On Point: B. Opinions

Seifert v. Balink, 2017 WI 2,1/6/17,  affirming a published court of appeals opinion; case activity (including briefs)

It’s true. SCOW’s first decision on §907.02(1), which adopted the Daubert test for the admissibility of expert testimony is 134 pages long and includes 4 separate opinions, but don’t despair. It’s not the mess you imagine. Reading the first 3 opinions by Abrahamson (joined by A.W. Bradley), Ziegler (solo) and Gableman (joined by Roggensack) feels like the kids’ game “spot the difference between these pictures.” They are more alike than different. You might even wonder why the 5 of them couldn’t just sign on to 1 majority opinion. Or you might not. Bottom line: 5 justices affirmed the admission of a medical doctor’s expert testimony even though it was based on his personal experience, not science.

Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2016 WI 100, 12/28/16, reversing a summary disposition of the court of appeals; case activity (including briefs)

Before the November 2014 election, the Democratic Party of Wisconsin filed an open records request for videos of two training presentations made by Brad Schimel, the DA running for Attorney General. The Department of Justice denied the request, but a circuit judge ordered the videos to be released, and the court of appeals affirmed that order. In an opinion that will arguably enhance the ability of prosecutors to deny release of their records—or, as the dissent aptly describes it, will dim or even shut out some of the light meant to be shed by Wisconsin’s “Sunshine Law”—a majority of the supreme court holds the videos don’t have to be released.

State v. Richard L. Weber, 11/29/16, 2016 WI 96, reversing a per curiam court of appeals decision, 2014AP304-CR; case activity (including briefs)

A deputy activates his emergency lights upon seeing a car with a defective brake lamp weave over a highway fog line. The car slows for 100 feet, turns right into a driveway, and pulls into a garage attached to a house.  The deputy apprehends the driver inside the garage.  Was there a 4th Amendment violation? 

OLR v. John Kenyatta Riley, 2016 WI 70, 7/15/16; case activity (including briefs)

Leaving us with another splintered decision as the current term comes to its end, a majority of the supreme court votes to publicly reprimand an attorney for “offering” false testimony from his client and then failing to take reasonable measures to correct the testimony. The precedential value of the opinion is uncertain, and perhaps nil, as there’s no majority rationale for the decision and it involves a previous version of the relevant ethical rule; nonetheless, every lawyer who calls witnesses should be aware of it and contemplate what it might portend.

State v. Eric L. Loomis, 2016 WI 68, 6/13/06, on certification from the court of appeals, case activity (including briefs)

The developer of COMPAS says that he didn’t design it to be used in sentencing, and he won’t disclose its “trade secret” algorithm. See Pro Publica interview here. But in a 7-0 decision (with 2 concurrences) SCOW holds that if used properly, observing certain “limitations and cautions,” a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate due process. Slip op. ¶8.

State v. Patrick J. Lynch, 2016 WI 66, 7/13/16, affirming (for all practical purposes) a published court of appeals decision, 2015 WI App 2, 359 Wis. 2d 482, 859 N.W.2d 125; case activity (including briefs)

A very divided supreme court once again declines to overrule State v. Shiffra, 175 Wis. 2d 600, 499 N.W.2d 719 (Ct. App. 1993), and State v. Green, 2002 WI 68, 253 Wis. 2d 356, 646 N.W.2d 298, and leaves the current standard and remedy intact—or, as the mandate puts it, “the law remains as the court of appeals has articulated it.” But four separate writings totaling 135 pages make it clear Shiffra in its current form will certainly be subject to challenge again.

State ex re. Aman Singh v. Paul Kemper, 2016 WI 67, 7/13/16, affirming in part and reversing in part a published court of appeals decision, 2014 WI App 43, 353 Wis. 2d 520, 846 N.W.2d 820; case activity (including briefs)

This habeas case involves three discrete ex post facto claims regarding multiple offenses committed and disposed of over a short time span during which there were three versions of Truth-in-Sentencing. A fractured court issues five separate opinions, resulting in holdings that find some ex post facto violations but apparently provide no relief to Singh, the petitioner.

City of Eau Claire v. Melissa M. Booth Britton, 2016 WI 65, 7/12/16, reversing a circuit court order on bypass, case activity (including briefs)

OWI specialists, pay attention to this case! It abolishes subject matter jurisdiction challenges to improperly-charged 1st offense OWIs. Everyone else, pay attention too. Justice Abrahamson’s 33-page dissent offers a comprehensive analysis of how the majority opinion (written by R.G. Bradley) fundamentally misunderstands circuit court competency and subject matter jurisdiction and broadly impacts public policy as well as civil and criminal litigation.

State v. Timothy L. Finley, Jr., 2016 WI 63, affirming a published court of appeals decision, 2015 WI App 79, 365 Wis. 2d 275, 872 N.W.2d 344; case activity (including briefs)

Reaffirming the long-standing law governing plea withdrawal that was established in State v. Bangert, 131 Wis. 2d 246, 389 N.W.2d 12 (1986), and limiting the reach of two recent cases that muddied the Bangert procedure, the supreme court holds, 5 to 2, that Finley is entitled to withdraw his plea because the circuit court misadvised Finley of the maximum penalty during the plea colloquy and the state failed to prove Finley knew the actual maximum penalty.

OLR v. Peter J. Kovac, 2016 WI 62, 7/8/16; case activity

The supreme court suspended an attorney’s license for 90 days for professional misconduct in two criminal matters, including violating SCR 20:1.16(d) by failing to promptly provide the clients’ files to postconviction counsel. (¶¶5-6, 8, 9-10, 12). Because the attorney did not file an answer or defend against the OLR complaint,