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By Gretchen Schuldt The inclusion of the simple, humble comma won out-of-state consumers and the state itself an important victory from the state Court of Appeals last week when the court ruled that a law prohibiting fraudulent representations applied to ads and information shown to people outside of Wisconsin. The statute, §100.18(1), lays out who cannot do certain things and what they cannot do when trying to get members of the public to buy goods or services. Specifically, the statute says individuals and firms may not "publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state..." ads or information that include false representations. The verbs in the statute focus on the advertiser's conduct, not the consumer's, Appellate Judge M. Joseph Donald wrote for the panel. "After a comma, the statute provides that these actions may not take place 'in this state,' " he said. "The statute does not proscribe where the recipient or consumer must be or reside. Thus, based on the plain language of the statute, we conclude that the state can enforce against Wisconsin businesses that reach consumers outside of the state." "There is a comma that separates the phrase 'before the public' and 'in this state.' If 'in this state' modified 'before the public,' then there would be no need for a comma," he wrote.  The mighty comma. The opinion, joined by Appellate Judges William W. Brash III and Maxine A. White, overturned a ruling by Milwaukee County Circuit Judge William Sosnay. The panel ordered a new trial.
The case arose out of allegedly deceptive advertising practices by Midwest Auto Recycling and a number of related entities, referred to collectively in the opinion as "Midwest." The firm relied heavily on the internet for its sales, Donald wrote. "To expand the business, Midwest Auto Recycling created various websites and companies...to advertise and sell the auto parts to people and businesses throughout the United States." Those companies are also named as respondents in the case and include Remanns LLC; Quality Used Engines, LLC; Engine Recycler, LLC; Quality Used Transmissions, LLC; Engine Shopper, LLC; Engine & Transmission World, LLC; Belden Mfg, LLC; APLS Acquisition, LLC; SW Engines, LLC; SW Transmissions, LLC; and U Need Engines, LLC. Several unnamed managers of those entities also were named. The state received hundreds of complaints about the business and sued Midwest in 2017, alleging that the company had committed fraudulent misrepresentations in marketing and selling; fraudulent misrepresentations regarding where their business was located; and unfair billing practices. As litigation advanced, the state said it wanted to call three out-of-state customers as witnesses to testify "regarding how the engines they received did not match up with the representations that had been made," Donald wrote. Sosnay ruled that evidence about “incidents that occurred outside Wisconsin, meaning dealing with residents of other states, is not admissible.” He also ruled the state would have to show that any Wisconsin resident who was a customer of Midwest would have had a monetary loss. Just one in-state customer testified, along with some people associated with Midwest. The jury found that four Midwest websites misrepresented the business locations but also found that advertisements to Wisconsin consumers were not untrue, deceptive, or misleading, and that representations in sales quotes were not untrue, deceptive, or misleading in relevant respects. In rejecting Sosnay's interpretation of the law, Donald wrote for the panel: "As the state asserts, all Wisconsin businesses must do to comply with the law is refrain from making misrepresentations in their advertising. If Midwest has to follow the law for in-state residents, there should be no issue following the law for out-of-state residents given that both view the same websites. ... The circuit court erred when it prohibited the state from introducing evidence that Midwest made misrepresentations reaching consumers outside Wisconsin" The appellate panel also found that the state did not have to show pecuniary loss. The state brought the suit under a statute that does not request such a showing, Donald wrote.
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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. 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."  Grogan 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." 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.  Graham 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. Revised 2/6/23
By Gretchen Schuldt The Milwaukee County District Attorney’s Office is appealing a contempt of court finding against a prosecutor who defied a judge's ruling barring a victim from watching the trial of her alleged assailant until after the victim testified. The prosecutor, Assistant District Attorney Thomas L. Potter, sent an email to the primary victim in the case – there were two victims – acknowledging that Circuit Judge Kori Ashley issued the sequestration order, then added, “I am nevertheless inviting you to attend the opening statement because I believe Judge Ashley’s order to be inconsistent with Wisconsin law, and wish to have it reviewed by an appellate court.” Potter argued before Ashley that state law and “Marsy’s Law,” a victims' rights amendment to the Wisconsin Constitution adopted by voters in April 2020, gave victims the right not to be physically excluded from the courtroom, according to a brief filed Wednesday by District Attorney John Chisholm and Assistant District Attorney Julie Knyszek. Specifically, Marsy’s Law gives victims the right to “attend all proceedings involving the case” if they ask to do so. It also states that rights given to victims will not infringe on defendants’ federal constitutional rights, such as the right to due process. Defendant Arielle A. Simmons, represented by attorney Colleen Cullen, argued that sequestration was justified because the victims were criminal defense lawyers and would be more likely to shape their testimony to fit the state’s theory of the case, according to the brief. Simmons was charged with misdemeanor assault and misdemeanor disorderly conduct in the case. Ashley, according to the brief, ruled that the “defense theory of the case” made sequestering the victims until after they testified necessary. After Potter sent the email, he assured Ashley that he was simply trying to preserve the issue for appeal and did not mean to show disrespect. She found him in contempt, as he wanted her to do, and fined him $500. She stayed the fine pending the appeal, according to online court records. Ashley, the brief said, did not rule on the exclusion issue until right before the start of the trial. “Only through the finding of contempt was an opportunity for review of victim exclusion made available,” Chisholm and Knyszek wrote. “The release of incriminating information at trial cannot be undone; likewise the improper exclusion of a victim causes irreparable harm, regardless of the outcome of that trial.” The reason Ashley gave for sequestering the victims was not specific enough, the brief said. “The only basis for these assertions was that both victims were criminal defense attorneys who have tried cases and were thus aware of the court system,” Chisholm and Knyszek wrote. “Their knowledge and experience in trying criminal cases somehow meant they could not be trusted to testify truthfully. As Potter would argue, the fact that the victims were officers of the court was hardly reason to deny their right to attend the trial; such an ‘employment status’ argument presumed bad faith and made no sense.” State law also gives victims certain rights to attend proceedings during the testimony of others, they said. Physical sequestration, while it can be useful, “has been strictly limited for excluding victims.” “Neither Simmons nor the circuit court cited to a single case, from any court, which held that a witness sitting through a trial, and then testifying, violated a defendant’s federal constitutional right to due process,” they said. No opposing brief has yet been filed. Simmons ultimately took her case to trial. A jury acquitted her of misdemeanor battery and convicted her of disorderly conduct, also a misdemeanor. Ashley fined her $400 and made her record eligible for expungement. By Gretchen Schuldt
The Wisconsin Institute for Law and Liberty is appealing a circuit court decision preserving a scholarship program designed to increase student diversity in colleges. WILL argues that Jefferson County Circuit Judge William F. Hue got it wrong when he said the Minority Undergraduate Retention Program, operated by the state’s Higher Education Aids Board, survived “strict scrutiny,” the most-stringent level of judicial review. The program provides grants of $250 to $2,500 per year to students who are Black, American Indian, or Hispanic, or who are former citizens of Laos, Vietnam, or Cambodia. Eligible students also must attend private, nonprofit colleges or technical colleges. Hue found the state had compelling interests in post-enrollment racial diversity and providing financial aid to students who might not otherwise have access to it. Those interests, WILL said in a brief filed Tuesday, were “not previously recognized by other courts.” Hue also found that no race-neutral alternative would serve the state’s interests and that the program was sufficiently temporary and was narrowly tailored because it did not take money from other aid programs, WILL said. The state has not yet filed a reply brief. WILL, representing five plaintiffs opposed to the program, contended in its District II Court of Appeals brief that Hue did not properly apply strict scrutiny standards. Instead, he relied on a U.S. Supreme Court case, Grutter v. Bollinger, “with a starkly different policy and some law review articles rather than the entire body of admissions case law,” WILL argued. In Bollinger, the Supreme Court ruled that the Equal Protection Clause did not prevent the University of Michigan Law School from considering race in admissions decisions to obtain the benefits that come from a diverse student body. The court found that the school’s individualized review of student applications meant that acceptance or rejection would not be automatically based on race. It is undisputed, WILL said in its brief, “that the Grant program excludes large swaths of students from consideration solely based on their race. The barred groups include not only Caucasian students, but students from India, China, Afghanistan, and the Middle East. A student who is not a member of one of the preferred racial groups selected by the Legislature in the 1980s is ineligible, full stop, no matter the extent of the student’s need." WILL wrote that “In fact, appellants have located no policy in higher education or otherwise that provides a complete racial bar and still survives strict scrutiny." court of appeals reads law narrowly, denying confidential name change for transgender youth1/24/2023 By Gretchen Schuldt
A transgender young man who sought a confidential name change to reflect his gender is not entitled to it because he could not show that publication of his name change petition would more likely than not put him in physical danger, the state Court of Appeals ruled. While another judge might rule differently, Brown County Circuit Judge Tammy Jo Hock did not abuse her discretion in refusing to grant the request, Appellate Judge Gregory B. Gill Jr. wrote for the three-judge District III Court of Appeals panel. Gill was joined in the decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark. Robert, as he is identified in the decision, began questioning his gender identity when he was young and began wearing men’s clothing and going by his male name in elementary school. “Students ‘verbally abused’ Robert for wearing men’s clothes and for using a ‘male’ name, and they reportedly called Robert ‘a fat ugly lesbian,’ ” Gill wrote. “According to Robert, these same students also ‘kicked and punched’ him.” A teacher repeatedly said that Robert ‘had bad parents’ because they allowed him to wear male clothing and use a male name, Gill wrote. The same teacher called Robert ‘an ugly little girl’ ” and, when he cried, “the teacher threatened to audiovisually record Robert so that others could see that he was ‘acting like a girl and not like a boy,’ ” Gill said. In middle school, students called Robert derogatory names, threatened him, and beat him up. A note left in his locker told him to kill himself. The resulting anxiety led Robert to be hospitalized in a psychiatric unit, Gill said. Robert transferred schools and things got better, though one student bullied him and one teacher refused to use his preferred pronouns. Outside of school, though, the bullying continued, Gill said. Kids in the neighborhood called him names, threatened to shoot him with a BB gun, and beat him up. He had sex change surgery and now physically appears as a 17-year-old boy. Hock rejected Robert’s name change petition without holding a hearing on the matter. She found that the “test is not whether a person is uncomfortable with public disclosure of a name change but rather if the publication required under Wisconsin statutes would endanger the individual.” Robert already was using his male name with family members, at school, and in personal dealings, she said. Anyone who has contact with him knows that he is transitioning and uses a male name, she said. Robert appealed the ruling, arguing, among other things, that the law required him only to show that he could be endangered by the petition’s publication and that the word “endanger” includes physical, mental, or emotional harm. The state, in opposing Robert, argued that he must show that it is more likely than not that he could be physically endangered if the name change is published. Showing that he faced the mere possibility of endangerment is insufficient, the state argued. It also said “endanger” referred only to physical harm. “While we agree that we cannot ignore the legislature’s use of the word ‘could,’ Robert’s interpretation would essentially erase the requirement that a petitioner prove endangerment by a preponderance of the evidence because anything is ’possible,’ ” Gill wrote. Instead, he said, “the burden is on a petitioner to demonstrate the likelihood of a future event, and he or she must demonstrate that it is more likely than not that future endangerment is possible.” The appeals panel also agreed with the state that “endanger” does not include mental harm. The intent of the confidentiality statute, as shown through legislative correspondence to the bill’s drafters, was to “allow a victim of domestic abuse to petition the court for an exemption” to publishing a name change petition, Gill wrote. While not conclusive, the note “confirms that ‘endanger’ deals with physical harm, not emotional or mental harm,” he said. |
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