On Point

Waupaca County v. G.T.H., 2021AP1490, 12/23/21, District 4 (1-judge opinion, ineligible for publication); case activity

At Waupaca County’s request, the circuit court entered recommitment and medication orders against G.T.H. Six months later, the County conceded that the circuit court had failed to make the factual findings required by Langlade County v. D.J.W., 2020 WI 41, ¶¶3, 40, 391 Wis. 2d 231, 942 N.W.2d 277.

Wisconsin Justice Initiative v. Wisconsin Elections Commission, 2020AP2003, certification issued 12/21/21; case activity (including briefs)

Question certified (composed by On Point):

Was the single ballot question submitting the “Marsy’s Law” constitutional amendments to voters legally insufficient because it:

(1) does not “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment,” State ex rel. Ekern v. Zimmerman, 187 Wis. 180, 201, 204 N.W. 803 (1925);

(2) is misleading, in that it contained “misinformation” and did not “mention[] [its subject] in accord with the fact,” State ex rel. Thomson v. Zimmerman, 264 Wis. 644, 660, 60 N.W.2d 416 (1953); or

(3) should have been submitted as more than one ballot question because the proposed amendment encompassed more than one subject matter and accomplished more than one purpose, McConkey v. Van Hollen, 2010 WI 57, ¶¶25-26, 41, 326 Wis. 2d 1, 783 N.W.2d 855.

State v. K.B.W., 2021AP47, District 1, 12/21/21 (one-judge decision; ineligible for publication); case activity

K.B.W. argues the circuit court erroneously exercised its discretion when it ordered him to register as a sex offender because it didn’t determine K.B.W.’s conduct was “sexually motivated,”  as required by § 938.34(15m)(am)1. Though the circuit court didn’t make an express finding on that point, the record shows the issue was addressed and that the circuit court therefore properly exercised its discretion.

Rock County v. P.P., 2021AP678, District 4, 12/16/21 (one-judge decision; ineligible for publication); case activity

P.P. challenges the sufficiency of the evidence elicited in support of the involuntary medication order issued in April 2020, along with the original commitment order. Both orders were set to expire in October 2020, so in September 2020 the County petitioned to extend them for 12 months. P.P. stipulated to the extension. (¶¶2-4). Because of the September 2020 extension of the medication order, P.P.’s appeal of the original order is moot.

Ozaukee County v. J.D.A., 2021AP1148, District 2, 12/15/21 (one-judge decision; ineligible for publication); case activity

Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, requires a circuit court ordering a ch. 51 recommitment petition to make specific factual findings with reference to the relevant subdivision paragraph of § 51.20(1)(a)2. on which the recommitment order is based. At “Jane’s” recommitment proceeding, the circuit court cited a subdivision paragraph—specifically, § 51.20(1)(a)2.e.—but said little about the substance of the standard articulated under that subdivision paragraph and how the evidence proved the statutory elements of that standard. Thus, its findings were insufficient under D.J.W. and the recommitment order and medication order are reversed.

State v. Carl Lee McAdory, 2021 WI App 89; case activity (including briefs)

McAdory was charged with driving with a detectable amount of restricted controlled substances—cocaine and THC—and driving under the influence of those substances. At trial, the state convinced the trial judge to modify the standard jury instruction for the latter charge, Wis. J.I.—Criminal 2664, by deleting the statement that not every person who has consumed controlled substances is “under the influence.” This modification, coupled with the prosecutor’s closing argument that it had proven its case by proving McAdory had a detectable amount of the substances, effectively relieved the state of its burden to prove that McAdory was “under the influence.”

State v. Dallas R. Christel, 2020AP1127-1128-Cr, 12/8/21, District 2 (not recommended for publication); case activity (including briefs)

Christel argued that §940.235, which criminalizes strangulation and suffocation, (1) violates substantive due process on its face and as applied to him, (2) is overbroad, and (3) is void for vagueness. He also argued for a new-factor-based sentence modification on his bail-jumping convictions. The court of appeals torpedoed every claim.

State v. Nietzold, 2021AP21-CR, 12/9/21, District 4 (not recommended for publication), petition for review granted 4/13/22; case activity (including briefs)

The State admits that it made a sentencing recommendation that breached the parties’ plea agreement. It claimed that the breach was not “material and substantial” because after the defendant objected it withdrew the recommendation. The court of appeals found the State’s breach to be “material and substantial” and the DA’s after-the-fact retraction of its comments and recommendation did not cure the breach.

State v. B.M., 2021AP501-FT, 12/14/21, District 3 (1-judge opinion, ineligible for publication); case activity

A court found “Brandon” delinquent and placed him on juvenile supervision. It said that if the State wanted electronic monitoring it could “schedule further proceedings and we’ll take that up.” But then the written order directed that he “shall participate in the electronic monitoring program as deemed appropriate by the assigned juvenile worker for any violation of supervision.”

State v. Anne E. Streckenbach, 2020AP345-CR, 12/7/21, District 3, (1-judge opinion, ineligible for publication); case activity (including briefs)

When a cop stopped Streckenbach for a traffic violation he observed signs of intoxication. He asked her the 24 questions that appear the DOT’s Alcohol/Drug Influence Report–questions that are usually asked after the driver has been arrested and Mirandized. Streckenbach couldn’t answer all of the questions, so the cop conducted field sobriety tests, which she failed. Did the cop’s questioning violate her state and federal constitutional rights to be free from self-incrimination?