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Defense win: Nonprosecution agreement isn’t void for violating public policy

State v. Debra L. Rippentrop & Steven E. Rippentrop, 2023 WI App 15; case activity (including briefs) 2022AP92-CR and 2022AP93-CR

The nonprosecution agreement the Rippentrops made with the state doesn’t violate public policy and is therefore enforceable, and that requires the criminal charges filed against them to be dismissed with prejudice.

In 2019 the Rippentrops were charged with physical abuse of their son based on allegations first made in 2014 and 2015. They moved to dismiss the charges, asserting that in 2015, shortly after the allegations came to light and after the initiation of CHIPS proceedings regarding their son, the district attorney—who was oncerned about the child’s credibility and, thus, the ability to prove the charges— agreed not to criminally charge them if they agreed to terminate their parental rights. The Rippentrops performed their part of the bargain by ceasing to challenge the CHIPS proceeding and then petitioning for voluntary termination, which was granted in 2016; thus, they argued, the nonprosecution agreement should be enforced and the charges dismissed. (¶¶3-4, 7-17, 25-27).

In response, the state—now represented by a new district attorney elected in 2016—asserted the nonprosecution agreement was unenforceable because it violates public policy. The circuit court agreed, but it later dismissed the charges on the grounds that the previous district attorney engaged in prosecutorial misconduct by proposing an unenforceable agreement on which the Rippentrops relied to their detriment. (¶¶5, 28-32).

The state appealed the circuit court’s dismissal order, but the court of appeals doesn’t reach the issue of prosecutorial misconduct. Instead, it holds that the nonprosecution agreement doesn’t violate public policy and is therefore enforceable. (¶¶33-34).

The parties and the court agree that traditional principles of contract law apply to the agreement, including the principle that a contract is void if its enforcement would violate a public policy expressed by statute, administrative regulation, or a common law court decision. (¶¶48-49 & n.10). But this principle applies only in cases “free from doubt” and only if “the interests in enforcing the contract are clearly outweighed by the interests in upholding the policy that the contract violates.” (¶49 (quoted sources omitted)).

The state asserts the nonprosecution agreement violates public policy for two reasons:

First, the state claims the agreement is contrary to § 48.41, which governs voluntarily terminating parental rights and “expresses a policy that voluntary termination of parental rights must be, in fact, voluntary.” (¶52). The court of appeals disagrees: “In essence, the State appears to be arguing that any agreement requiring a parent to consent to a voluntary termination of parental rights is a contradiction in terms, and that a parent’s decision to terminate their parental rights is necessarily involuntary if it is part of a larger negotiation that eliminates the parent’s potential exposure to criminal charges for child abuse.” (¶52). Analogizing the agreement in this case to a plea agreement in which a defendant gives up the fundamental rights provided at a jury trial, the court asks whether the promise not to prosecute the Rippentrops “coerce[d] or induce[d] the [agreement] to an extent that deprives [them] of understanding and free will….” (¶55 (quoted source omitted)). The court concludes the promise of nonprosecution doesn’t show that the Rippentrops’ termination of parental rights was involuntary:

¶56     Here, the Rippentrops maintain that their acceptance of the nonprosecution agreement, and the ultimate terminations of their parental rights, were informed and voluntary. At the time they accepted the then-district attorney’s settlement proposal and terminated their parental rights, they faced the distinct possibility of criminal liability, as well as the distinct possibility that the county would pursue involuntary terminations of their parental rights on any number of grounds, including continuing need of protection or services, continuing denial of physical placement, or child abuse. . Under the circumstances, the State does not persuade us that the Rippentrops could not have freely decided that it was in their best interest to reach an agreement in which they acceded to the terminations of their parental rights in exchange for a promise of nonprosecution. Much like it does not violate public policy for a criminal defendant to enter into a plea agreement that induces the defendant to waive valuable rights in exchange for receiving the agreement’s benefits, the State does not persuade us that the provision in the nonprosecution agreement that required the Rippentrops to voluntarily terminate their parental rights violated any public policy clearly expressed by Wis. Stat. § 48.41 or T.M.F. [v. Children’s Serv. Soc’y of Wisconsin], 112 Wis. 2d 180[, 194, 332 N.W.2d 293 (1983) ((“Parental advice, argument, or persuasion do not constitute coercion if the individual who has to make the decision acts freely when [the individual] gives consent, even though the consent might not have been executed except for the advice, argument, or persuasion.”).].

The court also distinguishes Rosecky v. Schissel, 2013 WI 66, 349 Wis. 2d 84, 833 N.W.2d 634,which declined to enforce a provision of a surrogacy contract that required the surrogate mother to terminate her parental rights after giving birth where the surrogate mother, after a falling out with the prospective adoptive parents, changed her mind and refused to voluntarily terminate her rights. Because she would not consent, there could be no voluntary termination under § 48.41, and there was no basis for an involuntary termination. Here, by contrast, no one was asking the Rippentrops to terminate their rights despite their lack of consent; instead, they filed petitions to voluntarily terminate parental rights, which the circuit court accepted. (¶¶57-60).

Second, the state argues the nonprosectution agreement is void because it involved withholding relevant information from the TPR court, given that the nonprosecution agreement was not explicitly disclosed during the TPR proceedings. The state claims this makes the agreement akin to a plea agreement that withholds relevant sentencing information from the court, and that kind of plea agreement violates public policy. (¶¶61-62). The court of appeals doesn’t see it that way:

¶63     …[T]he facts of this case do not involve an explicit agreement to withhold information about the nonprosecution agreement from any court. And the State points to no evidence in the record suggesting that nondisclosure was an implicit condition of the agreement.

¶64     If anything, the evidence in the record belies any suggestion that the parties to the nonprosecution agreement agreed to keep its existence secret. As discussed above, Solovey [the district attorney who struck the deal with the Rippentrops in 2015] informed law enforcement and the office of corporation counsel about the existence of his settlement proposal on the same day that he communicated it to the Rippentrops and [their lawyer]. Then, Solovey specifically informed corporation counsel and the guardian ad litem who later represented [the child’s] interest at the TPR hearing that he had agreed not to prosecute the Rippentrops for child abuse if they agreed to a voluntary termination of their parental rights. Accordingly, there is evidence that the existence and most essential terms were known to the individuals in the office of corporation counsel who initiated the John Doe proceeding, and then drafted and filed the Rippentrops’ petitions for voluntary termination of their parental rights and represented the county at the TPR hearing….

To explain: The county’s corporation counsel office was so unhappy with the DA’s decision not to charge the Rippentrops that it initiated a John Doe proceeding. That led the judge to appoint a special prosecutor. It was while the John Doe was ongoing and the special prosecutor was mulling over how to proceed that the Rippentrops performed their end of the bargain by withdrawing their contest to the CHIPS allegations, cooperating with the county in the adoption process, and filing petitions for voluntary termination of their parental rights, which were ultimately granted. (¶¶17-23). Though the details of the nonprosecution agreement weren’t fully laid out during the John Doe (which, again, was going on before the Rippentrops performed) or during the colloquy in the voluntary TPR proceeding, and the court says it would have been better if they were, that doesn’t show the agreement required withholding of information about the agreement. (¶¶24, 26, 65-66).

The court also addresses whether the agreement is unenforceable because it wasn’t subject to judicial oversight. This claim (if the state is making it, which isn’t clear (¶42 & n.8)) fails under State v. Jones, 217 Wis. 2d 57, 63-65, 576 N.W.2d 580 (Ct. App. 1998), which held that a nonprosecution agreement was a discretionary decision charging a district attorney may make without court approval. In addition, a prosecutorial promise is binding when a defendant relies on it to his or her detriment, and the state doesn’t dispute the Rippentrops detrimentally relied on the nonprosecution agreement here. (¶¶42-47).

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