By Gretchen Schuldt
The state must pay for a Kenosha county-built or designated residential facility for people on supervised release from civil commitments, the state Court of Appeals ruled last week. The three-judge panel found the state made "a critical and pervasive error" in its brief by mischaracterizing Circuit Judge Bruce E. Schroeder's order "as requiring the State to 'buy or build a residence to house sex offenders.'” The District II appellate judges were Mark D. Gundrum, Shelley A. Grogan, and Maria S. Lazar. "The court’s orders did no such things," their unsigned opinion said. "They clearly identified Kenosha County as the entity responsible for all facets of the construction or placement of the contemplated structure .... The state's obligation under the orders was merely to pay whatever expenses the county incurred in construction or placement." Schroeder issued his order in December 2021, after the county was unable to find appropriate housing for two men – Dale H. Peshek and Levin LeDoux – found to be suitable candidates for supervised release from their civil commitments as sexually violent persons. The order was straightforward: IT IS HEREBY ORDERED that the County of Kenosha is to construct or place a structure on the grounds of the Kenosha County Detention Center sufficient to meet their requirements under § 980.08(4)(dm), Wis. Stats., to identify an appropriate residential option. IT IS FURTHER ORDERED that all expenses related to the construction or placement shall be borne by the State of Wisconsin and the County is to report back to the Court within 120 days of the date of this order as to the status of the construction or placement. The state argued on appeal that it was protected through sovereign immunity, the idea that the state can decide when it can be sued for damages. "The State’s sovereign immunity arguments cannot withstand scrutiny," the panel wrote. The issue is not about money damages; it is about the state's statutory responsibility to treat sex offenders, the judges said. "(I)t should come as no surprise to the State that such a commitment carries with it financial obligations which it may not dodge under the guise of sovereign immunity," the panel said. In addition, the judges said, the case does not involve a lawsuit against the state; instead, it is a part of the two men's commitment proceedings. The appeals court also rejected the state's argument that a 2017 change in the commitment law shifted the responsibility for identifying residential placement to counties. While that is correct, "the State fails to explain why this legislative change to the manner of locating a residence for persons found eligible for supervised release matters to the narrow funding question at issue in this appeal. ...DHS must pay for any programs or facilities necessary to place a person on supervised release." The state's contention that there is inadequate funding to pay for the housing also was rejected by the panel. The state Supreme Court previously has ruled that "circuit courts could order the creation of facilities necessary for supervised release — adding that the necessary facilities could be ordered 'regardless of cost,'" the panel said. "We fail to see why those budgetary complications should control here," it said.
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It took 321 days to finish an initial appearance: appeals court orders dismissal of charges5/19/2023 By Gretchen Schuldt
Brown County must dismiss felony charges against a man who sat in jail while completion of his initial court appearance dragged on for 321 days because the State Public Defender's office could not find a lawyer to represent him, the state Court of Appeals ruled last week. Christopher S. Butler's preliminary hearing was held 21 days later even though state law requires it to be held within 10 days after the initial appearance. When adjourning an initial appearance "solely to locate counsel for a defendant ... circuit courts and court commissioners must make factual findings on the record considering the justification for the adjournment, the possible prejudice to the defendant, and, where applicable, public interest," Appellate Judge Gregory B. Gill Jr. wrote for the three-member District III Court of Appeals panel. "The record before us lacks any evidence of such considerations." He was joined in his decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark. The charges can be dismissed without prejudice, meaning they can be refiled. Butler was arrested by Green Bay police after they received a report that he molested two young girls. He was arrested and placed on a probation hold. He was charged on Oct. 23, 2019, with three felonies, all as repeaters: two counts of repeated sexual assault of the same child and one count of exposing genitals to a child. Butler's initial appearance began that day. A court commissioner, identified in online court records as Paul E. Burke, set bail at $75,000 and said he would schedule a continuation of the hearing. "At the time, the Brown County Circuit Court’s policy was to adjourn a defendant’s initial appearance until counsel was appointed to represent the defendant," Gill wrote. Butler remained behind bars. He had six adjourned initial appearances from Oct. 23, 2019, to April 20, 2020. "At each hearing, an SPD attorney appeared with Butler, and he or she informed a court commissioner that the SPD was still attempting to find an attorney to represent Butler," Gill wrote. The State Public Defender's office appoints private bar attorneys to handle cases of indigent defendants when SPD staff attorneys can't handle the cases themselves, due to things like workload issues or conflicts of interest. SPD pays the private lawyers $70 per hour, well below the going rate for lawyers. The Legislature's Joint Finance Committee has recommended increasing the pay to $100 per hour. In February, 2020, Butler had a probation revocation hearing and an administrative judge found in his favor. His probation was not revoked. The parole hold was lifted, but Butler could not make bond and remained in jail. In March, 2020, Butler filed a speedy trial demand on his own behalf. He argued that the court lost personal jurisdiction (a court's power over a party to a case) because his preliminary hearing was not held in a timely manner. "The motion was never formally held or ruled on by a court commissioner or the circuit court," Gill said. A lawyer accepted an SPD appointment to handle the case, but five days later withdrew, saying she did not know whether she could meet Butler's speedy trial demand. The commissioner warned Butler that it could take a long time to find a lawyer for him. There were more adjourned initial appearances. Butler's bail dropped to $50,000 in May, 2020, but he remained in jail. He filed another pro se motion arguing his constitutional rights were being violated. The prosecution filed a letter with the court that June expressing concern about how long Butler's case was on hold. There had been 12 court appearances in eight months, the state said. In July, Brown County Circuit Judge Beau G. Liegeois held a hearing and said he would " 'troubleshoot getting an attorney appointed faster,' " Gill wrote. "The court then set another adjourned initial appearance for later that month." At that hearing, before a court commissioner, Butler asked how long it would take to find a lawyer. "The court commissioner (Chad Resar, per online records) responded, '[T]he only thing we can do is just see what will happen, if anyone is willing to appoint you an attorney,' " Gill said. More hearings were held on July 16, July 23, and July 30. A lawyer finally was appointed on Aug. 13, 2020. Butler's initial appearance was completed Sept. 8 – 321 days after he was charged. A preliminary hearing was held Sept. 29, and a court commissioner bound Butler over for trial. Butler pleaded not guilty and filed a motion to dismiss because the state failed to hold a preliminary hearing within 10 days of his initial appearance, as required by law. Liegeois denied the motion; Butler appealed. The state argued on appeal that Butler forfeited his personal jurisdiction challenges because he did not object after his initial appearance was completed, at his preliminary hearing, or when he was arraigned. The appeals panel rejected that contention. "Butler’s objections to personal jurisdiction, which occurred prior to the initial appearance being completed, were more than sufficient to give 'both parties and the circuit court notice of the issue and a fair opportunity to address the objection,' " Gill wrote. A court does have inherent authority to adjourn initial appearances, as they do preliminary hearings, but must consider the justification for the relief, the possible prejudice to the defendant, and public interest, he said. "Particularly troubling is that, at the time of Butler’s pretrial detention, the blanket policy of the Brown County Circuit Court was to continuously adjourn initial appearances until counsel was located," Gill wrote. In addition, he said, "the court did not consider appointing an attorney at county expense, which 'might prove more compelling to private attorneys,' as they would not have to go through the SPD’s qualification process and would receive greater compensation." Neither the judge nor the court commissioners considered the total delay in Butler's case, he said. "Additionally, it is clear from the record that the circuit court or court commissioners failed to consider 'the possible prejudice' to Butler when deciding to continuously adjourn his initial appearance," Gill wrote. "For example, the court did not consider the potential prejudice to Butler from 'further evidence gathering by police while incarcerated and the possibility that the delay could compromise the defense or result in lost evidence.' " The state erroneously argued that Butler "terminated" his first appointed lawyer, the panel said. That lawyer withdrew because she could not meet the speedy trial deadline and provide competent counsel. Butler did not invite the error, Gill said. "To hold otherwise would require Butler to choose between two constitutional rights: the right to a speedy trial and the right to representation by counsel," he said. The state also was wrong in its argument that any rights violations were harmless errors because Butler was on probation hold and then was bound over for trial, he wrote. "We disagree that the violations in this case did not affect Butler’s substantial rights," he said. "The purpose behind conducting a timely initial appearance and a timely preliminary hearing would be frustrated if the state was allowed to simply argue that probable cause existed based upon a finding made months or years later – in this case, 342 days – without any protection to the accused beforehand." By Gretchen Schuldt
The Milwaukee County Sheriff's Department's policy of routinely deleting interrogation recordings after 60 days is unreasonable and "demonstrates bad faith through official animus," the state Court of Appeals said this week. The three-judge panel for the District I appellate court affirmed Milwaukee County Circuit Judge Danielle L. Shelton's ruling suppressing Robert Lee Banks' confession to cocaine possession. The panel included Appellate Judges William W. Brash III, M. Joseph Donald, and Maxine A. White. "Although we may hope that all cases flow smoothly through the justice system in time for a law enforcement officer to retrieve a recording in under sixty days, this evidence retention policy is unreasonably short," the panel said in an unsigned opinion. Banks was the passenger in a car stopped by a sheriff's deputy for improperly passing a car on the right. Neither Banks nor the driver had a valid driver's license, so the deputy decided the vehicle should be towed. During a consensual search of the car, the deputy found a 9mm handgun. Both Banks and the driver were convicted felons and the deputy arrested them. During the subsequent personal search, the deputy found 2.53 grams of cocaine on Banks. The deputy also found more drugs in the car. Banks was read his rights and, during a recorded interview, admitted to possessing the cocaine found on him. Banks was charged with possession of cocaine as a second or subsequent offense. Banks sought the video recording during discovery and the deputy eventually "informed the state that the videos were unavailable," the panel said. The deputy said he was unaware that the video would be deleted in 60 days unless he exported it. Banks sought dismissal of the case based on the destruction of evidence. He alleged the written summary of the interview was inaccurate and incomplete and the destruction of the video meant he could not use it to dispute the Sheriff's Department's version of events. The state opposed the motion, arguing the there was nothing to show the deputy knew of anything in the video that could potentially help Banks and deliberately tried to hide it. "The State asserted there was no bad faith, and at worst, it was negligent to not preserve the video recordings," the panel said. Shelton "concluded that while Banks had not shown 'that law enforcement deliberately attempted to suppress' the video recordings, there was a 'concession by the state of a policy that allows for the automatic purging of this type of evidence [which was] a clear display of official animus toward a defendant’s due process rights,' ” the panel said. Shelton granted Banks’ motion to exclude the deputy's testimony about the interrogation interview. The panel in affirming the decision, found the recordings were potentially exculpatory. While Banks did not show an intent by the state to deprive Banks of helpful evidence, state law requires preservation of adult felony custodial interviews, the panel said. "The statute does not contain a preservation requirement, but it would be illogical to compel the state to record custodial interviews without providing a means for defendants and the state to access that information," the judges said. In addition, they said, the recording requirement leads to the reasonable inference that "the interviews themselves would be accessible during criminal investigations and prosecutions" and a policy that inhibits that access "defeats that purpose." The Wisconsin Supreme Court today upheld the 2020 victims’ rights constitutional amendment. In doing so, the court tossed out a standard for assessing constitutional questions in place since 1925 and created a new standard never argued by the parties.
The majority decision and two concurrences used more ink on debates about how to interpret the constitution and the place of originalism—a theory of constitutional interpretation aimed at discerning the intent of a provision at the time it was adopted—than on the arguments raised by the parties in the case before it. Justice Brian Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Grassl Bradley. Hagedorn also wrote a concurrence to his own majority opinion. Grassl Bradley wrote a concurring opinion, joined by Ziegler and Roggensack. Justice Rebecca Dallet wrote a concurring opinion, joined by Justice Jill Karofsky. Justice Ann Walsh Bradley dissented. No justice denied that the victims' rights amendment diminished the rights of an accused under the state constitution. In her dissent, Walsh Bradley expressly noted that it did. The state defendants, who filed the appeal, never raised any question about the applicable legal standard in their briefs or at oral argument. As noted by Walsh Bradley in her concurrence, they confirmed at oral argument that they were not asking the court to overturn any prior decision. The precedent at issue was the Supreme Court's 1925 decision in State ex rel. Ekern v. Zimmerman. The parties argued their case in the trial court and appellate briefs under the language of Ekern and another case from 1953. The Supreme Court never asked the parties to re-brief the appeal to address whether the standard in Ekern should be rejected, what a new test might be, and how the 2020 ballot question fared against the new standard. Nevertheless, the majority threw out the Ekern test as unsupported by the text of the constitution and its original meaning. The constitution requires only that an amendment be “submitted” to the people without “any explicit obligations regarding form or substance,” Hagedorn wrote. “The text simply requires that the people must have the opportunity to ratify or reject a proposed amendment.” He pointed to early ballot questions from 1850s and 1860s that asked voters merely whether they were voting for or against amending the constitution, without any indication of the amendment’s contents at all. The Wisconsin Supreme Court in Ekern had stated that a constitutional amendment question presented to voters “must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” and that the “essential criterion” is “an intelligent and comprehensive submission to the people, so that the latter may be fully informed on the subject upon which they are required to exercise a franchise.” After tossing any standard from Ekern, the court adopted its new standard: a ballot question is invalid “only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment.” Telling voters in the question that crime victims and those accused of crime would have rights protected “with equal force,” while the amendment actually provides that crime victims’ rights are protected “no less vigorous(ly)” than an accused’s was not “fundamentally counterfactual,” said the court. WJI had argued that “equal to” and “equal or greater than” were not equivalent. Failing to tell voters that the amendment deleted a sentence of the constitution ensuring that victims’ rights provisions in the constitution or state statutes would not limit any right of an accused, while diverting voters with a phrase indicating that federal constitutional rights were not impacted by the amendment, did not rise to the level of a fundamentally counterfactual question, said the court. “(T)he issue is not whether the amendment was explained, but whether it was ‘submitted’ to the people. Nothing in the constitution requires that all components be presented in the ballot question. The constitution leaves the level of detail required to the Legislature, which may impose more or less requirements on itself,” Hagedorn wrote. The ballot question need not under the constitution present any kind of description of the amendment’s substance to voters at all, he wrote. Grassl Bradley in her concurrence included significant disagreement with Dallet over constitutional interpretation. She also opined that voters are expected to review in advance and educate themselves about proposed constitutional amendments. “By analogy, a ballot for President of the United States does not describe the candidates or their platforms. Voters are trusted to inform themselves,” she wrote. Dallet and Karofsky would have retained the Ekern test, but found that the ballot question satisfied it. Walsh Bradley would have retained the Ekern test, and she agreed with WJI and the four individual plaintiffs that under Ekern the 2020 ballot question was invalid. She agreed that the provisions of the vicitms’ rights amendment “do, in fact, decrease the rights afforded to criminal defendants,” and remarked on the majority’s failure to recognize it. “From the ballot question only, voters would have no idea that the proposed amendment diminishes the rights of criminal defendants in addition to bolstering the rights of crime victims. In my view, the diminution of a defendant’s rights previously protected by law, constitutes an ‘essential’ element of the amendment,” she wrote. Walsh Bradley noted that the Ekern test furthered the aims of democracy: “Making sure that a ballot question includes ‘every essential’ of an amendment ensures that the public is informed and can ‘vote intelligently.’ This is critical to maintaining a democracy.” The majority’s test “risks giving the Legislature carte blanche in crafting ballot questions,” while Ekern provided a safeguard for the public against being misled, she wrote. “(R)ather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party. Instead of applying the test established in Ekern, the majority conjures its own test, never before stated, much less applied,” she wrote. “In addition to being created by the majority from whole cloth, this new test is unnecessary for the simple reason that we already have a test from Ekern.” Walsh Bradley recognized that the new test would be “news to the parties here, who both argued their positions in terms of the ‘every essential’ framework Ekern sets forth.” Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Allen Gahl v. Aurora Health Care Inc. Majority: Justice Ann Walsh Bradley (13 pages), joined by Justices Rebecca F. Dallet, Brian Hagedorn, Jill J. Karofsky, Patience D. Roggensack, and Annette K. Ziegler Dissent: Justice Rebecca Grassl Bradley (41 pages, plus a 25-page appendix) The upshot The petitioner, Allen Gahl, who holds power of attorney for his uncle, John Zingsheim, seeks review of a published decision of the court of appeals reversing the circuit court's issuance of an injunction. That injunction compelled Aurora Health Care, Inc., to administer a certain medical treatment to Zingsheim. The court of appeals determined that Gahl's claim must fail because he did not identify a source of law that (1) would give a patient or a patient's agent the right to force a health care provider to administer a treatment the health care provider concludes is below the standard of care, or (2) could compel Aurora to put an outside provider that would provide such care through its credentialing process. *** We conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim. Accordingly, we affirm the decision of the court of appeals. Background WJI has covered this topic before. First, when the Court of Appeals decision came down, and again in advance of the SCOW arguments. Gahl holds health care power of attorney for his uncle, Zingsheim. At the time this case was filed, on October 7, 2021, Zingsheim was a patient in Aurora's care after testing positive for COVID-19. Zingsheim eventually recovered and was released. Through personal research, Gahl became aware of a drug called ivermectin, which had been used as a purported treatment for COVID-19. He received a prescription for ivermectin from Dr. Edward Hagen, a retired OB/GYN, who asserted that he "wrote the prescription based on a detailed discussion of Mr. Zingsheim's condition with Mr. Gahl," but never met with Zingsheim. Aurora declined to effectuate Dr. Hagen's prescription for several reasons. According to Aurora's Chief Medical Officer, ivermectin is "primarily used as an anti-parasitic in farm animals or administered to humans for treatment of certain parasites and scabies" and is not approved by the Food and Drug Administration as a treatment for COVID-19. The Chief Medical Officer further averred that a high dose of ivermectin, such as that prescribed by Dr. Hagen, "can be dangerous to humans and cause hypotension, ataxia, seizures, coma, and even death," and that accordingly "the use of ivermectin in the treatment of John Zingsheim's COVID-19 symptoms does not meet the standard of care for treatment." Gahl subsequently filed a complaint in the circuit court, seeking declaratory and injunctive relief. Specifically, he sought an order requiring Aurora to administer ivermectin to Zingsheim as prescribed by Dr. Hagen. Aurora opposed the requested relief. *** Based on the supplemental information submitted, the circuit court (Waukesha County Circuit Judge Lloyd Carter) acted quickly, and later in the day on October 12, signed an order to show cause Gahl had drafted and submitted. The order compelled Aurora to "immediately enforce Dr. Hagen's order and prescription to administer ivermectin to their mutual patient, Mr. Zingsheim, and thereafter as further ordered by Mr. Gahl." There was no statutory basis or other legal foundation for the order set forth in its text. Almost immediately after the order issued, Aurora objected. Aurora referred to the circuit court's order as "extremely problematic." Specifically, it observed the following alleged shortcomings: I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for ivermectin 66mg to be taken once daily. The prescription does not indicate from where the ivermectin is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer ivermectin "as further ordered by Mr. Gahl." Mr. Gahl is not a healthcare provider. ... The next day, on October 13, 2021, Aurora filed a petition for leave to appeal a nonfinal order with the court of appeals. Additionally on that date, the circuit court held another hearing. At this hearing, the discussion revolved largely around Zingsheim's medical condition and the advantages and disadvantages of ivermectin. After hearing from both sides, the circuit court maintained, but modified its previous order of the day before such that rather than ordering Aurora to administer the treatment, Gahl could identify a physician who could then be credentialed by Aurora. ... Accordingly, the circuit court indicated its intent to clarify its previous order, agreeing that Gahl "is to supply or identify a physician that Aurora can then review and pass through its credentialing process. And once credentialed, that physician . . . will have permission to enter upon the premises and administer the ivermection as ordered by Dr. Hagen[.]" *** In a published opinion, the court of appeals reversed the circuit court's order. It determined that "[Gahl] has failed to identify any source of Wisconsin law that gives a patient or a patient's agent the right to force a private health care provider to administer a particular treatment that the health care provider concludes is below the standard of care." ... The court of appeals further concluded that the circuit court "had no legal authority to compel Aurora to credential an outside provider to provide care that is below the standard of care." Gahl petitioned for this court's review. The guts A circuit court may issue a temporary injunction if four criteria are fulfilled: (1) the movant is likely to suffer irreparable harm if an injunction is not issued, (2) the movant has no other adequate remedy at law, (3) an injunction is necessary to preserve the status quo, and (4) the movant has a reasonable probability of success on the merits. ... We begin by observing the limited nature of our review and emphasize that this case is not about the efficacy of ivermectin as a treatment for COVID-19. Rather, it is about whether the circuit court erroneously exercised its discretion by issuing the subject temporary injunction. Gahl raises three arguments in this court in an attempt to demonstrate that the court of appeals erred and that in fact the circuit court had the authority to issue a temporary injunction. First, he contends that the power of attorney statute, Wis. Stat. § 155.30(1), provides authority to issue the subject injunction. Second, Gahl asserts that the circuit court has inherent authority to issue such an injunction. Finally, he advances that the circuit court may issue the injunction in question under a theory of implied contract between Zingsheim and Aurora. Aurora disputes each of these bases. We need not address in depth any of Gahl's arguments because we do not know on what basis the circuit court issued the injunction. The circuit court cited no law in either its written order or its oral ruling, as Gahl conceded at oral argument before this court. This in itself constitutes an erroneous exercise of discretion. *** A circuit court erroneously exercises its discretion in the context of a temporary injunction when it "fails to consider and make a record of the factors relevant to its determination." Further, whether the party seeking an injunction has a reasonable probability of success on the merits in part turns on whether the moving party has stated a claim entitling it to relief. Although the circuit court acknowledged the four factors that must be fulfilled in order for a temporary injunction to be granted, it did not engage in any analysis of those factors. We base our determination here on its lack of analysis of Gahl's reasonable probability of success on the merits. Indeed, from a review of the circuit court's order, we do not know upon what legal basis it premised its authority to issue the injunction in the first instance. In other words, we do not know what viable legal claim the circuit court thought Gahl had presented. Without identifying the legal basis it accepted, the circuit court cannot support the conclusion that Gahl has demonstrated a reasonable probability of success on the merits. ... In exercising its discretion, there are no "magic words" the circuit court must utter or any precise level of specificity that is required. But the record must make clear that the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. The circuit court heard legal argument and at one point stated that is (sic) "has a significant respect for an individual's right to choose their treatment." However, such a stray reference does not equate to a legal analysis of the probability of success on the merits of Gahl's legal claim. The circuit court did not tie such "respect" to any legal analysis or indicate how it could serve as a basis for the declaratory and injunctive relief Gahl sought. We therefore conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim. Dissent In this case, the circuit court used its equitable power to craft a narrow remedy, ensuring a non-state actor could not override the decision-making autonomy of a Wisconsin citizen to whom the non-state actor owed a duty of care. *** The circuit court properly exercised its discretion by considering the relevant facts and applying the correct legal standard, ultimately reaching a reasonable conclusion. ... Although the court's analysis could have been more meticulous, this court has never required the detailed explanation the majority now demands. *** If the majority applied the correct standard of review, it would be forced to uphold the circuit court's decision. As Judge Shelley A. Grogan, who was on the panel at the court of appeals, wrote in dissent, "it is clear the . . . decision was reasoned and based on the record and applicable law." *** In this case, the circuit court properly exercised its discretion. The majority seems to take issue with the circuit court's analysis regarding only one of the four prerequisites for injunctive relief: the reasonable probability of success. The majority, however, also states, "[the circuit court] did not engage in any analysis" of any requirement. Similarly, the court of appeals majority opinion, which the majority of this court affirms, seriously misunderstood the elements. A majority of this court leaves these errors uncorrected, and therefore they are likely to feature in future cases. Although the majority seems to affirm the decision on a narrow basis, it does not expressly – or even impliedly – signal the opinion below loses its precedential value. Consequently, the court of appeals will understand itself to be bound by that opinion. *** Contradicting its rejection of a magic words standard, the majority repeatedly faults the circuit court for not citing a specific source of law. ... Ironically, the majority does not cite any authority obligating the circuit court to provide a specific citation, wading into "the native land of the hypocrite." *** Although the circuit court did not recite case precedent or statutory law, it explicitly espoused a "significant respect for an individual's right to choose and choose their treatment" clearly grounded in both. In light of the petition for relief and the record as a whole, this statement should be sufficient. After all, magic words are not required. The majority nevertheless claims "such a stray reference" is insufficient. It cites nothing to support this conclusion. ... The majority errs in treating this politically controversial case differently than other cases involving similar decisions. ... Arguably, the majority must search the record for reasons to support the circuit court's decision. Altogether absent from the majority opinion is any attempt to read the record in a light favorable to the circuit court's discretionary decision. Alternatively, the majority could remand the case to the circuit court to better explain its decision. Outright reversal is a drastic remedy, not normally imposed unless the record is totally devoid of evidence supporting the circuit court's decision. On a final note, the majority fails to appreciate the circumstances the circuit court faced when it made its decision. Zingsheim had COVID-19, and Aurora placed Zingsheim on a ventilator. Death was a realistic possibility. Time was of the essence. As the circuit court recognized, the situation was "dire." The circuit court, which was not a medical professional, was presented with "polar opposite" information as to whether ivermectin was likely to improve Zingsheim's condition. Under such fast-paced, high-stakes circumstances, the majority commits an especially egregious error by demanding a "polished transcript" from the circuit court. The circuit court considered the relevant facts and applied the correct legal standard to reach a reasonable decision in light of the life-or-death circumstances presented. Like the majority of the court of appeals, a majority of this court fails to look for reasons to sustain the circuit court's discretionary decision as the law requires. Under our highly deferential standard of review, the circuit court properly exercised its discretion in entering an order granting temporary injunctive relief to a man near death. WJI Executive Director Margo Kirchner chats with Meagan Winn, director of Milwaukee County's Eviction Diversion Initiative. The Eviction Diversion Initiative is a new program providing tenants and landlords with information and resources to resolve housing issues both inside and outside of court. Avoiding eviction litigation can be important for tenants, as an eviction judgment from (or even the filing of) an eviction lawsuit can make it difficult for tenants to find future housing. The initiative connects tenants and landlords with resources such as rental assistance, housing counseling, legal assistance, and mediation. Funded by a grant from the National Center for State Courts, the program includes data collection and development of user-friendly court rules and procedures. Milwaukee County was one of the first cohort of states and municipalities selected by the National Center for State Courts for funding to pilot eviction-diversion strategies. By Gretchen Schuldt The Court of Appeals this week reversed a judge's decision in a case in which the state and the defense, in a relatively rare occurrence, agreed that the judge messed up. Winnebago Circuit Judge Daniel J. Bissett denied Peter John Long's motion to reopen a case after Long argued that his lawyer told him that the default judgment he accepted for refusing to take sobriety tests would result in a three-year suspension of his driver's license. Instead, it resulted in a lifetime license revocation. "The state believes Long is entitled to an evidentiary hearing on his motion because he pled sufficient facts which, if true, entitle him to relief," District II Court of Appeals Judge Shelley A. Grogan wrote in her decision. "This court agrees and reverses and remands for an evidentiary hearing." Long was arrested for Operating While Intoxicated – 10th offense after police saw his motorcycle on a curb and found Long sleeping in a ditch about 300 yards away. Long refused to perform field sobriety tests or take a chemical test, according to the decision. The OWI case against Long was dismissed after a preliminary hearing because a court commissioner found that the state did not provide sufficient evidence to establish probable cause, Grogan wrote. The case against him for refusing the tests, however, went on. "According to Long’s motion, his attorney advised him that he could simply ‘default’ (not show up) and that the only consequence would be a three-year revocation of his driver’s license," Grogan wrote. The Department of Transportation, however, notified Long after the default judgment was entered that his license would be revoked permanently. Long, representing himself, sought to reopen the judgment, writing that his acceptance of the default was “due to incorrect advice and mistake by paid counsel.” Bissett refused the request, saying there was "no basis stated" to reopen the case. Long tried again, filing another motion with greater detail. Bissett again denied it, this time by stamping it "denied." Long filed for reconsideration; Bissett denied that request without explanation. "Long alleged facts that, if true, warrant relief, and therefore the circuit court should have held a hearing on his motion," Grogan wrote. The state, in its appellate brief, agreed. Lifetime driver's license revocation was a collateral consequence of a refusal finding, Winnebago County Assistant District Attorney Adam J. Levin wrote. When a defendant is misadvised of even collateral consequences of a conviction, "Wisconsin courts have permitted defendants to withdraw pleas that were based on a misunderstanding of the consequences," he said. Besides alleging that his lawyer provided incorrect information about the consequences of refusing the tests, Long argued that that the underlying OWI was dismissed for lack of probable cause, Grogan said. "He believes that as a result, he has a meritorious defense to the refusal citation," she wrote. "Based on these facts, Long is entitled to a hearing on his motion." By Gretchen Schuldt A case involving the odor of marijuana that could have a significant impact on when police can search people and their vehicles will be heard this month by the state Supreme Court. At issue is whether the smell alone is a legitimate basis for a police search when the smells of illegal cannabis and legal CBD are indistinguishable. Such odor-based searches are fine as long as the smell can be linked to a person, the state argued in its brief seeking to overturn a Court of Appeals decision that found otherwise. Besides, "unmistakable" does not necessarily mean "can't be mistaken," the state said. But lawyers for Quaheem O. Moore contend that those smell-based searches are not fine. "A well-established probable cause standard, even as it relates to the odor of THC, should not be lowered," they wrote in a brief. Moore is represented by Joshua Hargrove, Tracey A. Wood, and Teuta Jenozi. The case is scheduled for argument April 19. Moore's trip to the Supreme Court started with a traffic stop. Moore was driving a rented car he borrowed from his brother. The officers said they could smell raw marijuana emanating from the car, but acknowledged after Moore got out of the car that they could not smell it on him personally. The officers also said they had seen Moore throw a liquid from the car while he was driving, which he denied. The liquid later was determined not to be alcohol and neither Moore nor the car smelled of booze. Moore told officers that a vape pipe he was carrying, discovered during a pat-down for weapons, was for CBD, which is legal in Wisconsin. The officers told him they were going to search him more thoroughly based on the raw marijuana smell. They found cocaine and fentanyl in two baggies in a hidden pocket behind the zipper of Moore's pants. He was charged with intent to deliver drugs and possession with intent to deliver cocaine, both as a repeater. His lawyer successfully sought to suppress the evidence in circuit court and the Court of Appeals upheld that decision. The officers did not, given the totality of the circumstances, including the odor, have probable cause to search Moore, the court said. A 1999 SCOW ruling in State v. Secrist is key to Moore's case. The court, in upholding a search, said that "the odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons." At the time, all cannabis products were illegal. Some are legal now, however. In the Moore case, Assistant Attorney General Jacob J. Wittwer argued in a brief, the appeals court's interpretation of Secrist is unreasonable because it "establishes a heightened standard of proof for search and arrest based on the odor of marijuana that is significantly more demanding than probable cause." In addition, he said, "the Court of Appeals’ interpretation of the word 'unmistakable' is inconsistent with a commonly-accepted meaning of the term that is in full agreement with the Secrist decision." While some dictionaries define "unmistakable" as meaning something that cannot be mistaken for something else, others are not so restrictive, Wittwer wrote. Other dictionaries define it as "very distinctive," "very easy to recognize," and "not likely to be confused with something else." The Supreme Court should "reaffirm its holding in Secrist that the odor of marijuana may provide probable cause to arrest if it is unmistakable — that is, if it has marijuana’s very distinctive and recognizable smell such that it is unlikely to be something else — and is linked to the person or persons." The smell also was linked to Moore because he was driving the car and was its only occupant, Wittwer said. In contrast, Moore's attorneys argued that "By its definition, an unmistakable odor may not be mistaken for that of any other substance. ... The state cites to no authority for the assertion that the Court should use or has ever used a word while intending to give force to a tertiary or less common understanding of the word used." The record is "devoid" of evidence linking Moore to the smell, they wrote. The officers could not smell cannabis on Moore, and it wasn't his car. Juneau County must honor nonprosecution agreement of former prosecutor, appeals court rules2/25/2023 By Gretchen Schuldt An unwritten agreement made by a district attorney to forego criminal charges in a child abuse case in exchange for a couple's agreement to terminate parental rights is enforceable, the state Court of Appeals ruled Thursday. The ruling by the three-judge District IV appellate panel affirms a decision by Juneau County Circuit Judge Stacy A. Smith dismissing with prejudice criminal charges brought against the couple after the district attorney's office changed hands. The appellate panel, however, dodged the question of whether Smith correctly decided the case based on prosecutorial misconduct by former controversial Juneau County District Attorney Michael Solovey. Instead the panel, in a decision written by Appellate Judge Rachel Graham, held that the state, among other things, did not meet its burden to show the agreement was against public policy. Graham was joined in her decision by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold. The couple, Debra and Steven Rippentrop, were each charged with multiple felonies related to child abuse they allegedly committed against their son around 2014 and 2015. Law enforcement first got wind of potential abuse in January 2015, when the son, then 14, told law enforcement that he ran away because the Rippentrops were restraining him "24 hours a day seven days a week," Graham wrote. The adult Rippentrops admitted it, but said they did so "as a desperate measure to prevent him from harming himself or others due to violent and destructive behavior," Graham said. The issue was referred to Solovey for review, and the county began a child in need of protection or services (CHIPS) case. Solovey expressed some concern about A.B.'s credibility and whether a jury would believe his testimony. The son, identified in the decision as "A.B.," ran away again later that year. He again reported abuse, and the county human services department placed him with other relatives, who eventually adopted him. Solovey, who was aware of the CHIPS case, got together with Debra and Steven Rippentrop and their lawyer, Kerry Sullivan-Flock, and made an offer. Solovey would forego issuing criminal charges if the Rippentrops gave up parental rights and ended all contact with A.B., Graham said. The couple accepted. Solovey said he was concerned that the CHIPS case could result in A.B. going back to their home, which Solovey believed was not in A.B.'s best interest. Solovey notified law enforcement and attorneys in the corporation counsel's office of the agreement and later told the guardian ad litem representing A.B.'s interests. He testified later that his decision was “ '[not] received well,' and that the office of corporation counsel was not happy about his decision to not charge the Rippentrops with criminal offenses," Graham wrote. The Rippentrops began meeting their obligations under the agreement. They stopped contesting allegations in the CHIPS case and began pursuing voluntary termination of their parental rights. Unhappy officials in the corporation counsel's office began a John Doe proceeding in early 2016 that the Rippentrops did not learn about for about three years. Solovey attended, but was not allowed to cross-examine witnesses or to testify. After a two-day hearing, the John Doe judge appointed a special prosecutor to decide whether the Rippentrops should be charged. Solovey was allowed to make a statement after the judge ruled, but he did not tell the judge about the non-prosecution agreement. The corporation counsel's office also did not tell the judge of the agreement.
The Rippentrops signed TPR petitions in May, 2016, and it was approved. Solovey determined that the Rippentrops met all the agreed-upon conditions. Solovey lost his reelection bid in 2016 and was replaced by Kevin Hamm. In February, 2019, the state charged the Rippentrops with multiple felonies, including second-degree recklessly endangering safety, child abuse, false imprisonment, and causing mental harm to a child. The Rippentrops, with new lawyers, demanded the state keep its agreement, but the DA's office fought back. It argued that the pact was "void as against public policy because it required the Rippentrops to terminate their parental rights." While recognizing a contract with the state should be enforced, Smith found that "it was against public policy 'to make any arrangement that would terminate a [parent’s] rights by either a threat or some kind of contract such as this,' ” Graham wrote. "The court likened the agreement to the sale of a child, concluding that, much like it violates public policy to offer an expectant mother money for her unborn child, the nonprosecution agreement violates public policy because it offered the Rippentrops something of value in exchange for terminating their parental rights." Smith also said that the Rippentrops did not have “clean hands” because they failed to disclose the agreement to the TPR court. Debra Rippentrop said later she did not mention it because she thought everyone knew about it. A year later, the Rippentrops again moved to have the charges dismissed, this time arguing that Solovey committed prosecutorial misconduct by proposing the agreement. Smith granted the motion, finding that "Solovey's actions 'clearly' constituted 'misconduct' and that the only recourse for maintaining the integrity of the judicial system is dismissal of the criminal charges with prejudice." The appeals panel upheld Smith's decision, but on a different basis — that the agreement was binding and enforceable. "Wisconsin cases suggest that any prosecutorial promise — whether embodied in a nonprosecution agreement or an unexecuted plea agreement — may become binding if a party detrimentally relies upon it," Graham wrote. The State appears to acknowledge that the Rippentrops did just that, she said. The appeals court also found that the state did not adequately show that the nonprosecution agreement was contrary to public policy. The state appeared to argue that voluntarily agreeing to terminate parental rights was not truly voluntary if it was wrapped up in other considerations that include a safe harbor from criminal prosecution. "Much like it does not violate public policy for a criminal defendant to enter into a plea agreement that induces the defendant to waive valuable rights in exchange for receiving the agreement’s benefits, the State does not persuade us that the provision in the nonprosecution agreement that required the Rippentrops to voluntarily terminate their parental rights violated any public policy clearly expressed by" law, Graham said. They state also argued that neither Solovey nor the Rippentrops disclosed the agreement to court officials, suggesting it "amounted to a secret backroom deal that should not be enforced by any court." Solovey, though, told law enforcement, the corporation counsel's office, and the guardian ad litem about the agreement, Graham said. "Although the aforementioned individuals were not parties to the deal the Rippentrops struck with Solovey — indeed, it appears that they strenuously disapproved of its terms — they made no objection to receiving its benefits when the Rippentrops followed through with their promise to consent to the termination of their parental rights," Graham wrote. "Although we need not weigh the policies in favor of enforcement, we note that the public policy in favor of enforcing the nonprosecution agreement is compelling," Graham said. "Generally speaking, public policy favors the enforcement of contracts. And here, substantive due process and principles of fundamental fairness render the enforcement of this prosecutorial promise even more compelling." court of appeals rejects probation sentence for fifth-offense drunk driving; prison time required2/6/2023 By Gretchen Schuldt
Convicted fifth- or sixth-offense drunk drivers must serve at least a year behind bars and cannot be placed on probation, the state Court of Appeals ruled Wednesday. “The law does not authorize the circuit court to impose but stay the sentence and instead place the defendant on probation,” Appellate Judge Shelley A. Grogan wrote for the District II panel. The decision reversed a ruling by Waukesha County Circuit Judge and Supreme Court candidate Jennifer Dorow. Grogan has endorsed Dorow’s opponent in the race, Daniel Kelly, and has been publicly critical of Dorow. In the OWI case, Grogan was joined in her opinion by Appellate Judges Lisa S. Neubauer and Maria S. Lazar. The court returned the case to circuit court so Lynne M. Shirikian can be given more incarceration time. Shirikian was arrested for fifth-offense drunk driving, a felony, in May 2020. A blood test showed a blood alcohol level of .299, well above legal limits, Grogan wrote. She was released on bail with a condition of absolute sobriety, which she violated. The state charged her with felony bail jumping in a separate case. Shirikian eventually pleaded guilty to the OWI fifth and to refusal to consent to a blood test. At sentencing, the prosecutor, Mary Caitlin Brejcha, argued the felony bail jumping made for a more serious case. “It pointed out that while out on bail on the initial charge, Shirikian was caught at a store again trying to conceal alcohol … and she had also been drinking, as evidenced by the .096 preliminary breath test performed at that time,” Grogan wrote. Shirikian, in response, said that she is an alcoholic who relapsed because of COVID-19. Defense counsel, Donna Jean Kuchler, also told the circuit court that since the bail-jumping charge, Shirikian had received treatment and had been sober for seven months,” Grogan wrote. Although refusal to take a blood test “is normally an aggravating factor,” the defense contended, “here, she was so drunk that ‘[s]he didn’t know what was going on.’ ” Dorow, in her sentencing remarks, said the state law mandated a minimum of 18 months in prison unless she could find that a lesser sentence is in the best interest of the community and the public would not be harmed. She also was required to make a record of those findings. “That’s a tough one for me,” Dorow said during the sentencing hearing. “How do I make a finding that confinement of less than one year and six months is in the best interest of the community, and will not harm [the] public, when you’ve had four priors? When you’ve been given the opportunity for probation in the past? Can I do that under the circumstances of this case?” Eventually, though, she did. Dorow sentenced Shirikian to three years in prison followed by two years of extended supervision, but stayed the sentence and put Shirikian on probation for three years with nine months incarceration with work-release privileges. Afterward, the prosecutor, relying on an analysis from the state Department of Justice, told Dorow the drunk driving law relied on another statute that required Shirikian to serve at least a year of incarceration, even with the exception to the 18-month presumptive minimum. The state filed a motion for resentencing, which Dorow denied, saying that resentencing would violate her double jeopardy protections. The state appealed. The state’s reading of the OWI law is correct, Grogan wrote for the panel. The language of the statute is unambiguous, and the state’s progressively harsh OWI penalties shows that Dorow’s interpretation is unreasonable. “It would likewise be unreasonable to interpret this statute, as the circuit court suggested, to mean that a court could sentence a fifth- or sixth-OWI defendant to as little as one day in jail, which is less than the required sentence for a second OWI offense,” Grogan wrote. The panel ordered resentencing for Shjirikian, rejecting Dorow’s double jeopardy contention. “Because Shirikian’s sentence was not lawful, she has no legitimate expectation of finality in it, and resentencing her does not violate double jeopardy,” Grogan said. |
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