WisBar News: Supreme court could decide if court commissioners can issue search warrants:

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  • Supreme court could decide if court commissioners can issue search warrants

    Joe Forward

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    Supreme court could decide if court 
commissioners can issue search warrants July 18, 2011 – The Wisconsin Supreme Court could decide whether court commissioners have the power to issue search warrants. The District IV Wisconsin Court of Appeals recently certified the appeals case of State v. Williams, asking the supreme court to decide the issue.

    The Wisconsin Constitution does not authorize the legislature to grant judicial powers to court commissioners, Williams argues. That argument should be decided by the supreme court, the appeals court explained, because of the wider implications involved.

    “It appears that Williams’ argument calls into question several other powers conferred by statute on court commissioners,” the appeals court noted in the certification.

    A court commissioner issued the search warrant, which allowed police to uncover a large marijuana growing operation in Williams’ residence. Wis. Stat. section 757.69(1)(b) specifically authorizes court commissioners to issue search warrants.

    But Williams challenges the constitutionality of the statute, in part because the Legislature in 1977 repealed a constitutional provision that conferred judicial powers on commissioners.

    The state relies on Shadwick v. City of Tampa, 407 U.S. 345 (1972), to argue that the Fourth Amendment does not require warrants to be issued by judges.

    “We certify this issue because its resolution appears to carry with it enormous statewide implications for litigants and the judiciary,” the appeals court explained.

    By Joe Forward, Legal Writer, State Bar of Wisconsin