On Point

Outagamie v. Michael H., 2014 WI 127, 12/16/14, affirming an unpublished court of appeals decision, majority opinion by Justice Crooks; case activity

Section 51.20(1)(a)2.a authorizes the involuntary commitment of a person who is “dangerous,” a test that may be met by showing recent threats of, or attempts at, suicide. This unanimous decision holds that in the right circumstances just thinking about suicide–without articulating a plan for committing it–constitutes a sufficient “threat” to satisfy the involuntary commitment statute.

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State v. Jordan John Samsa, 2015 WI App 6; case activity

The circuit court did not erroneously exercise its discretion in using the criminogenic needs section of the COMPAS assessment report, which identifies areas in which the offender needs correctional or community intervention, as an indicator of Samsa’s danger to the community.

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State v. Ester M. and Alexander M., 2014AP1621, District 1, 12/16/14 (1-judge decision; ineligible for publication); case activity

The circuit court’s order finding Soreh M. to be a juvenile in need of protection or services  evidence is supported by sufficient and doesn’t impinge on the right to religious freedom of her parents, Ester M. and Alexander M. In addition, the circuit court had the statutory authority to order conditions for the parents to complete before the court would consider placing Soreh M. in their home again.

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Heien v. North Carolina, USSC No. 13-604, 2014 WL 7010684 (December 15, 2014), affirming State v. Heien, 737 S.E.2d 351 (N.C. 2012); Scotusblog page (includes links to briefs and commentary)

Rejecting the position taken by Wisconsin and the clear majority of jurisdictions that have addressed the issue, the Supreme Court holds that a reasonable mistake of law may give rise to the reasonable suspicion necessary to justify an investigatory seizure under the Fourth Amendment. While a statement of the Court’s holding is simple, its decision doesn’t fully articulate how courts are to determine when a mistake of law is “reasonable,” leading the sole dissenting Justice (Sotomayor) to predict lower courts will have difficulty applying the Court’s decision.

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Questions presented:

1) Does the rule announced in Miller v. Alabama, 567 U. S. ____, 132 S.Ct. 2455 (2012), apply retroactively to this case?

2) Is a federal question raised by a claim that a state collateral review court erroneously failed to find that a new constitutional rule fits within an exception to Teague v. Lane, 489 U.S. 288 (1989), which held that new constitutional rules are generally not applied retroactively to cases on collateral review?

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After 33 years with the State Public Defender, Marla Stephens is retiring today. Wow what a career! Cheers to Marla!

Kelli Thompson and Mike Tobin, Wisconsin State Public Defender
Marla’s contributions to the agency and the profession will be greatly missed, especially her dedication to the SPD and our clients, her work ethic, her long tenure as Chair of the Judicial Council, and her excellent leadership of the SPD Appellate Division. Marla brought great intelligence, thoughtfulness and organization to the task at hand. We thank her for her years of service and an extraordinary SPD career, and congratulate Marla on her retirement!

Chief Justice Shirley Abrahamson, Wisconsin Supreme Court
Not only did Marla serve with distinction as a public defender, she also served for many years on the Wisconsin Judicial Council.  Her dedication, energy, and enthusiasm literally kept the Council in business in the absence of staff or funding.  There is hardly an appellate procedure statute on the books that hasn’t been affected in some way by her work.  She has made significant contributions to judicial efficiency and access to justice that have benefited everyone in the state. That she did so in a volunteer capacity makes her accomplishments all the more remarkable. I thank her for her extraordinary service and wish her a long and happy retirement.

George Brown, Executive Director of the Wisconsin State Bar
Marla Stephens was the conscience of the board many times during her four years of service on the State Bar of Wisconsin Board of Governors.  She reminded the board of lawyers’ duty to serve the poor, to seek ways to protect the community while ensuring justice for all, and to serve the bar association’s members in ways that will make them better attorneys and counselors.

Marla’s two terms encompassed some challenging times for the association but also some tremendous opportunities.   She withstood the challenges, buttressing the association and its staff during those times.  And she guided the board toward the opportunities.   The most important of these was the BOG’s passage of the thirteen recommendations from the “Bridging the Justice Gap: Wisconsin’s Unmet Legal Needs” report.   Marla became one of the floor leaders and often the lead spokesperson during a challenging two-day meeting in which each of the recommendations was extensively debated by the Board of Governors and, not without serious opposition at times, eventually approved by the Board.  The result of this ultimately was the creation of the Access to Justice Commission and the state funding of civil legal services for the poor.

Marla, thank you for your tremendous contributions to the public, the justice system, and the members of the State Bar of Wisconsin through your service on the Board of Governors, the Appellate Practice Section, and as an educator of lawyers statewide.

With all best wishes for a long, happy, and productive retirement from the Office of the State Public Defender.

Mary Burke, Wisconsin Department of Children and Families
Marla walked the walk when it came to the “justice” system. I had the pleasure of collaborating with Marla on projects like joint staff training for attorneys in the OPD Appellate Division and the DOJ Criminal Appeals Unit, and updating the rules of appellate procedure as members of the Judicial Council’s ad hoc appellate procedure committee. We didn’t always agree, but often we did—on what was fair, on what made sense, on what was workable. I’ve valued Marla as a thoughtful, generous colleague. Her legacy to all of us is more and better justice in Wisconsin.

Dean Strang, Strang Bradley LLC
Not only is Marla Stephens a thoughtful and skilled appellate lawyer, she makes a hell of a Thanksgiving turkey.  More than 25 years ago, when I was newly back to Milwaukee from law school and my family understandably had fled upon my return, Marla and Bob opened their home to me two years in a row for Thanksgiving dinner. She had extended family of her own, and two very young children as well.  But unflappably, she simply set an extra place at the table for me.

Marla has been every bit as unflappable as a lawyer.  She will be missed badly as she undertakes new challenges.  But just maybe, if we set an extra place at the table for her, she will come back around where defense lawyers gather.

Beth Hanan, Gass Weber Mullins LLC
At one point Marla wrote a historical description of the Wisconsin Judicial Council, noting that there are more than 400 annotations to state statutes taken from committee notes of the Council. That number reflects decades of work by Council members.

The unfortunate part, to my mind, is that the annotations do not reflect who was leading the Council at the time a particular rule was revised or bill enacted.  Marla spent the better part of the last two decades as an energetic member of the Council on both its criminal and appellate procedure committees.  She was chair of the Council from 2000-2010, and in that role deftly guided the Council through debate, deliberation and seemingly endless drafting.  One example – a greatly improved version of the rules of appellate procedure was released in 2000 – and Marla led the charge on that effort.  Another example – practical revisions to the criminal procedure code have continued over more years than anyone cares to count, but Marla cares and kept the effort going.  Countless litigants, practitioners and judges owe her a debt of gratitude.  Her legacy is tangible.  I propose that the next project the Council undertakes is a petition to add the initials “MJS” to every annotation shepherded by Marla.  Or, since the annotations are online, add “#madethingsbetter.”

Diane Diel, Diane S. Diel SC
Congratulations to Marla Stephens on her retirement from the Public Defenders’ Office and on a career well done. When I think of Marla I think of her passion for justice, her commitment to professionalism, her incredible intellect and her seriousness of purpose. Marla was always prepared and always thorough. Her work on the Wisconsin State Bar Board of Governors was purposeful and consummately professional. She was a vital leader of the Association for Women Lawyers Foundation board and chaired its scholarship committee for many years, helping to contribute to the education of many terrific young lawyers. AWL recognized her service by awarding her the 2014 Pro Bono Service Award. Thanks to Marla for her dedication and service. Good luck and fun times in retirement, you richly deserve the very best of times!

State v. Douglas E. Hanson, 2014AP623-CR, District 4, 12/11/14 (1-judge decision; ineligible for publication); case activity

Hanson failed to present sufficient credible evidence that he did not understand the consequences of pleading guilty to second offense OWI.

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