State v. Rippentrop

Docket NumberAppeal Nos. 2022AP92-CR,2022AP93-CR
Decision Date23 February 2023
Citation406 Wis.2d 692,2023 WI App 15,987 N.W.2d 801
Parties STATE of Wisconsin, Plaintiff-Appellant, v. Debra L. RIPPENTROP, Defendant-Respondent. State of Wisconsin, Plaintiff-Appellant, v. Steven E. Rippentrop, Defendant-Respondent.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Jennifer L. Vandermeuse, assistant attorney general, and Joshua L. Kaul, attorney general.

On behalf of the defendants-respondents, the cause was submitted on the brief of Jeremiah W. Meyer-O'Day, of Martinez & Ruby, LLP, Baraboo.

Before Blanchard, P.J., Graham, and Nashold, JJ.

GRAHAM, J.

¶1 The State appeals a circuit court order dismissing criminal charges against Debra Rippentrop and Steven Rippentrop (collectively, the Rippentrops) with prejudice. In reaching its decision to dismiss the charges, the circuit court determined that the then-district attorney entered into a nonprosecution agreement with the Rippentrops but that the agreement violates public policy, and the court declined to enforce it on that basis. The court nevertheless dismissed the criminal charges with prejudice as a remedy for what it determined to be prosecutorial misconduct. On appeal, the State argues that the court lacked authority to dismiss the charges based on prosecutorial misconduct, and the Rippentrops argue that the dismissal can be affirmed on multiple grounds, including the existence of the nonprosecution agreement, which they contend is not contrary to public policy and should be enforced against the State.

¶2 We conclude that the then-district attorney had authority to enter into a nonprosecution agreement that binds the State, that the State has not met its burden to show that the agreement violates public policy, and that the agreement must therefore be enforced. We therefore affirm the dismissal of the criminal charges with prejudice on that basis, without addressing whether dismissal would also be appropriate based on prosecutorial misconduct.

BACKGROUND

¶3 In February 2019, the State charged both Debra and Steven Rippentrop with second degree recklessly endangering safety, false imprisonment, physical abuse of a child, and mental harm to a child, each as party to a crime. The charges stemmed from abuse that the Rippentrops were alleged to have committed against their son, A.B.,1 in or around 2014 and 2015.

¶4 The Rippentrops filed a motion to dismiss the charges against them. As grounds, they alleged that they had entered into an unwritten nonprosecution agreement with Michael Solovey when he was the district attorney of Juneau County; that they had performed all of their obligations under the agreement; and that they detrimentally relied on the promises Solovey made on behalf of the State. Their motion argued that the State had breached the nonprosecution agreement by filing criminal charges against them, and it sought specific performance of the agreement.2 Along with their motion, the Rippentrops filed an affidavit by Solovey, which confirmed the existence of the nonprosecution agreement and the Rippentrops’ performance of the conditions of that agreement.

¶5 The circuit court held a two-day evidentiary hearing to determine whether the nonprosecution agreement existed and, if so, whether it should be enforced. Solovey, Debra Rippentrop, Steven Rippentrop, their former attorney, two attorneys from Juneau County's office of corporation counsel, and other county officials testified at the evidentiary hearing, and the exhibits included transcripts from a John Doe proceeding and a hearing in which the Rippentrops consented to terminations of their respective parental rights (TPR) to A.B.3 As discussed in greater detail below, the court ultimately determined that Solovey and the Rippentrops entered into a nonprosecution agreement, but the court declined to enforce the agreement on public policy grounds.

¶6 The following summary of facts is derived from the testimony and exhibits presented during the evidentiary hearing on the motion to dismiss.

Criminal Investigation and CHIPS Case

¶7 The Rippentrops’ alleged abuse of A.B. first came to the attention of law enforcement in January 2015, after the Rippentrops reported him to be missing. When law enforcement located A.B., he said that he had run away because the Rippentrops had been physically restraining him "24 hours a day seven days a week." That same day, law enforcement interviewed the Rippentrops. They both acknowledged that they had been restraining A.B., but took the position that they had done so as a desperate measure to prevent him from harming himself or others due to violent and destructive behavior.

¶8 A.B. was returned to the Rippentrops’ home that evening. He ran away from home again in the summer of 2015, again reporting abuse, and the county human services department removed A.B. from the Rippentrops’ home. The department ultimately placed A.B. in the custody of other relatives, who later became his proposed guardians and eventually his adoptive parents.

¶9 Meanwhile, following A.B.’s initial report in January 2015, law enforcement referred the matter to the district attorney, Solovey, to consider criminal charges. At the same time, county corporation counsel initiated a child in need of protection or services (CHIPS) case that proceeded on a parallel track with Solovey's criminal investigation. See WIS. STAT. §§ 48.13, 48.335, 48.345. The Rippentrops retained Attorney Kerry Sullivan-Flock to represent them in the CHIPS case, and to assist them in connection with any criminal charges that might be filed.

¶10 As a part of his criminal investigation, Solovey asked county officials to obtain a comprehensive physical and psychological evaluation of A.B. Solovey later testified that he had concerns about A.B.’s credibility and whether his testimony, which was the primary evidence against the Rippentrops, would be credited by a jury at a criminal trial. Solovey testified that he discussed his concerns with law enforcement, officials at the county department of human services, and A.B.’s guardian ad litem. For their part, county officials expressed disagreement with Solovey's assessment of a potential criminal case against the Rippentrops and took the position that Solovey should pursue criminal charges.

¶11 During this time, Solovey was aware of the ongoing CHIPS case. Based on his communications with the Rippentrops’ attorney, Sullivan-Flock, Solovey understood that the Rippentrops were challenging the allegations in the CHIPS case, and he believed that the case might result in A.B.’s return to the Rippentrops’ home. Based on his communications with county officials, A.B., and his guardian ad litem, Solovey believed that a return to the Rippentrops’ home would not be in A.B.’s best interests.

The Nonprosecution Agreement

¶12 On October 8, 2015, Solovey met with Sullivan-Flock and the Rippentrops and made the following settlement proposal. The State would not bring any criminal charges related to the Rippentrops’ alleged abuse of A.B. if the Rippentrops would cooperate with the county in the CHIPS case and in any other regard, cease all contact with A.B., and voluntarily consent to terminations of their respective parental rights. Solovey's settlement proposal was communicated orally and was never reduced to writing.

¶13 Also on October 8, 2015, shortly after the settlement meeting, Solovey emailed law enforcement, stating: "I made a proposal to the Rippentrops and their attorney that, I am confident, is in the best interest of [A.B.], the Criminal Justice system, and the people of Juneau County. Please be advised that no criminal charges shall be filed in this matter at the present time, pending further negotiations in regard to the welfare and future of [A.B.]"

¶14 Also that same day, Solovey sent a similar email to two attorneys at the office of Juneau County corporation counsel, David Lasker and Margaret Waterman, who were handling the CHIPS case. Solovey wrote: "Please be advised that ... I made a proposal to the Rippentrops and their attorney that, I am confident, will facilitate and render more sure and effective your negotiations with them in regard to the future of their son, [A.B.]; and is in the best interests of [A.B.], the Criminal Justice system and the people of Juneau County." Solovey asked Lasker and Waterman to contact him "if either or both of you would like to meet to discuss this very important matter further." Lasker responded by email, stating: "I am not sure what you are talking about when you say that you ‘made a proposal to the Rippentrops and their attorney.’ " Lasker continued: "My question to you is whether you are going to file criminal charges against them or not. Please tell me if you have made your decision on that, one way or the other." Solovey responded: "Sorry for the confusion. No criminal charges at the present time."

¶15 Sullivan-Flock also reached out to Waterman at the office of corporation counsel to discuss the settlement. On November 3, 2015, she wrote, in relevant part:

The Rippentrops and myself had a meeting with the DA in Juneau County regarding his review of possible criminal charges. He did offer a global resolution that was not unacceptable to the Rippentrops but certainly would require the county's participation at some level. Without disclosing all the details, the concepts of guardianship and termination of parental rights were both discussed. The goal of the DA seemed to be that [A.B.] would not return to live with the Rippentrops which would be their goal as well. There are some concerns for both types of resolutions, including a concern for [A.B.’s] insurance coverage since the Rippentrop[ ]s would not want [A.B.’s proposed guardians] to have to bear that cost. A termination of parental rights was brought up by the DA. While the Rippentrops are willing to discuss this option, they again have
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