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    Top 10 Recent Wisconsin Supreme Court Decisions

    In its 2016-2017 term, the Wisconsin Supreme Court issued decisions in 25 civil cases and 25 criminal cases. Although all those decisions are important to Wisconsin law, below is a sampling of the most notable supreme court decisions from last term. Listed first are civil cases, followed by criminal cases.

    Lisa M. Lawless

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    The Wisconsin Supreme Court issued 50 decisions in its 2016-2017 term,1 25 civil cases2 and 25 criminal cases. Twelve of these decisions were unanimous without concurring or dissenting opinions.3 Some of the decisions4 issued by the court have no majority opinion, instead consisting of a lead opinion joined by two or fewer other justices, along with concurring and dissenting opinions.5

    Lisa M. Lawlesscom Lisa.Lawless huschblackwell Lisa M. Lawless, Indiana 1992, is senior counsel at Husch Blackwell LLP, Milwaukee, and a member of the State Bar of Wisconsin Board of Governors.

    The supreme court’s civil cases in the 2016-2017 term covered a wide variety of topics including taxation, public records, evidence, governmental immunity, vested rights in zoning classifications, easements, liability of tenants on commercial property, statutory copying charges, unemployment compensation, worker’s compensation, conditional-use permits, involuntary commitment, town highway orderc challenges, personal jurisdiction over nonresident corporations, and trade secrets. Nearly 25 percent of the court’s criminal-case decisions related to the Fourth Amendment; the rest related to Sixth Amendment-right to counsel issues, ineffective assistance of counsel, sentencing, expungement, Confrontation Clause, double jeopardy, evidentiary issues, ex post facto laws, the right to DNA after conviction, jury bias, and judicial substitution.

    In the author’s view, the 10 cases described below represent some of the most significant Wisconsin Supreme Court decisions from the 2016-2017 term.

    In Brief: Top 10 Recent Wisconsin Supreme Court Decisions

    Click on each case to jump to the full description below.

    CIVIL LAW

    1. Constitutionality of City Prohibition of Weapons on Buses

    Wisconsin Carry Inc. v. City of Madison, 2017 WI 19, 373 Wis. 2d 543, 892 N.W.2d 233

    Issue: May a city prohibit the bringing of knives or firearms on buses consistent with the state concealed-carry statute, Wis. Stat. section 175.60, and Wis. Stat. section 66.0409(2), the statute concerning local regulation of possession, bearing, or transportation of knives and firearms?

    Holding: The local-regulation statute has withdrawn from a city and its governing body and subunits the ability to regulate possession, bearing, or transport of knives or firearms in a manner that is more stringent than state statutes, and the state concealed-carry statute preempts a city’s authority to restrict a licensee’s right to carry concealed weapons on city buses so long as the licensee complies with statutory requirements. The city cannot prohibit carrying any knife or firearm or weapon so long as such carrying is not forbidden by and in compliance with the vehicle transport statute, Wis. Stat. section 167.30.

    2. Constitutionality of Circuit Court’s Appointment of Referee to Perform Judicial Functions

    State ex rel. Universal Processing Servs. of Wis. LLC v. Circuit Court of Milwaukee Cty., 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267

    Issue: Is a circuit court order appointing a referee to decide dispositive motions and other substantive matters, which is subject to erroneous-exercise-of-discretion review by the circuit court, unconstitutional under article VII, section 2 of the Wisconsin Constitution, which vests judicial power in a unified court system, and Wis. Const. article VII, section 8, which establishes the appellate jurisdiction of the circuit courts?

    Holding: An order of reference that gave full authority to hear and decide all motions, including dispositive motions, impermissibly delegated judicial power to the referee. Its provision subjecting the referee’s decisions to review under the erroneous-exercise-of-discretion standard contravened the Wisconsin Constitution, statutes, and rules regarding circuit court and appellate court authority and practice.

    3. Enforceability of Contractual Jury Waiver and Timeliness of Motion to Strike Jury Demand

    Parsons v. Associated Bank-Corp., 2017 WI 37, 374 Wis. 2d 513, 893 N.W2d 212

    Issue: Is a prelitigation jury-waiver provision in a contract enforceable without proof that the parties knowingly and voluntarily agreed to the waiver, and must a motion to strike the jury demand be filed within the time required for assertion of a demand for jury?

    Holding: The Wisconsin Constitution permits waiver of a jury trial in “the manner prescribed by law,” Wis. Const. art. I, § 5, which includes a contractual jury waiver, and such term is enforceable without proof that the waiver was knowing and voluntary. Wisconsin Statutes section 805.01, setting forth the time by which a jury must be demanded, does not impose a deadline for filing a motion to strike a jury demand. 

    4. Application of the Wisconsin Fair Dealership Law to Operators of City Golf Courses

    Benson v. City of Madison, 2017 WI 65, 376 Wis. 2d 35, 897 N.W.2d 16

    Issue: Does the Wisconsin Fair Dealership Law (WFDL), Wis. Stat. chapter 135, apply to a city, and are the relationships between the city and golf professionals operating city golf courses “dealerships” under the WFDL?

    Holding: The WFDL applies to a city, and the relationship between the city and the golf professionals under which the golf pros operated city-owned golf courses, provided golfing services and equipment, and shared a percentage of revenues with the city is a “dealership” as defined by Wis. Stat. section 135.02(3)(a).

    5. Constitutionality of Crime Victims Rights Board as Applied to Judges

    Gabler v. Crime Victims Rights Bd., 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384

    Issue: Are Wis. Stat. sections 950.09 and 950.11, which authorize the Crime Victims Rights Board to conduct disciplinary review of trial judges’ decisions, unconstitutional as a violation of the structural separation of powers under the Wisconsin Constitution?

    Holding: By authorizing the Crimes Victims Rights Board to investigate and adjudicate complaints against judges and issue reprimands and seek equitable relief and forfeitures against judges, sections 950.09 and 950.11 are unconstitutional in that they invade the core judicial powers, and therefore they violate the structural separation of powers.

    CRIMINAL LAW

    6. Admission of Toxicology Report Regarding Cause of Death Without Author’s Testimony

    State v. Mattox, 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256

    Issue: In a case in which a defendant is charged with supplying drugs leading to a fatal overdose, does it violate the defendant’s rights under the Confrontation Clause of the Sixth Amendment for the state to introduce at trial a toxicology report identifying certain drugs in a deceased victim’s system or the testimony of a medical examiner basing a cause-of-death opinion on such report, if the author of the report does not testify and is not otherwise made available for examination by the defendant?

    Holding: The admission and use at trial of a toxicology report without the testimony of the author did not violate the Confrontation Clause because objective indicators indicate the report was not made for an evidentiary purpose; rather, it was conducted as part of the autopsy protocol and not requested by law enforcement, the report was not sworn and consisted only of numerals quantifying substances, the analyst had no knowledge of any allegation of a crime, and the report did not give an opinion on cause of death or any elements of the crime.

    7. Question Inquiring as to Desire to Make a Statement as Interrogation Under the Fifth Amendment

    State v. Harris, 2017 WI 31, 374 Wis. 2d 271, 892 N.W.2d 663

    Issue: Did the state compel a defendant to be a witness against himself in violation of the Fifth Amendment when a police officer asked him whether he wanted to give a statement and the defendant gave an incriminating statement in response?

    Holding: The officer’s question whether the defendant would like to make a statement was diagnostic, not inquisitorial, and under the circumstances was not interrogation by express questioning or its functional equivalent.

    8. Standard for Forfeiture of Right to Counsel Due to Defendant Conduct

    State v. Suriano, 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543

    Issue: Did a defendant forfeit his constitutional right to counsel by refusing to cooperate, constantly complaining, abusing counsel, and causing fear in counsel?

    Holding: A defendant forfeited his right to counsel when he made clear he would not cooperate with his lawyers and he caused three State Public Defender-appointed lawyers to withdraw in rapid succession; it need not be shown that the defendant acted with an intent to delay the proceedings.

    9. Service of Witness Subpoena by Substituted Service in Criminal Proceeding

    State v. Wilson, 2017 WI 63, 376 Wis. 2d 92, 896 N.W.2d 682

    Issue: Do civil procedure statutes, Wis. Stat. sections 805.07(5) and 801.11, provide the requirements for service of a witness subpoena by substituted service in a criminal proceeding or is service of a subpoena governed by Wis. Stat. section 885.03 in that context?

    Holding: Section 885.03 governs service of a witness subpoena in a criminal proceeding; serving a witness by substituted service was proper, without the requirement of reasonable diligence, that is, attempted service by hand delivery.

    10. Search During Traffic Stop

    State v. Floyd, 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560

    Issue: Was a traffic stop for expired registration improperly extended beyond the purpose of the stop when the police officer asked to search the defendant as a safety precaution after requesting that the defendant step out of the car and asking the defendant if he had weapons?

    Holding: Because the request for a search of the defendant related to the officer’s safety and was negligibly burdensome and was part of the mission of the traffic stop, the request to search did not cause an extension of the search, and therefore the defendant’s consent to the search was valid under the Fourth Amendment.

    CIVIL CASES

    Constitutionality of City Prohibition of Weapons on Buses

    Wisconsin Carry Inc. v. City of Madison.6 From time to time, the supreme court hears a case in which regulations adopted on the local level clash with laws of statewide application. Wisconsin Carry is one example. Through its Transit and Parking Commission, the city of Madison adopted a rule in 2005 that prohibited the bringing of weapons, including pistols, rifles, and knives, onto buses it operates as Metro Transit.

    Wisconsin Carry, an advocacy organization, contacted Metro Transit to ask that this rule be amended to harmonize it with the law adopted in 2011 that authorizes Wisconsin residents to carry concealed weapons upon obtaining a license (the “concealed-carry statute”), Wis. Stat. section 175.60. Wisconsin Carry also asserted that Wis. Stat. section 66.0409(2), the “local regulation statute,” deprives the city of authority to enforce the Metro Transit weapon rule.7 

    The right to keep and bear arms is a “fundamental” right protected by the Second Amendment to the U.S. Constitution and by Wis. Const. article I, section 25. Adopted in 1998, article I, section 25 of the state constitution protects the right “to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose.” The concealed-carry statute permits licensees to carry a concealed weapon anywhere in Wisconsin except as provided by the statute. In addition, the vehicle-transport statute specifically excludes handguns and unloaded firearms from its prohibition of carrying weapons in vehicles.8

    The court first held that the Metro Transit weapon rule is subject to the local regulation statute, Wis. Stat. section 66.0409(2). That statute provides that “no political subdivision may enact or enforce an ordinance or adopt a resolution that regulates the ... possession, bearing, [or] transportation ... of any knife or any firearm ... unless the ordinance or resolution is the same as or similar to, and no more stringent than, a state statute.”

    Metro Transit is a subunit of the city of Madison. The court reasoned that the rule applies to the city and any of its subdivisions and to legislative actions taken by those bodies. Thus, the local regulation statute “withdrew from the City’s governing body all authority to legislate on the subjects it identifies,” including the possession, bearing, or transport of knives or firearms unless the legislation is “the same as or similar to, and no more stringent than, a state statute.”9

     The Metro Transit rule prohibited bringing weapons on board buses. That was more “stringent” than the vehicle transport statute, which allows a person to carry a loaded handgun or unloaded firearm in vehicles. The local regulation statute thus withdrew the city’s authority to adopt the weapon rule. In addition, the concealed-carry statute permits licensed persons to carry a concealed weapon “anywhere” in Wisconsin.

    The court held that the statute preempts the Metro Transit rule because the rule conflicts with and defeats the purpose of the statute. The concealed-carry statute’s “evident purpose” is to permit the carrying of concealed weapons “as broadly as possible,” subject to limited exceptions of the statute. The concealed-carry statute “creat[es] a uniform standard for the entire state,” thus allowing persons to move about the state “with confidence they are not violating the law.” The court held that the city may not enforce the Metro Transit weapon rule against concealed-carry licensees who are in compliance with the concealed-carry statute.

    The court also held that the city cannot enforce the rule “to the extent it purports to prohibit carrying any knife or firearm (as defined by the Local Regulation Statute) or weapon (as defined by the Concealed-Carry Statute), so long as such carrying is not forbidden by (and is done in compliance with) the Vehicle Statute, Wis. Stat. § 167.30, the Concealed-Carry Statute, and all other statutes that may from time to time become applicable.”10

    Appointment of Referees to Perform Judicial Functions

    State ex rel. Universal Processing Servs. of Wis. LLC v. Circuit Court of Milwaukee Cty.11 From time to time, Wisconsin circuit courts appoint referees to help resolve discovery issues and assist the court by supervising complex litigation. Although this authority is granted by Wis. Stat. section 805.06, the statute does not advise as to what issues may properly be delegated to a referee or the proper scope of a referee’s authority. In Universal Processing, the supreme court answered those questions in light of the constitutional powers of the courts.

    In Universal Processing, the parties in a commercial case found themselves with various discovery disputes after producing many thousands of pages of documents. The circuit court decided to appoint a referee to the case. The circuit court explained that it had 450 cases on its docket and it would not consume resources dealing with the parties’ discovery disputes. Accordingly, the circuit court appointed a retired circuit court judge as referee. The appointed referee drafted the order of reference, which the circuit court entered before the parties had an opportunity to object.

    The order of reference was not confined to discovery issues; it also granted the referee authority “over nearly all aspects of the case and provided for limited review by the circuit court.” It required the referee to initially hear and decide all motions, including dispositive motions, provided that the referee’s written rulings would be adopted as rulings of the circuit court automatically absent objection, and allowed the referee to certify matters to the circuit court for decision, which could be declined. The circuit court retained the power to set aside the referee’s rulings but only if the ruling in question was based on an “erroneous exercise of discretion.”12

    The parties operated under this broad order of reference for nearly a year without objection. The referee decided various discovery disputes and substantive motions, including a motion to vacate a temporary injunction, summary judgment, and motions in limine. Exceptions were filed with the circuit court on some rulings, most of which the circuit court affirmed. A year into the appointment, one party, Newkirk, asked to brief the propriety of the appointment of the referee; the circuit court denied this request. The Wisconsin Court of Appeals denied Newkirk’s petition for an interlocutory appeal of the summary-judgment and motion-in-limine rulings. Issues concerning the referee appointment were mentioned in the petition, but the appointment was not challenged in the court of appeals.13

    Newkirk filed a petition for supervisory writ with the Wisconsin Supreme Court pursuant to Wis. Stat. section 809.71. Contrary to the statute, the petition was not first filed with the court of appeals and there was no showing of the impracticability of such filing. The supreme court accepted the case but held that a supervisory writ was not proper because it was not first filed in the court of appeals.

    Instead, the supreme court proceeded to review the order of reference under its “superintending authority” over the Wisconsin courts, pursuant to Wis. Const. art. VII, § 3(1). The supreme court reasoned that the validity of the order of reference “is an important issue for Wisconsin courts and the public.”14

    The supreme court first considered whether Newkirk waived the right to object to the order of reference to the referee. Ordinarily litigants should object to such an order “promptly.” However, waiver and forfeiture are rules of “judicial administration,” which the supreme court can disregard in an appropriate case. “[N]otions of waiver, forfeiture, estoppel, and consent should not be dispositive” given that the constitutional limitations of article VII, section 2 of the constitution were at issue. Accordingly, the court went on to decide the merits of the petition.15

    Article VII, section 2 vests the judicial power of the state in the courts. Newkirk argued that the order of reference enabled the referee to “impermissibly wield constitutional ‘judicial power.’” Judicial power is the adjudicative authority of courts to finally decide rights and responsibilities as between individuals. By statute and historically, the circuit courts had the power to appoint referees to assist with limited functions. However, appointment of a referee is for the “exceptional case,” and the power of appointment has limits. “The use of referees serves as a valuable adjunct to the judicial process.” Referees must be court supervised and their functions restricted. Ultimately, the circuit courts bear ultimate responsibility for the work of the courts.16

    The Wisconsin courts have never decided the outer limits the constitution places on the use of referees. Under the constitution, the courts cannot “subdelegate” their judicial functions. The supreme court agreed with federal courts and other state courts that have held that courts are barred from delegating “core judicial powers” – the powers to conduct trials, decide dispositive motions, and determine fundamental rights. Those functions are a “compelling measuring stick” to determine whether the order of reference “impermissibly delegated judicial power to the referee.”

    The supreme court held that the order of reference did impermissibly delegate constitutional judicial power to the referee, prohibiting the circuit court from freely rejecting the referee’s rulings and conducting its own independent inquiry and essentially reducing the circuit court to a reviewing court. The order improperly delegated to the referee “judicial power constitutionally vested in Wisconsin’s unified court system.”

    The supreme court also held that the order of reference was unconstitutional because it provided that the standard of review for the circuit court’s review of the referee’s rulings was erroneous exercise of discretion. This gave the appearance that the circuit court abdicated its responsibility to “exercise independent judgment” and it appeared to grant appellate authority to the circuit court. That was contrary to the Wisconsin Constitution, which limits a circuit court’s appellate jurisdiction to that provided by statute.17 

    As for the proper role of a referee, a referee can “share judicial labor” but it must not allow a referee “to assume the place of the judge.” The supreme court held that reference of discovery disputes to the referee does not run afoul of the Wisconsin Constitution. It further emphasized that appointment of a referee is for the “exceptional case” – it is the exception, not the general rule.18

    The parties in Universal Processing paid $450 per hour for the services of the referee, incurring a total of $45,000 in referee fees. They did not challenge these fees as unreasonable. The supreme court did not need to decide whether the order of referral violated article I, section 9 of the Wisconsin Constitution, which provides that every person is entitled to obtain justice “freely, and without being obligated to purchase it.” On that point, the court cautioned that referee fees could offend the Wisconsin Constitution if they chill advocacy or impose an intolerable burden on litigants.19

    With the order of reference held unconstitutional, the supreme court vacated all referee rulings on dispositive motions and the adopting circuit court orders. The supreme court allowed discovery orders from referee rulings to stand to the extent the parties did not object to them. The court vacated any referee discovery orders or rulings to which a party objected. Finally, the court held that the parties could request judicial substitution on remand under Wis. Stat. section 801.58(7) given that the court reversed rulings of the circuit court and remanded for further proceedings.20

    Enforceability of Contractual Jury Waivers

    Parsons v. Associated Bank-Corp.21 Prelitigation jury waivers are terms sometimes found in commercial contracts. In Parsons, the supreme court accepted review of a court of appeals decision on the enforceability of one such provision.22

    The Parsons’ suit against Associated Bank arose from a failed construction project in Milwaukee for which they had obtained construction financing pursuant to a promissory note with the bank. The complaint demanded trial by jury, and the plaintiffs paid the jury fee. More than one year later, Associated Bank filed a motion to strike the jury demand, citing a prelitigation jury waiver contained in the promissory note.23

    The Parsons argued that the motion to strike was untimely and that the bank had waived its right to object to the jury demand. They also pointed to the lack of Wisconsin law regarding contractual jury waivers and argued that Mrs. Parsons did not sign the promissory note and therefore did not waive her jury-trial right. The Parsons also argued that they had no choice but to sign the promissory note for the construction loan, they were unaware of the jury-trial waiver, and they did not have sufficient time to review the note, and therefore they did not knowingly and freely waive the right to a jury trial.24

    The circuit court rejected these arguments, concluded that the waiver was enforceable, and struck the jury demand. The court noted the contract term was conspicuous: it was set off from the rest of the document by a bold-faced, capitalized title, “WAIVER OF THE JURY TRIAL.” It was unlikely the borrowers overlooked the term, as the note was only two pages long. Further, Wisconsin law presumes a party has knowledge of contract terms and consents to them. The case fell within the scope of the jury-trial waiver as a dispute arising out of the promissory note and the relationship between the Parsons and the bank. The court declined to find the motion to strike untimely, noting the absence of law supporting a finding of waiver by the bank.25

    With the case set for a bench trial, the court of appeals accepted the Parsons’ petition for leave to appeal. The court of appeals reversed. It held that Associated Bank was required to prove that the Parsons understood the scope and nature of the rights given up by the jury-waiver term. The Parsons denied awareness of the term. The court held the term unenforceable given the lack of proof of voluntary and knowing consent.

    In addition, the court held that the bank forfeited the right to object to the jury because the objection was untimely and that it waived that right under Wis. Stat. section 805.01(3). The court of appeals also held that the bank was equitably estopped from making the “belated claim for a court trial.”26

    The supreme court accepted review to determine whether the prelitigation jury-waiver term was enforceable and whether the motion to strike the jury was untimely. Wisconsin Constitution article I, section 5 provides that “a jury trial may be waived by the parties in all cases in the manner prescribed by law.” For example, waiver may occur by not timely making a jury demand under Wis. Stat. section 805.01(2) or by stipulation of the parties. Waiver also occurs if the jury fee is not paid. The court held that a prelitigation jury-waiver contract term “constitutes waiver ‘in the manner prescribed by law.’ Wis. Const. art. I, § 5.” Prescribed “by law” is broader than simply statutes and also includes case law and contract terms.27

    On the enforceability of the term, the supreme court reasoned that Wisconsin public policy favors freedom of contract. Consistent with this longstanding principle, the prelitigation jury-waiver contract term in the promissory note was enforceable. Moreover, the term was unambiguous and conspicuous in the two-page contract. The court held that the bank did not need to offer additional proof that the borrowers “knowingly and voluntarily agreed to this waiver.” Accordingly, the supreme court held that the prelitigation jury waiver in the Parsons’ note was enforceable.28  

    The supreme court also considered whether Associated Bank waited too long to object to the jury demand. Although there is a statutory deadline for demanding a jury, there is no such deadline for objecting to a jury demand. The supreme court held that the circuit court was within its discretion to find the motion to strike timely under the circumstances of the case. The motion was not untimely. The court held that Associated Bank was not equitably estopped from moving to strike the jury. Given the jury-waiver contract term, the Parsons could not reasonably rely on the bank’s seeming acquiescence to the jury demand.29

    Application of Wisconsin Fair Dealership Law to Operators of City Golf Courses

    Benson v. City of Madison.30 The Wisconsin Fair Dealership Law (WFDL) is a comprehensive statutory scheme creating rights and obligations for specified types of business relationships. Before terminating or not renewing a dealership, good cause and an opportunity to cure may be required. In such cases, the first question is typically whether the arrangement between the parties is a “dealership” falling within the WFDL. The supreme court accepted review in Benson to determine whether an agreement between the city of Madison and golf professionals to operate city golf courses was a dealership under the WFDL.31

    Madison owns four public golf courses. It had operating agreements with four golf professionals (“golf pros”) to oversee the clubhouse operations at those courses. The golf pros collected greens fees, hired and managed attendants, supervised golfing, operated the clubhouse and pro shop, sold concessions, and gave lessons. In 2012 the city informed the golf pros that it would not be renewing the agreements. The golf pros filed suit, asserting claims under the WFDL. On motions for summary judgment, the circuit court held that the agreements were not dealerships under the WFDL and dismissed the action. The court of appeals affirmed.32

    The supreme court first held that the WFDL applied to the city of Madison. The statute applies to “persons” who grant a dealership and “persons” includes “corporations.” The city is a municipal corporation. Further, such persons are not excepted from the WFDL.33 The court next considered whether the relationships between the city and the golf pros constituted a dealership under the WFDL. That is a recurring question under the WFDL because the definition of dealership is “both extremely broad and highly nuanced.”34

    A dealership under the WFDL is an agreement under which a person is granted the right to sell or distribute goods or services or use a trademark or logo, advertising, or other commercial symbol, in which there is a community of interest in the business of offering goods or service for sale. There are three general components to this definition: the existence of the agreement, the granting of the specified rights, and the community of interest.35

    Wisconsin Statutes section 135.025(1) provides that it is to be liberally construed and applied to promote its remedial purposes and policies. However, this liberal construction rule does not generally apply to the definition of dealership nor does it apply to relationships that fall outside the WFDL. Rather, it applies once the relationship is held to be a dealership.36

    The supreme court held that the agreements at issue granted the golf pros the right to sell or distribute goods or services. The golf pros sold or distributed a city “service,” the service of providing golf courses for public use. Producing a golf course and opening it to the public for use in exchange for money is a “service” under the WFDL. The city required the golf pros to operate golf clubs and provide rental services to users of the courses. The golf pros provided the carts and golf clubs, and the city and the golf pros shared revenues from these services. The city instituted the service, authorized the golf pros to sell it, and took some or all of the income generated from the service.37 

    Apparently reflecting an attempt to contract out of the WFDL, the agreements between the city and the golf pros specifically provided that the city did not grant the professionals the right to sell or distribute any goods or services or to use the city’s trade name, trademark, logo, advertising, or other commercial symbol. However, under the statute, the parties cannot by contract remove the relationship from the WFDL. Wisconsin Statutes section 135.025(3) provides that the effect of Wis. Stat. chapter 135 “may not be varied by contract or agreement” and any attempt to do so “is void and unenforceable to that extent.” The supreme court held that it is “thus required to reject the City’s attempt to contract around the WFDL.”38

    The supreme court held that there was a “community of interest” between the city and the golf pros. That term is defined as a continuing financial interest between the grantor and the grantee in either the operation of the dealership business or the marketing of the goods and services. Two guideposts for this determination are: 1) a continuing financial interest, that is, a shared financial interest in the operation of the dealership or the marketing of the goods or services; and 2) interdependence, that is, the degree to which the dealer and grantor cooperate, coordinate activities, and share common goals in their business relationship.

    There was a community of interest in the business of selling the city’s services. The golf pros invested substantial resources in the relationship by hiring, training, and paying employees, purchasing all supplies and equipment for the golf carts and golf course, contributing to a marketing plan (paying the city $1,000-$3,500 annually), and maintaining insurance. In addition, the golf pros were required to sell food, beverages, and merchandise, which required obtaining those items and obtaining licenses.39

    The golf pros were paid a retainer to sell the golfing services and they also shared revenue with the city from the cart and golf club services. The operation of the golf courses was a joint undertaking of the golf pros and the city in which they shared in the profitability of the operations. The relationship was lengthy, and the city and the golf pros shared in the duties to maintain a golf course, cooperating and coordinating their activities and sharing common goals. Given the circumstances, the city’s power to terminate, cancel, or not renew the agreement with the golf pros was a “substantial threat to the economic health” of the golf pros.40

    Accordingly, the supreme court held that the relationships between the city of Madison and the golf pros were dealerships under the WFDL. The court also held that the WFDL action was filed within the WFDL’s one-year statute of limitation. The notice-of-claim statute applied to the golf pros’ claims against the city, thus increasing the limitation period by 120 days. The golf pros served notice of claim before filing suit.

    Finally, the supreme court rejected the city’s argument that it is immune from the suit under Wis. Stat. section 893.80(4). Governmental immunity applies only to claims based in tort, and the city did not develop an argument demonstrating that the WFDL claim was based in tort.41

    Constitutionality of Crime Victims Rights Board as to Judges

    Gabler v. Crime Victims Rights Board.42 In the U.S. tripartite system of government, there are three branches of government – legislative, executive, and judicial – each with distinct functions and powers. Under the Wisconsin Constitution, the judicial power is vested in a unified court system. Gabler involved a collision between the three branches of government: a challenge to a statute enacted by the legislature authorizing an executive branch agency to discipline and punish judges. Pursuant to Wis. Stat. chapter 950, the Crime Victims Rights Board (the Board) is an executive-branch entity with authority to pass judgment and impose discipline on a judge’s exercise of core judicial powers. Under Wis. Stat. section 950.09, the Board was authorized “to investigate and adjudicate complaints against judges, issue reprimands against judges, and seek equitable relief and forfeitures through civil actions against judges.”43

    Gabler was an appeal of the Board’s proceedings against Judge William Gabler arising from his handling of the sentencing of a criminal defendant in Eau Claire County. Criminal charges were filed in July 2011 against defendant Beebe for sexual assault of a minor, K.L. The complaint was amended to charge for sexual assault of another minor, K.H. The court severed the charges for trial.

    In a January 2012 trial, Beebe was convicted of sexually assaulting K.L. Trial for the assault of K.H. was set for August 2012. The state asked the court to sentence Beebe immediately after the conviction as to K.L., arguing that the victim’s family was entitled to some finality. Judge Gabler denied the request after weighing the interests of the victim and the defendant.44

    Victims are ensured a “speedy disposition” of their cases by Wis. Stat. section 950.04(1v)(k). Representatives of the state’s Victim Resource Center wrote the court on behalf of K.L. to explain that she wanted closure of the case as soon as possible and the long delay between the trial and the sentencing caused her great stress and anxiety. Judge Gabler responded, explaining his reasoning for the delay in sentencing and his consideration of the various interests. Beebe pleaded no contest to the remaining charges in August 2012 and sentencing occurred in October 2012 on both the January and August convictions.45

    In August 2012, K.L. filed a formal complaint with the Board against Judge Gabler, alleging that the delayed sentencing abridged her speedy-disposition right under Wis. Stat. section 950.04. The Board found probable cause that Judge Gabler violated K.L.’s statutory right to a timely disposition of her matter by postponing Beebe’s sentencing. The Board offered the parties the opportunity to request an evidentiary hearing and challenge its preliminary findings of fact.

    Judge Gabler moved to dismiss the complaint and determination on the ground that the Board’s review of his decisions in the Beebe case intruded upon the judiciary’s core constitutional powers and violated the separation-of-powers doctrine. In the alternative, he requested an evidentiary hearing. The Board denied the motion and issued a final decision two days later. On the speedy-disposition violation, the Board found that the judge’s reasons for delaying the sentencing hearing lacked a factual or legal basis and unreasonably delayed the sentencing, contrary to K.L.’s speedy-disposition rights under Wis. Stat. chapter 950.46 

    Judge Gabler appealed the Board’s determination to the circuit court pursuant to Wis. Stat. chapter 227. The circuit court reversed the decision and remanded with instructions to dismiss the complaint with prejudice. The Board appealed, and the supreme court granted its petition to bypass the court of appeals.47

    The powers of the three branches of government consist of exclusive powers and shared powers. Each branch must not intrude into the exclusive powers of the other branches, and a branch should not abdicate or permit the others to infringe upon its exclusive powers. Any exercise of authority by one branch within the area of another branch’s core authority is unconstitutional. One branch cannot compel a coordinate branch of government to perform functions of judgment and discretion that are delegated to the coordinate branch.48 

    The Board argued that its proceedings against Judge Gabler do not implicate the exclusive judicial power and that the power to remedy violations of crime victims’ rights falls within shared powers of the legislature and judiciary, which power was delegated to the Board, an executive agency. It argued that the review of Judge Gabler’s sentencing neither unduly burdened nor substantially interfered with the judiciary’s constitutional authority.49

    The supreme court disagreed. It concluded that an executive agency acting pursuant to authority conferred by the legislature cannot review a Wisconsin court’s exercise of discretion, declare its application of the law to be erroneous, and sanction the judge for his or her decision. To find otherwise would be to allow the executive agency to substitute its judgment for that of the judge, “effectively imposing an executive veto over discretionary judicial decision-making” and incentivizing the judiciary to make decisions in accordance with the executive branch’s demands so as to avoid rebuke by the quasi-judicial Board.

    The judiciary’s exclusive responsibility to exercise judgment to decide cases and controversies is the most fundamental aspect of judicial power. By issuing a decision concluding that Judge Gabler violated a victim’s constitutional and statutory rights, the Board encroached on the exclusive judicial authority. The Board’s assertion of power to determine whether Judge Gabler’s decision comported with Wisconsin law violated the centuries-old principle that it is the province of the judiciary, not the executive, to say what the law is.50

    The Board had declared that Judge Gabler’s decision-making on sentencing in the Beebe case violated the victim’s constitutional and statutory rights. That was just one of the sanctions available to the Board under Wis. Stat. chapter 950. It also could have financially penalized the judge, assessing a forfeiture.51

    The supreme court held that the Board’s decision violated the structural separation of governmental powers because neither the executive branch nor the legislature may reprimand or otherwise discipline a Wisconsin judge. The Wisconsin Constitution reserves such powers to the supreme court alone.

    Nor may the legislature use the executive branch to threaten any judicial officer with repercussions for exercising constitutional power vested exclusively in the judiciary. By authorizing “executive action against the judiciary, the legislature unconstitutionally conferred power on an executive board to impair, improperly influence, and regulate the judiciary’s exercise of its constitutional duties.” Accordingly, the supreme court voided the Board’s actions against Judge Gabler.

    As for the Crime Victim Rights Board statutes, the supreme court held: “Wis. Stat. § 950.09(2)(a), (2)(c)-(d), and (3) and § 950.11 cannot constitutionally apply to judges because they invade two exclusive aspects of judicial authority: the judicial power vested in the unified court system and the disciplinary function vested in this court.”52

    CRIMINAL CASES

    Admission of Toxicology Reports Regarding Cause of Death

    State v. Mattox.53 With the rapidly growing epidemic of opioid-related overdose deaths throughout Wisconsin, toxicology reports are an important tool to identify the cause of death and the drugs in the deceased person’s system. When a drug dealer is charged with supplying drugs causing death, the type and quantity of drugs found in the victim’s system are of obvious importance.

    In Mattox, the supreme court accepted a certification from the court of appeals to determine whether a criminal defendant’s rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution are violated by the admission of 1) a toxicology report at trial to identify the drugs in the victim’s system or 2) testimony of the medical examiner concerning the cause of death in reliance upon toxicology report results, if the author of the toxicology report does not testify and is not otherwise available for examination by the defendant. There was a conflict between court of appeals decisions on this issue, and thus supreme court guidance was necessary.54 

    The issue in Mattox was whether the admission of a toxicology report and the medical examiner’s related testimony violates a defendant’s confrontation rights. The supreme court considered whether the report is “testimonial” under the primary-purpose test set forth by the U.S. Supreme Court in Ohio v. Clark.55 That test provides that when the statement’s primary purpose is something other than to create an out-of-court substitute for trial testimony, admission of the statement does not implicate the Confrontation Clause.56 

    The U.S. Supreme Court has not decided the issue in Mattox – whether a toxicology report prepared at a medical examiner’s request as part of the autopsy protocol in a drug overdose death constitutes testimony in a homicide prosecution against the dealer who supplied the drug responsible for the fatal overdose.

    In Mattox, the Wisconsin Supreme Court considered the primary-purpose factors of Clark, including the formality of the situation producing the out-of-court statement, whether the statement was given to law enforcement, the age of the declarant, and the context in which the statement was given. Those factors were applied to determine whether the declarant – the analyst who signed the toxicology report – was acting as a witness against defendant Mattox.57

    The toxicology report at issue in Mattox was a routine part of the autopsy protocol in suspected overdose cases. The medical examiner collected biological specimens and sent them to the lab for testing to determine the substances in the decedent’s blood, urine, and tissue. This testing was conducted to inform the medical examiner’s opinion as to the cause of death. The report in Mattox was part of the autopsy protocol; its purpose was not to establish toxicology levels to prove an element of a criminal charge. No charges were pending or contemplated against Mattox when the report was ordered. The purpose of the report was not to substitute for testimony in a criminal prosecution and therefore the report was not testimonial.58

    In addition, the toxicology report was given to individuals who were not law enforcement officers and was not given to law enforcement officers. This made the report much less likely to be testimonial. Further, the report was relatively informal in that it was not sworn or certified. The author of the report created it at the request of the medical examiner, not police officers, to provide the examiner with numerical concentrations of substances in the samples. It was generated to help the medical examiner determine the cause of death, not to help police officers produce evidence for a criminal prosecution.

    Nothing suggested that the declarant knew police officers were investigating the cause of the victim’s death. By statute, the medical examiner has broad, independent discretion to conduct an autopsy for the purpose of determining how a person died if there are unexplained or suspicious circumstances surrounding the death.59 

    Under the circumstances, the primary purpose of the toxicology report was to provide the medical examiner with the results of tests performed on the specimens of an individual who died for unknown reasons. The purpose was not to aid a law enforcement agency in a criminal investigation or to prove the element of a crime. It was not created as a substitute for out-of-court testimony to prove Mattox killed the decedent.60

    The supreme court adopted a “general rule” with respect to the type of toxicology report at issue in Mattox: “When a medical examiner – unilaterally and not in conjunction with law enforcement – requests a toxicology report while performing an autopsy to determine the cause of death, admitting the toxicology report generally will not violate the Confrontation Clause when the toxicology report contains solely a numerical account of the concentration of substances within a decedent’s blood, urine, and tissue.”61

    The primary purpose of toxicology reports generated and used under similar circumstances is not to generate evidence against a defendant in a criminal prosecution but to assist the medical examiner determine the cause of death. Admission of such toxicology reports bears no resemblance to the historical practices that the Confrontation Clause was designed to eliminate. Therefore, such reports generally will not be testimonial and will not trigger confrontation concerns.62

    The state also asked the supreme court to adopt a rule that autopsy reports are likewise not testimonial under the Confrontation Clause. The court declined this request because the medical examiner testified at trial, eliminating any confrontation argument with respect to the autopsy report. Accordingly, a pronouncement on autopsies was not called for by the facts.63

    Question Concerning Desire to Give Statement as Interrogation

    State v. Harris.64 After receiving a call about suspicious sounds coming from a house, Harris was discovered by police attempting to steal copper piping. Harris was taken into custody and placed in a squad car. At that time and without any prompting, Harris began talking about his criminal activities, including sleeping in vacant homes and stealing items to sell. He indicated that was his plan for the copper piping. Harris was not being questioned when he spoke. Harris had not been given the Miranda warning before the statements.65

    Harris was taken to the Kenosha County Jail. Later in the day, a police detective went to the jail to interview Harris. He met Harris in a common area of the jail. The detective asked Harris: “Would you like to give me a statement?” Harris responded: “They caught me man, I got nothing else to say.” The detective did not inform Harris of his Miranda rights before speaking to him.66

    The state charged Harris with burglary, criminal damage to property, and criminal trespass. Harris moved to suppress his “[t]hey caught me” statement. The circuit court reasoned that the detective’s intent was to ask Harris to come to an interview room for an interview. The expected response to his question would have been “yes,” if he was willing to give a statement, or “no,” if he did not want to give a statement.

    The circuit court found no violation of the right to be free from self-incrimination and denied the suppression motion. The court of appeals affirmed, holding that the detective’s question was not reasonably likely to elicit an incriminating response, and thus the communication did not constitute interrogation and Miranda warnings were not required.67

    The supreme court explained that the privilege against self-incrimination protects individuals not only from legal compulsion to testify in court but also from informal compulsion exerted by law enforcement officers during in-custody questioning.

    The privilege “is called to duty whenever the State interrogates a suspect in police custody.” Freedom from compelled self-incrimination is one of the country’s “most cherished principles,” and the courts afford a “generous buffer zone around the central prohibition.” The most important aspect of that buffer is the right to remain silent while in police custody. Police officers are required to formally instruct suspects of their constitutional rights and then conduct themselves accordingly in light of a person’s indication of how he or she elects to preserve or waive them.68

    Harris was in police custody when the detective asked if he wanted to give a statement. The issue therefore was whether that question qualified as an interrogation. Custodial interrogation can be by either express questioning or its functional equivalent. If the question falls into either category, Harris’s statement must be suppressed because it was not preceded by a Miranda warning. Express questioning includes questions that are “designed to elicit incriminatory admissions.” If the information sought by the question has no potential to incriminate the suspect, the question requires no Miranda warnings.69

    The supreme court held that the detective’s question to Harris was not “express questioning” because it sought nothing that would be incriminating. It merely sought a yes-or-no answer as to whether Harris wished to make a statement. It did not seek the statement itself.70  

    The “functional equivalent” of interrogation includes questions the police should know are reasonably likely to elicit an incriminating response. This is viewed from the perspective of the suspect to determine if the officer’s conduct is reasonably likely to elicit a response. Applying this to Harris, the supreme court considered more than just the words spoken by the detective. It also considered the context, to determine if the suspect would understand the officer’s words and actions as reasonably likely to elicit an incriminating response. The detective had not been present at Harris’s arrest, so he was unaware of Harris’s tendency to volunteer information without prompting. Harris was not handcuffed and he was on the main floor of the jail during his interaction with the detective.71

    The supreme court explained that to rise to the level of interrogation, the question “must reflect a measure of compulsion above and beyond that inherent in custody itself.” In addition, the setting also must be considered. The court held that the detective’s question was not the “functional equivalent” of an interrogation. There was no indication the detective intended his question to elicit an incriminating statement.

    Additionally, the setting conveyed a noninquisitorial purpose. The detective and Harris were standing in a common area outside an interview room. A reasonable observer would conclude the detective’s question was “diagnostic in nature” – to determine whether they should go to the interview room or return him to the jail cell. The question did not convey to Harris that he was being asked to immediately provide incriminating information.72 The detective’s question to Harris therefore was not the functional equivalent of an interrogation. The state did not compel Harris to be a witness against himself.73

    Standard for Forfeiture of Right to Counsel

    State v. Suriano.74 In Suriano, the supreme court considered whether defendant Suriano’s actions, which caused three lawyers appointed by the State Public Defender to withdraw in rapid succession, constituted forfeiture of his right to counsel. The court also reviewed Wisconsin’s two-tier express waiver-forfeiture framework for loss of the right to counsel in criminal cases.75

    A criminal defendant is guaranteed the right to counsel by the Sixth Amendment to the U.S. Constitution and article I, section 7 of the Wisconsin Constitution. However, indigent defendants who cannot afford to pay a lawyer do not have a right to a lawyer of their own choice or the right to successive appointments. A defendant who acts in a voluntary and deliberate way that frustrates the orderly and efficient progression of the case forfeits the right to counsel. A defendant can forfeit Sixth Amendment rights through disruptive and defiant behavior.76

    In Wisconsin, there are two situations in which a defendant loses the right to counsel: waiver or forfeiture. Waiver is by knowing, voluntary, and intelligent waiver of the right to counsel. To confirm such waiver, the court must hold a hearing and engage in a colloquy to make sure the defendant’s choice is deliberate, made with awareness of the advantages and disadvantages of waiver and of the seriousness of the charges and the range of possible penalties. In addition, the court must determine whether the defendant is competent to represent himself or herself.77

    Forfeiture of counsel, in contrast, occurs when a defendant’s conduct results in the involuntary loss of counsel by operation of law. The triggering event is when the court becomes convinced that the orderly and efficient progress of the case is being frustrated.

    The supreme court held that Suriano forfeited his right to counsel. He made clear he would not cooperate with his lawyers. His actions caused three public defender-appointed lawyers to withdraw. One testified that Suriano was trying to frustrate the progress of the case and cause delay. Another felt threatened by Suriano and would not meet with him in person. Suriano verbally abused one of his lawyers, admitted so in open court, and declared he would do so again. Although Suriano did not say he wanted to represent himself, his repeated tactics and abusive behavior made clear that he would make it impossible for any lawyer to represent him. The supreme court held that these facts were sufficient to satisfy the forfeiture standard.78

    The supreme court rejected the argument that forfeiture of the right to counsel requires proof that a defendant’s conduct was undertaken with an intent or purpose to delay. This is not a workable standard because the courts cannot read the minds of defendants. Defendants who engage in dilatory tactics do not often disclose the true purpose behind their behavior.

    The courts can observe a defendant’s voluntary actions and determine that they cause delay and frustrate the orderly and efficient progression of the case. A defendant who physically or verbally abuses counsel or refuses to cooperate with a succession of lawyers might not be acting with intent to delay the proceedings. However, such behavior frustrates the progression of the case and such obstruction of the administration of justice triggers forfeiture, regardless whether delay was the defendant’s objective. The supreme court accordingly overruled State v. Coleman79 and any other case requiring that forfeiture of counsel be proved by showing intentional, purposeful delay.

    Certain right-to-counsel warnings are strongly recommended by State v. Cummings80 for forfeiture-of-counsel cases. In Suriano, the supreme court declined to make those warnings mandatory. Although the warnings are strongly recommended for such cases and should be given whenever circumstances allow, they are not mandatory. Given the challenges faced daily by the circuit courts, circumstances might not always permit strict compliance with the recommended warnings. In forfeiture cases, loss of right to counsel occurs by operation of law without the need to ensure the defendant knows he or she is losing the right and regardless whether he or she intends to cause delay.81   

    Service of Subpoenas

    State v. Wilson.82 In Wilson, the supreme court considered the interplay between the statutes governing the service of subpoenas in the civil procedure statutes and Wis. Stat. chapter 885, and whether reasonable diligence is required before substituted service of a witness subpoena in a criminal case.

    Defendant Wilson was charged with possession of cocaine with intent to deliver based on a search that occurred after a stop of his vehicle. He moved to suppress the results of the search on the grounds of lack of consent. Wilson subpoenaed a witness for the suppression hearing but the witness failed to appear. The witness would have supported Wilson’s testimony concerning the circumstances of the stop. Wilson moved to adjourn the hearing and to issue a body attachment.83

    Wilson had served the witness pursuant to Wis. Stat. section 885.03 by leaving the subpoena at the witness’s abode, that is, substituted service. That was the only attempt at serving the witness. The circuit court held that Wilson improperly served the subpoena on the witness, and it declined to adjourn the suppression hearing or issue a body attachment of the witness. The circuit court held that for substituted service there must first be several attempts at service by hand delivery. The court of appeals agreed.84

    The supreme court considered the statutes concerning subpoenas. First, Wis. Stat. section 972.11(1) provides that the rules of evidence and practice in civil cases shall be applicable in all criminal proceedings unless the context of a section or rule “manifestly requires a different construction.” It further provides that “[c]hapters 885 to 895 … shall apply in all criminal proceedings.” Wisconsin Statutes chapter 885 relates to witnesses and oral testimony, and Wis. Stat. section 885.03 specifically sets forth methods for serving a subpoena, including by leaving a copy at the witness’s abode. Prior attempts at personal service are not required under Wis. Stat. section 885.03.85

    The state argued that service of a subpoena is governed by Wis. Stat. sections 805.07 and 801.11, which are part of the rules of civil procedure. Section 805.07 provides that subpoenas may be served pursuant to Wis. Stat. chapter 885 and refers to Wis. Stat. section 801.11(1)(b), which permits substituted service if “with reasonable diligence” the party cannot be served by hand delivery. These rules of civil procedure permit substituted service of a subpoena only if after reasonable diligence the witness cannot be personally served. In a civil case, a subpoena may be left at a witness’s abode only after reasonable diligence in attempting personal service.86

    Identifying an ambiguity, the supreme court noted that Wis. Stat. section 972.11(1) applies both the civil procedure rules and Wis. Stat. chapter 885 in criminal cases. On one hand, the statute points to the civil procedure rules. On the other hand, chapter 885 applies in criminal proceedings, including Wis. Stat. section 885.03, which permits substituted service without a reasonable-diligence requirement.

    Given the conflicting directions, the supreme court reasoned that when a specific statutory provision leads in one direction and a general provision leads in another, the specific statute controls. The supreme court held that because Wis. Stat. section 972.11(1) specifically refers to Wis. Stat. chapter 885, “it is the more specific textual provision.” In contrast, the civil procedure rules are only generally applied to criminal cases.87 

    According to the supreme court, “The plain language of Wis. Stat. § 885.03 sets forth the procedures for serving a subpoena on a witness in a criminal proceeding. It provides only that ‘[a]ny subpoena may be served by any person by exhibiting and reading it to the witness, or by giving the witness a copy thereof, or by leaving such copy at the witness’s abode.’ Wis. Stat. § 885.03.”

    The court reviewed legislative history of the civil and criminal subpoena statutes to confirm this plain meaning. The court noted that when the civil subpoena statutes were amended to incorporate the reasonable-diligence standard, the criminal subpoena statutes remained unchanged. In the 1970s, the legislature enacted Wis. Stat. section 805.07(5), which incorporates Wis. Stat. section 801.11(1)(b) and its reasonable-diligence standard. At that time, the legislature did not alter Wis. Stat. section 885.03. If the legislature intended for Wis. Stat. section 805.07 to apply to criminal proceedings, it could have repealed Wis. Stat. section 885.03 and thus removed the option of substituted service or it could have amended that statute to add a reasonable-diligence requirement. It did neither.88

    In addition, the supreme court cited a concurring opinion in State v. Popenhagen, which noted that the criminal law “has its own subpoena statutes” and that Wis. Stat. section 805.07 “is a civil procedure subpoena statute meant for civil litigants.”89

    The requirements for service of subpoenas therefore differ in criminal and civil cases. Although both the civil procedure and the criminal procedure statutes incorporate Wis. Stat. section 885.03, “they do so differently.”

    In civil proceedings, “Wis. Stat. § 885.03 is modified by Wis. Stat. §§ 805.07 and 801.11 by providing for substituted service premised on a reasonable diligence requirement.” In contrast, in criminal proceedings, “the procedures set forth in Wis. Stat. § 885.03 are unaltered.” Section 885.03 “sets forth three manners of service of a witness subpoena (by exhibiting and reading it to the witness, giving the witness a copy, or by leaving it at the witness’s abode) and no reasonable diligence is mandated.”

    Accordingly, the supreme court “determine[d] that the procedures set forth in Wis. Stat. § 885.03 govern the service of a witness in a criminal proceeding.” The reasonable-diligence step still has a role even in the criminal context. The court noted that although reasonable diligence is not required, “[i]n many circumstances it may appear to be the prudent way to proceed.”90

    Applying this ruling, the supreme court concluded that Wilson properly served the subpoena by substituted service. It reversed the court of appeals and remanded for a continuance of the suppression hearing so that Wilson could present testimony from the witness who failed to appear.91

    Safety Search During Traffic Stop

    State v. Floyd.92 In Floyd, the supreme court considered where to draw the line between a permissible traffic stop and an impermissibly extended stop under the Fourth Amendment. Defendant Floyd was stopped by police because his car registration had been suspended. The stop occurred in an area of the city of Racine known for frequent drug and gang activity. Upon approaching the vehicle, the officer noticed air fresheners near every vent in the vehicle, which can be indications of drug-related activity.

    The officer interacted with Floyd for a few minutes, discovering he had no driver’s license or insurance information and obtaining his state ID card. The officer returned to his car to write citations and he called for a canine unit or a cover squad. Backup arrived while he was preparing the citations.93 

    Five to six minutes into the stop, the officer reestablished contact, asking Floyd to exit the vehicle so the officer could explain the citations. The officer asked Floyd if he had any weapons and asked to perform a search for his safety, and Floyd agreed. In the search the officer found illegal drugs, which led to the charges in the case, including drug possession with intent to deliver.94

    The circuit court denied Floyd’s motion to suppress the drug evidence, and that ruling was affirmed on appeal. The state argued that the search was proper because it occurred during a lawful stop and Floyd consented. Floyd argued that the traffic stop should have ended before the search and therefore he was unlawfully seized during the search, rendering the consent void. The parties agreed that the traffic stop for expired registration was lawful and the officer had authority to ask Floyd to exit his vehicle.95

    The parties parted ways on the permissible duration of the stop, that is, where to draw the line after which the stop is considered to have been impermissibly extended. A motorist is lawfully seized during the proper duration of a stop, but unlawfully seized if the stop lasts longer than necessary to complete its purpose. If Floyd was unlawfully seized when the search was requested, then his consent was constitutionally invalid and the evidence discovered in the search must be suppressed.

    Floyd argued that once the officer finished writing the citations, the U.S. Constitution permitted no additional interaction other than the officer explaining the citations and allowing Floyd to leave. Therefore, under this argument, the officer’s taking it a step further to ask for consent to a search extended the search “with no justifiable basis.” The state argued that the permissible duration of the stop continued after the request for the search. Further, even if the stop was extended, the officer had reasonable suspicion under the circumstances to believe that Floyd was committing or about to commit a crime.96

    A temporary detention of a person during the stop of an automobile constitutes a seizure under the Fourth Amendment. Reasonable suspicion that a driver is violating a traffic law is sufficient to initiate a traffic stop. Traffic stops are meant to be brief interactions with police officers; they must last no longer than required to address the reason for the stop. Authority for the seizure ends when tasks related to the traffic infraction are or should be completed. The purpose of the stop determines its proper scope. Therefore, on review, the supreme court considered what an officer may lawfully do when detaining someone for a suspended registration.97   

    The line between proper and improper duration of a traffic stop is drawn according to “functional considerations” based on the “totality of the circumstances.” Although the length of the stop is considered, that alone is not determinative.

    The supreme court explained: “Generally speaking, an officer is on the proper side of the line so long as the incidents necessary to carry out the purpose of the traffic stop have not been completed, and the officer has not unnecessarily delayed the performance of those incidents.” However, the officer “steps across that line (again speaking generally) when he maintains the seizure after he has completed all the necessary functions attendant on the traffic stop.”98

    Floyd was stopped for a suspended registration. He also had no driver’s license or proof of insurance. The supreme court reasoned that at a minimum these facts authorized the officer to take the time reasonably necessary to draft the appropriate citations and explain them to Floyd. Until these tasks were completed, and so long as the stop was not unnecessarily delayed, the traffic stop was of permissible duration. Because the vehicle was lawfully detained, the officer could order Floyd out of the vehicle consistent with the Fourth Amendment.99

    The purpose of the traffic stop defines its acceptable duration. Also integral to every traffic stop is consideration of officer safety. The danger of traffic stops authorizes an officer to take certain “negligibly burdensome precautions” to complete the purpose of the stop safely. The officer asked Floyd if he had any weapons and then asked if he could perform a search for his safety. Accordingly, the supreme court held that because these questions related to officer safety and were “negligibly burdensome,” “they were part of the traffic stop’s mission, and so did not cause an extension.”100

    The additional time required for the search is irrelevant if Floyd consented to it. Because Floyd consented, the Fourth Amendment did not bar the search so long as it was within the consent. When asked if he could be searched, Floyd responded “yes, go ahead,” an unequivocal consent to search. Requesting permission to search a person who has been lawfully seized does not invalidate the person’s consent. The supreme court concluded that Floyd’s consent was voluntary. There were no threats, intimidation, handcuffing, or drawn weapons, which might affect voluntariness.101

    The supreme court concluded that under these circumstances, the search was “constitutionally sound” because Floyd freely and voluntarily consented to it. The illegal drugs were discovered during that search. Because the officer did not extend the traffic stop, the supreme court declined to address the state’s alternative argument that the officer had reasonable suspicion of drug activity sufficient to support the extension of the stop.102

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    Lisa M. LawlessOften new lawyers depart law school filled with more ambition than experience, armed with specific ideas for their areas of substantive focus. I was one of those. Early in my career, a colleague advised that law practice can take different twists and turns, and we can’t always predict which substantive area will choose us. For litigators, areas of substantive focus certainly evolve to fit the demand, and we’re fortunate if we look back on a career filled with challenges and interesting work.

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    Endnotes

    1 This total excludes decisions issued in attorney discipline and bar admission matters.

    2 In one civil case, the supreme court was equally divided and therefore the court of appeals decision was affirmed. Smith v. Kleynerman, 2017 WI 22, 374 Wis. 2d 1, 892 N.W.2d 734. In another, the supreme court decided review was improvidently granted and dismissed the appeal. Smith v. Anderson, 2017 WI 43, 374 Wis. 2d 715, 893 N.W.2d 790.

    3 See Alan Ball, Wisconsin Supreme Court Statistics, 2016-2017.

    4 Wisconsin State Public Defender, On Point, Wisconsin Supreme Court Issues Unprecedented Number of Nonprecedential Opinions (July 12, 2017).

    5 In civil cases, see, for example, Seifert v. Balink, 2017 WI 2, 372 Wis. 2d 525, 888 N.W.2d 816 (considering federal Daubert standard for expert opinion testimony); Operton v. LIRC, 2017 WI 46, 375 Wis. 2d 1, 894 N.W.2d 426 (substantial fault under unemployment compensation statutes); AllEnergy Corp. v. Trempealeau County Environment & Land Use Committee, 2017 WI 52, 375 Wis. 2d 329, 895 N.W.2d 368 (denial of conditional-use permit); and Milewski v. Town of Dover, 2017 WI 79, 377 Wis. 2d 38, 899 N.W.2d 303 (constitutionality of statutory scheme governing process for challenging tax assessor’s property valuation). Among criminal cases, see, for example, State v. Weber, 2016 WI 96, 372 Wis. 2d 202, 887 N.W.2d 554 (warrantless entry into garage; hot pursuit); State v. Howes, 2017 WI 18, 373 Wis. 2d 468, 893 N.W.2d 812 (warrantless blood draw); State v. Brar, 2017 WI 73, 376 Wis. 2d 685, 898 N.W.2d 499 (warrantless blood draw); and State v. Pal, 2017 WI 44, 374 Wis. 2d 759, 893 N.W.2d 848 (double jeopardy).

    6 2017 WI 19, 373 Wis. 2d 543, 892 N.W.2d 233.

    7 Id. ¶¶ 1, 3.

    8 Id. ¶¶ 8, 9, 11, 12.

    9 Id. ¶¶ 3, 23, 27, 28.

    10 Id. ¶¶ 2, 48, 49, 61, 64, 67, 68, 69.

    11 2017 WI 26, 374 Wis. 2d 26, 892 N.W.2d 267.

    12 Id. ¶¶ 7-10, 12, 14, 16-18, 19-20.

    13 Id. ¶¶ 33, 34, 35.

    14 Id. ¶¶ 36-41, 44-46.

    15 Id. ¶¶ 51-55.

    16 Id. ¶¶ 56, 57, 58, 60-64, 66.

    17 Id. ¶¶ 75, 76, 77, 82, 83-88.

    18 Id. ¶¶ 75, 97, 105.

    19 Id. ¶¶ 19, 91, 94, 97.

    20 Id. ¶¶ 104-110.

    21 2017 WI 37, 374 Wis. 2d 513, 893 N.W2d 212.

    22 Id. ¶ 1.

    23 Id. ¶¶ 5, 6, 7, 8.

    24 Id. ¶¶ 9-10.

    25 Id. ¶¶ 11-12.

    26 Id. ¶¶ 13-16.

    27 Id. ¶¶ 20, 21, 22, 23-26, 28, 30.

    28 Id. ¶¶ 4, 31-37, 45.

    29 Id. ¶¶ 4, 40-43, 45.

    30 2017 WI 65, 376 Wis. 2d 35, 897 N.W.2d 16.

    31 Id. ¶¶ 1, 4, 21, 22.

    32 Id. ¶¶ 2, 3.

    33 Id. ¶¶ 23-26, 32.

    34 Id. ¶ 34 (quoting Baldewein Co. v. Tri-Clover Inc., 2000 WI 20, ¶ 12, 233 Wis. 2d 57, 606 N.W.2d 145).

    35 Id. ¶ 35 (citing Wis. Stat. § 135.02(3)(a).)

    36 Id. ¶ 36.

    37 Id. ¶¶ 38, 39, 40, 43, 44.

    38 Id. ¶¶ 14, 48.

    39 Id. ¶¶ 13, 49-51.

    40 Id. ¶¶ 52-53.

    41 Id. ¶¶ 5, 16, 54, 58-59, 61.

    42 2017 WI 67, 376 Wis. 2d 147, 897 N.W.2d 384.

    43 Id. ¶¶ 1, 2, 11.

    44 Id. ¶¶ 12-14.

    45 Id. ¶¶ 14-17.

    46 Id. ¶¶ 18, 19, 20, 21.

    47 Id. ¶ 23.

    48 Id. ¶¶ 30, 31.

    49 Id. ¶ 33.

    50 Id. ¶¶ 36, 37, 41, 46.

    51 Id. ¶¶ 41-43.

    52 Id. ¶¶ 1, 2, 46, 47, 50.

    53 2017 WI 9, 373 Wis. 2d 122, 890 N.W.2d 256.

    54 Id. ¶¶ 1, 2.

    55 135 S. Ct. 2173 (2015).

    56 Mattox, 2017 WI 9, ¶ 3, 373 Wis. 2d 122.

    57 Id. ¶¶ 31, 32, 33.

    58 Id. ¶ 33.

    59 Id. ¶¶ 34, 35.

    60 Id. ¶ 36.

    61 Id. ¶ 40.

    62 Id.

    63 Id. ¶¶ 38, 39.

    64 2017 WI 31, 374 Wis. 2d 271, 892 N.W.2d 663.

    65 Id. ¶¶ 4, 5.

    66 Id. ¶ 6.

    67 Id. ¶¶ 7, 8.

    68 Id. ¶¶ 11, 12, 13.

    69 Id. ¶¶ 15 16.

    70 Id. ¶ 18.

    71 Id. ¶¶ 19-26.

    72 Id. ¶¶ 30, 32, 33, 34.

    73 Id. ¶¶ 47, 48.

    74 2017 WI 42, 374 Wis. 2d 683, 893 N.W.2d 543.

    75 Id. ¶¶ 1-15, 22-29.

    76 Id. ¶ 21.

    77 Id. ¶¶ 22, 23.

    78 Id. ¶¶ 24, 30, 31.

    79 2002 WI App 100, ¶ 18, 253 Wis. 2d 693, 644 N.W.2d 283.

    80 199 Wis. 2d 721, 546 N.W.2d 406 (1996).

    81 Suriano, 2017 WI 42, ¶¶ 1, 32, 33, 374 Wis. 2d 683.

    82 2017 WI 63, 376 Wis. 2d 92, 896 N.W.2d 682.

    83 Id. ¶¶ 5-7, 9-10, 12.

    84 Id. ¶¶ 10, 13-14, 19.

    85 Id. ¶¶ 25, 26.

    86 Id. ¶¶ 27-29, 32-33.

    87 Id. ¶¶ 30, 34, 35, 36.

    88 Id. ¶¶ 37, 38, 39, 40.

    89 2008 WI 55, ¶¶ 138-139, 141, 309 Wis. 2d 601, 749 N.W.2d 611.

    90 Wilson, 2017 WI 63, ¶¶ 46, 47, 376 Wis. 2d 92.

    91 Id. ¶¶ 3, 54.

    92 2017 WI 78, 377 Wis. 2d 394, 898 N.W.2d 560.

    93 Id. ¶¶ 2-4.

    94 Id. ¶¶ 5-6.

    95 Id. ¶¶ 7, 9, 14, 15.

    96 Id. ¶¶ 15, 16, 17.

    97 Id. ¶¶ 18, 20, 21.

    98 Id. ¶ 22.

    99 Id. ¶¶ 23, 24.

    100 Id. ¶¶ 26, 27, 28.

    101 Id. ¶¶ 29, 30, 32, 33.

    102 Id. ¶ 34.