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    May
    30
    2012

    Court Commissioners Can Issue Search Warrants, Supreme Court Clarifies

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    May 30, 2012 – The Wisconsin Supreme Court recently rejected a criminal defendant's claim that circuit court commissioners do not have authority to issue search warrants.

    Court Commissioners Can Issue Search Warrants, Supreme Court Clarifies

    A constitutional challenge to the Wisconsin statute that grants court commissioners the power to issue search warrants fails.

    By org jforward wisbar Joe Forward, Legal Writer, State Bar of Wisconsin

    article title May 30, 2012 – The Wisconsin Supreme Court recently rejected a criminal defendant’s claim that circuit court commissioners do not have authority to issue search warrants.

    Douglas Williams argued that marijuana plants seized from his home should have been suppressed because a court commissioner issued the warrant to search his home, and a state statute that grants court commissioners authority to issue warrants is unconstitutional.

    But the Wisconsin Supreme Court disagreed in State v. Williams, 2012 WI 59 (May 30, 2012), concluding that Wis. Stat. section 757.69(1)(b) does not impermissibly intrude upon the constitutional provision granting exclusive judicial power to the courts through elected judges.

    Williams argued that Wisconsin repealed a provision of its constitution in 1977 that stripped the judicial power of any person that is not an elected judge, including court commissioners.

    But a supreme court majority ruled that issuing warrants is not an exercise of judicial power contemplated by Wis. Cont. Art. VII, § 2.

    “Although issuing a search warrant may require some exercise of quasi-judicial power, it is something less than and distinguishable from the power vested in courts and elected judges,” wrote Justice Patience Roggensack. “[T]here are many quasi-judicial functions that bear on the efficient administration of justice, and those duties may by legislative assignment be undertaken by court commissioners.”

    Chief Justice Shirley Abrahamson concurred in the result but wrote separately, expressing “reservations about [the majority’s] analysis of Wisconsin constitutional history.”

    Justices David Prosser and Ann Walsh Bradley did not participate in the case, which the lower appeals court certified to the supreme court.

    Attorneys

    Assistant Attorney General Sally Wellman represented the state. Stephen Hurley, Dean Strang, and Marcus Berghahn of Hurley, Burish, & Stanton S.C., Madison, and Jonas Bednarek of Bednarek Law Office S.C., Madison, represented Douglas Williams.

    The Wisconsin Association of Judicial Court Commissioners and the Wisconsin Family Court Commissioners’ Association filed an amicus curiae brief.