By Gretchen Schuldt
Firms that contract with medical providers to handle medical records requests cannot overcharge patients for those records, the State Court of Appeals ruled last week.
The contract firms must follow the same rules that apply to direct medical providers when giving providing the records, the District I Court of Appeals panel said in reviving a class-action lawsuit.
"To allow a third-party to circumvent the statutory limitation on health care providers simply because it does not provide actual health care services would…yield absurd results," Appeals Judge M. Joseph Donald wrote. He was joined in the decision by Appeals Judges William W. Brash III and Timothy G. Dugan.
State law limits how much medical providers can charge patients for their own medical records. Generally, for paper records, the charges top out at $1 per page; for microfiche or microfilm, the charge is $1.50 per page.
Andrea Townsend filed a class action complaint in 2018 alleging that ChartSwap, which contracted with a radiology practice to handle medical records requests, overcharged for those records. Townsend said that her attorneys, at her request, sought her records after she was in a traffic accident. ChartSwap responded with a bill for $35.87 and provided the records after Townsend's lawyers paid it.
Townsend alleged in the suit that ChartSwap violated the medical records pricing statute; ChartSwap responded that the statute did not apply because the firm, based in Texas, was not a medical provider but was merely an agent.
Milwaukee County Circuit Judge Paul R. Van Grunsven, relying on an earlier Federal Court decision interpreting Wisconsin law, ruled in ChartSwap's favor. That Federal Court decision said that state law "does not impose liability on entities that are not health care providers even when they act as agents of health care providers," Donald said.
But, he wrote, "the district court’s decision is not binding upon us."
More importantly, Donald said, the decision "undermines the purpose of (the law) which is to protect patients from being charged excessive fees for access to information in the custody and control of health care providers."
A different state law also puts the same obligations upon an agent of a principal that are put on the principal, Donald said.
"The goal of patient protection would be eviscerated if health care providers could simply contract with parties who were permitted to charge fees of their own liking," he said.
The panel returned the matter to Circuit Court for further action.
By Gretchen Schuldt
Alleged crime victims can intervene in at least some criminal court cases if the victims disagree with defendants' motions and want to formally oppose them, the State Court of Appeals said in a decision released Thursday.
Previously, a criminal case was between the state and the defendant, but voters in April approved a victims' rights amendment to the state constitution that granted alleged victims new rights. Those include the right "to be heard in any proceeding during which a right of the victim is implicated...."
The amendment also gives the alleged victims the right "to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused" and eliminates the only mention of a defendant's right to a fair trial.
Thursday's ruling means that criminal defense lawyers may have to fight for their clients both against prosecutors and against interventions by alleged victims. Prosecutors, if they disagree with an alleged victim's position, may be put in a similar position.
The District IV Court of Appeals panel also said the amendment applies to cases in which the crime occurred before the "Marsy's Law" amendment was ratified in April.
Full disclosure: WJI, three individual voters, and Sen. Fred Risser are suing to overturn the amendment, approved by voters in April. The plaintiffs argue that the ballot question failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject. A decision in the case is pending.
Thursday's ruling reversed a decision by Waupaca County Circuit Judge Raymond S. Huber, who said the victim in the case, identified in the decision only as "T.A.J." and "T.," did not have a right to intervene in a battle over whether Huber should privately review T.'s medical records to determine whether they should become part of the court case.
The appeals panel, in a decision written by Appeals Judge Michael R. Fitzpatrick, said it was "manifest" T. has the right to be heard in a circuit court proceeding that implicates his rights or privileges.
Fitzpatrick was joined in his decision by Appeals Judges Brian W. Blanchard and JoAnne F. Kloppenburg.
The defendant in the case, Alan S. Johnson, was charged with multiple crimes stemming from his alleged sexual assault of T. As part of his defense, Johnson asked to review T.'s records.
The state did not oppose Johnson's request, but T. hired a lawyer and sought to intervene, arguing that T. had standing to oppose Johnson's motion and that Johnson's argument was not strong enough win the in-camera record review.
Huber, relying on previous case law, ruled that T. did not have standing. T. appealed; the state supported the appeal.
The appeals panel found that Marsy's Law overrides the case law precedent. The court also found that the amendment is retroactive, although Marsy's Law does not contain language to that effect.
"We agree with the State that...provisions (of the amendment), read together, express the intent that the 2020 constitutional amendment applies to pending motions in cases initiated prior to passage of the amendment," Fitzpatrick wrote.
Johnson also argued that allowing T. to oppose the records review motion essentially made him part of the prosecution team, but the panel said the matter "does not implicate hallmarks of substantive criminal law."
Marsy's Law, the panel noted, mandates that victims' rights be "protected by law in a manner no less vigorous than the protections afforded to the accused."
Left unanswered by Thursday's decision is whether the state is obligated to provide a lawyer to represent indigent victims, as it does for indigent defendants.
By Gretchen Schuldt
It was not improper for a judge to comment during a sentencing hearing on the changes he saw in people when they possess guns, the State Court of Appeals has ruled.
The unsigned opinion by a District I Court of Appeals panel upholds a post-conviction ruling by Milwaukee County Circuit Judge Carolina Stark denying Octavia W. Dodson's request for resentencing for second-degree intentional homicide.
Dodson alleged that then-Circuit Judge M. Joseph Donald considered an improper factor – legal gun ownership – during the sentencing.
Donald now is a judge on the State Court of Appeals.
Dodson argued that Donald believed him to be "a threat to society and had a ‘distorted view of the world’ because he was a lawful gun owner.”
The appeals panel disagreed.
"When viewed in context...the trial court’s comments about Dodson’s unlawful use of his firearm were not improper," the judges said. "The trial court never stated, explicitly or implicitly, that it was basing its sentence on the fact that Dodson chose to exercise his right, as the holder of a concealed carry permit, to carry a concealed weapon."
The panel included Judges William W. Brash III, Brian W. Blanchard, and Timothy G. Dugan.
Dodson did not have a criminal record before he shot Deshun T. Freeman to death after being rear-ended in his car on March 25, 2016.
After the he was rear-ended, Dodson saw the other car involved, a Buick, back up. Dodson drew a semi-automatic handgun from its holster and the Buick left the scene. Dodson drove after it so he could, he said, get a license plate number.
As he drove, he switched out the gun's 10-round magazine for an extended 17-rounder, according to the decision.
Dodson eventually saw a car he thought was the one that hit him. Both cars parked on the side of the street. Dodson said a man got out of the Buick and ran toward him. Dodson later said he thought the man was pulling something out of his pockets or from under his shirt. Dodson, now standing outside his car, shot him – evidence indicated Dodson fired six times – then drove to his girlfriend's house, according to the decision. They talked, and Dodson drove to his father's house, calling 911 on the way.
Police were unable to confirm that the car driven by Freeman was involved in the accident.
Dodson pleaded guilty to second-degree intentional homicide and Donald sentenced him to 14 years in prison and six years of extended supervision, longer than the term recommended in a pre-sentence report, which was five to nine years in prison followed by a five-to-six-year term of extended supervision.
"In reviewing this case, I have to say I am completely baffled as to why this happened," Donald said during the sentencing hearing. "And I don’t think that there is any rational way of trying to explain it. I can tell you this, Mr. Dodson, that in my experience as a judge, I have seen over time how individuals when they are possessing a firearm, how that in some way changes them."
He continued: "It changes how they view the world. It changes how they react and respond to people. I know that this is only speculation on my part, but I do strongly feel that the day that you applied for that concealed carry permit and went out and purchased that firearm, and that extended magazine, (whatever) your rational beliefs for possessing it, whether you felt the need to somehow arm yourself and protect yourself from essentially the crime that is going on in this community, I think on that day set in motion this circumstance."
Later, Donald added it was "clear to me that you were operating under some misguided belief, some distorted view of the world that somehow Deshun Freeman was a threat to you when in reality it was nothing further from the truth.”
Dodson appealed, seeking resentencing.
Dodson contended Donald blamed him "not merely for the homicide, but for what the court viewed as putting himself on a path toward violence by lawfully obtaining a gun and a license to carry it. This assumption violated Mr. Dodson’s Second Amendment right to possess the firearm.”
Dodson also alleged that Donald made assumptions about gun owners and attributed negative beliefs he had about gun owners to Dodson.
The panel, in upholding Donald and Stark, wrote, "We are not persuaded that the trial court’s comments suggested that the trial court was punishing Dodson for exercising his Second Amendment rights. Here, the trial court’s comments indicate that it, like the parties, was trying to make sense of what appeared to be a senseless homicide committed by someone without a criminal history. The trial court noted that in its experience as a judge, people can change as a result of owning guns. Such an observation was not improper."
By Gretchen Schuldt
Even the most minor violations of Department of Corrections' community supervision rules make people ineligible for expungement of their criminal records, the State Court of Appeals ruled Thursday.
Judges making expungement decisions have no discretion in the matter, the court said.
State law allows courts to expunge conviction records for misdemeanors and certain felonies committed by a person under the age of 25 if that person successfully completes his or her sentence.
Advocates have been pushing for years to make expungement available to more people. This ruling likely will do just the opposite.
"This decision demonstrates once again the need for reform of Wisconsin's expunction law to clarify the process and allow deserving people to avoid the crippling effect of a criminal conviction to follow them for the rest of their lives," Craig Johnson, WJI president, said Friday.
"The decision is one more step in the wrong direction and ought to be corrected by the Legislature as soon as we reconvene," said State Rep. Evan Goyke (D-Milwaukee), an expunction reform advocate in the Legislature. "It is one more example, of the many and growing, of why Wisconsin needs a thorough reform and modernization to our expungement law."
"The first rule of supervision, which applies to every person on probation, parole or extended supervision is, 'Avoid all conduct which is in violation of federal or state statute, municipal or county ordinances, tribal law or which is not in the best interest of the public welfare or your rehabilitation,'" said David Liners, state director of WISDOM and a justice reform advocate. "I do not know anyone who has not broken that rule. Rule 17, 'Report as directed for scheduled and unscheduled appointments,' would seem impossible to anyone who is not clairvoyant and knows to report for a meeting that has not been scheduled."
"The rules themselves remind me of Jim Crow 'literacy tests,' designed to be impossible to pass," he said. "By setting this standard, the court is doing to expungement what Jim Crow laws did to voting"
The Court of Appeals decision reversed a ruling by Green County Circuit Judge James R. Beer, who granted Jordan A. Lickes' request to expunge three of four convictions related to a sexual encounter he had with a 16-year-old girl in 2012, when he was 19.
"Lickes contends that a bright-line rule prohibiting expungement upon proof of a violation of even the most minor DOC rule would run contrary to the legislative purpose of the expungement statute, which is to provide a break to young offenders who demonstrate the ability to comply with the law,” District IV Court of Appeals Judge Jennifer E. Nashold wrote for the three-judge panel.
The panel rejected that interpretation.
"Because we interpret 'conditions of probation' in the expungement statute to include DOC rules, and because the record indisputably shows that Lickes violated DOC probation rules, the circuit court was without discretion to expunge Lickes’ criminal record," she wrote. "Said otherwise, the Legislature could have left this decision to the circuit court’s discretion but, instead, it has established clear objective standards that leave no room for the court’s exercise of discretion at that stage of the process."
The state's expungement law makes no specific reference to DOC rules, but the phrase "conditions of probation" has been interpreted in other cases to refer to court- and DOC-imposed conditions, so the same definition should apply for expungement, she wrote.
Nashold was joined in her ruling by Appeals Judges Brian W. Blanchard and Michael R. Fitzpatrick.
While the DOC rules infraction ruling will likely affect the most people, it was not the only issue in the case.
Lickes was charged with fourth-degree sexual assault, sexual intercourse with a child age 16 or older, disorderly conduct, and exposing his genitals or pubic area. The first three charges were misdemeanors; the fourth was a felony.
He pleaded guilty to the sex with a child charge and no contest to the others, according to the decision.
Beer sentenced him to probation and 90 days in jail with Huber privileges.
"By setting this standard, the court is doing to expungement what Jim Crow laws did to voting." – David Liners, state director of WISDOM
"The court then set a number of 'terms and conditions of probation,' including that Lickes 'enter into, participate [in] and successfully complete' sex offender treatment for two of the misdemeanors and the felony, Nashold said. If he did that, those counts could be expunged.
Lickes later admitted violating his conditions of probation, Nashold said. His probation agent said Lickes had unapproved sexual conduct, was terminated from a sex offender program, and provided false information to his probation agent.
Lickes agreed to spend 45 days in jail, with Huber privileges for work and treatment, as an alternative to revocation.
Lickes' probation on two of the misdemeanors ended in 2016 and he applied for expungement. His probation agent indicated in September that Lickes had successfully completed probation, but had not completed all the court's requirements. Lickes still was in sex offender treatment and was expected to finish in January 2017, the same month his felony probation was to end.
In July 2018, the probation agent filed another form, this time related to the felony, indicating Lickes had completed all his requirements.
The state opposed Lickes' request for expungement based on his probation violations, but Beer eventually granted it for the two misdemeanors and the felony.
The appeals panel, Besides finding that a probation violations made a person ineligible for expungement, found that Lickes did not meet his court-ordered probation requirements because he did not complete his sex offender treatment by the time his misdemeanor probation lapsed; he completed it after that, but before his felony probation lapsed.
"The circuit court’s probation condition requiring Lickes to 'complete' sex offender treatment for (the misdemeanor) counts...cannot reasonably be construed to mean that Lickes was permitted to complete the treatment after his probationary period ended for those counts," Nashold wrote. "Because Lickes did not complete sex offender treatment within the two-year probationary period for (those) counts...he did not satisfy a court-ordered condition of probation."
By Gretchen Schuldt
Lying to a judge about having ovarian cancer is enough to warrant losing a court battle over parental rights, a State Court of Appeals judge ruled this week.
"All the evidence demonstrates that S.S. conducted an intentional, continuous campaign to perpetrate a fraud upon the court, manipulate the parties in this case, lie to her legal counsel, and create fraudulent medical records.," District II Court of Appeals Judge Paul F. Reilly wrote.
The ruling upheld Waukesha County Circuit Judge Lloyd Carter's decision to enter a default judgment against S.S., as she was referred to in court records.
S.S.'s child, A.W. was removed from her mother in 2016, after S.S. overdosed in her daughter's presence. She overdosed again in January 2017, illegally obtained narcotics in the summer of 2017, and was incarcerated for about three months that winter due to a heroin relapse while she was on probation.
Waukesha County filed a termination of parental rights petition in April 2018, alleging that S.S. had failed to assume parental responsibility and that A.W. still was in need of protection. S.S. contested the petition.
In June 2019, S.S.'s lawyer filed a motion to adjourn a scheduled jury trial on the petition.
The petition said that S.S. was "'experiencing some extreme physical distress'” and explained that S.S. was suffering “''increased pain, bleeding to a point that required frequent changes of sanitary products to avoid bleeding through clothing, exhaustion and an inability to function which have led to missing multiple appointments to prepare for trial,'” Reilly wrote.
During a hearing on the matter, S.S. provided written documentation stating that she had ovarian cancer. The letter, purportedly from an emergency room nurse, said that S.S. was to be excused for four to six weeks due to the disease and related surgery. Carter granted the delay.
In July, the social worker assigned to the case filed a memo stating that S.S. refused to sign a release allowing her condition to be verified. S.S. said during a court hearing that she had privacy concerns and was protected by federal law.
Carter found the court had an interest in confirming the truthfulness of her representations and ordered her to sign the release.
Staff at Waukesha Memorial Hospital "denied writing the medical excuse that S.S. presented to the court, denied diagnosing S.S. with ovarian cancer, and indicated that they had no record of S.S. being diagnosed or treated for ovarian cancer at their clinic," Reilly wrote.
S.S.'s lawyer later expressed concern that her client was "making use of me to defraud the court," Reilly said.
S.S. never denied the allegations that she faked the medical records and lied about it.
The county Department of Health and Human Services sought a default judgment and a finding that there were grounds to terminate S.S.'s parental rights.
Carter granted the request. S.S.'s "conduct is the epitome of bad faith and egregious conduct…." he said. "What (S.S.) did here was a calculated, planned effort on her part to make a false representation to her attorney knowing that her attorney would communicate that information to the Court, then follow it through with further fabrication and falsification."
The court later found, at a separate hearing, that it was in A.W.'s best interests to terminate S.S.'s parental rights.
S.S. appealed, arguing that the law does not give the court the right to terminate her parental rights because Carter did not specifically find that she violated a court order.
"As the circuit court acknowledged, S.S. presented no evidence in the record to suggest that perhaps a misunderstanding occurred....." Reilly wrote. "The purpose of S.S.’s actions appears to be to manipulate the court’s calendar and avoid the jury trial on the grounds phase of the TPR proceeding."
The actions of S.S. were "egregious and constitute bad faith....Under the circumstances and given the court’s inherent authority to sanction parties for litigation misconduct, we see no error, he said.
By Gretchen Schuldt
Two officers who repeatedly told a suspect that he failed a detector test but failed to tell him the results of that test could not be used in court were key to creating the coercion that invalidated the man’s eventual confession, a State Court of Appeals panel has ruled.
"In particular, we caution law enforcement officers that if they plan to rely on polygraph results in order to elicit a defendant’s confession, they need to inform the defendant that those results are inadmissible in court," Appeals Judge Lisa K. Stark wrote for the divided District III Court of Appeals panel.
The State Supreme Court has questioned the reliability and accuracy of the tests, she said.
The ruling upheld a decision by Washburn Circuit Judge John P. Anderson to suppress the confession.
Stark's decision was joined by Appeals Judge Mark A. Seidl; Appeals Judge Thomas J. Hruz dissented.
"I conclude the conduct of the two officers imposed only minimal psychological pressures upon (defendant Adam W. Vice) and was within the boundaries of what due process tolerates for police questioning," Hruz wrote. "Certainly, overt coercion is absent....As for 'other improper police conduct,' I see nothing of the sort."
Vice, then 25, was first interviewed in December 2014 by Washburn County Sheriff's Investigator William Fisher after a four-year-old girl said Vice indecently touched her two months earlier.
Vice asked if there was anything he could do to clear his name and Fisher suggested taking a lie detector test.
Fisher drove Vice to Eau Claire, where the polygraph test was administered by Eau Claire Police Detective Ryan Lambeseder. Lambeseder read Vice his Miranda rights, including the warning that any statement he made could be used against him, and Vice consented in writing to the polygraph.
The exam itself took about one hour and 45 minutes, Stark wrote. Afterward, Fisher and Lambeseder questioned Vice in an interview room. Vice was not handcuffed.
"Lambeseder asked Vice how he thought he did on the polygraph examination," Stark wrote. "Vice responded, 'I don’t know. I know for a fact that I’m telling the truth when I was telling the truth.'”
Lambeseder told Vice, who was in special education classes and high school and had minimal previous contact with police, that he had not passed the examination that it was “very clear” Vice was not telling the truth.
By Gretchen Schuldt
A man's brief interaction in a car with a woman at 3:30 a.m. did not justify the subsequent traffic stop that led to the discovery of an illegal gun in the man's car, the State Court of Appeals ruled this week.
The decision reversed Milwaukee County Circuit Judge Dennis Cimpl's and vacated the felon-in-possession conviction of James Timothy Genous.
Instead, the appeals panel said, the traffic stop was based on a "hunch" rather than reasonable suspicion.
West Allis Police Officer Adam Stikl did not see a drug transaction before he stopped the vehicle driven by James Timothy Genous, the District I Court of Appeals panel said in an unsigned opinion.
Stikl testified he stopped Genous after seeing a woman who matched the description of a known drug user come out of a house in the 1600 block of S. 65th St. – which officers testified was in a high drug trafficking area – get in Genous' legally parked black sedan for 15-20 seconds, then leave it to return to the house.
Stickl said believed a drug deal had taken place based on his “training and experience,” according to the appeals panel, which included Appeals Judges William W. Brash III, Timothy G. Dugan, and M. Joseph Donald.
Stikl stated that he had no information about a black sedan being used to transport drugs to that area, nor was Stikl aware of a black sedan belonging to a known drug dealer or drug user.
"Stikl stated that he had no information about a black sedan being used to transport drugs to that area, nor was Stikl aware of a black sedan belonging to a known drug dealer or drug user," the panel wrote.
Genous immediately pulled over when Stikl initiated the stop. Genous first said he was meeting his mistress, but that she failed to show. When Stikl said he had seen Genous with a woman, Genous acknowledged that a woman with the same first name as the suspected drug user had been in his car.
"He explained that the woman wanted money from him, but left when Genous did not give it to her," the panel said.
Stickl testified at a suppression hearing that he saw "multiple cell phones, hand sanitizer, and cigar wrappers in the vehicle," the court wrote. Stickl said those things were commonly used by drug dealers.
One of the officers who responded to the stop said Genous made "furtive gestures" wile in the car.
"Stickl told Genous to sit on a curb and ordered Genous to remove his shoes and socks," the panel wrote.
Another officer who had arrived at the scene looked in Genous' car and reported seeing a gun in plain sight.
On appeal, the state argued that, given the totality of the circumstances, that the traffic stop was reasonable.
"Genous argues that none of the facts relied upon by Stikl, either individually or cumulatively, were sufficient to constitute a reasonable suspicion that criminal activity was afoot. We agree," the panel said.
"We are...unable to discern the required reasonable suspicion necessary to justify the investigative stop at issue," the panel said.
"Stikl simply saw a woman enter Genous’s vehicle, remain in there for about fifteen to twenty seconds, exit the vehicle, and go back into her house...." the judges continued. "The fact that Genous’s encounter with (the woman) took place early in the morning in a known drug trafficking neighborhood does not give rise to reasonable suspicion. Stikl testified that drug transactions do not only occur at certain hours, and we have previously rejected the notion that drug transactions are more likely to occur in the middle of the night."
Genous was represented on appeal by Assistant State Public Defender Leon W. Todd. (Full disclosure: Todd is a WJI Board member.)
By Gretchen Schuldt
A police office’s testimony that victims of Somali-on-Somali crimes tend to lie about them was unduly prejudicial to a man accused of participating in a Hudson shooting that injured three people, the State Court of Appeals has ruled.
"We also generally agree with (defendant Ahmed Farah) Hirsi’s argument that the racial and ethnic aspect of (Officer Tracy) Henry’s testimony raises heightened prejudice concerns, as such a notion is firmly supported by our case law," the District III appeals panel wrote in an unsigned opinion.
The error was "fundamental, obvious and substantial," said the panel that included Appeals judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
The panel, in overturning a ruling by Circuit Judge James M. Peterson, sent the matter back to Circuit Court for further proceedings. Peterson, a Dunn County judge, presided over Hirsi's St. Croix County trial.
Hirsi was convicted by a jury of multiple felonies stemming from a January 2014 shooting in a liquor store parking lot. Witnesses told police a passenger in a tan Cadillac fired multiple gunshots into an Kia SUV. Three of the six occupants were hit, and three were not. All six are Somali, as is Hirsi.
Hirsi was arrested later that day, along with a co-defendant.
The state's theory of the case was that Hirsi, recognizing one of the people in the car, referred to her in a derogatory manner. The woman responded in the same manner, and Hirsi began to shoot indiscriminately into the Kia.
Hirsi denied involvement and the woman said she did not know anyone in the Cadillac. She denied the derogatory term was aimed at her and said the shooting occurred about an hour after the name-calling. The woman did not identify Hirsi when shown a photo array that included him.
The Kia's driver testified that Hirsi was not the shooter and that he told law enforcement before the trial that "they had the wrong man in custody and that the man that shot me is out there and free."
Four victims did not testify, but one of them told police she did not know who did the shooting and another said she was asleep and did not see the shooting. Two declined to cooperate.
Only one person, a co-defendant, identified Hirsi as the shooter. The co-defendant had a plea deal with prosecutors under which he agreed to testify "truthfully" and plead guilty to two felonies. In exchange, 15 charges would be dismissed and prosecutors would recommend a two-year prison sentence, according to a brief filed by Hirsi's appellate lawyers, Cole Daniel Ruby and Albert T. Goins, Sr.
Hirsi was sentenced to 50 years in prison and 35 years of supervised release.
By Gretchen Schuldt
Polk County sheriff's deputies had no legitimate basis to significantly extend a traffic stop to allow time for a drug investigation of the driver, the State Court of Appeals ruled last week.
"At best, the officers had an inchoate suspicion or 'hunch,' which is insufficient to support an extension of the stop for the traffic offense," the District III Court of Appeals panel said in an unsigned opinion.
The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark Seidl.
The panel, reversing Polk County Circuit Judge Daniel J. Tolan, ordered that evidence found in the resulting search be suppressed.
Deputy Del Stone stopped Tyler Thompson shortly after midnight for a "rolling stop" at a stop sign as Thompson drove away from a house Stone was monitoring for suspected drug activity.
Stone testified in Circuit Court that Thompson appeared extremely nervous and that he denied failing to come to a full stop. Stone questioned Thompson about where he was coming from and about his residence, and told Thompson that he was driving in the wrong direction.
Thompson told Stone he did not know anyone at the residence he just left and that he was helping a friend move.
Stone already knew that Thompson's truck was properly registered and returned to his squad to run a criminal background check on Thompson. He also ran a criminal background check on the friend Thompson said he was helping.
Another deputy, Anthony Puetz, arrived at the scene and Stone got out of the squad. Stone testified that he told Puetz there was reasonable suspicion to believe drugs were in the truck.
By Gretchen Schuldt
A Milwaukee County judge's effort to force a man to remain a child's legal father after a DNA test showed he was not the biological dad was thrown out Tuesday by a State Court of Appeals panel.
The ruling reversed Milwaukee County Circuit Judge Paul R. Van Grunsven's decision that Deray J. Shaffale should remain the legal father because it was in the best interest of the child.
Shaffale had earlier signed a voluntary paternity acknowledgement because, he said, he thought he was the child's father and he wanted to get the child insured.
In sending the case back to Circuit Court, the three-member District 1 Court of Appeals panel said Van Grunsven applied the wrong standard and directed the judge and state attorneys involved in the case to read the relevant statutes.
Van Grunsven had found that requiring Shaffale to remain the legal father was in the best interests of the child.
"You signed that document, you’re the best and only father for this kid," Van Grunsven said during a 2018 hearing, according to the appellate decision.
He also said he had previously required men who erroneously acknowledged paternity to maintain their legal obligations even when they provided proof they were not the fathers.
"Let me explain this," Van Grunsven said. "I have had guys that I’ve known are not the father. I had genetic testing that establishes without a doubt that they’re not the father, but I continue to have that person under Wisconsin law be the legal father of the child because it was in the child’s best interest. That’s what the law is."
The appeals panel, though, in an opinion written by Appeals Judge Timothy G. Dugan, said that state law provides for voiding a paternity acknowledgement if a court finds that the male who signed it is not the biological father.
"We note that the statute does not reference a best interest of the child standard," Dugan wrote.
Shaffale wound up in court in the first place after the state filed a child support action naming both him and the child's mother, Vanidy R. Cross, as respondents.
Shaffale submitted the results of a privately obtained DNA test showing that he has 0% chance of being the father. Another man living in Seattle whom Cross said might be the father refused to submit to genetic testing that would determine whether he was.
The state argued that "it is better for the child to have a father on the birth records than no father at all," Dugan wrote. "The GAL agreed with the state."
Van Grunsven appointed the GAL, or guardian ad litem, to represent the child.
The state's lawyer told Van Grunsven the paternity acknowledgement could be voided only if its signing was tainted by fraud, mistake of fact, or duress, Dugan wrote. Van Grunsven found that Shaffale did not adequately show that it was, but the appeals panel said Van Grunsven did not do enough to determine that.
"There is no testimony or evidence in the record that establishes that Shaffale knew or had reason to believe that there were other potential fathers," Dugan wrote. "Cross was never called as a witness....There is no testimony or evidence in the record regarding Cross’s actions and representations to Shaffale....Further, because Cross was never called as a witness, Shaffale never had an opportunity to cross-examine her. He also was not given an opportunity to give his own direct testimony."
Dugan was joined in his opinion by Appeals Judges William W. Brash III and Joan F. Kessler.
Shaffale was represented on appeal by Demetra Christopoulos.
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