State Ex Rel. Kaminski v. Schwarz

2000 WI App 159, 616 N.W.2d 148, 238 Wis. 2d 16, 2000 Wisc. App. LEXIS 591
CourtCourt of Appeals of Wisconsin
DecidedJune 20, 2000
Docket99-3040
StatusPublished
Cited by4 cases

This text of 2000 WI App 159 (State Ex Rel. Kaminski v. Schwarz) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State Ex Rel. Kaminski v. Schwarz, 2000 WI App 159, 616 N.W.2d 148, 238 Wis. 2d 16, 2000 Wisc. App. LEXIS 591 (Wis. Ct. App. 2000).

Opinions

CANE, C.J.

¶ 1. Carl Kaminski appeals from a judgment affirming on certiorari review the Department of Corrections' decision to revoke his probation. Kaminski argues that the department's decision to revoke his probation for failing to notify his neighbors of his convicted sex offender status was arbitrary, unreasonable and contrary to Wisconsin law. Because the revocation of Kaminski's probation may not be based on his failure to comply with a condition that is inconsistent with WlS. Stat. § 301.46,1 we reverse the [18]*18judgment and remand for further proceedings consistent with this opinion.

Background

¶ 2. In March 1996, Kaminski was convicted upon his guilty plea of one count of second-degree sexual assault of a child, contrary to Wis. Stat. § 948.02(2). The trial court imposed and stayed a ten-year sentence and placed Kaminski on ten years' probation. As a condition of his probation, the court ordered Kaminski to serve one year in the county jail. Among the other conditions of probation imposed, the court additionally directed that Kaminski have no contact with persons under the age of eighteen.

¶ 3. In April 1997, Kaminski completed the jail condition, and it is undisputed that he subsequently reported his sex offender status to local law enforcement, in compliance with the notification requirements of Wisconsin's Sex Offender Registration Law, Wis. Stat. § 301.45.

¶ 4. In December 1998, Kaminski's court-ordered conditions of probation were supplemented with additional rules imposed by his probation agent. Of these rules, Rule 16-3 provided: "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." In turn, Rule 16-25 provided: "You will notify the neighbors on each side that you are a convicted sex offender by December 24,1998."

¶ 5. Kaminski was subsequently taken into custody for investigation of alleged violations of the conditions of his probation. The department sought revocation of Kaminski's probation based on three [19]*19alleged violations. The department alleged that: (1) contrary to Rule 16-3, Kaminski had sexual relations with Tamala Breidung without first informing his probation agent or introducing her to his agent; (2) Kaminski failed to notify his neighbors of his convicted sex offender status, as was required by Rule 16-25; and (3) Kaminski sexually assaulted Breidung.

¶ 6. Kaminski conceded that he had sexual relations with Breidung without first notifying his agent, but he denied that the sexual contact was nonconsen-sual. Kaminski also admitted that he had not notified his neighbors of his convicted sex offender status. Following a revocation hearing, the administrative law judge found that Kaminski did not sexually assault Breidung, but nevertheless concluded that Kaminski's two conceded probation violations warranted revocation of his probation. The Division of Hearings and Appeals sustained Kaminski's probation revocation. The circuit court affirmed the department's decision and this appeal followed.

Analysis

¶ 7. Kaminski argues that the department's decision to revoke his probation for failing to notify his neighbors of his convicted sex offender status was arbitrary, unreasonable and contrary to Wisconsin law. Our review is of the department's decision, not that of the circuit court. See State ex rel. Warren v. Schwarz, 211 Wis. 2d 710, 717, 566 N.W.2d 173 (Ct. App. 1997). Further, on certiorari, our review is limited to: "(1) whether the tribunal stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable and represented its will, not its judgment; and (4) whether the [20]*20evidence was such that it might reasonably make the decision that it did." Id.

¶ 8. Kaminski contends that the probation rule mandating that he notify his neighbors of his convicted sex offender status is contrary to the registration and notification scheme set forth in WlS. Stat. §§ 301.45 and 301.46.2 We agree. Section 301.45 requires sex offenders to register with the department, providing "their name, address, physical description, place of employment or school, and the offenses for which they were convicted." State v. Bollig, 2000 WI 6, ¶ 6, 232 Wis. 2d 561, 605 N.W.2d 199. In turn, § 301.46 grants access to the registration information provided under § 301.45. Section 301.46 does not, however, automatically "grant the public carte blanche access to the information." Bollig, 2000 WI 6 at ¶ 24.

¶ 9. Under WlS. Stat. § 301.46(2), access to a sex offender's registration information is made available to "the police chief of any community and the sheriff of any county in which the person is residing, is employed or is attending school." In addition, the department will make a reasonable attempt to notify a victim or members of a victim's family of a sex offender's registration, if such a request has been made. See WlS. Stat. § 301.46(3)(b). Agencies and organizations other than [21]*21law enforcement agencies may also request information from the department regarding persons registered tinder § 301.46(4). The statute additionally provides access to the information for the general public. Under § 301.46(5), an individual, upon request, may obtain sex offender information if the department, the police chief or sheriff determine that release of the information is necessary to protect the public and the individual. Subject to these specific requests and a number of inapplicable exceptions, the department is otherwise required to keep sex offender registration information confidential. See WiS. Stat. § 301.45(7)(a).3 The Bollig court recognized:

Although access is more liberal for law enforcement agencies, release of information to members of the general public requires compliance with enumerated conditions and is limited to when 'providing the information is necessary to protect the public.1 [Section 301.46] does not allow for the indiscriminate publication of a sex offender's vital information.

Id. at ¶ 24. Thus Kaminski's probation agent was prohibited from divulging Kaminski's sex offender status to his neighbors.

¶ 10. Kaminski's probation was nevertheless revoked, in part, because he failed to notify his neigh[22]*22bors of his convicted sex offender status. The State does not contend that Kaminski's neighbors requested the information pursuant to Wis. Stat. § 301.46(5), nor does it contend this was an instance of a law enforcement official releasing the information to protect the public. See Wis. Stat. § 301.46(2)(e).

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Related

State Ex Rel. Kaminski v. Schwarz
2001 WI 94 (Wisconsin Supreme Court, 2001)
State Ex Rel. Kaminski v. Schwarz
2000 WI App 159 (Court of Appeals of Wisconsin, 2000)

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Bluebook (online)
2000 WI App 159, 616 N.W.2d 148, 238 Wis. 2d 16, 2000 Wisc. App. LEXIS 591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-kaminski-v-schwarz-wisctapp-2000.