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By Alexandria Staubach The Wisconsin Court of Appeals recently found that a state statute and corresponding grant program for immigrants and students of color are unconstitutional. The Higher Educational Aid Board Minority and Undergraduate Retention Program offers grants from $25 to $2500 per year to Black, Native American, and Hispanic students plus immigrants from Laos, Cambodia, and Vietnam admitted to the United States after 1975.  Gundrum Presiding Judge Mark Gundrum wrote the lengthy opinion, joined by Judges Shelly A. Grogan and Maria S. Lazar in District 2. The decision upheld the ruling of former Jefferson County Circuit Court Judge William F. Hue.
In finding the program unlawful, the appeals court relied almost exclusively on a 2023 U.S. Supreme Court decision (Students for Fair Admissions v. Harvard) holding that race-based affirmative action college admissions programs violate the equal protection clause. Gundrum spent 10 of the 53 pages of the opinion reiterating the high court’s decision. “With the grant program, the legislature did not simply enact another financial aid program for all financially needy students; rather, it specifically and intentionally targeted students who were members of certain racial, national origin, ancestry and alienage groups,” Gundrum said. The program has been in existence since 1985. The Higher Educational Aid Board said the program was designed to keep the diverse recipients from dropping out because of financial hardship—a national phenomenon that persists today. The appeals court rejected the argument that addressing such an issue could be a “compelling state interest” as required by the legal standard for race-based laws. When asked at oral argument whether the board had “'any case law support that says improving retention and graduation rates for certain minority groups but not others is a compelling state interest,'” the board’s counsel said they hoped “'this court issues the first opinion.'” “That is a big ask,” wrote Gundrum. The appeals court found that the board “failed to show that improving retention/graduation rates of students in the preferred racial, national origin, ancestry and alienage groups at Wisconsin private and technical colleges or mitigating the disparity in those rates between students in the preferred groups and students in nonpreferred groups constitutes a compelling government interest.” Gundrum quoted the U.S. Supreme Court, adding his own emphasis, saying that “’no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”
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By Alexandria Staubach Wisconsin Court of Appeals District 2 last week reversed Wisconsin Supreme Court hopeful and Waukesha Circuit Court Judge Brad Schimel’s decision siding with Elmbrook School Board leaders on open meeting violation allegations. Elmbrook School Board members Scott Wheeler and Jean Lambert face fines after the three-judge panel unanimously ruled in favor of plaintiff Leanne Wied.  Gundrum Presiding Judge Mark D. Gundrum wrote for the panel, joined by Judges Shelly A. Grogan and Maria S. Lazar.
The appeals court found that the school board operated under a “cloak of secrecy” in filling a vacant school board seat during COVID. Gundrum characterized the case as “an excellent example of the real-world impact of failing to adhere to open meetings law requirements.” In 2020, the school board sought to fill a vacancy during a meeting held by Zoom during the pandemic. Four candidates, including Mushir Hassan and Wied, vied for the job. During the meeting, Wheeler asked each board member to rank their first and second choices by email and send him their preferences. The email votes did not constitute formal votes but were intended to narrow the field, Wheeler said. According to Gundrum's opinion, no candidate received enough votes to be the first choice of four or more of the candidates. Nevertheless, Wheeler presented Hassan and Wied as the candidates for the board to consider. He did not announce or subsequently volunteer the results of the email vote. Ultimately the board was deadlocked three to three. Wheeler consistently voted for Hassan. On a third vote between Hassan and Wied, board member Glen Alliger, who had previously voted for Wied, switched his vote to Hassan. Before receiving all votes, Wheeler announced “We’ve got four votes for Mushir (Hassan) and two votes for Leanne (Wied),” which Wheeler said constituted a “consensus.” In fact, another member had also switched, but from Hassan to Wied, so the board was still deadlocked three to three. Wheeler then called for a formal vote, which Hassan won with five votes and one member abstaining. At no point were the results of any email votes read aloud or published in the online meeting to the entirety of the board or the public. Further, Wheeler never corrected the email vote tally, which after the meeting he characterized as an oversight. The actual numbers were disclosed only through subsequent open records requests, which produced the emails. Wied sued Wheeler and Lambert, alleging violations of the open meeting laws and another claim against the school district. Schimel sided with the defendants in circuit court. The court of appeals found that Schimel incorrectly removed Wied as the plaintiff because she had a “personal interest” in the case after having initiated a different suit against the district. Schimel also had found that Wheeler and Lambert’s actions did not constitute an “intent to hide something.” In reversing, the appeals court wrote that “Board members sharing their preferences with Wheeler in a manner that hid the same from the public and other board members was concealment that was initiated and invited by board president Wheeler.” Gundrum wrote that “the secrecy of Wheeler’s process allowed him to erroneously announce his own preferred candidate, Hassan, as having received four email preferences to advance for the subsequent up-or-down vote, and no one was in a position—at the time when it mattered, as opposed to after Hassan had already been selected, voted on, and seated as a new board member—to monitor the process.” Wheeler and Lambert remain on the Elmbrook school board with terms expiring in April 2026 and April 2027, respectively. Hassan's term ended in 2024.  By Alexandria Staubach
Separation of powers issues continue to loom large in District 2 of the Wisconsin Court of Appeals, where two judges claim that no branch of government has “unfettered authority to act as it or they please” but then affirm the Legislature’s wresting of power from the executive branch. On Dec. 19, Judges Maria S. Lazar and Shelly A. Grogan sided with the Legislature in ruling that all money collected by the Wisconsin Department of Justice shall be deposited into the state’s general fund for disbursement by the Legislature at its discretion. Judge Lisa S. Neubauer dissented. Previously, the DOJ held discretion over settlement funds for cases it prosecuted and was, in effect, permitted to retain some money it generated from the settlement of civil litigation. However, according to Lazar's majority opinion, “both the legislative and statutory history confirm that the legislature enacted the new statute to alter the prior practices of the attorney general and to expressly bolster its monetary control over state funds.” The same split panel recently upheld a law permitting the Legislature’s involvement in DOJ settlements. Both cases stemmed from interpretation and application of legislation hastily passed in a lame-duck session in late 2018 as Gov. Scott Walker left office, designed to give the Legislature more power before Gov. Tony Evers took over. Neubauer wrote in dissent that the majority failed to adhere to still valid Wisconsin law providing a carve-out for the DOJ to retain control over some funds it collects, such as attorneys’ fees and funds for investigation. Neubauer wrote that the statute at issue in the appeal provides that “funds will be credited to the general purpose revenues unless another law provides a different crediting direction,” and that subsections of another statute “provide such direction.” “To the extent this result is the product of imprecise word choice or other inadvertence on the legislature’s part, it is not our function to correct such an oversight,” wrote Neubauer. To arrive at its interpretation of the law, the majority “work(ed) backwards from a predetermined conclusion” and acted “antithetical to our statutory interpretation methodology,” said Neubauer.  By Alexandria Staubach
Today the Wisconsin Court of Appeals reversed Dane County Circuit Judge Susan Crawford’s 2022 decision siding with Attorney General Josh Kaul in a dispute about the separation of powers in litigation settlements. Judge Maria S. Lazar, a former Waukesha County Circuit Court judge, wrote for the District 2 appellate court. She was joined by Judge Shelly A. Grogan, a former clerk to Supreme Court Justice Rebecca Grassl Bradley. Both Lazar and Grogan list in their court biographies participation in the Federalist Society. Judge Lisa S. Neubauer dissented. Crawford is running to replace retiring Justice Ann Walsh Bradley next year. Her opponent is Judge Brad Schimel, a former Republican state attorney general. Crawford ruled that the Legislature violated the Wisconsin Constitution when passing legislation that gave it veto power over some functions of the Department of Justice—specifically instances where prosecution by the DOJ will potentially result in a payment to the state. In reversing that decision, Lazar stated that “(n)o one branch—or official—stands above the others with unfettered authority to act as it pleases,” while granting the Legislature power to interfere in the administration of the DOJ, a part of the executive branch. The case challenged legislation that required the DOJ to seek approval from the Legislature’s Joint Committee on Finance to settle civil actions prosecuted by the office where the state will receive cash—a power that historically was the exclusive territory of the DOJ. The act was among several the Legislature hastily passed in late 2018 before Gov. Scott Walker left office. Lazar wrote that “there are some areas where our three branches of government share powers” and “(t)he statute at issue falls within those great borderlands of power.” The Legislature successfully argued that because money collected by the DOJ belongs to the state and because one of the Legislature’s powers is to appropriate state funds, it should have a say in settlement negotiations. As described by Lazar, the Legislature argued that the law in question “allows it to determine how the attorney general distributes settlement funds and to ensure that those funds are utilized for purposes designated by the legislature,” dismissing the DOJ’s argument that settlement in such actions constitutes a core executive power. “Given our conclusion that settlement of at least some cases . . . implicates the legislature’s power of the purse, we need not discuss this espoused public policy interest (separation of powers) further,” Lazar wrote. In dissent, Neubauer wrote that the majority decision “cannot be reconciled with Wisconsin’s separation of powers jurisprudence.” “Separation of powers principles exist in part to prevent one branch from intruding into another branch’s zone of exclusive authority,” she wrote. Allowing the Legislature to interfere in settlement negotiations “substantially interferes with the executive branch’s role” and improperly permits the Joint Finance Committee to serve as gatekeeper to a core executive function, Neubauer said. By Alexandria Staubach Last week the Wisconsin Court of Appels ruled in favor of a severely diminished and long-suffering man who fought an order for forced medication to restore his competency for trial. The appeals court vacated the trial court’s involuntary medication order, finding that the trial judge failed to ensure that the plan for the man’s forced medication was sufficiently individualized to him. The appeals court held that trial courts must consider whether “under the particular circumstances of each individual case, the State has an important interest in bringing that defendant to trial.” In the case before it, the state did not. Further, said the appeals court, until an order for involuntary treatment issues, an accused remains eligible for bail; the mere raising of the issue of competency does not end bail eligibility.  Geenen District 1 Judge Sara Geenen wrote for the three-judge panel, which included Presiding Judge M. Joseph Donald and Judge Pedro Colón. The appeals court reversed the order of Milwaukee County Circuit Court Judge Milton L. Childs.
In its decision, the appeals court relied heavily on Sell v. United States. In Sell, the U.S. Supreme Court identified a four-factor test to determine whether an accused person’s constitutionally protected liberty interest can be outweighed by the state’s interest in forcibly medicating the person to regain competency to stand trial. The Sell factors are 1) the state’s “important” interest in proceeding to trial; 2) whether forcibly medicating the individual will significantly further that important interest; 3) whether forced medication is necessary to further that interest; and 4) the medical appropriateness of the medication. The appeals court found that Childs failed to consider the “special circumstances [that] undermine the importance of the State’s interest” in bringing J.D.B., referred to by the court as "Jared," to trial for battery to a law enforcement officer. Jared was 19 when he experienced an episode of psychosis that resulted in his alleged assault of an officer. The court described Jared’s multitude of underlying conditions, which include “partial left-side paralysis, a lumbering gait, compromised speech and cognitive abilities all stemming from a traumatic brain injury sustained from a self-inflicted gunshot wound when he was eleven years old.” Jared was diagnosed with schizophrenia and major neurocognitive disorder. Geenen described a one-paragraph criminal complaint stating that police responded to a call at Jared’s homein Milwaukee on Aug. 22, 2022, after his mother reported he was threatening to get a gun and kill everyone in the residence. Jared allegedly made threatening remarks to the responding officers and, while officers were arresting him, punched one officer in the face and threatened to kill that officer. Officers took Jared to a health care facility, which did not admit him. According to Geenen, where Jared was for the next four days was unclear. On Aug. 27, 2022, Jared was booked into the Milwaukee County Jail. At Jared’s first court appearance, on Aug. 31, 2022, his competency was raised as an issue, and the trial court ordered a competency examination. The competency exam occurred more than a month later, on Oct. 11, 2022. On that same day, the trial court found Jared incompetent to stand trial and ordered him into Department of Health Services custody. However, DHS did not take Jared into custody for another 106 days, during which time he remained in jail. According to Geenen, a 90-day commitment review was conducted while Jared remained at the jail. In January 2023, Jared was taken to the state psychiatric hospital in Mendota. Although he was then voluntarily taking medication, Jared allegedly swore and “spit at staff, urinated and defecated in his room, and continued to exhibit symptoms of schizophrenia,” Geenen wrote. By early April 2023, Jared was refusing medication. On April 11, 2023, Dr. Mitchell Illichmann initiated a request for involuntary medication with the trial court. The appeals court found that the forced medication plan Illichmann proposed failed to address many of Jared’s underlying conditions, omitting that he suffered from diabetes and was on a seizure medication. Without specifying duration or sequence, Illichmann’s proposed plan simply identified seven different oral antipsychotics the hospital would try. The plan recommended that if the oral medications did not work, another antipsychotic should be administered by injection. The plan also suggested another injected medication for agitation. The appeals court noted that at the hearing where Illichmann testified about the necessity of involuntary medication, there was no mention, question, or detail provided about “how often a dose of any particular mediation would be administered,” and no evidence or indication regarding the maximum amount of a particular medication to be administered in a given period of time. Illichmann testified at the hearing that he tried to discuss each of the seven oral medications in the plan with Jared, but Jared responded only that he did not feel he needed the medication. Childs found sufficient cause and ordered involuntary medication. Jared appealed, and the court of appeals stayed Childs’ order pending appeal. Geenen wrote in the appeals court’s subsequent decision that the “circuit court concluded that the first Sell factor, a requirement that the State have an important interest in prosecution, was satisfied because Jared was charged with a serious crime—assault of a law enforcement officer. However, Childs’ inquiry should not have stopped there, Geenen wrote. The trial judge was obligated, but failed, to consider whether any “special circumstances lessen the State’s interest in prosecution.” Both the potential for future civil commitment and length and duration of Jared’s pretrial detention should have mitigated and ultimately undermined the state’s interest in prosecution, Geenen wrote. She said “the facts highlighted in the complaint, considered in the context of Jared’s mental health diagnoses and the fact that he was seen at Aurora Health Center for ‘homicidal thoughts’ on the date of the alleged offense, generally support an NGI [not guilty by reason of insanity] defense and suggest that the alleged offense resulted from a mental health crisis that is currently being addressed through civil commitment proceedings.” “In this case there are distinct, non-speculative possibilities for Jared’s future commitment” that lessen the state’s interest in bringing Jared to trial, wrote Geenen. “Jared’s pretrial detention is also a relevant special circumstance,” Geenen wrote. Jared was not considered for bail but should have been, she said. The state argued that defendants become “ineligible for bail the moment competency is raised.” The court of appeals disagreed, finding that “the plain language of the statues makes clear that it is only after the circuit court orders the defendant committed for treatment and suspends the proceedings that a defendant loses his or her eligibility for bail.” Jared was detained almost two months without due process protections regarding bail, wrote Geenen, noting that “this statutory violation is significant, and it lessens the importance of the State’s interest in prosecution.” The appeals court also considered the timing of Jared’s relocation from jail to Mendota for restoration of competency. Jared was ordered to commitment in October 2022 but not transferred for treatment until more than three months later. “This, in our view, is a significant period of time that is incongruous with constitutional demands," Geenen wrote. Finally, regarding Jared’s medical plan the court expressed “serious doubts as to the adequacy of the explanations given to Jared of the advantages, disadvantages, and alternative to the medications proposed in the plan.” Geenen highlighted a lack of evidence that Illichmann ever told Jared about maximum dosages, the interaction of the drugs with his diabetes and seizure medication, or the cumulative effect of any combination of drugs. As a result, the trial court’s findings as to the sufficiency, warning, appropriateness, and necessity of forced medication were “clearly erroneous," Geenen said. “Because the circuit court determines whether the plan is sufficiently individualized and medically appropriate, the court must be provided a ‘complete and reliable medically informed record’ from which to make those findings,” and “because the record in this case is wanting in many critical respects” Jared’s proposed treatment plan was not adequately individualized, the appeals court held. A state appellate procedure rule that should alleviate some of the circumstances Jared faced took effect recently. The rule adopted by the Wisconsin Supreme Court and effective July 1, 2024, governs prejudgment orders in criminal defendant competency cases, which include treatment to restoration and involuntary medication. Key provisions of the new rule include expedited time for parties to request transcripts and file briefs and for the court of appeals to render a decision, short but automatic stays of involuntary medication orders, expedited procedures for defendants to move the court of appeals for a continued stay, and anonymity in court filings. More about the new rule can be found here. By Alexandria Staubach The Wisconsin Court of Appeals recently held that the right to counsel attaches during Milwaukee County’s written probable cause process, meaning a defendant has the right to counsel for any subsequent critical stages of prosecution.  White Chief Judge Maxine White wrote for the three-judge District 1 panel in State v. Robinson, joined by Judges Sara Geenen and Pedro Colón.
When a person is arrested without a warrant in Milwaukee County, judges and court commissioners routinely find probable cause, order detention, and set bail using an all-paper review process. The paper probable cause process, named a “CR-215” process for the form used by judges and court commissioners to make the finding, details the officer’s basis for arrest. Based on the officer’s narrative, a judge or court commissioner checks a box to indicate whether they believe probable cause for arrest exists. Percy Robinson was arrested on Dec. 19, 2017, for bank robbery. Within 48 hours, a Milwaukee County circuit court commissioner reviewed a CR-215, found probable cause that Robinson committed the offense, and set bail at $35,000. On Dec. 22, law enforcement conducted an in-person lineup. The lineup included Robinson, and the bank teller identified him as the person who committed the robbery. No attorney was present on Robinson’s behalf. The State then issued a criminal complaint against Robinson for robbery of a financial institution. Robinson was convicted following a jury trial. He appealed, arguing, among other things, that he received ineffective assistance of counsel because his trial attorney failed to challenge the lineup identification, which occurred without counsel present after his right to counsel had attached. The court of appeals agreed about the right to counsel, concluding that “Milwaukee County’s CR-215 process signals a ‘commitment to prosecute,’” and that the Sixth Amendment right to counsel attaches during that process, creating a right to counsel for any later "critical stages" of prosecution. “The initiation of judicial criminal proceedings is far from a mere formalism,” White wrote. “(T)he CR-215 process shifted Robinson from a person under investigation to the accused in the criminal justice system. Therefore, it is reasonable that the shift arising out of the CR-215 process attaches Sixth Amendment guarantees.” The state argued that Robinson’s right to counsel had not attached during the CR-215 process because Robinson was not physically present when the CR-215 form was evaluated and signed by the circuit court, and the process consequently lacked necessary formalities. The court rejected the argument. “The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote. “An ‘accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused liberty to facilitate the prosecution.’ By that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it,” White wrote. The court then found that an “identification lineup occurring after the probable cause determination and bail setting, such as the CR-215 process, is a critical stage of the prosecution,” with a right to counsel. While Robinson’s appeal ultimately failed on other grounds, the court, citing U.S. Supreme Court law, recognized that when a conviction “’may rest on a courtroom identification’ that was ‘the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.’” Counsel’s presence, not participation, “’is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself,’” wrote White, citing Wisconsin Supreme Court law. Going forward, an accused will have the right to counsel for any critical stage after a CR-215 finding. When and whether an accused’s right to counsel attached during the CR-215 process had been the subject of state and federal litigation since at least 2009. Federal courts in Wisconsin had held that a right to counsel attaches after the CR-215 process is complete, but no consistent answer had been developed by state courts. The Robinson court concluded that the law is now settled on the matter. By Alexandria Staubach Late last month District 1 of the Court of Appeals released a decision that will change the way district attorneys and those representing youth defendants in reverse-waiver proceedings receive discovery. The court held that “juvenile defendants are entitled to all evidence that the State intends to introduce at a [reverse-waiver] preliminary examination to establish probable cause of the alleged jurisdiction offense” and that “the state is required to produce this evidence at a reasonable time before the preliminary examination.” Moreover, said the court, “additional materials exclusively in the possession of the State may be discoverable provided that the juvenile defendant establishes a particularized need for the materials requested by showing that they are likely to be relevant to negate one element of the alleged jurisdictional offense.” Prior to the opinion, State v. Adams, youth defendants and their representatives had no right to discovery at the reverse-waiver stage of a case.  Geenen Judge Sara J Geenen wrote for the three-judge panel, joined by Chief Judge M. Joseph Donald and Judge Pedro A. Colón.
“Reverse waiver” refers to the court procedure by which an adult court that would otherwise have exclusive jurisdiction over an offense may transfer a case brought against a child 16 years old or younger to juvenile court. Adult criminal courts have exclusive jurisdiction over, among other cases, first-degree intentional homicide, second-degree intentional homicide, and first-degree reckless homicide. This means that cases involving these charges start as adult cases regardless of the defendant’s age. It is a two-step process that begins with a preliminary hearing or examination at which the state must prove it has probable cause to charge the youth defendant of the crime and an adult criminal court must find probable cause to believe that the youth defendant has committed the charged offense. Then, at a reverse-waiver hearing, the youth must prove that transfer to juvenile court will not depreciate the seriousness of the offense, they could not receive adequate treatment in the criminal justice system if convicted as an adult, and retaining jurisdiction in adult court is not necessary to deter the youth or others from committing the charged offense. The juvenile who is the subject of the court of appeals decision, Jayden Adams, 13, was charged with first-degree reckless homicide, giving the adult criminal court exclusive jurisdiction over his case. Historically, juvenile defendants have not been entitled to discovery prior to their preliminary hearings. Adams argued that he had a an “unqualified right to discovery prior to the preliminary examination” because “it is impossible for defendants to know all potential challenges to probable cause without access to discovery,” Geenen wrote. The state argued that no law granted Adams a right to discovery before the preliminary examination. The issue, as identified by the court, was how much latitude a juvenile defendant has to attack the crime charged and what evidence the state may have that is relevant to such an attack. The court, though, hesitated to permit the preliminary hearing to become a “mini trial” should discovery in fact be entitled. Geenen discussed at length a 2010 Supreme Court of Wisconsin decision that found “the place to offer evidence for the purpose of contradicting the offense is the preliminary examination.” Geenen also recognized the Supreme Court’s interpretation of the nature of the reverse-waiver hearing: in contrast to other preliminary hearings where the state must merely prove “some felony” has been committed, in the reverse-waiver case the state must prove probable cause exists for the specific offense charged. According to Geenen, the 2010 Supreme Court case did not identify what, if any, evidence in the state’s possession, should be given to juvenile defendants for them to contradict the offense charged at the preliminary hearing. However, because the state is required to prove the specific offense charged, “the defendant must be given some latitude in attacking the specific offense charged, if a successful attack would alter the crime charged or negate the exclusive original jurisdiction of the criminal court,” Geenen wrote. While the Adams decision gives youth defendants some access to discovery prior to the reverse-waiver process, that evidence is limited to the evidence the prosecutor plans to use and only additional materials for which the youth defendant establishes a particular need. A representative of the State Public Defender’s Office told WJI by email that more could be done by broadening the amount of discoverable evidence. The ruling “is a step in the right direction, but does not go far enough to ensure fundamental fairness,” SPD Youth Defense Practice Coordinator Eileen Fredericks said. “An obligation to turn over discovery prior to a preliminary hearing for reverse waiver does not prejudice the prosecution,” she said. “Preliminary hearings in these matters have huge implications for a child. In order for the court to make the best decision regarding reverse waiver, a youth defendant should have the opportunity to review and discuss all discovery with their attorney who is obligated to conduct an investigation and highlight mitigating information from that discovery,” Fredericks said. “Allowing the defense to have discovery bolsters due process protections of the youth defendant by ensuring that the judge has complete information regarding the case,” she said. Wisconsin Court of Appeals OKs resurrection of dismissed conviction in impaired-driving case6/26/2024 By Alexandria Staubach The Wisconsin Court of Appeals recently allowed the Rock County Circuit Court to resurrect a conviction previously dismissed under the “single-conviction provision” in Wisconsin law. The single-conviction provision permits prosecutors to pursue multiple counts that arise out of a single incident and fall into the three categories prohibiting operating a motor vehicle under the influence of an intoxicant or other drug. Under the provision, if a defendant is convicted of multiple impaired-driving offenses for the same incident, all but one is dismissed so a single conviction remains for purposes of sentencing and counting convictions. District IV of the Court of Appeals held that dismissal of a parallel count can be reversed if the offense chosen for the sentence is later thrown out on appeal. The dismissed count can be revived and then provide the basis for a new sentence.  Blanchard Judge Brian Blanchard wrote for the court, joined by Judges Rachel Graham and Jennifer Nashold.
A Rock County jury found Carl Lee McAdory guilty of two eighth-offense driving-while-intoxicated charges arising out of the same incident: (1) operating a motor vehicle while under the influence of one or more controlled substances (“OWI”), and (2) operating a motor vehicle with a restricted controlled substance (“RSC”). The OWI offense required the state to prove that McAdory’s driving was actually impaired by drugs or alcohol, while the RSC charge was a strict liability offense, meaning the state merely had to prove McAdory had consumed drugs and was operating a motor vehicle, regardless of whether the drugs affected his driving. Though found guilty on both counts, under the single-conviction provision McAdory could be sentenced on only one. At sentencing, the state asked the court to dismiss the RSC charge and sentence McAdory on the OWI charge. Judge Karl Hanson did so. McAdory appealed his OWI conviction to District IV of the Court of Appeals and won. The appeals court reversed the OWI conviction for violation of McAdory’s right to due process. Hanson had permitted a modified jury instruction as to the OWI offense, which, coupled with arguments raised in opening and closing arguments by the prosecution, resulted in a “reasonable likelihood that the State was effectively relieved of its burden to prove that McAdory was ‘under the influence’ of cocaine and marijuana while driving,” wrote the court. The appeals court sent the case back to circuit court “for a new trial on the [OWI] offense.” The appeals court was not asked to and did not address the merits of the dismissed RSC charge. McAdory did not get a new trial on remand, however. Instead, the prosecutor asked Hanson to reopen the judgment, dismiss the OWI conviction, reinstate the RCS conviction, and sentence McAdory on the RSC charge. McAdory argued that the court lacked the authority to reinstate the dismissed count and that reconviction would violate protections against double jeopardy (the legal theory prohibiting multiple prosecutions for the same incident). Hanson agreed with the prosecutor, entering a new sentence and judgment on the RSC charge. McAdory again appealed. He argued that Hanson exceeded his authority when he ignored the appellate court’s order for a new trial, nothing in state law authorized reinstatement of the RCS charge, and the second RCS conviction (following dismissal of the first) violated double-jeopardy protections. (WJI wrote about McAdory’s appeal here shortly after it was filed.) The appeals court found that nothing in Wisconsin law prohibited reinstatement of the RSC count. Although the single-conviction provision does not explicitly address the procedures to be used to accomplish the result of a single conviction, a prior Court of Appeals opinion “interpreted the single-conviction provision to mean that ‘the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed,’” Blanchard wrote. In McAdory’s case that was what the prosecutor requested at the first sentencing hearing and what the prosecutor requested on remand—sentencing on one count and dismissal of the other, Blanchard said. “(T)he only reasonable interpretation is that the single-conviction provision implicitly authorizes circuit courts, in the procedural posture here, to accomplish the intended goal of a single conviction in this way,” Blanchard wrote. “(I)t would be unreasonable to interpret the single-conviction provision to mean, as McAdory contends, that the court’s post-trial dismissal of the guilty verdict on the RCS count in order to satisfy the provision was necessarily permanent, regardless of subsequent events in the case.” Further, “in enacting the single-conviction provision the legislature is presumed to have been aware of the postconviction and appellate relief potentially available to defendants in criminal cases, specifically in the form of potential reversal of individual counts of conviction,” Blanchard wrote. Blanchard said the court’s decision comported with language from the Wisconsin Supreme Court that impaired-driving convictions “terminate with one conviction for all purposes,” because even through the second appeal McAdory’s case had not yet terminated. The court found no double jeopardy problem. Read the full opinion here.  By Alexandria Staubach The Wisconsin Court of Appeals recently rejected a new Fourth Amendment warrant exception for canine searches, but different facts could lead to a different result in the future. The state argued in the case that an “instinct exception” permits canine searches that naturally extend into a vehicle during a traffic stop if the canine conducts the search “instinctively,” meaning without an officer’s direction, assistance, or encouragement. The appeals court concluded that regardless of whether an instinct exception to the warrant requirement exists in Wisconsin, the state failed to establish a necessary element of any such exception—that the canine act unprompted. The appeals court remanded the case to Sawyer County Circuit Court with an order to grant Ashley Campbell’s motion to suppress.  Gill District III Judge Gregory B. Gill wrote for the court, joined by Judges Lisa K. Stark and Thomas M. Hruz. Campbell pleaded no contest to possession of marijuana after Judge John M. Yackel denied her motion to suppress the marijuana found during a warrantless search of her vehicle. Yackel accepted the state’s argument for the instinct exception, which had not otherwise been adopted in the state of Wisconsin. Trooper Mitchell Kraetke initiated a traffic stop of Campbell’s vehicle after noticing that the vehicle did not have a front license plate and the passenger was not wearing a seat belt. As Kraetke stopped the vehicle, he called for Sergeant Al-Moghrabi to arrive with his canine to assist. After initially talking with Campbell and her passenger, Kraetke conducted a record check and discovered that Campbell’s license was suspended for failure to pay a forfeiture. Her passenger’s license was revoked due to a prior conviction for operating a motor vehicle while intoxicated. Al-Moghrabi arrived, talked briefly with Kraetke and then approached Campbell’s vehicle. He asked Campbell and her passenger if there was any illegal contraband in the vehicle, and both responded there was not. Al-Moghrabi then ordered both individuals out of the vehicle. Campbell did not close her driver’s side door when she exited, and it remained open. Kraetke then met with Campbell and her passenger behind the vehicle to discuss the traffic infractions. Meanwhile, Al-Moghrabi retrieved his canine from his squad car and walked the dog to the hood of Campbell’s vehicle, allowing the dog to “scan” it. “Scanning,” meant that al-Moghrabi allowed the canine to sniff independently instead of identifying certain areas of the vehicle for the dog to check. The canine’s leash had slack. Dashboard camera video from the trial court showed that Al-Moghrabi walked from the hood of Campbell’s vehicle, around the open driver’s side door, and up to the door’s entrance. Al-Moghrabi then stopped and allowed the canine to enter the vehicle. Al-Moghrabi was not pulling the leash or attempting to get the canine to exit the vehicle at any point. Al-Moghrabi testified that the dog began “sniffing intently at” a purse on the floor of the vehicle. According to Al-Moghrabi intent sniffing indicates an alert. The dog exited the vehicle and Al-Moghrabi repeated the steps. He walked the canine up to the door’s opening, stopped, and allowed the canine to enter the vehicle. Al-Moghrabi testified that on the canine’s second entry, it again began “sniffing intently” at the purse. Al-Moghrabi returned the dog to his squad car then searched the purse, finding marijuana inside. “(R)egardless of whether an ‘instinct exception’ to the Fourth Amendment’s warrant requirement exists when a canine ‘searches’ a vehicle, the exception does not apply under the facts in this case to excuse the State’s obligation to obtain a warrant prior to searching Campbell’s vehicle,” wrote Gill. “Here, the canine did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door. We therefore conclude that even if the instinct exception were to be recognized in Wisconsin, the exception would not apply to the canine’s searches in this case,” Gill wrote. Jurisdictions recognizing the instinct exception have split on whether reasonable suspicion that narcotics be present is required prior to the dog’s unprompted alert. The state argued in Campbell’s case that no independent basis for reasonable suspicion that narcotics are present is required. By Alexandria Staubach
The Wisconsin Court of Appeals on Monday ordered that JusticePoint’s services for Milwaukee Municipal Court remain in place while litigation between the organization and the City of Milwaukee proceeds. As WJI previously reported, JusticePoint’s contract to provide Milwaukee Court Alternatives Program (MCAP) services was terminated by two of the three Milwaukee Municipal Court judges without much explanation, under a “convenience” clause. The city notified JusticePoint of the termination in May, giving the organization until mid-July to finish its work. The court did not name any successor provider for the MCAP services and has said it will seek bids at some future date. That means that without JusticePoint, municipal court defendants will lose the assistance the organization provides for completing community service requirements, handling inability to pay forfeitures, or finding various social services. JusticePoint sued the city on July 10, moving for a temporary restraining order (TRO) and preliminary and permanent injunctions to keep its contract and the program alive. JusticePoint argued that termination of its contract violated the Wisconsin Fair Dealership Law (WFDL). Milwaukee County Circuit Judge Hannah Dugan granted JusticePoint a TRO on July 10 to prevent expiration of the contract. But on Oct. 5, Judge J.D. Watts denied a preliminary injunction and dismissed JusticePoint’s case. Watts issued a 30-day stay of his decision to allow an appeal, but he refused to issue a stay that extended any longer. JusticePoint then sought continuation of the TRO by the appeals court. Justice Point will now continue to provide services to Milwaukee Municipal Court pending a decision on the appeal. The issues on appeal will require the court to evaluate whether the WFDL applies to the city’s relationship with JusticePoint. Under the WFDL, a dealership exists when a person or entity “is granted the right to sell or distribute goods or services,” and when a “community of interest” exists between the parties. JusticePoint’s argument is that it distributes city services to individuals using the MCAP and that it has invested in the program. Monday’s decision by Court of Appeals Judge M. Joseph Donald focused on the procedural aspects of granting a stay of Watts' order and evaluated three factors: 1) likelihood of success on appeal; 2) irreparable injury in the absence of stay; and 3) the existence of substantial harm to other interested parties. In examining these factors, Donald found that “JusticePoint showed more than a possibility it would prevail”; the stay was otherwise appropriate, as full-time staff could be lost and reputational harm to the program could result if the program is ultimately continued; and substantial harm could result to defendants who receive JusticePoint's MCAP services with no clear alternative to those services in place. Donald said his order will “maintain the status quo” pending a decision that will resolve the appeal. |
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