On Point: 39. Statutes

Walworth County v. M.R.M., 2023 WI 59, 6/29/23, on certification from the court of appeals; case activity (briefs not available)

In a case with potentially far-reaching implications for Chapter 51 appeals, the Wisconsin Supreme Court issues a narrow holding that leaves a major D.J.W. issue for another day.

Lora v. United States, USSC No. 22-49, 2023 WL 4034313 (June 16, 2023), vacating and remanding United States v. Lora, unreported summary order (2d Cir. Feb. 15, 2022); Scotusblog page (including links to briefs and commentary)

Resolving a circuit split, a unanimous Supreme Court engages in a plain-language reading of a statute requiring a judge to impose a consecutive sentence for certain crimes and holds the statute does indeed mean what it says, and no more.

Dubin v. United States, USSC No. 22-10, 2023 WL 3872518 (June 8, 2023), vacating and remanding United States v. Dubin, 27 F.4th 1021 (5th Cir. 2022); Scotusblog page (including links to briefs and commentary)

Faced with competing interpretations of a penalty enhancement statute, the Supreme Court adopts the narrower interpretation based on both a careful reading of the language and context of the statute and its “tradition[] of “exercis[ing] restraint in assessing the reach of a federal criminal statute.” (Slip op. 17).

Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission, 2023 WI 38, 5/16/23, on certification from the court of appeals; case activity (including briefs)

In a 6-1 opinion, SCOW held that the ballot question for Marsy’s law complied with Wis. Const. art. XII §1. That’s the old news. The new and BIG news is Justice Dallet’s concurrence. It is essential reading for lawyers arguing constitutional or statutory construction issues to SCOW. She, Karofsky, and A.W. Bradley say that they are not bound by “methodologies” for interpreting constitutions and statutes–specifically “originalism” or strict adherence to the “plain language”–that SCOW has used in some past cases. If Justice-elect Protasiewicz agrees, we may soon see some defense-friendly constructions of our constitution and statutes.

State v. Lynne M. Shirikian, 2023 WI App 13; case activity (including briefs)

Shirikian pleaded to OWI as a fifth offense. Back in 2019, the legislature amended the statutes to create a both a presumptive and a mandatory minimum sentence for OWI 5th and OWI 6th. See 2019 Wis. Act 106; Wis. Stat. § 346.65(2)(am)5. The presumptive minimum requires at least 18 months of initial confinement, but the statute lets a court go lower if it finds doing so in the best interest of the community and not harmful to the public. The court of appeals now holds that even if a court decides to give less than 18 months IC, it’s still obligated to impose a bifurcated sentence. Since bifurcated sentences necessarily involve at least a year of IC, see Wis. Stat. § 973.01(2)(b), that year is the true mandatory minimum. Further, the court holds, a sentencing judge can’t avoid this minimum by imposing and staying a prison sentence and ordering of probation. Because the judge here did order probation, the court of appeals remands with directions that the lower court impose a legal sentence.

State v. Tisha Lee Love, 2022AP1422, 12/30/22, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

Love appeals a jury verdict rendered against her for driving 87 miles per hour in a 55 zone.

State v. Chrystul D. Kizer, 2022 WI 58, affirming a published court of appeals opinion, 2021 WI App 46, 7/6/22, case activity (including briefs)

There’s been a lot of press on this case, so we’ll skip the facts. Kizer is charged with 1st-degree intentional homicide and other felonies in connection with the death of a man she says trafficked her. She asserts §939.46(1), which provides “an affirmative defense for any offense committed as a direct result” of human or child sex trafficking. In a split decision, SCOW decided two questions of statutory interpretation. Now the circuit court must apply the clarified statute and decide whether Kizer gets a jury instruction on this defense at trial.

On review of a court of appeals certification; affirmed 5/23/23; case activity (including briefs);

Issue:

Whether Wis. Stat. § 301.45(5)(b)1, which mandates lifetime sex-offender registration where a person has been convicted of a sex offense “on 2 or more separate occasions,” applies when a person’s only eligible convictions are entered on multiple guilty pleas in the same case.

State v. Eric Jean Overvig, 2019AP1786, 9/8/21, District 3 (one-judge decision; ineligible for publication); case activity (including briefs)

Overvig was arrested for OWI-3rd and promptly put himself into intensive alcohol treatment. When it came time for sentencing, the trial court imposed probation with 20 days of conditional jail time. Ordinarily, under Wis. Stat. § 346.65(2)(am)3., the minimum for OWI-3rd would be 45 days, but there’s an exception in Wis. Stat. § 346.65(2)(cm) pertaining to certain probationers who undergo drug treatment: for them, the minimum is 15. The state appeals, arguing Overvig didn’t qualify for this exception, but the court of appeals holds that he did.

State v. Tavodess Matthews, 2021 WI 42, reversing a published court of appeals opinion, 2020 WI App 33, 5/14/21, case activity (including briefs)

Section 801.58(1) allows a party to a civil case to request a new judge if, among other things, he files a written substitution request before “the hearing of any preliminary contested matter.” Matthews’ case concerns a substitution request made after the circuit court granted a motion to adjourn a Chapter 980 probable cause hearing regarding sexually violent persons. But since Chapter 980 commitments are civil proceedings, this unanimous SCOW opinion, which reverses a published court of appeals’ opinion, is an important clarification of the law governing all civil cases.