Wednesday, September 19, 2018

2018 Wisconsin Civil Justice Council Wisconsin Supreme Court Guide and Judicial Evaluation

The Wisconsin Civil Justice Council, an organization formed to represent Wisconsin business interests in civil litigation, has just released its 2018 Guide to the Wisconsin Supreme Court and Judicial Evaluation.  This publication summarizes Wisconsin Supreme Court decisions which impact business interests, along with tracking how frequently individual justices decided cases in favor of the positions taken by WCJC. 

Each case summary in the report includes a factual summary, a summary of the decision and any dissenting opinions, and a listing of how each justice voted in each case along with a notation stating whether WCJC agreed with the decision or not.

The WCJC represents a variety of large business interests in Wisconsin, and it is interesting to see what judicial outcomes are supported by these business interests, and how each justice approached cases with these issues. 

The judicial evaluation included two primary groupings.  Justice Rebecca Bradley, Justice Ziegler, Chief Justice Roggensack, Justice Gableman, and Justice Kelly all decided cases in favor of positions taken by WCJC approximately 80% of the time.  Justice Abrahamson and Justice Ann Walsh Bradley, on the other hand, both decided cases in favor of positions taken by the WCJC approximately 23% of the time. 

Full disclosure: I was counsel of record for the City of Eau Claire in Voters With Facts v. City of Eau Claire, which was decided in favor of the City of Eau Claire (an outcome that the WCJC agreed with).  Interestingly, this case involved a majority opinion written by Justice Ziegler which was joined by justices Abrahamson, Walsh Bradley, Gableman, and Chief Justice Roggensack.  The dissenting opinion was written by Justice Rebecca Bradely and joined by Justice Kelly.

The WCJC 2018 Guide to the Wisconsin Supreme Court and Judicial Evaluation can be found here.


Thursday, September 13, 2018

Wisconsin Supreme Court Grants Review in Dane County Case

Wisconsin Supreme Court Grants Review in Enbridge v. Dane County.  Coverage from the Wisconsin Gazette can be found here.

Monday, September 10, 2018

SCOWIS candidate Judge Lisa Neubauer on Up Front With Mike Gousha

Wisconsin Court of Appeals Judge Lisa Neubauer appeared on Up Front With Mike Gousha yesterday.  Video can be found here.

Thursday, September 6, 2018

Oral Argument Preview - State v. Reed

On Friday, September 7, 2018, the Supreme Court will hear oral argument in State v. Reed.  The case examines how an individual can demonstrate consent (particularly by conduct) for police to enter his home, and what type action is needed to withdraw consent.

Police responded to report of a fight between two men.  When the police arrived at the scene, a witness at the scene "Sullivan" said one of the individuals involved in the fight "Jerome" was in Sullivan's apartment.  After a brief discussion, Sullivan led the officer to his apartment.  Sullivan briefly knocked on the door to his apartment and then opened the door.  Sullivan opened the door, and then pushed the door towards a closed position behind him.  The officer put up his hand to stop the door from closing, and took a step inside the apartment and immediately saw Jerome and Reed near what appeared to be a controlled substance.  Reed was arrested and taken to jail, where a controlled substance was found in her sock.

The Court of Appeals held that Sullivan consented by conduct to entry in to his apartment, and the act of pushing the door toward the closed position was not sufficiently clear and unequivocal to withdraw the consent. 

I anticipate the issue of whether pushing the door towards the closed position was sufficient to withdraw consent to be the primary issue the court examines. 

Oral argument video will be streamed live at Wisconsin Eye.  The Court of Appeals opinion can be found here.

Wednesday, September 5, 2018

Oral Argument Recap - State v. Wayerski

There were a lot of questions in oral argument on the application of Brady v. Maryland requirements when exculpatory or impeachment evidence is available on CCAP (a widely available platform which includes a variety of circuit court related information).  Among the issues discusses were the following:

  • Whether the State had the burden to demonstrate exculpatory or impeachment evidence was on CCAP (and thus not in its exclusive possession)?
  • Whether evidence is in  the exclusive possession of the State if the defense would discover the evidence through reasonable diligence?
  • Does a lack of detail on CCAP impact the exclusive control analysis?  
It is always difficult to read tea leaves from oral argument, but there did not appear to be much interest in discussing the ineffective assistance of counsel issues.  Chief Justice Roggensack pointed out that the overwhelming amount of evidence makes it difficult to demonstrate prejudice.  

Based on oral argument, I expect the decision in this case will likely seek to clarify the State's obligation under Brady when the exculpatory or impeachment evidence is available on CCAP or other widely available online platforms.  

Tuesday, September 4, 2018

Oral Argument Preview - State v. Wayerski

On Wednesday, September 5, 2018, the Supreme Court of Wisconsin will hear oral argument in State v. Wayerski.  This will be the first oral argument of the term, and should be the first oral argument heard by new Justice Rebecca Dallet.  The case presents an ineffective assistance of trial counsel issue, as well as issues regarding whether the State violated Brady v. Mayland in failing to disclose material exculpatory and impeachment evidence.

Wayerski was a police officer who came into contact with two boys in the community.  Wayerski volunteered to mentor the two boys, and brought them on ridealongs and invited them to his home.  At some point the boys accused Wayerski of showing them pornography and sexually assaulting them.  Wayerski denied all allegations at trial.  The State called John Clark, who occupied a nearby jail cell to Wayerski, as a witness and Clark testified that Wayerski admitted that he had watched pornography with the boys, given the boys alcohol, and sexually assaulted them.

Defense counsel called Wayerski in surrebuttal in response to Clark, but counsel never asked Wayerski whether Clark's claim that Wayerski sexually assaulted the boys was true.  A few days prior to trial the prosecutor noticed on Wisconsin Circuit Court Access that Clark had pending charges in another county.  The pending charges were not disclosed to defense counsel, and the defense counsel was not aware of the pending charges at the time of trial.

Wayerski was convicted on all sixteen counts, and then appealed.  The Court of Appeals concluded that the ineffective assistance of counsel claim did not require a new trial because Wayerski could not demonstrate prejudice because the other evidence against him was overwhelming.  The Court of Appeals also held that there was no Brady violation because it was not an intolerable burden on the defense to search CCAP for the State witness's available pending criminal charges.

The evidence presented in the case, as outlined by the Court of Appeals, is substantial, so it may be difficult for Wayerski to demonstrate the prejudice necessary to meet the ineffective assistance of counsel or Brady standards.  The Brady issue, however, presents an interesting question regarding how much the State's obligation to provide Brady information is mitigated by the information being available on platforms such as  CCAP.  The Supreme Court of Wisconsin will have an opportunity to decide whether to adopt the "intolerable burden" standard articulated by the Court of Appeals.

The Wisconsin State Public Defender previously analyzed the Court of Appeals decision in this case.  A synopsis of the case can also be found here along with synopses of other cases scheduled for oral argument.  The Court of Appeals opinion can be found here.

Live video of oral argument can be streamed at Wisconsin Eye

Friday, August 31, 2018

Justice Abrahamson Diagnosed with Cancer

Best wishes go out to Supreme Court Justice Shirley Abrahamson, who announced today that she has been diagnosed with cancer.  The Milwaukee Journal Sentinel has extended coverage.

2018 Wisconsin Civil Justice Council Wisconsin Supreme Court Guide and Judicial Evaluation

The Wisconsin Civil Justice Council, an organization formed to represent Wisconsin business interests in civil litigation, has just released...