State Ex Rel. Kaminski v. Schwarz

HOOVER, P.J.

¶ 13. (dissenting). The majority concludes that Kaminski's probation was improperly revoked because the violated condition of probation, that Kaminski personally disclose his sex offender status to the neighbors on each side of his trailer, was contrary to the sex offender registration and notification statutes (registration law).1 I disagree and therefore respectfully dissent.

¶ 14. The majority recognizes that the registration law is essentially a public protection enactment that takes into account the offender's community reintegration needs. With respect to the latter, the legislation was designed to spare offenders intrusive notification methods concerning what is, after all, a matter of public record. See State v. Bollig, 2000 WI 6, ¶ 6, 232 Wis. 2d 561, 568, 605 N.W.2d 199. The Bollig decision's reference to a legislative drafting note *24informs on the nature of what constitutes "intrusive" notification methods: "limited access to the sex offender registry, discouraging the use of mass media releases, distribution of door-to-door fliers . . . Id. at ¶ 22 (quoting DOC, Sex Offender Community Notification ii (1994)). The condition of probation at issue here is substantially less intrusive than the examples cited. Rather, it is at the opposite end of the spectrum, being extremely narrow, specific, and certainly reasonably related to the registration law's purpose of protecting the public.

¶ 15. I perceive that the registration law does not foreclose balancing the probation condition's minimal intrusiveness against its efficacy for protecting that segment of the public most immediately exposed to Kaminski, and that the balance overwhelmingly favors the condition.

¶ 16. 1 The majority's decision is driven by its . legitimate concern that requiring Kaminski to do what under the registration law the probation agent could not, circumvents Wis. Stat. §§ 301.45 and 301.46. I would approach the question differently. In my view, while the probation officer's activities may be restrained by the registration law,2 what is at issue in this case is the law applicable to Kaminski, and not his agent. The probation agent is not on probation, Kamin-ski is, and he is therefore subject to the laws affecting that status. Moreover, as the State asserts, there is nothing in the registration law's history or express language to indicate a legislative intent to limit the authority to impose conditions of probation that are *25otherwise reasonable and appropriate.3 I would hold that the existence of the registration law, its effect on the Department of Corrections notwithstanding, does not affect the department's authority to impose reasonable and appropriate conditions of probation under its general supervisory authority.4

¶ 17. The law concerning probation to which Kaminski is subject, shares with the registration law the goal of protecting the public as well as the purpose of rehabilitating Kaminski.5 Conditions that address these goals are reasonable and appropriate. See State v. Oakley, 2000 WI 37, ¶ 8, 234 Wis. 2d 528, 609 N.W.2d 786.6 Again, I would hold that the neighbor notification condition would promote these goals. Obviously it would alert Kaminski's neighbors of the advisability to *26exercise special vigilance. Moreover, as in Krebs v. Schwarz, 212 Wis. 2d 127, 131, 568 N.W.2d 26 (Ct. App. 1997), it is necessary to help prevent a relapse in his criminal behavior by compelling Kaminski to deal honestly and openly with his neighbors regarding that behavior.

¶ 18. Finally, I agree with the State that Kamin-ski waived his principal appellate issue. The trial court was never given the opportunity to address the effect of the registration law on the department's authority to impose reasonable and appropriate probation conditions. Therefore, there is no trial court error to review. While an appellate court may, in a proper case, consider new issues for the first time on appeal, see State ex rel. GMC v. City of Oak Creek, 49 Wis. 2d 299, 319, 182 N.W.2d 481 (1971), generally, the province of this court is to correct trial court errors. See Hillman v. Columbia Co., 164 Wis. 2d 376, 396, 474 N.W.2d 913 (Ct. App. 1991). Furthermore, we were denied the benefit of the circuit court's analysis. See Terpstra v. Soiltest, Inc., 63 Wis. 2d 585, 593, 218 N.W.2d 129 (1974).

¶ 19. For the foregoing reasons, I would affirm the circuit court.

Wisconsin Stat. 301.45(7) provides: "The department shall keep the information confidential

The State further correctly observes: "Certainly there is no provision in Wis. Stat. §§ 301.45 and 301.46 which indicates that these statutes were to provide the exclusive method by which members of the public were to be able to obtain information about sex offenders living in their neighborhood."

Wisconsin Stat. § 301.63(3) authorizes the department to administer probation. Wisconsin Stat. § 973.09 provides that a person is placed "on probation to the Department."

"The conditions of probation are supposed to be tailored to serve the dual purposes of probation, i.e., to protect the public from criminal conduct and to help the probationer become a useful member of society." Wagner v. State, 89 Wis. 2d 70, 77, 277 N.W.2d 849 (1979).

Conditions that aid in rehabilitation include those that prevent probationer from getting into situations that may lead to further criminal conduct or that force the offender to be honest with others by confronting and admitting sexually deviant behavior, thereby preventing relapse. See State v. Simonetto, 2000 WI App 17, ¶¶ 6-7, 232 Wis. 2d 315, 606 N.W.2d 275; Krebs v. Schwarz, 212 Wis. 2d 127, 131, 568 N.W.2d 26 (Ct. App. 1997).