On Point: Important Posts

Waupaca County v. G.T.H., 2022AP2146, District IV, 8/24/23, 1-judge decision ineligible for publication; case activity (briefs not available)

Contrary to what has seemed like a steady stream of unsuccessful hearsay-based Chapter 51 appeals, see e.g., here, here, here, here, and here, G.T.H. succussfully convinces the court of appeals to reverse his recommitment, which was based on extensive hearsay testimony.

State v. James P. Killian, 2023 WI 52, 06/21/23, reversing a published court of appeals decision; case activity (including briefs)

The state’s threat to add new charges against Killian during a trial that ended in a mistrial didn’t expand the scope of the protection against double jeopardy to those new charges.

State v. Junior L. Williams-Holmes, 2023 WI 49, 6/20/23, reversing and remanding a published court of appeals decision; case activity (including briefs)

Reaffirming that the Department of Corrections, not the circuit court, is responsible for regulating the day-to-day affairs of persons being supervised by DOC, the supreme court sends this case back to the circuit court for it to either modify the supervision condition it ordered in this case or clarify how it is consistent with the law.

State v. Jovan T. Mull, 2023 WI 26, 4/4/23, reversing a per curiam decision of the court of appeals; case activity (including briefs)

The supreme court rejects Mull’s claims that his trial lawyer was ineffective at his trial, though it reaffirms that trial counsel’s strategic decisions are not given automatic deference, but are judged for their objective reasonableness under all the circumstances.

Winnebago County v. D.E.W., 2023AP215, District II, 7/26/23, 1-judge decision ineligible for publication; petition for review granted 12/12/23; dismissed as improvidently granted 5/14/24 case activity (briefs not available)

In yet another appeal of a medication order, COA concludes the County sufficiently cleared legal hurdles meant to protect citizens from the involuntary administration of psychotropic drugs.

Samia v. United States, USSC No. 22-196, 143 S. Ct. 2004, June 23, 2023, affirming U.S. v. Hunter, et al., Nos. 18-3074-cr, 18-3489-cr, 19-790-cr (2nd Cir. Apr. 20, 2022) (not reported); Scotusblog page (with links to briefs and commentary)

A majority of the Supreme Court affirms the use of a confession of one non-testifying co-defendant against another defendant, and its rationale shows, in the words of the dissenters, that the majority thinks the rule in Bruton v. United States, 391 U.S. 123 (1968), “should go.” (Kagan dissent at 10; Jackson dissent at 1).

Haaland et al. v. Brackeen et al., USSC No. 21-376, 143 S.Ct. 1609 (June 15, 2023), affirming in part, reversing in part, and vacating and remanding 994 F.3d 249 (5th Cir. 2021); Scotusblog page (including links to briefs and commentary)

This is a guest post by Attorney Matthew Giesfeldt of the Madison Appellate office, who is also the SPD’s Family Defense Practice Coordinator.

The Indian Child Welfare Act, or “ICWA,” is a federal law enacted in response to concern that nontribal public and private agencies were removing Native American children from their homes to non-tribal placements at “an alarmingly high percentage[.]” Slip op. at 2. Wisconsin codified ICWA as state law in 2009. Wis. Stat. § 48.028. Under both the federal and state statutes, agencies that place children out of the home (such as local child-protection agencies) must adhere to stricter requirements to remove a tribal child than they must follow to remove a non-tribal child. For example, tribes may intervene in child placement cases, and agencies seeking to remove tribal children from tribal homes must engage in “active efforts” to help the parents and prevent the removal. Wis. Stat. § 48.028(4)(e)2.

In these consolidated cases, the biological parents and each foster parent couple seeking to adopt agreed that a tribal child should be adopted by nontribal parents, but a tribe intervened in opposition to the others’ plans. The parents filed a federal suit challenging ICWA, which three states joined. In one of the cases, the adoption was denied based upon the tribe’s intervening objection, though in the other two cases the tribe ultimately abandoned its objection, allowing the adoption to go through. Slip op. at 6-8.

The Court addressed four separate constitutional challenges to ICWA:

Range v. Attorney General, 69 F.4th 96 (3d Cir. 2023).

In a case highlighting the changed legal landscape for firearm regulation, an en banc panel of the Third Circuit Court of Appeals concludes that the federal government cannot ban a nonviolent felon from lawfully possessing a firearm.

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.

On June 28, 2023, the court of appeals ordered publication of one criminal law related decision:

State v. Tracy Laver Hailes, 2023 WI App 29 (circuit court can’t apply § 939.62(1) and § 961.48 penalty enhancers at the same time)