On Point: 39. Statutes

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.

State v. Jordan Alexander Lickes, 2020 WI App 59; case activity (including briefs); review granted 11/18/2020, affirmed, 2021 WI 60

This is not much of a surprise after State v. Ozuna, but the court of appeals here reverses a grant of expunction, holding in a to-be-published decision that any noncompliance with conditions of probation–even those that are not ordered by the court, but are imposed by DOC rule–makes expunction unavailable.

State v. Timothy E. Dobbs, 2020 WI 64, 7/3/20, affirming an unpublished per curiam court of appeals opinion, 2018AP319; case activity (including briefs)

There’s really only one important holding here: despite adoption of the Daubert standard, Wisconsin continues to permit expert testimony in the form of “dissertation or exposition.” That is, an expert can educate the jury about the principles or findings of his or her field without talking about the facts of the case, and an expert who does so is not subject to the requirement that he or she “appl[y] the principles and methods” of that field “reliably to the facts of the case.” Though the court also decides a separate Miranda issue, the discussion is fact-intensive and breaks no legal ground. What’s notable (and regrettable) about the Miranda decision is a meandering three-justice concurrence that repeats the court’s error in State v. Bartelt, 2018 WI 16, 379 Wis. 2d 588, 906 N.W.2d 684, by grafting a third step onto the familiar two-part Miranda-custody inquiry.

Ramos v. Louisiana, USSC No. 18-5924, 2020 WL 1906545, 4/20/20, reversing State v. Ramos, 231 So. 3d 44 (La. Ct. Apps. 2017); Scotusblog page (including links to briefs and commentary)

The holding in this case has no relevance to Wisconsin practitioners, or indeed anyone outside of Louisiana or Oregon–the only two jurisdictions permitting 10-2 guilty verdicts in criminal trials. The Sixth Amendment requires unanimity in federal trials, and our state supreme court has long held the Wisconsin Constitution confers the same right. See Holland v. State, 91 Wis. 2d 134, 138, 280 N.W.2d 288 (1979). So if you’re interested only in the impact on your practice, there is none, and you can stop reading now.

State v. A.A., 2020 WI App 11; case activity

Wisconsin Stat. § 938.355(6)(d)1. sets a maximum length of “not more than 10 days” for a custody sanction that a circuit court may impose on a juvenile who has violated a dispositional order. Is that 10 calendar days? Or, as the state argues, does “day” mean 24 consecutive hours, so that the maximum sanction is 10 consecutive 24-hour periods? It’s a calendar day, essentially, holds the court of appeals.

Dane County D.H.S. v. J.R., 2020 WI App 5; case activity

J.R.’s children were placed outside the home pursuant to two CHIPS cases. During the placement, the legislature changed the 4th element for the “continuing CHIPS” ground for termination of parental rights. When the County petitioned to terminate J.R.’s rights, it proceeded under the amended statute. J.R. objected to the retroactive application of the amended statute on statutory and due process grounds.

State v. Matthew Hinkle, 2019 WI 96, 11/12/19, affirming a published court of appeals decision, 2017AP1416, case activity (including briefs)

We’ve posted on this case twice before, first on the published court of appeals decision and then on the supreme court’s grant of the petition for review. The question is easily posed: the statute says that a juvenile is subject to automatic adult court jurisdiction if “the court assigned to exercise jurisdiction under [chs. 48 and 948] has waived its jurisdiction over the juvenile for a previous violation” and the previous case is either pending or ended in conviction. Does “the court” in that phrase mean any juvenile court in the state (so that waiver in any county would forever precluded juvenile jurisdiction in every county), or does it mean the specific juvenile court in the county where criminal charges are contemplated (so that each county would have a chance to make the waiver decision in its own courts)?

State v. Keith H. Shoeder, 2019 WI App 60; case activity (including briefs)

So if you’re going to drink and drive your riding mower, stay on your lawn.

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?