On Point

Racine County HSD v. R.E., 2016AP2039, 3/15/2017, District 2 (one-judge decision; ineligible for publication); case activity

The record supported the circuit court’s grant of partial summary judgment on grounds of abandonment because there was no genuine issue of material fact as to whether R.E. had failed to visit or communicate with her child, S.E., for a period of three or more months, § 48.415(1)(a)2.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Whether the prosecutor’s closing argument impermissibly shifted the burden of proof by telling the jury that in order to acquit the defendant they would have to believe the complaining witnesses were lying, that there would have to be evidence of a reason for them to lie, and that the defendant had presented no reason to believe they were lying.
2. Whether the defendant was deprived of the right to effective assistance of counsel because trial counsel did not object to the jury being given unredacted exhibits containing inadmissible information that one complainant had not had sexual intercourse before the assault alleged in this case.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

1. Was trial counsel ineffective for failing to move to dismiss on First Amendment free speech grounds a disorderly charge that was based on Breitzman’s use of foul language toward her son inside their home?
2. Did the court of appeals misapply the standards for reviewing ineffective assistance of counsel claims by deferring to the legal conclusions in the circuit court’s postconviction ruling?

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Wisconsin Carry, Inc. v. City of Madison, 2017 WI 19, 3/7/17, reversing a published court of appeals opinion, 2015WI App 74, case activity (including briefs)

Justice Kelly’s maiden majority opinion opens with a 4-page discussion of a subject both parties disavowed–the Second Amendment right to bear arms. According to the briefs, this case posed only an issue of statutory interpretation–essentially, whether §66.0409, which governs the  “local regulation of weapons,” preempts a City of Madison Transit and Parking Commission rule that prohibits people from carrying weapons, including guns, on City buses.

By the end of the primer on the 2nd Amendment, you can predict the result: A 5-2 opinion reversing a unanimous court of appeals decision holding that §66.0409(2)’s plain language applies to a “political subsdivision’s” “ordinances” or “resolutions” not to a  Transit Commission “rule” banning weapons. But you might not predict that the majority opinion would dial back the conservative “strict constructionist” approach to statutory interpretation adopted in State ex rel Kalal v. Cir. Ct. for Dane County.  Henceforth, a statute’s text should be no obstacle to the interpretation you desire.

State v. Thornon F. Talley, 2017 WI 21, 3/9/17, affirming an unpublished summary court of appeals order; case activity (including briefs)

Thornon Talley, who is committed as a sexually violent person under Wis. Stat. ch. 980, filed a petition for discharge from that commitment in 2012. The circuit court denied the petition without a hearing. The supreme court now unanimously upholds that denial, essentially because Talley did not show any meaningful change in his condition since his previous discharge trial (also in 2012).

State v. Randy Allen Lapp, 2016AP116-CR, 3/7/17, District 1 (not recommended for publication); case activity (including briefs)

Randy Lapp’s ineffective assistance claims are numerous and diverse, and the court of appeals quickly disposes of them. To wit:

You’re familiar with how the justices split on merits cases in SCOW.  But do you know how they vote in lawyer disciplinary cases? Today’s edition of SCOWstats crunches the numbers.

State v. Diamond J. Arberry, 2017 WI App 26, petition for review granted 6/16/17, affirmed, 2018 WI 7 ; case activity (including briefs)

Because a circuit court must decide whether to grant expungement under § 973.015 “at the sentencing proceeding,” State v. Matasek, 2014 WI 27, ¶45, 353 Wis. 2d 601, 846 N.W.2d 811, the court doesn’t have authority to consider expungement when it asked to do so in a defendant’s postconviction motion.

State v. T.L.J., 2016AP1395, District 2, 3/8/2017 (one-judge decision; ineligible for publication); case activity

The circuit court did not erroneously exercise its discretion in granting the state’s petition to waive T.L.J. into adult court to face charges of armed robbery and operating a motor vehicle without owner’s consent.