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State v. Ginger M. Breitzman, 2015AP1610-CR, petition for review granted 3/13/2017

Review of an unpublished court of appeals decision; case activity (including briefs)

Issues (composed by On Point)

  1. Was trial counsel ineffective for failing to move to dismiss on First Amendment free speech grounds a disorderly charge that was based on Breitzman’s use of foul language toward her son inside their home?
  2. Did the court of appeals misapply the standards for reviewing ineffective assistance of counsel claims by deferring to the legal conclusions in the circuit court’s postconviction ruling?

Breitzman was convicted of child abuse, child neglect, and disorderly conduct based on conduct involving her son, J.K. She raised various challenges to her convictions (described more fully in our post on the court of appeals decision). The supreme court will review her claims that trial counsel was ineffective for: 1) not moving to dismiss the disorderly conduct charge on First Amendment grounds; 2) failing to object to other acts evidence; and 3) arguing a theory of defense (reasonable parental discipline) that contradicted Breitzman’s own testimony denying the disciplinary acts.

As our prior post explained, the court of appeals did a slapdash job addressing the IAC claims. First, it didn’t acknowledge, much less engage, the particulars of Breitzman’s First Amendment argument; instead, the court of appeals simply cited the circuit court’s postconviction ruling that it would have denied a motion to dismiss on First Amendment grounds, and says counsel can’t be ineffective for filing a motion that would have been denied. (¶22). But would the circuit court have been correct in denying a dismissal motion? The court of appeals never addressed the merits of that question.

And Breitzman asks a good question. The disorderly conduct arose from an incident in the family home where J.K. burned some popcorn, after which Breitzman berated him with foul language, told him to get his stuff out of his room, and said she was going to call police. (¶5). Breitzman argued that even if her comments to J.K. were inappropriate or degrading they don’t fall under an exception to the First Amendment’s bar against criminalizing speech: They weren’t an incitement or a threat; they weren’t obscene, libelous or defamatory; they weren’t “fighting words” which by their very utterance “tend to incite an immediate breach of the peace,” Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942), and were not uttered under circumstances of “clear and present danger” of an immediate threat to public safety, peace, or order, In re A.S., 2001 WI 48, ¶41, 243 Wis. 2d 173, 626 N.W.2d 712. Moreover, the DC statute doesn’t punish conduct that causes personal annoyance but doesn’t involve a real possibility of spilling into and disrupting the surrounding community, State v. Schwebke, 2002 WI 55, ¶30, 253 WIs. 2d 1, 644 N.W. 2d 666. As the free speech tribunes over at the Volokh Conspiracy suggested, the logic of the court of appeals decision makes the DC statute very broad and very vague. We’ll see what the supreme court makes of it.

The court of appeals also decided the other IAC claims by asserting that the circuit court’s postconviction ruling on whether counsel had a reasonable strategy is “virtually unassailable.” (¶23). That’s just plain wrong, and misunderstands its cited source (State v. Maloney, 2004 WI App 141, ¶23, 275 Wis. 2d 557, 685 N.W.2d 620, aff’d, 2006 WI 15, 288 Wis. 2d 551, 709 N.W.2d 436): What is “virtually unassailable” is trial counsel’s reasonable strategic decision, but whether trial counsel made a reasonable strategic decision to begin with is itself a question of law that is reviewed de novo without the kind of abject deference to the circuit court erroneously employed here. (On that point, our prior post summarizes why trial counsel’s strategy doesn’t look too reasonable.)

So the bottom line is that the court of appeals failed properly to apply the well-known standards of review for IAC claims. Thus, in addition to the substance of the First Amendment claim, this case is about reinforcing the existing IAC standard and reviewing whether the court of appeals’ erred in applying that standard, and that makes this a case postconviction and appellate lawyers should keep an eye on.

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