court of appeals decision (1-judge; not for publication)
Vehicle Stop – Rear Plate State Name Obscured
Stop proper where rear plate bracket obscured name of state, even though “America’s Dairyland” visible at bottom of plate; pretextual nature of stop irrelevant.
court of appeals decision (1-judge; not for publication)
TPR – Competency of Court, Uniform Child Custody Jurisdiction and Enforcement Act
Custody order in Iowa didn’t strip competency of Wisconsin court to act on TPR petition, where child now lived in Wisconsin, and matter held in abeyance until Iowa declined jurisdiction; “Wis. Stat. § 822.23 does not require a court to dismiss a custody action as soon as it discovers that another state had entered a custody order for the child when the action was commenced in this state. It prohibits the court from modifying the custody determination of another state unless the other court has declined jurisdiction,” ¶15.
court of appeals decision (1-judge; not for publication)
Vehicle Stop – Reasonable Suspicion – Anonymous Tip Insufficient
Anonymous tip “from an unknown informant calling from an unknown location” that driver in restaurant parking lot pouring out beer insufficiently reliable to support subsequent stop, where no traffic violations or erratic driving observed.
court of appeals decision; for Fortun: Todd E. Schroeder
Forgery, § 943.38(1) – Altered Prescription (Increasing Number of Pills)
Altering the number of pills on a prescription and presenting the altered document to a pharmacist comes within the forgery statute, § 943.38(1).
Memorandum Decision (per Roggensack, J.)
Disqualification, § 757.19(2)(e)
Justice Roggensack isn’t disqualified under § 757.19(2)(e) from participating in Henley’s pending appeal, even though as a court of appeals judge she decided the separate appeal of Henley’s jointly tried codefendant Adams.
¶23 … I conclude that disqualification/recusal is directed under Wis. Stat. § 757.19(2)(e) only when the same defendant in the action or proceeding on which an appellate judge has already participated as a judge is once again before a court on which the same judge is serving.
Disqualification is mandatory where a judge or justice “handled the action or proceeding” while on an “inferior court.” Does Justice Roggensack’s participation in the codefendant’s appeal mean that she “handled the action or proceeding” now before the court? Analysis probably turns on how broadly “action or proceeding” is defined, e.g., In re Estate of Thompson, 2003 WI App 70, ¶26, 261 Wis. 2d 723, 661 N.W.2d 869 (“An ‘action,’ however, as used in the Wisconsin statutes, means “‘a lawsuit brought in a court’” and ‘denotes the entire controversy at issue.’”) Adams and Henley having been jointly tried, the “action” against Adams was the very “action” against Henley; the lawsuit brought against the one was brought against the other. And, in Wisconsin law, the “lawsuit” brought against Adams (and reviewed by Justice Roggensack) denotes the “entire” controversy. At a minimum, then, the plain text of the disqualification statute does not clearly support the Justice’s conclusion that the “same defendant” must have been a party to the litigation “previously handled.”
The Decision also notably neglects to say anything pertinent about the facts. In ruling against Adams, the court of appeals panel (including, of course, then-Judge Roggensack) noted that, “At the postconviction hearing, Adams’s trial counsel testified that he and counsel for co-defendant Henley had agreed not to call witnesses in order to highlight the weaknesses of the State’s case,” State v. Jarret M. Adams, ¶4, 2002AP39-CR, 11/7/02. The court went on to conclude that this joint strategy was entirely “reasonable,” ¶8. It is that very conclusion—the one Justice Roggensack previously ruled on—that is back in front of her, albeit now under the rubric of interest of justice rather than (as in the prior go-round) ineffective assistance of counsel. To say that, under this concrete set of facts, Henley doesn’t present the “same action or proceeding” as Adams is arbitrary.
Can this Decision be cited? If so, to what effect? It’s not an “opinion” by the court, hence there’s no public domain cite. Chapter 809 doesn’t address the problem. (Update: a PDC was assigned, 2/24/10, so the Decision should now be citable, as 2010 WI 12.) Supreme court Internal Operating Procedures clearly indicate (§ 27.31), “The decision of a justice to recuse himself or herself is that of the justice alone,” but says nothing about the precedential or persuasive effect of such a decision. Still, the decision perhaps might be likened to an in-chambers opinion by a United States Supreme Court Justice, an event that, albeit a bit obscure, does carry at least some weight (“It was written by Justice Ginsburg in April as an ‘in-chambers’ opinion, a sort of one-justice ruling that is rare and hard to categorize — so much so that until 40 years ago, they were not included in the U.S. Reports. Ginsburg’s in-chamber opinion in April was the first written by any justice in two years. … but occasionally justices feel compelled to lay out their reasoning for the guidance of the parties and future litigants.”). Nor is the Decision necessarily the final word: “Where a justice who participated in a case was disqualified by law, the court’s judgment in that case is void,” State v. American TV and Appliance of Madison, Inc., 151 Wis. 2d 175, 179, 443 N.W.2d 662 (1989). It’s in the interest of the full court, then, to resolve the issue and in that instance, a precedential “opinion” would be released.
UPDATE. Scotusblog has collected several links relating to “the longstanding but under-explored practice of ‘in chambers’ decision making,” principally: Daniel Gonen, Judging in Chambers: The Powers of a Single Justice on the U.S. Supreme Court (“This Article explores this power, largely focusing on the Supreme Court level, and offers a critical assessment of its use as a matter of both constitutional theory and sound judicial policy.”); and, The Green Bag, In-Chambers Opinions (“Our goal is to enable you to see and cite the same words and punctuation as the Justices do when they turn to the In Chambers Opinions provided to them by Ms. Rapp.”).
State v. Leneral Louis Williams, 2010 WI App 39; for Williams: Richard L. Zaffiro; Resp Br.; Reply Br.
Seizure – Some Restraint Necessary
¶16 The Fourth Amendment is not implicated until there has been a seizure. The Court in Terry described a seizure as “whenever a police officer accosts an individual and restrains his [or her] freedom to walk away.” Id., 392 U.S. at 16. Not every encounter with a law enforcement officer is a seizure within the meaning of the Fourth Amendment. United States v. Mendenhall, 446 U.S. 544, 552 (1980); see also State v. Williams, 2002 WI 94, ¶4, 255 Wis. 2d 1, 646 N.W.2d 834 (“‘[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’” (citation omitted)).
¶17 Here, Williams seems to argue that the police performed an improper Terry stop on Williams’s van. We disagree. The undisputed facts are that the officers did not stop Williams’s van. It was already stopped and sitting at the corner on a public street. After driving past the van once and coming back around to it after a short patrol of the area, the police observed it was still there. They saw that it had no front license plate. It was then that the police decided to approach the van driver. They turned their spotlight on the van and approached it on each side.
Court doesn’t reach question of whether putting spotlight on van amounted to ¶18. Compare, State v. Charles E. Young, 2006 WI 98 (apparent dicta: though “close question,” in that “(w)hen a marked squad car pulls up behind a car, activates emergency flashers, and points a spotlight at the car, it certainly presents indicia of police authority,” ¶65, court is “reluctant to conclude that the positioning of the officer’s car, together with the lighting he employed, necessarily involved such a show of authority,” ¶69; nonetheless, court “not required to make that determination in this case,”id). Also: People v. Garry, Cal App No. A114235, 11/13/07 (use of spotlight, together with officer “briskly” walking toward person and “pointedly” asking about parole status amounted to detention).
Reasonable Suspicion, Stop of Car, No Front Plate
A missing front plate justifies stopping the car, because it represents “a violation of WIS. STAT. §§ 341.12(1) and 341.15(1),” ¶18.
The court relies on State v. Griffin, 183Wis. 2d 327, 329, 331-33, 515 N.W.2d 535 (Ct. App. 1994), which it describes as “holding that a dealer-printed ‘license applied for’ placard in the back window of a vehicle provided ‘reasonable suspicion’ that the vehicle’s operator was violating § 341.15),” id. This description of Griffin is possibly outmoded, in light of, State v. Raymond Lord, Jr., 2006 WI 122, ¶7 (rejecting idea that police may “stop any vehicle to verify the registration solely because the vehicle is displaying temporary license plates as set forth in the statutes”). Lord, to be sure, doesn’t discuss let alone limit Griffin, but the two holdings aren’t compatible, at least at the level of generality utilized by the court of appeals here. Of course, that a missing plate does violate the traffic code is something else; it’s just that reliance on Griffin isn’t really necessary.
Reasonable Suspicion, “Frisk” of Car
Police had reasonable suspicion to conduct a protective search of the passenger compartment, Michigan v. Long, 463 U.S. 1032 (1983), based on “a clear view of Williams hiding a large, dark object under the center console,” along with the fact that it was getting dark and the fact that they were in a known high-drug-trafficking area”:
¶20 Officer Monteilh testified that he approached the van on the passenger’s side while Officer Kaltenbrun approached the driver’s side. From the passenger side of the van, Officer Monteilh was five feet from the van driver, Williams, and had a clear view of Williams hiding a large, dark object under the center console. He described the object as one that Williams could grasp by placing his fingers around it. He saw Williams lift up the center console (which is normally attached to the floor), place the object underneath it and replace the console. He then observed Williams’s hand come up empty. Based on those observations, the fact that it was getting dark and the fact that they were in a known high-drug-trafficking area, Officer Monteilh believed that the object Williams placed under the console was a gun. Accordingly, he immediately walked around to the driver’s side of the van to tell Officer Kaltenbrun that he suspected there was a gun under the console and to ask Officer Kaltenbrun to direct Williams to step out of the van.
Remarkably thin analysis. The police weren’t investigating a crime; they had no particular reason to think Williams was armed other than the bare fact he placed something in the console while he happened to be parked in a purportedly high-crime area. True, it is enough to reasonably think the person armed and dangerous, that is, even absent belief a crime is being or has been committed, see Arizona v. Johnson, USSC No. 07-1122, 1/26/09. But the court utterly fails to explain the reasonableness of the belief Williams was armed and dangerous. Perhaps it is a truism to the court that an object in a “high-crime” area likely is a weapon.
