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Issue Preclusion

State v. Shannon J. Perronne, 2011AP1731-CR, District 2, 5/16/12

court of appeals decision (1-judge, not for publication); for Perrone: Casey J. Hoff; case activity

When the principal State’s witness failed to appear at a suppression hearing, the trial court ordered suppression and dismissed the charge. The State then refiled the complaint and the trial court vacated the suppression order, eventually denying suppression on the ground that probable cause supported arrest. Now on appeal following conviction, the court holds that, because probable cause was not actually litigated prior to the initial suppression order, issue preclusion didn’t bar the reversal of course on suppression.

¶6        Perronne argues that the doctrine of issue preclusion barred the State from refiling charges against her after Judge Langhoff granted her motion to suppress and dismissed the case without prejudice.  The doctrine of issue preclusion prevents the relitigation of issues that have already been litigated by the same parties or their privies.  Flooring Brokers, Inc. v. Florstar Sales, Inc., 2010 WI App 40, ¶6, 324 Wis. 2d 196, 781 N.W.2d 248.  We apply a two-step test to determine whether issue preclusion bars a litigant’s claim:  (1) can issue preclusion apply as a matter of law?; (2) if yes, would the application of issue preclusion be fundamentally unfair?  Id.  In the first part, when examining whether issue preclusion applies to an issue or fact, a court must determine if the issue or fact was actually litigated and was necessary to the judgment.  Id., ¶7.  If the first part of the test is not satisfied, we do not address the fairness factors in part two.  Id., ¶8.

¶7        We hold that Perronne’s motion to suppress was not actually litigated and thus issue preclusion does not apply.  Our decision is guided by City of Sheboygan v. Nytsch, 2006 WI App 191, 296 Wis. 2d 73, 722 N.W.2d 626. …

¶8        …  Just because an issue could have been raised does not mean it was actually litigated.  Id.  At Nytsch’s judicial review hearing, no testimony was taken or evidence introduced.  Id., ¶14.  We stated that the circuit court “did not have the benefit of deciding the issue in an adversarial context.  Indeed, the court’s comments suggest that the issues underlying the status of Nytsch’s driving privileges, which would include probable cause to arrest, would be litigated at a later date ….”  Id.  As the issue of probable cause was not actually litigated, the City was not precluded from litigating that issue on the merits.  Id.

¶9        We hold that the issue of whether Kraemer had probable cause to pull over Perronne was not actually litigated at the March 23 motion hearing.  At one point during the hearing Judge Langhoff stated, “I’m not going to rule on the motion today.”  It was only after Kraemer failed to appear that Judge Langhoff granted the motion and dismissed the case without prejudice.  The motion hearing was not adversarial and no testimony was taken or any evidence introduced.  Furthermore, the circuit court even intimated that its ruling was not an end to the litigation when it stated, “If [the State] want[s] to start over, they can.”  The March 23 hearing did not decide the merits of whether there was probable cause to stop Perronne’s vehicle.  As claim preclusion does not apply as a matter of law, we need not address whether application of the doctrine would be fundamentally unfair.

That the suppression order was vacated by a different judge isn’t meaningful, ¶10: a successor judge has the same power to modify or reverse the predecessor’s orders as the predecessor him- or herself, Dietrich v. Elliot, 190 Wis. 2d 816, 822, 528 N.W.2d 17 (Ct. App. 1995) (“the power to modify a judicial ruling belongs to the court, not to any individual judge”).

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{ 1 comment… add one }
  • Robert R. Henak May 17, 2012, 7:26 am

    Many will find this decision hard to swallow. The burden was on the state at the first suppression hearing; it failed to meet its burden; and the Court accordingly ordered suppression. What wasn’t litigated?

    This result will be especially puzzling to all of those criminal defendants who have been deemed to have waived or forfeited claims because they did not raise them adequately in the trial court when they had the chance.

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