court of appeals decision (1-judge; not for publication); for Pintar: Sarvan Singh; BiC; Resp.; Reply
Probable Cause – Traffic Violation
The police had probable cause to believe Pintar violated § 343.13(1), given uncontroverted testimony that his vehicle “moved across the center skip line (of I-94) into the lane of a car that was approaching from the rear, causing the car to activate its break lights and move out of the way.”
court of appeals certification; for Jacob T.: Eileen A. Hirsch, SPD, Madison Appellate
TPR – Grounds
We certify this case because we believe that State v. Quinsanna D., 2002 WI App 318, 259 Wis. 2d 429, 655 N.W.2d 752, prevents us from interpreting Wis. Stat. § 48.415(6) in a manner that is consistent both with the language of the statute and constitutional protections accorded parental rights. As explained below, we believe that Quinsanna D. misinterprets § 48.415(6) as a stand-alone test for unfitness, rather than as a threshold question addressing whether a person has a constitutionally protected parental right requiring a finding of unfitness before parental rights may be terminated.
Subsection (6) requires proof that the parent lacks “a substantial parental relationship with the child,” defined as “the acceptance and exercise of significant responsibility for the daily supervision, education, protection and care of the child.” This was the sole ground alleged to support termination of Jacob T.’s rights. He cared for the child the first several months following birth (poorly, according to Tammy), but had no role after that. Can the quality of care be factored into the determination of a substantial relationship? And, once a substantial relationship is established, are subsequent events even relevant to the existence of such a relationship? Quinsanna D. says yes to both, but the certification now questions its reasoning and conclusions.
Accordingly, it appears that the “substantial parental relationship” standard in Wis. Stat. § 48.415(6) must be viewed as a threshold question. If a parent has had a “substantial parental relationship,” then his or her parental rights may not be terminated without a showing of unfitness. When properly viewed as a threshold issue, it becomes apparent why the § 48.415(6) standard should not be treated as a test for unfitness. In keeping with this view, the Baby Girl K. court observed: “[C]ommentators have suggested that the failure of a parent to participate at all in raising of the child may eliminate the constitutional requirements for a finding of unfitness.” Baby Girl K., 113 Wis. 2d at 443 (emphasis added).
Appears that, but for Quinsanna D., Jacob T.’s termination would be reversed. Which is to say, the matter is entirely in the supreme court’s hands.
court of appeals decision (1-judge; not for publication); for Luckett: Cheryl A. Ward; BiC; Resp.; Reply
Extended Supervision Conditions
ES condition barring Luckett from residing”with any person in any place in which children or women reside [without] Court’s permission” neither unreasonable nor unconstitutionally overbroad.
The court of appeals stresses that Luckett’s history “demonstrates domestic violence”; indeed, the immediate crime is itself DV-related. But: the condition bars (unapproved) residence with a relative, including his own mother, without any hint of problems in that area and the court says, So what? “The circuit court did not prevent Luckett from living with a woman or child; rather, it required him to obtain the court’s permission first,” ¶13. Without even a suggestion that Luckett’s DV problems related in any way to his family, it’s hard to see how making this bar conditional rather than absolute insulates it from attack. Put it like this: the condition has to be reasonably related to rehabilitation of the defendant and protection of the community, and if Luckett has no history of familial turbulence, then it makes no sense to require judicial supervision of a non-problematic relationship. Long as we’re at it, why not just require approval before he may live with anyone? That would obviously be nonsensical, but what really is the difference? This doesn’t mean, of course, that judicial oversight was inappropriate, only that it ought to be scaled back a tad — at least, the court doesn’t bother explaining why not. Good discussion, albeit foreign authority, in State v. Lathrop, Iowa SCt No. 07-0793, 4/23/10 (condition barring contact with any minor absent permission from supervising officer overbroad).
court of appeals decision (3-judge; not recommended for publication); for Evans: George Tauscheck; BiC: Resp.; Reply
Testimony from 4 (of a total of 9) false imprisonment victims wasn’t necessary to sustain the convictions on those counts:
… (A) reasonable jury could have determined beyond a reasonable doubt from circumstantial evidence that Nathan B., Nicholas B., Nigel B. and Rashod H. did not consent to being restrained by Evans. … Based on the testimony at trial, which described a dangerous and threatening situation in which the defendant bound or ordered bound the victims while holding a gun and threatened to kill the victims while they were restrained, the jury could well have inferred that Nicholas B., Rashod H., Nathan B. and Nigel B. did not consent to being restrained.
Wisconsin supreme court decision
Public reprimand for: “over-litigating” small claims case; taking position adverse to clients’ interest; pursuing frivolous argument; “making a baseless statement” about opposing counsel/party.
Seven-plus years ago, counsel assumed representation of two debtors trying to get out of a $491.36 bill for medical services. The dust from the ensuing litigation volcano settles today around an obligation that totals north of $20,000 — almost (but not all) from counsel’s pocket. No big lessons, more of a woeful than cautionary tale. That, and the idea that SCR 20:8.2(a) forbids a lawyer from making recklessly false statements about the integrity of a judge.
United States Supreme Court decision (or, here)
Criminalizing depictions of animal cruelty, 18 U.S.C. §48, held “substantially overbroad,” therefore violative of First Amendment.
First Amendment restrictions on speech are permitted “in a few limited areas” (obscenity, crime facilitation, et al.), and despite long-standing abhorrence of animal cruelty, depictions of same will not be added to that list.
… The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document “prescribing limits, and declaring that those limits may be passed at pleasure.” Marbury v. Madison, 1 Cranch 137, 178 (1803).
…
Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment. Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law. But if so, there is no evidence that “depictions of animal cruelty” is among them. We need not foreclose the future recognition of such additional categories to reject the Government’s highly manipulable balancing test as a means of identifying them.
Facial challenge typically requires “‘that no set of circumstances exists under which [the statute] would be valid,’ … or that the statute lacks any ‘plainly legitimate sweep’ … In the First Amendment context, however, this Court recognizes ‘a second type of facial challenge,’ whereby a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.'” Section 48, which “create(s) a criminal prohibition of alarming breadth,” fails this test.
A short summary won’t do justice to the opinion’s sweeping affirmation of protection of speech, as in this snippet:
Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty, and it “neither has brought nor will bring a prosecution for anything less,” The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.
Eugene Volokh outlines the Court’s reasoning, and thinks (albeit with much uncertainty) that a more narrowly crafted prohibition might be constitutional. Kent Scheidegger seemingly agrees (“this is a seriously incompetent bit of legislative drafting. Congress needs to reenact this statute and do it right this time.”). Mike Sacks has an unbeatable quick take, explaining why the opinion is unlikely to be very controversial: “this case pitted liberal value vs. liberal value: anti-restrictions on violent or obscene speech vs. animal rights protections.”
court of appeals decision (1-judge; not for publication); for Able: Francesco G. Mineo; BiC; Resp.; Reply
Reasonable Suspicion, Stop
Police had reasonable suspicion for temporary detention: after business hours, car pulled into parking lot of fitness club that had been subject of recent burglaries.
Conclusion unremarkable save perhaps court’s inexplicable emphasis that event occurred “close to bar closing time,” ¶12. Why this was meaningful, the court doesn’t quite explain. Surely it was significant that the business was closed and the driver therefore had no apparent reason to be there, but that is something else. The court also stresses that while the driver might well have been engaged in wholly innocent conduct, the police were under no obligation to rule out such a possibility, ¶11; but that is near-boilerplate analysis these days.
court of appeals decision (3-judge; not recommended for publication); for Jackson: Byron C. Lichstein; BiC; Resp.; Reply
Hearsay, Child Sexual Assault, Residual Exception
Statements by youthful sex assault complainants admissible under residual hearsay exception, court rejecting idea that it’s thereby allowing exception to swallow general rule against hearsay admissibility; confrontation objection forfeited).
Counsel – Strategic Basis for Failing to Adduce Alibi Witness
Counsel’s failure to have potential alibi witnesses testify was reasonable strategy, where those witnesses were unable to recall defendant’s whereabouts during large portion of pertinent time frame.
Counsel – Opening Statement
Counsel’s failure to have testify witness mentioned in opening statement: neither deficient performance nor prejudicial, court stressing that counsel’s made “informed” choice in that witness’s testimony would have opened door to damaging, other inadmissible evidence.
Majority makes broad pronouncement: “It is not deficient performance per se for counsel to promise something in opening statements, but fail to deliver on that promise during the defense case. Turner v. Williams, 35 F.3d 872, 903-04 (4th Cir. 1994).” Dissent, relying on Anderson v. Butler, 858 F.2d 16, 17 (1st Cir. 1988), would hold that “trial counsel performed deficiently when he promised the jury it would hear testimony from Dr. Kotkin without first seeking a ruling from the trial court on an issue that trial counsel should have known would be decided against him or, at the very least, would be a difficult argument to win based on existing case law and statutes.” It matters through which lens the problem is viewed. The court has previously indicated “that strategic decisions by a lawyer are virtually invulnerable to second-guessing,” State v. Paul Dwayne Westmoreland, 2008 WI App 15, ¶20, and so the question becomes: are we closely scrutinizing the informed nature of the strategy, or are we merely skipping to the impervious-to-scrutiny part? The majority shrugs its shoulders at the former, the dissent doesn’t, and they ultimately reach different conclusions.
