On Point: B. Construction

State v. David Hager, 2015AP330, and State v. Howard Carter, 2015AP1311, petitions for review granted 5/15/17, reversed 4/19/18; review of published court of appeals decisions (Hager) (Carter); case activity (Hager) (Carter) (including briefs)

We’ve posted on these cases a few times. The first time was when the court of appeals certified them (together) to the supreme court. The supreme court refused that certification, so the court of appeals decided them (separately), as we discussed here and here.

Today’s edition of SCOWstats studies the Wisconsin Supreme Court’s use of stare decisis and reveals what superb trainers our justices are!

Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19, 3/7/17, reversing a published court of appeals opinion, 2015WI App 74, case activity (including briefs)

Justice Kelly’s maiden majority opinion opens with a 4-page discussion of a subject both parties disavowed–the Second Amendment right to bear arms. According to the briefs, this case posed only an issue of statutory interpretation–essentially, whether §66.0409, which governs the  “local regulation of weapons,” preempts a City of Madison Transit and Parking Commission rule that prohibits people from carrying weapons, including guns, on City buses.

By the end of the primer on the 2nd Amendment, you can predict the result: A 5-2 opinion reversing a unanimous court of appeals decision holding that §66.0409(2)’s plain language applies to a “political subsdivision’s” “ordinances” or “resolutions” not to a  Transit Commission “rule” banning weapons. But you might not predict that the majority opinion would dial back the conservative “strict constructionist” approach to statutory interpretation adopted in State ex rel Kalal v. Cir. Ct. for Dane County.  Henceforth, a statute’s text should be no obstacle to the interpretation you desire.

State v. Thornon F. Talley, 2017 WI 21, 3/9/17, affirming an unpublished summary court of appeals order; case activity (including briefs)

Thornon Talley, who is committed as a sexually violent person under Wis. Stat. ch. 980, filed a petition for discharge from that commitment in 2012. The circuit court denied the petition without a hearing. The supreme court now unanimously upholds that denial, essentially because Talley did not show any meaningful change in his condition since his previous discharge trial (also in 2012).

State v. Jeffrey C. Denny, 2017 WI 17, reversing a published court of appeals decision; 2015AP202-CR, 2/28/2017; case activity (including briefs)

In State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, the supreme court unanimously held that Wis. Stat. § 974.07, the postconviction DNA testing statute, provides two routes for a convicted defendant seeking exoneration: a defendant satisfying certain basic criteria may pay for his own testing of physical evidence; one making a stronger showing of potential significance may secure such testing at public expense. The court now closes off the first, self-paid route.

State v. David Hager, Jr., 2017 WI App 8, petition for review granted 5/15/17; reversed 4/19/18; case activity (including briefs)

This is the first (likely) published case to construe the 2013 amendments to the ch. 980 discharge petition standard. The court of appeals holds that while the legislature required a committed person seeking a discharge trial to meet a higher burden of production, it did not permit courts to deny a trial based on an assessment that the evidence as a whole favors the state.

Question presented:

Whether the U.S. Court of Appeals for the Sixth Circuit erred by holding, in direct conflict with the Courts of Appeals for the First, Fourth, Seventh, and Ninth Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.

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.

State v. Judith Ann Detert-Moriarty, 2017 WI App 2; case activity (including briefs)

The Wisconsin Equal Access to Justice Act, § 814.245, doesn’t apply to a person who prevailed in a forfeiture action brought in the name of the State of Wisconsin because the clear statutory language covers only actions brought by “a state agency.”

State v. Markus S. Holcomb, 2016 WI App 70; case activity (including briefs)

“While sentence diagramming may be the bane of fifth graders everywhere, it is the trick of the trade in statutory construction.” Slip op. ¶9. “Punctuation too is important. . . . It can be the difference between ‘Let’s eat, Grandma!’ and ‘Let’s eat Grandma!'” ¶12. So begins today’s lesson on the proper way to read §939.617, which provides minimum sentences for certain child sex offenses.