*1 Kaminski, Petitioner-A Carl of Wisconsin ex rel. State ppellant,† Administrator, of Hear Division David H. Schwarz, Respondent-Respondent. ings Appeals, Appeals
Court of May 2000. Decided Submitted on No. 99-3040. briefs 20, 2000. June App 2000 WI 148.) (Alsoreported in 616 N.W.2d granted. to review †Petition *2 petitioner-appellant, On behalf of the the cause Lang, submitted T. was on the briefs of Donald assis- tant state defender. respondent-respondent,
On behalf of the the cause Doyle, attorney was submitted on the brief of James E. general, attorney and C. William assistant Wolford, general. C.J., Cane, Hoover, P.J., Peterson,
Before and J. appeals ¶ 1. Carl CANE, C.J. Kaminski from a judgment affirming Depart- on certiorari review the ment of his Corrections' decision to revoke argues department's Kaminski that decision to failing revoke his for his arbitrary, status contrary unreasonable and to Wisconsin law. Because probation may the revocation of Kaminski's not be comply on his based failure with a condition that is § 301.46,1 inconsistent with we WlS. reverse the Stat. 1 All references Wisconsin Statutes are to the 1997-98 version unless otherwise noted. proceedings
judgment consis- and remand further opinion. with this tent
Background 1996, In convicted 2. March Kaminski was guilty second-degree upon plea of one sex- count 948.02(2). child, ual assault of a to Wis. stayed ten-year imposed sentence The trial court years' probation. placed on As a con- Kaminski ten probation, Kaminski to dition of court ordered year Among county jail. one in the the other con- serve probation imposed, additionally ditions of court persons that directed Kaminski have no contact with age eighteen. under the jail April completed undisputed subsequently
condition, and it he *3 reported his to local enforce- status compliance requirements ment, in with the notification Registration Law, of Wisconsin's Sex Offender 301.45. In December Kaminski's court-ordered probation supplemented of were addi- conditions with imposed by probation agent. rules Of tional his these agent provided: notify your rules, Rule shall 16-3 "You any relationship Intimate of in an at involvement its your beginning you person shall introduce the agent your past prior to disclose sexual offenses activity engaging any type per- of sexual provided: notify turn, 16-25 "You son." In Rule will neighbors you on each side that are a convicted sex 24,1998." offender December subsequently into 5. Kaminski taken cus- tody investigation alleged for violations sought probation. conditions of his probation of Kaminski's based on three revocation (1) alleged department alleged violations. The that: contrary 16-3, to Rule Kaminski had sexual relations Breidung informing pro- with Tamala without first his (2) introducing agent; bation to his her notify neighbors Kaminski failed to his required by sex offender status, as was Rule 16-25; and (3) sexually Breidung. Kaminski assaulted
¶ 6. Kaminski conceded that he had sexual rela- Breidung notifying agent, tions with without first his but he denied that the sexual contact was nonconsen- sual. Kaminski also admitted that he had not notified his of his convicted sex offender status. Fol- lowing hearing, a revocation the administrative law judge sexually found that Kaminski did not assault Breidung, but nevertheless concluded that Kaminski's two conceded violations warranted revoca- Hearings tion of his The Division of Appeals sustained Kaminski's revocation. department's The circuit court affirmed the decision appeal and this followed.
Analysis argues department's ¶ 7. that the deci- failing sion to revoke neighbors of his convicted sex offender status was arbi- trary, unreasonable and to Wisconsin law. department's Our review is of the decision, not that of the circuit court. See State ex rel. Warren v. Schwarz, (Ct. 1997). App. Wis. 2d *4 "(1) Further, on certiorari, our review is limited to: (2) stayed jurisdiction; whether the tribunal within its (3) according whether it acted law; whether its action arbitrary, oppressive repre- or unreasonable and (4) judgment; will, sented its not its whether the reasonably might make the it was such that evidence it did." Id. decision that probation rule the contends that 8. Kaminski notify
mandating
convicted
of his
that he
registration and
is
to the
sex offender status
§§ 301.45
forth in WlS. Stat.
scheme set
notification
requires
agree.
sex
Section 301.45
and 301.46.2 We
providing
department,
register
offenders to
description, place
physical
address,
name,
"their
they
employment
for which
school, and the offenses
Bollig,
¶6, 6, 232
2000 WI
State v.
were convicted."
grants
§
turn,
561,
199. In
301.46
2d
605 N.W.2d
provided
under
information
access to the
however,
§
not,
301.46 does
automati-
301.45. Section
cally "grant
carte
access to
blanche
Bollig,
¶at 24.
Although is more access liberal for law enforcement agencies, release information to members of the general requires compliance enumer- ated conditions and is limited 'providing to when the necessary to protect public.1 information [Section does not 301.46] allow for indiscrimi- nate publication offender's vital information. pro- ¶at 24.
Id.
Thus Kaminski's
divulging
from
hibited
Kaminski's sex offender status
neighbors.
¶ 10. Kaminski's
was nevertheless
part,
neigh-
revoked, in
he failed to
because
301.45(7)(a)
in
provides,
part:
relevant
Wisconsin Stat.
keep
except
shall
information confidential
as
301.03(14)
provided
301.46, except
in ss.
and
as needed for law
except
response
purposes
provide,
enforcement
to a
49.22(2m)
request
depart-
under
for information
s.
made
development
county
support agency
ment of workforce
or a
child
59.53(5),
registered
under s.
the name
address of an individual
section,
of the
under this
the name and address
individual's
employer
and financial information related to
individual.
The State does
status.
sex offender
bors
requested
Kaminski's
not contend
301.46(5),
pursuant
nor
information
enforce-
instance of a law
an
it contend this was
does
*6
protect
releasing
information to
ment official
301.46(2)(e). Rather,
public.
§
as a condi-
See
Stat. Wis.
probation
probation, Kaminski's
tion of his
divulge
attempted
his convicted
to
to force Kaminski
neighbors
status to his
sex offender
—information
them
available to
not have been
otherwise
pursuant
request
§ 301.46.
made
a
absent
Bollig,
supreme
¶
court reviewed
11.
our
legislative
intent
the sex
behind
underlying
legislation
noting
law,
that "the intent
community protection"
balanc-
and involved
related to
"community protection
ing
the offender's
with
re-integration
community
¶ 22. The court
needs." Id. at
suggestion
drafting
"limited
notes'
noted the
further
registry, discouraging the use
access to the sex offender
fli-
releases, distribution of door-to-door
of mass media
may
any
of notification that
be
other method
ers, By enacting
Id. at
as intrusive."
described
legislature provided
limitations on
301.46, registration information. We con-
access to sex offender
agent may
probation
not
Kaminski's
clude that
by forcing
statutory limitations
circumvent
these
probation and
Kaminski,
condition of his
absent
as a
neighbors,
divulge
any request by
his convicted
his
conditioning
facts,
Under these
sex offender status.
notify
probation
requirement
that he
on a
Kaminski's
neighbors
sex offender status
his
should not have been
and, thus,
to 301.46
revoking
his
used as basis
Despite
¶ 12.
our determination that Kaminski's
his
revocation should not have been based on
notify
failure to
of his sex offender status,
Kaminski concedes that he violated
Rule
by failing
probation agent
16-3
about his
relationship
Breidung.
intimate
We therefore
judgment denying
reverse the
certiorari
relief and
remand the matter to the
to determine
single remaining
whether the
violation is sufficient to
Snajder
warrant revocation. See
State,
74 Wis. 2d
303, 316,
By Judgment reversed and cause Court. — remanded with directions. (dissenting). majority 13. HOOVER, P.J. improperly
concludes that Kaminski's *7 probation, revoked because the violated condition of personally that Kaminski disclose his sex offender sta- tus to the on each side trailer, of his was registration to the sex offender and notifica- law).1 (registration disagree tion statutes I respectfully therefore dissent. majority recognizes registra-
¶ 14. The that the essentially public protection tion law is a enactment community that takes into account the offender's rein- tegration respect needs. With latter, to the the legislation designed spare to offenders intrusive concerning notification methods is, all, what after public Bollig, matter of record. See State v. 2000 WI ¶ Bollig 6, 232 2d 605 N.W.2d 199. The legislative drafting decision's reference to a note 301.45, See WlS. STAT. statutory §§ 301.46. All references are to the 1997—98 version. "intrusive" of what constitutes the nature on
informs to the "limited access methods: notification discouraging registry, media use of mass the at fliers . . . Id. door-to-door releases, of distribution Community (quoting ¶ DOC, Sex Notifica- Offender (1994)). probation here at issue of ii The condition tion examples substantially cited. the less intrusive than is being spectrum, opposite end of the Rather, it is at the reasonably certainly extremely specific, and narrow, purpose protecting registration of law's to the related public. the registration perceive does not the I that 15. balancing probation minimal condition's the
foreclose efficacy protecting against that its intrusiveness immediately exposed segment to most overwhelmingly favors Kaminski, and that the balance condition. by majority's is driven its The decision . requiring legitimate Kaminski to do what that concern probation agent registration could law the under the §§ I 301.46. 301.45 and not, circumvents Wis. differently. my approach question view, may be officer's activities while registration law,2 what is at issue restrained applicable Kaminski, not his to is the law this case probation, agent. not on Kamin- is affecting subject to the laws is, and he is therefore ski asserts, the State there Moreover, as that status. history express nothing lan- in the law's legislative guage limit intent indicate a authority impose are conditions *8 2 301.45(7) department provides: "The Stat. Wisconsin keep the information confidential shall
24 otherwise reasonable and I appropriate.3 would hold the existence of registration law, its effect on of Corrections Department does notwithstanding, not affect the department's authority to reason- impose and appropriate able conditions of probation under its general supervisory authority.4 17. The law concerning to which is subject, shares with the registration the goal protecting as public well as the purpose of rehabilitating Kaminski.5 Conditions that address See State goals these are reasonable appropriate. v. Oakley, 37, 8, 234 2000 528, 609 WI Wis. 2d N.W.2d 786.6 I Again, would hold that the neighbor notification
condition promote these goals. Obviously it would alert Kaminski's of the advisability to
3 correctly The State "Certainly further observes: there is provision no in Wis. Stat. 301.45 and 301.46 §§ which indicates provide that these statutes were to the exclusive method public which members of the were to be able to obtain informa living neighborhood." tion about sex offenders in their 4 301.63(3) authorizes the Wisconsin Stat. administer provides 973.09 that a Wisconsin person placed Department." "on to the "The conditions of supposed are to be tailored to purposes i.e., serve the dual probation, protect from help probationer criminal conduct and to become society." Wagner State, useful member of 89 Wis. 2d 6Conditions that aid in include rehabilitation those that prevent probationer getting may from into situations that lead to further criminal conduct or that force the offender to be hon by confronting admitting sexually est with others deviant behavior, thereby Simonetto, preventing relapse. See State v. 6-7, 315, App 275; 2000 WI 2dWis. 606 N.W.2d ¶¶ (Ct. Schwarz, 127, 131, 568 Krebs v. 2d App. N.W.2d 26 1997). *9 vigilance. special in v. Moreover, as Krebs exercise (Ct. 26 127, 131, 2d 568 N.W.2d
Schwarz, 212 Wis. prevent relapse 1997), necessary help App. it is by compelling to deal his criminal behavior honestly regarding openly with behavior. Finally, agree the State that Kamin- I appellate principal issue. The trial court
ski waived given opportunity address the effect of was never authority department's on the the impose appropriate condi- reasonable to review. Therefore, there is no trial court error tions. may, proper appellate case, in a con- an court While appeal, on see State issues for the first time sider new City Creek, 299, 319, 49 2d Oak Wis. ex rel. GMC (1971), generally, province this court errors. See Hillman v. court is to correct trial 913 Co., 376, 396, 2d 474 N.W.2d Columbia (Ct. Wis. 1991). App. Furthermore, denied the ben- we were analysis. Terpstra v. circuit See efit of the court's Soiltest, Inc., 2d 218 N.W.2d foregoing reasons, I affirm 19. For the the circuit court.