On Point: A. Validity

Graham L. Stowe v. Gregory Van Rybroek, No. 23-3345, 8/21/24

This habeas appeal is limited to a facial challenge to the NGI conditional release statute, Wis. Stat. § 971.17(4)(d). The Seventh Circuit rejects Stowe’s argument, concluding that he cannot show that there are no circumstances under which the law’s application would be valid.

Winnebago County v. C.S., 2016AP1982, petition for review of a published court of appeals opinion granted 8/15/19; case activity

Issue:

Does Wis. Stat. §51.61(1)(g) violate substantive due process because it does not require a finding of dangerousness to involuntarily medicate a prisoner?

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.

State v. Michael A. Keister, 2017AP1618-CR, state’s petition for review granted 9/4/2018; case activity (including briefs)

Issues (based on the state’s petition for review )

1. Does a person have a fundamental liberty interest in participation in a treatment court funded by the state and county when he or she is charged with an offense involving violent conduct as defined in § 165.95(1)(a) (2015-16)?
2. Does § 165.95 (2015-16), the statute creating DOJ’s grant funding for treatment courts, violate procedural due process because it does not procedures for treatment courts to follow in expelling a participant?

State v. Samuel Silverstein, 2017 WI App 64; case activity (including briefs)

Pursuant to a warrant, police searched Silverstein’s computer for child porn. The “informer” was Tumblr, which is required by federal law to report suspected child pornography to the National Center for Missing and Exploited Children. Silverstein challenged the warrant as well as the mandatory minimum sentence the trial court imposed per §939.617, which he contends is unconstitutionally vague.

On Point is pleased to present a guest post by Attorney Adam Welch of Tracy Wood and Associates. The law firm recently persuaded Dane County Circuit Court Judge William Hanrahan to declare Wis. Stat. § 346.67 facially unconstitutional and to grant their motion to dismiss a felony Hit and Run—Injury complaint. Judge Hanrahan issued an oral ruling. The transcript has not yet been prepared, so we can’t link to the decision. Adam, however, agreed to lay out the issues for On Point. Here’s Adam:

Click here to read the Iowa County Circuit Court’s July 7th decision declaring that §165.95(1)(a) and (3)(c), which bars persons charged with violent offenses from participating in drug treatment court, violates  substantive due process as applied and procedural due process on its face. The court says its decision has the effect of a permanent statewide injunction against enforcement of the statute. The State agrees.

State v. Ernesto E. Lazo Villamil, 2017 WI 74, 7/6/17, affirming a published court of appeals decision; case activity (including briefs)

A few years ago the legislature set out to create a graduated penalty scheme for operating after revocation offenses, but it bungled the job and ended up creating misdemeanor and felony penalties for the offense of causing death while knowingly operating after revocation. The supreme court rebuffs Villamil’s claims that under the rule of lenity only the misdemeanor penalty can be imposed or, in the alternative, that creating two very different penalties for the same crime violates due process and equal protection. The court agrees with his request for resentencing, however, because the circuit court failed to consider the statutorily mandated sentencing factors.

State v. Ernesto E. Lazo Villamil, 2016 WI App 61, petitions for review and cross-review granted 1/9/2017, affirmed 2017 WI 74, ; case activity (including briefs)

Lazo Villamil was convicted and sentenced for operating after revocation and causing death under § 343.44, one of the provisions of which says that the offense is both a misdemeanor and a felony. He claims that convicting and sentencing him for the felony rather the misdemeanor violated the rule of lenity and his rights to due process and equal protection. The court of appeals disagrees, but grants resentencing due to the circuit court’s failure to consider certain sentencing factors..

City of Los Angeles v. Patel, USSC No. 13-1175, 2015 WL 2473445 (June 22, 2015), affirming 738 F.3d 1058 (9th Cir. 2013) (en banc); Scotusblog page (including links to briefs and commentary)

A majority of the Supreme Court holds that a Los Angeles ordinance compelling hotel operators to make their guest registries available to police for inspection on demand is facially unconstitutional because it penalizes the hoteliers for declining to turn over their records without affording them any opportunity to obtain judicial review of the reasonableness of the demand prior to suffering penalties for refusing to comply. Along the way, the Court clarifies that “facial challenges under the Fourth Amendment are not categorically barred or especially disfavored” (slip op. at 4), clarifying language from Sibron v. New York, 392 U.S. 40 (1968), that some courts have read as barring facial challenges to statutes under the Fourth Amendment.