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State v. Douglas M. Williams, 2010AP1551-CR, District 4, 7/14/11

certification; for Williams: Jonas B. Bednarek; case activity; review granted, 8/31/11

Search Warrants: Court Commissioner Authority to Issue

We certify this appeal to the Wisconsin Supreme Court to decide whether court commissioners have the power to issue search warrants.  Although Wis. Stat. § 757.69(1)(b)[1] appears to grant that power to court commissioners, appellant Williams argues that the legislature may not confer that power by statute because the Wisconsin Constitution does not authorize the legislature to grant judicial powers to court commissioners.  Although this case involves the fairly narrow question of whether court commissioners have the power to issue search warrants, we certify it because of the much broader implications.  It appears that Williams’ argument calls into question several other powers conferred by statute on court commissioners.

Williams argues that issuing a search warrant is an incident of “judicial power” under Wis. Const. art. VII, § 2 – power not assigned to commissioners. The State counters that the 4th amendment doesn’t require that warrants be issued by judicial officers, Shadwick v. City of Tampa, 407 U.S. 345 (1972) (municipal court “clerks qualify as neutral and detached magistrates for purposes of the Fourth Amendment,” therefore may issue arrest warrants). Similarly, State v. Van Brocklin, 194 Wis. 441, 217 N.W. 277 (1927), upholds issuance of a search warrant by a municipal court clerk, on the theory that act doesn’t involve an exercise of judicial power.

The implications are potentially broad, as the Certification explains:

We certify this issue because its resolution appears to carry with it enormous statewide implications for litigants and the judiciary.  Although this case involves the specific power to issue search warrants, it is apparent that Williams’ argument calls into question several other powers authorized by Wis. Stat. § 757.69(1).  In the criminal arena alone, this includes conducting initial appearances and preliminary hearings.  While the parties do not address whether Williams’ arguments implicate the duties of court commissioners in other areas, such as family law, it appears to us that, under Williams’ view of judicial power, many court commissioner activities are implicated.  Therefore, the issue is most appropriately addressed by the Wisconsin Supreme Court.

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