Supreme Court Digest
By Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer
Editor's Note: Each case summarized in the Supreme
Court Digest includes its new public domain citation.
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Attorney General
Powers - Challenging the Constitutionality of
Statutes
State v. City of Oak Creek,
2000 WI 9 (filed 10 Feb. 2000)
Some years ago the City of Oak Creek constructed a concrete
bed in Crawfish Creek. The state brought suit to have the concrete
removed and the creek restored to its preexisting condition.
In 1994 the court of appeals held that the creek was a navigable
waterway, that the "channelization" violated section
30.12 of the Wisconsin Statutes, that another statute "enacted
by the Legislature purporting to exempt Crawfish Creek from the
requirements of section
30 was unconstitutional, and that the creek had to be restored
to its prechannelization condition." Following the court's
decision, the Legislature "reenacted the exemption."
The attorney general then brought this action seeking a declaration
that the new exemption was unconstitutional because it violated,
among other things, the public trust doctrine. The attorney general
also sought a determination that the rechannelization was a nuisance.
The circuit court ruled that the new exemption (section
30.056) was unconstitutional and granted the relief sought.
The court of appeals reversed (Judge Schudson dissenting). Writing
for the court, Judge Fine agreed that the attorney general lacked
the authority to attack the statute's constitutionality
based on the "dispositive" opinion in Public Intervenor
v. DNR, 115 Wis. 2d 28, 339 N.W.2d 324 (1983).
The supreme court, in a decision written by Justice Crooks,
affirmed the court of appeals. A party's standing turns
on two elements: 1) whether the plaintiff has suffered a threatened
or actual injury, and 2) whether the interest asserted is recognized
by law. Here the second element was dispositive because no statute
expressly conferred the attorney general with authority to attack
another statute's constitutionality. Case law had long restricted
the attorney general's powers to those prescribed by statutory
law as provided in Wis.
Const. art. VI, sec. 3. This construction also accorded with
the surviving records of the constitutional conventions (1846
and 1848), which entrusted the Legislature with the task of defining
the attorney general's powers, and the practice of the early
state Legislature.
The court also rejected the attorney general's contention
that such power arose from other doctrines such as the "great
public concern" doctrine, the "state as polity"
doctrine, and the "core function" doctrine.
The great public concern doctrine is an exception to the general
rule that state agencies or public officers cannot question the
constitutionality of a statute unless it is their official duty
to do so, or they will be personally affected if they fail to
do so and the statute is held invalid. This exception does not
apply to suits between two creatures of the state. Because in
this case the attorney general and the City of Oak Creek are
both creatures of the state, the great public concern exception
does not apply.
The court also rejected application of the "state as
polity" doctrine and the "core function" doctrine.
As to the latter, the attorney general argued that he is able
to bring suit in this case because doing so is one of his core
functions as attorney general. The court responded that there
is no core function derived from the constitution that is superior
to the attorney general's statutorily provided powers because
the constitution provides that the attorney general's "core
functions" are to be defined by the statutes. The attorney
general's constitutional powers are equivalent to his statutory
powers - they are one and the same.
Chief Justice Abrahamson, joined by Justices Bablitch and
Bradley, dissented in an opinion that challenges the majority
on six different points. The dissent laments that "Wisconsin's
jurisprudence about the power of the Attorney General is unduly
restrictive and intellectually confusing and inconsistent."
Civil Procedure
Discovery - Depositions - Public Access
State ex rel. Mitsubishi Heavy
Industries America Inc. v. Circuit Court for Milwaukee County,
2000 WI 16 (filed 23 Feb. 2000)
This case arose out of litigation surrounding the crane collapse
at the Miller Park construction site in Milwaukee County. The
Milwaukee Journal Sentinel intervened in the underlying civil
litigation and sought access to discovery materials. The circuit
court ordered the disclosure upon request to the newspaper "of
any deposition, transcript, deposition videotape, or related
exhibits."
In a per curiam decision, the Wisconsin Supreme Court granted
the defendant's petition for a supervisory writ prohibiting
the disclosure. The court held that the newspaper "should
not have been permitted to intervene as a matter of right to
obtain access to unfiled, pretrial discovery materials."
Neither the press nor the general public have a right to "examine
discovery materials as they are being generated in the course
of pretrial discovery in a civil action." Documents on file
with the court are, however, considered public records and are
subject to disclosure. Under the rules of civil procedure and
unless otherwise ordered, the original copies of all depositions
and other discovery materials are not filed with the court; rather,
the parties retain the material. For these reasons, "depositions
generated in the pretrial discovery proceedings in the underlying
action are not judicial records to which a common law presumption
of access applies because they have not yet been filed in court,
nor have they been used as evidentiary material in determining
any of the civil litigants' substantive rights." The
court also held that the media has no First Amendment rights
to the discovery materials until they are filed with the court.
Chief Justice Abrahamson concurred and wrote separately to
emphasize the narrowness of the court's ruling. Assuming
the circuit court orders that the depositions be filed, the media
and the general public have the right to examine them subject
to the judge's discretion to restrict access based on "good
cause."
Criminal Procedure
Sentence Credit - Release on Bond - Home Detention
with Electronic Monitoring
State v. Magnuson,
2000 WI 19 (filed 29 Feb. 2000)
Prior to trial the defendant was released on a signature bond.
As part of he bond, the court ordered him to reside with either
his pastor or his cosigners on the bond. He chose to reside with
the pastor.
The court imposed additional conditions of release on bond.
The defendant was subject to a nightly curfew that confined him
to the pastor's residence. [This home detention as a condition
of bond was not pursuant to an order from the sheriff or the
Wisconsin Department of Corrections under Wis. Stat. section
302.425.] The defendant was formally supervised by a bail-monitoring
program and was required to wear an electronic monitoring bracelet
to ensure his presence at the pastor's home during curfew
hours. He also was obligated to contact bail-monitoring authorities
every morning and to submit to urinalysis as directed. There
were various other conditions of bond as well.
The issue before the supreme court was whether the defendant
was entitled to sentence credit under section
973.155 for the time he was released on bond to home detention
with electronic monitoring. In a unanimous opinion authored by
Justice Bradley, the supreme court concluded that he was not.
The court held that the test for determining whether the defendant
was "in custody" for sentence credit purposes was whether
he was subject to an escape charge for leaving that status. Applying
this test to the case before it, the supreme court concluded
that the defendant was not in danger of being charged with escape
under any applicable statutes. Although he could suffer negative
legal consequences (for example, a charge of bail jumping) for
leaving home detention or for violating other release conditions,
the court did not believe that these consequences transformed
the defendant's situation into "custody" for purposes
of granting sentence credit.
Guilty Pleas - Factual Basis - Post-sentencing
Motion to Withdraw Plea
State v. Thomas, 2000
WI 13 (filed 18 Feb. 2000)
This case concerns the factual basis for a guilty plea and
the defendant's motion after sentencing to withdraw that
plea claiming that the circuit judge failed to establish a factual
basis for it. In a unanimous opinion authored by Justice Crooks,
the court began its analysis by noting that a defendant who moves
to withdraw a guilty plea after sentencing carries the heavy
burden of establishing, by clear and convincing evidence, that
the trial court should permit the defendant to withdraw the plea
to correct a "manifest injustice." The "manifest
injustice" test requires a defendant to show a serious flaw
in the fundamental integrity of the plea. One of the circuit
court's duties at the plea hearing is to determine that
the conduct that the defendant admits constitutes the offense
charged in the pleadings or an offense included therein to which
the defendant has pleaded guilty. "If a circuit court fails
to establish a factual basis that the defendant admits constitutes
the offense pleaded to, manifest injustice has occurred."
Rule 11(f) of the Federal Rules of Criminal Procedure provides
that a court should not enter judgment upon a plea of guilty
"without making such inquiry as shall satisfy it that there
is a factual basis for the plea." This rule has been made
applicable to the states and the Wisconsin Supreme Court has
held that to comply with the rule, a judge must "personally
determine that the conduct which the defendant admits constitutes
the offense charged." See Ernst v. State, 43 Wis.
2d 661, 170 N.W.2d 713 (1969). Both the federal rule and Wisconsin's
adaptation of it speak in terms of a judge's determination
that a factual basis exists. Neither the rule nor the case law
interpreting the rule requires a defendant to personally articulate
the specific facts that constitute the elements of the crime
charged. All that is required is for the factual basis to be
developed on the record. Several sources can supply the facts.
Relevant case law does not require a judge to make a factual
basis determination in one particular manner. While a judge must
ensure that a defendant realizes that his or her conduct does
meet the elements of the crime charged, he or she may accomplish
this goal through means other than requiring a defendant to personally
articulate agreement with the factual basis presented. A factual
basis also may be established through witnesses' testimony,
or a prosecutor reading police reports or statements of evidence.
Finally, a factual basis is established when counsel stipulate
on the record to facts in the criminal complaint.
Wis. Stat. section
971.08(b), which is Wisconsin's codification of Federal
Rule 11(f), provides that a court must "make such inquiry
as satisfies it that the defendant in fact committed the crime
charged." The phrase "such inquiry" indicates
that a judge may establish the factual basis as he or she sees
fit, as long as the judge guarantees that the defendant is aware
of the elements of the crime, and the defendant's conduct
meets those elements.
On a motion to withdraw the guilty plea, a court may look
at the totality of the circumstances to determine whether a defendant
has accepted the factual basis presented underlying the guilty
plea. "The totality of the circumstances includes the plea
hearing record, the sentencing hearing record, as well as the
defense counsel's statements concerning the factual basis
presented by the state, among other portions of the record."
Sentencing Credit - "Read-in Offenses"
State v. Floyd, 2000
WI 14 (filed 22 Feb. 2000)
The defendant originally was charged and jailed for a host
of offenses referred to collectively as the "reckless endangerment
case." He posted bail and was released. While awaiting trial,
the defendant committed another offense, "the armed robbery
case." Unable to make bail, the defendant remained in custody.
Eventually he pleaded guilty to the reckless endangerment case
and the armed robbery case was read in for sentencing. At the
sentencing hearing, the attorneys for each side and the court
agreed that the defendant was entitled to 61 days credit for
time spent in custody on the reckless endangerment case. He was
not given credit for time spent in custody solely on the armed
robbery case (which had been read in). According to the record,
the defendant's signature bond on the reckless endangerment
case was not revoked until a later time. Once it was revoked,
the defendant was entitled to the time spent in jail on (technically)
both cases. The trial court denied the defendant's post-conviction
motions and the court of appeals certified the case to the supreme
court.
The supreme court, in a decision written by Justice Bradley,
reversed the circuit court. The Legislature created section
973.155 of the Wisconsin Statutes with "the intent to
bring the law of Wisconsin into conformity with the broad federal
statute, which provided for sentence credit for any pre-sentence
confinement period, whether arising from a financial inability
to post bail, unwillingness to grant release on bail, or for
purpose of examination." Read-in offenses create the risk
of a lengthier sentence because they carry far more weight than
"unproven or acquitted offenses." The court "limited"
section
973.155 "to charges that are dismissed and read in at
sentencing"; it does not apply to "a myriad of dismissed
and other charges that also may be considered or mentioned at
sentencing."
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