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    Top 10 Wisconsin Supreme Court Decisions

    The author highlights 10 significant decisions issued by the Wisconsin Supreme Court during its 2010-11 term.

    Beth Ermatinger Hanan

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 84, No. 11, November 2011

    Top 10 Wisconsin Supreme Court DecisionsIn the author’s view, the following cases represent some of the most significant Wisconsin Supreme Court decisions from the 2010-2011 term. The decisions encompass an array of substantive areas of the law. A result of many of the decisions is a limitation on court power, whether constitutionally or statutorily based. The case summaries below are arranged by category (civil, then criminal) and within these categories by order of release.

    CIVIL CASES

    Petition for Supervisory Writ or Original Action

    Much has been written already about the underlying facts and resulting opinions in State ex rel. Ozanne v. Fitzgerald.1 The purpose here is to describe one aspect of the case: an instance in which original jurisdiction was accepted and decided in the same order-cum-opinion. Counsel considering filing petitions for supervisory writ or original action should approach their cases with this merged process in mind. Substantively, a majority of the Wisconsin Supreme Court determined that the supreme court lacked authority to review certain legislative procedure not mandated by the Wisconsin Constitution.

    After the Dane County Circuit Court voided 2011 Wisconsin Act 10 because it determined that the legislature had violated its own open meetings and notice rules, the court of appeals certified the nonfinal questions to the supreme court. At approximately the same time, the state and the secretary of the Department of Administration filed a petition to the supreme court for a supervisory writ, asking that the circuit court orders be vacated. After briefing and extended oral argument, the court unanimously denied the certification, but a majority accepted the petition as one for original action and simultaneously issued a decision on the merits.

    In that per curiam decision, the supreme court held that a circuit court violates article VI, section 1 of the Wisconsin Constitution by enjoining publication of a bill passed by both houses of the legislature and signed by the governor; the legislature did not violate article IV, section 10 of the Wisconsin Constitution, which requires the doors of “each house” to remain open, when it provided one hour and 50 minutes’ notice of the meeting of the committee on conference given that the meeting was open to the public; and the separation-of-powers doctrine requires the supreme court to decline to review the amount of notice that the legislature gave for a meeting of its joint committee on conference.

    Justice Prosser’s concurrence provided additional background. He synthesized why the court was deciding the issue at the same time it granted review: the litigation presented issues of exceptional constitutional importance, was of high public interest, and implicated the powers of all three governmental branches. He noted that the defendants in the certification might not be able to appeal without intervention of additional parties, and “the time required to sort out this procedure and follow … a traditional briefing schedule” would deny timely relief.

    Under Petition of Heil,2 there must be a strong showing of exigency to support bypass of the lower courts. Here, the bill at issue initially had moved quickly, being passed by the Joint Finance Committee with an emergency statement. After 14 senators left the senate chambers for almost a month, appropriations provisions were deleted from the bill, obviating the three-fifths Senate quorum requirement. A conference committee adopted the new version. Within the next 48 hours, both the Senate and the Assembly adopted the conference committee report, and the governor signed the bill. The secretary of state delayed publication, and the district attorney sued, asking that the bill be declared void and that publication of the Act be enjoined. The circuit court restrained implementation of the Act, the secretary of state rescinded publication, and the circuit court ordered that the Act was not in effect, later finding it void.

    Chief Justice Abrahamson and Justice Crooks each wrote a partial concurrence and partial dissent. Both agreed that the Act was not in effect and that certification and temporary relief should be denied. But they criticized the conversion of the supervisory writ to one for original jurisdiction, as the state had urged. Chief Justice Abrahamson suggested that the requisite exigency did not exist, because the legislature could enact another bill. Justice Crooks preferred that the issues come up as a direct appeal. He also regarded the majority’s consideration of transcripts filed and submitted in appendices, when they are not part of the record on appeal, as altering supreme court procedural precedent, and he highlighted that some parties had alleged that certain factual issues were unresolved.

    This case illustrates a range of perceived benefits and risks of invoking and accepting original-action jurisdiction. It provides substantial grist for both proponents and opponents of future publici juris cases.

    Distribution of a Debtor’s Estate

    Given pervasive negative economic conditions, Wis. Stat. section 128.17, a state law alternative to bankruptcy, may be invoked more often in coming years. In BNP Paribas v. Olsen’s Mill Inc.,3 the supreme court considered the scheme under section 128.17 for priority of distribution of a debtor’s estate and adherence to the requirement for secured-creditor consent. While all six justices agreed on the result, a 3:3 split yielded two instructive concurrences. (Justice Prosser did not participate.)

    In the lead opinion, Justice Bradley concluded that the circuit court erred by ordering the sale of a creditor’s collateral free and clear of its security interest but without its consent. The supreme court also held that the circuit court should not have approved a bid for the debtor’s assets that circumvented the statutory order of distribution by not treating unsecured creditors equally.

    Olsen’s Mill, a grain elevator, had a large secured line of credit with Paribas. Olsen’s Mill defaulted while it still owed Paribas $58 million on the line of credit and other unsecured obligations, as well as debts to other creditors. Olsen’s Mill and Paribas entered into a written agreement for an assignment for the benefit of creditors, under Wis. Stat. section 128.08(10)(b).
    The agreement conditioned any sale of Olsen’s Mill’s property on the prior consent of creditors with perfected liens on the assets being sold. The parties’ auction agreement also conditioned sale on consent of the secured creditors and on court approval.

    A bidder affiliated with Paribas submitted the winning bid, to which Paribas consented and which the receiver approved. An entity affiliated with Olsen’s Mill submitted a lower bid. During the approval hearing, the second bidder made a revised bid, suggesting it was in the best interest of the creditors and would allow the mill to continue operating. Paribas did not consent, and the receiver asserted that the revised bid would disrupt the statutory distribution priority; nonetheless, the court invoked equity to approve the revised second bid. Paribas appealed, and the court of appeals affirmed.

    Relying on Wisconsin Brick & Block v. Vogel,4 the second bidder argued that Paribas’s participation in the chapter 128 proceeding was the equivalent of consent to the sale of its collateral, free of all liens. Noting Paribas’s repeated objections to the revised bid, the supreme court rejected the second bidder’s argument in favor of the statutory requirement for consent. Alternatively, the second bidder argued that Paribas’s collateral was worth only $9 million, the amount it received under the second bid, and thus it was not harmed. But because the record did not reflect the full value of Paribas’s security interest, the supreme court remanded so that the circuit court could determine the best remedy under the circumstances. The lead opinion concluded by explaining that a circuit court has authority to withhold approval of a bid that has been selected by the receiver, and that it should take into account equitable considerations. The circuit court is not free, however, to violate the provisions of chapter 128 by ignoring consent provisions or the distribution scheme.

    Justice Roggensack wrote the second opinion, relying on different authorities but reaching the same conclusion (to reverse and remand). First, she described the insolvency proceeding under chapter 128 in more detail by illustrating its differences from and similarities to a federal bankruptcy.

    Second, her concurrence made some practical observations. If the parties had included the receiver’s and debtor’s inventories in the record, the supreme court could have devised a better framework to guide the circuit court on remand. If Paribas had petitioned under section 128.25 to determine the value of its interest in each secured asset, the supreme court also might have been better equipped to provide a remedy. Both opinions acknowledged that the circuit court failed to follow the distribution priority scheme set out in section 128.17, but Justice Roggensack’s concurrence also faulted the circuit court for approving a sale of assets that did not require payment to be made to Paribas for six months, effectively reducing the sale price.

    Refusal to Rehire – Worker’s Compensation

    In deBoer Transportation Inc. v. Swenson,5 the supreme court analyzed whether the Labor and Industry Review Commission (LIRC) had properly applied Wis. Stat. section 102.35(3), which allows an employer to refuse to rehire an employee injured on the job if there is reasonable cause.

    Swenson, an over-the-road truck driver, was injured and stayed off work for several months. When he was ready to return to work, the employer, deBoer, told him it was willing to take him back if he successfully completed some reentry training. That training included a multiday driving trip, called a check-ride. Swenson was unwilling to do the check-ride because he cared for a terminally ill parent and thought he had no care alternatives. He asked that the company either pay for a nurse for his father or arrange for him to drive locally. deBoer declined those requests, Swenson refused to go on the check-ride, and he was subsequently discharged.

    Swenson alleged an unreasonable refusal to rehire. The administrative law judge (ALJ) agreed with Swenson, even though deBoer witnesses testified that the check-ride policy was based on safety and had always been followed. The ALJ saw the check-ride policy as a pretext, partly because deBoer did not explore alternatives to accommodate Swenson.

    LIRC affirmed, reasoning that deBoer should have demonstrated why changing its check-ride policy for Swenson would have compromised safety. The circuit court affirmed LIRC. The court of appeals reversed, on grounds that LIRC’s reasoning effectively required something more than reasonable cause. That amounted to an “unreasonable application of a statutory standard,” one not entitled to deference.

    The supreme court affirmed the court of appeals’ reversal of LIRC’s decision. The supreme court first explained that an employee must make a prima facie case of unreasonable refusal to rehire. It then noted, but did not resolve, the inconsistency between case law requiring that the refusal to rehire be based on the work-related injury and cases that do not require a reason for the refusal. Once the prima facie case is made, the burden shifts to the employer to show reasonable cause, or a reason that is fair, just, or fit under the circumstances. While Wisconsin’s employment discrimination statutes require employers to make certain accommodations, there is no such requirement in the worker’s compensation provisions.

    Beth Ermatinger Hanan

    Beth Ermatinger Hanan, U.W. 1996, is an appellate and trial attorney at Gass Weber Mullins LLC, Milwaukee.

    The supreme court endorsed the court of appeals’ analysis, namely that it is not reasonable to find a legislative intent to impose on employers the burden of judging which nonwork-, noninjury-related requests need to be accommodated if reasonably possible. Wisconsin Statute section 102.35(3) does not require an employer to change its legitimate and long-standing safety policies so as to assist an employee in meeting personal obligations. The dissent asserted that the majority should have focused on pretext and that it disregarded the fact that Swenson was willing to do the check-ride if the company would pay for a nurse or if he could drive locally and not over multiple days.

    No Panel Authority to Decide Recusal

    The defendant in State v. Henley6 sought a new trial and also filed a motion asking Justice Roggensack to recuse herself. When the justice declined,7 the defendant asked the full court for reconsideration, asserting that the lack of review of the individual recusal decision denied him due process. In a per curiam decision, the supreme court held that the determination of whether to recuse is the sole responsibility of the individual justice, and that a majority of the court lacks the power to disqualify a judicial peer from performing the constitutional functions of a justice.

    The Henley court noted that in a recent one-year period, 12 parties filed motions to disqualify a Wisconsin Supreme Court justice from participating in particular cases. Viewing those efforts as attempts to manipulate the court’s decisions, and as implicating constitutional functions, the court decided to address this institutional concern.

    The per curiam opinion analogized to a case decided 20 years ago. The defendant in In re Disciplinary Proceedings Against Crosetto8 had moved to disqualify each justice because in the past he had leveled individual criticism against each. The Crosetto court explained that the individual justices had determined that none had a significant personal interest requiring disqualification. More recently, in Donohoo v. Action Wisconsin Inc.,9 a party moved to disqualify Justice Butler. The court concluded that appellate review of a justice’s subjective determination is limited to establishing whether the judge actually undertook that determination.

    The Henley court then considered the constitutional scope of the court’s power. Its power to discipline justices arises from article VII of the state constitution, a provision that also sets the circumstances under which a justice can be prevented from exercising judicial functions. The court’s constitutional superintending powers are exercised, in part, via the Judicial Code of Conduct. Moreover, the court’s own internal operating procedures (IOPs) state that a justice’s decision to recuse is that of the justice alone, and the relevant IOP parallels, at least partially, the manner in which U.S. Supreme Court justices handle requests to recuse.

    Consistent with its concern that parties use recusal motions in an attempt to manipulate outcomes, the per curiam opinion also stated that public perception of judicial impartiality is not improved if four justices prevent another justice from participating on a case; instead, such a result would be deemed to reflect bias on the substantive question presented.

    Three justices dissented. They criticized Justice Roggensack for voting in the per curiam opinion that denied reconsideration of her own recusal decision, viewing such participation to be unprecedented. The dissent also pointed to a lack of briefing and argument on the question of whether the court has power to disqualify an individual justice. The dissenting justices fully incorporated their writings in State v. Allen,10 which concluded that the court had power to decide an individual’s disqualification and also had the constitutional responsibility to decide the issue.

    No Court Authority to Compel Alternative Educational Services

    In Madison Metropolitan School District v. Circuit Court for Dane County,11 the supreme court recognized that judicial authority is limited when a student who has been expelled seeks alternative educational services. Writing for the court, Justice Prosser concluded that Wis. Stat. section 120.13(1)(c)1. gives a school district express authority to expel a student from school, and that a circuit court lacks statutory authority to order a school district to provide alternative educational services to a juvenile who has been expelled lawfully. A circuit court may, however, order the juvenile to attend a variety of educational programs.

    M.T., a 15-year-old boy, was arrested after bringing nine bags of marijuana to school. The school district filed a complaint seeking his expulsion, and after two hearings, the hearing officer decided that M.T.’s conduct constituted grounds for expulsion under section 120.13(1), and that the school’s interests demanded expulsion for three semesters. The district board of education approved the order. Separately, a delinquency petition was filed against M.T., and the court ordered a pre-dispositional report. Such a report must, under Wis. Stat. section 938.33(1), include a plan for provision of educational services. The plan recommended that M.T. attend school regularly with no unexcused absences, a provision the court adopted.

    When the school district refused to provide educational programming because of the expulsion, the court issued a show cause order. The court was concerned it would be unable to fulfill its duties under the juvenile code if M.T. could not receive minimal educational resources. The district responded that such an order impairs its authority to define the terms of an expulsion. After the court ordered provision of certain educational resources, the district complied but appealed.

    The court of appeals took the matter as one for a supervisory writ and determined that neither section 120.12(18) nor section 938.45 authorized the circuit court to override the district’s expulsion order. The circuit court then petitioned for review.

    The supreme court conducted a review of the statutes and case law, first noting that the term “expel” is not defined in the statutes. The Department of Public Instruction has interpreted expel to mean that a district has no responsibility to educate an expelled student. While alternative education is encouraged, it is not required. The circuit court, in contrast, viewed the juvenile code as giving courts wide discretion to fashion dispositions and even to balance competing educational interests and costs.

    Section 938.34 describes an array of possible educational options for juveniles found to be delinquent. But the court of appeals said that although a court may order attendance at an existing educational program, it may not order a district to provide a particular program. The supreme court agreed, because the alternative would mean that a court could order school districts to create programs or to enter into contracts. The high court also concluded that section 938.45, addressing persons who contribute to the delinquency of a minor, does not encompass school districts because districts are not “persons” under that statutory scheme.

    The dissent contended that the proper focus was not on chapter 120 but on the juvenile code. In the dissent’s view, the 1996 revisions to the juvenile code effected a sea change in circuit court authority over juveniles, and that authority includes ordering a school district to submit a plan to provide educational services to an expelled student.

    No More Authority to Accept Late Filing

    In Northern Air Services. Inc. v. Link,12 the supreme court overruled precedent and concluded that a circuit court clerk lacks authority to accept a postverdict motion if it is filed later than the official end of the business day on which it is due, under Wis. Stat. section 805.16. By overruling Granado v. Sentry Insurance,13 the court replaced clerk discretion with a bright-line rule. While this case involved personal service, the new rule ought to withstand an eventual transition to electronic filing in all circuit courts.

    In an opinion written by Justice Gableman, the court first described a complex dispute among members of a family-owned company. After a three-phase trial, including a six-week jury trial followed by a bench trial to determine enforcement of a buy-sell agreement, both sides appealed. The supreme court held that 1) the clerk lacked discretion to accept a late-filed postverdict motion seeking reversal of a punitive damages award; 2) an oppression claim under section 180.1430(2)(b) is only available to shareholders and not to someone who surrendered his shares under a buy-sell agreement; and 3) the benefit-estoppel doctrine does not waive a right to appeal a damages determination.

    The reversal of Granado came via Justice Ziegler’s concurrence, which three other justices joined. The jury had assessed punitive damages against Jack Link, the father of defendant Jay Link, for breach of fiduciary duty. Jack filed his postverdict motion by mail, and it arrived at the clerk’s office one day after the statutory 20-day deadline. The circuit court at first rejected the motion but on reconsideration accepted it. In contrast, Jay Link filed his postverdict motion on the due date, but two minutes after the clerk’s office closed. The clerk exercised her discretion to accept Jay’s motion, and the circuit court felt bound by the date stamped by the clerk.

    Justice Ziegler criticized the disparate treatment that can result under the rationale of Granado, which afforded clerks of court discretion in accepting documents as timely filed. Instead, she adopted the bright-line rule of St. John’s Home of Milwaukee v. Continental Casualty Co.,14 which held that court clerks can accept papers after hours but lack the power to determine whether such papers were timely filed. This rule preserves equal treatment under the law.

    A clerk may not exercise judicial power except in accordance with the strict language of a statute conferring such power. The Granado court had accepted that a clerk’s authority is limited by statute but effectively had expanded that authority to include not only accepting late-filed papers but also making a judicial determination that the papers were “properly deposited” under Wis. Stat. section 59.40(2). That expansion of clerk power, according to Justice Ziegler’s concurrence, could confer or deprive a court of authority to consider a postverdict motion. The concurrence therefore adopted the rule of St. John’s Home, which provides that papers, such as petitions for review, received after closing time will be deemed as filed the following day.

    Broadened Opportunity for Direct Action

    Taking another opportunity to overrule court of appeals precedent, the supreme court in Casper v. American International South Insurance Co.15 broadened the opportunity for plaintiffs to sue the insurer of an individual defendant.

    Under the existing rules, as described in Kenison v. Wellington Insurance Co.,16 a plaintiff could bring a direct action against a defendant’s insurance company if three requirements were met: 1) the accident occurred in Wisconsin; 2) the policy covers the insured’s business operations conducted in this state; and 3) the insurance policy was delivered or issued for delivery in Wisconsin.

    Five passengers were seriously injured in a rear-end collision. The defendant driver was in the course of making a delivery for one of his employers, which had principal offices in Ohio. One of the driver’s supervisors had approved the driving route he took and insisted it be completed overnight. When the plaintiffs sued, they named the employer’s excess insurer, National Union. National Union sought summary judgment, asserting that the direct-action statute did not apply because the insurance policy was not delivered or issued for delivery in Wisconsin. The circuit court agreed, as did the court of appeals.

    On review, Justice Prosser wrote for the supreme court as it interpreted section 632.24, the direct-action statute, and section 631.01(1), which makes the insurance statutes generally applicable to certain persons and policies. National Union argued that both statutes require a threshold condition that the policies be delivered or issued for delivery in Wisconsin, citing Kenison. The plaintiffs, on the other hand, read the general applicability statute in the disjunctive, making delivery in this state only one of several possible conditions for suit.

    The court reviewed the legislative history. In 1967, the legislative drafting file noted, in referring to what is now section 803.04(2), that the statutory text had been changed to permit direct action when the policy is issued or delivered outside Wisconsin, if the accident occurs within the state. The supreme court concluded that section 803.04(2) and, by necessary implication, section 632.24 are intended to apply to liability insurance policies delivered or issued for delivery outside Wisconsin, as long as the accident, injury, or negligence occurs in this state. The court declined to read section 631.01(1) as changing that result. Moreover, the court declined to evaluate all ramifications of the meaning and scope of section 631.01(1), limiting itself to overruling Kenison.

    The court also affirmed findings of excusable neglect for a delayed answer to the complaint and found that a corporate officer may have personal liability for nonintentional torts committed in the scope of his or her employment. A partial dissent addressed only the preclusion of personal liability based on public policy.

    Chapter 980 – Burdens of Proof and Persuasion

    The supreme court accepted review in State v. West (In re Commitment of West)17 to consider two questions: 1) whether a person committed as a sexually violent person or the state should have the burden of proof to establish that Wis. Stat. section 980.08(4)(cg) conditions for granting supervised release have been met; and 2) whether requiring the burden of persuasion to be clear and convincing is too onerous. In an opinion written by Justice Prosser, the court held that the revised statute unambiguously places the burden of proof with the committed individual, and the appropriate burden of persuasion is clear and convincing evidence. The court concluded that this statutory allocation does not violate the constitutional guarantees of due process and equal protection.

    West was committed under chapter 980 in 1997. During each evaluation thereafter, evaluators found that he continued to be a sexually violent person and consistently recommended against either supervised release or discharge. One reexamination report in 2008 indicated West had made progress. During the 2009 exam, however, the evaluator diagnosed him with four mental disorders, found him to still be a sexually violent person, and recommended against release or discharge.

    In 2005, the legislature amended section 980.08(1) to remove language that specifically allocated the burden of proof to the state in hearings on petitions for supervised release. West appealed after his 2009 petition for release was denied. He argued that resting the burden of proof on the committed person would violate constitutional due process and equal protection guarantees. The court of appeals relied on State v. Rachel,18 which had rejected the same arguments West made. The court of appeals read the revised statutory language to create a presumption of institutionalization that must be overcome by the moving party. To switch the burden to the state, the court of appeals reasoned, would be impractical and absurd, because the state has no incentive to demonstrate factors in favor of release.

    The supreme court acknowledged that the primary goals of chapter 980 are to treat sexually violent persons and to protect society from the dangers they pose. The court observed that since the enactment of chapter 980, the legislature had amended it several times in support of public protection. Overall, the amendments have limited the ability of a committed person to obtain supervised release.

    The 2005 amendment altered the criteria for release to include five elements demonstrating individual progress, treatment, and expectation of continued compliance. The prior version had provided that release would be granted unless the state proved by clear and convincing evidence that the person either was likely to engage in acts of sexual violence or had not demonstrated significant progress in treatment. In West, the parties agreed that the amended version eliminated the explicit assignment to the state of the burden of proof, and both argued that the new version was ambiguous, but they did so on different grounds.

    The supreme court concluded that the 2005 amendment sets a default position of denying the petition, unless certain factors are established. The new language does not expressly address who must meet the criteria or produce evidence for the court, but the court found that the listed criteria make the assignment of the burden of proof unmistakable. Because the criteria weigh in favor of release, and thus in the committed petitioner’s best interest, the court concluded that the statute unambiguously assigns the burden of production to the petitioner. To conclude otherwise, Justice Prosser wrote, would mean the state would have to prove five negatives.

    West argued that the state was better equipped to provide the information to establish the new criteria but also could manipulate it. The court rebuffed that argument, concluding that the Department of Health and Family Services would make information as accessible to the petitioner as to the state, and that access to evidence is not determinative of the allocation of the burden of proof.

    West also argued that assigning the burden to the petitioner violated due process and equal protection. The court analogized a release petition to a request for parole. West’s liberty interest was constitutionally limited when he was determined to be a sexually violent person, and the state has no duty to offer supervised release. Addressing the equal protection challenge, the court compared persons committed under chapter 51 to those committed under chapter 980, and ruled that the relative level of danger posed to public safety warranted different procedures.

    The court also considered the appropriate burden of persuasion. Although the “clear and convincing” language had been removed, the court found that prevailing concerns for public safety make it appropriate that the committed petitioner bear the burden of proof by clear and convincing evidence.

    The dissent was unwilling to find that legislative silence on the burden of proof equates to an unambiguous intent to place the burden on the petitioner and critiqued the use of public policy to assign clear and convincing as the proper standard. Overall, the dissent feared that the majority’s interpretation would undercut both the treatment goals and the safety purposes of chapter 980, and that the majority has made supervised release more difficult to achieve than discharge.

    CRIMINAL CASES

    Sixth Amendment Right to Counsel

    In State v. Forbush,19 the supreme court held that in a situation in which an investigator knew that the defendant had secured legal counsel for pending charges, the defendant’s right to counsel under either the federal or state constitution had attached and was invoked affirmatively by the defendant before the investigator began his questioning. Under these facts, defendant Forbush did not need to “re-invoke” his right to counsel, and his statements during interrogation should have been suppressed.

    Forbush asserted that his right to counsel under the Sixth Amendment of the U.S. Constitution and under article I, section 7 of the Wisconsin Constitution was violated when police interrogated him in Wisconsin. Forbush had been arrested in Michigan on Wisconsin sexual assault charges. He made an appearance in Michigan with his counsel and then returned to Wisconsin. The district attorney’s office was notified that Forbush was represented by counsel, and his Michigan lawyer had contact with the Sheboygan County sheriff’s department. Nonetheless, a Sheboygan County detective repeatedly asked Forbush to waive his right to counsel and tell his side of the story. After almost half an hour, Forbush waived the right to counsel, and he then made potentially incriminating statements.

    Before trial, Forbush moved to suppress the statements made to the detective, asserting that because he was represented by counsel on these charges at the time of interrogation and he had been formally charged, both the Sixth Amendment and article I, section 7 of the Wisconsin Constitution required suppression. The circuit court agreed. The state appealed, and the court of appeals reversed, relying on Montejo v. Louisiana,20 which held that the Sixth Amendment does not prevent police from questioning charged and represented defendants.

    The supreme court issued multiple decisions. Four justices agreed to reverse the decision of the court of appeals, but their rationales diverged somewhat. Chief Justice Abrahamson and Justice Bradley based their decision to reverse on article I, section 7 of the state constitution and on Wisconsin constitutional history. They concluded that the Montejo interpretation of the Sixth Amendment supersedes the interpretation given by State v. Dagnall21 but also noted that Wisconsin’s constitution historically has afforded greater protection of civil liberties than has its federal counterpart.

    Justice Prosser reasoned that the law in place at the time Forbush was interrogated, Dagnall, applied to Forbush and required suppression. He read Montejo as not requiring retroactive application.

    Justice Roggensack formulated her decision by first surveying the right to counsel in Wisconsin since its constitutional convention, and then by concluding that the Dagnall reasoning is controlling. She also agreed that Montejo modified Dagnall such that there is no presumption of a Sixth Amendment violation when the circumstances of the represented defendant match those of Montejo. In this case, she considered that Montejo did not apply after Forbush affirmatively invoked the Sixth Amendment right to counsel by retaining and receiving the services of an attorney.

    Given the divided rationales, Justice Prosser wrote at length concerning how Montejo would affect future right-to-counsel cases in Wisconsin. He noted the Montejo court’s invitation to states to preserve existing law that police-initiated questioning of accused persons, charged and represented, is presumed invalid and will lead to exclusion of evidence. Justice Prosser foresaw questions about whether an accused’s statements will be enough to terminate interrogation in the absence of counsel, or whether an attorney present at the jail and asking to confer with his or her client will be permitted to confer, unless the accused person also asks to confer.

    The dissenters urged a conclusion that Montejo means that Dagnall is no longer the law in Wisconsin, and that a defendant may invoke the Sixth Amendment right to counsel only through an unambiguous and unequivocal request for the assistance of counsel. To do otherwise, the dissenters feared, would unduly hamper law-enforcement investigation efforts.

    Refusal of Consent to Search – Shared Dwelling

    The supreme court accepted certification in State v. St. Martin22 to determine whether the rule of Georgia v. Randolph23 (a warrantless search cannot be justified when a physically present resident expressly refuses consent) applies when the physically present resident is taken forcibly from the residence by law enforcement officers but remains in close physical proximity to the residence such that the refusal is made directly to law enforcement officers on the scene. The court concluded that the Randolph rule does not apply in this circumstance and that the rule of United States v. Matlock24 applies instead. That rule holds that a cotenant’s consent to search is valid as against the absent, nonconsenting cotenant.

    St. Martin and his girlfriend shared an apartment and attic. The girlfriend went to the police station to complain that she had been battered by St. Martin. She also said that she suspected him of selling cocaine, describing a bag of white powder in their bathroom and her suspicion that he normally kept the substance in the apartment attic. Police officers went to the apartment, but no one answered the door. The girlfriend let them in with her key, and St. Martin, who was inside the apartment, did not object to the entry. Police officers took St. Martin outside to their van and arrested him. Officers then obtained the girlfriend’s consent to a search of the attic. They asked St. Martin for consent, but he refused. Police officers accompanied the girlfriend into the attic, where they found cash and bags of cocaine. After obtaining a warrant, which ultimately was deemed to contain some inaccuracies, the officers performed a second search and seized additional paraphernalia.

    St. Martin moved to suppress the evidence obtained during both searches. The circuit court held that the first search was illegal because St. Martin had not consented. But because the inaccuracies in the affidavit were not intentional, the affidavit provided probable cause for the warrant, and the suppression motion was denied as to all evidence. St. Martin appealed, and the supreme court accepted certification.

    Justice Crooks, writing for the court, observed that in cases of warrantless searches of shared dwellings, factual nuances matter. Both Randolph and Matlock require a degree of formalism in assessing the fine lines drawn in shared-dwelling cases. Here, St. Martin argued under Randolph that the evidence must be suppressed because his objection from nearby trumped his girlfriend’s consent. The state responded that Randolph is inapplicable because St. Martin was not physically present in the apartment when he objected to the attic search.

    Because St. Martin was removed from the apartment in response to the battery complaint, his removal was not a pretext for a search for cocaine. Even when St. Martin was in the apartment, he did not object to the officers’ entry. St. Martin argued that when the officer asked his consent while he was in the police vehicle, that was a “threshold colloquy” and refusal to consent under Randolph, which should invalidate the search. The state argued that St. Martin was not physically present in the apartment when he objected.

    Because the court read Randolph to expressly require physical presence in the shared dwelling, extending that requirement to a vehicle on the street would strain the fine-line framework established by the U.S. Supreme Court. Instead, these circumstances are much like those in Matlock, in which the cotenant gave consent that cannot be trumped by an absent tenant. As to the second issue, while the affidavit to support the warrant for the second search bore some inaccuracies, the circuit court properly considered only the untainted information to establish probable cause. With the addition of the fruits of the first, proper search, the Wisconsin Supreme Court concluded the sufficiency of the affidavit could not be questioned.

    The dissent rejected the “doorframe” analysis it perceived the majority to apply, and would have read Randolph broadly enough to encompass the presence in the vehicle as being present “on the scene.”

    Endnotes

    1 State ex rel. Ozanne v. Fitzgerald, 2011 WI 43, 334 Wis. 2d 70, 798 N.W.2d 436.

    2 In re Petition of Heil, 230 Wis. 428, 443, 284 N.W. 42 (1939).

    3 BNP Paribas v. Olsen’s Mill Inc., 2011 WI 61, __ Wis. 2d __, 799 N.W.2d 792.

    4 Wisconsin Brick & Block v. Vogel, 54 Wis. 2d 321, 195 N.W.2d 664 (1972).

    5 deBoer Transp. Inc. v. Swenson, 2011 WI 64, __ Wis. 2d __, __ N.W.2d __.

    6 State v. Henley, 2010 WI 97, 328 Wis. 2d 544, 787 N.W.2d 350.

    7 State v. Henley, 2010 WI 12, 322 Wis. 2d 1, 778 N.W.2d 853.

    8 In re Disciplinary Proceedings Against Crosetto, 160 Wis. 2d 581, 446 N.W.2d 879 (1991).

    9 Donohoo v. Action Wisconsin Inc., 2008 WI 110, 314 Wis. 2d 510, 754 N.W.2d 480.

    10 State v. Allen, 2010 WI 10, 322 Wis. 2d 372, 778 N.W.2d 863.

    11 Madison Metro. Sch. Dist. v. Circuit Court for Dane County, 2011 WI 72, __ Wis. 2d __, 800 N.W.2d 442.

    12 Northern Air Servs. Inc. v. Link, 2011 WI 75, __ Wis. 2d __, __ N.W.2d __.

    13 Granado v. Sentry Ins., 228 Wis. 2d 794, 599 N.W.2d 62 (1999).

    14 St. John’s Home of Milwaukee v. Continental Cas. Co., 150 Wis. 2d 37, 441 N.W.2d 219 (1989).

    15 Casper v. American Int’l S. Ins. Co., 2011 WI 81, __ Wis. 2d __, 800 N.W.2d 880.

    16 Kenison v. Wellington Ins. Co., 218 Wis. 2d 700, 582 N.W.2d 69 (Ct. App. 1998).

    17 State v. West (In re Commitment of West), 2011 WI 83, __ Wis. 2d __, 800 N.W.2d 929.

    18 State v. Rachel, 2010 WI App 60, 324 Wis. 2d 465, 782 N.W.2d 443.

    19 State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741.

    20 Montejo v. Louisiana, 129 S. Ct. 2079 (2009).

    21 State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680.

    22 State v. St. Martin, 2011 WI 44, 334 Wis. 2d 290, 800 N.W.2d 858.

    23 Georgia v. Randolph, 547 U.S. 103 (2006).

    24 United States v. Matlock, 415 U.S. 164 (1974).




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