On Point: Q. Vagueness

State v. Keith Kenyon, 2022AP2228-CR, 9/16/25, District I (recommended for publication); case activity

Although COA is surprisingly candid in acknowledging some of the injustices present in this appeal, the Court ultimately concludes that Kenyon’s constitutional challenge is foreclosed by existing precedent.

State v. Terry L. Hibbard, 2022 WI App 53; case activity (including briefs)

In a decision that allows for a sweeping expansion of aiding and abetting prosecutions in Len Bias cases, the court of appeals holds that a person assisting only a buyer a drug transaction could also be prosecuted for reckless homicide if the buyer dies from using the drug because any act aiding the buyer in getting the drugs also necessarily aids the seller in making the delivery.

State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)

Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.

State v. Michael K. Lorentz, 2018AP1515, 10/1/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The state charged Lorentz with violating four injunctions. One count was brought under Wis. Stat. § 813.12(8)(a) (for violating a domestic abuse injunction regarding his ex-wife) and three under Wis. Stat. § 813.122(11) (for violating three child abuse injunctions–one for each of their three children). Each injunction required Lorentz to “avoid” the “residence” the mother and children shared.

United States v. Davis, USSC No. 18-431, June 24, 2019, affirming and vacating in part, United states v. Davis, 903 F.3d 483 (5th Cir. 2018); Scotusblog page (includes links to briefs and commentary)

No surprise here.  Section 18 U.S.C. §924(c) makes it a crime to use a firearm during a crime of violence and 18 U.S.C. §924(c)(3)(B) defined a crime of violence as an offense that by its nature involves a substantial risk that physical force would be used in committing it. SCOTUS declared similar language unconstitutionally vague in  Sessions v. Dimaya, and it followed suit here.

State v. Blake Lee Harrison, 2017AP1811, District 3, 2/26/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Harrison’s due process and void-for-vagueness challenges to § 346.63(1)(am) (prohibiting driving with a detectable amount of restricted controlled substance) go up in smoke.

Tamara M. Loertscher v. Eloise Anderson, et al., No. 14-cv-870-jdp (W.D. Wis. April 28, 2017)

Under § 48.193, which was created by 1997 Wisconsin Act 292, a juvenile court may treat an unborn child of any gestational age as a child in need of protection or services if the “expectant mother’s habitual lack of self-control in the use of alcohol beverages, controlled substances or controlled substance analogs, exhibited to a severe degree, [poses] a substantial risk” of harm to the unborn child. A federal judge has ruled the statute is void for vagueness.

Review of an unpublished court of appeals decision; affirmed 4/10/18, case activity (including briefs)

Issues (composed by On Point)

1. Whether the safe transport statute, which permits transporting a handgun in a vehicle, forecloses convicting a non-permit-holder under the concealed carry law for having a handgun in his vehicle.
2. Whether the safe transport statute’s apparent contradiction of the concealed carry statute renders the law unconstitutionally vague.

Travis Beckless v. United States, USSC No. 15-8544, 2017 WL 855781 (March 6, 2017), affirming Beckles v. United States, 616 Fed. Appx. 415 (11th Cir. 2015) (unpublished); Scotusblog page (including links to briefs and commentary)

The Supreme Court holds that provisions in the federal advisory sentencing guidelines are not subject to vagueness challenges under the Due Process Clause.

Review of a published court of appeals decision; case activity (including briefs)

Issues (from the petition for review and petition for cross-review)

 1.  Whether the offense under § 343.44(2)(ar)4. can be punished as either a misdemeanor or a felony in order to resolve ambiguity in the statutory language when the legislature’s intent was to create a penalty scheme with increasing penalties for additional elements; or whether, instead, the doctrine of implied repeal should be employed to correct the obvious drafting error that created the ambiguity as to whether the offense is a misdemeanor or a felony.

2.  Whether § 343.44(2)(ar)4., having been interpreted to give discretion to the prosecution to charge an offense as a misdemeanor or a felony, can be constitutionally applied.

3.  Whether the provision in § 343.44(2)(b) stating that the circuit court “shall” consider certain sentencing factors is mandatory or directory.