On Point

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.

Dane County v. D.F.B., 2022AP1852, District 4, 05/11/2023 (1-judge opinion, ineligible for publication); case activity

A jury found D.F.B. dangerous under the second standard, which required evidence of a “substantial probability of physical harm to other individuals as manifested … by evidence that others are placed in reasonable fear of violent behavior and serious physical harm to them, as evidenced by a recent overt act, attempt or threat to do serious physical harm.” See Wis. Stat. § 51.20(1)(a)2.b. At trial, two witnesses testified about threats D.F.B. allegedly made by email to a University of Wisconsin-Madison employee. The circuit court overruled D.F.B.’s objection that the testimony was not the “best evidence” of the contents of the emails. The court of appeals disagrees, holding that the circuit court admitted testimony about the contents of D.F.B.’s alleged emails contrary to Wis. Stat. § 910.02 and that the error was not harmless. (Opinion, ¶¶ 1-2). 

Winnebago County Department of Human Services v. N.J.D., 2023AP75, 05/03/2023 (District 2) (one-judge opinion, ineligible for publication); case activity

Presented with two strong bases to reverse, the court of appeals picks one and holds that because the record “fails to demonstrate that N.D. waived his right to counsel,” the order terminating his parental rights to his daughter is reversed. (Opinion, ¶1).

State v. Jonathan M. Mark, 2022AP001739-CR, 5/10/23, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs)

While at a Kwik Trip investigating an unrelated incident, an officer spotted Mark whom he believed to be the subject of an outstanding warrant. When the officer conducted a Terry stop, Mark resisted and wound up pleading guilty to obstructing an officer. On appeal, he argued–unsuccessfully–that the officer lacked reasonable suspicion to stop him, and he received ineffective assistance of counsel.

Price County v. T.L., 2022AP1678, 4/25/2023, District 3 (1-judge opinion, ineligible for publication); case activity

The law governing default TPRs is messy. Click here. This decision makes it messier.

State v. Peter John Long, 2022AP496, District 2, 5/3/23 (one-judge decision; ineligible for publication); case activity (including briefs)

The state concedes, and the court of appeals agrees, that Long is entitled to a hearing on his motion to reopen the default judgment entered in his refusal proceeding.

State v. Steven M. Nelson, 2021AP843-845, 4/4/23, District 3 (not recommended for publication); case activity (including briefs)

Nelson pleaded guilty to possessing meth as a repeater. He was eligible for the repeater enhancement because, on November 15, 2017, he’d been convicted of being a felon in possession of a firearm in Barron County Case No. 2017CF307. The information in this case noted the Barron County prior, but erroneously said it was another conviction for possessing meth. Postconviction and on appeal, Nelson submitted that the repeater enhancer is invalid because he didn’t receive notice of what the prior conviction was alleged to be.

Nelson Garcia, Jr., v. Randall Hepp, No. 21-3268, 4/25/23, affirming Nelson Garcia, Jr. v. Brian Foster

A long line of Supreme Court cases holds that a criminal defendant’s right to counsel attaches when he or she becomes a criminal defendant: when he or she is formally accused of a crime. Most recently, in Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court applied this rule to conclude that the defendant had the right to counsel when a police officer brought him before a judge and the judge found probable cause, committed him to jail, and set bail. In Milwaukee County, though, when a person is arrested without a warrant, judges routinely find probable cause, order detention, and set bail without seeing the person. As happened in Garcia’s case, an officer presents a judge a form–the CR-215–detailing the basis for suspecting the person; the judge can then check a box indicating that probable cause exists and can also set bond. The form is then distributed to, among others, the person being held.

On April 26, 2023, the court of appeals ordered publication of the following criminal law related decisions: Outagamie County v. L.X.D.-O., 2023 WI App 17 (counties must move examiners’ reports into evidence at recommitment hearings, but not at initial commitment hearings).

State v. Donte Quintell McBride, 2021AP311-CR, state’s petition to review an unpublished court of appeals decision granted, 4/18/23; affirmed, 2023 WI 68 case activity (including briefs, PFR, and response to PFR)

Issues (from the State’s PFR):

1. When reviewing a motion to suppress, what is the proper application of the “clearly erroneous” standard of review?

2. Was the seizure and subsequent search of McBride constitutional where police observed two people sitting in an unilluminated SUV, which appeared to obstruct traffic, late at night in a high crime area, and when McBride made furtive movements in response to the officer’s spotlight?