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    Wisconsin Lawyer
    January 01, 2016

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Traffic Stops – Littering

    State v. Iverson, 2015 WI 101 (filed 25 Nov. 2015)

    HOLDING: A state trooper lawfully stopped a vehicle in which a passenger littered by tossing a cigarette from the passenger-side window.

    SUMMARY: A state trooper stopped the defendant’s vehicle after a passenger tossed a cigarette butt from the passenger-side window. The defendant was cited for drunk driving. The circuit court suppressed evidence of the defendant’s intoxication because the stop was unlawful. In an unpublished opinion, the court of appeals affirmed the circuit court, ruling that a nontraffic forfeiture (littering) cannot be the basis for a lawful stop.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    The supreme court reversed the court of appeals in a majority opinion authored by Justice Ziegler. First, the court held that tossing a cigarette butt from the vehicle constituted littering on a highway, as defined by Wis. Stat. section 287.81. (The court discussed the littering statute in some detail.) Second, the state trooper possessed lawful authority to enforce the littering statute. See Wis. Stat. § 110.07(1) (duties of state patrol). Other statutes empowered the trooper to arrest persons for such violations (see ¶ 42).

    Third, under the Fourth Amendment, “a traffic stop to enforce [the littering statute] is generally reasonable if an officer has probable cause or reasonable suspicion that a violation” has occurred (¶ 55). Finally, the record showed that the trooper did have probable cause; thus, it was unnecessary for the court to consider the lesser reasonable-suspicion standard.

    Justice Abrahamson concurred, joined by Justice A.W. Bradley. The concurrence critiqued the majority’s “abstract” probable-cause analysis, cautioning that it should not be “over read” as “granting law enforcement officers extraordinarily broad powers to stop vehicles without meaningful judicial review” (¶ 81). The concurrence was especially attuned to the problem of pretextual stops.

    Justice R.G. Bradley did not participate in this case.

    John Doe Investigations – Special Prosecutors

    State ex rel. Three Unnamed Petitioners v. Peterson, 2015 WI 103 (filed 2 Dec. 2015)

    HOLDING: The court denied the special prosecutor’s motion for reconsideration and further clarified its mandate from July 2015.

    SUMMARY: This per curiam opinion relates to the “John Doe II” opinion issued by the supreme court on July 16, 2015. See 2015 WI 85, 363 Wis. 2d 1, 866 N.W.2d 165. A synopsis of that decision, which related to John Doe investigations into alleged illegal campaign activity, appeared in the September 2015 issue of the Wisconsin Lawyer. In this latest ruling, the supreme court denied the special prosecutor’s motions to reconsider and to stay its July 16 opinion. The court also clarified that the special prosecutor’s appointment in the John Doe II proceedings was “invalid” (¶ 9).

    The per curiam opinion also addressed several issues the court did not address in July. It held “that the authority of someone who is appointed as a special prosecutor ends at the point in time when a court makes a legal ruling that the appointment was invalid and orders as a matter of law that the individual’s authority is terminated. While four justices of this court reached a legal conclusion as part of the July 16, 2015 writings that Attorney Schmitz’s appointment was invalid, there was not a legal ruling from the court at that juncture and no order that Attorney Schmitz cease acting as a special prosecutor in the John Doe II proceedings. Given Attorney Schmitz’s continuing reliance on Judge Kluka’s appointment orders as the basis for continuing to act as the special prosecutor, we now issue a legal ruling and order that, because of the invalidity of his appointment, Attorney Schmitz must cease taking any actions as the John Doe II special prosecutor as of the date of this opinion and order, except for the actions this court directs below to conclude the John Doe II investigation” (¶ 10).

    Although Attorney Schmitz’s authority as a special prosecutor ended with the filing of this opinion, his previous actions, including the motions filed in this case, “were within his authority at the time” (¶ 15).

    The court then denied the motion to reconsider itself, which effectively argued that the court erred in its July holding that there was to be no further investigation into coordination related to express advocacy (see ¶ 22). The opinion then modified and clarified parts of the July 16 mandate that relate to the return of property and documents seized during the investigation. The court also imposed various duties on Attorney Schmitz to carry out these obligations, which are described in more detail beginning at paragraph 31.

    Justice Abrahamson concurred in part and dissented in part. She concurred because the July 16 majority opinion “is significantly flawed and must be modified” (¶ 42). The “too-little-too-late per curiam” (¶ 54) opinion, however, fails to address “six events” that have occurred since July 16, which Justice Abrahamson set forth in some detail (for example, various statutory revisions) (see ¶¶ 48-50). She also emphasized how dramatically the per curiam opinion modified the July mandate, as when it converted the July “search and destroy” to a “clear and hold mission” with respect to property and evidence seized during the investigation (¶¶ 72-74). Finally, she examined six flaws in the per curiam opinion, which are set forth and explained at paragraphs 83-155.

    Justice A.W. Bradley and Justice R.G. Bradley did not participate. Justice N. Patrick Crooks passed away before the final resolution of this appeal.

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