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    Wisconsin Lawyer
    February 11, 2020

    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

    Administrative Law

    Revised Administrative Agency Interpretation of Ambiguous Statute – Formal Rulemaking Required

    Lamar Cent. Outdoor LLC v. Wisconsin Division of Hearings & Appeals, 2019 WI 109 (filed 19 Dec. 2019)

    HOLDING: When an administrative agency wants to revise its interpretation of an ambiguous statute, it must engage in the formal rulemaking process.

    SUMMARY: The Wisconsin Department of Transportation (DOT) ordered Lamar Central Outdoor to remove a billboard that is located adjacent to an interstate highway because the billboard temporarily exceeded its permitted size. The DOT declined to allow Lamar to cure the violation and thereby recover the sign’s preexisting status as a “legal, nonconforming” sign. The DOT reached this decision after it developed a new statutory interpretation of Wis. Stat. section 84.30(11) that abrogated its previous policy of allowing violations such as Lamar’s to be cured. Lamar requested a hearing before the Wisconsin Division of Hearings and Appeals, which ordered Lamar to remove the billboard. This decision was affirmed by the circuit court. In an unpublished opinion, the court of appeals also affirmed.

    In a unanimous opinion authored by Justice Kelly, the supreme court reversed the court of appeals. It concluded that the language of Wis. Stat. section 84.30(11) is not plain and unambiguous with respect to whether it prevents the owner of a “legal, non-conforming” sign from curing a status-altering violation (¶ 38). The court further held that when an administrative agency changes its interpretation of an ambiguous statute such as Wis. Stat. section 84.30(11), it is engaging in rulemaking (see ¶ 24). Under these circumstances, Wis. Stat. section 227.10(1) requires the agency to formally promulgate a rule containing the new statutory interpretation before applying it (see ¶ 39).

    The situation presented by this case is different than one in which an administrative agency corrects a previously erroneous application of a plain and unambiguous statute. Said the court: “So when an agency brings its practice into conformity with the plain meaning of an unambiguous statute, there is no requirement that the department comply with the filing procedures mandated in connection with promulgation of administrative rules even though the new statutory application contradicts its previous practice. But when an agency changes its interpretation of an ambiguous statute, it is engaging in rulemaking” (¶ 24) (internal quotations and citations omitted).

    Criminal Procedure

    Habeas Corpus – Laches

    State ex rel. Wren v. Richardson, 2019 WI 110 (filed 26 Dec. 2019)

    HOLDINGS: 1) The state established the elements of laches as a defense to the petitioner’s habeas corpus petition. 2) The court of appeals appropriately exercised its discretion in applying laches in this case.

    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: Wren alleged that after his conviction in 2007 for reckless homicide, his lawyer failed to file a notice of intent to pursue postconviction relief as promised, causing Wren to lose his direct appeal rights. Wren knew this by sometime in 2010 or 2011. Over the next several years, Wren filed four motions relating to his conviction, none of which raised the lawyer’s alleged blunders. Then, in 2017, Wren filed a petition for a writ of habeas corpus asserting ineffective assistance of counsel based on the lawyer’s failure to appeal and seeking to reinstate his direct appeal rights. In defense, the state pleaded laches, resting its case on the fact that the lawyer who made the alleged missteps died in 2014 and no case files or notes remained.

    In an unpublished opinion, the court of appeals agreed with the state, imposed laches, and denied the petition. In a majority opinion authored by Justice Hagedorn, the supreme court affirmed.

    The majority first considered Wren’s request that the court revisit its recent decision holding that the state may assert laches as a defense to a habeas petition. See State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, 387 Wis. 2d 50, 928 N.W.2d 480. The court declined to do so. “Having just considered the matter, we decline Wren’s invitation to reconsider it” (¶ 13).

    The majority next addressed the defense of laches. “In Wisconsin, application of laches to habeas petitions proceeds in two steps. First, the party asserting the defense – the State in this instance – must prove the following three elements: (1) unreasonable delay in filing the habeas petition, (2) lack of knowledge on the part of the State that the petitioner would be asserting the habeas claim, and (3) prejudice to the State. Second, even if the State proves all three elements, the court may – in its discretion – choose not to apply laches if it determines that application of the defense is not appropriate and equitable” (¶ 15) (citation and quotations omitted).

    As for the first step in the process, the supreme court agreed with the court of appeals that the state established unreasonable delay and prejudice – the two laches elements Wren challenged (see ¶ 3). Said the court with respect to the delay: “After four attempts to seek various kinds of other postconviction relief, we agree with the court of appeals that a habeas petition coming ten years after his conviction and six years after he knew his attorney didn’t file the appeal he was allegedly promised is a delay without good reason” (¶ 21). “Pro se litigants, including those who claim their trial counsel did not serve them by filing an appeal, still have an independent obligation to timely raise these issues with the court on their own” (¶ 31).

    In sum, “[a]fter knowing no appeal had been filed, and after knowing his counsel had not responded to him, Wren had an obligation to exercise reasonable diligence and raise the issues in a timely manner. Wren’s delay of six to seven years from the time he knew this is not attributable to the State; it is on Wren. Put simply, Wren had some time to figure this out, but not unlimited time. Here, his delay was unreasonable” (id.).

    The court next concluded that the state proved that the unreasonable delay prejudiced its defense against the habeas petition. “The prerequisite under our law is prejudice due to the delay, i.e., disadvantage to a party. Thus, the legal element is met by showing the State’s defense of the habeas petition was meaningfully disadvantaged. The death of the essential witness to the events at issue, along with the loss of his documentary files, unquestionably satisfies this standard” (¶ 38).

    Lastly, the majority concluded that the court of appeals appropriately exercised its discretion in applying laches in this case.

    Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice R.G. Bradley and Justice Dallet.

    Appeals – Lost Transcripts – Prejudice

    State v. Pope, 2019 WI 106 (filed 17 Dec. 2019)

    HOLDING: In an appeal from a 1996 conviction for which the entire trial transcript is unavailable, the court declined to presume prejudice; rather, the defendant must make a facially valid claim of error.

    SUMMARY: A jury convicted the defendant, Pope, of two counts of first-degree intentional homicide in 1996. Pope’s trial counsel failed to file a timely notice of intent to pursue postconviction relief, which resulted in the expiration of Pope’s direct appeal rights. Fourteen months later, Pope attempted to correct trial counsel’s error, but the court of appeals ruled that he had not shown good cause for the delay in bringing the motion (see ¶ 12). The “lengthy procedural history” of this case extended from the late 1990s to 2016, when, by stipulation, the court reinstated Pope’s right to a direct appeal.

    In 2016, Pope ordered transcripts, but the only extant transcripts were for his preliminary hearing and his sentencing hearing. The trial transcript was “unavailable” (¶ 17). The circuit court granted him a new trial because there was “no other option” (¶ 18.) In an unpublished decision, the court of appeals reversed on grounds that Pope had the burden of demonstrating some facially valid claim of error.

    The supreme court affirmed in a majority opinion authored by Justice Ziegler that applied the Perry/DeLeon procedure, which governs “when a record is incomplete during post-trial proceedings” (¶ 24). See State v. Perry, 136 Wis. 2d 92, 101, 401 N.W.2d 748 (1987); State v. DeLeon, 127 Wis. 2d 74, 377 N.W.2d 635 (Ct. App. 1985). Although the appellant need not demonstrate actual prejudice, “the appellant must allege a facially valid claim of arguably prejudicial error” (¶ 26). A failure to do so ends the analysis.

    Only when the appellant is successful need the circuit court “make the discretionary determination of whether the missing record can be reconstructed” (¶ 27). If it is impossible to so reconstruct the record, a new trial must occur (see id.). Neither Perry nor DeLeon, however, involved the complete absence of a trial transcript, as here.

    Nonetheless, the court held that the procedure’s logic also governed here. “Common sense” demands some showing of a reviewable error. “Logic dictates that when the defendant claims an arguably prejudicial error occurred in the missing trial transcript, that missing transcript is critical to the defendant’s argument, regardless of the missing portion’s size – large, small, or all” (¶ 32). Moreover, the Wisconsin rule is “consistent with the federal lead” (¶ 35).

    The court then rejected a proposed exception to Perry/DeLeon for cases in which the entire transcript is unavailable. It did so because it found that Pope’s own delays caused the transcript’s unavailability (see ¶ 39). Critical was Pope’s 14 months of inaction beginning in 1996. He did not file a notice of intent for 20 years nor did he order a trial transcript.

    Justice R.G. Bradley dissented, joined by Justice A.W. Bradley and Justice Dallet. “The Constitution compels the opposite conclusions the majority reaches: (1) Perry cannot apply when the entire trial transcript is unavailable; (2) Pope did not sit on his rights; (3) Pope is not to blame for the unavailability of the transcripts; and (4) the law does not impose on an imprisoned convict the burden to pursue his own direct appeal pro se because the Constitution guarantees him an effective appellate counsel and a meaningful appeal” (¶ 58).

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