On Point

 State v. O’Brien, et al., 2014 WI 54, 7/9/14, affirming published court of appeals decision; majority opinion by Justice Bradley; case activity

The defendants challenged the constitutionality of recently enacted WI Stat. s. 970.038, which permits the use of hearsay at preliminary hearings, and allows a court to base a finding – that probable cause exists to hold a defendant for trial on a felony charge – entirely on hearsay. The Wisconsin Supreme Court cursorily rejected arguments that the new statute, as applied, violated their rights to confrontation, compulsory process, effective assistance of counsel and due process. Special Guest Marla Stephens, Director of the SPD’s Appellate Division, authored this post about the decision.

City of Antigo v. M.K., 2013AP2627, District 3, 7/8/14 (1-judge; ineligible for publication); case activity

The circuit court held there was reasonable suspicion to stop the vehicle M.K. was driving because the court found the officer knew the vehicle’s registration was expired before he made the stop. The court’s finding of fact was not clearly erroneous, even though the officer’s testimony was equivocal as to whether he learned that fact as part of the original dispatch or after he spotted the vehicle and called in the license plate.

State v. Rickey V., 2014AP334, District 1, 7/8/14 (1-judge; ineligible for publication); case activity

Father’s failure to appear at two scheduled evidentiary hearings on whether there were grounds for termination of parental rights was sufficiently “egregious” to justify a default judgment against him under Dane County DHS v. Mable K., 2013 WI 28, ¶70, 346 Wis. 2d 396, 828 N.W.2d 198 (circuit court may find a parent in default if the parent’s unintentional failure to follow court orders is “‘so extreme, substantial and persistent’ that the conduct may be considered egregious”).

State v. Thomas G. Smith, 2013AP2516-CR, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

The profane comments Smith posted on a police department’s Facebook page are not “fighting words” because that category of unprotected speech only covers statements made in the context of a face-to-face communication.

State v. Andre Durand Reggs, 2013AP2367-CR, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

Applying State v. Ernst, 2005 WI 107, 283 Wis. 2d 300, 699 N.W.2d 92, the circuit court properly concluded that Reggs failed to make a prima facie showing that he did not knowingly, intelligently, and voluntarily waive the right to counsel for an earlier OWI conviction.

Marquette County v. Thomas J. Wagenaar, 2013AP2454, District 4, 7/3/14 (1-judge; ineligible for publication); case activity

A long delay in filing the notice of intent to revoke after Wagenaar refused a chemical test under § 343.305 didn’t deprive the circuit court of jurisdiction. In addition, police had probable cause to believe Wagenaar was operating a motor vehicle while under the influence of an intoxicant.

Question presented:

To trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), must the government prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act?

McCullen v. Coakley, USSC No. 12-1168, 2014 WL 2882079 (June 26, 2014), reversing McCullen v. Coakley, 708 F.3d 1 (1st Cir. 2013); Scotusblog page (includes links to briefs and commentary)

In this decision the Supreme Court strikes down a Massachusetts law making it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility. While all the justices agree the law violates the First Amendment, they do not agree on the reasons for reaching that result.

State v. Connie P., 2013AP2854, District 1, July 1, 2014 (1-judge; ineligible for publication); case activity

Connie’s no-contest plea at the grounds phase of her TPR proceeding was knowing and voluntary despite her post-termination assertion that she was unduly influenced by the trial court’s comments before the scheduled trial and by the decision of her child’s father, Ray, to stipulate to grounds for termination.

Eau Claire County v. Michael A. Grogan, 2014AP172, District 3, July 1, 2014 (1-judge; ineligible for publication); case activity

A reasonable person would have understood that he was given Miranda warnings because of his obstructionist behavior, so those warnings didn’t mislead Grogan into believing that the warnings applied in the implied consent context.