On Point: 46. WI Court of Appeals

Sheboygan County v. M.W., 2021AP6, 5/12/21, District 2 (one-judge decision; ineligible for publication), petition for review granted, 9/14/21, reversed, 2022 WI 40; case activity

For more than a year now, Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, has required circuit courts imposing ch. 51 commitments to identify which statutory form of dangerousness has been proved. A little over a month ago, the court of appeals decided Rock Co. DHS v. J.E.B., holding the circuit court failed to satisfy this requirement. But the appellate court didn’t undo the commitment: it just remanded for the circuit court to decide whether the facts satisfied any of the five standards. It did this even as it declined to address J.E.B.’s other challenge: that there was insufficient evidence of any form of dangerousness. This latter claim would have required dismissal of the petition. Is the court of appeals free to refuse to consider a litigant’s claim–a claim that would that would dispose of the entire case–for no other reason than that it is granting some lesser relief?

Rock County v. J.J.K., 2020AP1085, 4/29/21, District 4, (1-judge opinion, ineligible for publication), case activity

This is an appeal from the initial commitment and involuntary medication order entered against J.J.K. The court of appeals affirmed both contrary to published precedent on the rule against hearsay, the plain error doctrine, and procedural and substantive due process.

Rock County v. J.J.K., 2020AP2105, District IV, 5/6/21 (1-judge opinion, ineligible for publication); case activity

This is the sequel to the Rock County v. J.J.K.. 2020AP1085 above. The decision is alarming because the circuit court found J.J.K. dangerous enough for a recommitment based on the 5th standard, but the court of appeals affirmed based on the 4th standard. The opinion also further highlights the need for SCOW to elaborate its decision in Winnebago County v. C.S., 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875. Specifically, can a court order involuntary medication for a person undergoing recommitment without evidence that he is dangerous as defined by §51.61(1)(g)3?

State v. Scott William Forrett, 2021 WI App 31, petition for review granted, 9/14/21, affirmed, 2022 WI 37; case activity (including briefs)

Wisconsin permits a driver’s prior refusal to submit to a warrantless blood test as a criminal penalty enhancer for a subsequent OWI. In an open and shut opinion that is recommended for publication, the court of appeals just declared that statutory scheme unconstitutional based on Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), and State v. Dalton, 2018 WI 85, 383 Wis. 2d 147, 914 N.W.2d 120.

On April 28, 2021, the court of appeals ordered publication of the following criminal law related decisions:

State v. Patrick A. Keller, 2021 WI App 22 (Confrontation Clause doesn’t apply to statements of mandatory child abuse reporter)

State v. Markell Hogan, 2021 WI App 24 (cop can testify as human trafficking expert)

State v. Blong Simba Vang, 2021 WI App 28; case activity (including briefs)

The search of Vang’s car, which was parked on school property, was reasonable under  the less stringent standard for searches of students established in New Jersey v. T.L.O., 469 U.S. 324 (1985), even though Vang wasn’t a student at the school.

State v. B.W.R., 2020AP1726, District 2, 4/28/21 (one-judge decision; ineligible for publication); case activity

The odor of marijuana gave police probable cause to believe evidence of a drug crime would be found in B.W.R.’s home and the odor plus the occupants’ awareness the police were knocking gave the police reason to conclude the evidence would be destroyed if they took time to get a warrant.

State v. Kimberly Dale Crone, 2021 WI App 29; case activity (including briefs)

Think twice before driving with medication in your car or purse. This decision (recommended for publication) holds that when a sheriff stops a driver for simple speeding, and he admittedly lacks reasonable suspicion to inquire about medication bottles he sees in the driver’s purse, he may nevertheless extend the stop to ask the driver to consent to a search of those bottles per State v. Wright, 2019 WI 45, 386 Wis. 2d 495, 926 N.W.2d 157 and Rodriguez v. United States, 575 U.S. 348 (2015).

State v. Davonta J. Dillard, 2020AP999, 4/13/21, District 1, (one-judge decision; ineligible for publication); case activity (including briefs)

Officers patrolling in Milwaukee noticed a vehicle idling and apparently unoccupied. One approached the vehicle and shined his flashlight through a window; he saw a person (Dillard) in the back seat who immediately ducked out of view (most of the windows were highly tinted, impeding the officer’s view). The officer opened the rear driver’s side door, and the person then opened and ran out the door on the other side. Other officers tasered and detained him. The officer who’d opened the door saw a handgun on the floor of the car, which ultimately led to Dillard’s conviction for carrying a concealed weapon.

Rusk County v. A.A., Appeal No. 2019AP839 and 2020AP1580 (consolidated); certification granted 4/13/21, District 3; case activity here and here

SCOW recently held that recommitment proceedings are governed only by the procedures in §§51.20(10)-(13). Waukesha County v. S.L.L., 2019 WI 66, 387 Wis. 2d 333, 929 N.W.2d 140. Thus, the procedural requirements in §§(1)-(9) do not apply. Id., ¶¶24, 27. This court of appeals certification asks SCOW to decide whether S.L.L. violates the plain language of Chapter 51. If not, then does Chapter 51 violate 14th Amendment due process and equal protection given that, under S.L.L.‘s construction, it denies people undergoing recommitment fundamental procedural rights guaranteed to people undergoing initial commitments.