On Point: Important Posts

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (from petition for review):

Whether the doctrine of hot pursuit always justifies a forcible warrantless entry into the residence of one suspected of minor criminal activity. In the present case, the court of appeals declined to consider Mr. Delap’s argument that the conduct of law enforcement in this case, even if justified as legitimate ‘hot pursuit’ of a fleeing suspect, was nonetheless unreasonable under the Fourth Amendment. Although Mr. Delap’s argument presented a chain of reasoning and citation to legal authority, the court of appeals characterized the argument as ‘undeveloped’ and did not consider it.

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:

Jeremy Perri guests posts on State v. Adam M. Blackman, 2017 WI 77, 7/7/17, reversing a published court of appeals opinion, 2016 WI App 69, 371 Wis. 2d 635, 886 N.W.2d 94; case activity (including briefs)

SCOW suppresses blood test, holding that the statutory Informing the Accused misrepresented the consequences of a refusal, the consent was coerced, and the exclusionary rule is necessary to deter future violations.

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.

Mike Tobin guest posts on State v. Lewis O. Floyd, Jr., 2017 WI 78, 7/7/17, affirming a published court of appeals opinion, 371 Wis. 2d 404; case activity (including briefs)

The majority opinion affirms the rulings of the lower courts that the defendant voluntarily consented to a frisk of his person following a traffic stop. The majority reached its decision without discussing the reasonableness of the officer’s suspicion of criminal activity-an issue emphasized in the dissenting opinion and previously analyzed by the court of appeals.

State v. Navdeep S. Brar, 2017 WI 73, 7/6/17,  affirming an unpublished court of appeals opinion, 2015AP1261-CR; case activity (including briefs)

By obtaining a driver’s license or operating a vehicle in Wisconsin do we automatically give the government consent to draw our blood without a warrant? A nose count reveals the answer remains “maybe.”

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.

Honorable William Gabler v. Crime Victims Rights Board, 2017 WI 67, 6/27/2017, affirming circuit court on bypass; case activity (including briefs)

The legislature created the Crime Victims Rights Board and tasked it with, among other things, issuing “private and public reprimands of public officials” who violate victims’ rights as defined by our state Constitution and statutes. Wis. Stat. 950.09(2)(a). The supreme court now declares this mission contrary to the state Constitution when those “public officials” are judges. 

State v. Raymond L. Nieves, 2017 WI 69, 6/29/17, reversing an unpublished court of appeals opinion, 2014AP1623-CR; case activity (including briefs)

Forget the old saws that “appellate courts decide cases on the narrowest possible grounds,” “appellate courts should not reach constitutional issues when another issue is dispositive,” and “the supreme court should not decide issues forfeited in the court of appeals.” They don’t constrain SCOW here. Indeed, the majority opinion rushes past the plain language of §971.12(3) in order to decide a major Confrontation Clause issue and to reverse a big defense win in the court of appeals.

State v. Joseph T. Langlois, 2017 WI App 44, petition for review granted 12/13/17, affirmed, 2018 WI 73; case activity (including briefs)

We all know that an appellate court determines the accuracy of a trial court’s jury instructions by reviewing them as a whole, not in isolation. State v. Pettit, 171 Wis. 2d 627, 637-638, 492 N.W.2d 633 (Ct. App. 1992).  But surely this doesn’t mean that a “whole” that includes incomplete, inaccurate instructions for some charges is fine so long as it includes the correct instructions for other charges. Surely we don’t expect 12 people unfamiliar with the complex law of “self defense” and “accident” to determine which versions of these instructions are correct and whether the same version applies to three distinct charges. This split opinion says “sure we do.” Judge Reilly objects to the majority’s “as long as the correct words are in there somewhere” approach to instructing a jury. Hopefully, SCOW will too.