On Point

Robert Zellner v. Herrick, et al., 2009 WI 80, on certification

Issue/Holding:

¶3        …  In this court’s standard order accepting the certification, we stated that “the appeal is accepted for consideration of all issues raised before the court of appeals.” See State v. Stoehr, 134 Wis. 2d 66, 70, 396 N.W.2d 177 (1986) (“When this court grants direct review upon certification, it acquires jurisdiction of the appeal, which includes all issues, not merely the issues certified or the issue for which the court accepts the certification.” (citing Wis. Stat. § 808.05(2) (1983-84))).

The court indeed resolves the appeal on a ground not raised by the certification (timeliness of the notice of appeal).

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue/Holding:

¶59      Fernandez additionally argues that the lack of advance written notice of the Dalka and CNR claims violated his due process rights. In response, the State contends that Fernandez’s due process rights were protected by the statute, which provides for “an opportunity to be heard, personally or through counsel, to present evidence and to cross-examine witnesses called by other parties.” Wis. Stat. § 973.20(14)(d).

¶60      We agree with the State. The statute leaves it to the court to “conduct the proceeding so as to do substantial justice between the parties according to the rules of substantive law and may waive the rules of practice, procedure, pleading or evidence . . . .” Id. The statute explicitly notes that “[d]iscovery is not available except for good cause shown. . . .” Id. Here, Fernandez was given the opportunity to have counsel challenge the claims presented and to cross-examine the witnesses. Given the aims of the restitution statute——to balance the needs of the victim to recover losses without complicated legal barriers against the needs of the defendant to ascertain the validity of the claims——the legislature clearly elected to give the circuit court a great deal of discretion in conducting a restitution hearing. We should not impose arbitrary deadlines where the legislature has not done so and where the defendant had a full opportunity to challenge the claims.

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue/Holding:

¶61      Fernandez says the court erred by ordering full restitution to two insurance companies because a court is authorized to do so only where justice requires. Fernandez says that justice does not require a man who washes dishes for a living to reimburse insurance companies worth billions of dollars. The State points out that restitution is a discretionary decision of the circuit court and that the statute permits restitution to insurance companies. ^[31]

¶62      It is within the court’s discretion to award restitution to insurers. Evidence was submitted as to the costs which both insurers had borne for the victims. ^[32] The circuit court appears to have applied the correct legal standard and to have arrived at a logical interpretation of the facts in ordering restitution from Fernandez. The defendant’s ability to pay was clearly considered by the circuit court. Such an award should not be reversed. There is no evidence that the court applied the wrong legal standard or did not ground its decision on a logical interpretation of the facts when it decided justice required reimbursing an insurer who has compensated a victim for a loss.

 State v. Michael Scott Long, 2009 WI 36, affirming in part and reversing in part unpublished opinion
For Long: Joseph L. Sommers

Issue/Holding:

¶43 Long did not advance this statutory interpretation argument at the circuit court or at the court of appeals. Normally, under such circumstances, we would conclude that an issue neither raised nor briefed is waived. Long’s sole recourse would be to file a motion for post-conviction relief, perhaps alleging ineffective assistance of counsel.¶44 Nonetheless, waiver is merely a rule of judicial administration. State v. Moran, 2005 WI 115, ¶31, 284 Wis. 2d 24, 700 N.W.2d 884. Waiver does not limit this court’s authority to address unpreserved issues, particularly when doing so can clarify an issue of statewide importance. Clean Wis., Inc. v. Pub. Serv. Comm’n, 2005 WI 93, ¶¶270-71, 282 Wis. 2d 250, 700 N.W.2d 768. The proper interpretation of the persistent repeater statute is an issue of great importance in Wisconsin law. In this case, the circuit court, the State, and the defense attorneys misinterpreted the persistent repeater statute, and the court mistakenly sentenced Long to life imprisonment without the possibility of parole. Under these circumstances, we decline to conclude that this argument is waived.

Further authority re: non-jurisdictional nature of waiver rule: State v. David C. Polashek, 2002 WI 74, ¶25 (“… The court of appeals correctly noted that, although the general rule is that issues not raised in the circuit court are deemed waived, the rule is not absolute and does not relate to the appellate court’s jurisdiction. See Apex Elec., 217 Wis. 2d at 384. Because the issue involved a question of law that had been fully briefed by both parties, and was of sufficient public interest to merit a decision, the court of appeals exercised its discretion to address the issue…..”); State v. Peter R. Cash, 2004 WI App 63, ¶28, n. 11 (“While the trial court record supports the State’s waiver argument, we nevertheless address the merits of the issue ….”).

State v. Alberto Fernandez, 2009 WI 29, on certification
For Fernandez: Eileen A. Hirsch, Shelley M. Fite, SPD, Madison Appellate

Issue: Whether the holding of State v. Mark M. Loutsch, 2003 WI App 16, ¶25, “that the court order at sentencing an amount of restitution that it determines the defendant will be able to pay before the completion of the sentence,” is valid.

Holding:

¶2        On the question involving restitution ordered during a sentence or probation term, we hold that the statute, when read as a whole, clearly permits a circuit court to order full restitution so long as it properly considers the defendant’s ability to pay in setting the total restitution and, where applicable, in setting the amount that must be paid during any probation, parole, or extended supervision. The statute gives no indication that that power is curtailed when probation is involved. In fact, it is significant that in providing for converting unpaid restitution to civil judgments, the legislature, it seems clear, recognized that there would be circumstances where all the necessary restitution amounts often would not and could not be paid before the completion of the sentence or probationary period.

¶3        We therefore answer the certification from the court of appeals by holding that when a court has considered the defendant’s ability to pay in setting restitution, the length of the term of probation or of the sentence does not have any limiting effect on the total amount of restitution that may be ordered. Here the circuit court considered the defendant’s ability to pay in ordering restitution, as the statute requires, and because the circuit court did not err in considering all the evidence presented at the restitution hearing or in awarding restitution to the victims in accord with the statute, we affirm the circuit court’s order.

…

¶5        … Loutsch is incorrect when it says the defendant’s ability to pay during the sentence is what the statute requires the court to consider. ^[7] The portion of Loutsch that has been interpreted as limiting restitution in that manner is overruled.

Fernandez’ argument that “where probation is ordered, the statute caps restitution at the amount that the defendant has the ability to pay within the period of probation” is, the court concedes, supported by statutory text, ¶¶27-29. Alas, “such technical or superficial reading of the statute” can’t stand up to the court’s “careful reading,” ¶30.Now for a bit of a tangent, the following little nugget:

¶46      The fact that restitution is provided “in addition to any other penalty authorized by law” (Wis. Stat. § 973.20(1r)) lends support to the view that restitution was viewed by the legislature as a distinct penalty and suggests that in the absence of any indication in the statute that restitution is intended to limit the sentence or the sentence is intended to limit restitution, we should not infer such limitations.

Recall that some years back, the court of appeals’ reading of that provision led to rejection, as “too simplistic,” the idea that this “penalty” is “potential punishment”—thus, exposure to restitution need not be made part of a guilty plea colloquy, State v. Dugan, 193 Wis. 2d 610, 534 N.W.2d 897 (Ct. App. 1995). Granted, we are now a bit afield from the immediate question in Fernandez, but only in a technical or superficial sense. As the court’s own stark reference to the “distinct penalty” that is restitution indicates, the rationale of Dugan is increasingly indefensible. Keep in mind, too, the obvious: you give up your right to a jury trial on damages when a restitution order is entered, notwithstanding Wis. Const. Art. I § 5 (“The right of trial by jury shall remain inviolate, and shall extend to all cases at law without regard to the amount in controversy[.]”). Shouldn’t a guilty plea defendant at least know that this non-punishment penalty will be a consequence of the plea? And so it comes to pass that a dishwasher making $5.15 per hour must pay $68k restitution during a 2-year term of probation—but he wasn’t entitled to know about this consequence of his plea before entering it. Careful reading led to overturn of Loutsch; why not the same treatment for Dugan?

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The identity theft charge against Baron, sending emails from Fischer’s account without authorization and with intent to harm his reputation as a government official, survives strict scrutiny analysis under the First Amendment (freedom of speech clause):

¶45      To survive strict scrutiny, the State has the burden to show that the “‘regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'” Boos, 485 U.S. at 321 (citation omitted).

…

¶48      In the case at hand, Baron concedes that the State has a compelling interest in preventing identity theft. ^[13] He, however, asserts that the statute is not narrowly tailored to achieve that interest because it eliminates Baron’s First Amendment right to defame a public official with true information. The State, in turn, argues that the statute survives strict scrutiny because the statute is narrowly tailored in that it applies only when the defendant intentionally uses an individual’s personal information to harm that individual’s reputation. We agree with the State and conclude that this is one of those “rare cases” that a government regulation survives strict scrutiny. See Burson, 504 U.S. at 211 (stating “we reaffirm that it is the rare case in which we have held that a law survives strict scrutiny”). As applied to Baron, the statute is narrowly tailored to achieve the government’s compelling interest.

Long and short of it is that Fischer could have exercised his right to defame a public official without falsely assuming that official’s identity, ¶¶49-52. Justice Prosser’s concurrence makes the same point: sending the documents obtained from Fischer’s computer from Baron’s own computer wouldn’t violate this statute; nor would sending them anonymously, ¶80. Note that truthfulness of the information disseminated is simply irrelevant; focus, instead, is in the way the information was disseminated, ¶¶53-54.Bit of back ground. Baron was an EMT, working under Fischer, the county’s Emergency Medical Services director. Baron allegedly accessed Fischer’s computer without authorization, obtained emails showing an extramarital affair, then sent those emails to various people from Fischer’s own account. Fischer committed suicide the next day. Baron allegedly admitted to this conduct, explaining he wanted others to see that Fischer wasn’t “golden,” ¶¶4-5. If you don’t live in Jefferson County but this still sounds vaguely familiar, you might be confusing it with a much more recent and widely reported tale of a public official gone astray. A most curious coincidence, this lurid account also coming to light when someone sent out emails written by the principals. This busybody, though, chose to remain anonymous and therefore can’t be accused of identity theft with intent to harm reputation. And those of you with much longer memories will find echoes from State v. Eisenberg, 48 Wis.2d 364, 180 N.W.2d 529 (1970). But you already knew that the Reports are littered with tragic stories of hubris, lust and revenge.

State v. Christopher Baron, 2009 WI 58, affirming 2008 WI App 90
For Baron: Daniel P. Dunn

Issue/Holding: The charge of identity theft, based on Baron’s alleged conduct in sending emails from Fischer’s account without authorization and with intent to harm his reputation, is “content based” within the meaning of First Amendment analysis:

¶38      In the case at hand, we conclude that Wis. Stat. § 943.201(2)(c) is content based because whether Baron’s conduct is prohibited depends entirely upon whether Baron’s speech, i.e., the content of the e-mails, was intended to be reputation-harming speech, which is similar to the content-based provisions in Boos and Burson where the prohibition was dependent upon whether signs were critical of foreign governments or related to political campaigns. However, we do not decide today whether subsection (c) of Wis. Stat. § 943.201(2) must always be deemed content based under all circumstances as we do not address potential situations where something other than speech is used with the intent to harm another’s reputation.

¶39      Unlike Taxpayers for Vincent, Renton, or Brock where the statutes were not designed to suppress certain ideas, this statute under the facts of this case, suppresses reputation-harming speech when it is accompanied by intentionally using another’s identity. There is no identity theft in this case unless the trier of fact determines that Baron used Fisher’s personal identifying information with the intent to harm Fisher’s reputation. Therefore, Baron is prohibited from disseminating speech that is intended to be harmful to Fisher’s reputation when that speech occurs through the unauthorized use of Fisher’s personal identifying information. As a result, Wis. Stat. § 943.201(2)(c), as applied to Baron, is content based.

…

¶44      Accordingly, the State bears the burden of showing that the statute overcomes strict scrutiny in order to survive Baron’s as-applied challenge.

Fischer, the target of Baron’s alleged reputation-harming effort, was a public official: does that matter to the content-based conclusion? The court doesn’t say.