Michael A. Sveum v. Lance A. Wiersma

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
March 11, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP811 Cir. Ct. No. 2019CV1848

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

STATE OF WISCONSIN EX REL. MICHAEL A. SVEUM,

PETITIONER-APPELLANT,

V.

LANCE A. WIERSMA,

RESPONDENT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
VALERIE BAILEY-RIHN, Judge. Affirmed in part; reversed in part and cause
remanded with directions.

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

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2020AP811

¶1 PER CURIAM. Michael Sveum, pro se, appeals a circuit court
order affirming decisions of the Wisconsin Department of Corrections to deny
each of Sveum’s requests to modify special conditions of extended supervision
imposed by the Department.1 Sveum purports to raise exclusively constitutional
challenges to eight special conditions. We conclude that, with one partial
exception, Sveum fails to establish by a clear preponderance of the evidence that
any condition is overly broad in protecting the community and victims or is not
reasonably related to his rehabilitation. We also conclude that any additional
constitutional arguments he may intend to make are without merit, undeveloped,
or both. Accordingly, we affirm on all issues with one exception that requires
remand.2

¶2 As we explain below, the exception requiring remand involves the
aspect of one condition that prohibits Sveum from owning, possessing, or having
access to “any” “style of facemask.”

¶3 We now briefly summarize some of the pertinent history from the
record that is cited by the State, none of which Sveum disputes for purposes of this

1
The named respondent is the individual division administrator for the Department’s
division of community corrections, but there is no issue about the proper status of the respondent
party and for the sake of simplicity we refer to the party as the Department.
2
We need not consider Sveum’s argument on appeal that the circuit court erred in
determining that WIS. STAT. § 302.113(7m)(e)2. (2019-20) prevents supervised persons from
raising, within one year after release, non-constitutional challenges to conditions of supervision in
petitions for modification of conditions. This is because Sveum raises only constitutional
challenges. After the State makes this point, Sveum concedes the point by failing to reply to it.
See United Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d
578 (appellant’s failure to respond in reply brief to an argument made in respondent’s brief may
be taken as a concession).

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise
noted.

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appeal.3 Sveum was convicted in December 1994 for violating a restraining order
in October 1994. The restraining order prohibited him from contacting A.B. 4 He
was given a disposition of 18 months of probation. Sveum’s unlawful contact
with A.B. involved letting air out of one of her car tires while it was parked
outside her residence.

¶4 In addition, A.B. reported that one day in October 1994, Sveum,
then her former boyfriend, confronted her in the front entrance to her apartment
building. He grabbed A.B., and told her that he would ruin all of her future
relationships and that he would be hiding in the bushes and blow her head off.

¶5 A mutual friend of Sveum and A.B. reported to police that Sveum
had said all of the following to the mutual friend. Sveum “would never allow
[A.B.] to have a relationship with a guy and would harass any relationship she
tried to start” with anyone else, because he wanted her to be “single until she’s 30

3
Pertinent case histories are also summarized in a series of appellate court opinions and
orders.

One set of opinions involves Sveum’s 1996 convictions for stalking, harassment,
violating a harassment injunction, and criminal damage to property. See State v. Sveum, 220
Wis. 2d 396, 584 N.W.2d 137 (Ct. App. 1998) (affirming judgment); State v. Sveum,
No. 1999AP2437, unpublished slip op. (WI App April 27, 2000) (affirming order denying
postconviction motion under WIS. STAT. § 974.06 challenging same judgment); State v. Sveum,
2002 WI App 105, 254 Wis. 2d 868, 648 N.W.2d 496 (affirming circuit court order denying
Sveum’s motion for postconviction relief challenging same judgment); Sveum v. Smith,
No. 2007AP1846, unpublished slip op. (June 5, 2008) (affirming order denying petition for a writ
of habeas corpus in same case).

Another set of opinions involves Sveum’s October 2006 conviction for felony stalking
after a previous stalking conviction. See State v. Sveum, 2009 WI App 81, 319 Wis. 2d 498, 769
N.W.2d 53 (direct appeal), which was affirmed in State v. Sveum, 2010 WI 92, 328 Wis. 2d 369,
787 N.W.2d 317, but which was abrogated on a ground not pertinent to this appeal by United
States v. Jones, 565 U.S. 400 (2012).
4
We identify the victim using fictitious initials.

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and then she would see that he was the only one left that was available.” Sveum
was not concerned about conditions of the restraining order or of probation
because he did not think that “he was going to get caught.” Sveum would go into
A.B.’s garage when she was not home and check the mileage on her car, and he
used a log to track her movements and car mileage. He would go to the residences
of men A.B. dated and damage their cars.

¶6 In October 1996, Sveum was convicted of offenses that included
felony stalking, based on conduct in April 1996 in which he preyed upon A.B.
The conduct included damaging a vehicle owned by a man who dated A.B. This
resulted in prison sentences.

¶7 While Sveum was in prison, in 1999 and 2001, he enlisted his sister
to help track A.B., providing information about her employment, car, and living
arrangements.

¶8 Sveum was released from prison and was placed on parole and
probation supervision in July 2002, with conditions that included no contact with
A.B., and no possession of photos or items belonging to A.B. In a May 2003
search pursuant to a warrant, police seized items belonging to Sveum and his
sister. These items included three photos of A.B, a log recording A.B.’s activities
in March, April, and May 2003, including an entry that stated, “3/19 found her,”
and “a sheet listing addresses of Internet sites for conducting residence searches
and background checks.”

¶9 In April 2003, police placed a global positioning system (GPS)
tracking unit on Sveum’s car, which revealed Sveum driving “within yards” of
A.B.’s residence and in the vicinity of a pay phone that someone used to place
hang up calls to her residence.

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¶10 In October 2006, Sveum was convicted of the felony of stalking
after a previous stalking conviction based on his conduct regarding A.B. from
September 1999 to May 2003. The circuit court sentenced him to seven years and
six months of initial confinement, followed by five years of extended supervision.

¶11 In December 2006, a search of Sveum’s prison cell revealed items
that included the following: tax forms for A.B. from three different employers; an
envelope addressed to A.B. from a municipal agency; an insurance card for A.B.;
notes referencing people whom A.B. had allegedly dated, her employers, cars she
had owned, and names and phone numbers of co-workers; and a handwritten list
of items that included the following: “storage unit,” “revolvers,” “ammo,”
“knives,” “meat grinder,” “garbage bags,” “saws,” “helmet,” “gloves,” “wig,”
“tracking device,” “facemask,” “binoculars,” “scanner,” “tie-downs,” “silencer,”
“Halloween mask,” “Illinois/Minn. Plates,” and “chloroform.” This last list also
included the following:

Muriatic Acid—Eats away skin, eyeballs, lungs, etc. Use
elbow length Rubber gloves, rubber apron, face shield &
respirator. Use outside and wash with water. Cleans blood
up.

¶12 In October 2018, Sveum was again released from prison and began
the term of extended supervision with the conditions at issue in this appeal. At
that time, the Department informed him of both standard and special rules of
supervision (“special” meaning, specific to Sveum) that the Department was
imposing on him.5

5
The Department “may set conditions of extended supervision in addition to any
conditions of extended supervision ... set by the court … if the conditions set by [the Department]
do not conflict with the court’s conditions.” WIS. STAT. § 302.113(7). While Sveum makes
meritless arguments, discussed in the text, that various special conditions should not be imposed
(continued)

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¶13 Sveum filed a motion with the circuit court seeking, as pertinent
here, an order modifying some of the Department’s special conditions, which the
court addressed in an order in April 2019.6 The order denied this aspect of
Sveum’s motion on the ground that it was not properly before the court, ruling that
he could seek judicial review through a writ of certiorari only after he first
exhausted his potential administrative remedies with the Department.

¶14 Sveum then unsuccessfully sought modifications from, in turn, his
agent, the agent’s supervisor, regional chief, and administrator. The administrator
stated in a letter to Sveum that the challenged special rules “bear a reasonable
relationship to your rehabilitation while offering protection to the community, and
therefore are appropriate.”

¶15 Sveum initiated this proceeding by filing a petition for a writ of
certiorari in July 2019. The parties briefed the issues and the court entered a
decision and order affirming the Department’s denial of all modification requests.
Below we address in turn the arguments of the parties and our conclusion
regarding each modification request.

¶16 Certiorari review of the Department’s decision is limited to four
inquiries:

(1) whether the agency acted within the bounds of its
jurisdiction; (2) whether it acted according to law;
(3) whether its action was arbitrary, oppressive, or

because they overlap with and expand on other conditions imposed by the Department, he does
not argue that any of the challenged special conditions must be modified because they conflict
with conditions set by the sentencing court.
6
The Honorable Susan M. Crawford issued this order, but the Honorable Valerie L.
Bailey-Rihn issued the writ of certiorari and addressed the issues raised in this appeal.

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unreasonable and represented its will, not its judgment; and
(4) whether the evidence was sufficient that the agency
might reasonably make the determination that it did.

State ex rel. McElvaney v. Schwarz, 2008 WI App 102, ¶6, 313 Wis. 2d 125, 756
N.W.2d 441. As best we can discern, Sveum now argues that, as to each
challenged condition, the Department is not acting “according to law” by imposing
an unconstitutional condition.

¶17 We review the Department’s decision, not the decision of the circuit
court, although as we explain at various points we concur with, and have
benefitted from considering, the acute analysis of the circuit court. See id.

¶18 We recently had occasion to address constitutional challenges to
supervision conditions imposed by a circuit court, as opposed to special conditions
imposed by the Department. State v. King, 2020 WI App 66, ¶¶13, 18, 24, 394
Wis. 2d 431, 950 N.W.2d 891. However, neither party gives us any reason to
think that the following pertinent standards from King, which address a range of
different types of constitutional challenges that overlap with Sveum’s challenges,
do not apply equally to Sveum’s constitutional challenges to the Department-
imposed conditions:

“[C]onvicted felons do not enjoy the same degree of liberty
as those individuals who have not been convicted of a
crime.” [State v. Stewart, 2006 WI App 67, ¶12, 291
Wis. 2d 480, 713 N.W.2d 165].

We apply a two-part test to determine whether a
condition of extended supervision is unconstitutional. A
condition of extended supervision “may impinge upon
constitutional rights as long as” the condition: (1) is not
overly broad in protecting the community and victims; and
(2) is “reasonably related to the person’s rehabilitation.”
State v. Rowan, 2012 WI 60, ¶¶4, 10, 341 Wis. 2d 281, 814
N.W.2d 854 (quoted sources omitted); Stewart, 291
Wis. 2d 480, ¶12; see also State v. Miller, 175 Wis. 2d 204,
208, 499 N.W.2d 215 (Ct. App. 1993) (stating that this

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court uses those same standards when considering whether
a supervision restriction is constitutional under the First
Amendment).

A condition of supervision is reasonably related to a
defendant’s rehabilitation if the condition “assists the
convicted individual in conforming his or her conduct to
the law.” Rowan, 341 Wis. 2d 281, ¶10, 814 N.W.2d 854
(quoting State v. Oakley, 2001 WI 103, ¶21, 245 Wis. 2d
447, 629 N.W.2d 200). This is appropriate in part because
“encouraging lawful conduct” increases “protection of the
public.” Id.

Where, …, the condition is content neutral, that is to
say, where the condition is imposed without reference to
the content of the regulated activity, intermediate scrutiny
is applied. See State v. Jackson, 2020 WI App 4, ¶6 n.4,
390 Wis. 2d 402, 938 N.W.2d 639; see also [Packingham
v. North Carolina, 137 S. Ct. 1730, 1736 (2017)]. The
intermediate scrutiny test allows the government to impose
reasonable, content-neutral restrictions on speech that are
“narrowly tailored to serve a significant governmental
interest.” Packingham, 137 S. Ct. at 1736 (quoting
McCullen v. Coakley, 573 U.S. 464, 486 (2014)
(quotations omitted)); Ward v. Rock Against Racism, 491
U.S. 781, 791 (1989) (quoted source omitted). A condition
need not be the least restrictive means of advancing the
government’s interests in order to satisfy the “narrowly
tailored” requirement of intermediate scrutiny. See Turner
Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 662 (1994).
Rather, the standard is met so long as the restriction
“promotes a substantial government interest that would be
achieved less effectively absent the regulation.” Id.
(quoting Ward, 491 U.S. at 799 (quotations omitted)).

When a defendant seeks to have conditions of his or
her supervision changed, the defendant bears the burden of
showing cause for the modification. See State v. Hays, 173
Wis. 2d 439, 448, 496 N.W.2d 645 (Ct. App. 1992) (stating
that the proponent bears the burden “to establish by a clear
preponderance of the evidence that there is cause to modify
the terms and conditions of [supervision]”). Further, our
analysis takes into account the particular circumstances
presented ….

….

… [T]he determination of whether a condition of
supervision violates a defendant’s constitutional right is a

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question of law which we review de novo. Stewart, 291
Wis. 2d 480, ¶12.

King, 394 Wis. 2d 431, ¶¶20-25 (footnotes omitted). As noted in King, also
pertinent is the rule that “authority relating to the propriety of conditions of
probation is applicable to conditions of extended supervision.” State v. Koenig,
2003 WI App 12, ¶7 n.3, 259 Wis. 2d 833, 656 N.W.2d 499.

¶19 As to vagueness challenges in particular, a condition “must be
sufficiently precise for the probationer to know what conduct is required of him or
her.” State v. Lo, 228 Wis. 2d 531, 535, 599 N.W.2d 659 (Ct. App. 1999). “The
underlying basis for such a challenge is the procedural due process requirement of
fair notice.” Id. A condition is not unconstitutionally vague “‘if any reasonable
and practical construction can be given its language or if its terms may be made
reasonably certain by reference to other definable sources.’” Id. at 535-536
(quoted source omitted).

¶20 Before addressing the challenged conditions in turn, we make
observations about three sets of major deficiencies in Sveum’s briefing on appeal,
all of which (often in combination) significantly undermine his arguments.

¶21 First, as the State points out, Sveum’s opening brief makes only
selective references to his history of stalking and violating lawful orders and rules.
Sveum appears not to understand the burden he assumes in seeking modification
of conditions based on constitutional challenges; it is his burden to show why the
conditions are unconstitutional in light of his particular history. The issue is
whether Sveum can show that “the condition is overly broad in light of the history
and actions of this particular” defendant. See King, 394 Wis. 2d 431, ¶58.
Compounding this pervasive problem, even after the State points out this

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deficiency in its response brief, Sveum’s reply brief continues to provide what are
at best isolated references to pertinent history. This approach omits critical
context, which is fatal to many of his arguments, particularly in light of Sveum’s
burden of proof.

¶22 Second, Sveum frequently ignores the proper standards of review,
which as quoted above call for us to review de novo challenged decisions of the
Department. Therefore, contrary to Sveum’s frequent approach, it does not
constitute a developed argument for Sveum merely to question particular circuit
court interpretations, which we need not consider.

¶23 Third, also noted by the State, at multiple points in his briefing
Sveum inappropriately relies on federal case law interpreting 18 U.S.C. § 3583(d),
which requires that supervision conditions imposed by federal courts “involve[] no
greater deprivation of liberty than is reasonably necessary for the purposes set
forth in” other federal statutes. This federal rule calling for narrow tailoring does
not apply in Wisconsin cases, as Sveum implicitly concedes by failing to reply to
this point in his reply brief. See United Co-op. v. Frontier FS Co-op., 2007 WI
App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (appellant’s failure to respond in
reply brief to an argument made in respondent’s brief may be taken as a
concession). Instead, as reflected in our quotation from King above, we apply the
rule that conditions may not be overly broad and must be reasonably related to the
rehabilitation.

Special Rule 010: Wear GPS Device

¶24 Special Rule 010 requires the following:

You shall wear a GPS monitoring device and comply with
all other requirements of the monitoring system as directed

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by your agent. You shall not tamper with your GPS
bracelet. You shall be responsible for the replacement cost
[of] lost, stolen, or damaged equipment; except in the case
of malfunctioning caused by faulty manufacturing.

Sveum offers no developed argument that might establish by a clear
preponderance of the evidence that, as applied to him, the GPS condition is overly
broad in protecting the community and victims and is not reasonably related to his
rehabilitation. See King, 394 Wis. 2d 431, ¶21. It is aimed at protecting A.B. and
the community, and at rehabilitating Sveum, by preventing any recurrence of
Sveum’s persistent and disturbing pattern of stalking A.B., which Sveum pursued
despite escalating law enforcement and judicial responses that included a prison
sentence. See State v. Fisher, 2005 WI App 175, ¶17, 285 Wis. 2d 433, 702
N.W.2d 56 (“A condition reasonably relates to the goal of rehabilitation when it
assists the offender in conforming his or her behavior to the law.”). We could
reject Sveum’s argument on this issue for the sole reason that he fails to address
his relevant history. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633
(Ct. App. 1992) (observing that we may decline to review issues that are
undeveloped or inadequately briefed).

¶25 However, for the sake of completeness, we address as best we
understand them his assertions that might represent at least the start of developed
arguments and we reject as undeveloped any other arguments he may intend to
make on this topic. We need not address his misrepresentations of legal authority
and his citations to plainly irrelevant legal authority that diverge from the well-
established standards summarized in King, excerpted above.

¶26 As referenced above, Sveum’s challenge to the GPS condition
includes references to Fourth Amendment concepts. This includes an argument
based on the U.S. Supreme Court holding that it was a search for Fourth

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Amendment purposes when authorities required a convicted recidivist sex
offender who had completed his sentence to wear a GPS device. See Grady v.
North Carolina, 575 U.S. 306, 307-09 (2015). Whatever this argument aims at
does not adequately take into account the explanation in Grady that such a search
could be constitutional and that its reasonableness depends on the “totality of the
circumstances, including the nature and purpose of the search and the extent to
which the search intrudes upon reasonable privacy expectations.” Id. at 310.

¶27 In a case post-dating Grady, we determined that a GPS requirement
for a sex offender did not violate the Fourth Amendment. Kaufman v. Walker,
2018 WI App 37, ¶22-44, 382 Wis. 2d 774, 915 N.W.2d 193. We explained in
Kaufman that, under the Fourth Amendment’s “special needs doctrine,” a search
“‘unsupported by probable cause can be constitutional … when special needs,
beyond the normal need for law enforcement, make the warrant and probable-
cause requirement impracticable.’” Id., ¶¶39-40 (quoted source omitted)
(explaining that the “special needs doctrine,” which justifies “diminished privacy
expectations” under a balancing test, can apply when (1) the primary purpose of
government action is not to “uncover evidence of ordinary criminal wrongdoing”
but instead to deter future crimes and (2) meeting warrant requirements would be
“impractical”). “If a ‘special need’ exists, the task is to ‘balance the governmental
and privacy interests to assess the practicality of the warrant and probable-cause
requirements in the particular context.’” Id. (quoting Skinner v. Railway Labor
Execs.’ Ass’n, 489 U.S. 602, 619 (1989)).

¶28 Bearing those legal standards in mind, we agree with the circuit
court here that, taking into account the totality of the circumstances and the special
needs doctrine, the GPS condition does not violate the Fourth Amendment. The
totality of the circumstances and the governmental interest in protecting A.B. from

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any form of stalking or violence strongly support the curtailment of Sveum’s
privacy interests in this manner, at the discretion of the agent. Given Sveum’s past
proven desire and determined willingness to stalk A.B. over many years and
despite criminal court consequences, the governmental interest is extremely high.
Applicable here are observations of our supreme court, citing reasoning of the
U.S. Supreme Court, regarding the need for supervising agents in appropriate
cases to be able “‘to respond quickly to evidence of misconduct’” and to be able to
rely on “‘the deterrent effect’” of “‘expeditious searches.’” See State v. Purtell,
2014 WI 101, ¶26, 358 Wis. 2d 212, 851 N.W.2d 417 (quoting Griffin v.
Wisconsin, 483 U.S. 868, 876 (1987)).

¶29 On a possibly related note, Sveum emphasizes that he is not a
registered sex offender, for whom even lifetime GPS monitoring may not violate
the Fourth Amendment. See Kaufman, 382 Wis. 2d 774, ¶22-44. He argues that
“the privacy expectations of a sex offender pale in comparison to a non-sex
offender.” This abstract proposition is of no value. The analysis does not call for
a comparison between all sex offenders and all other offenders. We have already
explained the Fourth Amendment analysis. As to the balance of his constitutional
challenge, we are to determine whether Sveum, given his particular history and
circumstances, can show that requiring GPS monitoring does not “promote[] a
substantial government interest that would be achieved less effectively” without
GPS monitoring. We have already noted Sveum’s extreme and concerning
history.

¶30 Sveum briefly references statements by the Department, in 2018
while Sveum was still confined, that his “general recidivism” and “violent
recidivism” risks were classified as “low” under a risk assessment tool used by the
Department. However, Sveum fails to explain why these in-custody assessments,

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based on factual inputs and algorithms unknown to us, necessarily mean that the
Department must supervise Sveum as if there is little to no risk that he will return
to his persistent pattern of stalking A.B. For example, it is difficult to square a
belief that Sveum presents no risk to A.B. with his threat of death and his
gruesome list (while imprisoned for stalking A.B.) of methods to dispose of a
corpse.

¶31 Sveum asserts that the Department must be ordered to replace the
GPS monitoring condition with the supposedly less restrictive means of
accomplishing the same goals by requiring him “to wear a tamper-resistant
transmitter” and installing “a receiver in the victim’s residence.” However,
Sveum fails to cite to record evidence that this transmitter and victim-receiver
concept represents an effective, available, less-restrictive alternative to GPS
monitoring. In this context it is not sufficient for Sveum to toss out a theoretical,
purportedly less restrictive alternative. In sum, Sveum’s brief reference to this
purported alternative does not show that the GPS monitoring condition actually
imposed does not serve the goals of protection and rehabilitation or that the
condition does not “‘promote[] a substantial government interest that would be
achieved less effectively absent’” the GPS monitoring. See King, 394 Wis. 2d
431, ¶23 (quoting Ward, 491 U.S. at 799).

Special Rule 008: Internet Restrictions

¶32 Special Rule 008 provides as follows:

You shall not possess, utilize, nor have access to a
computer and/or computer equipment, or the Internet,
without prior agent approval. This includes not possessing,
utilizing, or having access to any electronic device that has
Internet access or the capability to connect to the Internet,
without prior agent approval.

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This special condition has the obvious goals of protecting A.B. from further
stalking that could be aided or facilitated by electronic means and also to assist
Sveum in his rehabilitation by refraining from further abusive conduct toward
A.B. Pertinent here, as summarized above, after Sveum was released from prison
and was placed on probation supervision in July 2002, with conditions that
included no contact with A.B., police seized items belonging to Sveum and his
sister that included “a sheet listing addresses of Internet sites for conducting
residence searches and background checks,” along with items associated with A.B.

¶33 Relying on the authority cited and reasoning contained in King, we
reject Sveum’s primary argument, which is based on the Supreme Court’s
Packingham opinion. As here, in King the challenged conditions of extended
supervision did not bar King from accessing the Internet or possessing devices
capable of accessing the Internet, but in order to do either he was required to first
obtain the approval of his agent. See King, 394 Wis. 2d 431, ¶¶28-31. One
difference from this case, however, is that the conditions in King provided that the
agent “‘shall not withhold permission’” for access to the Internet if the defendant
did so through “‘public devices’” and for the purpose of “‘obtaining employment
or performing any legitimate government functions such as filing taxes or
renewing [a] driver’s license or license plates, etc.’” See id. Another difference is
that, if King received permission from his agent to possess devices capable of
accessing the Internet and King were to access the Internet with the approval of
the agent, then King was required to provide the agent with “‘the name or number
of every electronic mail account he uses, the Internet address of every website he
creates or maintains, every Internet user name he uses, and the name and address
of every public or private Internet profile he creates, uses, or maintains.’” Id.

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¶34 In King, we made determinations that included the following: King
failed to establish that these conditions restricted his freedom of intimate
association under the First Amendment; the conditions were not a blanket ban on
Internet access, because the supervising agent had authority to approve Internet
use and possession of access devices; the conditions were not overbroad because
King had been convicted of using computer to facilitate child sex crime and had
numerous prior violations of his previous extended supervision and probation
supervision rules that restricted his Internet access; the State has a significant
interest in protecting the public and children from convicted sex offenders; and the
Internet conditions were sufficiently narrow. See King, 394 Wis. 2d 431, ¶¶45-71.
As part of our analysis, we rejected King’s argument that Packingham dictates
that, because the conditions restricted his access to the Internet, they must be
unconstitutionally overbroad. See King, 394 Wis. 2d 431, ¶¶32-44.

¶35 For the reasons stated in King, Sveum’s assertion that the Internet
access condition is “contrary to the holding in” Packingham is wrong. It is true
that the condition at issue in King included a carve out that the agent “shall not
withhold permission” for access to the Internet if the defendant did so through
“public devices” and for the purpose of “obtaining employment or performing any
legitimate government functions such as filing taxes or renewing [a] driver’s
license or license plates, etc.” However, we see no reason to consider the absence
of that feature in the challenged condition here to be constitutionally fatal. Under
the condition here, Sveum is free to ask his agent for permission to make this kind
of use of the Internet, on a showing to the agent that it could be done safely under
the circumstances as they then exist.

¶36 Sveum asserts that, at least as of the time of the filing of his
appellate briefing, his agent had consistently denied him permission to access the

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Internet and he argues that there is no guarantee that the agent will ever allow him
access. However, we rejected a similar argument in Miller. See Miller, 175
Wis. 2d at 212 (rejecting argument that “there are no standards to guide the
probation officer in granting or denying him permission” to take an action
otherwise prohibited by a condition, on the ground that “[a] condition of probation
is conceptually different from a police power regulation” and “[i]t is sufficient for
constitutional purposes that a criminal defendant has judicial protection from the
arbitrary administration of a condition of probation”).7

¶37 Sveum cites to a federal appellate case for the proposition that the
defendant in that case did not have a history that could justify “an outright ban”
from use of the Internet. See United States v. Scott, 316 F.3d 733, 736-37 (7th
Cir. 2003) (reviewing a condition of supervised release prohibiting Internet access
because a search of the defendant’s computer revealed images of child
pornography; noting that in some circumstances defendants “may be ordered to
give up the digital world”). The discussion in Scott does not support Sveum’s
challenge here, under the standards we find in King.

¶38 Sveum argues that his possession of a list of Internet site addresses
for conducting residence searches and background checks “does not even prove
that Sveum used the Internet, much less misused it.” This argument ignores the
reasonable inference that the list was created to assist in his persistent stalking

7
In his reply brief, Sveum notes that a “computer” might be necessary for him “to
prepare legal filings,” without explaining how he managed to file his type written, obviously
computer-assisted pro se briefing in this appeal without agent approval to use a computer for this
purpose. In any case, he managed to file these briefs through at least one person’s use of at least
one computer.

17
No. 2020AP811

activity, and that this activity had involved using the Internet or that he planned to
use the Internet for such activity.

¶39 As part of a pattern of nonsensical and unsupported arguments about
this and other conditions, Sveum contends that the Internet-restricting condition is
not related to his rehabilitation because it does not “prevent him from having
‘family and friends’ use the Internet on his behalf to gather information about
[A.B.] if he so desired” and because he could stalk “someone” without use of a
computer or the Internet. That this or other of the special conditions could perhaps
have been drawn more broadly does nothing to advance Sveum’s challenge.

Special Rule 001: Contact With A.B. Or Family

¶40 Special Rule 001 provides:

You shall have no contact, direct or indirect, with [A.B.].
No contact includes but is not limited to in person, by
phone, in writing, by electronic device, through social
media, or through a third party. You shall have no contact
with any of her family members. You shall not be near nor
on the premise of her residence, or place of employment.

It is self-evident that this no-contact condition reasonably seeks to protect A.B.
and to assist in Sveum’s rehabilitation.

¶41 Sveum argues that this condition is overly broad in protecting the
community and victims. Sveum’s first overbreadth argument is that the condition
must be modified to limit the ban to exclude commercial business encounters or
unintentional contact. We reject this argument on the ground that it rests on an
assumption that the Department would unreasonably interpret a chance,
unintentional contact as a violation. We do not construe supervision conditions
“‘in derogation of common sense,’” but instead to avoid unreasonable or absurd

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No. 2020AP811

results. See Lo, 228 Wis. 2d at 538-39 (quoting State v. Clausen, 105 Wis. 2d
231, 246, 313 N.W.2d 819 (1982)); see also id. at 536-39 (construing a condition
that Lo avoid contact with “gang members” to mean avoid contact with
individuals whom he knows, or reasonably should know, are gang members).

¶42 Sveum makes a separate overbreadth argument that this condition
must be modified to drop the phrase “but is not limited to” before the phrases “in
person, by phone, in writing, by electronic device, through social media, or
through a third party.” But his sole authority is off point, and the Department
could reasonably determine here that the circumstances call for a limitation that
leaves nothing to Sveum’s imagination, should he decide to stalk A.B. yet again.
Sveum relies on Bachowski v. Salamone, 139 Wis. 2d 397, 407 N.W.2d 533
(1987). As the State aptly points out, that opinion addressed the vagueness or
overbreadth of an injunction that prohibited one person from “harassing” another
person. See id. at 414.

¶43 For a final overbreadth argument challenging this condition, Sveum
contends that it must be modified to allow him to have contact with family
members of A.B. because his historical stalking conduct “involved only” A.B.
The Department may rely on evidence to the contrary. There are reasonable
inferences from the evidence in the record that (1) as part of the stalking conduct
leading up to the 1996 charges, Sveum would sometimes visit A.B.’s sister’s
house to look for A.B.’s car; (2) in February 2000, Sveum or someone on his
behalf caused flowers and a card to be delivered to A.B. at her work place and
pretended to be A.B.’s sister in making the purchase; and (3) in May 2003, Sveum
was in possession of a photo copy of an obituary for A.B.’s father. Further, “a
condition of extended supervision need not directly relate to the offense for which
the defendant is convicted as long as the condition is reasonably related to the dual

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No. 2020AP811

purposes of extended supervision.” State v. B. Miller, 2005 WI App 114, ¶13, 283
Wis. 2d 465, 701 N.W.2d 47.

¶44 Sveum makes constitutional vagueness arguments that conceptually
overlap with some of his overbreadth arguments and they fail for similar reasons.
He contends that the words “near” and “family members” are not sufficiently
precise to provide notice of what is required of him. Again, the reasoning in Lo
defeats this argument under commonsense interpretations. See Lo, 228 Wis. 2d at
536-39; see also Koenig, 259 Wis. 2d 833, ¶¶12-13 (rejecting vagueness challenge
to condition requiring agent notification when “dating” someone, on the ground
that the meaning of “dating” is sufficiently clear). Interpreted in a commonsense
manner, the rule requires him to affirmatively avoid any form of contact
whatsoever with any person whom he knows, or reasonably should know, to be a
relative of A.B. This provides “an objective standard” for purposes of
enforcement. See Lo, 228 Wis. 2d at 535. Sveum fails even to suggest a
hypothetical circumstance that represents an unfair or unwarranted trap for him if
one applies a commonsense interpretation of the condition.8

8
In his reply brief, Sveum agrees with the State’s position that WIS. STAT. § 950.02(3)
provides a sufficiently precise definition of “family member” as meaning “spouse, minor child,
adult child, sibling, parent, or legal guardian,” and on that basis argues that the condition should
be modified to include these terms. We reject that request because we do not rest on this
definition from chapter 950. We do not know, under a commonsense analysis of the particular
facts of this case, whether there might not be additional relatives, such as an aunt, a cousin, or a
nephew, who might also qualify, depending on all of the circumstances relevant to a potential
violation.

In a similar vein, Sveum agrees with the State’s position that “near” means a location
from which Sveum “could monitor [A.B.’s] activities at her home or workplace,” and Sveum
argues that the condition must be modified to incorporate this definition. We reject this request
because, putting aside the potential merits of this particular definition, we consider it unnecessary
to modify the condition to this could-monitor-based formulation.

20
No. 2020AP811

Special Rule 002: Contact With Detective Or A.B. Sister

¶45 Special Rule 002 provides:

You shall have no contact, direct or indirect, with [name of
former Madison police detective] or with your sister, Renee
Sveum. No contact includes but is not limited to in person,
by phone, in writing, by electronic device, through social
media, or through a third party. You shall not be near nor
on the premise of their residence, or place of employment.

The reference to the detective requires additional background. Items recovered in
the cell search that included the gruesome list with handwritten reference to
“muriatic acid—eats away skin, eyeballs, lungs, etc.” also included a copy of the
newspaper obituary marking the passing of the father of a detective who had
investigated Sveum’s stalking conduct.

¶46 When this additional background is added to background already
summarized above that includes Sveum enlisting his sister to help track A.B. while
he was in prison, these conditions are a reasonable fit to the goals of protecting
A.B. and assisting in Sveum’s rehabilitation. The only arguments that Sveum
offers to challenge this condition are readily defeated by points we have already
made involving Sveum’s history of stalking and the requirement that we interpret
conditions in a commonsense manner.

Special Rule 006: Possession Of Weapons

¶47 Special Rule 006 provides:

You shall not possess, utilize, nor have access to any
weapons; including but not limited to firearms, firearm--
magazine, firearm holster, BB guns, paintball guns, air
pellet guns, broken gun, fake gun, gun parts, or any item
that resembles a gun or weapons; to include brass knuckles,
pepper spray, bow and arrow, or any ammunition.

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No. 2020AP811

This condition is easily justified by the evidence that, after threatening to
assassinate A.B. from the bushes of her apartment building in October 1994,
Sveum engaged in a long pattern of stalking behavior against her, and that while
eventually serving prison time for that stalking he possessed a list of items that
included “revolvers,” “ammo,” “knives,” and “silencer.”

¶48 Sveum contends that “[t]here is no justification for this rule because
standard rule #13 (ST 013) bans Sveum from possessing a ‘firearm or other
weapon, or ammunition.” Sveum fails to develop any basis for us to conclude that
the Department may not create a more expansive special rule to protect A.B. and
encourage his rehabilitation.

¶49 We reject overbreadth and vagueness arguments that Sveum makes
based on legal standards that we have already discussed. It is true that the word
“weapon” is not defined, but its meaning is clear at a commonsense level. He
argues that this condition prohibits him from owning or using “a steak knife,
hammer, baseball bat, … motor vehicle, … axe … shovel … [or] chainsaw.”
However, using a commonsense interpretation, what Sveum is prevented from
doing is possessing, using, or having access to any item that, considering all
pertinent circumstances, would reasonably be viewed as a weapon. Thus, for
example, when kept and used in an ordinary way for an ordinary purposes, the
objects he lists are not reasonably viewed as “weapons” that are akin to the items
explicitly listed in the condition. In these ordinary contexts, the items that Sveum
lists would not be, nor would they resemble, items used to threaten or inflict

22
No. 2020AP811

injuries on people.9 Sveum latches onto an alternative formulation offered by the
State and requests modification of the condition to match wording used by the
State, but that would not be appropriate. The commonsense meaning of the
current wording is clear.

¶50 As for the phrase “have access to,” under a commonsense
interpretation Sveum cannot put himself in a position in which he knows, or
reasonably should know, that he can possess a weapon. This defeats Sveum’s
argument that the condition prevents him from, for example, entering a store that
sells BB guns. In that hypothetical situation, so long as he does not attempt to buy
one of the store’s BB guns, he has not placed himself in a position to possess it.
Simply being in the store would not allow him to possess a gun and he is obligated
to refrain from handling it.

Special Rule 007: Possession Of Items From List

¶51 Special Rule 007 provides:

You shall not own, possess, nor have access to a wood
chipper, chloroform, liniment, muriatic add, tracking
devices of any form, ski mask, or any other style of
facemask, binoculars, meat grinder, silencer, tie-downs,
raw-hide sites, or a storage unit. You shall at no time ever
attempt to disguise or change your appearance.

Each of these items appears on the gruesome list that Sveum created while in
prison for stalking A.B. Given his statements to and activities regarding A.B., it is

9
But context would matter. If, for example, Sveum possessed a chainsaw when he had
no non-violent or non-threatening reason to have a chainsaw, or if he kept a steak knife in a
container along with such items as a pair of gloves, a wig, and binoculars, then the chainsaw and
the steak knife might qualify as having the appearance of weapons, depending on all
circumstances.

23
No. 2020AP811

a reasonable inference that Sveum created this list in contemplation of killing A.B.
and disposing of her body. Only Sveum would know for certain where this might
have fallen on the continuum between a mere gruesome mental image and an
actual, concrete gruesome plan. However, the Department is not obligated to
assume positive motives, given the evidence in the record.

¶52 Sveum argues that the following phrases are overly broad in
protecting the community and victims: “tracking devices of any form” and “any
… style of facemask.” As to tracking devices, Sveum simply asserts that this
“includes a smart phone.” Whether a smart phone might be a tracking device
depends on how the phone is used (including what applications are downloaded
onto it); what Sveum is prevented from doing is possessing a smart phone for use
as a tracking device. In any case, in our discussion of the Internet restrictions
condition above we have already explained that the Department can limit Sveum’s
access to smart phones, which can be used to access the Internet.

¶53 Turning to “any … style of facemask,” we accept one aspect of
Sveum’s argument, which appears to have two, related components. Sveum raises
no objection to the inclusion of “ski mask.”

¶54 First, Sveum argues that it would be overly broad in protecting the
community and victims to deprive him of the ability to wear “a welding helmet,
grinding shield, motorcycle helmet, [or] Halloween mask.” We put to the side the
motorcycle helmet and Halloween mask references; common sense dictates that a
helmet is not a mask and there is no reasonable dispute that it serves the protection
of the community and victims to disallow potential stalking wearing a mask of the
type worn on Halloween, which Sveum does not have to don for any safety reason.
But his point regarding the other examples appears to be that some occupations

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No. 2020AP811

and ordinary tasks of life call for masking of the face in some fashion for safety
reasons. On a potentially related note, Sveum argues that, due to the COVID-19
pandemic, the condition “actually places the public at risk.” Putting the two
components together, we understand Sveum to argue that, in at least some
circumstances, it would more likely undermine than support protection of the
community if Sveum may never wear any “style of facemask.”

¶55 In pertinent part, the State responds that “Sveum fails to explain why
the COVID-19 pandemic has anything to do with whether this condition is
reasonably related to his rehabilitation such that it is not overbroad.” Whatever
the State means to convey in making this assertion, it misses the mark as a
response to Sveum’s argument. The State fails to come to grips with the potential
implications for public safety if Sveum may not cover his face for safety purposes
at any time in any setting.

¶56 For these reasons, we reverse the circuit court’s decision on this
particular aspect of this condition. Accordingly, we direct that the circuit court on
remand order the Department to modify the condition to eliminate the phrase “or
any other style of facemask” from the current version of the condition because this
unqualified phrase does not satisfy the constitutional requirement of protecting the
community. Neither party has suggested language to modify this unqualified
phrase, and it would be for the Department to modify or qualify the phrase that we
order deleted.10

10
To clarify, it is the unqualified nature of the phrase “or any other style of facemask”
that presents the problem in the current version of the condition. We express no opinion as to
whether a new version of the condition might pass muster if the Department were to include this
same phrase, but add language that qualifies it to take safety issues into account. We observe in
this context that, putting aside vagueness and other challenges that we reject, Sveum does not
(continued)

25
No. 2020AP811

¶57 What remains of Sveum’s challenges to this condition are brief
vagueness arguments. We now respond to the two particular arguments he
suggests, applying commonsense interpretations. First, following our approach
above, “have access to” reasonably means that Sveum cannot put himself in a
position in which he knows, or reasonably should know, that he can possess the
item. Second, “tie downs” reasonably means devices that have the evident
purpose of being used to restrain another person in place. It does not mean all
materials that could theoretically be used in tying (e.g., shoe laces) or used to tie
one object to another object (e.g., electric cords). Such items could qualify as
prohibited “tie downs” only with additional contextual evidence that Sveum put
himself in position to have access to them for the purpose that they be used to
restrain or threaten restraint of another person, outside their ordinary non-
threatening or non-violent purposes.

Special Rule 005: In Or Near Oregon, Wisconsin Or Exclusion Zones

¶58 Special Rule 005 provides:

You shall not be near nor within the boundaries of the
village of Oregon, Wisconsin nor within any other
exclusion zones per your GPS (map of exclusion zones
provided).

Sveum acknowledges that the areas identified contain residences of A.B. and her
sister. We agree with the State that these are areas where Sveum “may be more

clearly object to any prohibition on face coverings that are not necessary for purposes of safety,
nor does he at this time offer any argument that is inconsistent with the notion that his agent could
reasonably assess whether safety needs dictate that he use a particular style of face covering
during designated time periods or for designated activities.

26
No. 2020AP811

likely to resume his stalking behavior,” and that this condition is therefore
“reasonably related to helping ensure he conforms his behavior to the law.”

¶59 Sveum argues that “there is no justification for this rule because” he
is already banned from being near or on the premises of A.B. under a separate
condition. But he fails to develop an argument that the Department cannot create
a more expansive rule on this topic. He argues that there is “no justification” for
banning him from contact with A.B.’s family members, but we have already
resolved that issue above. He argues that the zones should be smaller, but
provides no coherent rationale in support of this argument. He argues that “near”
is constitutionally vague, but without giving us any reason to reach that
conclusion.

Special Rule 009: No Romantic Relationship

¶60 Special Rule 009 provides:

You shall not pursue nor engage in any form of romantic,
sexual, intimate, dating, or co-habiting relationship unless
approved by your agent.

Given the history summarized above, this condition reasonably allows the
Department to monitor during the supervision period whether Sveum is engaging
in relationships that involve or appear to hold the risk of criminal conduct preying
upon current or former partners.

¶61 Sveum asserts that the Department has no expertise in “healthy
relationships,” but that is not the issue. And it is axiomatic that the Department
may impose conditions reasonably aimed at preventing criminal conduct by
Sveum that preys upon A.B. or anyone else.

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No. 2020AP811

¶62 Sveum argues that this condition is not needed for his rehabilitation
because he completed a domestic violence class in 2012 and, as referenced above,
the Department has used a risk assessment tool, based on factual inputs and
algorithms unknown to us, that rates his risk level as low. However, as we have
already discussed, this does not change the history of Sveum’s extreme stalking
conduct toward a former romantic partner, and the Department may rely on that
history.

¶63 Sveum asserts in one sentence that he “also has a First Amendment
right to freely associate with others.” This does not even begin to constitute an
argument that accounts for the case law cited above which establishes that
conditions of supervision may infringe on constitutional rights so long as they are
not overly broad to protect the community and victims and are reasonably related
to rehabilitation.

¶64 Sveum points out that there is no guarantee that an agent will ever
grant him the ability to engage in the types of relationships identified, but we have
explained above why this form of argument is unavailing.

¶65 For all these reasons, we affirm the circuit court’s decisions, with the
following exception. We direct the court on remand to order the Department to
strike from the current version of special rule 007 the phrase “or any other style of
facemask.” We express no opinion as to whether, consistent with constitutional
standards, that currently unqualified phrase “or any other style of facemask” could
be included in a new version of the condition if accompanied by qualifications that
adequately addresses safety issues.

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No. 2020AP811

By the Court.—Order affirmed in part; reversed in part and cause
remanded with directions.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

29