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    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.

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    Wisconsin LawyerWisconsin Lawyer
    Vol. 80, No. 2, February 2007

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    Appellate Procedure

    Criminal Appeals - No-merit Appeals - Defendant's Access to Presentence Investigation (PSI) Report

    State v. Parent, 2006 WI 132 (filed 21 Dec. 2006)

    This case was before the supreme court on certification from the court of appeals. The court of appeals certified the appeal to the supreme court "to clarify the procedure and factors to be considered when deciding whether a defendant should receive a copy of a PSI report to facilitate his or her response to a no-merit report, and to decide whether motions filed by the State seeking access to a PSI report and disclosure of its contents in the State's brief should be filed in the court of appeals or in circuit court" (¶ 14).

    The defendant was convicted of three felonies after entering guilty pleas to the charges. His appointed appellate counsel filed a no-merit notice of appeal but asked the circuit court to release a copy of the PSI report to the defendant because the defendant believed it would support his position on appeal. The circuit court denied the defendant's request.

    Presentence investigation reports and their confidentiality are addressed in Wis. Stat. section 972.15. The statute provides that, after sentencing, the PSI report shall be confidential and shall not be made available to any person except on a court's specific authorization. An exception to this general rule is found in newly created section 972.15(4m), which provides as follows: "The district attorney and the defendant's attorney are entitled to have and keep a copy of the presentence investigation report. If the defendant is not represented by counsel, the defendant is entitled to view the presentence investigation report but may not keep a copy of the report. A district attorney or defendant's attorney who receives a copy of the report shall keep it confidential. A defendant who views the contents of a presentence investigation report shall keep the information in the report confidential." See 2005 Wis. Act 311. The right of a defendant to view the PSI report is subject to section 972.15(3), which provides that "[t]he [circuit] judge may conceal the identity of any person who provided information in the presentence investigation report."

    Likening a defendant who is subject to the no-merit procedure to a defendant who is unrepresented (see ¶ 41), the supreme court, in a unanimous decision authored by Justice Butler, concluded that "a defendant subject to the no-merit procedure may view a copy of the PSI report but may not keep a copy of it. This opportunity to view the report must be meaningful; the defen-dant should have sufficient time to conduct a thorough review of the document and, if the defendant has made a timely request to view the PSI report, the viewing should occur soon enough to give the defendant time to incorporate material from the PSI report in the defendant's response to the no-merit report" (¶ 43). In a footnote the court specified that "[t]he viewing of the PSI report shall occur under conditions in which the opportunity for copying or disclosure to others is precluded" (¶ 44 n.13).

    The supreme court held that, consistent with the requirements of Wis. Stat. section 972.15(3) dealing with redaction of material from the PSI report by the circuit court, "a defendant subject to a no-merit appeal must notify the circuit court of the defendant's desire to view the PSI report to permit the judge to review the PSI report and to redact as the judge deems appropriate identifying information of persons who provided information for the report and information that may be confidential under other law not discussed here. The circuit court's exercise of discretion is limited under the statute to redacting, as it deems appropriate, identifying information of persons who provided information and information that may be confidential under other applicable law. Under § 972.15(4m) (2005-06), the circuit court may not deny altogether the defendant's request to view a copy of the PSI report" (¶ 45).

    The supreme court remanded the matter to the circuit court for application of the section 972.15(4m) requirements to the defendant's request for access to the PSI report. "On remand, should appointed appellate counsel file the anticipated no-merit report in [the defendant's] appeal, counsel must serve a copy of the record on [the defendant], along with a copy of the no-merit report, pursuant to Wis. Stat. § (Rule) 809.32(1)(a). This copy of the record may not include a copy of the PSI report" (¶ 46).

    Finally, with regard to the second certified question, the supreme court concluded that "under §§ 972.15 and 967.02(7) the attorney general's office should submit any requests to obtain a copy of the PSI report and to disclose its contents in the State's brief to the circuit court [rather than to the court of appeals] for the purposes of a no-merit appeal" (¶ 49).

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    Criminal Procedure

    Search and Seizure - Automobile Stops - Temporary License Plates

    State v. Lord, 2006 WI 122 (filed 9 Nov. 2006)

    The supreme court granted the defendant's petition for review in this case to address whether law enforcement officers may stop an automobile solely on the ground that the vehicle has a temporary license plate. "In other words, the question before us is whether a temporary plate on an automobile, without more, creates reasonable suspicion under Terry v. Ohio, 392 U.S. 1 (1968), and Delaware v. Prouse, 440 U.S. 648 (1979), to justify law enforcement's stop of that vehicle"(¶ 2).

    The state attorney general conceded that the decision of the court of appeals upholding a stop based solely on the display of a temporary license plate conflicts with Delaware v. Prouse (see ¶ 4). Said the supreme court in a per curiam opinion, "we readily accept the State's concession without further briefing or argument because the State's concession on the issue of law is well-settled law requiring no extensive research or explanation. Prouse is clear that `except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment.' Contrary to Prouse, the court of appeals decision enables law enforcement officers to stop any vehicle to verify the registration solely because the vehicle is displaying temporary license plates as set forth in the statute and administrative rules of the state. Accordingly, we summarily reverse the decision of the court of appeals. The result of the reversal is that a law enforcement officer cannot infer wrongful conduct based solely on the display of a temporary license plate" (¶¶ 7-8) (footnotes omitted).

    Justice Prosser filed a concurring opinion.

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    Truth-in-Sentencing - Reconfinement Hearings Following Revocation of Extended Supervision

    State v. Brown, 2006 WI 131 (filed 19 Dec. 2006)

    This case concerns reconfinement hearings held in the circuit court after a defendant's extended supervision has been revoked. Extended supervision is that part of a truth-in-sentencing sentence that is served following a defendant's term of initial confinement in a state prison. Until now the Wisconsin Supreme Court has not articulated any guidelines for circuit judges to consider when determining the amount of reconfinement time to impose.

    In a unanimous decision authored by Justice Crooks, the supreme court indicated that it did not in this opinion intend to set forth a checklist of requirements that must be followed at every reconfinement hearing. Instead it sought to provide guidelines for the circuit courts. "In making reconfinement decisions, we expect that circuit courts will usually consider the nature and severity of the original offense, the client's institutional conduct record, as well as the amount of incarceration necessary to protect the public from the risk of further criminal activity, taking into account the defendant's conduct and the nature of the violation of terms and conditions during extended supervision. The reconfinement period imposed should be the minimum amount that is necessary to protect the public, to prevent depreciation of the seriousness of the offense, and to meet the defendant's rehabilitative needs"(¶ 34) (citations omitted).

    "Other factors that may be relevant and appropriate, depending on the circumstances, for a circuit court to consider in making reconfinement decisions include consideration of the defendant's record, attitude, and capacity for rehabilitation, and the rehabilitative goals to be accomplished by imprisonment for the time period in question in relation to the time left on the violator's original sentence" (¶ 36).

    The supreme court "expect[s] that a circuit court will apply those factors noted herein that are relevant and, aware of the principles set forth in McCleary [v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971)], and again in [State v.] Gallion [2004 WI 42, 270 Wis. 2d 535, 678 N.W.2d 197] will provide, on the record, a reasoned basis for a reconfinement decision. These factors are not a mandatory checklist, and we do not hold that a circuit court must examine each factor on the record in every case. Rather, we list these factors in order to provide guidance for circuit court judges when determining appropriate reconfinement periods, depending on the facts and circumstances of each case" (¶ 37).

    With regard to use of the original sentencing transcript by the judge presiding at the reconfinement hearing, the supreme court noted that "[t]he original sentencing transcript is an important source of information on the defendant that discusses many of the factors that circuit courts should consider when making a reconfinement decision. The original sentencing transcript is readily available for a circuit court to examine, and those portions that are considered by the court to be relevant should be mentioned" (¶ 38).

    The supreme court recognized that "not all of the factors [identified above] will apply in every case. When making reconfinement decisions, it is appropriate for a circuit court to identify the general objectives of greatest importance, and describe the factors and circumstances relevant to those objectives. As this court noted in [State v.] Taylor [2006 WI 22, 289 Wis. 2d 34, 710 N.W.2d 466], we recognize that it is within the circuit court's discretion to decide what weight should be given to a particular factor in a particular case. We are cognizant of the fact that `[h]ow much explanation is necessary... will vary from case to case'" (¶ 39) (citations omitted).

    The defendant argued that the judge presiding at a reconfinement hearing must give due weight deference to the recommendation of the Department of Corrections (DOC) regarding the amount of reconfinement time to be imposed. Said the court, "[w]e agree with the State's position that the circuit court did not owe deference to the DOC. Although Wis. Stat. § 302.113(9)(at) (2003-04) requires the DOC to make a recommendation concerning the period of reconfinement, it does not indicate how the court is to treat that recommendation. Although the DOC's recommendation may be helpful, and should be considered by the circuit court in a reconfinement decision, that recommendation is not entitled to any deference" (¶ 24).

    Lastly, the supreme court urged prosecutors, defense counsel, and defendants themselves to bring to the circuit court's attention any factors and circumstances that may be particularly relevant to the guidelines discussed in this decision (see ¶ 40).

    [Editors' Note: In this case the judge who presided at the reconfinement hearing was not the original sentencing judge. The supreme court noted earlier court of appeals decisions that speak of treating the sentencing hearing and the reconfinement hearing on a "global basis," i.e., treating the reconfinement hearing as a continuum of the original sentencing proceeding. Said the supreme court in the present case, "[t]reating the reconfinement hearing as a continuum of the sentencing hearing is logical when the same judge is presiding over both the original sentencing hearing and the reconfinement hearing. However, in many cases, one judge will preside over the original sentencing and a different judge will do the reconfinement hearing, as was the situation in [the defendant's] case. Under such circumstances, there is no continuum" (¶ 21).]

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    Family Law

    TPR - Default - Right to Counsel

    State v. Shirley E., 2006 WI 129 (filed 13 Dec. 2006)

    This "sad story" involves a child who was born with cocaine in his body and whose parents were "frequently in trouble with the law" (¶ 4). After a circuit court terminated the rights of the mother, Shirley E., to the child, the court of appeals reversed on procedural grounds.

    The supreme court, in a decision authored by Chief Justice Abrahamson, affirmed the court of appeals in an opinion that addressed only the procedural issues, not the merits of the termination. The case presented "the issue of whether a circuit court may deny a parent in a termination of parental rights proceeding the statutory right to counsel when the parent has appeared in the proceeding but failed to personally attend a hearing in contravention of a court order and is found in default as a sanction for disobeying the court order" (¶ 2).

    The supreme court held that the right to counsel as expressed in Wis. Stat. section 48.23 "does not provide a right to counsel only to parents who appear in person" (¶ 41). "The legislature intended to be expansive in its according of legal rights to parents. The absence of an explicit and unambiguous requirement in § 48.23 that a parent appear in person to maintain a right to counsel means that a parent's right to counsel is not contingent upon the parent's personal attendance at the proceeding" (¶ 43).

    Moreover, "case law clearly bars a circuit court from finding a parent in default before taking evidence on the ground alleged for termination of parental rights. Accordingly, the circuit court's finding of default in the present case was erroneous, and the circuit court had no power to bar the parent or parent's counsel from participation at the fact-finding stage. Third, in any event, the circuit court erred in barring counsel from the disposition phase" (¶ 41). As to this third point, "Wisconsin Stat. § 48.427(1), which governs the dispositional phase of a termination of parental rights proceeding, provides that in the dispositional phase, `[a]ny party may present evidence relevant to the issue of disposition, including expert testimony, and may make alternative dispositional recommendations to the court.' This language is not qualified and its directive is clear. By statute, Shirley E. and her counsel had a right to participate at the dispositional phase" (¶ 54).

    Justice Prosser, joined by Justices Roggensack and Wilcox, concurred and wrote separately "to record [their] dissatisfaction with the state of the law and with the result in this case," by which the majority emphasized "form over substance" by remanding the case for hearings on both the disposition and the grounds for termination (¶ 70).

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    Economic Loss Doctrine - Immunity - Intracorporate Conspiracy

    Brew City Dev. Group LLC v. Ferchill Group LLC, 2006 WI 128 (filed 13 Dec. 2006)

    Various groups disputed the purchase and planned redevelopment of the property and buildings of a defunct brewery in downtown Milwaukee. The plaintiff group, Brew City, alleged various contract and tort causes of action against various combinations of defendants. "The circuit court dismissed all of the causes of action. The court of appeals reversed some of these dismissals, modified others, and affirmed the remainder. Both tort and contract claims remain, and the interface between them occasions this review" (¶ 2).

    The petitioner, the Ferchill Group, sought review on the following issues: "(1) [whether] Brew City's malicious injury to business claim under Wis. Stat. § 134.01 (2003-04) is barred by the economic loss doctrine; (2) [whether Ferchill and another individual, Franke] are immune from tortious interference with contract claims by virtue of being members or managers of limited liability companies (LLCs); and (3) [whether] the intracorporate conspiracy doctrine bars Brew City's claims for conspiracy to tortiously interfere with contract and conspiracy to maliciously injure business" (¶ 3).

    The supreme court, in an opinion written by Justice Bradley, affirmed the court of appeals. Addressing the first issue, the supreme court held that the economic loss doctrine did not apply to the malicious injury to business claim for three reasons. "First, § 134.01 claims do not depend on a contract in order to lie. Second, the allegations underlying Brew City's § 134.01 claim are different allegations than those underlying Brew City's breach of contract claims. Finally, the damages Brew City alleges under its breach of contract claims are different from the damages it alleges under the malicious injury claim" (¶ 25). As to the last consideration, "Brew City's claim for relief under § 134.01 states that Brew City `sustained financial and other injuries, including those injuries set forth above [under breach of contract].' This cannot be read to indicate that the only damages Brew City suffered arose out of the alleged breach of contract. Further, the paragraph alleging damages from breach of contract includes damage `to Brew City's business and reputation.' Because such damages are properly pled in tort, not contract, they may serve as the basis for tort liability" (¶ 34).

    As to the second issue, the court held that the allegations in the complaint provided no basis on which two individuals, Franke and Ferchill, could claim immunity. "[T]he allegation that Franke and Ferchill acted individually indicates that they acted other than as member or managers of another entity" (¶ 45). With regard to the third issue, the Ferchill Group argued "that the intracorporate conspiracy doctrine set out in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984), prevents recovery from the defendants for Brew City's conspiracy claims (six and seven) because they are members, officers, or affiliates of Juneau [a partnership]. We disagree on the ground that there is nothing in Brew City's complaint that demands the conclusion that the defendants had the unity of interests required for the intracorporate conspiracy doctrine to apply" (¶ 46).

    Justice Wilcox did not participate in this decision.

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