On Point: 5. Judicial estoppel

Outagamie County v. C.J.A., 2022AP230, 2/17/23, District 3 (one-judge decision; ineligible for publication); case activity

“Catherine” appeals the extension of her ch. 51 commitment. The recommitment hearing was originally set for a few days before her previous extension would expire. But three days before that scheduled hearing, Catherine requested an independent examination. She, the court, and the county agreed to a “stipulation for temporary extension to commitment” for 60 days. The final hearing was held near the end of this 60 days, 57 days after her commitment had been set to expire before the stipulation.

State v. Jacob Richard Beyer, court of appeals certification granted 11-18-20, 2019AP1983; case activity (including briefs)

Issue presented (from the certification):

[W]hether the guilty-plea waiver rule applies when a defendant pleads not guilty to an offense, but stipulates to the inculpatory facts supporting each element of the offense, and explicitly agrees to a finding of guilt at a hearing before the circuit court at which no witness testifies.

State v. Adam W. Vice, 2020 WI App 34, petition for review granted 8/30/20, reversed, 2021 WI 63; case activity (including briefs)

This is a “recommended for publication”, split court of appeals opinion where the State lost in a child sexual assault case. In other words the State will surely petition for review, and SCOW will take it. Applying State v. Davis, 2008 WI 71, 310 Wis. 2d 583, 751 N.W.2d 332, the majority held that the defendant’s polygraph test and the confession were two discrete events, but based on the facts of this case, the confession was involuntary. The dissent by Judge Hruz would hold the confession voluntary.

State v. Kenneth A. James, 2013AP2409-CR, District 2, 7/23/14 (not recommended for publication); case activity

James insisted on going to trial even though the transcript from the preliminary hearing hadn’t yet been prepared, so he can’t complain now that trial counsel was ineffective for failing to seek an adjournment so he could get the transcript.

State v. Basil E. Ryan, Jr., 2012 WI 16, reversing 2011 WI App 21; case activity

¶32  We begin by addressing the circuit court’s application of the equitable doctrine of judicial estoppel.  Judicial estoppel is intended “to protect against a litigant playing ‘fast and loose with the courts’ by asserting inconsistent positions” in different legal proceedings. State v. Petty,

on petition for review of published decision; case activity

Issues (provided by court):

Can a defendant be found guilty under the forfeiture statutes on the grounds of judicial estoppel where the defendant claims he made no statement to a prior court?

Did the undisputed facts on the record establish that if judicial estoppel had not been applied, the defendant neither owned nor controlled the barge that sunk in a navigable waterway in order to be liable under the forfeiture statutes for violations of Wis.

State v. Basil E. Ryan, Jr., 2011 WI App 21; case activity; Ryan BiC; State Resp.; Reply

¶26      “‘Judicial estoppel is a doctrine that is aimed at preventing a party from manipulating the judiciary as an institution by asserting a position in a legal proceeding and then [later] taking an inconsistent position.’”  State v. White,

State v. Frederick W. Rushing, 2007 WI App 227, PFR filed 10/25/07
For Rushing: Randall E. Paulson, SPD, Milwaukee Appellate

Issue/Holding: The State’s silent acquiescence to judicial action (sua sponte withdrawal of a guilty plea) didn’t work judicial estoppel bar to mounting subsequent challenge to that ruling, ¶14.

 State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07
For Thexton: Kirk B. Obear

Issue/Holding:

¶6       Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction, Thexton’s attorney objected to the circuit court that he could not adequately respond to it because he did not have access to the prior PSI.

Olson v. Darlington Mutual Ins., 2006 WI App 204

Issue/Holding:

¶4        … The required elements of judicial estoppel are:

            First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position—a litigant is not forever bound to a losing argument.