On Point

Question Presented: 

Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.

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The Court expressly limited the grant to the procedural issue recited above, even though the 9th granted habeas relief relating to dismissal of a juror mid-deliberations. As to the grant, note that the 7th seems to follow a rule similar to the one derived here by the 9th. Canaan v. McBride, 395 F.3d 376, 382-83 (7th Cir. 2005) (“When a state court is silent with respect to a habeas corpus petitioner’s claim, that claim has not been ‘adjudicated on the merits’ for purposes of § 2254(d).”) Why does this matter? Because, as the 7th explained more recently in Kerr v. Thurmer, deferential review under 28 U.S.C. § 2254(d) applies only when the state court has adjudicated the claim on the merits, 639 F.3d 315 (7th Cir. 2011) (“As Kerr’s plea bargain claim reaches us … the one thing that is clear is that no state court has squarely addressed the merits. In these circumstances, we review Kerr’s plea bargain claim under the pre-AEDPA standard of review set out in 28 U.S.C. § 2243. … Under that standard, … we review the petitioner’s constitutional claim with deference to the state court, but ultimately de novo.”). Given that the Court limits consideration to this purely procedural problem, it stands to reason that the Court will either affirm on the merits after agreeing with the 9th (and the 7th) on the point; or, if disagreeing, will vacate and remand for reconsideration of the underlying 6th amendment jury claim.

(Update: editing error in post corrected: “the 7th seems to follow a rule similar,” not contrary to, etc.)

State v. Joseph J. Wilcenski, 2013 WI App 21; case activity

Conditions of pre-trial release – alcohol treatment and testing; constitutionality

Waukesha County has adopted a policy that all persons arrested for OWI as a second or subsequent offense who live in one of ten counties be released from custody on the condition that they participate in a “pretrial intoxicated driver treatment program.” Wilcenski argues that this condition violates the constitutional rights to medical privacy and freedom from unreasonable searches. The court of appeals rejects these claims:

¶11      Wilcenski bases his right to privacy claim on several Wisconsin statutes that protect the confidentiality of health care and treatment records.  See Wis. Stat. §§ 146.81-146.84.  He does not allege that the condition violates these statutes, but that the imposition of the condition forces a defendant to give up these confidentiality protections to be released from custody.  We are not persuaded.  Although one charged with a crime does not lose all his rights, our statutes contemplate reasonable restrictions and permit a great deal of discretion in setting conditions.  See Wis. Stat. §§ 969.02(3) & 969.03(1).  A person charged with a crime and released from custody on conditions while he or she awaits trial does not have the same expectations of privacy as a person not charged with a crime.  See In re York, 892 P.2d 804, 813 (Cal. 1995).  The fact that a defendant charged with a crime may have to give up some of his or her privacy protections in lieu of sitting in jail awaiting trial does not render such bail conditions unconstitutional.  See id.

Nor does the program violate the right to privacy in one’s personal information recognized in Whalen v. Roe, 429 U.S. 589 (1977). The information collected is, like that in Whalen, given to representatives of the state in carrying out a legislative initiative (under Wis. Stat. § 85.53) and only limited kinds of medical-related information may be disclosed publicly (i.e., to the court) (¶¶12-13).

Finally, the court rejects Wilcenski’s Fourth Amendment claim:

¶14      Wilcenski also argues that, in conditioning his release on a program that involves drug and alcohol testing, the circuit court has impermissibly forced him to consent to unconstitutional searches.  Although the Fourth Amendment to the United States Constitution and article I, section 11 of the Wisconsin Constitution generally prohibit searches executed without a warrant issued upon probable cause, exceptions are made “when ‘special needs beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.’” State v. Guzman, 166 Wis. 2d 577, 587-88, 480 N.W.2d 446 (1992) (citation omitted).  Such a special need has been found to exist when drug testing is employed to protect the safety of the public. See id. at 588 & n.6. This exception thus would apply to testing as part of a condition of release imposed to protect public safety.

Rejection of the facial constitutional challenge seems consistent with the relatively few decisions from other jurisdictions addressing similar programs, which have upheld treatment as a condition of release if based on the specific circumstances. As noted below, the court of appeals also holds the condition cannot be imposed automatically in every case; instead, there must be an individualized determination about the appropriateness of the condition.

The case does not raise or address any as-applied challenges. For instance, as the court describes it (¶5), the program charges fees for participation, which Wilcenski contends can reach $1200 (and costs are not refunded if a defendant is found not guilty). There will be an equal protection issue if an indigent defendant must sit in jail because he cannot afford the fees. Also, the program may disclose information to the court and other parties regarding certain aspects of the defendant’s treatment (¶5), and the opinion says (¶13) a court has the authority to receive information on whether the defendant has adhered to an appropriately applied release condition. But can information from the program be used against the defendant at trial or sentencing, or was its release compelled because the defendant participated in the program in order to get out of jail before trial? If compelled, is the information excludable, like a probationer’s admissions during treatment required as a condition of probation? SeeState v. Peebles, 2o10 WI App 156, 330 Wis. 2d 243, 792 N.W.2d 212. Practitioners with clients released under a treatment condition like Waukesha’s should be attuned to these potential issues.

Conditions of pre-trial release – individualized determination

A blanket judicial policy of imposing certain conditions of release based on only one factor—nature of the offense—without individualized determination that that condition is appropriate represents an erroneous exercise of discretion:

¶17      …. We agree with the State that the pretrial program is a reasonable condition of release to protect the public from some repeat drunk driving defendants. We disagree with the State that a blanket program applicable to all those falling within a certain class is an appropriate act of the judiciary. The judiciary has a duty to consider on an individual basis the appropriate conditions of release for one charged with a crime, and we do a disservice to both the community and those charged with crimes to delegate our obligation to a blanket program….

While the court agrees with Wilcenski that the blanket policy was wrong, it didn’t help him, for two reasons. First, he’s been convicted and sentenced, so the condition of release is moot; the court of appeals decides the issue because the issues might otherwise evade review, and because Wilcenski filed a petition for interlocutory appeal that, though denied, preserved the issue (¶2 n.2). Second, the circuit court ultimately did not erroneously exercise its discretion in imposing the conditions of bail upon Wilcenski because, after he asked the condition be removed or modified, the court made an individualized determination that the treatment and monitoring were appropriate conditions of release in his case (¶18). If you’re looking for larger principles, try State v. Martin, 100 Wis. 2d 326, 327, 302 N.W.2d 58 (Ct. App. 1981) (court’s uniform refusal to consider probation as disposition is “mechanistic approach to sentencing is not the exercise of sentencing discretion”); and State v. Ogden, 199 Wis. 2d 566, 544 N.W.2d 574 (1996) (same: erroneous exercise of discretion to “appl[y] a uniform sentencing policy of refusing ‘Huber’ release to child care providers except when ‘absolutely essential'”). That principle is entirely consistent with the one employed here:

¶19      We do not properly exercise our judicial function if we look solely to the class of the defendant brought before the court, i.e., treating all drunk drivers the same on a pretrial basis.  We cannot, and should not, move to a system of pretrial justice that dispenses with an examination of the appropriate release conditions for those charged with crimes in our communities.  Such a blanket assessment may be either overinclusive or underinclusive of appropriate conditions depending upon the facts presented.  A bail-setting program that operates as a “one size fits all” system is a system preordained to fail the criminal justice system.

State v. Mercedes S., 2012AP1524, District 2, 1/16/13

Court of appeals decision (1 judge, ineligible for publication); case activity

Delinquency — sanctions for violation of disposition order — exercise of discretion

Imposition of additional period of secure detention upheld, against challenge that the court did not consider other options and, contrary to State v. Ogden, 199 Wis. 2d 566, 544 N.W.2d 574 (1996), had “a preconceived policy” to always impose secure detention automatically:

 ¶12      In stark contrast [to Ogden], the court’s statements at Mercedes’ sanctions hearing … demonstrate careful attention to Mercedes’ particular case, including her entire juvenile history and her individual propensity to insistently disregard the conditions and rules of her disposition.  In view of Mercedes’ delinquency, and her continuous violations of her dispositional order, secure detention was a reasonable, appropriate choice of sanction.  It cannot be forgotten, after all, that the underlying dispositional order concerned a charge for criminal destruction of a court-ordered electronic monitoring bracelet.

The court of appeals also detected in Mercedes’s argument something of a “challenge [to] the general wisdom and efficacy of secure detention in juvenile proceedings.” (¶13).  Given the various purposes of the juvenile justice code listed in § 938.01(2)(a)-(g), “the court’s obligation was to choose sanctions reasonably calculated to coerce Mercedes to follow the rules and to act consistent with the competing, equally important purposes of ch. 938”–an obligation it fulfilled in this case. (¶¶13-14).

State v. James W. Warren, 2012AP1727-CR, District 2, 1/16/13

Court of appeals decision (1 judge, not eligible for publication); case activity

OWI — admissibility of opinion based on field sobriety tests

Police officer testimony that, based on his training and experience, “the field tests are a reliable indicator of whether someone is .08 or higher” and that the HGN test alone is sufficient to detect a BAC over .08, wasn’t an improper expert opinion.  City of West Bend v. Wilkens, 2005 WI App 36, ¶21, 278 Wis. 2d 643, 693 N.W.2d 324, established that an officer is not giving scientific or expert testimony when citing field sobriety tests and other observations as the basis for the subjective opinion that a driver’s alcohol level was impermissibly high:

¶8        … [A]s we said in Wilkens, the tests are “observational tools, not litmus tests that scientifically correlate certain types or numbers of ‘clues’ to various blood alcohol concentrations.”  Id. at ¶17.  Allowing a jury to consider an officer’s subjective opinion that the defendant was impaired, based on his observations of the defendant (including observations made during field sobriety tests) that the officer considered to be reliable indicators, is not error.  See id. ¶13 ….

In addition, “not only was the officer’s testimony far from being scientific opinion, there was no suggestion made to the jury that they were scientific, expert conclusions.  Moreover, the jury was properly instructed regarding its duty and competence to weigh all of the evidence and to evaluate the witnesses’ credibility, a duty it seems to have taken seriously when it found Warren guilty on one charge but not another.” (¶9).

State v. Kenney Wayne Madlock, 2012AP1439-CR, District 1, 1/15/13

Court of appeals decision (1-judge; not eligible for publication); case activity

Violating domestic abuse injunction — Sufficiency of the evidence

The evidence was sufficient to support conviction at a bench trial for violating an injunction that required Madlock to avoid the residence of T.M., who had asked for the injunction. T.M. testified that Madlock drove down the street while she was outside her house, stopped, backed up and parked, stared at her, and then drove away. (¶¶3-4). Madlock admitted driving down the street where T.M. lived and seeing her outside, but denied stopping because that “would have violated” the injunction. (¶6). The trial court believed T.M., not Madlock. (¶7). Thus:

¶10      Given T.M.’s testimony, which the trial court found credible, and Madlock’s awareness that had he stopped in front of T.M.’s house, as T.M. testified he did, he would have violated the injunction, any contention that the evidence does not support the trial court’s conclusion that he knowingly violated the injunction’s direction to “avoid” T.M.’s “residence” borders on the frivolous. Further, given the trial court’s findings, this case is not, as Madlock seems to contend, his merely driving on a public street past T.M.’s house—either inadvertently or unknowingly.  The harassment order required that Madlock “avoid” T.M.’s house.  He knowingly did not.  Accordingly, we affirm.

Barron County v. Tara H., 2012AP2390, District 3, 1/15/13

Court of appeals decision (1-judge, ineligible for publication); case activity

TPR — Exercise of discretion in determining disposition

The circuit court erroneously exercised its discretion by failing to consider one of the six factors under § 48.426(3)–specifically, whether the child had a substantial relationship with Tara or other family members, and whether it would be harmful to sever those relationships; instead, the court treated that factor as being determined by the finding Tara failed to assume parental responsibility:

¶16      We, however, conclude that a court’s determination that a parent lacked a “substantial parental relationship” with the child, as used in Wis. Stat. § 48.415(6), does not excuse the court from considering whether the child has a substantial relationship with the parent.  After all, our supreme court has stated that, when considering whether the child has a substantial relationship, Wis. Stat. § 48.426(3)(c) “unambiguously require[s] that a circuit court evaluate the effect of a legal severance on the broader relationships existing between a child and the child’s birth family.  These relationships encompass emotional and psychological bonds fostered between the child and the family.”  State v. Margaret H., 2000 WI [42], ¶21, [234] Wis. 2d 606, 610 N.W.2d 475.  However, in the grounds phase, when determining whether a parent has a “substantial parental relationship” with a child, no consideration is given to any emotional and psychological bond that the child may have with the parent.  See Wis. Stat. § 48.415(6).  Instead, “substantial parental relationship,” as used in § 48.415(6), is defined as “the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child.”  We agree with Tara that, even if the court determined the evidence showed a parent failed to assume parental responsibility because the parent lacked a “substantial parental relationship” with the child, the court must still consider whether the child has any substantial emotional or psychological bond with the parent at the dispositional hearing.

¶17      Further, even if we were to assume that Tara’s lack of a parental relationship with Jeramiha automatically established that he, in turn, did not have a substantial relationship with her, the circuit court still failed to consider Jeramiha’s relationship with his other birth family members and it never considered whether it would be harmful to Jeramiha to sever those relationships.  See Wis. Stat. § 48.426(3)(c).  The County does not refute Tara’s contention that the court failed to make these considerations.  Instead, it suggests that the court was not required to consider any relationship Jeramiha had with Tara’s family members or whether Jeramiha would be harmed by serving these relationships because Tara did not introduce evidence establishing an emotional connection between Jeramiha and her family members and she did not introduce evidence showing that Jeramiha would be harmed by severing his relationships with her or her family.

¶18      We disagree with the County that the record is completely lacking in these areas. The record shows that Tara’s mother used to babysit Jeramiha and Tara’s sister used to supervise Tara’s visits with him.  Additionally, the dispositional report filed by the county social worker stated that Jeramiha had a relationship with Tara and was excited to see her during visits.  In Margaret H., [234] Wis. 2d 606, ¶35, our supreme court stated that “the record should reflect adequate consideration of and weight to each factor” listed in Wis. Stat. § 48.426(3).  (Emphasis added.)  Nothing in the record reflects that the court considered the entirety of the Wis. Stat. § 48.426(3)(c) factor.  We conclude the circuit court erroneously exercised its discretion by failing to give proper consideration to that factor.

The court also rejects the county’s argument that any error was harmless based on the circuit court’s consideration of the other factors in  § 48.426(3). Citing the preference expressed in Margaret H. “for remanding to the circuit court when confronted with inadequate findings, particularly in family law or domestic relations actions,”  234 Wis. 2d 606, ¶38, the court reverses and remands to the circuit court for a dispositional hearing at which the court must consider all the factors enumerated in Wis. Stat. § 48.426(3), including subsection (c).

State v. Antonio D. Brown, 2013 WI App 17, petition for review granted 10/15/13; case activity

Police lacked probable cause to stop Brown for a defective tail lamp, § 347.13, based on one unlit bulb (out of four) in the tail lamp assembly:

¶19 The parties agree with the circuit court’s finding that the police officers stopped the vehicle because “the middle” rear tail light on the driver’s side of the vehicle was unlit. It is undisputed that both the first and the third rear light bulbs on both the driver’s side and the passenger’s side (totaling four lights) were lit. The driver testified, and his testimony is undisputed, that those four lights were lit whenever the vehicle was in motion, and therefore, they were the lights which designated the rear of the vehicle, to wit, all four of the lights which made up the vehicle’s two tail lamps were in working order.

¶20 Brown argues that even if the second light was unlit and was part of the vehicle’s tail lamp, when a vehicle’s tail lamp is made up of three lights, and two of those lights are lit, the tail lamp is “in good working order” as required by Wis. Stat. § 347.13(1). As such, Brown contends that the police officers had no basis to stop the vehicle and the stop was unconstitutional. We agree.

¶21 A tail lamp with one of three light bulbs unlit does not violate Wis. Stat. § 347.13(1) when it otherwise meets the statutory definition of a tail lamp. The statute does not require that a vehicle’s tail lamps be fully functional or in perfect working order. It only requires “good working order.” See id. Here, the two lit light bulbs making up the driver’s side tail lamp satisfied the definition of a tail lamp as “a device to designate the rear of a vehicle by a warning light.” See Wis. Stat. § 340.01(66). Because the two lit light bulbs on the rear driver’s side of the vehicle were sufficient to designate the rear of the vehicle to a vehicle travelling behind it, the officers did not have probable cause of a traffic violation and the stop was unconstitutional. The officers mistakenly believed that the law required all of the tail lamps light bulbs to be lit; and “a lawful stop cannot be predicated upon a mistake of law.” See Longcore, 226 Wis. 2d at 9. As such, we reverse.

The first rationale for the court’s decision is predicated on a nice little factual nuance: The driver testified that just before the stop he observed the tail lights were in working order; the circuit court found that testimony incredible, but not his testimony that the unlit bulb was the brake light that wouldn’t have been lit unless the driver applied the brakes. (¶19 n.5). Thus, apparently, all the bulbs intended to work as  a “tail lamp” were lit when the police saw the car, and there was no violation.

The court’s second rationale–that “good working order” does not mean “perfect” working order (¶21)–is contrary to the conclusion reached in State v. Laurence Evan Olson, 2010AP149-CR (8/5/10), an unpublished (and therefore non-binding) opinion that the state cited in its brief for its persuasive value under Rule 809.23(3)(b). Clearly it was not persuasive to this panel of the court, whose conflicting opinion will be binding if it is published; and that conflict may set the issue up for  supreme court review.