On Point: 46. WI Court of Appeals

State v. C.B. & State v. N.M.M., 2022AP906 & 966, 11/29/22, District 1 (one-judge decision; ineligible for publication); case activity

C.B. and N.M.M. appeal the termination of their parental rights. They challenge the method the Milwaukee Clerk of Courts used to select the venire for their trial: drawing from a pool of “reserve jurors” and selecting those whose surnames began with “G” and “H.” They further request a new trial because there were no African Americans on the panel.

Racine County v. P.B., 2022 WI App 62; case activity

Section 54.42(5) and 55.10(4) give a person undergoing guardianship and protective placement the “right to  be present” a the final hearing. Sections 54.44(4)(a) and 55.10(2) further require the county to ensure that the person “attends” the final hearing, unless the GAL waives attendance. In a published decision, the court of appeals holds that these statutes protect the person’s right to be physically present. Attendance by phone or video under §§885.58 and 885.60 does not suffice.

State v. Cartrell Romel Kimble, 2021AP1227-CR, Distirct 1, 11/29/22 (not recommended for publication); case activity (including briefs)

The prosecutor’s closing argument didn’t amount to “vouching” for the credibility of the pretrial statements of two recanting witnesses.

On November 30, 2022, the court of appeals ordered publication of a single civil case.

L.E.H. v. R.E.M., 2022AP713-715, 11/22/11, District 1; (1-judge opinion, ineligible for publication); case activity

“Luke” and “Rebecca” had 3 children together. After their relationship ended, Rebecca struggled with addiction and was charged with a number of crimes. Luke married and successfully petitioned to terminate Rebecca’s parental rights.  Rebecca appealed the TPR arguing the circuit court (1) improperly granted summary judgment on the grounds that she abandoned her children, and (2) created the appearance of bias during the disposition hearing.

Winnebago County v. J.D.J., 2022AP1357-FT, 11/23/22, District 2, (1-judge opinion, ineligible for publication); case activity

J.D.J. has schizophrenia. At his recommitment hearing, Dr. Monese testified that if treatment were withdrawn, he would become a proper subject of commitment under §51.20(1)(a)2.c. J.D.J. does not believe he has a mental illness, so he would stop treatment and become “violent.” Third-standard recommitments are increasingly common. This decision highlights the need for more vigorous defense strategies in these cases.

State v. C.L., 2022AP1580-1582, 11/22/22, District 1, (1-judge opinion, ineligible for publication); case activity

C.L. argued that the circuit court erroneously exercised its discretion in finding that the termination her parental rights to her 3 kids was in their best interests under WIS. STAT. § 48.426(3). The court of appeals was not persuaded by her arguments that the paternal grandparents should be guardians, not an adoptive resource, for the children and that the circuit court failed to consider all of the “best interests” factors.

State v. Roman C. Ozimek, 2021AP452, District 3, 11/22/22 (one-judge decision; ineligible for publication); case activity (including briefs)

Ozimek challenges the revocation of his driving privileges for refusing a blood draw after he was arrested for OWI. The court of appeals rejects his claim that the circuit court should have considered evidence that the officer misinformed Ozimek of his “constitutional right” to obtain his own chemical testing without having to first consent to the officer’s request for chemical testing.

Winnebago County v. A.P.D., 2022AP817, District 2, 11/16/22 (1-judge opinion, ineligible for publication); case activity

Winnebago County successfully petitioned to recommit A.P.D. under the 5th standard of dangerousness. On appeal, he argued that the county offered insufficient evidence of mental illness and of dangerousness.  Although A.P.D. lost, he raised some good points that the court of appeals sidestepped or rejected.

Sauk County v. A.D.S., 2022AP550, 11/17/22, District 4, (1-judge opinion, ineligible for publication); case activity

The circuit court recommitted A.D.S. based on §51.20(1)(a)2.c, which seems to be the standard du jour for ch. 51 recommitments.  Even though A.D.S. hadn’t recently behaved dangerously, the court of appeals affirmed because recommitments may be based on past evidence of dangerousness, and credible evidence indicated that if not committed he would stop taking his medication and return to his former dangerous behavior.