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    Supreme Court Digest

    Daniel BlinkaThomas Hammer

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    Wisconsin Lawyer
    Vol. 77, No. 6, June 2004

    Supreme Court Digest

    This column summarizes all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline, which are digested elsewhere in the magazine). Profs. Daniel D. Blinka and Thomas J. Hammer invite comments and questions about the digests. They can be reached at Marquette University Law School, 1103 W. Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.

    by Prof. Daniel D. Blinka &
    Prof. Thomas J. Hammer



    Probation/Parole Revocations - Certiorari Review - Right to Counsel

    State ex rel. Griffin v. Smith, 2004 WI 36 (filed 30 March 2004)

    The two petitioners in this case were represented by counsel at their respective parole revocation hearings. Following an adverse decision in each case, counsel timely filed an administrative appeal. The Division of Hearings and Appeals rejected both appeals. The petitioners claim that their counsel promised to file for certiorari review of their revocations in the circuit court but failed to do so in a timely manner. Both subsequently sought habeas corpus relief in the circuit court, alleging ineffective assistance of counsel for failure to timely file their petitions for certiorari review. The circuit courts denied the habeas corpus petitions. Both petitioners then appealed to the court of appeals, which consolidated their cases and certified them to the supreme court.

    In a majority decision authored by Justice Bradley, the supreme court reversed the circuit court orders dismissing the habeas corpus petitions. "While parolees have a right to counsel at the parole revocation hearing, we conclude that there is no administrative or statutory right to counsel to timely file for certiorari in the circuit court. However, we determine that the petitioners here are entitled to relief on equitable grounds because they timely requested counsel to file for certiorari review, counsel promised to do so, and as a result of counsel's failure to timely file, they were denied certiorari review" (¶ 3). "Provided that the petitioners timely pursue relief, the 45-day time limit for the filing of a writ of certiorari is equitably tolled as of the date that counsel promises to file for certiorari review" (¶ 38). Regarding the application of this decision, the court held that its tolling rule should not apply retroactively, but rather be limited to cases for which certiorari review is still available, including the petitioners in this case.

    On this appeal the petitioners did not contend that there is a constitutional right to counsel to file their petitions for certiorari review. The supreme court agreed. "The [United States] Supreme Court has not extended a per se Sixth Amendment right to counsel at revocation hearings or certiorari review of revocation decisions in part because probationers and parolees have a more limited due process right than those who have not yet been convicted of a crime" (¶ 22).

    Finally, in a footnote, the court observed that its analysis applies to both parole and probation revocation hearings. See ¶ 2 n.2.

    Chief Justice Abrahamson filed a concurring opinion. Justice Sykes also filed a concurrence that was joined by Justices Wilcox and Crooks.

    Criminal Procedure

    Sentencing - Exercise of Sentencing Discretion

    State v. Gallion, 2004 WI 42 (filed 15 April 2004)

    In the legendary sentencing case of McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), the supreme court instructed trial judges that evidence of the exercise of sentencing discretion must be set forth on the record: "there must be evidence that discretion was in fact exercised. Discretion is not synonymous with decision-making. Rather, the term contemplates a process of reasoning." Id. at 277. The McCleary court concluded that the discretion of the sentencing judge must be exercised on a rational and explainable basis. For a sentence to be valid, there must be "a statement by the trial judge detailing his reasons for selecting the particular sentence imposed." Id. at 281.

    Now, in the wake of Wisconsin's move to truth-in-sentencing, the court in Gallion reinvigorated the McCleary directive that the exercise of sentencing discretion must be set forth on the record. "Although we do not change the appellate standard of review, appellate courts are required to more closely scrutinize the record to ensure that 'discretion was in fact exercised and the basis of that exercise of discretion [is] set forth.'" (¶ 4) (citations omitted).

    Justice Bradley's majority opinion provides extensive guidance to trial judges. Because of their significance, the court's directives are set forth in detail as follows:

    "Circuit courts are required to specify the objectives of the sentence on the record. These objectives include, but are not limited to, the protection of the community, punishment of the defendant, rehabilitation of the defendant, and deterrence to others.

    "Courts are to identify the general objectives of greatest importance. These may vary from case to case. In some cases, punishment and protection of the community may be the dominant objectives. In others, rehabilitation of the defendant and victim restitution may be of greater import. Still others may have deterrence or a restorative justice approach as a primary objective.

    "Courts are to describe the facts relevant to these objectives. Courts must explain, in light of the facts of the case, why the particular component parts of the sentence imposed advance the specified objectives.

    "Courts must also identify the factors that were considered in arriving at the sentence and indicate how those factors fit the objectives and influence the decision. In Harris [v. State, 75 Wis. 2d 513, 250 N.W.2d 7 (1977)], we detailed factors that courts may take into account in the exercise of discretion. These factors assist courts in identifying relevant considerations at sentencing. In addition, the legislature has mandated consideration of applicable mitigating or aggravating factors [citing Wis. Stat. section 973.017(3)-(8)].

    "In each case, the sentence imposed shall 'call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.' Accordingly, the circuit courts should consider probation as the first alternative. Probation should be the disposition unless: confinement is necessary to protect the public, the offender needs correctional treatment available only in confinement, or it would unduly depreciate the seriousness of the offense.

    "If a circuit court imposes probation, it shall explain why the conditions of probation should be expected to advance the objectives it has specified. Likewise, if a circuit court imposes jail or prison, it shall explain why the duration of incarceration should be expected to advance the objectives it has specified. Finally, if a circuit court imposes a bifurcated sentence for a crime committed after Dec. 31, 1999, it shall explain why its duration and terms of extended supervision should be expected to advance the objectives.

    "In short, we require that the court, by reference to the relevant facts and factors, explain how the sentence's component parts promote the sentencing objectives. By stating this linkage on the record, courts will produce sentences that can be more easily reviewed for a proper exercise of discretion.

    "Because we recognize the difficulty in providing a reasoned explanation in isolation, we encourage circuit courts to refer to information provided by others. Courts may use counsels' recommendations for the nature and duration of the sentence and the recommendations of the presentence report as touchstones in their reasoning. Courts may also consider information about the distribution of sentences in cases similar to the case before it. We note that Wis. Stat. § 973.017(2)(a) requires sentencing courts to consider any applicable temporary sentencing guidelines adopted by the Criminal Penalties Study Committee and to consider in the future any applicable guidelines adopted by a sentencing commission.

    "Although we anticipate less disparity with the advent of sentencing guidelines, that does not mean there is less of a need for the exercise of discretion. Individualized sentencing, after all, has long been a cornerstone to Wisconsin's criminal justice jurisprudence.... Sentencing guidelines will provide helpful information and serve as a touchstone for explaining the reasons for the particular sentence imposed.

    "We are mindful that the exercise of discretion does not lend itself to mathematical precision. The exercise of discretion, by its very nature, is not amenable to such a task. As a result, we do not expect circuit courts to explain, for instance, the difference between sentences of 15 and 17 years. We do expect, however, an explanation for the general range of the sentence imposed. This explanation is not intended to be a semantic trap for circuit courts. It is also not intended to be a call for more 'magic words.' Rather, the requirement of an on-the-record explanation will serve to fulfill the McCleary mandate that discretion of a sentencing judge be exercised on a 'rational and explainable basis.' This will assist appellate courts in determining whether the circuit court properly exercised its discretion" (¶¶ 40-49) (citations omitted).

    Family Law

    Paternity - Genetic Testing - Marital Child Presumption - Equitable Estoppel

    Randy A.J. v. Norma I.J., 2004 WI 41 (filed 7 April 2004)

    Randy and Norma were married in 1990. In 1998 Norma gave birth to a daughter, Selena. Randy paid all of the birthing expenses and is listed as the child's father on the birth certificate. However, during the conceptive period, Norma had an adulterous relationship with Brendan that Randy did not know about. After the child's birth Randy continued to pay all of her expenses and to provide a home for her and Norma.

    In 1999 Norma was convicted of embezzlement and sentenced to eight years in prison. It was only then that she told Randy that he might not be the child's biological father.

    Brendan subsequently filed a paternity action in Illinois where he lived, seeking to have an Illinois court declare him to be the child's father. This action was dismissed for lack of jurisdiction. In the meantime, Randy filed for divorce and requested sole legal custody and physical placement of the child. Norma counterclaimed with an assertion that the child was not Randy's and with a request for genetic testing. The circuit court ordered tests, which established a probability of 99.99 percent that Brendan is the child's biological father. Brendan was thereafter permitted to intervene in the divorce action, and he asked to have the girl declared his child. Paternity was tried to the court and, for a number of reasons, the court adjudicated Randy as the legal father. The circuit court accordingly dismissed Brendan from the divorce action and dismissed Norma's counterclaim related to paternity. The court of appeals affirmed, albeit on different grounds than those used by the circuit court.

    In a majority decision authored by Justice Roggensack, the supreme court affirmed the court of appeals. First, the court rejected Brendan's claim of a constitutionally protected liberty interest in his putative paternity. "[I]n order for Brendan to have the necessary foundation for a constitutionally protected liberty interest in his putative paternity, he would have to have taken affirmative steps to assume his parental responsibilities for Selena. In regard to his relationship with Selena, the circuit court found that Brendan had no substantial relationship with Selena, who is six years old and has lived with Randy as her father all her life. Brendan is not listed as her father on her birth certificate; he was not present at her birth; he did not pay for her birthing expenses; he took no legal steps to assert his paternity until she was 15 months old when he filed a paternity action in Illinois. When that action was dismissed for lack of jurisdiction, he chose not to proceed in this Wisconsin court action until it had been ongoing for more than two years. And finally, he did not provide for Selena's emotional and financial support, either before or after the genetic tests were performed. Therefore, we conclude that the record fully supports the circuit court's finding" (¶ 19).

    The court also addressed the impact in this case of Wis. Stat. section 891.41, which provides that a man is presumed to be a child's natural father if he and the child's mother are or have been married to each other and the child is conceived or born after marriage and before the granting of a decree of legal separation, annulment, or divorce between the parties. The statute further provides that this presumption is rebutted by results of genetic testing that show that another man is not excluded as the father of the child and that the statistical probability of that other man's parentage is 99.0 percent or higher.

    The supreme court concluded that, in this case, Brendan and Norma should be equitably estopped from asserting the genetic test results as proof to rebut the marital child presumption of section 891.41. "[W]e conclude that Norma and Brendan's actions and lack of action, which were relied on by both Selena and Randy, are so unfair, that when combined with the state's interest in preserving Selena's status as a marital child, they outbalance the public's interest in a purely biological approach to parenthood" (¶ 31). In its analysis the court noted that Wisconsin favors preserving the status of marital children, even when it can be positively shown that the husband of the mother could not have been the father of the child. It also found "very significant" the findings of the circuit court that it would be in the child's best interest to adjudicate Randy as the father.

    The court rendered two other holdings in this decision. First, it concluded that section 767.463 cannot be employed once genetic tests have been completed. This statute permits a circuit court to dismiss a paternity action to protect a child's best interest. Second, the court concluded that the "equitable parent" doctrine should not be used in paternity determinations. This doctrine originated in Atkinson v. Atkinson, 408 N.W.2d 516 (Mich. App. 1987). An "equitable parent" is described as one who through judicial determination is able to exercise all the rights and responsibilities of a natural parent. "To support the application of the equitable parent doctrine, Atkinson required only a person: (1) who wants to be recognized as the child's parent; (2) who is willing to support the child; (3) who wants the rights of custody or visitation in regard to the child; and (4) who raises 'certain circumstances,' that were otherwise undefined by Atkinson" (¶ 32). In this case the Wisconsin Supreme Court declined to employ the equitable parent doctrine because its parameters are too indistinct and because permitting its use would create uncertainties in the law. It further concluded that to the extent the equitable parent doctrine has been employed in the past, "we preclude its application in the future" (¶ 33).

    Justice Crooks filed a concurring opinion.

    TPR - Incest

    Monroe County v. Kelli B., 2004 WI 48 (filed 28 April 2004)

    Kelli B. gave birth to three children when she was between ages 17 and 20. All three children were fathered by Kelli's own father, who was eventually convicted of incest and sent to prison. He agreed to terminate his own parental rights to Kelli's three children. The county commenced a termination of parental rights action against Kelli based on the "incestuous parenthood" of her children, as provided by Wis. Stat. section 48.415(7). A jury found the fact of incestuous parenthood and the court later determined that it was in her childrens' best interest to terminate Kelli's parental rights. The court of appeals, however, reversed on the basis that a finding of incestuous parenthood in itself could not demonstrate Kelli's unfitness as a parent.

    The supreme court, in a decision authored by Justice Ann Walsh Bradley, affirmed on the ground that the statute violated Kelli's right to substantive due process. Wisconsin law clearly recognizes that a "parent who has a substantial relationship with his or her child has a fundamental interest in parenting the child" (¶ 23). Kelli met this standard. In light of her fundamental interest, the next issue was whether the statute was "narrowly tailored to advance a compelling interest" (¶ 25). The court held it was not. "The reason it is not narrowly tailored is that it renders people like Kelli per se unfit solely by virtue of their status as victims. While we recognize a correlation between perpetrators of incest and unfit parents, we fail to see how being victimized by one's parent or relative necessarily warrants the same conclusion. The fact of incestuous parenthood does not, in itself, demonstrate that victims like Kelli are unfit parents" (¶ 26). Although the state had a compelling interest in deterring father-daughter incest and protecting children from psychological harm, section 48.415(7) was not narrowly tailored to advance those interests (¶ 28). Critical to this determination was the court's conclusion that Kelli had been a "victim" of sexual assault; the majority declined to address how "nonconsent" should be raised in future cases (that is, is it a jury question?) (¶ 31). And aside from the constitutional analysis, Kelli's position was supported by the state's public policy in protecting crime victims.

    Justice Roggensack did not participate. Justice Prosser, joined by Justice Wilcox, dissented on the ground that the majority's analysis creates potentially insoluble difficulties for future cases.

    TPR - Summary Judgment - Substitutions - Notice

    Steven V. v. Kelley H., 2004 WI 47 (filed 28 April 2004)

    Steven V. filed a petition to terminate the parental rights (TPR) of Kelley H. with respect to their son, Alexander. As grounds he relied on Wis. Stat. section 48.415(4), alleging that Kelley had been denied physical placement and visitation by court order for more than one year. Although Kelley requested a jury trial, the court granted partial summary judgment on the issue of unfitness because the facts were undisputed. Following a dispositional hearing, the court terminated Kelley's parental rights. The court of appeals affirmed.

    The supreme court, in an opinion authored by Justice Sykes, also affirmed albeit on different reasoning. First, the court addressed the propriety of summary judgment methodology in TPR cases. It held that "partial summary judgment in the unfitness phase of a TPR case is available where the requirements of the summary judgment statute and the applicable legal standards in Wis. Stat. §§ 48.415 and 48.31 have been met. An order granting partial summary judgment on the issue of parental unfitness where there are no facts in dispute and the applicable legal standards have been satisfied does not violate the parent's statutory right to a jury trial under Wis. Stat. §§ 48.422(4) and 48.31(2), or the parent's constitutional right to procedural due process. Accordingly, partial summary judgment may be granted in the unfitness phase of a TPR case where the moving party establishes that there is no genuine issue as to any material fact regarding the asserted grounds for unfitness under Wis. Stat. § 48.415, and, taking into consideration the heightened burden of proof specified in Wis. Stat. § 48.31(1) and required by due process, the moving party is entitled to judgment as a matter of law. We overrule Walworth County Dep't of Human Servs. v. Elizabeth W., 189 Wis. 2d 432 (Ct. App. 1994), to the extent that it outright prohibited summary judgment in TPR proceedings. The circuit court's use of summary judgment procedure was not error" (¶¶ 5-6).

    The court examined several recently created grounds for terminating parental rights based on court orders that establish unfitness. These statutes evince "the legislature's manifest intent to enable unfitness determinations to conclusively flow from certain existing court orders that satisfy the statutory requirements" (¶ 39). Although Kelley asserted a fundamental privacy interest, her due process rights did not compel a jury trial under these circumstances (¶ 44).

    Second, the court also held that Kelley was not entitled to a new hearing despite the fact that the circuit court failed to inform her, at the initial hearing, of her right under Wis. Stat. section 48.422(5) to a continuance to consult with counsel regarding substitution of judge. The court "withdrew" contrary language in two court of appeals decisions and expressly held that "the circuit court does not have a statutory duty to inform a party in a TPR case of the right to a continuance to consult with counsel about judicial substitution" (¶ 52).

    Chief Justice Abrahamson, joined by Justice Bradley, concurred but asked the legislature and other concerned state agencies to "revisit" the TPR statutes and the criteria for assessing unfitness.

    Justice Prosser dissented because of his concern that the summary judgment procedures, especially as allowed in this case, fatally erode the right to trial by jury.

    Sexually Violent Persons

    Evidence - Prior Acts

    State v. Franklin, 2004 WI 38 (filed 1 April 2004)

    Based on a jury's findings, Franklin was committed as a sexually violent person pursuant to a Wis. Stat. chapter 980 hearing. The court of appeals affirmed the commitment despite Franklin's claim that the trial court erred by admitting other act evidence. The supreme court granted review to "clarify whether § 904.04(2) applies to evidence offered in ch. 980 commitment proceedings to prove that it is substantially probable that the respondent will commit acts of sexual violence in the future" (¶ 1).

    In an opinion authored by Justice Roggensack, the supreme court affirmed. In order to prove that a person is "sexually violent" and thus subject to commitment under chapter 980, the state must demonstrate that the respondent has a mental disorder and that it is substantially probable that he or she will commit acts of sexual violence in the future (¶ 7). After reviewing the case law, the doctrine, and policies that govern the use of other act evidence, the court held that Wis. Stat. section 904.04(2) "is not applicable when evaluating the admissibility of evidence that is offered in a ch. 980 proceeding." The court reasoned that chapter 980's prospective determination - will this person be a danger in the future? - necessarily requires thorough consideration of his or her past history: "To look forward we must necessarily look back" (¶ 18). Scrutinizing the record in this case, the court further held that the state's evidence, particularly that evincing "past uncontrolled behavior" (¶ 22), was relevant and that its probative value was not outweighed by the considerations set forth in section 904.03 (for example, unfair prejudice). In sum, despite the inapplicability of section 904.04(2) in chapter 980 cases, the state's evidence must nonetheless be relevant under section 904.01 and is subject to exclusion under section 904.03.

    Chief Justice Abrahamson, joined by Justice Bradley, concurred, but emphasized threshold relevancy problems posed by the state's evidence in this case. The concurring justices would have found such error to be harmless, however.