State v. Walter Leutenegger, 2004 WI App 127
For Leutenegger: Bill Ginsberg
Issue/Holding: “[The court of appeals is] bound by the most recent pronouncements of the Wisconsin Supreme Court,” ¶5, quoting Jones v. Dane County, 195 Wis. 2d 892, 918 n.8, 537 N.W.2d 74 (Ct. App. 1995). And, ¶10, utilizing same quote: “Therefore, we applyRichter because it is the most recent supreme court decision on the topic.”
But it’s not quite that simple. In context, Jones merely said that when supreme court cases conflict, you follow the more recent pronouncement. The distinction is significant because the court of appeals, unlike the supreme court, can’t modify language from prior cases, let alone reverse them. Here’s another statement of the applicable principle, from Kramer v. Board of Educ., 2001 WI App 244, ¶20, 248 Wis.2d 333, 344, 635 N.W.2d 857: “It is a long-standing rule that where supreme court decisions appear to be inconsistent, or in conflict, we follow the court’s most recent pronouncement. See Krawczyk v. Bank of Sun Prairie, 203 Wis.2d 556, 567, 553 N.W.2d 299 (Ct. App. 1996).” That last cited case says, “When the pertinent supreme court precedents appear to lead to different results, we follow that court’s last pronouncement.” You can begin to see the problem – the court of appeals simply elided the requirement that the precedents conflict (or appear to be inconsistent or to lead to different results). Richter does not, at first glance anyway, appear to conflict with relevant precedent; at worst, it leaves out a requirement (that the police officer utilizing emergency powers must be subjectively motivated to provide emergency-type assistance as opposed to mere crime-investigation) that seems not to have been contested or even argued on appeal. Is this nit-picking? No: the court simply isn’t applying the correct test. This leads to a separate, vexing procedural problem: the court of appeals lacks power, as noted, to change prior opinions,State v. Victor K. Johnson, 2004 WI 94, ¶¶17-18 (“It is our goal that the court of appeals speak with a unified voice…”) ; State v. Andre Bolden, 2003 WI App 155, ¶¶9-10; State v. William L. Morford, 2004 WI 5, ¶40. In other words, the court of appeals lacks authority in this very instance to change the applicable rule. And, to the extent Richter simply does not conflict with prior caselaw, the court of appeals lacks the authority to do away with the subjective-intent component of emergency searches. The precedential impact, in other words, is suspect. Leutenegger didn’t file a petition for review, so resolution of this potential problem will have to wait another day, if at all.
Also: State v. James F. Brienzo, 2003 WI App 203, ¶14.
If you’re curious as to how federal courts treat intra-circuit conflicting opinions, see this discussion by commentator Howard J. Bashman.