On Point

State ex rel. Individual v. Davis, 2005 WI 70, on certification

For Subpoenaed Individual: Stephen P. Hurley, Marcus J. Berghahn, Hal Harlowe

Issue/Holding:

¶15      A writ of prohibition is an extraordinary remedy that normally will not issue except in the absence of other adequate remedies. ^[6]As a remedy, writs of prohibition are often used in connection with John Doe proceedings. ^[7]Neither party challenges whether a writ of prohibition is the proper procedure to test the John Doe judge’s authority in the present case. Rather, the parties dispute whether, based on the facts of this case, the court should issue the writ here.¶16      A writ of prohibition is the appropriate remedy “to restrain the exercise of judicial functions outside or beyond the jurisdiction of a court, or an official acting in a judicial capacity, where great hardship would otherwise result.” ^[8]Accordingly, if the court or a John Doe judge is properly exercising powers and jurisdiction, a writ will not issue. ^[9]

State v. Eric W. Raye, 2005 WI 68, reversing unpublished decision of court of appeals
For Raye: Brian C. Hough

Issue: Whether the defendant failed to lodge contemporaneous objection (which would have waived appellate challenge) to a non-unanimous verdict revealed during jury polling when a juror indicated he did not in fact subscribe to the purported guilty verdict.

Holding:

¶29 Ultimately, however, we need not determine whether to apply the waiver rule because we view the motion as timely made. Admittedly, Raye’s counsel did not make a formal objection during the approximately five-minute period when Clark was alone with the court and counsel. However, after the third time that Clark disavowed the verdict, Raye’s counsel stated, “I think that’s enough.” Shortly thereafter a recess was taken. Upon going back on the record after recess, Raye’s counsel made a motion for a mistrial on the ground that the verdict was not unanimous. Given the circumstances, we conclude that the motion was timely and that it was not waived. Accordingly, we will reach the merits of Raye’s claim.

Although finding the issue properly preserved, the court all but says (albeit in dicta) that such an issue is reviewable anyway, ¶¶26-27, citing the “analogous” instance of “propriety of a [trial] court’s inquiry into the numerical division of a stalled jury,” embodied by Brasfield v. U.S., 272 U.S. 448 (1926) and State v. McMahon, 186 Wis. 2d 68, 89, 519 N.W.2d 621 (Ct. App. 1994).

Brown County v. Shannon R., 2005 WI 160, reversing unpublished opinion

Issue: Whether the circuit court erroneously exercised discretion in precluding expert testimony on the issue of whether the TPR respondent is likely to be able to meet the conditions for return of her children.

Holding:

¶71      The State’s interest in terminating parental rights promptly does not outweigh the requirements of fundamental fairness and Shannon R.’s constitutionally protected due process right to be heard in a meaningful manner. It would have imposed no burden on the State to allow Shannon R. to present her qualified expert witnesses.

¶72      In light of the important constitutional right at stake, the State’s interest in an accurate decision, the fundamental fairness of giving a party the opportunity to defend, and Shannon R.’s inability to present evidence on an issue central to the outcome of the case, we hold that the circuit court’s erroneous preclusion of Dr. Wellens’s expert opinion testimony (the only expert opinion testimony Shannon R. proffered on an issue central to her defense) denied her the due process right to present a defense and goes to the fundamental fairness of the proceeding. We therefore hold that the circuit court committed prejudicial, reversible error.

Very good discussion of right to due process generally in a TPR, particularly with regard to opportunity to mount a meaningful defense,¶¶56-67. Interestingly, the court says nothing about harmless error analysis (where the beneficiary of the error can show harmlessness by showing beyond reasonable doubt that the error didn’t impact the result). The court treats the issue as if it’s one of structural error (reversal is automatic, without regard to impact)—the parent’s fundamental right to defend against the petition was thwarted and reversal automatically follows. The court doesn’t put it that baldly, but that nonetheless seems to be the essence of it

Dane Co. DHS v. P.P., 2005 WI 32, affirming unpublished decision

Issue: Whether § 48.424(4) (2001-02) on its face violates substantive due process, in failing to require an individualized determination of unfitness as a precondition for termination of parental rights.

Holding: A parent has a fundamental liberty interest at stake in parenting his or her children, and thus the TPR scheme must be narrowly tailored to advance the State’s interest in interfering with that right, ¶20. In this instance, termination was based on the statutory ground in § 48.415(4) (one-year elapsed since order denying contact), but given that such an order was preceded by various proceedings which reflected on the parent’s fitness, the termination did not violate due process:

¶32. Only after all the above described steps took place, was P.P. faced with a fact-finding hearing on whether a ground for terminating his parental rights existed under Wis. Stat. § 48.415(4). The findings that are required for a court to proceed against a parent at each of the steps prior to the final step under § 48.415(4) involve an evaluation of a parent’s fitness. It is the cumulative effect of the determinations made at each of the previous steps that causes the finding made under § 48.415(4) to amount to unfitness. Looked at another way, this series of steps acts as a funnel, making smaller and smaller the group of parents whose relationships with their children are affected at each step, until only a very small number of parents would be affected by § 48.415(4). Accordingly, § 48.415(4) cannot be evaluated for a claimed constitutional infirmity in isolation. The full statutory scheme that precedes the implementation of § 48.415(4) must be evaluated as well. Therefore, it is with consideration of this statutory scheme underlying the ground stated in § 48.415(4), that we conclude that on its face § 48.415(4) is narrowly tailored to serve the State’s compelling interest of protecting children from unfit parents, including the temporal component in this interest that promotes children’s welfare through stability and permanency in their lives. In our view, P.P. has not proved beyond a reasonable doubt that the statutory scheme either shocks the conscience or interferes with a right implicit in the concept of ordered liberty.

The point of contention is whether or not these prior steps explicitly required a finding of unfitness; the majority says they did, the dissenters say no, ¶¶73, 79. The danger identified by the dissenters is that once a no-contact order has been entered, then a “mandatory irrebuttable presumption” of unfitness follows after the lapse of one year, ¶87. No doubt. But keep in mind that P.P. pleaded no contest, and that his challenge was therefore necessarily up-hill (if for no other reason than that he had to show the statutory scheme unconstitutional); the court thus stressed:

¶25 … We do not preclude an as-applied substantive due process challenge to the statutory scheme underlying § 48.415(4) so that the reasons for failing to modify the order denying visitation or physical placement may be explored, in a proper case. However, P.P. pled no contest to the ground asserted to terminate his parental rights, and in so doing, he relinquished his right to test the validity of the order that denied him visitation and periods of physical placement with his children. Accordingly, we do not reach the question of whether an as-applied challenge to the validity of a § 48.415(4) order will lie.⁶

State of Wisconsin ex rel. Mateo D.O. v. Circuit Court, 2005 WI App 85

For Mateo D.O.: Colleen Bradley, SPD, Oshkosh Trial

Issue/Holding:

¶15. A petition for a writ of mandamus or prohibition is an appropriate remedy to redress the denial of judicial substitution. See State ex rel. James L.J. v. Circuit Court for Walworth County, 200 Wis. 2d 496, 498, 546 N.W.2d 460 (1996). The circuit court violated a plain duty in refusing to honor Mateo’s request. See State ex rel. Ondrasek v. Circuit Court for Calumet County, 133 Wis. 2d 177, 185, 394 N.W.2d 912 (Ct. App. 1986). We therefore grant the petition for a supervisory writ of mandamus and direct the chief judge and circuit court to honor the request for judicial substitution.

Larry W. Myartt v. Frank, 7th Cir No 04-2115, 1/21/05Issue/Holding:

… AEDPA standards apply only to claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). In the instant case, the Wisconsin Court of Appeals did not address Myartt’s ineffective assistance claim, which is unsurprising because Myartt’s pro se filing failed to develop the claim or discuss relevant Sixth Amendment principles. In these circumstances, it is impossible to determine whether the state court’s decision involved an unreasonable application of Strickland. We agree with the district court that Myartt’s ineffective assistance of counsel claim was not adjudicated on the merits in any meaningful sense; consequently, we apply the pre-AEDPA standard of review, which requires us to “dispose of the matter as law and justice require.” Braun v. Powell, 227 F.3d 908, 917 (7th Cir. 2000).

State v. Richard Allen Hassel, 2005 WI App 80
For Hassel: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding¹: Hassel’s custodial statement, “I don’t know if I should talk to you” was ambiguous and therefore triggered no duty to terminate the interrogation, ¶¶16-19.

The court of appeals purported to follow Davis v. United States, 512 U.S. 452 (1994), which holds that the police have no duty to clarify an ambiguous assertion of rights made after clearly waiving them. The court simply did not acknowledge this crucial matter of timing (Hassel made his ambiguous assertion before he ever waived any rights, which makes the distinction pertinent to his case). The majority of lower courts to rule on the issue have concluded that “the ‘unambiguous or unequivocal request’ rule of Davis is limited to the post-waiver scenario,” U.S. v. Rodriguez, 9th Cir No. 07-10217, 3/10/08, fn. 6. Given that the court of appeals simply did not acknowledge let alone resolve this dispute, the issue should remain viable. However, the split among lower courts makes the issue quite cert-worthy.

Issue/Holding²: A precustodial, prearrest assertion of right to silence has no constitutional significance, and therefore doesn’t bar questioning, ¶¶13-15; and, because such an assertion does not amount to a “prior invocation [of rights] with which the police should have been concerned,” it gives no meaning to an ambiguous assertion of rights during subsequent custodial interrogation. ¶¶16-21. (In dicta, the court goes on to say that the police nonetheless scrupulously honored his rights, ¶20 n. 2.)