By Gretchen Schuldt

A court cannot order a private health care provider to implement a treatment that the provider believes is below the standard of care, the state Court of Appeals ruled this week in a split decision.

The District II Court of Appeals panel, in a decision written by Appellate Judge Lori Kornblum, reversed a ruling by Waukesha County Circuit Judge Lloyd Carter and said  that Aurora Health Care did not have to administer ivermectin to a COVID-19 patient. Kornblum was joined in the decision by Appellate Judge Lisa S. Neubauer.

Ivermectin is primarily used as an anti-parasitic in farm animals and is given to humans to treat some parasites and scabies. It has not been approved by the FDA for COVID-19 treatment. 

Appellate Judge Shelley A. Grogan dissented, saying that Carter made a reasonable ruling when he issued an injunction directing Aurora to credential a doctor willing to give the treatment to the patient, John Zingsheim.

The suit is one of several similar suits involving New York attorney Ralph Lorigo that have been filed around the country. In the Wisconsin case, Lorigo represented plaintiff Allen Gahl, Zingsheim's health-care representative. Gahl also was represented by attorney Karen L. Mueller, a far-Right candidate for Wisconsin attorney general. 

"Requests for injunctive relief must be premised on the existence of a viable legal claim upon which the petitioner can show a reasonable likelihood of success," Kornblum wrote. "Gahl fails to meet this foundational requirement. ... Because Gahl has failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment, the court erroneously exercised its discretion in granting Gahl injunctive relief."

Zingsheim, 60, was admitted to the hospital in September 2021 and placed in the intensive care unit. He was intubated on Oct. 3, but his condition deteriorated. He was offered other treatments, accepting some and declining others.

"Gahl, 'losing hope for [the patient’s] survival,' searched for 'an alternative treatment' and became aware of the proposed treatment" (ivermectin), Kornblum said, adding in a footnote that there is no evidence that Gahl is a doctor "or a medical professional of any kind."

Gahl obtained a prescription for the drug from Dr. Edward Hagen, who did not examine Zingsheim but prescribed a drug for him based on talking to Gahl. The hospital refused to administer the drug, however, because officials believed that doing so would not meet the standard of care.

Gahl went to court in an effort to force Aurora to comply with his wishes.

"Importantly, Gahl initially did not submit an affidavit from Hagen or any other licensed medical professional ...explaining why the proposed treatment was necessary for this patient or within the standard of care," Kornblum wrote.

Aurora argued that there is no legal authority in the state compelling a health care provider to administer a treatment the provider believes to be below the standard of care. 

Aurora also said that Hagen did not even have access to Zingsheim's medical records and "raised its concern to the court that the Wisconsin State Licensing Board had previously disciplined Hagen for prescribing medications to a person who was not his patient and whom he had not examined."

Hagen admitted to the state Medical Examining Board that he prescribed drugs, including opiates, to a neighbor for about 1½ years without examining him beforehand. He also said he did not keep medical records on the patient or consult with the patient's physician. The examining board reprimanded Hagen in 2013. 

Aurora filed affidavits in support of its position, including one that described the risks that ivermectin posed. They include, according to the affidavits, heart damage, liver damage, stroke, kidney damage, hypotension, loss of bodily movement control, seizures, coma, and death.

At an October hearing, Judge Carter asked for more evidence and gave the two sides until that afternoon to supplement the record. Among the items Gahl submitted was an unsworn, undated declaration from ivermectin-supporter Dr. Pierre Kory "explaining his support for the use of the proposed treatment for COVID-19 patients," Kornblum wrote. "The declaration is conspicuously devoid of any discussion of the patient in this case." 

"None of the documents Gahl filed relating to Kory establish that Kory ever examined this patient or spoke with this patient’s treating medical providers. ... At no time did Gahl submit any medical information from any health care professional who had actually examined this patient, reviewed this patient’s records, or who could give a medical opinion to a reasonable degree of medical probability about the benefits of the proposed treatment on this patient at this time," she wrote.

Carter ordered Aurora to administer ivermectin but also set a hearing for the next day to allow Aurora to give reasons why his order should not go into effect.

​"While the court cited the criteria for granting a temporary injunction at the hearing, the court never applied those criteria to the facts of the case on the record or in the order," Kornblum said. "The court failed to identify which, if any, legal claim asserted by Gahl in the petition provided a basis for the injunctive relief requested, much less the legal authority supporting such a claim." 

Aurora sent a letter to the judge objecting to the order and saying it was "problematic."

"I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for [the proposed treatment] 66mg to be taken once daily," the letter said. "The prescription does not indicate from where [the proposed treatment] is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer [the proposed treatment] 'as further ordered by Mr. Gahl.' Mr. Gahl is not a healthcare provider." 

At the hearing the next day, Aurora said the patient was improving and no longer tested positive for COVID.

"Gahl’s attorney switched his argument from using the proposed treatment as an emergency treatment for COVID-19 to giving the proposed treatment for 'COVID and the damages that come about as a result of COVID,' ” Kornblum wrote.

Carter modified his order somewhat, ruling that Gahl should find a physician willing to administer the drug and to whom Aurora could grant credentials to practice in its hospital. Once credentialed, that doctor would have permission to go to the hospital and administer the ivermectin to Zingsheim.

"At no point did the court issue an oral or written order explaining whether or how Gahl had established the ... criteria for injunctive relief. The court also did not identify any claim set forth in Gahl’s petition which supported the request for relief, much less the legal authority supporting the claim," Kornblum said.

Aurora appealed.

Gahl effectively acknowledges that ivermectin treatment is below the accepted level of care, Kornblum said. 

"He admits that using the proposed treatment for COVID-19 is not approved by the FDA, as it is an 'off-label use of the drug,'" she wrote.

"We do not decide the medical question of what the standard of care should be. We are not doctors. We decide the legal question, as both Aurora and Gahl agree, of whether the court has the authority to order Aurora to provide treatment that is below the currently accepted standard of care for COVID-19," she said.  

"The court failed to identify any viable claim upon which the temporary injunctive relief was granted, and as such, Gahl did not show a reasonable likelihood of success on the merits," Kornblum wrote. 

Injunctions are used to preserve the status quo, Kornblum said, but "the court’s order neither preserved nor restored the status quo between the parties, but instead altered the status quo and granted much, if not all, of the relief Gahl ultimately seeks in this case."

"Recognizing that he has failed to identify any legal basis for the circuit court’s action, Gahl urges us to ignore the law based on his assertions that the treatment protocols for COVID-19 are wrong. ... These criticisms do not empower us to order a private health care provider to administer a proposed treatment that does not fall within its standard of care when there is no legal authority upon which to do so. Our role is to interpret and apply the law as written. We are bound by the law, and the law in this case does not provide a basis for judicial intervention," she said.

In dissent, Grogan said the issue at hand was not, as Aurora argued, whether a court could order a provider to offer care below the standard of care; it was, instead, whether Carter erroneously exercised his discretion in granting the injunction.     

"Based on the record," she wrote, "it is clear the circuit court’s decision was reasoned and based on the record and applicable law."

Patients have rights in Wisconsin, she said, including the right to make their own health care decisions, the right to informed consent, and the right to request and receive medically viable alternative treatments. 

"Although Wisconsin law does not afford a patient the right to demand any treatment the patient desires, it does recognize a patient’s right to request and receive medically viable alternative treatments," Grogan wrote. "The fact that the circuit court was presented with differing opinions about what treatment is proper for Zingsheim suggests the jury is still 'out' as to whether there is only one particular and established 'standard of care' in treating this novel virus. Time will eventually reveal what the standard of care or reasonable alternative treatment is for people in Zingsheim’s position. What is important here is that the circuit court had before it information from two independent physicians (one indicating he was the world’s foremost expert on treating COVID-19) who both agreed that a protocol different than that which Aurora had administered, without success, would be proper and could be beneficial to Zingsheim."

By Gretchen Schuldt

​A man who did not have a chance to cross examine the officer who issued him a citation or to present evidence on a new charge determined by a judge is entitled to a new trial, a state appeals court ruled Tuesday.

District 1 Court of Appeals Judge Timothy G. Dugan did not even decide the case on the issue raised by defendant Roosevelt Cooper, Jr. – that he was denied discovery – but instead relied on Milwaukee County's recognition of errors in Cooper's trial.

"As the County acknowledged in its supplemental brief, '[a]t no point throughout the trial was Cooper afforded the opportunity to question or cross-examine' the officer and 'Cooper was denied his right to trial,' ” Dugan wrote. "A review of the record confirms the County’s characterization of the proceedings."

Cooper was cited in December 2020 for reckless driving / endangering safety. The officer who issued the citation testified at trial before Milwaukee County Circuit Judge Jonathan Richards that the officer observed Cooper speeding and making multiple lane changes while close to other vehicles. The officer said Cooper was driving about 80 mph in a 55-mph zone.

The officer's dash cam video showed that Cooper drove on a non-traffic area of the roadway, changed lanes without signaling, and drove faster than the cars around his, Dugan wrote. Cooper said he swerved into the non-traffic area to avoid an accident with a car in front of him when its driver slammed on the brakes.

The video, however, was never moved into evidence and Dugan said in a footnote that Cooper was not under oath when he began explaining his actions. "It was not until the county started questioning Cooper following Cooper's explanation of the video that Cooper was put under oath," he wrote.

At the end of the bench trial, Richards said he could not see where Cooper endangered safety, but that Cooper was speeding, passed six cars, and drove in the non-traffic area, Dugan wrote. The judge found Cooper guilty of unreasonable and impudent speed. 

"The county expressed confusion over the finding, and the clerk interrupted saying that Cooper was not charged with speeding," Dugan wrote. The county said it could amend the charge to unreasonable and imprudent speed "and over Cooper’s objection, the trial court accepted the amended charge and found Cooper guilty" of the charge.

Richards ordered Cooper to pay a $100 forfeiture, according to online court records.

The county, in its appeals briefing, said a judge has the power to amend a charge to conform to the evidence, but that the court also must find that the parties consent to the change, Dugan wrote. That is also state Supreme Court precedent, Dugan said.

"The county...concedes that the trial court failed to make any finding that Cooper consented to the amended charge, and in fact, the county maintains that Cooper was clear that he did not consent to the amended charge," Dugan said. "The county also concedes that the trial court failed to give the parties an opportunity to present additional evidence to support the amended charge." 

In addition, "Despite receiving an assurance that he would have an opportunity to question the officer, Cooper received no such opportunity," Dugan wrote.

While he is not required to accept the county's concessions, it is appropriate in this case, Dugan said.

"As a result, this court concludes that Cooper is entitled to a new trial on the amended charge of unreasonable and imprudent speed," he said.

By Gretchen Schuldt

​A Meijer Store employee's use of derogatory, homophobic terms when talking about a co-worker disqualified her from unemployment after she got fired for the comments, a divided state Court of Appeals panel ruled recently.

Susan A. Wozniak's comments constituted harassment, Appellate Judge M. Joseph Donald wrote in the 2-1 decision for the District I Court of Appeals panel. He was joined by Appellate Judge Maxine A. White. Appellate Judge Timothy G. Dugan dissented.

The decision affirms Milwaukee County Circuit Judge William S. Pocan, who ruled in favor of the Department of Workforce Development in its action against the state Labor and Industry Review Commission.

LIRC had contended that Wozniak was entitled to unemployment benefits; DWD disagreed.

The case began when Wozniak, frustrated that a fellow greeter was not doing his job, complained to co-workers. One of them reported the conversation to management, saying that Wozniak said the co-worker was a “pretty boy,” “fairy,” and “fruit loop.” Wozniak also said that he was gay, and that “the way he skipped around the store made her sick,” according to the appeals court decision.

Wozniak, interviewed by management, admitted calling the co-worker a "pretty boy," denied calling him a "fairy," and said if she had used the other terms she should not have done so. Wozniak was suspended and eventually fired.

Meijer, in its dismissal, cited Wozniak's “discriminatory remarks towards a team member."

Wozniak filed for unemployment, and DWD found that the firing was not for "misconduct or substantial fault connected with her employment." Wozniak was entitled to benefits, the agency said.

Meijer appealed. The administrative law judge reversed DWD and ruled that Wozniak was fired for misconduct and not entitled to benefits.

Wozniak appealed again, this time to the LIRC. The administrative law judge was overturned and Wozniak was back to being eligible for unemployment compensation. The LIRC vote was 2-1.

DWD asked a circuit court to consider the matter, and Pocan eventually ruled that LIRC had erred in finding that Wozniak’s comments did not constitute misconduct or substantial fault.  

LIRC appealed.

Wisconsin law, Donald wrote, defines misconduct as one or more "threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace of his or her employer.” 

While the law does not define harassment, DWD and LIRC agreed on a definition as "words, gestures, and actions which tend to annoy, alarm, and abuse (verbally) another person. ... [h]arassment may include verbal abuse, epithets, and vulgar or derogatory language, display of offensive cartoons or materials, mimicry, lewd or offensive gestures, and telling of jokes offensive to protected class members.” 

Wozniak’s comments were derogatory and aimed at the co-worker's sexual orientation, Donald wrote.

"Whether the comments were made directly to the co-worker is of no consequence" under the statute, he said. 

LIRC contended that Meijer did not provide a definition or examples of harassment in its work rules, Donald wrote, but the law does not require that the company have an anti-harassment policy or rule. There also is no requirement that a person "knowingly" engage in harassment, he said.

"We will not read additional language into a statute," he said.

​Dugan, in his dissent, said that Meijer had not met its burden in showing that Wozniak was fired for misconduct or substantial fault.

Harassment that fits the definition of "misconduct" must include an element of intent, which Wozniak's statements did not, Dugan said.

"Her comments were not loud enough for anyone to hear," he wrote. "She did not make her comments to customers, and she did not make her comments directly to the co-worker about whom she was complaining. The record is also devoid of evidence that either of these co-workers were offended or unable to continue with their work responsibilities as a result of the conversation. Thus, Wozniak’s comments were part of an isolated incident during a brief, private, casual conversation that does not rise to the level of misconduct and that demonstrates no intent to harass her co-worker within the meaning of" the law.

While the majority did not address the substantial fault issue because it already found Wozniak committed misconduct, Dugan did. 

"As has been repeatedly stated, there is no dispute that Meijer’s workplace rules prohibited harassment but also provided no definition of what was considered harassment under the rule. ...Wozniak would have had no reason to believe that her brief, private conversation with two co-workers would qualify as harassment," he wrote. 

As its March Salon, Wisconsin Justice Initiative held a virtual candidate forum regarding the race for a seat on the Court of Appeals District II. Incumbent Judge Lori Kornblum discussed her background and answered questions from attendees. Here's the video from the event.

Wisconsin's courts of appeals have only 16 judges total, divided into four districts. District II is headquartered in Waukesha.  Citizens in the following 12 counties choose its judges: Calumet, Fond du Lac, Green Lake, Kenosha, Manitowoc, Ozaukee, Racine, Sheboygan, Walworth, Washington, Waukesha and Winnebago. Voters statewide should care about this race, however, as the court's decisions have statewide impact. 

WJI is a nonpartisan nonprofit that takes no position regarding candidates in this or any election. WJI held the Salon and publishes this video for voter education purposes. Kornblum's opponent, Waukesha Circuit Court Judge Maria Lazar, was invited to participate in this event but did not attend.

Election day is Tuesday, April 5.

By Gretchen Schuldt

​An abortion protester's comments to a clinic employee about “bad things happening to you and your family” and that “you’re lucky if you make it home safe” constituted harassment and went beyond protected free speech, the state Court of Appeals ruled Tuesday.

The District III appeals court panel upheld an injunction barring, until Sept. 9, 2024, Brian Aish from harassing nurse practitioner Nancy Kindschy and requiring him to avoid her residence or any premises she temporarily occupies, including the Blair Health Center. Kindschy worked at the clinic, which did not provide abortions. It provided Planned Parenthood family planning services.

"Although Aish claims that he intended only to influence Kindschy to leave her employment, to shut down Planned Parenthood, and to proselytize, his comments and behavior were harassing to Kindschy, making his actions unprotected speech," Appellate Judge Gregory B. Gill wrote for the three-judge panel. He was joined in his opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz.

"An individual’s ability to protest abortion, like any other subject, is not unlimited," Gill wrote in the decision upholding a ruling by Trempealeau County Circuit Judge Rian Radtke.

Kindschy petitioned for the harassment injunction in March 2020, alleging that Aish's behavior made her fear for her safety. He had protested at clinics where Kindschy worked since 2014, and he grew confrontational in 2019. 

“You have time to repent," Aish told Kindschy one day that year, according to testimony, Gill said. Aish also told Kindschy that "You will be lucky if you don’t get killed by a drunk driver on your way home. Bad things are going to start happening to you and your family.”

About a week later, Kindschy testified in circuit court, Aish approached her vehicle as she left the clinic and told her angrily that, “you have blood on your hands.”

"Kindschy saw Aish receive a citation for trespassing, which Kindschy believed angered him even more," Gill wrote. "Kindschy was frightened of Aish’s aggressive and angry behavior."

Aish also followed Kindschy to her car and told her that she would be "lucky" if she got home safely and that bad things were going to happen to her family.

"A week later, Aish accused Kindschy of lying to the authorities about him and told her that she would be 'lucky' to make it home safely, which caused her 'great concern,' ” Gill said.

By Gretchen Schuldt

A defense lawyer who failed to seek a child protective services report indicating that a child made a false accusation of sexual abuse was ineffective in representing a man later accused of assaulting the same girl, the state Court of Appeals has ruled.

The lawyer, Gary Kryshak, was ineffective even though he testified that he was pursuing a different defense strategy, District IV Court of Appeals Judge Rachel A. Graham wrote for a three-judge appeals panel. 

"The CPS report contained information that was not only material but also could have significantly enhanced counsel’s chosen strategy," Graham wrote. She was joined in her opinion by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold.

The panel reversed Shane A. Stroik's conviction and ordered a new trial.

Kryshak also erred when he did not object to a prosecutor's inference that Stroik's strong sex drive made it more likely that he assaulted the five-year-old girl, referred to in the decision only as "Amy." Kryshak, however, adequately addressed the insinuation in his closing argument, Graham said.

Amy's parents were separated and going through a contentious divorce at the time of the alleged assault by Stroik in 2016, according to the decision. Amy lived largely with her father and stayed with her mother and Stroik, who were in a relationship, every other weekend.

Amy told her father that Stroik had touched here "meme," meaning vagina, and her father reported it to the family social worker. 

The girl was interviewed by a forensic interviewer and repeated her allegation.

"At one point during the interview, when asked to describe Stroik, Amy indicated that he was bald," Graham wrote. "However, it is undisputed that Stroik was not bald."

Amy also said that her paternal grandfather also had repeatedly assaulted her. The grandfather died earlier that year.

When police interviewed Stroik and Amy's mother, both said Amy had made an earlier allegation of sexual assault against a cousin, but nothing came of the child protective services (CPS) investigation.

Kryshak, Graham said, "was aware that there had been a CPS investigation into Amy’s statements about her cousin’s conduct. However, trial counsel did not look further into the matter related to the cousin and did not attempt to introduce evidence at trial about Amy’s prior allegation against her cousin."

During his opening statement, the prosecutor "made several comments about Stroik’s 'sex drive,' ” Graham said. For example, "the prosecutor asserted that Stroik had a 'very high sex drive' and therefore, according to the prosecutor, 'the presumption of course is that [he touched Amy] for a sexual purpose.' ” 

The prosecutor also questioned Amy's mother about how frequently she and Stroik had sex.

"Do you remember saying that it was more sex than you ever had before?" he asked at one point.

He also asked her about Stroik's interest in pornography, although none of it involved child pornography.

"Trial counsel did not object to any of this questioning," Graham said.

When Amy testified, she was unclear about whether Stroik assaulted her.

"When the prosecutor initially asked Amy if she knew 'why we’re here today,' she responded, 'No,' ” Graham wrote. "Amy went on to testify that she remembered 'going to talk to a lady [that is, the forensic investigator] about something that happened with Shane [Stroik],' but that she did not remember anything happening between her and Stroik."

She offered other contradictory testimony as well, but was clear in testimony that her paternal grandfather assaulted her and she remembered those things.

A jury found Stroik guilty of first-degree sexual assault, and Portage County Circuit Judge Robert Shannon sentenced him to five years and eight months in prison and six years of  extended supervision, according to the state's online court records system.

By Gretchen Schuldt

A judge who orally gave one disposition for a juvenile offender but issued a different disposition in writing must adhere to his oral order, the state Court of Appeals ruled Tuesday.

The ruling means that Brandon, if still on court-ordered supervision, does not have to wear an ankle bracelet unless the state specifically requests it and the judge agrees. 

District III Appellate Judge Gregory B. Gill Jr. did not rule on a key issue raised in the case: Is electronic monitoring something the court must order or can it be implemented by a juvenile justice worker as a "case management tool"?

Brandon is a pseudonym to protect the juvenile's identity, Gill said in his opinion.

Electronic monitoring of juveniles is widespread and controversial. Academics and advocates have expressed numerous concerns about the practice. As the University of California Berkeley School of Law’s Samuelson Law, Technology & Public Policy Clinic and the East Bay Community Law Center put it:

Although generally perceived as a less punitive alternative to incarceration, electronic monitoring can be overly burdensome: it often entails home confinement, invasive surveillance, and high fees. As the report demonstrates, programs can impose dozens of strict and inflexible rules on participants. Financial burdens imposed by electronic monitoring programs disproportionately hurt low-income families. Personal privacy violations are also a concern.

Brandon was on electronic monitoring because of a broken toilet tank cover and toilet paper dispenser.

He was arrested in August 2020 after Antigo police received a complaint about damage at a local laundromat. The toilet tank cover was smashed and a toilet paper dispenser was ripped of the wall, resulting in total damages of $150 to $400.

Surveillance footage showed Brandon walking into the restroom and leaving a short time later. The footage also showed the broken items on the floor a short time later.

Brandon, when questioned by police, said the he punched the toilet paper dispenser because it was not working, Gill wrote. He said the toilet was not flushing properly, so he lifted the tank lid, and it slipped.

He eventually admitted to one count of disorderly conduct; both his lawyer and the state recommended formal supervision. 

Langlade County Circuit Judge John B. Rhode explained during the disposition hearing that he could order electronic monitoring, among other things. Brandon was already on an ankle bracelet ordered during an earlier hearing, asked when he could have it removed. A juvenile justice worker said Brandon would have to show good behavior and then his treatment team would decide when to remove the monitoring. 

(Most of the records in the case are sealed because a juvenile was involved, so it cannot be determined how long Brandon was on electronic monitoring or when or if the monitoring ended before Tuesday's decision.)

Brandon's lawyer requested the ankle bracelet be removed.

"During argument, the State noted significant concerns about Brandon, including several hospitalizations for self-harming activities," Gill wrote. "The State further argued that Brandon was able to transition back to his home while being accountable to his supervision...through the use of electronic monitoring. With respect to the electronic monitoring, the State noted that it was not a punishment but, rather, a case management tool."

Gill did not address how electronic monitoring would prevent Brandon from hurting himself. 

Brandon's mother expressed concerns about his behavior and the juvenile justice worker said  Brandon did not come right home after school as his mother had instruction the week earlier and on another occasion, had left home without permission.

The worker "stated that Brandon was not confined by the electronic monitoring because he was able to go to school, appointments, and places with his mother."

The worker also said he "considered electronic monitoring a great management tool," Gill wrote.

"Conversely, Brandon’s counsel argued that electronic monitoring was not a case management tool but instead a 'sanction to be given by the Court,' ” Gill wrote.

Rhode put Brandon on supervision for a year and declined to order electronic monitoring. (Online court records indicate that Brandon's supervision may have lapsed last month.)

"All I will say to both sides if the [S]tate wants me to order it they can schedule further proceedings and we’ll take that up," Rhode said from the bench. "If the defense wants me to order that it stop they can schedule further proceedings and order that it stop or if they think it’s being used inappropriately."

When Rhode's written decision came down, however, it adopted the county's juvenile "rules of supervision," which includes a rule that states: “The youth shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.” 

Brandon appealed, arguing first that the Rhode cannot delegate to the juvenile justice worker the authority for imposing electronic monitoring. He also argued that electronic monitoring was not an appropriate sanction because it was not included in the state statute establishing approved punishments.

"We need not address these issues because we conclude that the court's written order was inconsistent with its oral pronouncement," Gill wrote.

When oral and written pronouncements conflict, he said, the oral pronouncement rules.

By Gretchen Schuldt

A Fond du Lac County judge did not err when he ordered a mentally ill man with $113 in monthly disposable income to pay $5,486 in restitution for repairs to a stolen truck worth less than half that amount, the State Court of Appeals has ruled.

The 2-1 decision by the three-judge District II Court of Appeals panel upheld a ruling by Circuit Judge Robert J. Wirtz. Appellate Judge Shelley A. Grogan wrote the decision and was joined by Appellate Judge Lisa S. Neubauer. Appellate Judge Paul F. Reilly dissented.

"The only issues are whether the circuit court erroneously exercised its discretion in setting the amount of restitution or in finding (Alex Scott) Stone had the ability to pay," Grogan wrote. State law, she said, allows a judge to order restitution for "reasonable repair cost." Wirch did that, she said.

​Reilly took issue with that analysis but outlined another basis of disagreement in a footnote. 

"It is my belief, however, that imposing a restitution order against a mentally disabled young man who could not work, who was under a...Ch. 51 (mental health) commitment order placing him in a group home with a third party handling his meager finances, who had a spinal infection, who was prone to hearing 'voices' and 'seeing things,' and who had a total of $3.75 of daily disposable income is not conducive to a defendant’s rehabilitative needs," he wrote.

He acknowledged that Stone did not produce evidence that he had to use some of his $113 per month for transportation, medical costs, or other human needs and so did not meet his burden of proof that he did not have the ability to pay the restitution. 

Stone, who died while the appeal was pending, took the 1997 Chevy truck, which had 220,000 miles on it, from his friend Matt, who had taken it from the victim, identified in court records only as M.S., according to a brief filed in the case.

Stone damaged the truck and was arrested after an officer saw sparks coming from the passenger side wheel. Stone, who at first was found incompetent to stand trial, eventually was convicted of operating a motor vehicle without the owner's consent.

At the restitution hearing, M.S. did not present information about the value of the truck, but did offer an estimate to repair it: $5,486.37. Stone's lawyer presented Kelley's Blue Book information indicating that showed the truck, in very good condition, would be worth $2,394 in a private-party sale.

The following exchange took place during the hearing, according to a defense brief.

The state: If your – do you intend to repair the vehicle?

M.S.: I’m probably just going to replace it.

The state: Why is that?

M.S.: Well, I can’t just go out and replace a pickup truck for twenty-three hundred, if that’s what they’re talking about, you know.

The state: Would your preference be to repair the vehicle so that you can use it again, all things being equal?

M.S.: I think there was way too much damage done to it to warrant sticking that in that vehicle. I would want to replace it. I have nothing to use on my farm.

The state: Okay. And the reason you would not want to repair that vehicle is you think there’s too much damage to it?

M.S.: Well, unless I stick the five thousand dollars in it to get it done correctly. 

Wirch, ordered Stone to make $5,486.37 in restitution for the repairs. He also ordered restitution for post-arrest towing costs, raising the total amount owed to $6,008.60.

"The statute's plain language does not restrict the award to the actual value of the property even when the actual value may be less than the reasonable repair cost," Grogan wrote in confirming the restitution order. "Rather, the statute allows a circuit court to choose the 'reasonable repair' option in determining the restitution amount even if the repair cost exceeds the property's value."

Grogan also rejected Stone's argument that it was illogical to order repair costs because M.S. intended to replace the truck, not repair it.

"The victim’s testimony did not eliminate repairing the pick-up truck," Grogan wrote. "The victim still had the pick-up truck, and her last statement indicated that if she received the $5,000 in restitution, she could repair it."

Grogan and Neubauer also found that Stone had the ability to pay.

He testified that his monthly income was $773 and his monthly expenses were $600 for rent in a group home and food and $60 for his cell phone. That left $113 a month in extra income. Stone also testified that the only items he bought with his disposable income were soda and cigarettes, which he said were " 'not … really necessary,' " Grogan wrote.

Stone, who did not work due to his disability, also said he might pick up a part-time job at McDonald's or "something like that" in the future, she said.

"Although $113 may strike some as a small amount of disposable income, it was extra money for Stone after all his monthly bills were paid," Grogan wrote. "Accordingly, the circuit court’s decision on ability to pay was not an erroneous exercise of discretion."

Reilly, in his dissent, rejected the idea that a repair estimate is always a proper basis for restitution. 

M.S. testified, Reilly wrote, that she would replace the truck rather than repair it because the truck wasn't worth putting a repair investment of $5,486.37.
​
"The victim correctly recognizes that given the evidence produced at the restitution hearing, she should simply go out and buy a similar truck in 'good condition' at a price of $2,394...." he wrote. "By taking a piece of property worth $2,394 and increasing its value to over $5,000, the victim is made more than whole. The victim receives a windfall.

"We do not use restitution to punish a defendant, and we do not use restitution to enrich a victim," he said. "We use restitution to return the victim to the position he or she was in before being victimized."

By Gretchen Schuldt

A judge was correct in ordering a man to pay potentially tens of thousands of dollars in court surcharges for having child pornography images that were never included in criminal charges against him, the State Court of Appeals has ruled.

The District IV Court of Appeals panel, however, sent the case back to circuit court to determine whether all of the pictures involved were actually associated with the crime for which William C. MacDonald was convicted.

MacDonald pleaded guilty in Marquette County Circuit Court to one count of possessing child pornography. As part of the plea bargain, another nine counts, each based on an individual picture, were dismissed but read into the record.

Read-in charges, Appellate Judge Jennifer E. Nashold wrote for the three-judge panel, are agreed to by both the prosecution and defense. A judge can consider the read-in charges when imposing sentence, though they do not increase the maximum sentence the defendant faces. A judge can also order a defendant to make restitution for read-in charges. Finally, prosecutors cannot later bring formal charges for counts read in.

MacDonald's plea agreement said that "the State would be moving to dismiss and read in the rest of the charges...in addition to any uncharged image that was part of this investigation, so that the State will not be filing any additional charges for any other images, but we would be asking that they be read in as part of the sentencing in this matter."

Circuit Judge Bernard N. Bult sentenced MacDonald to four years in prison and three years of extended supervision. He also levied mandatory $500 surcharges for the photo that was the basis of the charge, nine photos for the counts that were read in at sentencing, and 90 additional images that did not serve as the basis for a charge. The total in surcharges was $50,000 for 100 images.

MacDonald, arguing that the surcharge should be limited to $500 for the one count on which he was convicted, requested in a post-trial motion that the surcharge be reduced, but another circuit judge, Mark T. Slate, refused. 

MacDonald appealed, but the appeal was put on hold while the state Supreme Court considered another case involving the child pornography surcharge. In that case, State v. Schmidt, the court ruled that the surcharge did apply to pictures included in read-in counts. 

MacDonald conceded the surcharge applied to the nine read-in counts, but continued to argue that the surcharge should not apply to counts that were not ever charged. The appeals panel disagreed.

"We conclude that Schmidt does not directly answer this question but that, consistent with its analysis, the surcharge applies to read-in images regardless of whether there is an accompanying charge, so long as those images are 'associated with the crime,' ” Nashold wrote.
State law, she said, does not limit read-in crimes to only those that were charged and dismissed.

Nashold was joined in the opinion by Appellate Judges Brian W. Blanchard and Michael R. Fitzpatrick.

In sentencing MacDonald, she said, Bult correctly noted that MacDonald's ability to pay the surcharge was not a factor. Bult imposed the surcharge on 100 images, though he believed there could be more pictures involved.

"Read-ins may be considered for restitution and sentencing purposes regardless of whether they are uncharged or charged and dismissed. Thus, we discern no basis in the statutes or case law for a sentencing court to treat uncharged and read-in images differently from charged and read-in images for purposes of applying the surcharge," Nashold wrote.  

The panel, however, remanded the case back to circuit court for a judge to determine whether the images that formed the basis of the surcharges actually were "associated" with the crime for which MacDonald was convicted.

State statute requires a judge to determine the "association" by a preponderance of evidence – a lower standard than that required for conviction – and without a jury. 

"Here, it does not appear that the sentencing court engaged in any fact-finding to determine the association, if any, between the 90 uncharged images and the image forming the basis of the count of conviction," Nashold wrote.