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Common Law defenses – Collateral Attack on Element of Custody Order, § 948.31, as Procured by Fraud

State v. John W. Campbell, 2006 WI 99, on certification
For Campbell: Charles B. Vetzner, SPD, Madison Appellate

Issue: Whether a § 948.31 defendant is entitled to raise a common-law privilege defense against the element of “legal custody” by collaterally attacking the court’s custody order as having been procured by fraud.


¶56      There are good reasons not to recognize a common law affirmative defense of fraud to interference with child custody.¶57      One species of affirmative defense——exemplified by self-defense and the now-abrogated privilege to resist unlawful arrest——that courts recognize arises where a person is faced with the difficult decision whether to commit a crime or suffer an injury not otherwise susceptible to effective redress.  SeeHobson, 218 Wis.  2d at 373-80. …

¶58      For similar reasons, no affirmative defense for fraud can justify interference with legal custody of a child unless there is a credible threat of physical harm. … Adequate judicial processes exist to attack an order or judgment for fraud.  In this case, Campbell received a de novo hearing on the family court order in the circuit court. See Wis. Stat. § 757.69(8). If he had fully pursued the de novo hearing, he would have received a decision, and he could have sought an appeal of an adverse determination. …

¶59      Recognition of an affirmative defense entails the balancing of competing policy considerations. We believe the legislature properly balanced the competing policies when it established four affirmative defenses to interference with legal custody of a child. See Wis. Stat. § 948.31(4)(a). …

¶60      None of these legislatively created affirmative defenses applies in this case. …

¶62      Under the facts of this case, we refuse to recognize a common law affirmative defense of fraud. …

A fact-specific result, then, that doesn’t really resolve the general problem of whether or when you can collaterally attack a court order or judgment in defense of a criminal charge. The court notes: “Though the court of appeals has stated in criminal cases that a judgment or order may be collaterally attacked if procured by fraud, the court of appeals has never applied the rule in these cases,” ¶55. The certification asked the supreme court to determine whether there is indeed “a fraud exception to the general rule which bars a collateral attack against an order or judgment of another judicial body in the context of a criminal proceeding[.]” The court says that its “holding does not eviscerate the Bouzek rule [which recognizes a general fraud-exception to the collateral attack bar]; it helps define and give substance to the Bouzek rule,” ¶62; but that is true only in the negative sense that the court finds no such exception “under the facts of this case.” It might be worth pausing to recall that courts don’t seem at all hesitant to find a fraud-based exception to finality when the defendant benefited from the fraud— e.g., State v. Ary L. Jones, 2002 WI App 208, ¶14 (“The rule we adopt in Wisconsin, therefore, is that when a defendant makes a fraudulent representation to the sentencing court and the court accepts and relies upon that representation in determining the length of the sentence, the defendant has no reasonable expectation of finality in the sentence. The court may later declare the sentence void ….”).


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