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    Wisconsin Lawyer
    July 29, 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

    Postconviction Claim of Ineffective Assistance of Counsel – Pleading Requirements to Obtain a Machner Hearing

    State v. Ruffin, 2022 WI 34 (filed 26 May 2022)

    HOLDING: The circuit court did not erroneously exercise discretion by denying, without an evidentiary hearing, the defendant’s motion challenging the effectiveness of his trial counsel.

    SUMMARY: Defendant Ruffin was charged with second-degree sexual assault and mayhem, both as acts of domestic abuse stemming from a physical altercation against his partner, who was pregnant. At the close of the evidence, defense counsel asked for a jury instruction on self-defense and defense of others but then withdrew the request, indicating that he was not sure it fit this case. Instead, counsel asked for an instruction on an accident defense, which the circuit court gave with respect to the mayhem count. The jury convicted the defendant on the sexual assault charge but acquitted him on the mayhem charge.

    The defendant filed a postconviction motion claiming, inter alia, that his attorney was ineffective for withdrawing the request for a self-defense instruction. The circuit court denied the motion without a hearing, holding that even if a self-defense instruction had been given, there was no reasonable probability that the jury would have accepted it because of the amount of force that was used.

    In an unpublished opinion, the court of appeals reversed the circuit court’s denial of the motion without holding an evidentiary hearing, also known as a Machner hearing. See State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979). Specifically, the court of appeals concluded that the defendant had alleged sufficient facts showing this his attorney was ineffective and that he was therefore entitled to an evidentiary hearing.

    In a unanimous decision authored by Justice A.W. Bradley, the supreme court reversed. It agreed with the state that the court of appeals failed to apply the correct legal framework and that the defendant is not entitled to an evidentiary hearing because the record conclusively demonstrates that he is not entitled to relief. Said the supreme court: “we emphasize that even if the motion alleges sufficient facts, an evidentiary hearing is not mandatory if the motion presents only conclusory allegations or if the record as a whole conclusively demonstrates that the defendant is not entitled to relief” (¶ 3). The court of appeals majority did not conduct the “record-conclusively-demonstrates” inquiry, “thus performing only half of the required analysis” (¶ 39).

    The supreme court concluded that “the record conclusively demonstrates that Ruffin’s counsel did not perform deficiently by withdrawing the request for a self-defense instruction. As stated, there is no reasonable view of the evidence that would have entitled Ruffin to the instruction. Counsel was correct in his assessment that self-defense does not ‘fit[] this situation’ and made an objectively reasonable strategic decision to not request the self-defense instruction. Failing to request a jury instruction to an invalid defense does not constitute deficient performance” (¶ 47). Accordingly, the circuit court did not erroneously exercise discretion by denying the defendant’s motion without an evidentiary hearing (see ¶ 48).

    Incompetent Defendants – Involuntary Medication Orders – Stays Pending Appeal of Pretrial Medication Orders

    State v. Green, 2022 WI 30 (filed 13 May 2022)

    HOLDINGS: 1) A defendant who is found to be incompetent in the pretrial setting and who appeals an order for involuntary medication to restore competency is not entitled to an automatic stay of that order pending appeal. 2) The one-year maximum commitment for restoration of competency applicable in this case is not subject to tolling.

    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: Defendant Green was charged with first-degree intentional homicide. The circuit court determined that he was not competent to proceed and ordered commitment for treatment and involuntary administration of medication. Green appealed and filed an emergency motion for a stay of the involuntary medication order pending appeal, which the circuit court automatically granted pursuant to State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141. The state responded with motions to lift the automatic stay and to toll the one-year statutory period for bringing the defendant to competency. The circuit court granted both motions.

    In a published decision, the court of appeals reversed the involuntary medication order and the order lifting the automatic stay of involuntary medication; it also held that the circuit court lacked authority to toll the one-year statutory period to bring Green to competency. See 2021 WI App 18.

    In a majority opinion authored by Justice Roggensack, the supreme court limited in part and affirmed in part the decision of the court of appeals.

    The majority first considered whether Scott’s automatic stay of involuntary medication orders pending appeal applies in the pretrial context. In Scott, thedefendant had sought postconviction relief, and the circuit court ordered the defendant to be involuntarily medicated after it determined that he was incompetent to proceed with his postconviction motion. Exercising its superintending authority, the supreme court held in Scott that involuntary medication orders are subject to an automatic stay pending appeal (see ¶ 20). [The Scott decision also outlined the elements the state would have to establish to have the stay lifted. See ¶ 21.]

    In the present case, again exercising its superintending authority, the court concluded that the automatic stay pending appeal authorized by Scott does not apply to appeals of involuntary medication orders issued in the pretrial context. Said the majority: “Since our decision in Scott, the State has been trapped on both ends of the pretrial competency process. On the one hand, Wis. Stat. § 971.14(5)(a)1. permits a defendant to be held for 12 months to be brought to competence. On the other hand, Scott’s automatic stay of the involuntary medication order keeps the State from starting the treatment that has been ordered by a court” (¶ 34). As a practical matter, the stay could use up the entire 12-month maximum period that is permitted for treatment (see id.).

    The court stated in a footnote that “[g]oing forward, in pretrial proceedings, a defendant seeking to stay an involuntary medication order pending appeal is able to apply for a stay and the court of appeals, in the exercise of its discretion, shall explain its rationale for granting or denying the defendant’s motion after considering our rationale herein” (¶ 36 n.13).

    Lastly, the court concluded that the 12-month treatment period for restoring competency cannot be tolled because the plain meaning of Wis. Stat. section 971.14(5)(a)1. does not permit the tolling of its limit on the confinement period (see ¶ 51).

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


    CCW Permits – Prior Convictions – Disqualifications

    Doubek v. Kaul, 2022 WI 31 (filed 20 May 2022)

    HOLDING: Disorderly conduct is not a misdemeanor crime of domestic violence under a federal law that disqualifies certain individuals from holding permits for concealed carry of weapons (CCW).

    SUMMARY: In 1993, Doubek was convicted of disorderly conduct arising out of a dispute with his estranged wife. In 2016, he applied for a CCW permit for a firearm, but the Wisconsin Department of Justice (DOJ) concluded that the 1993 conviction precluded the permit under a federal law disqualifying persons convicted of domestic violence offenses from holding CCW permits. The circuit court upheld the DOJ’s determination, and the court of appeals certified the matter to the supreme court.

    A unanimous supreme court reversed the circuit court in an opinion authored by Justice Hagedorn. A federal statute prohibits individuals convicted of a “misdemeanor crime of domestic violence” from possessing a firearm (¶ 5). Doubek was convicted of a “misdemeanor” (the disorderly conduct), but the federal statute also requires that the misdemeanor have either a “physical force” element or involve the use of a deadly weapon (¶ 7).

    Applying rules of statutory construction, the court agreed with Doubek that “disorderly conduct does not have as a necessary element of the crime the actual or attempted use of physical force or the threatened use of a deadly weapon” (¶ 12). “The language of Wis. Stat. § 947.01(1) is most naturally read as creating a single crime of disorderly conduct, while listing alternative means to satisfy its first element. The focus of the list is any type of conduct that is disorderly” (¶ 14). Thus, neither “physical force” nor the use of a deadly weapon is an element of the crime.

    The court reversed a court of appeals decision, Evans v. Wisconsin Dep’t of Justice, 2014 WI App 31, 353 Wis. 2d 289, 844 N.W.2d 403, that had reached a contrary conclusion(see ¶ 17). In short, “[w]hile one could be convicted of disorderly conduct for conduct involving the use or attempted use of physical force or the threatened use of a deadly weapon, the statute does not make such conduct an element of the crime that must always be proven” (¶ 20).

    Concurring, Justice Karofsky emphasized that although the result in this case is “legally correct, this result is as nonsensical as it is dangerous” (¶ 25). Closing this “loophole,” however, requires action by the legislature – not the judiciary (¶ 28).


    COVID-19 Pandemic – Business Losses

    Colectivo Coffee Roasters Inc. v. Society Ins., 2022 WI 36 (filed 1 June 2022)

    HOLDING: A business’s pandemic-related losses were not covered by its property insurance policy.

    SUMMARY: Colectivo, which operates coffee shops, had a property insurance policy with Society Insurance. Colectivo sustained business losses as a result of “pandemic and related government restrictions” (¶ 1) and sought coverage under the policy. The circuit court denied Society’s motion to dismiss Colectivo’s claims for declaratory and injunctive relief. The supreme court granted Society’s motion to bypass the court of appeals.

    A unanimous supreme court reversed the circuit court in an opinion authored by Justice Dallet. Coverage under the policy’s provisions for business-income, extra-expense, and civil-authority losses apply only to a physical loss of or damage to the insured’s property or a surrounding property (see ¶ 9). Neither the presence of COVID-19 “particles” nor the losses incurred because of the state’s orders closing restaurants were covered: “[N]either alleges a tangible harm to Colectivo’s physical property necessary to trigger coverage” (¶ 12). This ruling tracked the “overwhelming majority” of other court rulings addressing this issue (¶ 13).

    Nor did the policy’s contamination provision extend coverage. First, Colectivo suspended operations because of the state’s orders, not the presence of a virus. Second, those same state orders only restricted how Colectivo could use its property; they did not prohibit access to the property. Third, the state’s orders did not prohibit production of Colectivo’s products; they prohibited only in-person dining.

    Motor Vehicle Law

    OWI – Counting Prior Convictions – Prior Implied-Consent Refusal to Submit to Blood Draw

    State v. Forrett, 2022 WI 37 (filed 3 June 2022)

    HOLDING: Wis. Stat. sections 343.307(1) and 346.65(2)(am) are unconstitutional to the extent that they count prior revocations resulting solely from a person’s refusal to submit to a warrantless blood draw as prior offenses for the purpose of increasing the criminal penalty in subsequent operating while intoxicated (OWI) prosecutions.

    SUMMARY: Defendant Forrett was charged with OWI (seventh offense), a Class F felony, along with several other charges. As part of a plea agreement, he pleaded guilty to the OWI charge, and the other charges were dismissed. The circuit court sentenced him to six years’ initial confinement followed by five years’ extended supervision. Counted as one of the six prior offenses was a 1996 revocation of his operating privileges for refusing to submit to a warrantless blood draw after he was stopped on suspicion of OWI; that encounter did not result in an OWI conviction. Nonetheless, under Wisconsin’s graduated-penalty scheme for repeat OWI offenders, that 1996 revocation counts as a prior offense. See Wis. Stat. § 343.307(1).

    In a postconviction motion, Forrett argued that it was unconstitutional to count as a criminal offense the 1996 revocation for refusing to submit to a warrantless blood draw and thus he should only have been charged with a sixth-offense OWI, which carries a lesser, Class G, felony penalty. His argument relied on North Carolina v. Birchfield, 579 U.S. 438 (2016), which held that a state cannot threaten or impose criminal penalties for refusing to submit to warrantless blood draws. Forrett also relied on State v. Dalton, 2018 WI 85, Wis. 2d 147, 914 N.W.2d 120, which held that a court cannot use an OWI defendant’s refusal to submit to a warrantless blood draw as a reason to impose a more severe criminal penalty on a defendant.

    The circuit court denied Forrett’s motion. In a published opinion, the court of appeals reversed. It concluded that under Birchfield and Dalton, counting the defendant’s prior refusal to submit to a warrantless blood draw impermissibly penalized his Fourth Amendment right to be free from an unreasonable warrantless search. By way of a remedy, the court of appeals commuted Forrett’s conviction to a sixth-offense OWI and remanded the matter to the circuit court for resentencing.

    In a majority opinion authored by Justice Dallet, the supreme court affirmed but modified the decision of the court of appeals. It agreed with the court of appeals that it is unconstitutional under Birchfield and Dalton to use an OWI defendant’s refusal to submit to a warrantless blood draw as a reason to increase the criminal penalty for a separate, subsequent OWI conviction. Said the majority: “the OWI statutes are facially unconstitutional to the extent that they count a prior, stand-alone revocation resulting from a refusal to submit to a warrantless blood draw as [a prior] offense for the purpose of increasing the criminal penalty [in a subsequent OWI prosecution]” (¶ 14).

    However, there would be no constitutional issue if, in the prior matter, the defendant was convicted of OWI and was also revoked for failing to submit to a warrantless blood draw; this is because under Wisconsin’s counting statute, the OWI conviction and the implied-consent revocation are counted as one prior offense and thus “there is no criminal penalty for the revocation” (¶ 13).

    As for the remedy in this case, the supreme court disagreed with the court of appeals’ decision to commute the conviction to a sixth-offense OWI. Instead, the supreme court remanded the matter to the circuit court with instructions to vacate the judgment of conviction and to conduct further proceedings consistent with the court’s decision (see ¶ 20). The supreme court noted that under the terms of the plea agreement, the defendant agreed to plead to a seventh-offense OWI in exchange for the state dismissing the other charges pending against him. Because the defendant could only have been convicted of the lesser sixth-offense OWI under the court’s decision in this opinion, the basis for the bargain struck between him and the state has been altered in such a way that the plea agreement cannot be enforced (see ¶ 19). Among the cases cited in support of this conclusion was State v. Briggs, 218 Wis. 2d 61, 579 N.W.2d 783 (Ct. App. 1998) (“reasoning that vacating one of several convictions obtained by a plea agreement required vacating the entire plea agreement”).

    Justice Hagedorn filed a dissenting opinion that was joined in by Chief Justice Ziegler and Justice Roggensack.

    Public Records Law

    Pre-Release Judicial Review of Public Records Responses – Declaratory Judgments Act

    Wisconsin Mfrs. & Com. v. Evers, 2022 WI 38 (filed 7 June 2022)

    HOLDING: The public records law’s general prohibition on pre-release judicial review of decisions to provide access to public records bars the plaintiffs’ claims.

    SUMMARY: The Milwaukee Journal Sentinel made public-records requests to the Wisconsin Department of Health Services (DHS) for certain documents related to the COVID-19 pandemic. After learning that the DHS planned to respond by releasing a list of “all Wisconsin businesses with over 25 employees that have had at least two employees test positive for COVID-19 or that have had close case contacts that were investigated by contact tracers” and the number of such tests or contacts at each business, Wisconsin Manufacturers and Commerce and two other trade associations (hereinafter WMC) brought an action seeking declaratory and injunctive relief to stop the release. WMC alleged that releasing the list would violate the patient health-care-records statutes, Wis. Stat. section 146.81 and 146.82, in two ways: 1) it would allow for the identification of its member businesses’ employees; and 2) the list is derived “from diagnostic test results and the records of contact tracers investigating COVID-19” and therefore must be kept confidential as a patient-health-care record. Additionally, WMC asserted that the public records law’s common-law balancing test weighs against disclosure because releasing the list will injure the reputations of its member businesses and violate employees’ privacy rights (see ¶ 3).

    WMC did not bring its case directly under either the patient-health-care rec-ords statutes or the public records law. Instead, it brought its claims pursuant to the Wisconsin Uniform Declaratory Judgments Act (Wis. Stat. section 806.04), requesting a declaration that the DHS’s planned release would be unlawful under either the patient health-care-records statutes or the public records law.

    The circuit court granted a temporary restraining order halting the planned release of the list. In a published decision, the court of appeals reversed the circuit court. See 2021 WI App 35. In a majority opinion authored by Justice Dallet, the supreme court affirmed the decision of the court of appeals. As framed by the majority, the issue before the court was whether the public records law’s general prohibition on pre-release judicial review of decisions to provide access to public records bars WMC’s claims (see ¶ 1). The majority concluded that it does.

    The general rule under Wis. Stat. section 19.356(1) is that “no person is entitled to judicial review of the decision of an authority to provide a requester with access to a [public] record.” The statute identifies some limited exceptions, including a provision that notice or pre-release judicial review may be available when “otherwise provided by statute.”

    WMC argued that pre-release judicial review is almost always available under the Declaratory Judgments Act and that Wis. Stat. section 19.356(1) does not eliminate the common-law right to pre-release judicial review (see ¶ 11). The majority concluded that “§ 19.356(1) clearly and unambiguously eliminated the common-law rights on which WMC relies” (¶ 15). It further rejected WMC’s argument that the Declaratory Judgments Act falls within the exception to Wis. Stat. section 19.356(1) for statutes that “otherwise provide[]” for pre-release judicial review of records responses. Said the majority, this claim “is contrary to the text of both the Act itself and § 19.356” (¶ 16). In sum, the court concluded that WMC’s complaint failed to state a claim upon which relief may be granted because the claim is barred by Wis. Stat. section 19.356(1) (see ¶ 22).

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


    Summary Judgment – Residential Facilities – Wis. Stat. chapter 655

    Andruss v. Divine Savior Healthcare Inc., 2022 WI 27 (filed 6 May 2022)

    HOLDING: A negligence action against a community-based residential facility (CBRF) was not governed by Wis. Stat. chapter 655.

    SUMMARY: Plaintiffs brought a wrongful death claim against a CBRF after a family member died at the facility. The circuit court dismissed the claims on grounds that Wis. Stat. chapter 655 precluded them. In a published decision, the court of appeals reversed. See 2021 WI App 8.

    The supreme court affirmed the court of appeals in a unanimous opinion authored by Chief Justice Ziegler. First addressing the appropriate standard of review, the court held that procedurally the matter was one of summary judgment, not a motion to dismiss (see ¶ 19). “To facilitate effective and efficient appellate review, circuit courts must properly identify the motion that is before them and structure their analysis under the correct, applicable standard. The defendants’ motion presented itself as a motion for summary judgment, and the circuit court should have recognized it as such when it granted the motion and explained its reasoning” (¶ 20). The crucial point was that the parties and the circuit court judge went beyond the pleadings, examining evidence that was submitted to support their respective arguments. “Procedural posture matters. In many cases, it materially impacts the outcome of disputes” (¶ 22).

    Second, the case was not subject to Wis. Stat. chapter 655, which governs medical negligence actions, because the wrongful death claim was “not against a health care provider covered by Chapter 655” (¶ 29). “The legislature expressly identified individuals and service providers covered by Chapter 655 and did not include CBRFs on the list. … Section 655.002 unambiguously places the CBRF services forming the basis of Andruss’s lawsuit outside the scope of Chapter 655” (¶ 30).

    The court contrasted CBRFs with hospitals and nursing homes. “[I]t is clear from the plain text of Wis. Stat. § 655.002 and the definition and regulation of service providers under Chapter 50, from which Chapter 655 derives its legal definitions, that hospitals, nursing homes, and CBRFs are different operations with different meanings. While Chapter 655 covers hospitals and certain nursing homes, it unambiguously does not cover CBRFs” (¶ 35).

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