Even though the court of appeals has previously upheld a banishment order in Nienhardt, the analysis in this case bears little resemblance to that case.
Although the court stated, after discussing the decision in Nienhardt, "Thus, banishment is not a per se constitutional violation," there was no constitutional analysis in Nienhardt.
The court acknowledged in Nienhardt that the banishment order impinged on fundamental constitutional rights. However, conditions of probation frequently do, and rarely is that an impediment to their imposition.
In Margarets case, the court acknowledged, "we did not specifically address each of Nienhardts constitutional claims." Instead, the decision in Nienhardt consists almost entirely of routine examination of the validity of the condition whether it was reasonably related to rehabilitating the defendant and protecting the community.
In contrast, Margarets case entailed lengthy discussion of the constitutional issues.
What makes the decision most noteworthy, however, is that the case was a civil one, rather than criminal. In fact, none of the cases cited by the court from other jurisdictions was a civil case, either; every one concerned conditions of probation, or similar orders emanating from a criminal case.
Despite the courts approval of the banishment, however, it is likely that other victims of stalking will frequently have difficulty obtaining similar orders.
Here, the stalker neither lived nor worked in Walworth County, while among the cases cited by the court with apparent approval was an Alaska case which held banishment from a geographical area impermissible, where the defendant both lived and worked in that area.
Where stalkers live and work in the same geographic area as their victims, as is commonly the case, there will be authority to distinguish the decision here.
Furthermore, even where the stalking is just as egregious as in this case, the sheer length of time that it continued here may provide grounds for distinguishing it in future harassment actions.
As a final note, attention should be paid to the citations to unpublished decisions from other jurisdictions. In a footnote, the court concluded that Rule 809.23(3), which prohibits the citation of unpublished court of appeals decisions, except in limited circumstances, only applies to unpublished Wisconsin Court of Appeals cases, but permits courts and parties to cite unpublished cases from other states appellate courts.
This footnote may well be considered by the Wisconsin Supreme Court in its current consideration of a proposal to allow citation to some Wisconsin unpublished decisions as persuasive authority.
One of the most frequently given arguments in opposition to the proposed change that it would place less wealthy parties at an unfair disadvantage vis-a-vis parties with unlimited Westlaw access is even stronger when applied to unpublished court of appeals cases from foreign jurisdictions.
– David Ziemer
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David Ziemer can be reached by email.