On Point blog, page 46 of 49
Standards of Review: Administrative Decision – Certiorari, de novo in part
State ex rel. Leroy Riesch v. Schwarz, 2005 WI 11, summary order
For Riesch: Christopher J. Cherella
Issue/Holding:
¶13. Certiorari review for parole revocation is limited to four questions: “(1) whether the agency stayed within its jurisdiction; (2) whether it acted according to law; (3) whether its action was arbitrary, oppressive or unreasonable, representing its will, not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.”
Testimony in Response to Statement Obtained in Violation of Sixth Amendment
State v. Christopher Anson, 2005 WI 96, affirming, 2004 WI App 155
For Anson: Stephen J. Watson
Issue/Holding: Given a statement taken in violation of the Anson’s 6th amendment right to counsel, in which Anson admitted to facts underlying one of the charges and was prominently mentioned in the opening statements and “evidentiary phase of the trial,” and as to which he filed an unsuccessful interlocutory appeal asserting that admission of the statement would “strategically force” him to testify,
Reconstruction of Missing Transcript – Counsel-Waiver Proceeding
State v. Joseph P. DeFilippo, 2005 WI App 213
For DeFilippo: Leonard D. Kachinsky
Issue/Holding: To be valid, waiver of right to counsel in criminal trial proceeding must be supported by adequate record, ¶5 (citing State v. Klessig, 211 Wis. 2d 194, 203-04, 564 N.W.2d 716 (1997)). Where, as here, the record fails to make such a showing (because waiver occurred in an unrecorded conference),
Waiver of Issue: Failure to Obtain Ruling by Trial Court on Objection
State v. Somkith Neuaone, 2005 WI App 124
For Neuaone: Ralph Sczygelski
Issue/Holding: Where the State admitted to breaching the plea bargain, and the defendant was explicitly offered the option of seeking plea-withdrawal but personally affirmed that he did not wish that remedy, the appellate court has “nothing to review on this issue since the trial court was never asked to make a ruling on the question,” ¶12.
Appellate Procedure – Standard of Review, Generally
State v. Richard A. Brown, 2005 WI 29, reversing 2004 WI App 33, 269 Wis. 2d 750, 767 N.W.2d 555
For Brown: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶7. … The three standards of appellate review of circuit court decisions have been stated numerous times, although case law has articulated sub-principles and different ways of stating the standards of review: (1) A reviewing court will not overturn findings of fact unless clearly erroneous.
Binding Authority – Dicta, Conflicting With Supreme Court Precedent, Withdrawal by Court of Appeals
State v. Kenneth V. Harden, 2005 WI App 252
For Harden: Ralph Sczygelski
Issue/Holding: Holding of Wisconsin supreme court binds the court of appeals, such that dicta in decision of latter court in conflict with supreme court holding must be withdrawn, ¶5 citing, Nommensen v. American Continental Ins. Co., 2000 WI App 230, ¶16, 239 Wis. 2d 129, 619 N.W.2d 137.
Just to be perfectly clear: the court of appeals does not have authority to overrule its ownprecedent,
Appellate Procedure – Review of Discretion Based on Mistaken View of Law
State v. Cesar G., 2004 WI 61, reversing unpublished opinion
For Cesar G.: Eileen Hirsch, SPD, Madison Appellate
Issue/Holding:
¶46. In contrast to the court of appeals, we view the circuit court’s statement that it was not convinced it had the statutory authority to stay the sex registration requirement as persuasive that it made its decision based on an incorrect view of the law.
Review: Administrative Rule
WCCD v. DNR, 2004 WI 40, affirming 2003 WI App 76, 263 Wis. 2d 370, 661 N.W.2d 858
Issue/Holding:
¶5. The central issue in this case is the validity of § NR 10.01(1)(h).5 A court may declare an administrative rule invalid “if it finds that it violates constitutional provisions or exceeds the statutory authority of the agency or was promulgated without compliance with statutory rule-making procedures.”
Standards of Review: Administrative Decisions – Certiorari – Revocation of Probation – Right to Counsel
State ex rel. Peter D. Griffin v. Smith / State ex rel. Micah E. Glenn v. Litscher, 2004 WI 36, on certification
For Griffin and Glenn: Nathaniel Cade, Jr., State Bar Pro Bono Project
Issue/Holding: A new rule of equitable tolling for untimely certiorari petitions seeking review of revocation decisions is subject to the retroactivity analysis adopted by State ex. rel.
Appellate Procedure: Raising Claim Preclusion, § 802.06(8)(b)
State ex rel Kim J. Barksdale v. Litscher, 2004 WI App 130
Issue/Holding:
¶12. Accordingly, we agree with the trial court that the only reasonable reading of Wis. Stat. § 802.06, as applied to certiorari proceedings, is that a party who has unsuccessfully moved to dismiss on other grounds may still seek dismissal grounded on claim preclusion at any time before the court has considered the merits of the petitioner’s claims.