On Point

Now that the 2011-12 Legislative session has ended and all pending bills have been acted on by the Governor, I wanted to offer a brief list of the greatest hits in new legislation.

2011 Wisconsin Act 2 – Tort Reform

• Sections 33-38 of Act 2 apply the federal Daubert rules regarding expert witnesses.
• Act 2 took effect onFebruary 1, 2011.

2011 Wisconsin Act 38 – Repeal Earned Release

• Act 38 repealed the provisions in 2009 Wisconsin Act 28 that created an Earned Release program for inmates.

Alex Blueford v. Arkansas, USSC No. 10-1320, 5/24/12, affirming 2011 Ark. 8

Double Jeopardy doesn’t bar retrial on greater offenses, despite jury foreperson’s report of unanimous votes against those charges, after ensuing deadlock resulted in mistrial.

Blueford’s primary submission is that he cannot be retried for capital and first-degree murder because the jury actually acquitted him of those offenses. See Green v.

State v. Susan C. Macho, 2011AP1841-CR, District 2, 5/23/12

court of appeals decision (1-judge, not for publication); for Macho: Leonard G. Adent; case activity

¶8        In this case, Edwards’ actions in pulling up behind Macho and shining his spotlight into her car did not amount to a “show of authority sufficient to effect a seizure.”  Young, 294 Wis. 2d 1, ¶65 n.18.  

State v. Laurence W. Tucker, 2012 WI App 67 (recommended for publication); for Tucker: Robert T. Ruth; case activity

Tucker pleaded guilty pursuant to plea bargain, which terms included continuation of his release on bond and compliance with same. After Tucker failed to appear at sentencing, necessitating his arrest on a bench warrant and issuance of a new charge of bail jumping, the State informed counsel it was no longer bound by the agreement,

State v. James Ralph Whitwell, 2011AP1342-CR, District 3/4, 5/24/12

court of appeals decision (not recommended for publication); for Whitwell: Jefren E. Olsen, Chandra N. Harvey, SPD, Madison Appellate; case activity

Whitwell challenges a warrantless blood draw, on related grounds: he objected at the time, informing officials that he suffered from a medical condition that made the draw dangerous absent certain precautionary measures; this objection to the draw was objectively reasonable. 

State v. Mary Alice Gentry, 2012AP59-CR, District 4, 5/24/12

court of appeals decision (1-judge, not for publication); for Gentry: Chandra N. Harvey, SPD, Madison Appellate; case activity

¶6        A traffic stop is a seizure within the meaning of the Fourth Amendment to the United States Constitution, which provides protections against unreasonable search and seizure.  State v. Malone, 2004 WI 108, ¶24, 274 Wis.

Dane Co. DHS v. Angela M. K., 2012AP579, District 4, 5/24/12

court of appeals decision (1-judge, not for publication); for Angela M.K.: Eileen A. Hirsch, SPD, Madison Appellate; case activity

The court rejects Angela’s challenge to her termination-of-rights plea to grounds. She argued she didn’t fully understand the CHIPS element, namely  that “there is a substantial likelihood that the parent will not meet [conditions for children’s return] within the 9-month period following the fact-finding hearing,” § 48.415(2)(a)3.

Outagamie County v. Melanie L., 2012AP99, District 3, 5/22/12, WSC review granted 11/14/12

court of appeals decision (1-judge, not for publication), supreme court review granted 11/14/12; for Melanie M.: Suzanne L. Hagopian, SPD, Madison Appellate; case activity

Evidence held sufficient to sustain involuntary medication order.

¶11      We reject Melanie’s argument that the expert needs to iterate the specific words of the statute in order for the evidence to be sufficient.   

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.  

Holder v. Carlos Martinez Gutierrez, USSC No. 10-1542, 5/21/12, reversing 411 Fed. Appx. 121 and 399 Fed. Appx. 313

The Attorney General has discretion under 8 U.S.C. §1229b(a) to allow otherwise-removable aliens to remain in the U.S., if the alien satisfies three criteria: minimum of five years as a lawful permanent resident; continuous residence in the U.S. for at least seven years after lawful admission,