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    Wisconsin Lawyer
    January 07, 2022

    Supreme Court Digest

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

    Daniel D. Blinka & Thomas J. Hammer

    Criminal Procedure

    Sentence Credit – Time Spent in Custody in Connection with Course of Conduct for Which Sentence Was Imposed – Wis. Stat. §§ 973.15(5) and 973.155

    State v. Lira, 2021 WI 81 (filed 18 Nov. 2021)

    HOLDING: The defendant is not entitled to the sentence credit he sought because the time for which he sought credit was not time spent in custody “in connection with the course of conduct for which sentence was imposed.”

    SUMMARY: In 2004, defendant Lira was in custody in Wisconsin on probation and parole holds relating to convictions entered against him in Wisconsin in 1992 and 1999. He also faced a new charge of endangering safety by use of a dangerous weapon. He escaped from custody. His parole and probation were revoked, and he was charged with escape. The day after his escape he was involved in a high-speed chase with officers in Oklahoma; the chase ended in a crash and the defendant’s passenger died as a result of the collision. Lira was convicted of second-degree murder in Oklahoma in September 2004 and sentenced to 20 years in prison.

    In May 2005, Oklahoma transferred Lira to Wisconsin on detainer to face the 2004 charges of endangering safety and escape. One month later he was mistakenly released. He was found and arrested in Texas in December 2005. Wisconsin filed a new charge of bail jumping against him, and he was returned to Wisconsin in January 2006. On March 17, 2006, after entering into a global plea agreement on the 2004 charges of endangering safety and escape and the 2005 charge of bail jumping, the Milwaukee County Circuit Court sentenced Lira to three years’ incarceration and three years’ extended supervision, both to be served consecutive to his Oklahoma sentence.

    Pursuant to the Interstate Agreement on Detainers, entered into by both Oklahoma and Wisconsin, Wisconsin returned Lira to Oklahoma on April 5, 2006, to complete the remainder of his Oklahoma sentence. Lira remained in Oklahoma until his sentence there was completed on June 9, 2017. He was soon thereafter transported to Wisconsin to complete his sentences for the 1992 and 1999 cases and the 2004 and 2005 cases.

    Lira sought sentence credit against his 1992 and 1999 Wisconsin sentences for the time he spent incarcerated in Oklahoma between 2006 and 2017. For this relief he relied on Wis. Stat. section 973.15(5), which provides that “[a] convicted offender who is made available to another jurisdiction under ch. 976 or in any other lawful manner shall be credited with service of his or her Wisconsin sentence or commitment under the terms of s. 973.155 for the duration of custody in the other jurisdiction” (emphasis added). Lira also claimed that under Wis. Stat. sections 304.072(5) and 973.155, he must receive credit for time he spent detained in Wisconsin and Texas from 2005 to 2006 (see ¶ 2).

    The circuit court denied the motion for sentence credit. In an unpublished opinion, the court of appeals granted most of the credit that Lira sought. In a unanimous decision authored by Chief Justice Ziegler, the supreme court reversed the court of appeals. It rejected Lira’s argument that because he was a “convicted offender” and was “made available” to Oklahoma in April 2006, he was thus entitled to sentence credit under Wis. Stat. section 973.15(5) (quoted above) for the time he spent in prison in Oklahoma between 2006 and 2017.

    Said the court: “The language of Wis. Stat. § 973.15(5) is unambiguous: credit is due under the provision only if it is warranted under § 973.155…” (¶ 35). Section 973.155, which is Wisconsin’s foundational sentence-credit statute, provides for the award of credit “for all days spent in custody in connection with the course of conduct for which sentence was imposed.” Wis. Stat. § 973.155(1)(a). In this case, “neither his incarceration in Oklahoma between 2006 and 2017 nor his detention in Wisconsin and Texas between 2005 and 2006 were ‘in connection with the course of conduct for which [the 1992 and 1999 sentences were] imposed’” (¶ 3). Accordingly, the court concluded that Lira was not entitled to the sentence credit that he sought.


    Redistricting – Role of State Supreme Court in Redrawing Maps

    Johnson v. Wisconsin Elections Comm’n, 2021 WI 87 (filed 30 Nov. 2021)

    HOLDING: The Wisconsin Supreme Court will use a least-change approach to remedying any constitutional or statutory infirmities in existing maps; it will not consider the partisan makeup of districts.

    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: The Wisconsin Constitution requires the legislature “to apportion and district anew the members of the senate and assembly, according to the number of inhabitants” after each census conducted under the U.S. Constitution every 10 years. See Wis. Const. art. IV, § 3.
    In 2021, the Wisconsin Legislature drew new maps and Gov. Tony Evers vetoed them. All parties in this case before the supreme court agree that the existing maps, enacted in 2011, are now unconstitutional because shifts in Wisconsin’s population around the state have disturbed the constitutionally guaranteed equality of the people’s representation in the state legislature and in the U.S. House of Representatives. In this original action, the supreme court has been asked to provide a remedy for that inequality.

    Writing for herself, Chief Justice Ziegler and Justice Roggensack, Justice R.G. Bradley concluded as follows regarding the role of the supreme court in redrawing the maps: “[W]e will implement judicial remedies only to the extent necessary to remedy the violation of a justiciable and cognizable right found in the United States Constitution, the [Voting Rights Act of 1965], or Article IV, Sections 3, 4, or 5 of the Wisconsin Constitution. We will not consider the partisan makeup of districts because it does not implicate any justiciable or cognizable right. We adopt the least-change approach to remedying any constitutional or statutory infirmities in the existing maps because the constitution precludes the judiciary from interfering with the lawful policy choices of the legislature” (¶ 81).

    Justice Hagedorn filed a concurring opinion in which he joined all but a few paragraphs of Justice R.G. Bradley’s opinion. He agreed that the remedial maps must comply with relevant constitutional and statutory provisions, that the court should not consider the partisan makeup of districts, and a least-change approach to existing maps should be used (see ¶ 82 n. 4).

    He would not, however, limit the court to considering only legal requirements in drawing new maps: “Legal standards establish the need for a remedy and constrain the remedies we may impose, but they are not the only permissible judicial considerations when constructing a proper remedy. For example, one universally recognized redistricting criterion is communities of interest. It is not a legal requirement, but it may nonetheless be an appropriate, useful, and neutral factor to weigh” (¶ 83).

    Justice Dallet filed a dissent that was joined in by Justice A.W. Bradley and Justice Karofsky.

    Health Law

    Medical Records – Copy Costs – Fee Restrictions – Health-care Providers

    Townsend v. ChartSwap LLC, 2021 WI 86 (filed 26 Nov. 2021)

    HOLDING: An entity that provided copies of health-care records was not subject to the statutory fee restrictions that regulate health-care providers.

    SUMMARY: Townsend was injured in a car accident. Her law firm requested certified copies of her health-care-provider records. On the provider’s behalf, ChartSwap produced a one-page record for which it charged $36. Townsend then brought this action against ChartSwap, claiming it had violated statutory restrictions that limit the fees that can be charged for copies of health-care records. The circuit court dismissed the claim, concluding that ChartSwap was not a health-care provider subject to those statutory regulations. In a published decision, the court of appeals reversed, finding that it would be absurd to permit health-care providers to skirt the restrictions using third parties, such as ChartSwap. See 2020 WI App 79.

    The supreme court reversed in an opinion authored by Justice Roggensack that construed Wis. Stat. section 146.83(3f)(b) in light of the plain words in the text. No one contended that ChartSwap was a health-care provider within the meaning of Wis. Stat. section 146.81(1). The court of appeals had instead applied Wis. Stat. section 146.84(1)(b), which imposes liability on “any person” who violates the statute. However, said the supreme court, “the text of §146.83(3f)(b) regulates only those charges made by health care providers” (¶ 16).

    The majority opinion asserted that its holding was consistent with the statute’s “plain meaning” (¶ 17). The majority opinion also relied on the “general/specific canon of statutory construction” (¶ 25). Finally, the supreme court rejected the court of appeals’ application of Wis. Stat. section 990.001(9), which “embodies the fundamental common law principle that an agent’s actions are the principal’s actions for purposes of fulfilling a principal’s statutory duty. Subsection 990.001(9) imposes no personal liability on an agent for authorized acts taken on behalf of its principal” (¶ 36).

    Justice Dallet concurred, joined by Justice A.W. Bradley and Justice Karofsky. They agreed that the plain meaning of Wis. Stat. section 146.83(3f)(b) did not impose the fee restrictions on ChartSwap. The concurrence parted ways with paragraphs 17 and 23-26 of the majority opinion, contending that the application of the “general/specific canon of construction” only “mudd[ied]” the analysis (¶ 38).

    Mental Health Law

    Chapter 51 Involuntary Commitment Hearings – Timeliness of Jury Demand

    Waukesha Cnty. v. E.J.W., 2021 WI 85 (filed 23 Nov. 2021)

    HOLDING: When a final mental health commitment hearing is rescheduled, Wis. Stat. section 51.20(11)(a) allows a jury demand to be filed up until 48 hours before the rescheduled final hearing.

    SUMMARY: E.J.W. was initially committed under the Mental Health Act (Wis. Stat. ch. 51) in 2014. That commitment was extended several times over the years. The present litigation involves a petition filed by Waukesha County in 2019 to again extend E.J.W.’s commitment.

    The issue was whether E.J.W. waived his right to a jury trial. Pursuant to Wis. Stat. section 51.20(11)(a), “A jury trial is deemed waived unless demanded at least 48 hours in advance of the time set for final hearing.” E.J.W. did not request a jury trial before the first time set for his final hearing, but that hearing was adjourned and rescheduled. He demanded a jury trial more than 48 hours before the rescheduled date, and he argued that this request was timely under Wis. Stat. section 51.20(11)(a) so as to entitle him to a jury trial.

    The circuit court denied the jury request, holding that it was untimely. In an unpublished decision, the court of appeals affirmed; it relied on its recent decision in Marathon County v. R.J.O., 2020 WI App 20, 392 Wis. 2d 157, 943 N.W.2d 898, which dealt with the same issue that is before the court in the present litigation.

    In a majority opinion authored by Justice A.W. Bradley, the supreme court reversed the court of appeals. It concluded that E.J.W.’s jury demand was timely. “Wisconsin Stat. § 51.20(11)(a) does not limit the filing of a jury demand to only the first time that a final hearing is set. Rather, we determine that when a final hearing is rescheduled, § 51.20(11)(a) allows a jury demand to be filed up until 48 hours prior to a rescheduled final hearing” (¶ 39). The supreme court overruled those portions of the R.J.O. decision that are inconsistent with this conclusion (see ¶ 38).

    Chief Justice Ziegler filed a dissenting opinion that was joined in by Justice Roggensack and Justice R.G. Bradley.

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