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    Wisconsin Lawyer
    April 01, 2017

    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

    Sentencing – DNA Surcharge – Single Felony

    State v. Scruggs, 2017 WI 15 (filed 23 Feb. 2017)

    HOLDING: The defendant failed to show that the mandatory imposition of a $250 DNA surcharge, which was discretionary when she committed her single felony offense, is punitive in either intent or effect and thus violative of the ex post facto prohibition.

    SUMMARY: When defendant Scruggs committed a burglary in 2013, the imposition of a $250 DNA surcharge for felonies was discretionary with the court. However, by the time she pleaded guilty to the offense in 2014, the DNA surcharge statute had been amended to provide that the surcharge was mandatory in the amount of $250 per felony conviction and $200 per misdemeanor conviction. The amendment took effect on Jan. 1, 2014, and applied to sentences imposed on or after Jan. 1, 2014, regardless of when the underlying offense occurred. See Wis. Stat. § 973.046(1r). The circuit court imposed the $250 surcharge on Scruggs, concluding that it was required to do so.

    Scruggs appealed to the court of appeals, contending that the imposition of this single $250 DNA surcharge was punitive for ex post facto purposes because it was discretionary when she committed the felony offense but mandatory when she was sentenced. She asserted that the statutory amendment making mandatory the imposition of the $250 DNA surcharge at sentencing constitutes an unconstitutional ex post facto law because it retroactively imposes punishment on people who committed a crime before the amendment’s Jan. 1, 2014, effective date. In a published decision, the court of appeals concluded that Scruggs failed to demonstrate beyond a reasonable doubt that imposing a now mandatory $250 DNA surcharge for a single felony conviction constitutes a punishment, violating the prohibition against ex post facto laws set forth in the U.S. and Wisconsin Constitutions. See 2015 WI App 88.

    In a majority decision authored by Justice Ann Walsh Bradley, the supreme court affirmed the court of appeals. Like the court of appeals, it held that “Scruggs has not met her burden of establishing beyond a reasonable doubt that the amended statute is unconstitutional. She has failed to show that the mandatory imposition of this DNA surcharge, which was discretionary at the time she committed the single felony offense, is punitive in either intent or effect and thus violative of the ex post facto prohibition” (¶ 3).

    In its decision, the supreme court dealt with the decision of the court of appeals in another case that considered a similar challenge to the amended DNA surcharge statute. That case was State v. Radaj, 2015 WI App 50, 363 Wis. 2d 633, 866 N.W.2d 758. Radaj was convicted of four felonies and the circuit court imposed a $1,000 DNA surcharge (a $250 surcharge for each felony).

    The Radaj court held that the 2014 amendment making the DNA surcharge mandatory and giving this change retroactive effect was an ex post facto violation under the facts of that case because the multiple surcharges were punitive in effect (see ¶ 33). The Radaj court left for another day whether the result would have been the same had the defendant been convicted of a single felony carrying only one $250 DNA surcharge.

    That was the issue in the present case. In deciding it, the supreme court did not overrule Radaj but instead distinguished it: “Unlike Radaj, which involved multiple surcharges for multiple felony convictions, this case addresses whether a single DNA surcharge for a single felony conviction is punitive” (¶ 35).

    Justice Abrahamson filed a dissenting opinion.

    DNA – Postconviction Testing

    State v. Denny, 2017 WI 17 (filed 28 Feb. 2017)

    HOLDING: The defendant was not entitled to postconviction DNA testing under Wis. Stat. section 974.07 and thus the court overruled State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, in part.

    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.

    SUMMARY: Denny was convicted of a murder in 1982. After numerous unsuccessful efforts to obtain postconviction relief, he filed a motion for DNA testing under Wis. Stat. section 974.07. The circuit court denied his motion to test various items of evidence, but in a published opinion, the court of appeals reversed and remanded the case and held that Denny was entitled to testing at public or private expense. See 2016 WI App 27.

    The supreme court reversed the court of appeals in an opinion authored by Justice Ziegler. First, the majority opinion provided an overview of Wis. Stat. section 974.07, focusing on the “core of the testing regime” (¶ 48). Second, the court overruled a part of State v. Moran, 2005 WI 115, 284 Wis. 2d 24, 700 N.W.2d 884, which had supported Denny’s claim for testing (see ¶ 60). Specifically, Moran erroneously distinguished between testing at private and at public expense (see ¶ 63).

    The court found it “unlikely” that the “the legislature would set forth detailed requirements regarding whether DNA testing may occur (sub. (7)) and who will pay for that testing (sub. (12)), only for a movant to bypass these provisions and obtain testing at private expense using a subsection of the statute that does not say a word about such testing” (¶ 66). The latter subsection refers to items made available by a district attorney upon request. Stressing the importance of stare decisis, the majority nonetheless found those passages in Moran “unsound in principle” (¶¶ 70-71). It also cautioned that “[t]his opinion should not be read to denigrate the importance of postconviction forensic DNA testing. ‘The advent of DNA technology is one of the most significant scientific advancements of our era,’ and ‘the utility of DNA identification in the criminal justice system is already undisputed’” (¶ 72) (citation omitted).

    Third, the circuit court correctly found that Denny’s claim for testing failed under Wis. Stat. section 974.07(7)(a)2. “The evidence incriminating Denny was, to put it mildly, extensive” (¶ 77).

    Chief Justice Roggensack concurred in the overruling of Moran but dissented on grounds that Denny had met the statutory requirements.

    Justice Abrahamson dissented separately on grounds that the state had violated rules of appellate procedure by briefing an issue without the court’s consent.

    Justice Ann Walsh Bradley, joined by Justice Abrahamson, dissented on grounds that Moran correctly construed the statute such that defendants have the right to test biological evidence at their own expense (see ¶ 141).


    Confrontation – Lab Report

    State v. Mattox, 2019 WI 9 (filed 14 Feb. 2017)

    HOLDING: A medical examiner’s reliance on a toxicology report comported with the defendant’s right of confrontation.

    SUMMARY: The defendant was charged with supplying the heroin that killed an overdose victim. During the bench trial, the state called a medical examiner who testified to the cause of the victim’s death. The witness relied in part on a toxicology report prepared by a St. Louis laboratory that analyzed the victim’s blood and tissue. No one connected with the toxicology report testified at the trial. The trial judge “admitted” (¶ 15) the report and convicted the defendant. The defendant appealed, and the court of appeals certified the case to the supreme court, which accepted it for review.

    In a majority opinion authored by Justice Rebecca G. Bradley, the supreme court affirmed. In an issue of “first impression” (¶ 21), the court held that the toxicology report was not testimonial hearsay under the governing “primary purpose test”: “its primary purpose was to identify the concentration of the tested substances in biological samples sent by the medical examiner as a part of her autopsy to determine the cause of death – not to create a substitute for out-of-court testimony or to gather evidence against Mattox for prosecution” (¶ 37).

    The court considered myriad factors while discussing U.S. Supreme Court precedent, especially Ohio v. Clark, 135 S. Ct. 2173 (2015). Thus, the report’s use at trial did not trigger the defendant’s confrontation right. No issue was raised about the admissibility of the report under the rules of evidence.

    The court declined the state’s request to give a green light “in general” to the use of autopsy and toxicology reports under the confrontation clause (¶ 39). It did, however, prescribe this “general rule”: “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” (¶ 40).

    Justice Abrahamson filed a dissenting opinion that was joined by Justice Ann Walsh Bradley. The dissent surveyed the “disarray” (¶ 46) over the meaning of “testimonial” hearsay in the confrontation cases and criticized the majority opinion for misreading the “primary purpose” precedent (¶ 52); it argued that the “potentially relevant” formulation is most in keeping with Crawford’s progeny (see ¶ 71) and that the majority’s approach is overly narrow.

    Municipal Law

    Madison Transit and Parking Commission Rule Prohibiting Weapons on Public Transit Buses – Validity

    Wisconsin Carry Inc. v. City of Madison, 2017 WI 19 (filed 7 March 2017)

    HOLDINGS: Among the court’s multiple holdings (see second paragraph of this discussion), it concluded that Wisconsin’s concealed-carry statute (Wis. Stat. § 175.60) preempts the city of Madison’s authority to restrict a licensee’s right to carry concealed weapons on the city’s buses so long as the licensee complies with the statute’s requirements.

    SUMMARY: The City of Madison Transit and Parking Commission adopted a rule prohibiting certain conduct on the city’s Metro Transit buses. Among the prohibited conduct is bringing any items of a dangerous nature onto the buses, including “weapons (pistols, rifles, knives or swords) …” (¶ 2). Petitioners Wisconsin Carry Inc. and others contacted Metro Transit and asked that it amend the rule to harmonize it with 2011 Wis. Act 35, which (among other things) authorized Wisconsin residents to carry concealed weapons upon obtaining the required license. Wisconsin Carry also asserted that Wis. Stat. section 66.0409 deprived the city of its authority to enforce the rule’s prohibition of weapons on the city’s buses.

    This statute (hereinafter the Local Regulation Statute) imposes restrictions on certain local regulations and provides in pertinent part 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 declined Wisconsin Carry’s invitation to amend the rule. Wisconsin Carry then filed this lawsuit seeking a declaration that the city of Madison’s authority to enforce the rule has been preempted by state law. The circuit court granted the city’s motion to dismiss and, in a published decision, the court of appeals affirmed. See 2015 WI App 74.

    In a majority decision authored by Justice Kelly, the supreme court reversed the court of appeals. It held that “the Local Regulation Statute, Wis. Stat. § 66.0409, has withdrawn authority from the City to regulate, either through its governing body or its sub-units (and without regard to the label it affixes to its regulation or manner of regulating), the subjects identified in the Local Regulation Statute in a manner that is more stringent than an analogous state statute” (¶ 69).

    The court further held that “the Concealed-Carry Statute, Wis. Stat. § 175.60, preempts the City’s authority to restrict a licensee’s right to carry concealed weapons on the City’s buses so long as the licensee complies with the statute’s requirements” (id.). Finally, the court concluded that “neither the City nor any of its sub-units or employees may 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) … Wis. Stat. § 167.31 [the statute regulating the safe transportation of firearms in vehicles], the Concealed-Carry Statute, and all other statutes that may from time to time become applicable” (id.).

    Justice Ann Walsh Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

    Motor Vehicle Law

    OWI – Withdrawal of Blood from Unconscious Driver – Implied Consent

    State v. Howes, 2017 WI 18 (filed 1 March 2017)

    HOLDING: The blood sample drawn from the unconscious driver after he was arrested for operating while intoxicated (OWI) was admissible in evidence. There was no rationale for this conclusion that garnered support from a majority of the justices.

    SUMMARY: In this prosecution for OWI and driving with a prohibited alcohol concentration (PAC) (both fourth offenses), defendant Howes moved to suppress the results of a warrantless blood draw, which was taken after he was arrested but while he was unconscious. He argued that the deputy who arrested him lacked probable cause to do so and, additionally, that the deputy violated his rights by obtaining a warrantless blood draw.

    The circuit court granted Howes’ motion to suppress. It concluded that the deputy had probable cause to arrest Howes but that the section of Wisconsin’s implied-consent statutes that permits a blood draw from an unconscious individual (Wis. Stat. § 343.305(3)(b)) is unconstitutional, unless exigent circumstances exist. Because the circuit court concluded that no such circumstances existed, it suppressed the report of Howes’ blood-alcohol concentration.

    The state appealed and the court of appeals certified the case to the supreme court to determine whether provisions in Wisconsin’s implied-consent law authorizing a warrantless blood draw from an unconscious driver based on the driver’s implied consent are unconstitutional under the Fourth Amendment to the U.S. Constitution. The supreme court accepted the case for review and reversed the circuit court’s decision suppressing the blood-alcohol evidence.

    There was no majority opinion in this case. The lead opinion was authored by Chief Justice Roggensack. The lead opinion did not reach the constitutional issue raised in the lower courts because it concluded that the deputy had probable cause to arrest the defendant for driving with a PAC, that the deputy did arrest him on that charge before obtaining the blood draw, and that based on the totality of circumstances, the deputy’s warrantless search was permissible under the Fourth Amendment to the U.S. Constitution and Wis. Const. article I, section 11, under the exigent-circumstances doctrine that relates to the risk of destruction of evidence (here the dissipation of alcohol from the defendant’s bloodstream).

    “Stated more fully, under the totality of circumstances presented herein, which included a seriously injured, unconscious person, who was being subjected to medical treatments for his injuries and who had 0.02 percent as his PAC threshold, a reasonable officer could have concluded that further delay in drawing Howes’ blood would have led to the destruction of evidence through the dissipation and dilution of alcohol in Howes’ bloodstream” (¶ 31).

    The lead opinion also noted that the deputy was delayed in getting to the hospital because of his duties at the accident scene, more than one hour passed before the deputy formulated probable cause to arrest the defendant and requested hospital personnel to draw the blood, the formulation of probable cause was not completed until the deputy got to the hospital and secured additional evidence from witnesses there, and there was uncertainty about the deputy’s ability to obtain a blood draw in the future given the defendant’s serious injuries.

    Justice Gableman, joined by Justice Ziegler, agreed that the blood draw from the defendant was a permissible warrantless search under the Fourth Amendment and concurred in the mandate of the court. However, rather than addressing this case as one of exigent circumstances, Justice Gableman wrote separately to reach the constitutional issue certified by the court of appeals.

    He concluded that “[n]o warrant is required in order to administer the tests to which a driver has impliedly consented, even if the driver is found unconscious…. I cannot conclude that Howes has met his burden to prove beyond a reasonable doubt that the unconscious-driver provisions of the [implied consent] statute are facially unconstitutional…” (¶ 85).

    Justice Abrahamson, joined by Justice Ann Walsh Bradley, dissented. With respect to the constitutionality of the implied-consent law’s unconscious-driver provision, they agreed with the circuit court that no consent in a constitutional sense can be given when the driver is unconscious and incapable of giving or withdrawing consent (see ¶ 93). This dissent further concluded that exigent circumstances did not render the warrantless blood draw constitutionally permissible (see ¶ 134).

    Justice Kelly filed an opinion joining Chief Justice Roggensack’s lead opinion in its entirety as well as in the mandate of the court reversing the circuit court’s suppression order. He also joined that part of Justice Abrahamson’s dissent that dealt with the constitutionality of the unconscious-driver provision of the implied-consent law.

    Public Records Law

    Immigration Detainer Forms – Exemption From Disclosure

    Voces De La Frontera Inc. v. Clarke, 2017 WI 16 (filed 24 Feb. 2017)

    HOLDING: I-247 immigration detainer forms issued by U.S. Immigration and Customs Enforcement (ICE) are exempt from disclosure under Wisconsin’s public records law.

    SUMMARY: Voces De La Frontera filed a petition for a writ of mandamus seeking to compel the Milwaukee County Sheriff to produce what are known as I-247 forms, which Voces had requested under the public records law. I-247 forms are requests by the federal government to a state or local entity to hold an individual for a period of time not to exceed 48 hours after the individual is released from state custody.

    The I-247 forms at issue in this case were sent to the Sheriff by ICE and contain immigration-related information about certain individuals held at the Milwaukee County Jail. The circuit court granted the writ of mandamus requiring the Sheriff to provide unredacted versions of the I-247 forms to Voces. In a published decision, the court of appeals affirmed. See 2016 WI App 39.

    In a majority opinion authored by Chief Justice Roggensack, the supreme court reversed the court of appeals. It concluded that I-247 forms are statutorily exempt from disclosure according to Wisconsin’s public records law. “Stated more fully, under Wis. Stat. §§ 19.36(1)-(2), any record specifically exempted from disclosure pursuant to federal law also is exempt from disclosure under Wisconsin law. Federal regulation 8 C.F.R. § 236.6 (2013) precludes release of any information pertaining to individuals detained in a state or local facility and I-247 forms contain only such information. Consequently, read together, Wis. Stat. §§ 19.36(1)-(2) and 8 C.F.R. § 236.6 exempt I-247 forms from release under Wisconsin public records law” (¶ 3).

    The majority noted that its opinion “does not curb the presumption of openness that Wisconsin public records law so carefully protects. An overarching purpose of 8 C.F.R. § 236.6 is to channel requests for federal records through federal law; namely the Freedom of Information Act (FOIA). After all, the federal government is in a better position to determine whether there are privacy and safety risks innate in releasing records that it created” (¶ 40) (citation omitted).

    Justice Ann Walsh Bradley filed a dissenting opinion that was joined in by Justice Abrahamson.

    Justice Ziegler did not participate in this case.

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