Court Commissioners Can Issue Search Warrants, Supreme Court
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
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
Williams argued that Wisconsin repealed a provision of its constitution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, §
“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
Chief Justice Shirley Abrahamson
concurred in the result but wrote separately, expressing
“reservations about [the majority’s] analysis of Wisconsin
Justices David Prosser and Ann Walsh Bradley did not participate in the
case, which the lower appeals court certified to the supreme court.
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.