On Point

July 17, 1962, witnessed an event that changed the course of Wisconsin history.  That day, Shirley Schlanger Abrahamson signed the Wisconsin Supreme Court’s Roll of Attorneys. At age 28, she could finally fulfill her childhood dream of practicing law. She ultimately became Wisconsin’s first woman justice and first woman chief justice.  When she retired from the legal profession 57 years later, she was the longest-serving state supreme court justice in Wisconsin and the nation.

Today’s post by SCOWstats.com looks at the length of decisions, the number of dissents and concurrences, the number of days between argument and decision, and the frequency of fractured decisions for SCOW’s 2021-2022 term.

Nancy Kindschy v. Brian Aish, 2020AP1775, petition for review of a published court of appeals decision granted 6/22/22; case activity (including briefs), reversed 6/27/24

Issues (from the petition for review):

Whether Wis. Stat. §813.125, as construed by the Court of Appeals to prohibit speech from a public sidewalk intended to persuade listeners to cease their sinful conduct (participation in abortion) and repent immediately before something bad happens and they no longer have time to repent, violates the First Amendment of the U.S. Constitution and Art. I, §3 of the Wisconsin Constitution?

Whether speech from a public sidewalk intended to persuade listeners, even if directed to a specific listener, to cease sinful conduct (participation in abortion) and repent immediately before something bad happens and there is no longer time to repent serves “no legitimate purpose” within the meaning of Wis. Stat. §813.125?

Whether enjoining, for a period of four years, a longtime pro-life, anti-Planned Parenthood protestor from protesting on a public sidewalk in front of a Planned Parenthood during its business hours because he made comments urging a Planned Parenthood worker to repent before something bad happens and there was no more time to repent, constitutes an unconstitutional restraint on First Amendment protected expression?

New York State Rifle & Pistol Association Inc. v. Bruen, USSC No. 20-843, 6/23/22 reversing N.Y. State Rifle & Pistol Ass’n v. Beach (2nd Cir. unpublished); Scotusblog page (including briefs and commentary)

You can read tons of analysis of, and commentary on, of this precedent-demolishing (and establishing) case at Scotusblog (and many, many other places). SCOTUS abandoned its previous balancing approach to assessing gun regulations under the Second Amendment in favor of a history-only approach (with that “history,” as so often in SCOTUS, very much in dispute). As to the specific question before it, the Court struck down state concealed-carry licensing regimes that invest authorities with discretion to decide whether to issue a permit to a given applicant (the so-called “may-issue” model).

Walworth County v. M.R.M., 2022AP140-FT, certification filed 7/14/22, certification granted, 9/14/22, reversed, 2023 WI 59; District 2; case activity

1. Does the Wisconsin Supreme Court’s decision in Waukesha County v. E.J.W., 2021 WI 85, ¶38, 399 Wis. 2d 471, 966 N.W.2d 590, have retroactive application or only prospective application?

2. In a ch. 51 case involving a petition to extend a commitment order, is circuit court competency determined from the expiration of the earlier commitment order or from the expiration of the extension order, even where the extension order is determined on appeal to be invalid?

State v. Alberto E. Rivera, 2021AP1100, 7/12/22, District 1, (not recommended for publication); case activity, (including briefs)

The court of appeals rejects Rivera’s claims for ineffective assistance of postconviction counsel for failing to raise two claims of ineffective assistance of trial counsel. Rivera challenged trial counsel’s counsel’s failure to seek suppression of an in-court identification because (a) it was tainted by an earlier suggestive “showup” procedure, and (b) his right to counsel was violated during the line-up because his retained counsel was not present for it.

State v. Junior L. Williams-Holmes, 2022 WI App 38, petition for review granted, 11/16/22, reversed and remanded, 2023 WI 49; case activity (including briefs)

Williams-Holmes was given a bifurcated prison sentence and consecutive probation after being convicted of battery to and false imprisonment of his girlfriend. Because of Williams-Holmes’s history of domestic violence, the circuit court ordered, as a condition of probation and extended supervision, that Williams-Holmes not reside with any member of the opposite sex or any child not related to him by blood “without permission of the Court.” (¶1). Williams-Holmes argues the circuit court’s condition is improper because it results in the court “administering” probation, which is a task reserved for the Department of Corrections. The court of appeals disagrees, holding that the circuit court may impose this condition—though it must implement it using the statutory process for modifying conditions of supervision.

On June 29, 2022, the court of appeals issued its June 2022 publication order. No criminal law related cases were ordered published.

SCOWstats just published its first post in a multi-part series reviewing SCOW’s 2021-2022 term. The burst of June and July opinions confirmed a trend that emerged in May. This term, SCOW released an unprecedented number of 4-3 decisions with Hagedorn casting the decisive vote in 86% of them. And in 50% of those, he swung […]

State v. A.G., 2022AP652, 7/12/22, District 1 (1-judge opinion, ineligible for publication); petitions for review granted, 10/11/22, reversed, 2023 WI 61; case activity

District 1 means business. Not long ago, it reversed an order denying A.G.’s claim that his no-contest plea to grounds for a TPR was not knowing, intelligent, and voluntary because the circuit court neglected to explain the potential dispositions to him. It remanded the case for an evidentiary hearing. There, the State simply presented a transcript showing that 10 months before the plea, the circuit court explained potential dispositions to A.G. The circuit court said the State met its burden. On appeal after remand, the court of appeals says no way!