State v. Sherry L. Schultz, 2007 WI App 257; prior history: State v. Scott R. Jensen, 2004 WI App 89, affirmed, 2005 WI 31
For Schultz: Stephen L. Morgan, Jennifer M. Krueger
Issue/Holding: Jury instructions on the elements of duty and intent under § 946.12(3) created mandatory conclusive presumptions:
¶10 Schultz contends that the following sentences in the jury instruction given by the trial court operated as mandatory conclusive presumptions on the issues of intent and duty: “The use of a state resource to promote a candidate in a political campaign or to raise money for a candidate provides to that candidate a dishonest advantage” (establishing the intent element);  and “[i]t is a state employee’s duty not to use, or direct the use of, state resources for political campaigns…. Political activity includes any of the following: Campaign fundraising, the preparation and maintenance of campaign finance reports, and candidate recruitment” (establishing that Schultz acted inconsistently with her duties).  Thus, Schultz contends that the jury instruction directed the jury to presume the elemental facts that Schultz acted with intent to obtain a dishonest advantage for herself or another and inconsistently with the duties of her office upon the predicate fact that she used state resources for campaign purposes.¶11 … We … conclude that the jury instruction contained mandatory conclusive presumptions as to the elements of intent and acting inconsistently with official duties, and thus violated Wis. Stat. § 903.03(3) because it did not contain the limiting language set forth in sub. (3).
¶20 We also disagree with the State’s assertion that the jury instruction left the jury free to reach its own finding as to Schultz’s intent upon a finding that Schultz used state resources for campaign purposes. The court’s jury instruction only required that the jury find that Schultz used state resources “to promote a candidate in a political campaign or to raise money for a candidate” for it to find that Schultz exercised her discretionary power with intent to obtain a dishonest advantage for herself or another. Stated differently, this instruction directs the jury that it must find that Schultz exercised her discretionary authority with the purpose to obtain a dishonest advantage (the elemental fact) if the State proves that Schultz used state resources for political campaign purposes (the predicate fact). This instruction relieves the State of its burden of proving beyond a reasonable doubt that Schultz exercised her discretionary power with the intent of obtaining a dishonest advantage for herself or others, requiring only that the State prove the predicate fact of Schultz using state resources for campaign purposes. Thus, the jury instruction contained a mandatory conclusive presumption on the element of intent.
The prior appeal established that directing staff to engage in a political campaign with state resources violated the statute, but the court now says that this principle merely meant that the statute wasn’t unconstitutionally vague: “In other words, we said that the defendants could be convicted because the statute apprised a reasonable person that the conduct, as alleged in the complaint, neared proscribed conduct,” ¶13. Directing a verdict on the facts is significantly different, id. This discussion is not, alone, particularly convincing because it merely raises the riddle of the fact-law distinction (see discussion, here; put simply, the court instructs on the law, the jury finds the facts – but sometimes the distinction is muddied). The decision goes on, though, to find support in State v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985):
¶17 Here, as in Dyess, the jury instruction precluded the jury from reaching its own decision on a finding essential to a conviction. In Dyess, the instruction directed the jury to find negligence on a finding of speeding. Here, the instruction directed the jury to find intent on a finding of use of state resources for campaign purposes. We fail to see a distinction.
¶18 The State, however, argues that only directed factual findings are impermissible, while directed legal findings are proper. The Dyess court rejected this argument. …
That’s plain enough, if nonetheless still involving a certain amount of question-begging – especially in the court’s stress that the challenged instructional language was not a correct statement of the law, ¶19; but that very incorrectness is because of the conclusive presumption created by the language, which makes the court’s “explanation” circular. The court takes pains to ground its holding in the purely statutory rationale of § 903.03 rather than constitutional analysis, ¶1 n. 2. It makes sense, then, to see the holding as a construction of § 903.03 as simply not supporting a distinction between fact and law with regard to instructional presumption. Some of this becomes clearer in the court’s subsequent directive—the jury must be instructed on the substantive law, but not that certain facts satisfy that definition (¶22):
¶23 Here, the trial court did not merely define Shultz’s duty and then submit to the jury the question of whether Schultz engaged in conduct contrary to that duty, as the State asserts. See Schwarze, 120 Wis. 2d at 456 (stating that “an employee has a duty to disclose shortages of money to his or her supervisor” as a matter of law, and thus the jury instruction that such a duty existed was proper). Instead, Schultz’s jury instruction stated that certain conduct was inconsistent with Schultz’s duties. Even accepting the State’s proposition that the court’s role was to define Schultz’s duty for the jury, whether Schultz engaged in alleged conduct and whether that conduct was inconsistent with Schultz’s duties were questions for the jury. Because the jury instruction required the jury to find that the element of performing acts inconsistent with the duties of one’s office was met upon a finding that Schultz engaged in campaign activity on state time, the instruction was a mandatory conclusive presumption.
 … (O)ur conclusion that the jury instruction on Schultz’s duties did not merely state what Schultz’s duties were, but rather stated that certain actions were inconsistent with her duties, is dispositive.