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Wisconsin Constitution – Construction – “New Federalism” – Art. I, § 11

State v. David J. Roberson, 2005 WI App 195, affirmed on other grounds, 2006 WI 80
For Roberson: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: ¶15 n. 3:

Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899. (No. 2000AP2590-CR), and as providing greater due process protection than the Fourteenth Amendment, State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582. (No. 2003AP1690-CR). However, to date, it has not construed art. I, sec. 11 of the Wisconsin Constitution differently than the Fourth Amendment to the U.S. Constitution. We therefore interpret the state provision as providing the same level of protection from governmental searches and seizures as the federal provision. See State v. Eason, 2001 WI 98, ¶47, 245 Wis. 2d 206, 629 N.W.2d 625 (“[W]e are reluctant to construe our state constitutional provision differently than the fourth amendment, especially since the two provisions are intended to protect the same interests and we are unconvinced that the Supreme Court provides less protection than intended by the search and seizure provision of the Wisconsin Constitution.”).

(But note: this footnote was subsequently amended. The original text remains posted above, along with commentary immediately below, so that the dispute can be intelligently followed.) The ink barely dry on the supreme court’s “New Federalism” revolution, the court of appeals’ Thermidorian Reaction rears its head. Somewhat polemical? Sure, but compare the court of appeals’ spin on Eason with the supreme court’s, in Knapp itself, 2005 WI 127, ¶73 n. 14 (emphasis supplied):

This is not the first time we have explicitly departed from federal constitutional jurisprudence to extend greater rights to Wisconsin citizens. …In State v. Eason, 2001 WI 98, ¶63, 245 Wis. 2d 206, 629 N.W.2d 625, this court departed from the Supreme Court’s holding in United States v. Leon, 468 U.S. 897, 919-20 (1984), where the Supreme Court formulated an exception to the exclusionary rule where a police officer relied in good faith upon a search warrant issued by an independent and neutral magistrate. This court concluded that for the good faith exception to apply, “the State must show that the process used attendant to obtaining the search warrant included a significant investigation and a review by a police officer trained in, or very knowledgeable of, the legal vagaries of probable cause and reasonable suspicion, or a knowledgeable government attorney.” Eason, 245 Wis.  2d 206, ¶63. Although the Supreme Court did not require this in Leon, this court held “that Article I, Section 11 of the Wisconsin Constitution requires this process and thus affords additional protection than that which is afforded by the Fourth Amendment.”  Id.

On the other hand, the result in Roberson may suggest that search and seizure issues will be treated differently because the underlying values they protect are simply different than those at stake in self-incrimination and due process issues. Put baldly, the latter implicate reliability of the fact-finding process, while the former actually distorts it. An old dispute to be sure, whether protection against overweening governmental intrusion trumps other values, but the “new federalism” cases surely renew it. Indeed, the very problem is precisely the one obscured by the court of appeals: New Federalism creates (or, rather, restores) a different paradigm for 4th amendment analysis, one in which “judicial integrity” is at least as important as cost-benefit (or deterrence of police misconduct). It may be that notions of integrity are insufficiently triggered on these particular facts, but it something else altogether to say, as the court of appeals plainly does, that such notions are simply irrelevant. It is very hard not to see this as an opening salvo in an ideological war. Will the supreme court issue a riposte, or will it be content to see the New Federalism line of march halted before it’s even left the trench?

UPDATE: The court of appeals subsequently amended footnote 3 (presumably in response to Roberson’s petition for review, which was highly critical of the court’s misrepresentation of Eason. The court’s authority to issue this post-publication amendment is questionable: although the court certainly has authority to reconsider the decision on its own motion, within 30 days of the PFR, § 809.24(3) (action which the court indeed took earlier in this very case), it is far from clear that this can be done after publication has been ordered and even more doubtful that language can be changed short of full withdrawal. This is because the court of appeals simply “does not have the power to overrule, modify, or withdraw any language from” its own published decision, State v. Miyosha White, 2004 WI App 237, ¶7. Indeed, this very strictly-observed limitation derives from the Art. VIII principle that the court of appeals is a unitary court, Cook v. Cook, 208 Wis. 2d 166, ¶¶41-55, 560 N.W.2d 246 (1997). It follows that that principle is violated when a panel issues a post-publication amendment. This leads to a somewhat related point: a post-publication amendment subverts the publication process; who is to say that the publication committee would have ordered publication of the changed text? Now, the new language (new text is highlighted, deleted text struckthrough):

Recently, the Wisconsin Supreme Court construed article I, § 8 of the Wisconsin Constitution as providing greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, State v. Knapp, 2005 WI 127, ¶¶1-2, __ Wis. 2d __, 700 N.W.2d 899. (No. 2000AP2590-CR), and as providing greater due process protection than the Fourteenth Amendment, State v. Dubose, 2005 WI 126, ¶¶39-41, __Wis. 2d __, 699 N.W.2d 582. (No. 2003AP1690-CR). However, to date, it has not generally construed the search and seizure protections of art. I, sec. 11 of the Wisconsin Constitution to be coextensive with those of differently than the Fourth Amendment to the U.S. Constitution. We therefore interpret the state provision as providing the same level of protection from governmental searches and seizures as the federal provision. See State v. Eason, 2001 WI 98, ¶47, 245 Wis. 2d 206, 629 N.W.2d 625 See State v. Fry, 131 Wis. 2d 158, 388 N.W.2d 565 (1986) (“[W]e are reluctant to construe our state constitutional provision differently than the fourth amendment, especially since the two provisions are intended to protect the same interests and we are unconvinced that the Supreme Court provides less protection than intended by the search and seizure provision of the Wisconsin Constitution.”). (Citation omitted.)

The emendation is an improvement only in the sense that it elides reference to Eason, and so removes an express misrepresentation of caselaw. But it is no less satisfactory in the sense that it fails to acknowledge that we have granted greater protection specifically in the 4th amendment context; and, thus, also fails to explain just when greater protection will be afforded.

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