Updated 10/28/09

Obstructing or Resisting Warden, § 29.951 – Single Crime with Multiple Modes of Commission – Unanimity not Required
State v. David A. Dearborn, 2008 WI App 131, PFR filed 8/21/08
For Dearborn: Eileen A. Hirsch, SPD, Madison Appellate
Issue/Holding: Unanimity is not required on whether the defendant “resisted” or “obstructed” a warden on a charge of violating § 29.951, ¶¶21-42.
All the rest is commentary. (Translated: the court undertakes a lengthy analysis that won’t be summarized.) Of particular note, though: the court plainly means to apply the result to § 946.41, even if but glancing reference is made, ¶14 n. 5 (“These definitions of “resist” and “obstruct” are the same as those in the pattern jury instructions for Wis. Stat. § 946.41.”); and ¶17 n. 12 (“we do not intend to suggest there is a difference in meaning between the term “obstruct” in the two statutes, and we do not see any significant difference between the dictionary definition we employ here and the definition in Wis JI—Criminal 1766”). Anticipate, then, attempts to import this holding into § 946.41, notwithstanding that resisting (1765) and obstructing (1766) are embodied by entirely separate pattern instructions.
Securities Fraud, § 551.41(2) – Promissory Note
State v. Kevin F. McGuire, 2007 WI App 139, PFR filed 6/4/07
For McGuire: Timothy A. Provis
Issue: Whether a promissory note is a “security” within the meaning of § 551.02(13(a).
Holding: The 4-factor test of In Reves v. Ernst & Young, 494 U.S. 56, 66-67 (1990) applies: “1) the motivations of a reasonable seller and buyer; (2) the note’s ‘plan of distribution’; (3) the reasonable expectations of the investing public; and (4) whether other risk-reducing factors exist, making unnecessary the application of the securities laws to protect the public,” ¶11. “The bottom line is that McGuire’s motivation was to raise money for his NASCAR venture and DeLuisa’s motive was to make a profit. This factor weighs against a family resemblance to a nonsecurity.” “(T)he fact that this transaction involved only DeLuisa as an investor [8] is not fatal, because a debt instrument may be distributed to but one investor, yet be a security.” “…McGuire convinced DeLuisa that since NASCAR was “up and coming,” his venture had a promising future and she would realize a return significantly better than likely could have been achieved at a local bank. A reasonable investor would have considered the transaction with its higher-than-commercial interest rate to be an investment. We conclude this factor weighs against a resemblance to the family of non-securities.” “There also is no evidence to indicate that the note was covered by any … regulatory scheme to protect DeLuisa. … We conclude this factor also weighs against resemblance to the family of nonsecurities.”

¶23 On balance, then, the first, third and fourth factors weigh against any resemblance to the family of nonsecurities; only the second factor weighs in favor. The factors are considered as a whole, and failure to satisfy one of the factors is not dispositive. J.T. Wallenbrock & Assocs., 313 F.3d at 537. McGuire’s fraud consisted of his failure to inform DeLuisa of his undischarged bankruptcy, the terms and conditions of the bankruptcy plan which significantly limited McGuire’s ability to incur debt, and his felony conviction and prison time for theft by conversion. The trial court found these omissions and McGuire’s affirmative statements that this was a good, safe investment to be material facts which would influence a reasonable investor’s investing decision. These findings are not clearly erroneous. See Schnuth v. Harrison, 44 Wis. 2d 326, 335, 171 N.W.2d 370 (1969).

¶24 We conclude that McGuire’s note qualifies as a “security” within the meaning of Wis. Stat. § 551.02 and thus his conduct qualified for prosecution pursuant to Wis. Stat. § 551.41.

Securities Fraud, § 551.41(2) – Elements
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
Issue: Issue/Holding:
¶29 The State was required to prove three elements beyond a reasonable doubt to convict LaCount of securities fraud. First, the prosecution had to establish that LaCount sold Wills a security, here, an investment contract. Wis. Stat. § 551.41. Second, the prosecution had to prove that LaCount made an "untrue statement of a material fact or [omitted] to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they [were] made, not misleading . . . ." Wis. Stat. § 551.41(2). Third, the prosecution was required to prove that LaCount acted willfully. Wis. Stat. § 551.41. ...
Securities Fraud, § 551.41(2) – Sufficiency of Evidence – Element of Investment Contract
State v. Louis H. LaCount, 2008 WI 59, affirming 2007 WI App 116
For LaCount: T. Christopher Kelly
¶30 We are satisfied that the State proved beyond a reasonable doubt that LaCount sold Wills a security, here, an investment contract. We are not persuaded by LaCount's argument, which relied on the United States Supreme Court decision of SEC v. Edwards, 540 U.S. 389, 393 (2004), that Wills had to depend solely on LaCount's efforts to realize a profit for the transaction to be an investment contract. In Edwards, the Court defined an investment contract for purposes of federal securities law. Id. LaCount's argument fails because Wisconsin securities law is far broader in its definition of an investment contract than is federal law. Wisconsin courts have held that managerial efforts need not come only from the efforts of a person other than the investor. See Fore Way Express, Inc. v. Bast, 178 Wis. 2d 693, 505 N.W.2d 408 (Ct. App. 1993). Specifically, Fore Way Express cited the relevant section of the Wisconsin Administrative Code in holding that an investment contract was any "'investment in a common enterprise with the expectation of profit to be derived through the essential managerial efforts of someone other than the investor.'" Id. at 712, citing Wis. Admin. Code § DFI 1.02(6)(a) (Dec. 2004).

¶31 We agree with the Fore Way Express court that an investor may have a role in the managerial efforts of an investment contract, so long as the investor does not provide the essential managerial efforts for the investment contract. Our holding today also is consistent with the Wisconsin Administrative Code, which defines an investment contract as "[a]ny investment in a common enterprise with the expectation of profit to be derived through the essential managerial efforts of someone other than the investor." Wis. Admin. Code § DFI 1.02(6)(a) (Dec. 2004). The judge's instructions to the jury in this case, as reflected in the record, were fully consistent with Wisconsin law. Furthermore, we are satisfied that Cohen's testimony was consistent with Wisconsin law.

§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Element of Scienter
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue: Whether the scienter element of § 125.075(1) requires proof that the defendant know that a particular individual is under the legal drinking age.
¶11   Wille makes much of the fact that Wis. Stat. § 125.075(1) refers several times to the victim in the singular: “to a person under 18 years of age”; “the underage person was”; “[t]he underage person dies.” Id. We conclude, however, that the reference to a single minor or underage person in the statute does not preclude its application to a defendant who procures alcohol beverages for a group of persons that the defendant knew or should have known were underage persons.

¶12   We first note that Wis. Stat. § 990.001(1) provides that, when interpreting Wisconsin statutes, “unless [it] … would produce a result inconsistent with the manifest intent of the legislature … [t]he singular includes the plural, and the plural includes the singular.” …

¶13   We next observe that many criminal statutes refer to the victim of the described crime in the singular. Interpreting them as requiring that a defendant must knowingly direct his or her prohibited conduct toward a particular individual would produce results that are arguably “absurd or unreasonable.” …

¶14   We conclude it would be equally absurd or unreasonable to interpret Wis. Stat. § 125.075(1) as requiring a personal interaction between the defendant and the victim, or as requiring that the defendant have knowledge that a particular underage person would consume the alcohol procured by the defendant. …

¶15   We thus conclude that a violation of Wis. Stat. § 125.075(1) is proven when a defendant is shown to have “procure[d] alcohol beverages for … [one or more persons who are] under 18 years of age,” if the defendant “knew or should have known that the underage person[s were] under the legal drinking age” and an “underage person [who was under eighteen when provided the beverages] dies … as a result.”

Also mentioned in passing by the court: “although the victim of the crime must be under eighteen, it is not necessary that the defendant knew or should have known that the persons for whom alcohol beverages were procured were ‘under 18 years of age’; the required knowledge is that the persons were ‘under the legal drinking age,’ i.e., under the age of twenty-one,” ¶12 n. 3. The court also recognizes that liability doesn’t attach where the underage person is “accompanied by his or her parent, guardian or spouse who ahs attained the legal drinking age,” ¶17 n. 4.
§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Sufficiency of Evidence
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
Issue: Whether the evidence was sufficient under § 125.075(1) to show that the defendant had the underage victim had consumed alcohol provided by the defendant at a party for which the defendant supplied beer and sold red cups for the purpose of obtaining the beer (the victim became intoxicated and later died in a traffic accident after leaving the party).
¶17   Wille admitted on cross-examination that he knew when he purchased and arranged for the delivery of the barrels of beer to the party site that “an underage drinking party” was to occur and that party attendees would include “people … under the legal drinking age.” …

¶18   What Wille does dispute is whether the State produced sufficient evidence to allow jurors to conclude that Meshak consumed any of the beer that Wille provided to the party. Wille asserts that “no evidence was submitted to show that Wille sold a cup to Meshak or to show that Wille provided the alcohol that Meshak was drinking from the red cup.” …

¶19   An attendee of the party testified that he saw Meshak drink beer from a red cup and that he saw Meshak fill the cup once from one of the kegs at the party. This witness estimated that Meshak had consumed “about eight” cups of beer at the party, stating further that he had not seen Meshak fill his cup from any source of beer other than the keg and had not seen him with either a beer bottle or can in his hands. Another witness said that he was “pretty sure” that the beer he and Meshak were “slamming” near the end of the party were from one of the barrels at the party. [5] This same witness had earlier told a detective that he had seen Meshak “drinking fast and from the barrel of beer.” Finally, a third witness testified that he had seen Meshak fill “his cup from the half-barrel” “more than once, I believe,” although this witness later said, “I don’t remember seeing him just fill it up, but I know he was drinking out of a red cup.”

¶20   In sum, we are satisfied that the State presented sufficient evidence …

§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Jury Instructions: Causation
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
¶24   Wille claims the trial court erred in instructing jurors that, to find Wille guilty of the charged crime, Meshak’s consumption of alcohol provided by Wille was required to be “a” substantial factor in causing Meshak’s death, instead of “the” substantial factor, as Wille requested. Alternatively, he contends the court should have also instructed jurors that, to be “a substantial factor,” the death had to be “a natural and probable consequence” of Wille’s conduct. [6] We are not persuaded that the trial court erred in instructing jurors that Wille could be found guilty if Meshak’s consumption of alcohol provided by Wille was “a substantial factor” in causing Meshak’s death, or that it erroneously exercised its discretion by refusing to insert the additional language Wille requested.

¶26   … (T)he trial court correctly instructed jurors that Wis. Stat. § 125.075(1) requires a showing that Meshak’s consumption of the provided alcohol needed to be “a substantial factor in causing [Meshak’s] death.”

¶27   We further conclude that the court did not err in refusing to add to the instruction that Meshak’s death must be shown to have been “the natural and probable consequence of the accused’s conduct,” which is the language Wille requested the trial court to insert. As the supreme court explained in Serebin, the phrase “a substantial factor” is the equivalent of “the natural and probable consequence of the accused’s conduct.” Serebin, 119 Wis.  2d at 849. We agree with the State that it is not an erroneous exercise of discretion for a trial court to decline to provide jurors with alternative language that communicates the same concept as other language already included in the instruction.

§ 125.075(1), Procuring Alcohol for Minor Resulting in Death – Elements – State Need not Prove Victim’s Level of Intoxication
State v. Ronald L. Wille, 2007 WI App 27, PFR filed 2/28/07
For Wille: Jerome A. Maeder, Benjamin Welch
¶31   … The State was under no obligation to establish the level of alcohol in Meshak’s blood at the time of the accident, or even to prove that he was intoxicated to the degree required for a conviction under Wis. Stat. § 346.63 (“Operating under influence of intoxicant or other drug”). The absence of other drugs in Meshak’s system also was not an element of the State’s case. As we have discussed, the State needed to prove only that Meshak’s consumption of alcohol beverages procured by Wille was “a substantial factor” in causing Meshak’s death. We conclude there was more than sufficient evidence presented at trial to show that Meshak drove away from the party in a highly intoxicated state. We therefore harbor no reasonable doubt that jurors would have found that the State established the necessary causal link between Meshak’s consumption of alcohol and his death even if they had not heard the test result evidence.
Compulsory School Attendance, § 118.15(5)(b)2
State v. Gwendolyn McGee, 2005 WI App 97
For McGee: Amelia L. Bizarro
Issue/Holding: The disobedient-child defense to a compulsory-attendance charge is an affirmative defense issue to be presented to the fact-finder at trial for resolution (as opposed to disposition by pretrial motion).
Remedial Contempt - Commitment Order Based on Ex Parte Motion of (Non-attorney) Child Support Case Specialist: No Competency to Proceed
Clay Teasdale v. Marinette County Child Support Agency, 2009 WI App 152
Issue/Holding: Case specialist’s request to judge via affidavit and proposed order for remedial-contempt commitment was in fact if not form a “motion” and “was improper on numerous grounds”: it violated the §802.05(1) requirement that aside from pro se litigation motions must be signed by an attorney else must “be stricken”; it wasn’t filed with the clerk of circuit court, contrary to § 801.16(1); it violated the proscription against ex parte communications; and, it failed to afford the 5-days’ minimum notice required by § 801.15(4).
Minor point, perhaps: the court notes Teasdale’s argument that, because the request was signed by a nonattorney, the trial court lacked competency to issue the order, ¶1, but the court never quite gets around to saying whether or not it agrees. The court, to be sure, clearly says “the child support agency’s request for a commitment order should have been stricken from the record,” id., but whether that outcome equates to a lack of competency is left to the reader’s determination. The court is clear, though, about the necessity of notice:
¶11      Further, motions “shall” be heard on a minimum of five days’ notice. Wis. Stat. § 801.15(4). Yet, here the agency’s request for a commitment order was granted the day after its submission. A contemnor is entitled to an opportunity to request a hearing before being committed to jail for allegedly failing to comply with purge conditions. V.J.H., 163 Wis.  2d at 838, 842-44 (“When a contemnor’s liberty interests are at risk he or she must be given the opportunity to show the court that the failure to comply with the purge condition was not willful and intentional.”). Thus, as a matter of necessity, the contemnor must be provided notice of the allegations before any arrest warrant is issued. [7] In light of our decision in V.J.H., the court’s policy as described in this case, to jail the contemnor first and ask questions later, cannot be condoned. [8]
Contempt – Remedial – Monetary Damages Unavailable for Past Contempt
Milton J. Christensen, et al. v. Sullivan, et al., 2009 WI 87, reversing 2008 WI App 18
For Christensen: Peter M. Koneazny, Patrick O. Patterson
Issue: Whether remedial contempt supports monetary sanction for past acts (here: intentional violations of jail-overcrowding consent decree) where the sanctionable conduct has terminated.
Holding: Remedial sanction, including monetary award, is limited to “continuing” contempt of court, and is therefore unsupported for past acts of contempt.
¶58      Section 785.04(1)(a), if read in isolation, could be somewhat ambiguous on this score. [8] Standing alone, the paragraph could be interpreted as allowing payment of a sum of money for a loss or injury suffered in the past; however, such an interpretation would ignore the fact that the continuing nature of the contempt is what authorizes the court to impose a remedial sanction as opposed to a punitive sanction. [9] See Wis. Stat. § 785.01(3) ("'Remedial sanction' means a sanction imposed for the purpose of terminating a continuing contempt of court."); Note, § 11, ch. 257, Laws of 1979, at 1355 ("[A] remedial sanction . . . cannot be imposed if for any reason the contempt has ceased, even as the result of the settlement of a case.") (emphasis added); see also King, 82 Wis.  2d at 131-32, 138 (disallowing civil contempt proceedings under the previous contempt statutes after the underlying dispute settles); 17 Am. Jur. 2d Contempt § 145 ("When the parties settle the underlying case that gave rise to a civil contempt sanction, the contempt proceeding is moot, since the case has come to an end."). Permitting the imposition of a remedial sanction in a situation where there is no continuing contempt would effectively rewrite the statute.[10] Therefore, the key to the issue in this case is whether the County's contempt of court was continuing on and after the September 13, 2004 motion for a finding of contempt and imposition of remedial sanctions.

¶59      Chapter 785 does not define "a continuing contempt of court." If the court is required to interpret a statute and the words in the statute are not defined, the court must apply the ordinary meaning of the words to give effect to the statutory language. Kalal, 271 Wis.  2d 633, ¶45.

¶60      The word "continuing" has many definitions. However, when using "continuing" in the context of determining whether something has either been terminated or is ongoing, as in this statute, see Wis. Stat. § 785.01(3), the word generally means "[t]o go on with a particular action or in a particular condition; persist," The American Heritage Dictionary of the English Language 408 (3d ed. 1992), see also Black's Law Dictionary 316 (7th ed. 1999) ("(Of an act or event) that is uninterrupted <a continuing offense>.").

¶78      Inasmuch as the County's contempt of court had ceased and was no longer continuing at the time the contempt proceedings were initiated, remedial sanctions could not be imposed. Consequently, we affirm the circuit court's judgment denying the plaintiff class remedial sanctions in this case.

Severe jail overcrowding led to a consent decree, notwithstanding which such a “staggering” number of violations continued to occur such that the circuit court found them to be “intentional,” ¶35. But, because the violations ceased once the plaintiffs sought redress through this contempt action, they were no longer “continuing” and thus no longer subject to remedial sanction—according to the supreme court. Punitive sanction might be supported, but that remedy “is not specifically concerned with protecting private rights,” ¶52, and therefore wouldn’t result in a monetary award. “In fact, imposing punitive sanctions is much akin to imposing a criminal penalty, which is why the legislature has required that proceedings for punitive sanctions be brought exclusively by ‘[t]he district attorney of a county, the attorney general or a special prosecutor appointed by the court’ in a nonsummary procedure. Wis. Stat. § 785.03(1)(b) …,” ¶53. Unless you think there’s the remotest chance of prosecution of a law enforcement agency, then once you take monetary award off the table you’re essentially saying that as a practical matter there is no remedy at all for a staggering, intentional violation of a court order.
Contempt -- Remedial, § 785.04(1) – Basis for Tuberculosis-Treatment Confinement
City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming, 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU
¶66      Moreover, we agree with Washington that remedial contempt was not an appropriate sanction in this case. A contemnor may be imprisoned "only so long as the person is committing the contempt of court." Wis. Stat. § 785.04(1)(b). Once a contemnor complies with the prior court order, or "purges" the contempt, the person must be released. "The purge provision must clearly spell out what the contemnor must do to be purged, and that action must be within the power of the person." State ex rel. N.A. v. G.S., 156 Wis. 2d 338, 342, 456 N.W.2d 867 (Ct. App. 1990) (citing Schroeder v. Schroeder, 100 Wis. 2d 625, 638, 302 N.W.2d 475, 482 (1981)). "Thus, it is often said that contemnors 'hold the keys to their own jails.'" Id. (quoting State v. King, 82 Wis. 2d 124, 137, 262 N.W.2d 80 (1978)).

¶66      Of course, no express purge provision was provided in this case because the circuit court declined to proceed under the remedial contempt statute. Thus, there was no reason for the court of appeals to reach this issue. [21]

¶67      Additionally, the legislature specifically addressed confinement for noncompliant and drug-resistant persons with tuberculosis in Wis. Stat. § 252.07. As Judge Kessler noted in her dissent:

The legislature . . . developed an elaborate and detailed system to protect the public from, provide treatment for, and protect the civil liberties of, individuals with contagious tuberculosis. The legislature has concluded that the statutory system of regulation, and enforcement, provides adequate tools to protect the public and to treat the infected.
Washington, 292 Wis. 2d 258, ¶31 (Kessler, J., concurring in part, dissenting in part).

¶68      We therefore disavow the court of appeals' discussion of remedial contempt under Wis. Stat. § 785.04(1) as a separate basis for confinement to jail in this case. Washington, 292 Wis. 2d 258, ¶¶16-19.

Contempt -- General Procedure, Remedial vs. Punitive
Evans v. Luebke, 2003 WI App 207, PFR filed 10/23/03
Issue/Holding: Contempt is an inherent judicial power, but is legislatively regulated, such that its exercise outside the statutory scheme is proscribed. ¶17. The required statutory procedure is determined by whether the contempt is remedial or punitive. The latter punishes past conduct for the purpose of upholding authority of the court, § 785.01(2) it may be brought only by a prosecutor (DA, AG, or special prosecutor appointed by court) with a complaint under criminal procedure statutes, § 785.03(1)(b). In contrast, a remedial sanction aims to terminate a continuing contempt of court, § 785.01(3), and falls under the procedure for nonsummary sanctions set by §§ 785.03(1)(a) and 785.04(1). ¶¶21-22.
Contempt -- Remedial – Requirements: Evidentiary Hearing and Findings
Evans v. Luebke, 2003 WI App 207, PFR filed 10/23/03
¶24. Upon the filing of a motion seeking remedial sanctions for contempt, an on-the-record hearing must be held "for due process purposes." See Mercury Records Prods., Inc. v. Economic Consultants, Inc., 91 Wis. 2d 482, 504, 283 N.W.2d 613 (Ct. App. 1979). The evidence adduced at the hearing must support resultant findings of fact that the contemnor engaged in "intentional ... [d]isobedience, resistance or obstruction of the authority, process or order of a court." Wis. Stat. § 785.01(1)(b). No evidentiary proceedings were conducted in this case, nor were facts stipulated to on the record that would support the necessary findings. We conclude that the lack of evidentiary proceedings, as well as the absence of proper findings to support the imposition of sanctions, violate both the requirements of ch. 785 and of due process. See Wis. Stat. § 785.03(1)(a) ("The court, after notice and hearing, may impose a remedial sanction ...." (emphasis added)); Dennis v. State, 117 Wis. 2d 249, 261, 344 N.W.2d 128 (1984) ("[S]tatutory requirements and due process require that the defendant be aware of what he must answer to so that he can be prepared to offer proof and explanation showing his good faith efforts to comply with the court's orders.").

¶25. We conclude that the circuit court should have followed procedures under Wis. Stat. § 785.03(1)(a) for imposing remedial sanctions but did not do so. Those procedures require, at a minimum, notice that sanctions for contempt are being sought, and in the absence of stipulated facts, an evidentiary hearing sufficient to permit the court to make specific findings regarding whether the alleged contemnor intentionally disobeyed its orders.

(Footnotes omitted, in which court underscores principle that trial court factual findings are essential; and also declines to find waiver.)
(SPD authority in this area is limited: it’s probably fair to say that punitive contempt generally supports SPD rep, § 977.05(4)(i)(3), while remedial contempt generally doesn’t, but may. As with all matters involving high policy, consult your FA first.)
Disclosure of Confidential Child Abuse Reporting, § 48.981(7) -- “Disclosure” Element
State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, 2001 WI App 130
For Polashek: Nila J. Robinson
Issue: Whether the element of "disclosure" in § 48.981(7) requires that the recipient not previously have been aware of the confidential information.
Holding: Given the plain meaning of "disclosure," as defined by various dictionaries, as well as construciton of the term under the Federal Privacy Act:
¶23. We conclude, then, that to "disclose" information under § 48.981(7), the recipient must have been previously unaware of the information at the time of the communication. Because the disclosure of the confidential information is an element of the crime, the State has the burden to prove beyond a reasonable doubt that the disclosure took place. In re Winship, 397 U.S. 358, 363 (1970). We thus reverse the court of appeals on this issue.
Disclosure of Confidential Child Abuse Reporting, § 48.981(7) -- Strict Liability
State v. David C. Polashek, 2002 WI 74, affirming in part and reversing in part, 2001 WI App 130
For Polashek: Nila J. Robinson
Issue: Whether § 48.981(7) is a strict liability offense.
Holding: Where the statute makes no reference to mental state -- and none is made here -- it is often deemed strict liability. Factors such as seriousness and nature of the offense and legislative history may lead the court to impose a scienter requirement. Those factors make this offense strict liability: intent is included in one section but not the pertinent one; the statute is regulatory in nature and aims at imposing a high standard of care; though the penalty (six months incarceration) is relatively harsh, strict liability has been found for much harsher punishments. ¶¶28-34.
Drug Tax Stamp, §§ 139.87-139.96 -- Constitutionality
State v. Glover B. Jones, 2002 WI App 196, PFR filed 8/22/02
For Jones: Mark D. Richards
Issue1: Whether the drug tax stamp law, §§ 139.87-139.96, violates the privilege against compelled self-incrimination.
Holding: The statute, amended to address State v. Hall, 207 Wis. 2d 54, 557 N.W.2d 778 (1997), prohibits use in a criminal proceeding against a dealer of tax stamps affixed to illegal drugs, and thereby removed the constitutional infirmity. ¶33-36.

Issue2: Whether the drug tax stamp law, §§ 139.87-139.96, violates double jeopardy.
Holding: Possession with intent to deliver is not a lesser included offense of the drug tax stamp law, and a defendant may therefore be convicted of both. ¶39-41.
UPDATE: The 7th Circuit has since held that the old tax stamp law is sufficiently punitive, at least in regard to cocaine, to trigger double jeopardy analysis; and, under facts of the case double jeopardy was violated -- defendant's assets ordered frozen and seized to pay tax assessment on cocaine; ensuing possession with intent prosecution and conviction amounted to multiple punishment forbidden by double jeopardy clause. Stephen Dye v. Frank, 03-1368, 1/27/04. This particular issue -- whether tax assessment may be regarded as punitive was not resolved by either Hall or Jones. Nor does it appear that the post-Hall legislative amendment addressed this particular problem.

Prevailing Wage Law -- § 66.293 -- Federal Preemption, ERISA
State v. Bruce Phillips, 2000 WI App 184, 238 Wis.2d 279, 617 N.W.2d 522
For Phillips: Jorge A. Gomez; Mitchell W. Quick
Issue: Whether the prevailing wage law, § 66.293, is preempted by federal ERISA legislation.
Holding:: Though ERISA preempts any state laws that "relate to" employee benefit plans, the prevailing wage law does not fall in that category, largely because it requires only payment of wages, not fringe benefits, and is "indifferent" to ERISA coverage. More particularly, § 66.293 "neither singles out ERISA plans for special treatment nor depends on their existence as an essential part of its operation." ¶30.
Failure to Comply with Sex Offender Registration, § 301.45 – Applicable Although Underlying Crime (False Imprisonment of Minor Victim) Lacks Sexual Element
State v. James W. Smith, 2009 WI App 16, PFR granted 3/18/09
For Smith: Erica L. Bauer
Issue/Holding: The § 301.45 reporting requirement applies to any violation of false imprisonment of a minor not the defendant’s child; the court now rejects due process and equal protection challenges to this scheme.
The court’s fairly mechanical analysis need not be set forth in any detail. The court summarily rejects the idea that “fundamental liberty interests” (reputation, privacy, travel) are implicated for due process purposes; and discerns a rational basis for distinguishing between parents and nonparents of minor victims (“the abduction of a child by a parent implicates a much different policy concern than abduction by a stranger, and it is therefore reasonable and rational for the legislature to recognize the distinction in offenders”). The court’s conclusion might well be “correct” (which is to say, defensible), then again its very superficial treatment and cavalier dismissal of underlying concerns leave much to be desired. For one thing, although the court doesn’t acknowledge as much, a certain amount of contrary authority exists, e.g., State v. Robinson, 873 So. 2d 1205 (FL 2004):
Our holding today is narrow. We hold only that under the facts of this case, where the State concedes that the crime contained no sexual element and the circumstances of the crime conclusively belie any sexual motive, the designation of the defendant as a sexual predator—which then invokes the attendant statutory requirements and prohibitions—based solely on his conviction for kidnapping a minor not his child violates the defendant’s right to due process of law.
Nonetheless, the court’s principal point—“the purpose of the statute … is protecting the public—specifically, children. The goal is not to identify individuals guilty of a crime with a sexual element”—appears to be correct, at least as a matter of legislative intent. For a detailed analysis on the background of what is in effect a uniform statute, see People v. Cintron, 827 N.Y.S.2d 445, 448 (N.Y. Sup. Ct. 2006), mentioned by the court in passing (¶11) but without any discussion; the case is worth at least a quick read for an understanding of the statute’s background. Lost in all the posturing is the very real possibility, which the court nonchalantly waves off, ¶7 n. 4, that some of the harsher outcomes (such as severe restrictions on residency) simply have no efficacy: “However, a mere reporting requirement does not prevent relocation. If local rules prohibit relocation, the appropriate challenge would be to those rules, not Wis. Stat. § 301.45.”
Domestic Abuse, § 813.12(1) -- "Household Member"
Annette Petrowsky v. Brad Krause, 223 Wis. 2d 32, 588 N.W.2d 318 (Ct. App. 1998)
For Krause: Russell D. Bohach
For Petrowsky: Thomas McAdams, Pro Bono Project
The issue on appeal is who constitutes a "household member" under the domestic abuse statute. This involves the construction of a statute. Interpretation of a statute is a question of law that appellate courts review without deference to the trial court. See State ex rel. Reimann v. Circuit Court, 214 Wis.2d 604, 613, 571 N.W.2d 385, 387 (1997). The relevant statute here is § 813.12(1)(c), Stats., which defines a "household member" for the purposes of domestic abuse restraining orders and injunctions. The domestic abuse statute only applies to abuse by adult family members or adult household members. See § 813.12(1)(a). As stated above, the statute defines a household member as "a person currently or formerly residing in a place of abode with another person." Section 813.12(1)(c).


The statute uses the word "reside" to define the actions of a household member. The plain meaning of reside implies a continuous arrangement. ...

In accordance with the clear language of the statute, in order for Petrowsky to meet her initial burden, the facts must show that the parties were in a continuous living arrangement. ... Their summer excursions, while perhaps frequent, did not amount to a domestic living arrangement. The burden was on Petrowsky to show that the parties were living together. We disagree with the trial court's conclusion that she met this burden. Thus, the trial court erred in issuing a domestic abuse injunction under § 813.12(4), Stats. We reverse.1

Harassment Injunction (§ 813.125(4)): Not Lesser Offense of Harassment (§ 947.013(1r))
State v. Michael A. Sveum, 2002 WI App 105, PFR filed 5/10/02
For Sveum: Ian A.J. Pit
Issue/Holding: Violation of harassment injunction isn't lesser offense of harassment, each requiring proof of distinct element. ¶¶23-28. (Court stressing, in particular, that for harassment defendant need only be "subject" to injunction but not actually violate it. ¶25.)
Harassment Injunction, § 813.125 -- Travel Restrictions -- "Banishment" from Victim's County
Predick v. O'Connor, 2003 WI App 46
Issue/Holding: Banishment from victims' county, under harassment injunction, § 813.125, upheld:
¶18 Thus, banishment is not a per se constitutional violation. As the previous discussion demonstrates, there is no exact formula for determining whether a geographic restriction is narrowly tailored. Each case must be analyzed on its own facts, circumstances and total atmosphere to determine whether the geographic restriction is narrowly drawn.

¶19 We therefore turn to the facts of this case. Here, we have an individual who has twice used a vehicle as a dangerous weapon in Walworth county and who has repeatedly demonstrated that a standard, more narrowly tailored, order will not deter her from harassing and endangering the lives of three innocent victims and their families, all of whom live in the county. The evidence in the record demonstrates that while she does not live or work in the county, Margaret frequently rents cars to drive around Walworth county. Further, her statements on the record indicate an absolute fixation on Tina and Pamela and an unwillingness to accept any possibility other than that she has been wronged and has a right to follow, threaten, harass and endanger these two women and their families. In fact, the trial court found that if Margaret were even in Walworth county, she would be tempted to prey upon her victims. Hence, Margaret poses a constant and dangerous threat any time she is present in the county.

¶20 Here, we also have three people who, as the record evidences, are victims for no apparent reason and have been driven to desperation by Margaret’s continuous harassment. These innocent victims deserve to be able to live their lives free from the constant fear of being tormented and attacked. The geographic restriction the trial court imposed will provide them with a margin of territorial safety in which they can live in peace.

Representations Depicting Nudity, § 942.09(2)(am)1 – Elements, Generally
State v. Mark T. Jahnke, 2009 WI App 4
For Jahnke: Harold L. Harlowe; Michael J. Herbert
¶5        Jahnke entered a plea to the recording crime defined in Wis. Stat. § 942.09(2)(am)1. That crime has four elements:
(1)        the defendant recorded a person in the nude;

(2)        the recording is without the nude person’s knowledge and consent;

(3)        the depicted person was nude in a circumstance in which he or she had a “reasonable expectation of privacy”; and

(4)        the defendant knew or had reason to know that the nude person did not know of and did not consent to the recording.

State v. Nelson, 2006 WI App 124, ¶14, 294 Wis. 2d 578, 718 N.W.2d 168; see also Wis JI—Criminal 1396. [4]
Representations Depicting Nudity, § 942.09(2)(am)1 – Elements– Expectation of Privacy – Applicability to Subject Consensually Nude in Another’s Presence
State v. Mark T. Jahnke, 2009 WI App 4
For Jahnke: Harold L. Harlowe; Michael J. Herbert
Issue/Holding: Secretly videotaping another without consent, though that person knowingly exposes herself nude to the video taper, supports criminal liability:
¶6        Jahnke contends that the facts do not support the third element, the expectation of privacy element. He reasons that his girlfriend had no reasonable expectation of privacy because she knowingly and consensually exposed her nude body to him while he was secretly videotaping her. In Jahnke’s view, the only pertinent question for purposes of the privacy element is whether his girlfriend had a reasonable expectation that Jahnke would view her nude at the time of the recording.

¶7        The State argues that there is a more precise question for purposes of the privacy element that is geared to the specific privacy interest the statute is designed to protect. According to the State, the question is whether the nude person had a reasonable expectation, under the circumstances, that he or she would not be recorded in the nude. We agree with the State.

The court previously, in State v. Nelson, 2006 WI App 124, ¶21, said that this element “requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others[.]” The dissent says (¶28), more than a little plausibly, that this holding wasn’t a “narrow” one but, rather, the product of “numerous pages of inquiry and analysis” aimed at providing a definition meaningful to “future readers of the statute.” The majority disagrees, leading the dissent to all but accuse it of a result-oriented conclusion:
¶24      I do not join in the majority’s opinion because it is an attempt to avoid the requirement of Cook v. Cook, 208 Wis.  2d 166, 190, 560 N.W.2d 246 (1997), that “the court of appeals may not overrule, modify or withdraw language from a previously published decision of the court of appeals.” [6] The majority acknowledges that it may not hold that the meaning we gave to “reasonable expectation of privacy” in the predecessor to Wis. Stat. § 942.09(2)(am)1. (2007-08) [7] in State v. Nelson, 2006 WI App 124, ¶¶19-21, 294 Wis.  2d 578, 718 N.W.2d 168, is incorrect, and therefore it cannot use the words “overrule, modify or withdraw.” Majority, ¶20. Instead, the majority uses the word “incomplete” to avoid the meaning we previously gave to the statute. Majority, ¶20.

¶25      Thus, if the court of appeals uses the word “incomplete” to differentiate one of our published opinions, we can avoid Cook in most circumstances. While this is ingenious wordsmithing, it is not the way a hierarchical legal system should operate. Though we are not saying “that was then and this is now,” the result is the same.

By the way, ¶24 n. 6 is a gem, dryly remarking that the court of appeals has devised transparent ways to avoid the stricture of Cook, and adducing by way of example an instance of “distinguishing prior published opinion though [the] facts are identical.” Hard to disagree with the dissent, but it does make one wonder why there was no argument that the statute, as precedentially construed by Nelson, failed to provide sufficient notice to Jahnke that his conduct came within it. Too late now—and too late, certainly, for anyone else now that the court has broadly construed the element.
Representations Depicting Nudity, § 942.09 – Element of “Reasonable Expectation of Privacy,” Construction
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
¶19      The phrase “reasonable expectation of privacy” is not defined in Wis. Stat. § 942.09, nor are the individual words. However, the words “expectation of privacy” have a common meaning that can be ascertained with reference to a standard dictionary. …

¶21      If we apply the common meanings of “expectation” and “privacy” and the well-established meaning of the term “reasonable,” Wis. Stat. § 942.09(2)(a) requires that the person who is depicted nude is in a circumstance in which he or she has an assumption that he or she is secluded from the presence or view of others, and that assumption is a reasonable one under all the circumstances, meaning that it is an appropriate one under all the circumstances according to an objective standard. We conclude this is a reasonable construction of “reasonable expectation of privacy” because it employs the common and well-established meanings of the words.

The court goes on to reject on both policy grounds, ¶¶22-25, and also as a matter of legislative history, ¶¶26-33, Nelson’s argument that fourth amendment case law construction of “reasonable expectation of privacy” is relevant to this statutory phrasing.
Representations Depicting Nudity, § 942.09 – Sufficiency of Notice of Element of “Reasonable Expectation of Privacy”
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue: Whether the phrase “reasonable expectation of privacy” in § 942.09 is unconstitutionally vague, where the conduct involved videotaping women in a second-floor bathroom in their own house. Holding:
¶39      However, this court and the supreme court have already concluded in several different contexts that the term “reasonable” does not render a statute unconstitutionally vague. …

¶44      Following the reasoning of these cases, we conclude that use of “reasonable” to describe “expectation of privacy” in the context of Wis. Stat. § 942.09 provides sufficient notice of the conduct proscribed by the statute. Use of the word “reasonable” in § 942.09 requires that a person refrain from videotaping a person who is nude, as specifically defined in Wis. Stat. § 948.11(1)(d), without the person’s knowledge and consent, when that person is nude in circumstances in which the person has an expectation of privacy that is reasonable under the circumstances. The use of the word “reasonable” means that Nelson is not at the mercy of people who are nude in situations that a reasonable person would not expect to be private; rather, Nelson can determine, based on the circumstances he himself was aware of and able to observe, whether a reasonable person would have an expectation of privacy in the circumstances in which he videotaped the women nude, without their knowledge and consent, in their bathroom.

¶45      We recognize that in Wis. Stat. § 942.09(2)(a), the word “reasonable” does not modify terms describing the conduct of the defendant, but instead modifies the victim’s expectation of privacy. However, as the court in Baumann explained, reasonableness as applied to the person who is disturbed by the defendant’s conduct—in this sense, the victim—is in essence the same as applying the reasonableness standard to the defendant’s conduct ….

The court notes that “what is reasonable in the circumstances of a particular case is the type of common-sense determination that juries routinely make,” ¶47 and id., n. 9 (string-citing various examples). It ought not be forgotten that this principle applies defensively as well as offensively: self-defense, for example – see, e.g., State v. Jones, 147 Wis.2d 806, 816, 434 N.W.2d 380 (1989) (“This court has recognized that the determination of reasonableness is ‘peculiarly within the province of the jury,’” quoting State v. Mendoza, 80 Wis.2d 122, 156, 258 N.W.2d 260 (1977)). Further, Nelson’s challenge is limited to “only the facts in this case,” ¶45 n. 8—and taping into someone’s bathroom probably doesn’t present a sympathetic claim for lack of notice that your invading their privacy.
Representations Depicting Nudity, § 942.09 – Sufficiency of Evidence
State v. Mark E. Nelson, 2006 WI App 124, PFR filed 6/22/06
For Nelson: Robert R. Henak; Amelia L. Bizzaro
Issue/Holding: The evidence was sufficient to sustain conviction under § 942.09 for videotaping into a bathroom notwithstanding that the window was open, under the following circumstances:
¶53      Applying this standard, we conclude the evidence was sufficient for the jury to find Nelson guilty of violating Wis. Stat. § 942.09 beyond a reasonable doubt, and, specifically, that the women videotaped had a reasonable expectation of privacy. If a jury accepted the testimony of the women and the investigating officers, there was evidence that the bathroom was on the second floor of the building; Nelson’s house appeared vacant and actually was generally vacant that summer; there was a tree, located between Nelson’s house and their own house, that blocked the view of the bathroom window from the ground during the summer; over ten feet separated Nelson’s house from the women’s house, and the women were located four or five feet from the window when Nelson videotaped them. In addition, given the detail visible on the videotapes, a reasonable jury could infer that Nelson was using a zoom feature to see the women and that he would not have been able to see them in any significant detail otherwise. Considering this evidence together, we conclude it is sufficient for a jury to find beyond a reasonable doubt that, despite opening the window, the women had a reasonable expectation of privacy when they were videotaped.
Gambling, § 945.03(5) -- Constitutionality -- Vagueness Challenge
State v. Lester E. Hahn, 221 Wis. 2d 670, 586 N.W.2d 5 (Ct. App. 1998)
For Hahn: Bruce Elbert
Issue/Holding: The meaning of "gambling machine" is sufficiently well-understood as to survive a vagueness challenge. (The court reserves whether "contrivance" might be vague when applied to facts not raised by this case.)
Gambling, § 945.03(5) -- Sufficiency of Evidence -- Expert Testimony Unnecessary
State v. Lester E. Hahn, 221 Wis. 2d 670, 586 N.W.2d 5 (Ct. App. 1998)
For Hahn: Bruce Elbert
We reject Hahn's argument that expert testimony was necessary to establish that these video poker machines were gambling machines. Although Hahn refers to cases from other jurisdictions in which technical aspects of the machines' functions were at issue, he does not relate those cases to any disputed issue here. The two specific aspects of the definition that Hahn claims were not proved were that there was a reward and that chance predominated over skill. Expert testimony is necessary only when there are unusually complex or esoteric matters beyond the knowledge of the average juror. Weiss v. United Fire & Cas. Co., 197 Wis.2d 365, 382, 541 N.W.2d 753, 758-59 (1995). We are not persuaded that either of these contested issues as they present themselves in this case involve facts and circumstances beyond the common knowledge or ordinary experience of the average juror.