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    Wisconsin Lawyer
    June 09, 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

    Collateral Attack on Prior Convictions – Transcripts Unavailable for Prior Proceedings

    State v. Clark, 2022 WI 21 (filed 20 April 2022)

    HOLDING: In the defendant’s collateral attack on prior operating-while-intoxicated (OWI) convictions, which she claimed were obtained in violation of her right to counsel and for which transcripts are no longer available, she retains the burden to demonstrate that the alleged violations of her right to counsel occurred.

    SUMMARY: A defendant charged with OWI faces an escalating set of penalties depending on the number of prior convictions. As part of a defense to an OWI charge, a defendant can make a collateral attack on a prior conviction if the conviction was obtained under circumstances in which the defendant was not represented and did not knowingly, intelligently, and voluntarily waive the right to counsel.

    The supreme court has created a procedure to facilitate these challenges. First, a defendant must point to evidence in the record that establishes prima facie that the defendant did not knowingly, intelligently, and voluntarily waive the right to counsel. Once the defendant has done this, the burden shifts to the state to prove that the waiver nevertheless was valid (see ¶ 1).

    The issue before the supreme court in this case, which was before the court on bypass from the court of appeals, was whether this same burden-shifting procedure should apply when the relevant hearing transcript from the prior conviction is unavailable. In the present prosecution for an OWI (fourth offense), the defendant collaterally attacked prior OWI convictions from 1995 and 2002, claiming in an affidavit that in both cases she was unrepresented by counsel and the circuit court did not conduct a colloquy with her regarding the difficulties and dangers of proceeding without a lawyer.

    The circuit court file for the 1995 case was destroyed because 20 years had passed since the conviction, and the transcript for the 2002 case could not be prepared because the reporter’s notes were destroyed 10 years after the conviction. The parties agreed that destruction of these records was consistent with the applicable document-retention rules. See SCR 72.01(18), (47).

    The circuit court concluded that the defendant’s testimony shifted the burden to the state to prove that her waiver of counsel was nonetheless valid. It further concluded that the state failed to meet this burden; it had no transcripts from the prior proceedings and only limited paperwork (a complaint, a bond sheet, a plea-hearing minutes sheet, and a sentencing-hearing minutes sheet) from the 2002 case. Accordingly, the circuit court concluded that the defendant’s collateral attack on her prior convictions was successful.

    In a majority opinion authored by Justice Hagedorn, the supreme court reversed the circuit court. It concluded that “if a defendant collaterally attacking a prior OWI/PAC conviction cannot point to a defect in the relevant transcript, the burden-shifting procedure does not apply. Instead, the defendant must carry the burden to demonstrate that a violation occurred” (¶ 20). Stated another way, “the lack of a transcript means that [the defendant] retains the burden to prove a violation of her right to counsel occurred” (¶ 21).

    Accordingly, the supreme court remanded the matter to the circuit court with instructions for the circuit court to give the defendant an opportunity to satisfy her burden (see id.).

    Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Dallet and Justice Karofsky. Among other things, the dissent contended that “the majority foists upon [defendant] Clark and similarly situated defendants a nearly impossible burden where a transcript is unavailable through no fault of their own” (¶ 26).

    Election Law

    Redistricting – Adoption of Wisconsin Legislature’s Maps for State Legislative Districts

    Johnson v. Wisconsin Elections Comm’n, 2022 WI 19 (filed 15 April 2022)

    HOLDING: The supreme court adopted the maps enacted by the Wisconsin Legislature for redrawing state legislative 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: This opinion is the latest in a series dealing with the redistricting process after the 2020 census. When the political process failed to accomplish redistricting, the matter fell to the courts. In Johnson v. Wisconsin Elections Comm’n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469, the court adopted a “least change approach” whereby it would select maps that comport with relevant legal requirements while reflecting the least change necessary (¶ 8). In a later decision, the court adopted state legislative and congressional maps drawn by Governor Evers with the assistance of stakeholders and advisors. See Johnson v. Wisconsin Elections Comm’n, 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402. The governor’s maps added a seventh, majority-Black, legislative district in the city of Milwaukee.

    Thereafter, the U.S. Supreme Court summarily reversed the selection of the governor’s state legislative maps. See Wisconsin Legis. v. Wisconsin Elections Comm’n, 142 S. Ct. 1245 (2022) (per curiam).

    “The Supreme Court confirmed that, under the Equal Protection Clause, a state government cannot draw district maps on the basis of race unless the state satisfies strict scrutiny. If the state has before it a ‘strong basis in evidence’ for believing the VRA [Voting Rights Act] ‘require[s] [the state] to move voters based on race,’ and the evidence is district specific, a racially motivated map can satisfy strict scrutiny. However, the state must possess this evidence before it creates maps based on racial classifications” (¶ 13) (citations omitted).

    In the present case, the U.S. Supreme Court reasoned that, based on the filings and presentations made by Governor Evers, he had failed to present a strong evidentiary basis for believing the VRA mandated the district lines he drew (see ¶ 14).

    Further, the U.S. Supreme Court concluded that the Wisconsin Supreme Court failed to properly examine the following three-step prerequisites to proving a VRA violation: 1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district, 2) the racial group is politically cohesive, and 3) the majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate. SeeThornburg v. Gingles, 478 U.S. 30 (1986) (see ¶¶ 16, 27). Accordingly, the U.S. Supreme Court remanded the case to the Wisconsin Supreme Court.

    On remand, the Wisconsin Supreme Court, in a majority opinion authored by Chief Justice Ziegler, concluded that insufficient evidence was presented to justify drawing state legislative districts on the basis of race. The maps proposed by Governor Evers, State Senator Bawley, Black Leaders Organizing for Communities, and Citizen Mathematicians and Scientists “are racially motivated and, under the Equal Protection Clause, they fail strict scrutiny” (¶ 2).

    The only other maps before the court were those enacted by the Wisconsin Legislature. They are race neutral
    (see ¶ 48), and the court adopted them. Said the majority: “The Legislature’s maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature’s maps exhibit minimal changes to the existing maps. Therefore, we adopt the state senate and assembly maps of the Legislature for the State of Wisconsin” (¶ 73).

    (Editors’ Note:This decision affects only the redistricting of state legislative districts. The U.S. Supreme Court denied an appeal relating to federal congressional districts, and the Wisconsin Supreme Court’s decision adopting Governor Evers’ maps for congressional districts remains unchanged. See ¶ 12 n.2.)

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

    Justice Hagedorn filed a concurring opinion.

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

    Recounts – Review of Result

    Sewell v. Racine Unified Sch. Dist. Bd. of Canvassers, 2022 WI 18 (filed 12 April 2022)

    HOLDING: The court of appeals properly affirmed the results of a referendum recount.

    SUMMARY: In 2020, voters within the Racine Unified School District participated in a referendum to determine whether the school district could exceed its revenue limits by spending in excess of $1 billion over a 30-year period. The “yes” votes exceeded the “no” votes by five votes. The board of canvassers certified the outcome and later took up a recount petition. The recount also found that “yes” votes exceeded “no” votes by five votes (see¶ 6). The petitioner then appealed the recount to the circuit court, asking that all ballots be opened and recounted, as provided by Wis. Stat. section 7.54.

    The circuit court concluded that the canvassers had not denied anyone’s right to “view, request or challenge any action taken during the recount” (¶ 9). The court of appeals summarily affirmed.

    The supreme court unanimously affirmed the court of appeals in an opinion authored by Justice Roggensack. “As the circuit court correctly explained, the amended complaint shows that [the petitioner] misunderstood what a recount actually is. In addition, [the petitioner] has identified no specific errors by the Board of Canvassers, for which he has sought our review” (¶ 15).

    The petitioner also asserted that Wis. Stat. section 7.54 creates an “an independent right to have the ballots opened and re-examined in open circuit court as part of his appeal of the recount” (¶ 16), but Wis. Stat. section 7.54 is directed at errors by election ‘inspectors, either in counting or refusing to count any ballot.” The statute does not cover alleged errors by the board of canvassers.

    “What is before us is not an action based on claimed errors of “inspectors.” Accordingly, while Wis. Stat. § 7.54 applies to contested elections, it does not apply to this appeal that challenges the results of a recount based on alleged errors by the Board of Canvassers. Therefore, we affirm the decision of the court of appeals” (¶ 25).


    Property Taxes – “Residential” or “Agricultural” Classification

    State ex rel. Nudo Holdings v. Kenosha Bd. of Rev., 2022 WI 17 (filed 12 April 2022)

    HOLDING: Land was properly classified as residential, rather than agricultural, for purposes of setting the property tax.

    SUMMARY: A plot of land in Kenosha “was mostly raw and covered in underbrush,” although it included “several walnut and pine trees” (¶ 1). An assessor classified it as “residential,” while the owner claimed it should be designated as “agricultural” and thus taxed at a lower rate. The city’s board of review sustained the assessor. The circuit court affirmed the board. In a published decision, the court of appeals also affirmed. See 2020 WI App 78.

    The supreme court affirmed the court of appeals in a majority opinion authored by Justice Hagedorn. The court looked to statutes, administrative regulations, and the Wisconsin Property Assessment Manual (WPAM).

    “[I]n order for land to be classified agricultural, and therefore receive a potentially sizable tax break, the land must be ‘devoted primarily to agricultural use’” (¶ 17). “However, some agricultural use – even if it is the only ‘use’ the land is put to – does not mean the land is ‘devoted primarily to agricultural use’” (¶ 18).

    “[T]he Board correctly understood that whether the property was ‘devoted primarily to agricultural use’ looks to whether the land is chiefly given over to agricultural use. Just because the sole productive activities, however small, could be described as agricultural does not mean the land’s main use was agricultural” (¶ 20).

    The board also properly considered “future, planned residential development,” as described in the WPAM. “Accordingly, when the law says property must be classified ‘on the basis of use’ on January 1 of the assessment year, land has a current residential ‘use’ not only if human dwellings are present, but also if they are reasonably likely or planned” (¶ 26). Finally, the evidence supported the board’s determination to sustain the assessor (see ¶ 28).

    Justice Roggensack dissented, joined by Chief Justice Ziegler and Justice R.G. Bradley. They contended that the board incorrectly applied the law and the majority erred in its construction of the statutes and regulations, especially the definition of “residential” (see ¶ 49).

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