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Wisconsin Supreme Court opinion round-up, June 20-24

By: Ali Teske//June 24, 2022//

Wisconsin Supreme Court opinion round-up, June 20-24

By: Ali Teske//June 24, 2022//

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Touching on subjects from sexual assault charges to disputes over construction liens, the Wisconsin Supreme Court released six opinions from its caseload this week. Of those, five reversed court of appeals decisions.

Reversed

2019AP1565-CR State of Wisconsin vs. Ryan Mulhern

In a review of the court of appeals 2020 decision to reverse the Pierce County Circuit Court’s conviction of Ryan Mulhern for one count of second-degree sexual assault and one count of misdemeanor bail jumping, the Supreme Court majority reversed the appeals court decision. Justices Pat Roggensack, Ann Walsh Bradley, Rebecca Dallet, Brian Hagedorn and Jill Karofsky made up the majority opinion while Justices Annette Ziegler and Rebecca Grassl Bradley filed a concurring opinion.

Following a trial and charges surrounding a November 2016 sexual encounter between a “friend” and Mulhern in which the “friend” alleged Mulhern raped her, a jury convicted Mulhern of second-degree assault, acquitting him of a strangulation charge. Based on the terms of a plea agreement, he was found guilty of misdemeanor bail jumping.

The court of appeals heard Mulhern’s appeal and reversed the conviction on the grounds  that the state had not met its burden to prove beyond a reasonable doubt that a rational jury would have convicted Mulhern absent the circuit court’s error in admitting a challenged portion of the plaintiff’s testimony.  The testimony in question was that of a DNA analyst who tested a vaginal swab and found the presence of male DNA, but concluded that there was not a large enough sample to determine whose DNA it was, testifying that a body’s natural processes will remove foreign DNA deposited into a vagina after a period of five days following an assault. The plaintiff testified she had not had any other “sexual conduct” in the five day window of the assault.

The Supreme Court’s decision included “that the broad language used to define ‘sexual conduct’ in the rape shield statute’s prohibition includes evidence concerning the victim’s lack of sexual intercourse.” The majority opinion concluded that the court’s error in admitting questionable testimony was harmless and a jury would have still found Mulhern guilty beyond a reasonable doubt. Judge Joseph Boles of Pierce County presided over the original conviction trial.

2019AP1876-CR State of Wisconsin vs. Donald Coughlin

The majority opinion delivered by the court in this case included justices Walsh Bradley, Ziegler, Roggensack, Grassl Bradley and Hagedorn. Justice Dallet dissented and Justice Karofsky did not participate.

The Supreme Court reversed the court of appeals decision to reverse Donald Coughlin’s convictions for 15 counts of sexual assault, 14 of which were first-degree and second-degree sexual assault of a child and one count of repeated sexual assault of a child.

In 2009, Coughlin’s older stepson, younger stepson and nephew came forward as adults and alleged repeated sexual abuse during the course of their childhoods. All three provided similar testimony that the abuse would take place at the Coughlin home, during deer shining trips, in Coughlin’s truck and at the firehouse Coughlin was chief of.

The court of appeals affirmed Coughlin’s convictions for the six counts involving the older stepson and reversed his convictions as to the remaining counts involving the nephew and younger stepson. The Supreme Court majority concluded that there was sufficient evidence for the jury to find Coughlin guilty on all 15 counts at issue, reversing the appeals decision.

The original case was heard in Juneau County Circuit Court before Judges James Evenson and Stacy Smith.

2019AP2095 Great Lakes Excavating, Inc. vs. Dollar Tree Stores, Inc, AMCON Design and Construction Co., LLC, Riverworks Development Corporation and John H. Burkemper

The majority opinion was delivered by Justice Grassl Bradley with Justices Ziegler, Roggensack, Hagedorn and Karofsky joining. Justices Dallet and Walsh Bradley joined in filing a dissenting opinion.

The high court ruled to reverse both the original Milwaukee County Circuit Court ruling and the court of appeals affirmation.

In this dispute over construction lien waivers, Riverworks contracted with AMCON Design and Construction Co. to construct a commercial building and parking lot in Milwaukee called the Riverworks City Center project with Dollar Tree Stores slated as the anchor tenant. AMCON subcontracted with Great Lakes to perform excavating work for the installation of a parking lot for a contract amount of $37,165. The subcontractor ended up performing additional work due to poor soil quality, altering the amount AMCON owed to a total of $222,238. After completing its work on the Project, Great Lakes invoiced AMCON for the $222,238.00 and, when no payment was received, served Riverworks and Dollar Tree with a notice of intent to file a claim for a construction lien.

Counsel for AMCON presented Great Lakes Owner Duwayne Bruckner with a “Waiver of Lien to Date” listing a payment for $33,448. Bruckner crossed out “to Date,” wrote “Partial” and initialed the form. Following unsuccessful efforts to receive payment for the outstanding amount due, Great Lakes filed a “Subcontractor Claim for Lien” and sued for the balance of $188,790.00. Judge William Pocan of Milwaukee County granted Riverworks and Dollar Tree’s motion for partial summary judgement because “”[m]erely changing the title of the lien waiver, without additional explanation, does not No. 2019AP2095 5 specifically and expressly limit the waiver to apply to a particular portion of such labor, services, materials, plans, or specifications.” The court of appeals affirmed this decision.

Reversing both decisions and remanding the circuit court for further proceedings, the supreme court ruled that Bruckner’s modifications to the document  “‘specifically and expressly’ restricts the lien waiver to ‘a particular portion of such labor, services, materials, plans, or specifications’—the $33,448 received in consideration of the waiver.’”

2019AP1033 Sauk County vs.  S. A. M.

The majority opinion delivered by Justice Karofsky, the Supreme Court upheld a recommitment order for S.A.M., involuntarily committed by Sauk County in January 2018. Justices Walsh Bradley, Hagedorn, and Dallet joined in the majority while Justice Ziegler filed a concurring/dissenting opinion in which Justices Roggensack and Grassl Bradley joined.

Before the initial commitment order expired, Sauk County petitioned to extend S.A.M.’s involuntary commitment with observations from a psychiatrist indicating he had bipolar disorder and had psychotic tendencies. S.A.M. filed a motion the day before the recommitment trial. Judge Patrick Taggart presided over the case and discussed a motion regarding the type of evidence of “dangerousness” Sauk County intended to present arguments in favor of his recommitment. During the trial, S.A.M. testified he would stay medication-compliant following his commitment and agreed that the medication benefited him in managing his mental illness. The circuit ultimately ruled in favor of a six-month commitment order, including a ban on firearms.

Through a chain of events delaying the process, S.A.M.’s appeal had been expired for six months by the time the court of appeals received his record. Two years after the circuit court issued the recommitment order, the court of appeals made its Sept. 2020 decision, dismissing it as moot.

The majority opinion of the Supreme Court concluded, “Though S.A.M.’s recommitment order expired, the ongoing collateral consequences causally related to it could be practically affected by a favorable decision, rendering his appeal not moot. The merits of his appeal, however, do not warrant vacating the recommitment order. As such, we reverse the court of appeals’ dismissal of S.A.M.’s appeal but affirm the circuit court’s recommitment order.”

2020AP878-CR State of Wisconsin vs. Avan Rondell Nimmer

In an opinion delivered by Justice Grassl Bradley, the court ruled unanimously against Avan Rondell Nimmer, who was taken into police custody in 2019 after officers observed him walking about 100 feet from the site of a ShotSpotter report near his home in Milwaukee.

Nimmer argued that officers had no reason to stop him, contending that ShotSpotter detects gunshots but doesn’t identify shooters and he was just out looking for his girlfriend. The court of appeals agreed with him, but the Supreme Court reversed that ruling, finding that officers had reasonable suspicion to detain Nimmer in part because ShotSpotter is reliable, he was in the area minutes after the technology detected gunfire and he appeared to be hiding a weapon.

Judge Glenn Yamahiro of Milwaukee County Circuit Court presided over the original hearing where Nimmer was charged with being a felon in possession of a gun. Judge Yamahiro denied Nimmer’s motion to suppress any evidence related to the investigative stop. The court of appeals reversed that decision.

Justice Dallet, joined by Justices Walsh Bradley and Karofsky, wrote a concurrence that agreed police had reasonable suspicion to stop Nimmer but argued that the majority opinion relied too heavily on the ShotSpotter alert.

Harm Venhuizen of Associated Press/Report for America contributed to this story.

Affirmed

2019AP1007 Container Life Cycle Management, LLC vs. Wisconsin Department of Natural Resources

Affirming both the circuit court and court of appeals’ decisions to dismiss a judicial review, the Supreme Court majority opinion was delivered by Justice Walsh Bradley in which Justices Roggensack, Dallet, Hagedorn and Karofsky joined. Justice Grassl Bradley filed a dissenting opinion, Justice Ziegler joining.

Container Life Cycle Management refurbishes used chemical containers, with a facility in St. Francis that receives and cleans industrial containers such as steel and plastic drums. The DNR regulates CLCM through the issuance of air permits under the federal Clean Air Act, Wisconsin’s analogous air pollution statutes and related DNR regulations regarding emissions of air contaminants from stationary sources.

In 2017, both DNR and the United States Environmental Protection Agency notified CLCM of a violation of an air permit it had been issued in 2014. The source of the violation was odors and air emissions from the St. Francis facility. On June 7, 2018, CLCM submitted a revised construction permit application. In addition to the regenerative thermal oxidizer, the revised application sought the installation of a new emissions source, removal of existing equipment, and the revision of existing permit emission limits. CLCM requested a “commence construction waiver” for the regenerative thermal oxidizer and new emissions source that would allow construction to begin before the permit was issued. The DNR responded to the application on June 26 and denied the commence construction waiver. CLCM did not seek judicial review of this letter, but submitted revised calculations and technical memoranda to demonstrate the facility was not a major source of prevention of significant deterioration (PSD) of air quality that was subject to specific construction permit requirements for pollution control.

The DNR responded with a letter on December 14 and found the application with revised calculations incomplete, disagreeing with CLM’s assertions that the facility was not a major source and that it was not subject to an after-the-fact PSD permit. According to the court document, both DNR letters indicated that they were “‘not a complete review’ of the construction permit application or operation permit application and that ‘additional information or revisions of the application materials may be needed as the review proceeds.’” A December 26 letter from the DNR indicated “‘that there was reason to believe the facility should have been permitted as a PSD major source since at least 2014’ and again requested that CLCM submit the information requested in both the June and December 14 letters.”

CLCM filed a petition for judicial review of both December letters in January 2019. The DNR motioned to dismiss, for which the Judge Stephanie Rothstein of Milwaukee County Circuit Court granted. CLCM moved for reconsideration which Milwaukee County denied and the court of appeals affirmed the original decision.

The Supreme Court took the case and a majority opinion ruled that the December 14 letter did not adversely affect CLCM’s substantial interests. As a result, the letter is not subject to judicial review and the circuit court properly dismissed CLCM’s petition.

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