction against a former UW-Stevens Point student who has been lawfully banned from system property yet repeatedly trespasses and engages in a pattern of harassing and intimidating conduct.

Some background: The Board of Regents filed a petition for a temporary restraining order and harassment injunction against Jeffrey S. Decker in October of 2011. The Board of Regents alleged that during various meetings with UW-Stevens Point chancellor, Decker "became agitated, began raising his voice and ranting and raving about UW SP employees in a derogatory manner," "threatened to ‘fuck up' the chancellor's upcoming state of the university address and donor function," tried to grab at documents located on the chancellor's conference table, and forcibly stabbed the documents with a pen.

Decker was suspended from UW-Stevens Point from Nov. 19, 2010 through Jan. 1, 2012. Contrary to the terms of his suspension and Wis. Admin Code § UWS 17.17(4)(Aug. 2009), Decker trespassed on the UW-Oshkosh campus and distributed written materials at an intercollegiate basketball game. The Board of Regents alleged that on Sept. 1, 2011, Decker trespassed into a non-public meeting held at the UW-Fox Valley campus where he was disruptive, refused to leave, and was forcibly removed by police officers.

The Board of Regents alleged that on Sept. 8, 2011, Decker trespassed into a meeting of the Board of Regents held in Madison, videotaped and photographed the meeting, blocked the views of other members of the public, and refused to leave. Decker was placed under arrest, at which point he went limp, forcing officers to carry or drag him away and he "attempted to hook his feet onto the legs of chairs in an attempt to resist and obstruct the officers."

The Board of Regents also alleged that on Sept. 19, 2011, Decker trespassed into a meeting of the UW-Fox Valley Board of Trustees where he "repeatedly refused" to leave and became "belligerent and disruptive." When police officers tried to remove him from the meeting, Decker went limp, forcing officers to drag him out. Decker later returned to the campus but left before police could be contacted.

Following an Oct. 24, 2011 hearing, the circuit court entered an injunction against Decker effective until Oct. 24, 2015. The circuit court found that the requirements for the issuance of a harassment injunction had been met. It noted that § 813.125(1) and case law interpreting it established that one of the elements is engaging in a course of conduct or repeatedly committing acts that harass or intimidate another person and which serve no legitimate purpose.

Decker appealed, and the Court of Appeals reversed the circuit court's entry of a harassment injunction.

The Court of Appeals agreed with Decker that the record did not support a determination that his conduct lacked a legitimate purpose. The Court of Appeals said the record showed that Decker believes that segregated fees charged to students by UW-Stevens Point and UW-Stevens Point's usage of those fees is not legal and that he has engaged in public protect activities relating to those issues since at least 2010.

The Court of Appeals said the record also showed that the conduct at issue here, including Decker's presence at the September 2011 meetings, was related to his public protest of those issues as well as a protest of what Decker perceives to be illegal or unauthorized actions by UW-Stevens Point administrators toward UW-Stevens Point students and him.

Because the legitimate protest of government policies is protected by law, the court concluded the record does not support the circuit court's finding that Decker's actions lacked a legitimate purpose. For that reason it reversed the circuit court's entry of the harassment injunction.

The Board of Regents argues that this case is about "the convergence of an individual's purported right to protest and the state's ability to protect its institutions and citizens against potentially dangerous individuals." The Board of Regents argues that the Court of Appeals' decision effectively holds that if a person is engaging in public protest, he cannot be subject to a harassment restraining order, even if he has repeatedly violated the terms of a validly imposed suspension, and even if his actions suggest a frightening disregard for the safety of others.

The Board of Regents also argues it is not the Court of Appeals' function to determine the facts, contending rather that Bachowski v. Salamone, 139 Wis. 2d 397, 408, 407 N.W.2d 533 (1987) explained that the purpose behind the respondent's acts and conduct is a determination that must of necessity be left to the fact finder, taking into account all facts and circumstances of the case. The Board of Regents goes on to argue even if Decker had been engaging in actual protests while on the Board of Regent's property, because of his suspension it is undeniable his presence on the premises was unlawful and therefore was not protected or permitted by law.

Decker argues the Court of Appeals got it right. Among other things, he contends that protest does not lose its legitimacy simply because it is offensive or is perceived as "coercive" toward a desired change in policy. He argues that his purpose to provoke public discussion of UW administrators' actions that he deemed corrupt was legitimate under this standard. Justice Ann Walsh Bradley did not participate. From Dane County.

2011AP2188 Greer v. Schwarz
The central question presented in this case is whether the state Department of Corrections (DOC) can pursue revocation proceedings against an individual for an action committed after he received an erroneously issued discharge certificate.

Some background: Ardonis Greer was charged in Racine County Circuit Court with three counts and was convicted on two counts: possession with intent to deliver THC (count 1) and possession of a firearm by a felon (count 3). Count 2 was dismissed and read in for sentencing purposes.

On March 14, 2005, Greer was sentenced on count 1 to three years in the Wisconsin Prison System bifurcated as 14 months of initial confinement followed by 22 months of extended supervision. On count 3, Greer was sentenced to a bifurcated six-year term of imprisonment; the sentence was stayed and Greer was instead ordered to serve three years of probation "[c]onsecutive to count 1."

However, DOC failed to enter into its computer record system the court's order related to Greer's three-year consecutive probation term. Greer successfully completed his initial confinement and extended supervision committing no major violations, living with his mother, attending school, and working.

The DOC agent supervising Greer informed Greer that his supervision would be completed when his period of extended supervision expired on Sept. 28, 2007. Greer then received a discharge certificate from the DOC indicating he satisfied his sentence and was "discharged absolutely." The certificate also informed Greer that his right to vote and obligation for jury duty were restored.

On Nov. 5, 2009, Greer was involved in an argument resulting in criminal charges. (See Racine County Case No. 2009CF1478). Greer remained out of custody while these new charges were pending. He later entered a no contest plea to Intimidation Witness/Threat of Force due to his use of an "airsoft pistol toy gun" to threaten a witness during the incident. When Greer reported for a Presentence Investigation Interview on Sept. 1, 2010, the probation agent discovered the unrecorded three-year consecutive probation. On Sept. 2, 2010, Greer was told to report to the DOC office. Upon his arrival, Greer was immediately taken into custody on a DOC hold at the Racine County jail.

The DOC initiated revocation proceedings. Greer filed a written motion objecting to the DOC's jurisdiction on several grounds, notably his discharge certificate. Greer reiterated his jurisdictional objections at the revocation hearing.

Following the hearing, the administrative law judge ordered Greer's probation revoked, finding that Greer had threatened a witness (the Nov. 2009 charge) and had consumed alcohol. Other allegations (that Greer failed to report for consecutive probation, that he possessed a firearm, and that he operated a motor vehicle in excess of posted speed limits) were deemed not proven. The administrator of the Division of Hearings and Appeals upheld this decision.

Greer filed a Writ of Certiorari in Racine County Circuit Court, which ruled that the Division was equitably estopped from revoking Greer. The administrator appealed, and the Court of Appeals, in turn, reversed, noting, "we find no authority, and counsel at oral argument was unable to cite to any, that says that courts sit in equity in certiorari actions."

The Court of Appeals focused on the plain language of the statute, which states that "[a]n individual who is placed on probation for a felony shall be discharged from probation and issued a discharge certificate from the DOC when the period of probation for [the] probationer has expired." Wis. Stat. § 973.09(5) (emphasis added). The Court of Appeals ruled that the certificate to Greer was issued prematurely and in error and thus the DOC retained jurisdiction to pursue revocation.

Greer maintains that the Division is legally barred from revoking his probation because the DOC had issued a certificate discharging him from supervision. Greer argues that Wisconsin case law supports his assertion that a discharge certificate divests the court of jurisdiction or, alternatively, equitably estops the DOC from pursuing revocation. Greer points to the consequences of deeming the certificate invalid, such that it did not operate to terminate jurisdiction or actually reinstate Greer's civil rights.

The state contends that even if equitable relief was theoretically available in certiorari review, Greer could not establish in this case one of the essential elements of equitable estoppel, reasonable reliance. The state emphasizes the only basis for revocation upon which the administrator relied was Greer's new criminal conduct.

A decision by the Supreme Court is expected to clarify whether a circuit court, "sitting in certiorari has the authority to apply equitable estoppel...." The circuit court and Court of Appeals reached different conclusions on this question. From Racine County.

2011AP2482 Wisconsin Title Auto Loans v. Jones
This consumer case returns to the Supreme Court on certification, following a decision by the U.S. Supreme Court regarding the interplay between state rules declaring arbitration clauses unenforceable and the Federal Arbitration Act. AT&T Mobility LLC v. Concepcion, ___ U.S. ___, 131 S. Ct. 1740 (2011) In addition to considering the impact of the Concepcion case on Wisconsin law, the Wisconsin Supreme Court is also expected to clarify whether an order to compel arbitration is immediately appealable.

Some legal background: When this case was previously before the Supreme Court, the court ruled that the arbitration clause used by Wisconsin Auto Title Loans, Inc. (Wisconsin Auto Title) was unenforceable because it was legally unconscionable. Wisconsin Auto Title Loans, Inc. v. Jones, 2006 WI 53, 290 Wis. 2d 514, 714 N.W.2d 155 (Jones II). When the case was back in the circuit court, however, Wisconsin Auto Title filed another motion to compel arbitration, arguing that the U.S. Supreme Court's decision in Concepcion had undercut the validity of the Wisconsin Supreme Court's reasoning in Jones II.

In Wisconsin Auto Title's appeal of the circuit court's denial of its new motion to compel arbitration, the Court of Appeals, District I, certified the following two questions:

  • Is an order denying a motion to compel arbitration immediately appealable as a "final" order under Wis. Stat. § 808.03 or the Federal Arbitration Act (FAA)?
  • If an order denying a motion to compel arbitration is immediately appealable, is the trial court's order in the instant case – which determines that the arbitration clause at issue is unconscionable – contrary to the recently-decided AT&T Mobility LLC v. Concepcion, ___ U.S. ___, 131 S. Ct. 1740 (2011), and Cottonwood Financial, Ltd. v. Estes, 2012 WI App 12, 339 Wis. 2d 472 810 N.W.2d 852 (Cottonwood II) cases?

Some additional background: Kenneth Jones is among a group of car buyers who brought various claims against Wisconsin Auto Title related to short-term consumer loans secured by the titles to their vehicles.

Wisconsin Auto Title sought a circuit court order compelling Jones to arbitrate his claims against it, which were filed as counterclaims in the replevin action initially filed by Wisconsin Auto Title. After the circuit court concluded that the arbitration provision in Wisconsin Auto Title's loan agreement was unconscionable and denied Wisconsin Auto Title's motion, the company filed a petition for leave to file an immediate interlocutory appeal, which the Court of Appeals granted.

The unconscionability issue was reviewed by the Wisconsin Supreme Court in Jones II, which held that the arbitration provision was both procedurally and substantively unconscionable. The court also determined that Wisconsin's general law of unconscionability was consistent with the FAA and therefore was not preempted by that federal statute.

Therefore, the Supreme Court ultimately affirmed the circuit court's order refusing to compel arbitration. Following remand, the circuit court consolidated a number of consumer complaints against Wisconsin Auto Title.

Following the U.S. Supreme Court's decision in Concepcion, Wisconsin Auto Title again moved for an order compelling at least two of the consumer plaintiffs to arbitrate their cases against Wisconsin Auto Title. Wisconsin Auto Title argued that the Concepcion decision had undercut the bases on which this court found unconscionability of Wisconsin Auto Title's arbitration clause in Jones II.

The circuit court again found the arbitration clause unconscionable (having a high level of procedural unconscionability and some substantive unconscionability) and denied the motion to compel arbitration. Wisconsin Auto Title filed a notice of appeal, leading to this certification.

If orders denying motions to compel arbitration are determined to be immediately appealable, the Supreme Court also may decide whether or not the U.S. Supreme Court's decision in Concepcion renders the Jones II decision inoperative. From Milwaukee County.

2012AP336-CR State v. Tate

In this case, the Supreme Court examines whether obtaining a cell phone's location constitutes a "search" within the meaning of the Fourth Amendment, and if so, what probable cause standard applies before police can obtain location information. The Supreme Court also reviews whether statutory authorization is necessary before a court can permit this kind of search, and whether such statutory authorization exists.

Some background: Bobby Tate was convicted, based on his no contest plea, of first-degree reckless homicide and possession of a firearm by a felon. The Court of Appeals affirmed a circuit court order denying Tate's motion to suppress evidence obtained as a result of location data that the police were able to obtain from the cellular telephone company pursuant to a court order.

Here's what led to the charges: Witnesses observed a shooting outside of the Mother's Food Market, Magic Cell Phones store on North 16th Street in Milwaukee during the evening of June 9, 2009. Witness indicated that they observed an unknown black male wearing a white shirt with large, colored stripes shoot two individuals, one of whom died.

The police viewed interior and exterior surveillance video, which showed a man wearing a white shirt with stripes purchase a cell phone inside the store and then several minutes later fire several shots in front of the store. The purchaser identified himself to the store clerk as "Bobby."

The police obtained the phone number of the cell phone purchased by the man in the white, striped shirt and submitted an "Application for Orders" along with a supporting affidavit from a police detective. The affidavit included a statement that the detective believed that locating the cell phone would "reveal evidence of the crime of First Degree Intentional Homicide. A judge issued an order that, among other things, authorized police to obtain data and information from the cellular telephone company that would allow them to track the phone's physical location. The order cited Wisconsin's search warrant statute (Wis. Stat. § 968.35) and a number of federal statutes (18 U.S.C. §§ 2703(c)(1)(B) & (d), 2711(3), 3117, 3127(2)(B), and 3125).

Using the cell tower activity information and other location information, plus their own equipment, the police were able to track the location of the specific cell phone to a particular area of an apartment building in Milwaukee.

A number of officers then went into the building and began knocking on apartment doors, asking for permission to search. One apartment door on which they knocked belonged to Tate's mother.

Tate was staying at his mother's apartment at the time. The officers asked if they could search her apartment, and Tate's mother consented. The officers entered the apartment and went to a back bedroom, where they found Tate sleeping. In the bedroom, the officers also observed a pair of pants, a white shirt with multi-colored stripes similar to that observed on the surveillance videos, and a pair of tennis shoes, one of which appeared to have blood on it. The blood was later tested and was found to contain the DNA of one of the victims of the shooting.

The police arrested Tate. He filed a motion to suppress all evidence that was discovered and seized pursuant to or as a result of the court-ordered tracking of his cell phone. The circuit court denied the motion to suppress. Tate appealed.

The Court of Appeals boiled its analysis down as follows: "The only issue relevant to this appeal is whether there was probable cause to believe that location data obtained from Tate's phone would lead to evidence of the crime of homicide described by witnesses and shown on the surveillance videos."

The Court of Appeals concluded that the facts presented in the affidavit, in total, were sufficient to support the issuing judge's belief that the location data for the phone "would probably lead to evidence of the shooting, Tate's clothing, the weapon, and ultimately, Tate himself."

The U.S. Supreme Court and this court held that attaching a global positioning system (GPS) device to a vehicle is a search, but there has not been a decision whether obtaining location data from a cellular service provider is a search. See United States v. Jones, ___ U.S. ___, 132 S. Ct. 945 (2012) (affirming Court of Appeals' reversal of a conviction due to a warrantless GPS search); State v. Sveum, 2010 WI 92, 328 Wis. 2d 369, 787 N.W.2d 317.

Among other things, Tate argues that obtaining location data and using that data to find the location of a cell phone constitutes a search, that there is no statutory basis to support the order issued by the trial judge, and that there was not the type of probable cause that should be required for the type of order issued here.

The state contends that, under the Wisconsin Supreme Court's decision in Sveum no statutory authority is needed for the kind of tracking order at issue in this case. Alternatively, it argued that several statutes do provide authority for this kind of order. The state's says concerns in other cases have generally focused on the warrantless use of cell phone tracking information by law enforcement. Since the police here obtained a court order or warrant supported by probable cause, the state believes the search was permissible. From Milwaukee County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court:

Brown
2010AP1887-CR State v. Witak
2011AP2320-21 L.P. Mooradian Co. v. Mednikow Prop.
2011AP2843-CRNM State v. Mahler

Columbia
2012AP1087-W O'Grady v. Cir. Ct. Columbia Co.

Dane
2011AP998-CR State v. Villarreal Justice Patience Drake Roggensack dissents.
2011AP1981-CR State v. Howard
2011AP2404 State v. Riley
2012AP2306-CRNM State v. Mulcahy

Dodge
2012AP1144-CR State v. Kohlhoff

Douglas
2012AP1605-CR State v. Potter

Jefferson
2012AP208-CR State v. Wirth
2012AP582-CRNM State v. Diehl

Kenosha
2011AP454 Brown v. Tokio Marine - Justice David T. Prosser, Jr. did not participate.
2011AP2682-CR State v. Garcia

Marathon
2012AP558-CR State v. Fisher

Marinette
2011AP2476-W Evans v. Huibregtse

Milwaukee
2011AP1427-CR State v. Hawthorne - Chief Justice Shirley S. Abrahamson dissents.
2011AP1569-W Newson v. Cir. Ct. Milw. Co.
2011AP1858-CR State v. Cervantes
2011AP2051 State v. Stream
2011AP2189 State v. Satcher
2011AP2195 State v. Landrum
2011AP2431-CR State v. Little
2011AP2566-CRNM State v. Ward
2011AP2778 State v. Cotton
2012AP102 Montalvo v. U.S. Title and Closing Serv.
2012AP194 Bach v. Milwaukee Co.
2012AP357-CR State v. Williams
2012AP373 State v. Grant
2012AP442 Bach v. Linhart
2012AP450-CRNM State v. Dragisich
2012AP457 State v. Burns
2012AP878 State v. Kimber
2012AP1723-24-CRNM State v. Winston
2012AP2458-59-NM State v. Tondalia K.
2013AP1092-W Brown v. Sand Ridge Sec. Tr. Ctr.

Outagamie
2012AP321 Go Wireless v. Maryland - Chief Justice Shirley S. Abrahamson dissents.

Ozaukee
2011AP2873-CR State v. Lichty
2012AP103 Air Engineering v. Industrial Air Power
2012AP199-CR State v. Hawkins
2012AP285-CR State v. Stern

Pierce
2012AP2756-W Foster v. Pollard

Racine
2012AP1121-22 Racine County HSD v. Latanya D.K.
2012AP1346 Racine County HSD v. Kimberly M.K. - Justice David T. Prosser, Jr. did not participate.
2012AP1887 Fox River State Bank v. Morrison Transport

Rock
2010AP2449-CR State v. Henning

Walworth
2012AP1757-CR State v. Bennett - Justice David T. Prosser, Jr. did not participate.

Waukesha
2011AP2917 Schoolcraft v. DPI
2012AP41-CR State v. Kafer
2012AP44 State v. Ringold
2012AP142-CR State v. Wilcenski - Chief Justice Shirley S. Abrahamson dissents. Justice David T. Prosser, Jr. did not participate.
2012AP767-CR State v. Gray
2012AP909 Trentadue v. Trentadue

Waushara
2012AP965-CR State v. Gierczak

Winnebago
2010AP1371 Storm v. Legion Ins.
2010AP1787-CR/2011AP2305-CR State v. Wheeler
2011AP2101-CR State v. Klein
2012AP743 State v. Sanderfoot

Contact:
Tom Sheehan
Court Information Officer
(608) 261-6640

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