On Point

State v. Vincent T. Grady, 2007 WI 81, affirming 2006 WI App 188
For Grady: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding:

¶20      A prior interpretation of a statute is applied when courts subsequently consider the same statute. Progressive Northern Ins. Co. v. Romanshek, 2005 WI 67, ¶41, 281 Wis. 2d 300, 697 N.W.2d 417. The court may overturn a prior interpretation of a statute when it has been shown “not only that [the previous decision] was mistaken but also that it was objectively wrong, so that the court has a compelling reason to overrule it.” Wenke v. Gehl Co., 2004 WI 103, ¶21, 274 Wis. 2d 220, 682 N.W.2d 405. Our adherence to a previous interpretation applies to both decisions of this court and the court of appeals.State v. Douangmala, 2002 WI 62, ¶42, 253 Wis. 2d 173, 646 N.W.2d 1.

The court goes on to say that where a prior case did not in fact reach a certain issue, the stare decisis principle isn’t triggered, even though subsequent cases mistakenly if repetitively described that case as having enunciated a “holding” on that issue: these “characterizations … do not represent holdings of any appellate court,” ¶25.

Additional discussion of stare decisis doctrine: Bartholomew v. Wisconsin Patients Compensation Fund, 2006 WI 91, ¶¶31-34; Ferdon v. Wis. Patients Comp. Fund, 2005 WI 125, ¶¶30-31.

State v. William Troy Ford, 2007 WI 138, affirming unpublished decision
For Ford: Ralph J. Sczygelski

Issue/Holding

¶42      … (S)tructural error [is] a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991); State v. Shirley E., 2006 WI 129, ¶62, 298 Wis.  2d 1, 724 N.W.2d 623. Structural errors “infect the entire trial process and necessarily render a trial fundamentally unfair.” Neder v. United States, 527 U.S. 1, 8 (1999)(internal citations and quotations omitted). They “seriously affect the fairness, integrity or public reputation of judicial proceedings and are so fundamental that they are considered per se prejudicial.” Shirley E., 298 Wis.  2d 1, ¶62 (internal quotations omitted).¶43      Structural errors are subject to automatic reversal. Neder, 527 U.S. at 8; State v. Harvey, 2002 WI 93, ¶37, 254 Wis.  2d 442, 647 N.W.2d 189. The United States Supreme Court has found structural error in only a “very limited class of cases.” Id. ^[4]

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 ^[4]   In Johnson v. United States, 520 U.S. 461, 468 (1997), the Supreme Court listed as structural errors complete denial of counsel (Gideon v. Wainwright, 372 U.S. 335 (1963)); biased trial judge (Tumey v. Ohio, 273 U.S. 510 (1927)); racial discrimination in grand jury selection (Vasquez v. Hillery, 474 U.S. 254 (1986)); denial of self-representation at trial (McKaskle v. Wiggins, 465 U.S. 168 (1984)); denial of public trial (Waller v. Georgia, 467 U.S. 39 (1984)); and defect in reasonable-doubt instruction (Sullivan v. Louisiana, 508 U.S. 275 (1993)).

State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School

Issue/Holding:

¶47      In determining whether a constitutional error is harmless, the inquiry is as follows: “‘Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?'” State v. Harvey, 2002 WI 93, ¶46, 254 Wis. 2d 442, 647 N.W.2d 189 (quoting Neder v. United States, 527 U.S. 1, 18 (1999)). This court also has formulated the test for harmless error in alternative wording. Under Chapman v. California, the error is harmless if the beneficiary of the error proves “‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.'” State v. Anderson, 2006 WI 77, ¶114, 291 Wis. 2d 673, 717 N.W.2d 74 (quoting Chapman v. California, 386 U.S. 18, 24 (1967), reh’g denied, 386 U.S. 987 (1967)). ^[6] While we recognize that this court recently has formulated the harmless error test in a variety of ways, whichever formulation is applied, we are satisfied that the error here was harmless for the reasons hereafter set forth. Anderson, 291 Wis. 2d 673, ¶114.

The dissent in Harvey asserted, ¶¶73-75, that the very two formulations in the above quote are indeed different (“The first inquires whether the constitutional error contributed to the conviction, while the second inquires whether the untainted evidence provides overwhelming support for the conviction.”). The quote above doesn’t address this problem.

¶48      This court has articulated several factors to aid in harmless error analysis. These factors include the frequency of the error, the importance of the erroneously admitted evidence, the presence or absence of evidence corroborating or contradicting the erroneously admitted evidence, whether the erroneously admitted evidence duplicates untainted evidence, the nature of the defense, the nature of the State’s case, and the overall strength of the State’s case. State v. Hale, 2005 WI 7, ¶61, 277 Wis. 2d 593, 691 N.W.2d 637.

State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School

Issue/Holding: Erroneous comments on pre-Miranda silence were harmless, given both infrequency of occurrence and also absence of impact on the defendant’s decision to testify (which then properly exposed him to such comment), ¶¶49-52.

State v. Vincent T. Grady, 2007 WI 81, affirming 2006 WI App 188
For Grady: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding: ¶14 n. 4:

The State contends that Grady waived the issues presented. Grady did not waive the issues presented because he filed a postconviction motion pursuant to Wis. Stat. § 809.30(2)(h). Filing a postconviction motion is a timely means of raising an alleged error by the circuit court during sentencing. See e.g., State v. Gallion, 2004 WI 42, ¶14, 270 Wis. 2d 535, 678 N.W.2d 197.

City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU

Issue/Holding:

¶3 We conclude that Wis. Stat. § 252.07(9)(a) authorizes confinement to a jail for a person with noninfectious tuberculosis who is at a high risk of developing infectious tuberculosis and fails to comply with a prescribed treatment regimen, provided the jail is a place where proper care and treatment will be provided and the spread of disease will be prevented, and that no less restrictive alternative exists to jail confinement. We further conclude that a circuit court may take into account the cost of placement options when determining the place of confinement under § 252.07(9), but only after determining that two or more placement options fulfill the statutory requirements of proper medical treatment and disease prevention, and that none of these options is significantly less restrictive than the other(s). Technically, the supreme court has “affirmed” the court of appeals, because it has upheld the mandate of commitment. However, the supreme court effectively overruled the lower court in two crucial ways: the place and not merely fact of confinement must be the least restrictive alternative, ¶48; and, remedial contempt did not support Washington’s confinement, ¶68.

Technically, the supreme court has “affirmed” the court of appeals, because it has upheld the mandate of commitment. However, the supreme court effectively overruled the lower court in two crucial ways: the place and not merely fact of confinement must be the least restrictive alternative, ¶48; and, remedial contempt did not support Washington’s confinement, ¶68. Note, as well, not least because the court takes pains to stress it, that TB confinement procedure covers not only those with infectious TB but those who are non-infectious but at high-risk to become infectious, ¶30 n. 10. More: though the court declines to rule on whether “persons with infectious or suspect tuberculosis” may be confined to jail, ¶33 n. 14, the court goes on to all but rule to the contrary, ¶40 n. 18 [“For persons with infectious tuberculosis or with the most highly drug-resistant strains of the disease, we doubt that jail would be an appropriate placement under Wis. Stat. § 252.07(9)(a) because such a placement would almost certainly increase, not prevent, the risk of transmission of the disease”].

City of Milwaukee v. Ruby Washington, 2007 WI 104, affirming 2006 WI App 99
For Washington: Wm. Tyroler, SPD, Milwaukee Appellate; Karl Otto Rohlich, SPD, Milwaukee Mental Health
Amicus: Colleen Ball, ACLU

Issue/Holding: 

¶37 … We conclude that, together, the commonly accepted meanings of “facility” and “confined” indicate that the legislature intended jail to be a permissible placement option under Wis. Stat. § 252.07(9)(a) for persons with noninfectious tuberculosis who are noncompliant with a prescribed treatment regimen, provided that “no less restrictive alternative exists” to such placement, infra, ¶¶48-59, and that the particular jail to which a person is to be confined is a place where proper care and treatment will be provided and spread of the disease will be prevented, infra, ¶44. …

…

¶39 … The statutory scheme ensures that jail is not a placement of first resort, but rather is permitted only in cases in which no less restrictive alternate placement is available. Additionally, the particular facility to which a person is to be confined, whether a penal institution or other type of facility, must be a place where proper care and treatment will be provided and spread of the disease will be prevented.

¶40 … We take these concerns seriously. Nevertheless, the legislature has provided that confinement is an option, provided all the statutory requirements have been met. [18]

¶41 While the statute’s plain language and legislative history demonstrate the legislature contemplated confinement to jail as a category of placement for persons with noninfectious tuberculosis who are noncompliant with a prescribed treatment regimen, a confining court must still determine whether the particular place of confinement is “a facility where proper care and treatment will be provided and spread of the disease will be prevented.” Wis. Stat. § 252.07(9)(a). If conditions at a particular jail (or other facility) are such that proper care and treatment would be unavailable, or contrary to the prevention of the spread of the disease, such a placement would not be authorized under § 252.07(9)(a). Whether a facility meets these requirements is a fact-intensive question and is addressed to the circuit court’s discretion.

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[18] We emphasize that this opinion applies only to persons with noninfectious tuberculosis——that is, persons who will not become infectious if they receive proper treatment and are forced to comply with a prescribed treatment regimen. For persons with infectious tuberculosis or with the most highly drug-resistant strains of the disease, we doubt that jail would be an appropriate placement under Wis. Stat. § 252.07(9)(a) because such a placement would almost certainly increase, not prevent, the risk of transmission of the disease.