On Point: B. Opinions

Memorandum Decision on Recusal in: Wisconsin Judicial Commission v. David T. Prosser, Jr., 2012 WI 69 (Justice Crooks); case activity; companion decision: 2012 WI 43

Justice Crooks declines to recuse himself (with respect to the pending misconduct complaint against Justice Prosser) under the Rule of Necessity, namely the possible loss of a quorum (4 justices) and thus loss of ability altogether to resolve the matter:

This matter——involving discipline of a sitting Supreme Court justice arising from incidents with sitting justices that were witnessed by other sitting justices——places this court in a difficult position.

State v. Lee Roy Cain, 2012 WI 68, affirming unpublished decision; case activity

Post-Sentencing Plea-Withdrawal, Generally 

When a defendant satisfies the burden of showing, by clear and convincing evidence, the existence of a “manifest injustice,” the plea should be withdrawn as a matter of right:

¶26  …  State v. Daley sets out the following list of circumstances where manifest injustice occurs:[6]

1.

Milwaukee Journal Sentinel v. City of Milwaukee, 2012 WI 65, on bypass; case activity

¶1   Once again this court is asked to interpret the Wisconsin Public Records Law, Wis. Stat. §§ 19.31-.39 (2009-10).[1]  The issue presented is whether an authority[2] may impose a fee on a requester of a public record for the actual, necessary, and direct costs incurred by the authority (including staff time) of deleting nondisclosable information included within the responsive records.

State v. Dimitrius Anagnos, 2012 WI 64, reversing 2011 WI App 118; case activity

OWI – Refusal Hearing – Authority to Litigate Constitutionality of Traffic Stop 

Constitutionality of the traffic stop  may be raised as a defense at a refusal hearing, § 343.305(9)(a)5.a.

¶29  In this case, the relevant portion of the statute is found in sub. (9)(a)5.a.  That subsection permits circuit courts to consider “[w]hether the officer had probable cause to believe the person was driving or operating a motor vehicle while under the influence of alcohol . 

State v. Joseph C. Miller, 2012 WI 61, affirming summary order; case activity

¶5   We conclude that under the totality of the circumstances police acted reasonably when they conducted an investigatory stop of the vehicle that Miller was driving based on reasonable suspicion “that criminal activity may be afoot.”[5]  We are confident that police had the requisite reasonable suspicion primarily based on the reliability of the final informant and the information provided by him.  

Wisconsin State v. Tally Ann Rowan, 2012 WI 60, on certification review ; case activity

Extended Supervision Conditions – Suspicionless Searches 

A condition of extended supervision “that allows any law enforcement officer to search [Tally]’s person, vehicle, or residence for firearms, at any time and without probable cause or reasonable suspicion,” was tailored to the particular facts and thus neither overbroad nor unrelated to Tally’s rehabilitative needs.

State v. Douglas Meier Williams, 2012 WI 59, on review of court of appeals certification request; for Williams:  Stephen P. Hurley, Dean A. Strang, Marcus J. Berghahn, Jonas B. Bednarek; case activity

Wis. Stat. § 757.69(1)(b), giving circuit court commissioners authority to issue search warrants, is constitutional.

¶3   Throughout Wisconsin’s history, including before the ratification of the Wisconsin Constitution, non-judges have been authorized by statute to issue search warrants.  

State v. Tyler T., 2012 WI 52, affirming unpublished decision; for Tyler T.: Susan E. Alesia, SPD, Madison Appellate;  case activity

While the practice of allowing ex parte prosecutorial input at the final staffing of a juvenile waiver investigation can’t be recommended, it is nonetheless not impermissible as a matter of law.

¶4   We conclude that the circuit court did not err in denying Tyler’s request to strike the waiver investigation report prepared by the DHHS.  

Fond du Lac County v. Helen E. F., 2012 WI 50, affirming 2011 WI App 72; for Helen E.F.: Donald T. Lang, SPD, Madison Appellate; case activity

Someone suffering from Alzheimer’s Disease is not a fit subject for commitment under ch. 51 but, instead, guardianship proceedings under ch. 55.

¶13  Wis. Stat. ch. 55 provides Helen with the best means of care.  

Best Price Plumbing, Inc. v. Erie Insurance Exchange, 2012 WI 44; case activity

¶37 n. [11]:

In State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612, this court recognized that the terms “forfeiture” and “waiver” are often used interchangeably, but that the terms embody distinct legal concepts.  Forfeiture is the failure to make the timely assertion of a right,