State ex rel. Kaminski v. Schwarz

• Decision Date: 09 July 2001
• Docket Number: No. 99-3040.,99-3040.
• Citation: 630 N.W.2d 164,245 Wis.2d 310,2001 WI 94
• Parties: STATE of Wisconsin, EX REL. Carl KAMINSKI, Petitioner-Appellant v. David H. SCHWARZ, Administrator, Division of Hearings and Appeals, Respondent-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

245 Wis.2d 310

2001 WI 94

630 N.W.2d 164

STATE of Wisconsin, EX REL. Carl KAMINSKI, Petitioner-Appellant v. David H. SCHWARZ, Administrator, Division of Hearings and Appeals, Respondent-Respondent-Petitioner.

No. 99-3040.

Supreme Court of Wisconsin.

Oral argument January 5, 2001.

Decided July 9, 2001.

For the respondent-respondent-petitioner the cause was argued by William C. Wolford, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

For the petitioner-appellant there was a brief and oral argument by Donald T. Lang, assistant state public defender.

¶ 1. DAVID T. PROSSER, J.

This is a review of a published decision of the court of appeals, State ex rel. Kaminski v. Schwarz, 2000 WI App 159, 238 Wis. 2d 16, 616 N.W.2d 148. The court of appeals reversed a judgment of the Trempealeau County Circuit Court, John A. Damon, Judge, affirming the revocation of Carl Kaminski's probation. The revocation was based on Kaminski's violation of two rules of probation imposed by his probation agent. The rules required Kaminski to inform his immediate neighbors of his status as a convicted sex offender, and to inform his agent before beginning an intimate relationship with another person so that the agent could ensure that the other person knew Kaminski was a convicted sex offender.

¶ 2. After Kaminski's probation was revoked for violating these rules, the court of appeals determined that the rule requiring Kaminski to inform his immediate neighbors of his sex offender status was contrary to Wis. Stat. § 301.46 (1997-98),¹ which relates to access to information in Wisconsin's sex offender registry. Kaminski,238 Wis. 2d 16, ¶ 11. The court of appeals therefore remanded the case to the Department of Corrections (DOC) to determine whether Kaminski's violation of the other rule, requiring him to notify his agent before beginning an intimate relationship with another person, was sufficient to warrant revocation. Id. at ¶ 12.

¶ 3. The issue presented is whether the probation rule requiring Kaminski to notify his immediate neighbors that he is a sex offender is valid. We determine that Wis. Stat. §§ 301.45 and 301.46 do not occupy the field in regulating the dissemination of sex offender registration information, or prohibit a probation agent from imposing a rule requiring a convicted sex offender to notify his or her immediate neighbors of his or her sex offender status. We also find that the rule imposed on Kaminski was not unreasonable. Accordingly, we reverse the decision of the court of appeals.

I. BACKGROUND

¶ 4. The facts of this case are not disputed. Kaminski pled guilty to a charge of second-degree sexual assault of a child contrary to Wis. Stat. § 948.02(2), and was convicted and sentenced to ten years imprisonment on April 23, 1996.² The circuit court imposed and stayed Kaminski's sentence, and placed him on probation for ten years.

¶ 5. As a condition of probation, the circuit court sentenced Kaminski to one year in the Trempealeau County Jail. It also imposed other conditions of probation, including prohibitions on contact with the victim of his crime and the victim's family, or with any person under 18 years of age unless the person is a family member and the contact is supervised. The court also ordered that after his release from jail, Kaminski was to report to a group home, submit to a chemical dependency evaluation, undergo treatment for suicidal tendencies, and complete sexual offender treatment, an education program, and a relapse prevention program.

¶ 6. When Kaminski was released from jail, he was initially supervised by Tony Lessard. On June 25, 1997, Kaminski registered as a sex offender, pursuant to Wis. Stat. § 301.45.

¶ 7. Kaminski completed sex offender treatment and inpatient alcohol and other drug addiction (AODA) treatment, but he was later terminated from an AODA residential aftercare program for rules violations.

¶ 8. In November 1997 Kaminski's case was transferred from Trempealeau County to Chippewa County, and Ellen O'Connell replaced Tony Lessard as Kaminski's probation agent. She issued Kaminski 16 standard rules of probation, in writing. Rule 1 stated: "You shall avoid all conduct which is in violation of federal or state statute, municipal or county ordinances or which is not in the best interest of the public welfare or your rehabilitation." Rule 16 stated:

You shall follow any specific rules that may be issued by an agent to achieve the goals and objectives of your supervision. The rules may be modified at any time, as appropriate. The specific rules imposed at this time are stated on the back of this form. You shall place your initials at the end of each specific rule to show you have read the rule.

Five additional rules specific to Kaminski's sex offender treatment were imposed by Agent O'Connell and written on the back of the page of rules. Kaminski agreed to and signed this list of rules.

¶ 9. In January 1998 Kaminski was charged with misdemeanor battery against his wife, [S.K.]. He entered a halfway house for substance abuse treatment, and sporadically attended an "Alternative to Abuse" program. After a restraining order was issued prohibiting him from having any contact with S.K., Kaminski was convicted of battery on March 18, 1998, and sentenced to 18 months probation. After numerous violations of the restraining order, Kaminski was returned to jail. When he was released, he returned to the halfway house, but continued to contact S.K. He was therefore discharged from the halfway house and returned to jail. At this point, Kaminski's probation on the battery conviction was revoked, and he was sentenced to nine months in jail with credit for time served.

¶ 10. With Kaminski due to be released from the Chippewa County Jail on December 19, 1998, Agent O'Connell issued him additional rules of probation, numbered 16-1 through 16-25. These rules included a prohibition of contact with S.K.,³ and a requirement that he register as a sex offender, pursuant to Wis. Stat. §§ 301.45 and 301.46. Also included was rule 16-3 which stated: "You shall notify your agent of any involvement in an intimate relationship at its beginning and you shall introduce the person to your agent to disclose your past sexual offenses prior to engaging in any type of sexual activity with that person." Rule 16-25, which was handwritten, stated: "You will notify the neighbors on each side that you are a convicted sex offender by Dec. 24, 1998. You will report to your agent on Jan. 4, 1999 at 9 AM." Kaminski agreed to and signed these rules on December 18, 1998.

¶ 11. Upon his release from jail the next day, Kaminski moved into a trailer park in Chippewa Falls. Nine days later, on December 28, 1998, Agent O'Connell was notified that Kaminski had allegedly sexually assaulted Tamala B., an Eau Claire woman, the night before. Agent O'Connell contacted Kaminski after he was taken into custody. Kaminski admitted in writing that he had sexual relations with Tamala B. without notifying his probation agent, but he denied sexually assaulting the woman. He also admitted in writing that he had not informed his neighbors of his sex offender status. When Agent O'Connell learned that Kaminski was being charged with second degree sexual assault, she initiated probation revocation proceedings, and Kaminski was transferred to the Trempealeau County Jail.

¶ 12. Agent O'Connell filed a "Violation Investigation Report," claiming that Kaminski had violated three rules of probation. She alleged that by sexually assaulting Tamala B., Kaminski violated a statute, contrary to rule 1, and engaged in sexual relations without informing his agent, contrary to rule 16-3. Agent O'Connell also alleged that Kaminski failed to inform the neighbors immediately on either side of his trailer of his status as a sex offender, contrary to rule 16-25.

¶ 13. A probation revocation hearing was held on February 23, 1999. An administrative law judge (ALJ) heard testimony from Kaminski, Tamala B., and other witnesses, and received Agent O'Connell's "Violation Investigation Report" and revocation summary. Kaminski testified that he had sexual relations with Tamala B., but characterized the incident as consensual. He admitted that he had not first contacted his agent to assure that Tamala B. would be informed of his conviction. He also admitted that he had not told his neighbors about his status as a sex offender, but claimed that telling them was unnecessary because they did not have children.

¶ 14. On March 8, 1999, the ALJ issued a written decision, determining that Kaminski had not sexually assaulted Tamala B. but had engaged in sexual relations with her without first telling his agent, in violation of rule 16-3. The ALJ also found that Kaminski had violated probation rule 16-25 by not informing his immediate neighbors of his status as a convicted sex offender. The ALJ concluded that these two rule violations were sufficiently serious to warrant revocation of Kaminski's probation.

¶ 15. The Division of Hearings and Appeals (DHA) sustained the ALJ's decision on March 23, 1999.

¶ 16. Kaminski appealed the decision of the DHA to the Trempealeau County Circuit Court via a writ of certiorari. The circuit court affirmed the revocation of Kaminski's probation, stating that it could not "find these rules inherently unreasonable" and could not "find that the rules were so unreasonable that the decision to revoke was arbitrary and unreasonable or beyond the law."

¶ 17. Kaminski then appealed to the court of appeals, which reversed the circuit court judgment. Kaminski, 238 Wis. 2d 16, ¶ 11. The court of appeals decision focused on rule 16-25, which required Kaminski to inform his immediate neighbors of his sex offender status. Id. at ¶¶ 8-12. The court of appeals stated that "by enacting Wis. Stat. § 301.46, the legislature provided limitations on access to sex offender registration information." Id. at ¶ 11....