On Point: 2017-18 Term

SCOW recently rejected a challenge to Wisconsin’s statutory cap on noneconomic damages for victims of medical malpractice. See Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 2018 WI 78.  If you are challenging the constitutionality of  a Wisconsin statute, you may want to take a careful look at this decision.  The justices appear to have split over the proper standard for judging the constitutionality of a statute.

State v. Christopher John Kerr, 2018 WI 87, 7/6/18, reversing a circuit court order on bypass of the court of appeals; case activity (including briefs)

Wisconsin has recognized 2 grounds for applying the exclusionary rule to suppress evidence–to deter police misconduct and to ensure judicial integrity.  State v. Hess, 2010 WI 82, ¶¶20, 33, 327 Wis. 2d 524, 785 N.W.2d 568; State v. Eason, 2001 WI 98, ¶¶3, 31 n.10, 245 Wis. 2d 206, 629 N.W.2d 625. The majority opinion in this case clarifies that a judge’s failure to follow the law when issuing a warrant cannot serve as an independent basis for the exclusionary rule. 

State v. Gerald P. Mitchell, 2018 WI 84, 7/3/18, on certification from the court of appeals; 2015AP304-CR, SCOTUS cert. granted, 1/11/19, vacated and remanded, 6/29/19; case activity (including briefs)

This is the supreme court’s third attempt to decide whether provisions of Wisconsin’s implied consent law comport with the Fourth Amendment. If you’ve been following along, you might have predicted the result: no majority opinion, no binding holding, and, as the lead opinion laments, a state of confusion going forward. Briefly: the lead, 3-justice opinion says “we overrule State v. Padley,” a court of appeals decision addressing a related (though not identical) issue, but it in fact does no such thing: it seems, in fact, to echo much of the discussion in Padley, and anyway, it’s a three-justice minority, and can’t overrule anything. A two-justice concurrence says the legislature can’t legislate away a motorist’s right to refuse consent to a search, but would hold that a blood draw of an unconscious OWI suspect doesn’t require a warrant anyway, despite a pretty clear statement to the contrary from SCOTUS. And a two-justice dissent also says the implied consent law doesn’t equal constitutional consent. So, just as in State v. Hager from this term, you have a result that favors the state, even though a majority of justices disagree with the state’s constitutional argument.

State v. Patrick H. Dalton, 2018 WI 85, 7/3/18, reversing in part and remanding an unpublished court of appeals decision; case activity (including briefs)

The supreme court holds there were exigent circumstances that allowed police to draw blood from Dalton without a warrant after he refused to consent to a blood draw. But a majority of the court also holds that the sentencing judge erred by explicitly imposing a harsher sentence on Dalton because he refused to consent to the blood draw.

State v. Kyle Lee Monahan, 2018 WI 80, affirming an unpublished court of appeals decision, 2014AP2187, case activity (including briefs)

You wouldn’t know it from the opinions, but the parties here briefed (and WACDL filed an amicus brief on) a question of harmless error doctrine. When trying to decide whether a trial error is harmless, the court is to ask whether “the jury would have arrived at the same verdict had the error not occurred.” Monahan contended that since a jury, as finder of fact, is free to draw any reasonable inference from the evidence, the reviewing court must view the trial evidence in the light most favorable to the defendant–that is, not declare an error harmless unless there is no reasonable set of inferences that would lead the jury to acquit. He argued that the court of appeals had not done this–that it had instead taken a conviction-friendly view of the evidence, effectively substituting its own views for that of the hypothetical “reasonable jury.” In so doing, he said, the court of appeals had effectively turned the (ostensibly stringent) harmless error test to the (extremely forgiving) standard for sufficiency of the evidence.

State v. Andre L. Scott, 2018 WI 74, 6/20/18, reversing a circuit court order on bypass, case activity (including briefs).

Ruling 7-0 for the defendant, SCOW reversed a circuit court order requiring involuntary treatment to competency for postconviction proceedings because the circuit court failed to follow State v. Debra A.E., 188 Wis. 2d 111, 523 N.W.2d 727 (1994). It also established a process for appealing an order finding a defendant incompetent and requiring involuntary treatment to competency. And–very importantly–it held that lower courts must automatically stay involuntary medication orders pending appeal. Note that aspects of this decision apply to pre-trial and trial competency proceedings as well as postconviction competency proceedings.

State v. Joseph T. Langlois, 2018 WI 73, 6/20/18, affirming a published court of appeals decision, 2017 WI App 44; case activity (including briefs)

A majority of the supreme court concludes that the jury instructions given in this case, when viewed in their entirety, accurately stated the law the jury needed to decide the case. Two dissenting justices disagree, concluding that when considered in their entirety, the instructions could have led the jury astray.

State v. Anthony R. Pico, 2018 WI 66, 6/15/18, affirming a split, unpublished court of appeals opinion, 2015AP1799-Cr, case activity (including briefs)

This split decision clarifies important aspects of ineffective assistance of counsel law, sentencing law, and appellate procedure. In addition, Justice Abrahamson’s dissent includes a word of caution for lawyers representing clients who have experienced brain trauma that may affect their mental capacity.

State v. Michael L. Cox, 2018 WI 67, 6/15/18, on certification from the court of appeals; case activity (including briefs)

For years the DNA surcharge statute said that a court “shall” impose a surcharge on certain felony sex offenses and “may” impose a surcharge on any other felony offense. See § 973.046 (1g) and (1r) (2011-12). That changed in 2013 Wis. Act 20, §§ 2353 and 2354, which amended the statute to say a court “shall” impose a surcharge for all criminal convictions, including misdemeanors, committed on or after January 1, 2014. A unanimous supreme court holds that in making this change the legislature intended to eliminate a circuit court’s discretion to waive the surcharge by requiring the surcharge to be imposed in every case.

State v. Steven T. Delap, 2018 WI 64, 6/6/18, affirming an unpublished court of appeals decision, 2016AP2196, case activity (including briefs)

Police had two warrants to arrest Delap. They went to what someone had told them was his address, and someone they thought was Delap ran from them toward the back door of the residence. They chased him, prevented him from closing the door, and arrested him.