On Point

Question presented:

Did the Supreme Court’s decision in Harrington v. Richter, 562 U.S. 86 (2011), silently abrogate the presumption set forth in Ylst v. Nunnemaker, 501 U.S. 797 (1991)—that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision—as a slim majority of the en banc Eleventh Circuit held in this case, despite the agreement of both parties that the Ylst presumption should continue to apply?

Marathon County v. R.O., 2016AP1898-FT, 2/27/17, District 3 (one-judge decision; ineligible for publication); case activity

In 2016 R.O. was detained under § 51.15 after she was evicted and went to a local shelter but wasn’t able to do the paperwork to stay at the shelter. According to the two doctors who examined her while she was under emergency detention, R.O. was angry, defiant, irritable, displayed some paranoia, refused to cooperate with certain parts of the exams, and ‘lacked insight” into her illness. (¶¶2-6). These observations, in conjunction with information in her records describing past episodes that ended in hospitalization, were sufficient to justify the circuit court’s finding she was dangerous to herself.

Voces de La Frontera, Inc. v. David A Clarke, Jr., 2017 WI 16, reversing a published court of appeals opinion, 2/24/107; case activity (including briefs)

Voces filed an open records request for immigration detainer forms (aka I-247 forms) for persons held at the Milwaukee County Jail. It wanted to confirm that Sheriff Clarke was following federal law governing the deportation of immigrants. See Journal Sentinel story. When Clarke provided only redacted forms, Voces sued for full disclosure and won at the circuit court and the court of appeals. SCOW now reverses in a decision the dissent calls a loss for the people of Wisconsin and their longstanding commitment to open government.

State v. Tabitha A. Scruggs, 2017 WI 15, affirming a published court of appeals decision; 2014AP2981-CR, 2/23/2017; case activity (including briefs)

On June 30, 2013, Wisconsin enacted its biennial budget bill. Among its provisions were changes to the DNA surcharge applied to criminal convictions in Wisconsin. The $250 surcharge became mandatory rather than discretionary for all felonies (rather than just a few as previously), and would now be applied on a per-count basis rather than once per case. The bill also created a new, mandatory $200-per-count surcharge for misdemeanors.

State v. Ricky C. Anderson, 2017 WI App 17; case activity (including briefs)

Ricky Anderson pled to a sexual assault by telephone from prison, with his attorney, the prosecutor and the judge all in the courtroom. The court of appeals concludes the court did not do enough to establish either that Anderson knowingly waived his statutory right to be physically present or that the telephone connection was adequate to allow his meaningful participation in the hearing.

In case you have not heard, the ACLU has filed Collins v. City of Milwaukee, a class action lawsuit alleging that the Milwaukee Police Department’s stop-and-frisk program uses racial profiling. Click here to read the complaint. According the ACLU’s press release: In 2011, the Milwaukee Journal Sentinel found that Milwaukee police were seven times more likely […]

Eau Claire County v. Duane D. Collier, 2016AP366, District 3, 2/22/17 (one-judge decision; ineligible for publication); case activity (including briefs)

Collier’s belated challenge to his 1992 civil forfeiture judgment for OWI 1st offense is foreclosed by City of Eau Claire v. Booth, 2016 WI 65, 370 Wis. 2d 595, 882 N.W.2d 738.

State v. Thomas M. Gibson, 2016AP1933-CR, 2/22/17, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

An officer trained in visually estimating speed observed a car driven by Gibson going what he estimated to be 25 m.p.h. in a 15 m.p.h. speed zone. He trained a radar unit on the car, and that said the car was going 26 m.p.h. The officer stopped the car, and Gibson was ultimately arrested for OWI. It turns out the radar unit hadn’t been calibrated since the early years of the internet—1994. (¶¶3-5). No matter, says the court of appeals. The officer still had reasonable suspicion for the stop.

State v. T.T.H., 2016AP1553-1554-CR, District 1, 2/21/17 (1-judge decision, ineligible for publication); case activity

T.T.H., aged 16,  challenged a circuit court decision waiving his case into adult court on the grounds that: (1) the record did not show that the circuit court gave “paramount consideration” to the juvenile’s best interests, and (2) the circuit court failed to give sufficient consideration to T.T.H.’s suitability for the Serious Juvenile Offender program.  Both challenges failed.

State v. D.T., 2016AP1488, 2/21/17, District 1 (1-judge opinion, ineligible for publication); case activity

D.T. sought to withdraw her stipulation that the court had grounds to terminate her parental rights. She said the court made conflicting statements during its colloquy with her, such as  “it’s never too late to meet the conditions of return.” The court of appeals noted that the circuit court later clarified this remark by stressing that the focus of the subsequent dispositional hearing would be on the child’s best interests.