The Wisconsin Supreme Court issued 56 decisions in its 2018-19 term, 36 civil cases and 20 criminal cases.1 Seventeen of these decisions were unanimous without concurring or dissenting opinions. Two of the court’s decisions had no majority opinion, instead consisting of a lead opinion joined by two or fewer other justices, along with concurrences and dissenting opinions. There were fewer such decisions this past term compared to the 2017-18 term. The supreme court overruled supreme court opinions in two cases this term, and in several decisions it overruled court of appeals opinions.
The civil cases that are the focus of this article related to constitutional challenges to state statutes,2 administrative agency authority, Wisconsin Consumer Act requirements and remedies, arbitration, and pleadings.3 Other subjects of the supreme court’s civil decisions included termination of parental rights, grandparent visitation,4 taxation, wage and hour law, legal malpractice, notice of claims, constructive trusts, legal malpractice, arbitration, land use including fencing disputes, municipal annexation, conditional use permits, county numbering schemes, and cemeteries, and statutes including the borrowing statute, the Uniform Fiduciaries Act, and the Communications Decency Act.
Of the criminal cases, 29 percent related to sentencing or pleas, 19 percent to the Sixth Amendment, and 19 percent to the Fourth Amendment, with the remainder relating to the Fifth Amendment and due process, probation, burglary statutes, juvenile proceedings, jury instructions, and habeas corpus.
In the author’s view, the 10 cases described below represent some of the most significant Wisconsin Supreme Court decisions from the 2018-19 term.
In Brief: Top 10 Recent Wisconsin Supreme Court Decisions
Click on each link to drop to the full summary below.
1. Constitutionality of Enactment of Extraordinary Session Legislation
League of Women Voters of Wisconsinv. Evers, 2019 WI 75, 387 Wis. 2d 511, 929 N.W.2d 209
Issue: Did the legislature’s enactment of the December 2018 “extraordinary session” legislation comport with the Wisconsin Constitution?
Holding: The extraordinary session was constitutional because the legislature met “as provided by law,” under Wis. Stat. section 13.02, pursuant to a work schedule adopted by a joint resolution under the statutory procedures.
2. DNR Authority to Amend Pier Permits
Myers v. Wisconsin Department of Natural Resources,2019 WI 5, 385 Wis. 2d 176, 922 N.W.2d 47
Issue: Does the Department of Natural Resources (DNR) have authority to unilaterally amend a pier permit after the pier is placed?
Holding: The DNR only has those powers conferred by statute, and the statutes do not authorize the DNR to unilaterally amend a permit after the pier is placed.
3. Wisconsin Consumer Act Notice of Right to Cure Requirement
Security Finance v. Kirsch, 2019 WI 42, 386 Wis. 2d 388, 926 N.W.2d 167
Issue: Is filing suit without providing a required notice of right to cure default a violation of Wis. Stat. section 427.104(1)(g) (harassing communications) or (1)(j) (enforcing a right that does not exist)?
Holding: Filing suit without proper notice of cure is a procedural deficiency that can result in dismissal of the action, but it does not violate Wis. Stat. section 427.104 because it is not harassing communications and the creditor has the right to enforce a valid and binding loan agreement.
4. Order Denying Arbitration is Final Order for Appeal
L.G. v. Aurora Residential Alternatives Inc., 2019 WI 79, 387 Wis. 2d 724, 929 N.W.2d 590
Issue: Is an order denying a motion to compel arbitration immediately appealable under Wis. Stat. section 808.03(1) as a final order in a special proceeding, determining all matters in that proceeding?
Holding: Whether the arbitration motion is filed as a separate petition or as a motion in a pending action, an order denying arbitration concludes all matters in a “special proceeding” (that is, the arbitration motion) and is immediately appealable as of right under Wis. Stat. section 808.03(1).
5. Failure to Comply with Notice-of-Claim Statute as Affirmative Defense
Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary District, 2019 WI 43, 386 Wis. 2d 425, 926 N.W.2d 184
Issue: Is noncompliance with the notice-of-claim statute, Wis. Stat. section 893.80, an affirmative defense that must be asserted in a responsive pleading or it is waived?
Holding: Noncompliance with the notice-of-claim statute is an affirmative defense that “shall” be pleaded in a responsive pleading or it is waived (Wis. Stat. sections 802.02(3), 802.06(2)), and it is not one of the enumerated defenses that alternatively can be made by motion.
6. Warrant Requirements for GPS Tracker Placed on Vehicles
State v. Pinder, 2018 WI 106, 384 Wis. 2d 416, 919 N.W.2d 568
Issue: Is an order for a global positioning system (GPS) tracker subject to the requirements and limitations of Wis. Stat. chapter 968?
Holding: A GPS tracker order does not fall within chapter 968 because it does not direct the seizure of “property” existing at the time of issuance and data is generated by the tracker after the warrant is issued. However, such a warrant is subject to the Warrant Clause of the Fourth Amendment.
7. Standard for Involuntary Medication to Restore Competency for Trial
State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165
Issue: Is an order for involuntary medication of a mentally ill criminal defendant to restore competency to stand trial pursuant to Wis. Stat. section 971.14 unconstitutional as a violation of the individual’s due-process rights to avoid unwanted administration of drugs?
Holding: In Sell v. United States, the U.S. Supreme Court set forth a four-factor test under which the state may administer antipsychotic drugs involuntarily to a mentally ill criminal defendant to restore competency to stand trial. Wis. Stat. section 971.14 is unconstitutional because it requires the issuance of an involuntary medication order without requiring proof of all the Sell factors.
8. Test for Suppression of Evidence Under Brady
State v. Wayerski, 2019 WI 11, 385 Wis. 2d 344, 922 N.W.2d 468
Issue: Does the state avoid a finding of “suppression” of exculpatory or impeaching evidence for purposes of determining a Brady violation by showing that 1) the information was not in the state’s “exclusive possession and control,” 2) defense counsel could have obtained the information through “reasonable diligence,” or 3) it was not an “intolerable burden” on the defense to obtain the evidence himself?
Holding: Suppression is the nondisclosure of evidence by the prosecutor and the prosecutor’s state of mind or passivity is irrelevant to a Brady violation. The court overruled case law holding that “exclusive possession and control,” “reasonable diligence,” or “intolerable burden” are relevant to this analysis, because those are not elements of proving suppression under Brady and improperly shift the focus from the state’s obligation to turn over favorable evidence to whether the defense should or could have obtained the withheld evidence on its own.
9. Application of Miranda in John Doe Proceedings
State v. Hanson, 2019 WI 63, 387 Wis. 2d 233, 928 N.W.2d 607
Issue: Are Miranda warnings required to be given to a witness testifying at a John Doe proceeding?
Holding: Miranda warnings are not required to be given in a John Doe proceeding because it does not involve custodial interrogation by law enforcement but rather an in-court proceeding convened and managed by a judge.
10. Burden of Proving Timeliness of Habeas Corpus Petition
State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, 387 Wis. 2d 50, 928 N.W.2d 480
Issue: For a petition for habeas corpus filed with the court of appeals, is the petition required to allege timeliness of the petition when the petitioner delayed filing the petition by several years?
Holding: A petition for habeas corpus under Wis. Stat. section 809.51 is not required to plead timeliness, there is no deadline for filing, and the respondent has the burden of proving unreasonable and prejudicial delay to establish a defense of laches to the petition.
Constitutionality of Enactment of Extraordinary Session Legislation
League of Women Voters of Wis. v. Evers.5 In League of Women Voters, the supreme court decided whether the enactment of the December 2018 “extraordinary session” legislation comported with the Wisconsin Constitution. The League of Women Voters of Wisconsin (hereinafter League) argued that extraordinary sessions are unconstitutional6 and therefore all legislation passed in the December 2018 extraordinary session is void along with the Senate confirmation of 82 gubernatorial appointees. The Wisconsin Legislature argued that the extraordinary session was lawful under the Wisconsin Constitution and Wis. Stat. section 13.02.7
In January 2019, the League filed an action challenging the extraordinary session laws and the gubernatorial appointments, arguing that the legislation was unconstitutional and unenforceable because it was enacted in a constitutionally “invalid session.” The circuit court enjoined the legislation and denied the legislature’s motion to stay pending appeal. The legislature appealed, and the League filed a petition to bypass. The supreme court granted bypass, received accelerated briefing, and heard oral argument in May 2019.8
Wisconsin Constitution article IV, section 11 authorizes two times the legislature may meet: 1) when “provided by law” and 2) when the governor calls a “special session.” Governor Scott Walker did not call a special session, so the question is whether the extraordinary session was “provided by law.” The court reasoned that the Wisconsin Constitution directs the legislature to meet at times “provided by law,” meaning provided by the Wisconsin Statutes. The constitution authorizes the legislature to lawfully meet when a statute so provides.
Wis. Stat. section 13.02 is the “sole statute” addressing when the legislature can meet. It gives the legislature the discretion to construct its schedule, including preserving times for it to meet. It authorizes the legislature’s joint committee on legislative organization to set the schedule for the biennial term. The schedule must be submitted as a joint resolution and it specifies when the legislature will meet. The plain language of Wis. Stat. section 13.02(3), directing a committee to develop a “work schedule,” satisfies the “provided by law” requirement of Wis. Const. article IV, section 11. The fact that the statute does not use the terminology “extraordinary” or “regular” sessions “does not make an extraordinary session unconstitutional.”9
The schedule for the 2017-18 biennial session established the start and end dates for the session period and “specifically contemplated the convening of an extraordinary session, which occurred within the biennial session.” The biennial session period began on Jan. 3, 2017, and ended at noon on Jan. 7, 2019. The work schedule was adopted in a joint resolution (JR1). JR1 provided that every day of the biennial session period not reserved as a day for an organizational meeting or part of a scheduled floor period “is available to extend a scheduled floorperiod, convene an extraordinary session, or take senate action on appointments permitted by joint rule 81.”
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In December 2018, acting pursuant to JR1, the legislature convened an extraordinary session and passed three acts that Gov. Walker later signed into law: 2017 Wis. Act 368, 2017 Wis. Act 369, and 2017 Wis. Act 370. In this session, the Senate also confirmed 82 appointees Gov. Walker had nominated. The legislature was in session continually during the biennial session until a “sine die adjournment,” which occurs when the legislature ceases to exist and its officers are no longer officers. The constitution does not mandate any procedural rules regarding enactment of legislation. That is the legislature’s prerogative.10
Discussing the separation of powers, the court explained that the judiciary may not interfere with the legislature’s execution of its constitutional duties. “ ‘[T]his court will not, under separation of powers concepts and affording the comity and respect due a co-equal branch of state government, interfere with the conduct of legislative affairs.’ ” When the legislative process is completed, a court may in a proper case consider whether the power of the legislature has been constitutionally exercised or whether the law enacted in the exercise of its power is valid. However, the process by which laws are enacted “falls beyond the powers of judicial review.” The court lacks jurisdiction to enjoin the legislative process. Although it is the duty of the judiciary to interpret the law and to strike down any law that is unconstitutional, the judiciary has no authority to interfere with the right of the legislature to enact law.11
How and when the legislature meets and the descriptive titles assigned to those meetings and their operating procedures “constitute parts of the legislative process with which the judicial branch ‘has no jurisdiction or right’ to interfere.” The courts may not “intermeddle” in purely internal legislative proceedings.
Generally the court will not determine whether internal operating rules or procedural statutes have been complied with in the course of legislative enactments. This “springs from the principles of ‘separation of powers and comity.’” The legislature’s adherence to rules or statutes prescribing procedure is a matter entirely within legislative control and discretion and is not subject to judicial review “unless the legislative procedure is mandated by the constitution.” If the legislature fails to follow its self-adopted procedural rules in enacting legislation, and such rules are not mandated by the Wisconsin Constitution, “courts will not intervene to declare the legislation invalid.”12
The judiciary serves as a “check” on legislative action only to the extent necessary to ensure the legislature complies with the constitution. Thus, the court’s task was limited to deciding whether the legislature acted in accordance with the Wisconsin Constitution. The December 2018 extraordinary session was “constitutional” because the legislature met as “provided by law,” that is, Wis. Stat. section 13.02(3). The constitution affords the legislature “absolute discretion to determine the rules of its own proceedings.” And the terminology the legislature uses to accomplish the legislative process is “squarely” its “prerogative.” In ruling the extraordinary session unconstitutional, enjoining enforcement of the acts, and vacating the 82 appointments, “[t]he circuit court invaded the province of the Legislature.”13
DNR’s Authority to Amend Pier Permits
Myers v. Wisconsin Dep’t of Natural Resources.14 In Myers v. Wisconsin Department of Natural Resources, the supreme court considered whether the Department of Natural Resources (DNR) has authority to unilaterally amend a pier permit after placement of the pier. In 2001, the DNR granted Terrie and Philip Myers (hereinafter Myers) a permit to build a pier at their property on Lake Superior. The DNR included language in the permit providing that the permit “ ‘can be amended or rescinded if the structure becomes a material obstruction to navigation or becomes detrimental to the public interest’ (‘Condition 1’).” Condition 1 was intended to protect against unexpected effects on neighboring properties relating to “sand accumulation or beach starvation.”15
Within three months after the permit was issued, the pier construction was completed. More than 10 years later, after complaints, the DNR investigated and asked Myers to substantially modify the pier. Myers declined, and after notice and an informational hearing the DNR issued a permit amendment requiring Myers to significantly change the pier. The amended permit was issued 14 years after the original permit. Myers declined to comply with the permit amendment and filed for judicial review under Wis. Stat. chapter 227. The court denied the petition, finding the DNR had the authority to issue an amendment to the pier permit.16
Myers challenged the DNR’s authority to unilaterally amend the permit. The court reaffirmed that it no longer defers to administrative agencies’ conclusions of law. Because the case questioned the scope of the DNR’s power, the court “independently decide[s]” the extent of the DNR’s authority provided by the statute. “When a determination of the scope of an agency’s power is central to resolution of the controversy, as in this case, we independently decide the extent of the agency-authority that the statute provides.” Further, the issues involve statutory interpretation, which is reviewed de novo.17
The court decided whether the DNR “had authority to unilaterally amend the Myers’ permit 14 years after their pier was placed.” First, the court held that the DNR could not reserve to itself the authority to amend the permit in Condition 1 without statutory authorization to do so. The Wisconsin Court of Appeals shifted the burden to Myers to cite law indicating that the DNR was unable to reserve to itself that authority.
The supreme court rejected this approach. It held that the power must be conferred by statute: “It is important to remember that administrative agencies are creatures of the legislature. An administrative agency has only those powers expressly conferred or necessarily implied by the statutory provisions under which it operates.” Any “reasonable doubt” as to an agency’s “implied powers” must be resolved “against the agency.”18
The supreme court also held that the DNR had no statutory authorization to amend the permit. The statute allows the DNR to promulgate rules limiting the issuance of permits and allows the agency to establish “reasonable conditions” to implement section 30.12(3m)(c)1.-3. Section 30.12(3m)(c) provides that the DNR “shall” issue a permit for a structure if it “finds that all of the following requirements are met”: that it will not materially obstruct navigation, it will not be detrimental to the public interest, and it will not materially reduce the flood flow capacity of a stream.
The DNR argued that Condition 1 is a reasonable condition to implement these criteria. The DNR read the statute to impose a requirement that a permit “continuously satisfy the [statutory] criteria.” Thus, the DNR argued, if a permit ever fails to satisfy all three criteria, the DNR may amend or rescind the permit pursuant to Condition 1.19
The supreme court held that Wis. Stat. chapter 30 provides “no support” for the argument that a pier permit carries with it an ongoing requirement to satisfy the statutory criteria. Rather, the statute “explicitly uses the past tense ‘met’ when it lists the requirements for granting a permit.” This signifies “that the conditions must be fulfilled before the permit is granted.” The statute contains no language requiring a permit to “continuously satisfy” the statutory criteria, and the court declined to “read such language into the statute.” The DNR also argued that “the entire tenor ” and “ spirit ” of Wis. Stat. chapter 30 suggest that a permit includes a requirement to continuously satisfy the criteria of Wis. Stat. § 30.12(3m)(c)1.-3.20
The DNR also argued that Wis. Stat. section 30.2095(2) gave it authority to amend Myers’ permit. That statute provides that the DNR may, for “good cause” “modify or rescind” any permit issued under Wis. Stat. sections 30.01-.29 “before its expiration.” The court considered whether the permit was “akin to a building permit” or rather a permit “governing possession” and when, if at all, it expired. Myers argued their permit was “akin to a building permit” and expired by its terms three years after issuance. The DNR argued that the permit never expired because it was completed within the three-year term and that the permit controls “ongoing maintenance and use” of the pier even after its placement.21
The court held that a permit issued under Wis. Stat. section 30.12 “is akin to a building permit.” Myers’ permit permitted the construction of a structure within three years “if the structure is not completed before then.” The permit language tracks Wis. Stat. section 30.2095(1)(a), which provides that a permit is void “unless the activity or project is completed” within three years. This expressed the intent that the permit is for the completion of the permitted activity or project, that is, the placement of a pier. “[I]t is clear” that the word “expiration” for the modification of a permit in subsection (2) “is the earlier of the expiration date of the permit or the actual date when pier placement was completed.”22
Under the DNR’s argument, if pier placement is completed within the three-year time period, the permit “never expires.” If that were true, the phrase “before its expiration” would be superfluous because the DNR could modify or rescind a nonvoid permit for good cause at any time. Further, the legislature used the words “void” and “expiration” in the statutes. Those words are construed to have different meanings. If the grantee of a permit cannot complete the project within three years, the grantee can obtain an extension under Wis. Stat. section 30.2095(1)(b) to prevent the permit from becoming void under Wis. Stat. section 30.2095(1)(a). The DNR has a limited right to modify a permit until the earlier of the expiration date or the date of completion of the pier placement.23
A pier permit is akin to a building permit and includes no “additional requirements for ongoing maintenance and use.” Throughout Wis. Stat. chapter 30, pier permits are described in reference to the “placement” of a structure. The dictionary definition of place is “to put in or as if in a particular place or position: set.” Therefore, the placement of a pier “refers to setting a pier in the navigable waters, not the ongoing use of a pier.” On the other hand, when the legislature intends to include the responsibility of “ongoing maintenance,” it specifies that, such as in Wis. Stat. section 30.131, which regulates piers “placed and maintained” by persons other than riparian owners.24
Accordingly, the DNR “lacked authority to amend the Myers’ permit.” The DNR could not reserve to itself the authority to amend the permit, and Wis. Stat. section 30.12(3m)(d)2. did not provide statutory authorization to insert Condition 1 into the permit. Also, since the permit expired, Wis. Stat. section 30.2095 did not provide the DNR authority to modify or rescind the permit for good cause. The DNR did not have the authority to unilaterally amend Myers’ permit.25
Wisconsin Consumer Act Notice of Right to Cure Requirement
Security Fin. v. Kirsch.26 The Wisconsin Consumer Act (WCA) is a statutory scheme, enacted in the 1970s, governing consumer transactions involving the extension of credit for family or household purposes not exceeding $25,000. In Security Finance v. Kirsch, the supreme court granted review to interpret the notice-of-right-to-cure statutes and Wis. Stat. section 427.104.
Security Finance extended a loan to Kirsch, who defaulted. Security sued Kirsch in small-claims court. Kirsch counterclaimed, alleging that the complaint was deficient and no notice of cure was provided. Kirsch included a claim for abusive debt-collection conduct under Wis. Stat. section 427.104. Security Finance voluntarily dismissed its action and moved to dismiss the counterclaims, arguing that a notice of cure is a procedural prerequisite to suit and the result of noncompliance would be dismissal of the action. The circuit court agreed, dismissing the counterclaims.27
Chapter 425 of the Wisconsin Statutes establishes a requirement to send a notice of default and right to cure before filing suit against the debtor. Under Wis. Stat. section 425.104, a merchant who believes the customer is in default may give the customer written notice of the default containing specified information. Section 425.105 provides that a merchant “may not accelerate” the maturity of a consumer credit transaction or file suit on the debt unless the merchant believes the customer to be in default, and then only upon expiration of 15 days after giving the notice of right to cure.28
Kirsch appealed the dismissal of his counterclaims, and the Wisconsin Court of Appeals affirmed. The court found there was no violation of the WCA. Kirsch sought review solely on whether the absence of a notice of cure constitutes a violation of Wis. Stat. section 427.104. Potential exposure under that statute is open ended, because the statute permits the recovery of “emotional distress” damages in appropriate situations.29
Accordingly, the supreme court interpreted Wis. Stat. section 427.104 to determine whether Security violated the statute “by commencing an action against [Kirsch] before providing a notice of default and right to cure.” The court began with the language of the statute. Section 427.104(1) prohibits specified abusive conduct in attempting to collect a debt, such as threatening or harassing the customer or seeking to enforce a nonexisting right. It lists identified instances of “egregious behavior.” The court held that the statute “prohibits specific harassing or threatening conduct towards debtors.” The complaint alleged no such conduct.
In addition, Kirsch argued that in filing suit without a notice of cure, Security enforced a “right” it did not have and thus violated Wis. Stat. section 427.104(1)(j). That subsection is commonly asserted by consumers to argue that a technical violation of another WCA provision constitutes enforcing a nonexisting right.30
Kirsch argued that by filing suit without providing proper notice, Security was attempting to enforce a “right” it did not have. The court rejected this argument. When Security filed suit, it had a valid and binding loan agreement that had been defaulted on and money was owed to Security. “In other words, it had the ‘right’ to enforce compliance with the agreement.” The word “right” refers to the rights contained in the loan agreement, and case law holds that a failure to comply with Wis. Stat. chapter 425’s “procedural requirement” to notice does not automatically eliminate a creditor’s ability to enforce a loan agreement and it does not in and of itself constitute a Wis. Stat. section 427.104 violation.31
The notice provision of Wis. Stat. chapter 425 does not provide a penalty for noncompliance arising under any specific WCA provision, other than that an action is not to be filed before notice is properly given. “The WCA statutes provide no other provision entitling this debtor to relief, other than that of dismissal of an improperly filed complaint.” The court noted that “the language of Wis. Stat. §§ 425.104 and 425.105 does not specifically provide a remedy or penalty for a creditor’s failure to comply with either section. While other sections of ch. 425 expressly provide for remedies and penalties arising under Wis. Stat. §§ 425.302 through 425.304, Kirsch does not petition … for review of relief … due to any such sections of ch. 425.”32
Kirsch argued that dismissal is not the “sole consequence” for failing to provide notice. The court applied Beal v. Wyndham Vacation Resorts, a federal district court decision dealing with these issues. Beal held that the requirement of a notice of right to cure is a “procedural hurdle” that must be cleared before a creditor files suit and that the appropriate remedy for a failure to comply with procedural requirements is dismissal of the creditor’s action. The creditor retained the right to payment from the customer regardless of whether the creditor complied with the notice-of-right-to-cure requirement.33
Kirsch relied on Kett to argue that a WCA violation gives rise to a claim under Wis. Stat. section 427.104(1)(j). Kett involved replevin actions filed in the improper venue under the WCA, with judgments obtained and then repossession pursuant to the judgment. Because venue is “jurisdictional” under the WCA, the court in Kett held that judgment in the wrong venue is void at its inception. Enforcing a replevin judgment in that context constitutes a violation of Wis. Stat. section 427.104(1)(j). In Kirsch, the court declined to extend Kett beyond these facts and held that Kett did not apply to Kirsch’s counterclaims.34
The court also held that the failure to comply with the “procedural requirement” of a notice of right to cure “warranted dismissal of Security’s action against Kirsch.” However, such failure did not “disrupt Security’s right to payment from Kirsch.” Although Kirsch would be entitled to dismissal of Security’s action for procedural noncompliance, Security voluntarily dismissed the action, thus providing that result. Kirsch’s counterclaims failed to state a claim for relief and were properly dismissed. The court held that a creditor’s failure to provide notice of cure before filing suit “does not constitute a sufficient basis for relief under ch. 427.”35
Order Denying Arbitration is Final Order for Appeal
L.G. v. Aurora Residential Alternatives Inc.36 It has been an open question in Wisconsin whether, when a party seeks to stay a court action to compel arbitration under an arbitration agreement, but the court denies the arbitration motion, the denial order is immediately appealable as of right. In L.G. v. Aurora Residential Alternatives Inc., the supreme court held that an order denying a motion to stay and compel arbitration is a final order immediately appealable. The denial order starts the clock running for filing an appeal from the order. It also gives assurance that an appeal from an arbitration denial order will be permitted to proceed in the appellate courts.37
L.G. sued Aurora, a residential facility, for damages arising from a sexual assault allegedly committed against her while a resident there. L.G.’s guardian had signed an agreement with Aurora to arbitrate all claims arising from L.G.’s residence at the facility, including tort claims. Aurora moved to stay the action and compel arbitration. The circuit court denied the motion, and L.G. appealed by notice of appeal. The court of appeals dismissed the appeal for lack of jurisdiction because the arbitration denial order was a “non-final order” that did not dispose of all matters in the litigation.38
A final order may be appealed as of right. Thus, appealability depended “entirely” on whether the order was “final” under Wis. Stat. section 808.03(1). If it was, the appeal was timely and should be permitted to proceed. The supreme court explained that finality has two components: 1) whether the order is part of an “action” or instead a “special proceeding,” and 2) whether the order disposed of the entire matter in dispute between the parties in the proceeding.39
Determining whether the order was entered in an action or in a special proceeding will define the “matter in litigation” to determine finality. That was an open question. If the motion represents a special proceeding separate from the merits, the court must identify the disputed matter within that proceeding. The court reasoned that the arbitration statutes, Wis. Stat. chapter 788, provide guidance on the legislature’s intention on treatment of arbitration motions. If a petition is filed to compel arbitration under Wis. Stat. section 788.03, that is a separate proceeding that involves narrow issues relevant to enforcement of the arbitration agreement. If there is a dispute, it is decided in a trial on only those issues. Section 788.03 therefore suggests that a motion to compel arbitration is separate from but related to the parties’ underlying dispute. Further, Wis. Stat. section 788.02 provides for a stay of a pending action to compel arbitration.40
The court held that a motion to stay and compel arbitration is a “special proceeding” separate from the merits action in which it is filed. In its prior term, the court had decided in State v. Scott that a proceeding to determine competency in a criminal case is a special proceeding, which is separate and distinct from the criminal case. The court held that the relationship between a pending lawsuit and an arbitration motion made under Wis. Stat. section 788.02 is “in all material respects the same as that obtaining between the competency proceeding and criminal proceeding at issue in Scott.” The motion to stay and compel arbitration is an issue distinct from the issues presented by the lawsuit, though the two proceedings are “related” or “connected.”41
The final step in the analysis is whether the order denying the motion to compel arbitration finally disposed of the entire matter in litigation in the special proceeding (that is, the arbitration motion). The court concluded that Aurora’s arbitration motion presented no issue to the circuit court outside the parameters of Wis. Stat. section 788.02. The court held that the order denying arbitration disposed of the entire matter in controversy in the Wis. Stat. section 788.02 special proceeding. The order categorically resolves the motion. Further, there is nothing more contemplated for the circuit court to do regarding the arbitration order.42
Failure to Comply with Notice-of-Claim Statute as Affirmative Defense
Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary Dist.43 When is a defense an affirmative defense that is waived if it is not pleaded? Is the failure to comply with the notice-of-claim requirements of Wis. Stat. section 893.80 waived if not raised? In Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary District, the supreme court answered these questions. The country club filed an action for inverse condemnation and unlawful charges against the sanitary district. The circuit court dismissed the claims because the country club did not comply with the Wis. Stat. section 893.80 notice requirements. However, the sanitary district did not raise this as an affirmative defense and raised it for the first time on summary judgment. The country club argued waiver of the defense, while the district argued that compliance with the statute is a prerequisite to suit.44
The district raised the notice-of-claim issue on summary judgment although it did not include it as a defense. The country club argued that the district waived the defense by failing to plead it in its answer. The circuit court dismissed the country club’s action on the ground it failed to comply with the statute. The supreme court overruled Lentz v. Young, which held that a defendant may raise an affirmative defense by motion, on the ground that it is inconsistent with the plain language of the pleading statutes.45
The supreme court determined that noncompliance with the notice-of-claim statute is an affirmative defense rather than a jurisdictional prerequisite to filing suit. The court noted that Wis. Stat. section 802.02(3) provides that affirmative defenses “shall” be pleaded. The list of affirmative defenses in that statute is nonexhaustive. Further, Wis. Stat. section 802.06(2)(a) provides that every defense “shall” be asserted in the responsive pleading, except certain identified defenses that can be made by motion. And Wis. Stat. section 802.06(2) lists defenses that may be made by motion. Failure to serve notice of a claim is not an identified defense in either statute. Because the notice-of-claim issue is not one of the 10 enumerated defenses that may be made by motion, the defense must be raised in a responsive pleading.46
Accordingly the court held that noncompliance with the notice-of-claim statute is an affirmative defense that must be stated in a responsive pleading or it is deemed waived.47
Warrant Requirements for GPS Tracker Placed on Vehicles
State v. Pinder.48 Innumerable high-tech methods currently are available for collecting information. In Pinder, the supreme court considered whether a court order for placement of a global positioning system (GPS) tracker falls within the statutes governing search warrants.
This issue arose in an investigation of burglaries in Mequon. Police officers discovered video surveillance footage of a potential suspect and his car. Investigators identified the suspect as Pinder, a known burglar. The police department applied to the court for an order to covertly place and monitor a GPS tracker on Pinder’s car. The police affidavit indicated there was probable cause to believe the car was being used in burglaries and GPS tracking data would provide evidence of crimes and the location of stolen goods. The circuit court issued an order (the warrant) finding probable cause and permitting the police department to place a GPS tracker on Pinder’s vehicle. The warrant did not specify a deadline for placement of the tracker but ordered that it be removed as soon as practicable, and not later than 60 days from the date of the order.49
Ten days later, the GPS tracker was installed, and within a few days, the tracker sent an alert that the vehicle was at an office complex in Mequon. Police officers responded to the complex to investigate a possible burglary and discovered that a break-in had occurred and wallets and laptops were missing. Police officers stopped Pinder’s vehicle on the highway. Pinder consented to a search, and the officers found burglary tools and stolen items. Pinder was taken into custody and was charged with burglary and possession of burglary tools.50
Pinder moved to suppress the evidence, arguing the order was not a search warrant meeting statutory requirements; the placement of the GPS tracker was a warrantless search; and, even if it was a warrant, it was not proper under Wis. Stat. section 968.15(1) because it was not executed within five days after issuance.
The state argued that the warrant was not subject to Wis. Stat. chapter 968 and was valid under the Warrant Clause of the Fourth Amendment. The circuit court agreed, denying the motion to suppress. A jury found Pinder guilty of burglary and possession of burglary tools.51
Pinder appealed the conviction. The supreme court accepted the case on certification from the court of appeals. The supreme court held: “Because the plain language of the provisions of Chapter 968 neither addresses nor includes such a GPS warrant, we conclude that this Warrant cannot be subject to the statutory limitations and requirements therein.” The court first considered Wis. Stat. section 968.12(1), which describes a search warrant as an order directing law enforcement to conduct a search “for the purpose of seizing designated property or kinds of property.” A seizure of property requires some meaningful interference with possessory rights in property.
The court concluded that “[a] GPS tracking device does not seize property, it creates data.” Information generated from a GPS tracker is not “property” that can be “seized” when the warrant is issued. If the legislature had intended that search warrants be required beyond the seizure of property, it would have used different words. Thus, the court concluded, Wis. Stat. section 968.12 “does not apply to GPS warrants.”52
Under Wis. Stat. section 968.13(1) and (2), a warrant may authorize seizure of “[d]ocuments,” which include books, recordings, tapes, or computer or electronic data. Pinder argued that the GPS warrant authorizes the seizure of “electronic data,” a category of “documents.”
The court disagreed. The GPS electronic data did not exist when the GPS unit was installed, so there was nothing that could be seized at that time. As the court explained: “GPS tracking devices may create data in the future, but that data is not under the control of Pinder. To the extent that a document or data might come into existence eventually because of the tracking, it would be created by the Mequon Police Department and is under the Mequon Police Department’s control, not Pinder’s.” “[D]ocuments” within the statute are those in existence at the time of the warrants. “[E]lectronic data” within the statute would be “more akin to stored documents, music, pictures or videos, not future electronic transmissions from a GPS tracking device” that are in the possession of the police.53
Thus, the court held, the statutes “clearly do not apply to GPS warrants, and therefore GPS warrants are not subject to the requirements of Wis. Stat. §§ 968.15 or 968.17(1).” Because there is no applicable statute, a GPS warrant is issued pursuant to a court’s “inherent authority.”54
The court examined the challenge to the GPS warrant under the Fourth Amendment and Wisconsin Constitution, article I, section 11, which prohibit unreasonable searches and seizures. A search and seizure pursuant to a warrant is “constitutionally valid” if the warrant is “validly issued” and “reasonably executed.” The warrant must be issued by “a neutral, detached magistrate” and supported by a sworn demonstration of probable cause. The magistrate must determine under the totality of the circumstances there is a “fair probability” that evidence of a crime will be found in a particular place.
On appeal, the probable-cause determination is accorded “great deference” and not set aside unless the facts are “clearly insufficient to support a finding of probable cause.” The Fourth Amendment requires a particularized description of the place to be searched and items to be seized. With a GPS warrant, the application must describe the object into which the tracking device will be placed, the circumstances leading to installation of the tracker, and the length of time for which surveillance is requested. The court held that the GPS warrant for Pinder’s car satisfied these requirements and therefore was “validly issued.”55
Finally, a search must be properly executed, that is, conducted reasonably and appropriately limited to the specified scope in the warrant. This review balances the nature and quality of the intrusion on Fourth Amendment rights against the importance of the governmental interests justifying the intrusion. Installation of the GPS tracking device complied with the warrant, and surveillance was completed within 20 days after the warrant was issued, which was “as soon as practicable.” The installation and monitoring of the GPS tracker were reasonable under the circumstances. Accordingly, the execution of the GPS warrant complied with the Fourth Amendment.56
Standard for Involuntary Medication to Restore Competency for Trial
State v. Fitzgerald.57 In State v. Fitzgerald, the supreme court considered the standard for ordering the involuntary medication of a criminal defendant to restore his competency to proceed and the constitutionality of statutory standards for court-ordered involuntary medication.58
The circuit court ordered defendant Raytrell Fitzgerald to be involuntarily medicated pursuant to Wis. Stat. section 971.14 to restore his competency to stand trial on a felony possession-of-a-firearm charge. A competency hearing showed that Fitzgerald suffered from “schizoaffective disorder” and that he lacked substantial mental capacity to understand the proceedings or assist in his defense. Initially, Fitzgerald was ordered to an outpatient competency restoration program, but that program later was deemed clinically inappropriate. The court remanded him to the custody of the Department of Health Services, and a second competency evaluation was performed under Wis. Stat. section 971.14.
The examination found that Fitzgerald had been treated in the past with antipsychotic medication and medication to treat side effects of psychotropic medications. The report opined that if medicated, Fitzgerald would likely be restored to competency within the statutory period, he was incapable of understanding the benefits and risks of medication, and he was not competent to refuse treatment. Finally, the report noted that treatment with antipsychotic medication is known to be effective in treating psychosis.
At a hearing, the examining psychologist testified to these findings and Fitzgerald testified that he did not want to be forced to submit to medication. The circuit court ordered the administration of medication to restore Fitzgerald’s competency, finding he was charged with a serious felony, medication will restore him to competency so he can be tried, and the prescribed medication was appropriate.59
Before Fitzgerald appealed from the involuntary medication order, the Wisconsin Supreme Court decided State v. Scott, in which it held that involuntary medication orders are automatically stayed pending appeal. In Fitzgerald, the circuit court granted a stay of the medication order, but later vacated the stay, expressing uncertainty as to when the automatic stay occurs. Fitzgerald filed a petition for a supervisory writ on this issue, which the court of appeals denied. Fitzgerald thereafter directly appealed the medication order.60
The supreme court granted Fitzgerald’s petition for review of the denial of a supervisory writ and to bypass the court of appeals for review of the medication order. Although the substantive issue became moot during the appeal, the supreme court nevertheless kept the case because it involved a challenge to the constitutionality of a statute and presented an issue of great public importance that is likely to recur.61
The supreme court considered the constitutionality of Wis. Stat. section 971.14 and the constitutionality of the medication order in light of the circuit court’s underlying findings. An involuntary medication order implicates due-process rights, because “individuals have ‘a significant liberty interest in avoiding the unwanted administration of antipsychotic drugs.’”62 “‘[O]nly an “essential” or “overriding” state interest’ can overcome this constitutionally-protected liberty interest.”63
In Sell v. United States, the U.S. Supreme Court determined the circumstances under which the U.S. Constitution permits the government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant with the goal of rendering the defendant competent to stand trial for a serious, but nonviolent, crime. Specifically, the Court held: “[T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests.”64
In Sell the Court established a four-factor test for determining whether such medication is constitutionally appropriate. First, there must be “important governmental interests … at stake.” Second, involuntary medication must significantly further the government’s interest in prosecution, and the medication must be substantially likely to render the defendant competent to stand trial and unlikely to have side effects interfering with the defendant’s ability to assist in his or her defense.
Third, involuntary medication must be necessary to further these interests, that is, it must be shown that the same results cannot be obtained by less intrusive means. Fourth, the court must find that the administration of drugs is medically appropriate and is in the patient’s best medical interests. An order of involuntary medication to restore competency for trial is consistent with due process if it meets this test. The test does not apply if forced medication is warranted for another purpose, such as the individual’s dangerousness or health.65
The Wisconsin Supreme Court held that Wis. Stat. section 971.14(3)(dm) and (4)(b) “are undoubtedly unconstitutional to the extent they require a circuit court to order the involuntary medication of a defendant when the Sell factors have not been met.” Therefore, the court compared the statutory requirements to the Sell factors.
Fitzgerald argued that the statute permits a court to commit a criminal defendant for involuntary treatment to restore competency based on the defendant’s inability to understand, express, or apply the advantages, disadvantages, and alternatives to treatment or medication without requiring the state to satisfy the Sell factors. The state argued that Sell merely requires an involuntary medication order to comply with the factors and is inapplicable to a statute. The court disagreed with the state on this point on the ground that the statute is mandatory.66
Under Wis. Stat. section 971.14, upon the state’s proof by clear and convincing evidence “that the defendant is not competent to refuse medication or treatment, under the standard specified in (3)(dm), the court shall make a determination without a jury and issue an order that defendant is not competent to refuse medication or treatment.” Whoever administers the medication or treatment “shall observe appropriate medical standards.”
Subsection (3)(dm) requires a finding that the defendant needs medication and that he or she is not competent to refuse medication. A defendant is not competent to refuse medication if, because of mental illness, the defendant is 1) incapable of expressing an understanding of the advantages and disadvantages of accepting medication and the alternatives; or 2) substantially incapable of applying an understanding of the advantages, disadvantages, and alternatives to his or her mental illness so as to make an informed choice whether to accept or refuse medication.67
The court compared Wis. Stat. section 971.14 to the Sell factors. The statute does not require a court to find all the Sell factors; it sets a lower standard for an involuntary medication order. The statute does not require the first Sell factor, an important governmental interest in prosecuting an individual accused of a “serious” crime. The statute only requires a crime, “not necessarily a serious one,” and it does not require an individualized review of the circumstances of the case. Section 971.14(3)(dm) does not require weighing the facts to “determine the importance of the government’s interest.”
The statute also does not include the second Sell factor, that the medication is substantially likely to render the defendant competent to stand trial and unlikely to have side effects interfering with his or her ability to assist in defense. The statute also does not encompass the third Sell factor, ruling out less intrusive options.
Finally, the statute does not include the fourth Sell factor, that the medication is “medically appropriate,” meaning “in the patient’s best medical interest.” The statute merely requires that the person administering the medication follow appropriate medical standards after medication is ordered.68
Although the statute does not require the Sell factors and it requires an involuntary medication order on a lesser showing, the state argued that the statute is effectively saved by the fact that in making an involuntary medication order, courts are instructed to use Form CR-206, which includes the Sell factors. The supreme court disagreed, holding that the use of “a judicially-created form cannot save a constitutionally infirm statute.” The statute requires a court to order treatment if the statutory standards are met, regardless of whether the Sell factors are found.69
The court concluded “that § 971.14(3)(dm) and (4)(b) is unconstitutional to the extent it requires circuit courts to order involuntary medications based on the standard set forth in paragraph (3)(dm), which does not comport with Sell.” In requiring an order for involuntary medication based solely on the defendant’s inability to express an understanding of treatment or make an informed choice of whether to accept or refuse it, the statute “result[s] in the unconstitutional deprivation of the defendant’s significant liberty interest in avoiding the unwanted administration of medication.”
“To the extent Wis. Stat. § 971.14(3)(dm) and (4)(b) require circuit courts to order involuntary medication when the Sell factors have not been met, the statute unconstitutionally infringes the individual liberty interest in avoiding the unwanted administration of anti-psychotropic drugs.” Courts may still order “involuntary medication for purposes of restoring a criminal defendant’s competency provided the circuit courts apply the standard set forth in Sell.”70
A court may order involuntary administration of medication if the Sell factors are found. These factors were not found in Fitzgerald. For example, the court did not consider the side effects of the proposed medication or whether they would interfere significantly with Fitzgerald’s ability to assist in his defense. The circuit court also never found that that the administration of drugs was substantially likely to render Fitzgerald competent to stand trial and unlikely to have side effects that would interfere significantly with his ability to assist in his defense. Accordingly, the supreme court vacated the order for involuntary medication.71
Finally, on the supervisory writ issue regarding the automatic stay of an involuntary medication order pending appeal, Fitzgerald argued that the stay begins automatically on entry of an order for involuntary medication. The court was equally divided on that issue, so the court denied the petition for a supervisory writ.72
Court Revisits Test for “Suppression” Under Brady
State v. Wayerski.73 Under Brady v. Maryland, prosecutors have a duty to disclose material favorable evidence to a defendant before trial, and suppression by the state of material evidence favorable to a defendant violates due process. Wisconsin’s formulation of the elements of a Brady violation has evolved. In State v. Wayerski, the supreme court revisited this issue, overruling several prior decisions to realign the elements to “return to the principles of Brady.”74
Wayerski was convicted of 16 felonies based on allegations that over several months he had repeated sexual contact with two minors and exposed them to pornography. He was police chief of the village of Wheeler and he used his position to act as a mentor to the minors, taking them on ride-alongs and spending time alone with them.
At the five-day jury trial, overwhelming evidence of guilt was presented. The evidence included testimony from Clark, Wayerski’s fellow jail inmate. Wayerski admitted aspects of the offenses to Clark, corroborating the testimony of the victims. Wayerski was called to the stand after Clark, but trial counsel did not ask him about his purported confession to Clark. Instead counsel asked Wayerski several questions that he insisted be asked, including questions about Clark’s exposure to the media while in jail. The jury found Wayerski guilty of 16 felony counts, and he was sentenced to 14 years’ confinement plus 16 years’ extended supervision.75
A few days before trial, the prosecutor in Wayerski’s case discovered, by checking the Consolidated Court Automation Program (CCAP) on the Wisconsin Circuit Court Access website, that Clark had pending charges for sex offenses against a minor, and he promptly obtained a copy of the criminal complaint. The prosecutor concluded those charges did not affect the veracity of Clark’s prior statements and therefore did not disclose them or the complaint before trial.
Wayerski filed a postconviction motion asserting that he received ineffective assistance of counsel and that the state committed a Brady violation in not disclosing Clark’s charges. The court rejected the ineffective-assistance-of-counsel claims, finding that asking Wayerski about the confession to Clark would not have changed the outcome because there was overwhelming evidence of guilt. The court also found no Brady violation because the failure to disclose Clark’s charges was harmless error given the compelling evidence of Wayerski’s guilt at trial. Further, Clark had been impeached on his criminal convictions. The court of appeals affirmed the conviction.76
Wayerski petitioned for review on the claim of ineffective assistance of counsel and the Brady-violation claim. Under the Sixth and Fourteenth amendments to the U.S. Constitution, a criminal defendant is guaranteed the right to effective assistance of counsel.
To demonstrate ineffective assistance, a defendant must establish that counsel’s performance was “deficient” and that such performance was “prejudicial.” For the first prong, the defendant must show that counsel’s performance “fell below ‘an objective standard of reasonableness.’” For the second prong, the defendant must show that there is a “reasonable probability” that, but for counsel’s deficient conduct, “the result of the proceeding would have been different.” “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”
Wayerski argued that his counsel performed deficiently because he failed to question him about giving a purported confession to Clark and this was prejudicial because Wayerski’s silence was in effect an admission of guilt.77
The supreme court assumed arguendo that counsel’s performance was deficient. However, there was no resulting prejudice. There was no doubt Wayerski claimed innocence and he denied the victims’ claims on direct and cross-examination. Second, Clark’s credibility already had been called into question when he testified. The jury heard that Clark was convicted of 20 crimes, including some felonies. Questioning of Clark also suggested that he obtained the alleged information about Wayerski from other sources, while he was in jail.
Finally, the evidence against Wayerski was “overwhelming.” There was detailed, consistent testimony from the victims and their parents. Physical evidence from Wayerski’s apartment corroborated the testimony. The court held that even if Wayerski’s counsel was deficient for failure to question him about the purported confession, the deficiency was not prejudicial, and thus there was no ineffective assistance of counsel.78
Wayerski also appealed the denial of his Brady claim for the nondisclosure of Clark’s pending charges. To prove a Brady violation, a defendant must show that the nondisclosed evidence was “favorable” to the defendant, either because it was “exculpatory or impeaching.” The state conceded this element.
The second element is that “the evidence was suppressed by the State, either willfully or inadvertently.” The state argued that it did not suppress this evidence because it was not in the exclusive possession and control of the state, Wayerski’s counsel could have obtained information about Clark’s charges through the exercise of reasonable diligence, and there was no “intolerable burden” on defense counsel to obtain the evidence himself.
The supreme court rejected these arguments because these contentions are not properly part of the determination of suppression and accordingly overruled prior supreme court and court of appeals decisions holding otherwise. Over the years, the Wisconsin courts added additional requirements to prove a Brady claim: that the evidence was in the state’s “exclusive possession” or it would have been an “intolerable burden” for trial counsel to obtain the evidence. The court “renounce[d] and reject[ed]” judicially created limitations on the suppression element of Brady.79
The supreme court rejected the notion that to prove suppression, a defendant must show that the information was in the “exclusive possession and control” of the state. That element had been applied by the Wisconsin courts over time but it is contrary to the principles of Brady. That additional requirement wrongly “shifted the focus from the State’s obligation to turn over favorable evidence to whether the defense should have or could have obtained the withheld evidence.” Further, the court noted, Wisconsin is the only state that applied the exclusive-possession-and-control limitation, and there is no support in the U.S. Supreme Court’s Brady jurisprudence for this additional requirement. The court accordingly overruled Nelson v. State and its progeny.80
The court also rejected the contention that evidence is not considered suppressed under Brady if it is available to the defendant through the exercise of “reasonable diligence.” Although the U.S. Court of Appeals for the Seventh Circuit suggested this is an element of suppression, federal courts generally are divided as to whether reasonable diligence is an element. The U.S. Supreme Court has never ruled on this issue. The Wisconsin Supreme Court “renounce[d] and reject[ed]” the reasonable diligence element. “This court has never analyzed a Brady claim through the lens of ‘reasonable diligence’ and we decline to adopt that requirement now, due to its lack of grounding in Brady or other United States Supreme Court precedent.”81
Finally, the supreme court rejected the suggestion that suppression under Brady requires that it would be an “intolerable burden” for the defense to obtain the information. Although the Wisconsin Court of Appeals has referred to “intolerable burden” at times, neither the U.S. Supreme Court nor the Wisconsin Supreme Court has applied an intolerable burden standard when assessing whether suppression occurred. Accordingly, the supreme court overruled State v. Randall, to the extent it requires an intolerable burden on the defense as a prerequisite to a Brady violation.82
Thus, the supreme court “return[ed] to the original inquiry under Brady: whether there was ‘suppression’ by the prosecution, irrespective of good or bad faith.” The U.S. Supreme Court “has discussed suppression in terms of the nondisclosure of evidence.” Suppression “is nondisclosure or the withholding of evidence from the defense.” The prosecutor’s state of mind or “passivity” is irrelevant to this inquiry. “ ‘[T]he prudent prosecutor will resolve doubtful questions in favor of disclosure.’ ”
Applying this standard, the supreme court held that the prosecutor suppressed evidence of Clark’s pending charges including the criminal complaint. He withheld information about the pending charges he found on CCAP and also the complaint he obtained. The state suppressed evidence in violation of the second element of Brady when it withheld or failed to disclose evidence of Clark’s pending charges including the criminal complaint.83
Finally, the supreme court considered whether the suppressed evidence was “material.” Evidence is material only if there is a reasonable probability that it would have changed the result of the trial had it been disclosed. The court held the suppressed evidence was not material because there was no reasonable probability that the result of the proceedings would have been different had Clark’s pending charges been disclosed.
The state provided compelling evidence of Wayerski’s guilt. There was consistent, detailed testimony from the victims, their parents, the police, and a DNA analyst. All was provided before Clark’s rebuttal testimony about a jailhouse confession from Wayerski. Further, Clark was impeached with 20 prior convictions. Wayerski failed to demonstrate that had Clark’s pending charges been disclosed, the result of the proceeding would have been different. Therefore, it was not material.84
Application of Miranda in John Doe Proceedings
State v. Hanson.85 In State v. Hanson, the supreme court determined whether Miranda warnings must be given to witnesses testifying in John Doe proceedings. In Wisconsin, a John Doe proceeding is used to gather evidence in court to determine if there is a probable cause to believe that a crime was committed. The proceedings are under the scrutiny of the judge, who must act as a neutral and detached magistrate to determine probable cause. To commence a John Doe proceeding, the complainant (a district attorney or anyone else) must demonstrate to the John Doe judge that he or she has reason to believe that a crime has been committed within the jurisdiction. Wis. Stat. section 968.26 gives the judge broad power to determine the extent of the investigation and whether it should be secret.86
The John Doe proceedings at issue here were held in 2012 to investigate the murder of Chad McLean, who disappeared in 1998 and whose body was found about one month later. The case “went cold” until 2009, when Peter Hanson’s estranged wife, K, gave a statement to police officers implicating Hanson in McLean’s murder. In November 2012, Hanson was called as a witness in the John Doe proceeding. Before questioning, the judge read Hanson most, but not all, of the Miranda warnings. Hanson made incriminating statements in his testimony. The John Doe proceeding was closed, and the judge found probable cause and authorized a criminal complaint. Hanson was charged with McLean’s murder. He was tried, convicted, and sentenced to life in prison.
At trial, the state introduced portions of Hanson’s John Doe testimony. Hanson objected on Confrontation Clause and hearsay grounds, which the court overruled. Other witnesses testified that Hanson confessed to McLean’s murder. One witness testified that Hanson told him that he had confessed the murder to K, but she could not testify because she was dead. (She had died the year before the John Doe proceedings.) Another witness testified that Hanson told him that K had given the police a statement about McLean’s murder that was against Hanson’s interests. Hanson did not call any witnesses at trial and chose not to testify.87
Hanson filed a postconviction motion seeking a new trial based on ineffective assistance of trial counsel, arguing counsel failed to object to the admission of Hanson’s John Doe testimony on Miranda grounds. The court denied the motion. Hanson appealed that ruling and the overruling of his evidentiary objections to admission of his John Doe testimony. The court of appeals rejected Hanson’s arguments and affirmed the conviction. The supreme court accepted review.88
The supreme court first considered whether the admission of portions of Hanson’s John Doe testimony violated his Sixth Amendment right to confrontation. The Confrontation Clause guarantees criminal defendants the right to confront witnesses against them. This right is implicated when hearsay is admitted in a criminal trial. The Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted (that is, nonhearsay). The Confrontation Clause only covers hearsay: out-of-court statements offered in evidence to prove the truth of the matter asserted.
Out-of-court statements may be admitted in court for other purposes. “[W]hen the State offers a statement for a proper nonhearsay purpose … it is neither hearsay (evidence law) nor testimonial hearsay (confrontation law).” Accordingly, the court considered whether the testimony was hearsay.89
Hanson testified that Detective Laskowski told him that K was saying that Hanson killed McLean. This contained three layers of out-of-court statements:
Hanson’s statement about what Laskowski told him;
Laskowski’s statement to Hanson about what K told him; and
K’s statement to Laskowski that Hanson killed McLean.
In addition, the court admitted Hanson’s John Doe testimony that he had said in the past that his wife’s death “was the best thing that ever happened” to him.
The parties agreed that the first statement “was an admission by a party opponent” and therefore “not hearsay.”
The second statement, Laskowski’s statement, was not offered for the truth of whether K actually told Laskowski that Hanson killed McLean, but to show Hanson’s belief that K would testify against him. This was offered to “prove consciousness of guilt.” The supreme court accepted the state’s “proffered purpose” for Laskowski’s statement and held that it was not offered to prove the truth of the matter asserted.
The same rationale covers the third statement as well, because whether K actually told Laskowski that Hanson confessed to her is “discrete” from Hanson’s belief that she would testify against him. The legitimate nonhearsay purpose for the statement was to prove Hanson’s consciousness of guilt. Because all the statements were nonhearsay, Hanson’s Sixth Amendment right to confrontation was not violated.90
Hanson also argued that his counsel was ineffective by failing to object to the admission of his John Doe testimony at trial. To establish that a lawyer’s conduct was deficient, a defendant must show that counsel’s performance “fell below ‘an objective standard of reasonableness.’” To be deficient, the law must be “settled” in the area in which counsel was allegedly ineffective. Failure to raise an argument on an unsettled legal question does not meet this standard. Ineffective assistance is limited to situations in which the law or duty is clear so that counsel should know to raise the issue.
On the issue at hand – whether Miranda warnings are required before testimony at a John Doe proceeding – Hanson acknowledged there was no binding authority on point and the law was unsettled. “Accordingly, trial counsel’s failure to object to the introduction of Hanson’s John Doe testimony on the grounds that he was not read all of the Miranda warnings at the John Doe proceeding cannot constitute deficient performance.” Hanson’s ineffective-assistance claim failed as a result.91
Finally, the court determined an issue of first impression: whether Miranda warnings are required at John Doe proceedings. Under Miranda, a statement made by a person in custody in response to interrogation by law enforcement officers must be suppressed if the person was not properly informed of his or her rights. “Custodial” interrogation is questioning initiated by law enforcement officers after a person has been taken into custody. Warnings are not required if the person is not “in custody” or if questioning was not initiated by law enforcement officers.
Miranda warnings are not required for grand jury witnesses in grand jury proceedings (a close analog to John Doe proceedings). Grand jury inquiry is not equivalent to custodial interrogation. Likewise, in John Doe proceedings, the witness is not subject to custodial police interrogation. Rather, the proceeding is convened by a judge. Although prosecutors do ask questions in John Doe proceedings, the proceedings are under the judge’s scrutiny.
The supreme court noted that the Wisconsin criminal jury instructions include special materials for John Doe proceedings, which include questions to confirm the witness understands the Miranda rights, and the Judicial Benchbook also encourages the judge to advise a witness on the record of the right against self-incrimination.
The court held: “A witness at a John Doe proceeding is not subject to custodial interrogation and therefore Miranda warnings are not required.” However, the court “recommend[ed that] a John Doe judge address a witness in accordance” with the special materials in the jury instructions.92
Burden of Proving Timeliness of Habeas Corpus Petition
State ex rel. Lopez-Quintero v. Dittmann.93 In State ex rel. Lopez-Quintero v. Dittmann, the supreme court considered the pleading requirements for a habeas corpus petition alleging inadequate assistance of counsel for failing to initiate an appeal. Specifically, in a situation in which there was a significant delay between counsel’s deficient conduct and the habeas petition, must the petitioner plead that the petition was promptly and reasonably filed?
In March 2008, Lopez-Quintero was convicted by a jury of intentional homicide and carrying a concealed weapon. At the sentencing hearing, Lopez-Quintero’s counsel stated that Lopez-Quintero intended to appeal and knew that he needed to file the notice of intent to pursue postconviction relief. Lopez-Quintero checked the box on the notice-of-intent form, indicating he wished to pursue postconviction relief. The deadline for filing such notice expired. Lopez-Quintero was sentenced to life in prison. Lopez-Quintero did not initiate an appeal.94
Nearly 10 years later, in February 2018, Lopez-Quintero filed a petition for a writ of habeas corpus in the Wisconsin Court of Appeals pursuant to Wis. Stat. section 809.51, alleging that his trial counsel rendered ineffective assistance by failing to file the notice of intent to appeal by the 20-day deadline according to Lopez-Quintero’s stated wishes, causing his appeal rights to expire. He asked the appellate court to reinstate all his appellate deadlines so he could pursue a direct appeal of his conviction and sentence. The petition did not provide any reason for the nearly 10-year delay in the habeas claim, although it did state that Lopez-Quintero had language barriers and limited education.
Before the state filed a response to the habeas petition, and without holding a hearing, the court of appeals denied the habeas petition “ex parte” on the ground the petition “c[a]me too late.” The court relied on State ex rel. Smalley v. Morgan and held that although Lopez-Quintero’s stated limitations could cause some delay in raising the ineffective-assistance issue, they “cannot account for over nine years of delay.”95
A petition for writ of habeas corpus commences a civil proceeding when the petitioner claims an illegal denial of liberty. The petitioner must prove that the restraint was imposed by a body without jurisdiction or that it was imposed contrary to constitutional protections. The petitioner also must show an inadequate alternative remedy at law. The petitioner has the burden to prove that the detention is illegal.96
Lopez-Quintero’s habeas petition contained the information required by Wis. Stat. section 809.51. The court of appeals can deny the petition “ex parte” or can order the respondents to file a response and may order oral argument on the petitions. The respondent can assert equitable defenses such as laches. The state has the burden of proving laches; this obligation requires proof of unreasonable delay in filing the petition, the state’s lack of knowledge that the petitioner would be asserting the habeas claim, and resulting prejudice to the state.97
The sole issue for the supreme court was whether the court of appeals can deny a habeas petition ex parte for the petitioner’s failure to plead that his or her claim was brought in a timely manner.
The supreme court answered “no”: timeliness is not a required element. The court held that the petition was statutorily compliant, reasoning that the statute “does not impose any deadline within which a habeas petitioner must bring a habeas petition.” This is in contrast to a supervisory writ petition, which does have a timeliness requirement. It would run afoul of well-established canons of construction to read a timeliness requirement into Wis. Stat. section 809.51. “In the absence of language imposing a time limit on filing a petition for the court of appeals to issue a writ of habeas corpus, we will not read one into the statute.”98
Regarding the substantive basis for the petition, the court noted that trial counsel’s failure to perfect an appeal when the defendant expressed his desire to appeal constituted ineffective assistance of counsel. Whenever ineffective assistance of counsel results in the complete denial of an appeal, prejudice is presumed. Though it is true the petition was filed nearly 10 years after defendant expressed his desire to appeal, that delay does not automatically defeat the petition.99
The supreme court therefore overruled Smalley, which imposed a timeliness requirement on a habeas petition. In Smalley, the court of appeals denied a habeas petition ex parte because the petitioner did not timely file the petition. The Smalley court held that a petitioner must allege facts demonstrating that he or she sought “prompt and speedy relief,” and it read into the statute laches and estoppel principles and a timeliness requirement. The Smalley court held that the state was prejudiced by an untimely habeas petition.
The supreme court held in Lopez-Quintero that Smalley was objectively wrong because it is “unsupported either by the statutory text or Wisconsin cases.” The court reasoned that under the laches doctrine, the state, not the petitioner, has the burden to prove the defense, including unreasonable delay and prejudice. Any equitable defense to a habeas petition must be proved by the state, which cannot occur unless the state is required to respond to the petition. Smalley erroneously “put the cart before the horse” by concluding that the state was prejudiced by the petitioner’s delay in seeking habeas relief without requiring proof of both unreasonable delay and prejudice.100
The court held that “neither the language of Rule 809.51 nor principles of equity require a habeas petitioner to allege timeliness in the petition.” There is no statutory or common-law basis for reading in a “prompt and speedy” pleading requirement. Equity is not “advanced by denying a statutorily-compliant habeas petition solely because an appellate court deems it to be filed too late,” without the state proving that the delay prejudiced it.
Numerous factors weigh into the defense of laches to determine “whether it is equitable to bypass the merits of a claim on the basis of unreasonable delay.” As the supreme court explained: “Such considerations cannot be fully vetted by an ex parte review of the petition.” The court of appeals did not fully address the equitable considerations relating to the filing of the habeas petition, including the petitioner’s reasons for the delay. That evidence would be properly considered after the state’s filing of a response, not before.101
A habeas petitioner need not plead that the petition was filed in a timely manner, and the court of appeals must not deny a petition ex parte for a petitioner’s failure to assert that conclusion. Thus the supreme court reversed the denial of the habeas petition and remanded for further proceedings.
“[T]he court of appeals cannot forever foreclose an individual’s appellate rights, ex parte and on the basis of untimeliness, when his attorneys failed to file the form necessary to initiate the appeal he requested. Absent a demonstration of prejudice by the State, a habeas petition may not be denied merely because it was filed later than the court of appeals believes it should have been.”102
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How do you nurture creativity in yourself and others?
Life often moves at such a fast pace, and many of our daily tasks are so routine that we can do them without thinking. In my professional life I spend a fair amount of time in front of the computer, composing there with written product flowing from mind to screen. New and fresh ideas often arise literally by my getting up and moving around. I enjoy the little light-bulb moments of daily life.
The deeper thoughts and creativity arrive when I slow down and escape the computer, phones, and screens, and my mind is freed to think and wander. Moving around, driving on trips, playing soccer, walking the dog, a good night’s sleep – these nurture creativity.
Energy, inspiration, and fresh ideas also are cultivated by spending time with family and friends and colleagues, whether socializing and relaxing for fun or getting together in a more organized manner to collaborate about new ideas or a common project.
Lisa M. Lawless, Husch Blackwell LLP, Milwaukee.
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1 This total excludes decisions issued in attorney discipline and bar admission matters. In one additional criminal case, State v. Garcia, 2019 WI 40, 386 Wis. 2d 386, 925 N.W.2d 528, the court was equally divided and therefore the court of appeals decision was affirmed. See Alan Ball, The 2018-19 Term: Some More Impressions – and a Paradox; Alan Ball, Wisconsin Supreme Court Statistics, 2018-19.
2 In addition to the constitutional challenge to the “extraordinary session” legislation discussed below, in Koschkee v. Taylor, 2019 WI 76, 387 Wis. 2d 552, 929 N.W.2d 600, the court held that the statutory requirement that agencies receive gubernatorial approval before drafting a proposed rule and again before submitting it to the Wisconsin Legislature for approval was constitutional as applied to the Superintendent of Public Instruction and the Department of Public Instruction, overruling Coyne v. Walker, 2016 WI 38, 368 Wis. 2d 444, 879 N.W.2d 520.
3 See Kathy Nusslock, What Is Wisconsin's Pleading Standard? Wis. Law. (Sept. 2019) (discussing Cattau v. National Ins. Servs. of Wis. Inc., 2019 WI 46, 286 Wis. 2d 515, 926 N.W.2d 756).
4 See Christopher Krimmer, Surviving Michels: Can Third-party Visitation Be Resurrected? Wis. Law. (Oct. 2019) (discussing Michels v. Lyons, 2019 WI 57, 387 Wis. 2d 1, 927 N.W.2d 486).
5 League of Women Voters of Wis. v. Evers, 2019 WI 75, 387 Wis. 2d 511, 929 N.W.2d 209.
6 Andrew Cook, Extraordinary Session Laws: New Limits on Governor and Attorney General, Wis. Law. (May 2019). In the 2019-20 term, the court has heard a constitutional challenge to the contents of certain of the extraordinary session laws, with the issue whether they are facially invalid on the ground they violate the separation of powers. Service Employees Int’l Union (SEIU), Local 1 v. Vos, Nos. 2019AP614, 2019AP622 (oral argument held Oct. 21, 2019).
7 League of Women Voters, 2019 WI 75, ¶¶1, 10, 387 Wis. 2d 511.
8 Id. ¶¶ 1 & n.2, ¶ 2 & n.4, 9-12; 2017 Wis. Act 368; 2017 Wis. Act 369; 217 Wis. Act 370.
9 League of Women Voters, 2019 WI 75, ¶¶ 16 & n.8, 17, 19-22, 387 Wis. 2d 511.
10 Id. ¶¶ 2, 3-9, 26, 28.
11 Id. ¶¶ 35, 36.
12 Id. ¶¶ 36 (quoting State ex rel. La Follette v. Stitt, 114 Wis. 2d 358, 368, 338 N.W.2 684 (1983)), 37 (quoting State ex rel. Ozanne v Fitzgerald, 2011 WI 43, ¶ 8, 334 Wis. 2d 70, 798 N.W.2d 436), 38-40.
13 Id. ¶¶ 2, 41, 42.
14 Myers v. Wisconsin Dep’t of Natural Resources, 2019 WI 5, 385 Wis. 2d 176, 922 N.W.2d 47.
15 Id. ¶¶ 1, 2, 7, 8.
16 Id. ¶¶ 2-3, 7-14.
17 Id. ¶¶ 16-18.
18 Id. ¶¶ 19-21.
19 Id. ¶¶ 21-23.
20 Id. ¶¶ 24-25.
21 Id. ¶¶ 26-27
22 Id. ¶¶ 28-30.
23 Id. ¶¶ 31, 32.
24 Id. ¶¶ 33, 34.
25 Id. ¶¶ 6, 35, 37.
26 Security Fin. v. Kirsch, 2019 WI 42, 386 Wis. 2d 388, 926 N.W.2d 167. The author briefed and argued Security Finance v. Kirsch before the Wisconsin Supreme Court. This was the first time in 20 years the court has ruled on the WCA, since Kett v. Community Credit Plan Inc., 228 Wis. 2d 1, 596 N.W.2d 786 (1999).
27 Kett, 228 Wis.2d 1; Security Fin., 2019 WI 42, ¶¶ 3, 4, 386 Wis. 2d 388.
28 Security Fin., 2019 WI 42, ¶¶ 16, 17, 386 Wis. 2d 388.
29 Id. ¶¶ 1, 11, 17-19; Wis. Stat. § 427.104.
30 Security Fin., 2019 WI 42, ¶¶ 10, 13, 14, 19, 386 Wis. 2d 388; Wis. Stat. § 427.104(1)(g), (j).
31 Security Fin., 2019 WI 42, ¶¶ 14, 15, 20, 386 Wis. 2d 388.
32 Id. ¶¶ 16, 18.
33 Id.¶¶ 12, 21-22, 25; Beal v. Wyndham Vacation Resorts, 956 F. Supp. 2d 962 (W.D. Wis. 2013).
34 Security Fin., 2019 WI 42, ¶¶ 26-30, 386 Wis. 2d 388.
35 Id. ¶¶ 2, 30, 31.
36 L.G. v. Aurora Residential Alternatives, Inc.,2019 WI 79, 387 Wis. 2d 724, 929 N.W.2d 590.
37 Id. ¶¶ 1, 11, 27.
38 Id. ¶¶ 2-5.
39 Id. ¶¶ 8-10.
40 Id. ¶¶ 11-18.
41 Id. ¶¶ 18, 19, 22; State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141.
42 L.G., 2019 WI 79, ¶¶ 23-26, 387 Wis. 2d 724.
43 Maple Grove Country Club Inc. v. Maple Grove Estates Sanitary Dist., 2019 WI 43, 386 Wis. 2d 425, 926 N.W.2d 184.
44 Id. ¶¶ 1-2, 5, 17.
45 Id. ¶¶ 14-17, 48; 195 Wis. 2d 457, 536 N.W.2d 451.
46 Maple Grove Country Club, 2019 WI 43, ¶¶ 24, 33-36, 37-45, 51, 386 Wis. 2d 425.
47 Id. ¶¶ 3, 56.
48 State v. Pinder, 2018 WI 106, 384 Wis. 2d 416, 919 N.W.2d 568.
49 Id. ¶¶ 1, 3-8.
50 Id. ¶¶ 9-12, 15.
51 Id. ¶¶ 16-17.
52 Id. ¶¶ 2, 21, 27, 31-34; Wis. Stat. § 968.12(1).
53 Pinder, 2018 WI 106, ¶¶ 34-38, 42, 62, 384 Wis. 2d 416.
54 Id. ¶¶ 2, 42-44, 62.
55 Id. ¶¶ 24, 45-52, 62.
56 Id. ¶¶ 53-57, 62.
57 State v. Fitzgerald, 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165.
58 Id. ¶ 12; Wis. Stat. § 971.14(3)(dm), (4)(b).
59 Fitzgerald, 2019 WI 69, ¶¶ 3-7, 387 Wis. 2d 384.
60 Id. ¶¶ 8-10; State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 14.
61 Fitzgerald, 2019 WI 69, ¶¶ 11, 21-22, 387 Wis. 2d 384.
62 Id. ¶ 13 (quoting Washington v. Harper, 494 U.S. 210, 221 (1990)).
63 Id. (quoting Sell v. United States, 539 U.S. 166, 178-79 (2003)) (internal quotations omitted).
64 Id. (quoting Sell, 539 U.S. at 179).
65 Id. ¶¶ 14-18.
66 Id. ¶¶ 12, 23-25.
67 Wis. Stat. § 971.14(4)(b), (3)(dm); Fitzgerald, 2019 WI 69, ¶¶ 19, 20, 387 Wis. 2d 384.
68 Fitzgerald, 2019 WI 69, ¶¶ 25-29, 387 Wis. 2d 384.
69 Id. ¶¶ 24, 30.
70 Id. ¶¶ 2, 22, 25, 31, 32.
71 Id. ¶¶ 33, 35.
72 Id. ¶ 34.
73 State v. Wayerski, 2019 WI 11, 385 Wis. 2d 344, 922 N.W.2d 468.
74 Brady v. Maryland, *373 U.S. 83 (1963); Wayerski, 2019 WI 11, ¶¶ 3 n.4, 6, 35, 44, 55, 385 Wis. 2d 344.
75 Wayerski, 2019 WI 11, ¶¶ 3 n.4, 6, 7-12, 15-20, 385 Wis. 2d 344.
76 Id. ¶¶ 20--30.
77 Id. ¶¶ 31-24, 37.
78 Id. ¶¶ 38-43, 64.
79 Id. ¶¶ 44-55.
80 Id. ¶¶ 47-50; Nelson v. State,59 Wis. 2d 474, 208 N.W.2d 410 (1973).
81 Wayerski, 2019 WI 11, ¶¶ 44, 51, 385 Wis. 2d 344.
82 State v. Randall, 197 Wis. 2d 29, 539 N.W.2d 708 (Ct. App. 1995); Wayerski, 2019 WI 11, ¶¶ 44, 52-55, 385 Wis. 2d 344.
83 Wayerski, 2019 WI 11, ¶¶ 56-60, 385 Wis. 2d 344.
84 Id. ¶¶ 61, 62, 65.
85 State v. Hanson, 2019 WI 63, 387 Wis. 2d 233, 928 N.W.2d 607.
86 Id. ¶¶ 2 n.3, 4, 18, 30, 34, 35, 36.
87 Id. ¶¶ 2 n.3, 7-10.
88 Id. ¶¶ 12-15.
89 Id. ¶¶ 18, 19, 26 (quoting Daniel D. Blinka, Wisconsin Practice Series: Wisconsin Evidence § 802.202 at 828 (4th Ed. 2017)), 27.
90 Id. ¶¶ 21-26, 27, 36.
91 Id. ¶¶ 28, 29, 36.
92 Id. ¶¶ 4, 7 n.5, 30, 31, 32, 33, 34 n.17, 35, 36.
93 State ex rel. Lopez-Quintero v. Dittmann,2019 WI 58, 387 Wis. 2d 50, 928 N.W.2d 480.
94 Id. ¶¶ 1, 2-5, 7.
95 Id. ¶¶ 7, 8, 25, 26; State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 565 N.W.2d 805 (Ct. App. 1997).
96 Lopez-Quintero, 2019 WI 58, ¶¶ 12, 14, 28, 387 Wis. 2d 50.
97 Id. ¶¶ 15, 16, 25, 29.
98 Id. ¶¶ 7, 17, 18, 21 n.12, 23 n.13, 28, 29.
99 Id. ¶¶ 10, 17 & n.8, 24.
100 Id. ¶¶ 1, 10, 19-24.
101 Id. ¶¶ 1, 10, 24, 26.
102 Id. ¶¶ 1, 10, 28-30.