On Point

State v. One 2013 Toyota Corolla, 2015 WI App 84; case activity (including briefs)

While a co-owner’s interest in a car didn’t make her the owner for purposes of the “innocent owner” exception to property forfeiture under § 961.55(1)(d)2., forfeiture of her full financial interest violated the Eight Amendment’s prohibition against the levying of excessive fines.

Paysun Long v. Kim Butler, 7th Circuit Court of Appeals Case No. 13-3327, 10/27/15

Long is entitled to habeas relief because the prosecutor in his state murder trial failed to correct perjured testimony given by a state’s witness.

State v. Joshua Allan Vitek, 2015AP421-CR, District 3, 10/27/15 (one-judge decision; ineligible for publication); case activity (including briefs)

Under State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923, police may reasonably assume the driver of a car is likely to be the owner, and may stop the car if they know the owner’s operating privileges are invalid. But what if more than one person owns the car, but only one of the owners has an invalid license? The state claims that a traffic stop is still justified by the fact that one of the owners has an invalid license. The court of appeals disagrees, at least when—as in this case—the state presents no evidence as to the number of registered owners and the validity of their operating privileges.

State v. K.G., 2015AP245, District 1, 10/27/15 (one-judge decision; ineligible for publication); case activity

K.G.’s stipulation to the failure-to-assume-parental-responsibility ground alleged in the TPR petition was valid even though K.G.’s later statements during the disposition hearing suggest he misunderstood what the state would have to prove to establish that ground for termination.

Is there a new Fourth Amendment “plane” view doctrine in the offing? Eugene Volokh highlights a state high court decision invalidating a helicopter flyover search that kicked up dust and damaged the home. Already on the horizon: smaller, cleaner, and ever more available drones (including the weaponized ones). Speaking of the Fourth Amendment, data from North Carolina, which collects […]

State v. B.A.H., 2015AP1256-FT, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity

While restitution is a possible disposition in a proceeding involving a juvenile in need of protection or services (JIPS), it can only be ordered when there has been a finding a finding the juvenile committed a delinquent act. Because there was no such finding in the JIPS case involving B.A.H., the juvenile court had no authority to order restitution.

Sauk County DHS v. A.C., 2015AP898 & 2015AP899, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity

A.C.’s trial lawyer was not ineffective for failing to take steps to exclude evidence about the termination of A.C.’s rights to a child in a prior case and about her parenting conduct toward that child and another child.

State v. Tabitha A. Scruggs, 2015 WI App 88, petition for review granted, 3/7/16, affirmed, 2017 WI 15; case activity (including briefs)

Addressing a question left open by State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758, the court of appeals holds that the constitutional prohibition against ex post facto laws does not bar the mandatory imposition of a DNA surcharge for a single felony conviction based on conduct that was committed before the mandatory DNA surcharge requirement took effect.

State v. Courtney E. Sobonya, 2015 WI App 86; case activity (including briefs)

Sobonya launched a creative challenge to the denial of her §973.015 request for expungement.  The court had held that while she would benefit from expungement, society would be harmed by the reduced deterrent effect of her sentence.  So Sobonya moved for sentence modification based on an expert report showing that the public safety is best served by removing the barriers that convicted offenders face when trying to reintegrate into society.

X.J. v. G.G., 2015AP1549, District 3, 10/21/15 (one-judge decision; ineligible for publication); case activity

Under § 48.42(1), an adoptive parent may join the biological parent in a petition to terminate the parental rights of the other biological parent, and because joining the petition makes the adoptive parent a party, the adoptive parent is not subject to sequestration as a witness.