On Point is On Hiatus!

by admin on July 29, 2015

Dear readers: On Point will be in “maintenance mode” for the new few weeks so that we can do some updating and redesigning. We’ll let you know when it is back up. Don’t worry. You won’t miss anything. Posts on cases issued during the hiatus will be waiting for you when On Point returns.  See you soon!

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A Toast to Judge Brown!

by admin on July 27, 2015

The Original Wisconsin Court of Appeals. Top L-R: Patrick Donlin, John Foley, William Moser, Harold Bode, Richard Brown, Martha Bablitch, Charles Dykman. Bottom L-R: Robert Dean, Robert Cannon, John Decker, Clair Voss, Paul Gartzke

The Original Court of Appeals. Top L-R: Patrick Donlin, John Foley, William Moser, Harold Bode, Richard Brown, Martha Bablitch, and Charles Dykman. Bottom L-R: Robert Dean, Robert Cannon, John Decker, Clair Voss, and Paul Gartzke

Richard Brown, one of the original judges elected to the Wisconsin Court of Appeals in 1978, retires this week. Thirty-seven years of judging translates into some pretty impressive statistics. According to a Westlaw Reference Attorney, Judge Brown appears in their database as the member of a panel on 6,511 opinions (and that doesn’t count one-judge opinions). The court of appeals’ database (which only goes back to 1992) shows him associated with a staggering 9,393 written decisions. And staff attorney tallies show that he authored 965 three-judge opinions and 617 one-judge opinions since 1982. No one has dared to count the number of appellate briefs he has read. Because he is the longest-serving judge on the court of appeals (and started at age 32), it seems doubtful that colleagues will break his records any time soon.

KELLI THOMPSON, Wisconsin State Public Defender:

Judge Brown, congratulations on your distinguished career as one of our state’s longest-serving judges.  Your 37-year track record on the Wisconsin Court of Appeals is truly an inspiring reflection of your commitment to the profession and to the State of Wisconsin.  Your stewardship of the court and your dedication to equality for disabled individuals in the system and the profession stand as enviable legacies.  On behalf of the staff of the Wisconsin State Public Defender, may you enjoy a long and satisfying retirement sharing laughter and joy with your family and friends.

ANN PETERSEN, former Assistant State Public Defender:

After I graduated from the University of Wisconsin Law School in 1978, I became Judge Richard Brown’s first law clerk. He has been on the Court of Appeals now for 37 years. I have been a lawyer now for 37 years. He has decided cases, both civil and criminal, in every area of the law imaginable. I left the Court of Appeals after my one year clerkship and for another 1 ½ years was an Assistant Public Defender in the Appellate Division in Milwaukee. After that I moved to North Carolina and for the past 35 years have been representing primarily criminal defendants charged or convicted of capital crimes. During these past 37 years we have remained close friends, have had good family times, good golfing times and bad health scares. He has had a wonderful career as a judge and I have had a wonderful career as a private lawyer. But after all these 37 years, I can say without equivocation that the year I clerked for Judge Brown was by far the best year of my legal career.

We had many very difficult cases, both civil and criminal, that we argued, fought, researched and wrote our way through. When I left, I was proud of the cases Judge Brown wrote that I was involved in.   But when asked what case written by Judge Brown that I was the most proud of, it was a case that he wrote after I left. In the Matter of the Adoption of R.P.R.: Brandt v. Riordan, 95 Wis. 2d 573, 291 N.W.2d 591 (Ct. App.  1980).

Ron Brandt was a childhood friend of mine and at the time of this case, he was a fellow Public Defender. Ron was fighting to keep the custody of his son that he was adopting after Ms. Riordan had asked to withdraw her consent to the adoption. When I found out that Judge Brown was asked to sit in District 1 with Judge Moser and Judge Decker on this case, I was comforted. During the year I clerked for Judge Brown his standard was always “follow the law but find the right, fair and just result. If we get reversed, we get reversed.” The opinion he wrote in this case was courageous. He used the law, followed the law and found the right, fair and just result. As the Wisconsin Supreme Court stated, quoting from an earlier case, In re Adoption of Morrison: Jones v. Maneswitz, 260 Wis. 50, 57, 49 N.W.2d 759 (1951):

This is one of the most difficult cases to decide that comes to our courts, it deals with the human love and affection of the natural mother for her son, that she has suffered the pain of childbirth to bring him into the world — and on the other side, it affects the love of the people, who in their effort, to divide their love with some child, have taken all the legal steps they know, to bring that child into their home as their own, to love, protect, educate, and make it their legal heir. No one has tried harder to follow the law of adoption, than the petitioners, for the adoption of this child. . . .

The Wisconsin Supreme Court reversed Judge Brown’s decision, In Re the Adoption of R., 98 Wis.2d 613, 297 N.W.2d 833 (1980), but his courageous decision resulted in a very close look into the private adoption process to prevent a repeat of what happened in this case.

I look back on my 37 years of practice as a lawyer and know that I would not be the lawyer I am today if it had not been for the many hours of our “devil’s advocacy.” Now it is time for Judge Brown to turn into “Rick” and for that advocacy time to turn into golf and family time. Play well my friend and enjoy. You have earned it.

BILL TYROLER, Retired Assistant State Public Defender:

An absolutely great opening line, from one of our finest judicial authors:

alphonse_and_gaston-largeBROWN, C.J.   This is a sentence credit case resembling the Alphonse and Gaston cartoon.  More precisely, when an offender is on a parole hold in a different sovereignty that has not acted to revoke parole, should the circuit court grant sentence credit in Wisconsin for the time the offender spent in presentence confinement in Wisconsin?  Or, may the Wisconsin court deny credit on the grounds that the foreign sovereignty may yet act to give credit in that state and, if it does, then the offender would be receiving double credit?  We conclude that until the other sovereignty has actually acted on whether to grant credit, the Wisconsin sentence is the only outstanding sentence against which the court can grant credit.  Therefore, the question of “double credit” is not ripe.  So the Wisconsin court, the only court the issue of credit is before, should grant credit.  Otherwise, if the other sovereignty never acts, the offender would not receive credit where credit is due.  We reverse because the trial and postconviction court in this case refused to order sentence credit. State v. Eliseo Brown, 2010 WI App 43, ¶1, 324 Wis. 2d 236, 781 N.W.2d 244.

MARLA STEPHENS, Retired State Public Defender Appellate Division Director:

As Appellate Division Director for the State Public Defender, I often asked Chief Judge Brown for help. “Can we talk about what you all want in your no merit reports?” “How do you want us to cite confidential presentence material?” “Why are some lawyers singled out in footnotes?” He never said no. He invited the director of the DOJ’s Criminal Appeals Unit and me to address the court of appeals judges on several occasions. What I learned was that no one tells an elected official how to do anything. And I began to truly appreciate his leadership skills. I always admired his intellect, his integrity, his curiosity and his sense of humor. I loved reading his opinions. But really, at the end of it all, it was his ability to herd mountain lions that I’ll admire the most. Stay great, CJ Brown, and enjoy all the rest of life. You will be missed.

COLLEEN BALL, Assistant State Public Defender:

Dear Judge Brown: Most CLE programs on appellate advocacy are pretty dry. Not yours. Your “Top 10 Pet Peeves of Appellate Judges in Reverse Order (Letterman style)” was such a hit, the Appellate Practice Section had to extend its run—multiple times. Adding your nephew, the drummer, to the routine was a stroke of genius. It ensured the audience’s rapt attention from beginning to end. My favorite, however, was the District 2 CLE program where you walked in carrying a 2 or 3-foot stack of appellate briefs, dumped them (with a loud thud) on the speaker’s table and growled: “That’s how many appellate briefs we court of appeals judges read each month. Yours better be concise and riveting or guess what?!!” Point made.

Regarding brevity . . . do you recall your interview for the 25th anniversary of the court of appeals? You told the story of a traveling trophy emblazoned with the caption Harrigan v. Gilchrist, a 334-page Wisconsin Supreme Court opinion. Each year, the trophy went to the court of appeals judge who wrote the longest opinion with the hope that it would cow the recipient into writing more succinctly. I’m betting that’s one award you never received. If memory serves, the trophy has gone missing. That seems fitting now that Harrigan v. Gilchrist is no longer the longest Wisconsin Supreme Court opinion. [Imagine loud thud here. :-)]

So many people, from all walks of life, depend upon the care and thoughtfulness of Wisconsin’s judges. Thank you for the energy and attention that you gave so steadily to your work.

JOE EHMANN, Regional Attorney Manager:

I first met Judge Brown in 1986 while clerking for another of the original court of appeals judges. Although considerably younger and less experienced than his peers at the court’s inception, by that point eight years in Judge Brown was respected and even admired by the other judges and court personnel not just for the quality of his work, but also for how he handled the personally challenging circumstance of doing the job after losing his ability to hear.

By the time I returned to Wisconsin in 1997 to do public defender appellate work, Judge Brown and Judge Dykman were the last of the originals still standing; or I guess more accurately, sitting. Judge Dykman’s retirement in 2010 and now Judge Brown’s in 2015 sever the last link to that original court which at least in regard to public defender clients was for better or worse, but mainly better, less predictable.

I appreciate the clarity and brevity of Judge Brown’s written opinions. But what I most appreciate is Judge Brown’s good humor, approachability and outside of work, his friendship through the years. It is a retirement well earned and well deserved. You will be missed.

ANDY HINKEL, Assistant State Public Defender:

Clerking for Judge Brown was a marvelous start for a new lawyer. His public persona is no act–his devotion to justice, and the court’s role in seeking it, was apparent day to day. He would have strong views on this or that legal point, worked out over his then-28 years on the court, but he never let it get in the way of giving (at least seemingly) respectful consideration to contrary ideas, even from a 28-year-old recent law grad. He was serious about the law and the court, but not a bit stuffy–in fact, as down-to-earth a boss as one could hope for. I am grateful to have worked with him.

SARA BRELIE, Assistant State Public Defender:

I had the pleasure of clerking for Judge Brown for 2 ½ years from 2010-2013. He was and is a remarkable mentor—a fun, engaging and enthusiastic teacher who loves telling stories about his experience as a judge and lawyer and who cares deeply about the law. He always welcomed and encouraged discussion of his reasoning, whether that discussion was with another judge, a clerk or a student intern. Because of his dedication to mentoring others, I know that his contributions to Wisconsin law will continue long after he retires.

After clerking for Judge Brown, I worked at the Frank J. Remington Center and recently became an Assistant State Public Defender in the Madison Appellate office. When I was working for the Remington Center, I contacted Judge Brown because I wanted my students to see the court of appeals and meet an appellate judge. Judge Brown enthusiastically welcomed 20+ students and four supervising attorneys to District II on fairly short notice. He and another judge took over an hour out of their day to talk to the students about brief-writing and to answer their questions. That hour led to many thoughtful conversations on the ride home and after, and my students told me what a meaningful experience that was for them.

Judge Brown, I have said this to many others and I hope I have said it to you, too – clerking for an appellate judge with your experience, perspective and enthusiasm for talking about the law was an incredible way to start my career. Thank you, and enjoy your retirement!

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Last December then Chief Justice Abrahamson wrote a concurrence to State v. Gonzalez, which publicized SCOW’s new procedures and deadlines for drafting, circulating, and issuing opinions. Abrahamson criticized the procedures partly because SCOW adopted them in private and partly because they eliminated the conferences where justices discussed their draft opinions and their thoughts about writing a concurrence or dissent. On Point reported the development here.  With last week’s John Doe decisions, the 2014-2015 term ended. That means it’s possible to determine whether the new procedures have made a difference. See for yourself on today’s edition of SCOWstats.

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Trial counsel in TPR reasonably advised incarcerated parent to admit grounds for termination

July 22, 2015

Kenosha County DHS v. A.C., 2015AP151, District 2, 7/22/15 (one-judge decision; ineligible for publication); case activity Trial counsel for A.C. in his TPR proceeding wasn’t ineffective for failing to tell A.C. that his incarceration was not enough by itself to terminate his parental rights or for failing to challenge the TPR proceeding on the basis that […]

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Reference to contents of DOC records at ch. 980 trial wasn’t improper

July 22, 2015

State v. Jon F. Winant, 2014AP1944, District 1, 7/21/16 (not recommended for publication); case activity (including briefs) Paperwork created by DOC during the revocation of Winant’s parole and probation for having unsupervised contact with A.G., a minor, was properly admitted at Winant’s ch. 980 trial under § 908.03(8), the public records and […]

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Driveway wasn’t part of curtilage

July 22, 2015

Oconto County v. Joseph R. Arndt, 2014AP2955, District 3, 7/21/15 (one-judge decision; ineligible for publication); case activity (including briefs) Arndt was not arrested within the curtilage of his home under the test established by United States v. Dunn, 480 U.S. 294 (1987).

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Circuit court’s Ch. 51 decision appropriately relied upon expert report that was based upon hearsay

July 22, 2015

Walworth County DHS v. M.M.L., 2014AP2845, 7/15/15, District 2 (one-judge opinion, ineligible for publication); case activity (including briefs) The court of appeals affirms the involuntary commitment for M.M.L. under § 51.20(1)(a)2.c., which requires evidence of impaired judgment based on recent acts or omissions showing a substantial probability that she would physically […]

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SCOW invalidates Wisconsin statute governing coordination between candidates and certain independent groups; halts John Doe probe based on alleged violations of the law

July 21, 2015

State of Wisconsin ex rel. Two Unnamed Petitioners v. The Honorable Gregory Peterson et al.; State of Wisconsin ex rel. Francis D. Schmitz v. the Honorable Gregory Peterson, & State of Wisconsin ex rel. Three Unnamed Petitioners v. The Honorable Gregory Peterson, et al., 2015 WI 85, issued 7/16/15; case activity: […]

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SCOW: Sentencing judge’s reference to losing family member to drunk driver didn’t establish bias

July 15, 2015

State v. Jesse L. Herrmann, 2015 WI 84, 7/15/15, afffirming an unpublished per curiam court of appeals decision; case activity (including briefs) All seven justices agree Herrmann’s due process right to an impartial judge wasn’t violated in this case, as the sentencing judge’s remarks didn’t establish the judge was was […]

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SCOW, reversing itself, holds that officer’s traffic stop can be based on mistake of law

July 15, 2015

State v. Richard E. Houghton, 2015 WI 79, 7/14/14, reversing an unpublished court of appeals opinion, 2013AP1581-CR; majority by Prosser, dissent by Abrahamson (joined by Bradley); case activity (including briefs) You’ve seen this before. An officer makes a traffic stop based on a “misunderstanding” of the law, then conducts a […]

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