Vol. 76, No. 4, April 2003

Supreme Court Digest

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by Prof. Daniel D. Blinka &
Prof. Thomas J. Hammer

Criminal Law Criminal Procedure Family Law

Motor Vehicle Law Municipal Law Real Property

Criminal Law

Persistent Repeaters - Constitutionality of Wisconsin's "Two Strikes" Law

State v. Radke, 2003 WI 7 (filed 26 Feb. 2003)

The defendant was sentenced to life in prison without the possibility of parole under Wisconsin's "two strikes" statute. See Wis. Stat. § 939.62(2m). This statute requires imposition of a life sentence without parole or extended supervision if the state alleges and proves both that the defendant has committed what the statute defines as a "serious child sex offense" and that the defendant has a prior conviction for such an offense. In this case the defendant was convicted of repeated acts of sexual assault against the same child in violation of section 948.025(1), and he had a prior conviction for first-degree sexual assault of a child.

The defendant attacked the "two strikes" law as violative of substantive due process. He argued that the "two strikes" law is unconstitutional because it is not rational to subject someone who has committed two Class B felonies, such as child sexual assault, to life imprisonment without the possibility of release while such a disposition is not required for someone who has committed two Class A-felony intentional homicides. [For Class A felonies the court must impose a sentence of life imprisonment but has the discretion to determine whether the defendant will ever be eligible for release, unless the persistent repeater ("three strikes") provisions of section 939.62(2m) are applied to the homicide offense.]

The supreme court framed the precise issue before it as whether the "two strikes" law violates the Due Process Clause of either the U.S. or the Wisconsin constitution because the law requires a greater penalty to be imposed on an offender convicted of a second Class B-felony nonfatal child sexual assault than the statutes require to be imposed on an offender convicted of a second Class A-felony homicide offense.

In a decision authored by Chief Justice Abrahamson, the court concluded that the defendant's constitutional challenge to the "two strikes" law fails. "The legislature's interest in protecting the public from child sexual assault offenders, a particular subset of offenders with a perceived high rate of recidivism who victimize an especially vulnerable segment of the population, makes it rational for the legislature to impose a greater penalty on an offender convicted of a second Class B nonfatal child sexual assault than on an offender convicted of a second Class A homicide offense" (¶ 7).

In a footnote, the court indicated that the question was not before it of whether this rationale would support the inclusion of other nonfatal offenses in the "two strikes" law. See ¶ 27 n.37.

Justice Wilcox did not participate in this decision.

Criminal Procedure

Statute of Limitation - "Commencing" a Criminal Prosecution by Complaint when Defendant is Already in Custody

State v. Jennings, 2003 WI 10 (filed 5 March 2003)

M.K. was sexually assaulted on Dec. 5, 1992. Buccal swabs were taken from the defendant in 1994 and, in 1997, his DNA profile was entered into the State Crime Lab's databank. On Dec. 1, 1998, it was determined that the defendant's DNA matched evidence from a vaginal swab obtained from the victim on the date of the assault. On Dec. 4, 1998, the district attorney issued a criminal complaint charging the defendant with sexual assault and obtained a court order to produce the defendant from a state prison where he was serving a sentence for an unrelated crime. The order required the release of the defendant to the custody of the sheriff for transportation to and attendance at an initial appearance in court.

The initial appearance was held on Dec. 6, 1998. The defendant waived his preliminary examination and, on Dec. 14, 1998, the district attorney filed a criminal information alleging one count of second-degree sexual assault. The defendant moved to dismiss the charge, arguing that the six-year statute of limitation had expired. The circuit court denied the motion.

In Wisconsin a prosecution for a felony must ordinarily be "commenced" within six years after commission of the felony. Within the meaning of the controlling statute, a prosecution has "commenced" when a warrant or summons is issued, an indictment is found, or an information is filed. See Wis. Stat. § 939.74(1). Applying this statute, the court of appeals reversed the circuit court. See State v. Jennings, 2002 WI App 16. The court of appeals concluded that this statute is quite precise as to which documents must be issued, found, or filed to "commence" a felony prosecution: a warrant, summons, indictment, or information. No mention is made of a complaint or an order to produce.

In a majority decision authored by Justice Bablitch, the supreme court reversed the court of appeals. It concluded, based on the legislative history of section 939.74(1) and related criminal statutes dealing with the commencement of criminal prosecutions and warrantless arrests, that for statute of limitation purposes, a criminal complaint is sufficient to commence a prosecution against an individual, like the defendant, who is already in custody due to incarceration.

Perhaps most significant to the majority in reaching this decision was the legislative history of section 939.74(1), which demonstrates that the statute of limitation begins to toll with the earliest action to commence criminal proceedings. In many cases, the earliest action is the issuance of a warrant, as identified in section 939.74(1). However, said the court, in a situation in which the suspect is already in custody, the issuance of a warrant seems, at best, superfluous, since the purpose of obtaining an arrest warrant is to take an individual into custody. See ¶ 22.

"The legislature could not have intended the absurd result of requiring the issuance of a warrant for statute of limitations purposes under Wis. Stat. § 939.74(1) for an individual who is already in custody. Consequently, we reverse the court of appeals and hold that § 939.74(1) does not trump Wis. Stat. §§ 967.05(1) and 968.02(2), which both provide that a prosecution may be commenced upon the filing of a complaint" (¶ 23).

Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

Jury Selection - "Anonymous" Juries - Hearsay

State v. Tucker, 2003 WI 12 (filed 5 March 2003)

Tucker was charged with a drug-related offense. During jury selection, the judge informed the parties that it was his practice to use "numbers" instead of jurors' names in drug prosecutions. The parties, however, had complete access to all juror information, including the jurors' names; the order simply precluded on-record references to the names. The jury convicted Tucker. She appealed, and her appeal was certified to the supreme court.

The supreme court, in an opinion authored by Justice Bablitch, affirmed. Succinctly stated, the court held that "if a circuit court restricts any juror information, the court must make an individualized determination that the jury needs protection and take reasonable precautions to minimize any prejudicial effect to the defendant" (¶4; see also ¶27). Although the trial court failed to make such an individualized determination in this case (the judge's determination was instead based on the class of offense, here, drug related), the supreme court held that the error was harmless beyond a reasonable doubt in light of the overwhelming evidence of guilt.

Tucker also argued that the judge erred by excluding a hearsay statement by a witness to the effect that Tucker had "nothing to do with the drugs." The supreme court held that the trial court properly determined, however, that the witness's statement was not truly against his own penal interest because he never actually inculpated himself while exculpating Tucker.

Chief Justice Abrahamson concurred and also joined Justice Bradley's separate concurrence. The Chief Justice wrote separately to explain that the majority's harmless error analysis "misses the mark" because it focuses too much on the defendant's guilt and "fails to assess whether the fundamental constitutional rights of the defendant were violated" (¶37).

Justice Bradley also concurred, but she disagreed with the majority's harmless error analysis. She emphasized that this case did not concern an "anonymous jury" but rather a restriction on how jurors could be addressed on the record. She said that the majority also faltered by not considering whether the defect constituted a "structural error," which is not subject to harmless error analysis. Finally, Justice Bradley said that shielding juror information also "contradict[s] the presumption of openness that defines the American judicial system" (¶72).

Justice Sykes also concurred, arguing that the anonymous jury case law does not apply in the first place to the "far more innocuous practice of voir dire by number" (¶84), because this practice does not "rise to the level of an encumbrance on the presumption of innocence so as to implicate the defendant's right to due process" (¶86).

Family Law

Termination of Parental Rights - Notification Requirements under the Indian Child Welfare Act

Sheboygan County Dep't of Human Servs. v. Neal J.G., 2003 WI 11 (filed 5 March 2003)

Petitions were filed to terminate a father's parental rights to his children. The father filed several pretrial motions, including a motion to dismiss for failure to notify the "Ojibwa Tribe in Marinette, Wisconsin" of the proceedings. Alternatively, the father asked that the proceedings be suspended in order for the government to provide notice to the tribe. The father claimed that such notice was required by the Indian Child Welfare Act (ICWA) because he has Indian heritage, specifically, that his mother's ancestors were members of the aforementioned tribe.

The circuit court asked the grandmother to supply all the information she could about the children's Indian heritage. The district attorney then provided all of the known information about the children's Indian ancestry to the U.S. Department of the Interior. In sum, the grandmother indicated that her own grandmother was born on an Indian reservation somewhere in Canada around 1880 and later moved to Marinette, Wis. The department responded that it was unable to determine the children's Indian ancestry due to insufficient information on tribal affiliation.

The father then made a motion in limine for an order requiring that notice be sent to the Ojibwa Tribe in Marinette, as he had previously requested. At the hearing the district attorney recounted his substantial but unsuccessful attempts to locate such a tribe. Ultimately, the circuit court denied the motion, concluding that the authorities were not in a position to do anything more regarding notice and that the provisions of the ICWA had been satisfied. Trial then proceeded, and the court ordered the father's parental rights terminated.

In a majority decision authored by Justice Bradley, the supreme court affirmed the circuit court decision. The majority began its analysis by observing that the ICWA contains procedural and substantive provisions for involuntary child custody proceedings when an "Indian child" is involved. Among the procedural provisions is a requirement that the child's tribe be notified when the court knows or has reason to know that an Indian child is involved. The ICWA defines an "Indian child" as "any unmarried person who is under age eighteen and is either (1) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 U.S.C. § 1903(4). The term "Indian tribe" means an Indian tribe, band, nation, group, or community that is recognized as eligible for the services provided to Indians by the U.S. Secretary of the Interior because of its Indian status.

The circuit court had concluded that the information about the children's ancestry was too sketchy to require further notice under the ICWA, and that under these circumstances the notification provisions of the ICWA had been satisfied. The supreme court agreed with the Department of the Interior and the circuit court that the information in this case was inadequate. However, unlike the circuit court, the supreme court determined that because the information was insufficient to show that the ICWA notice provisions even applied in this case, no notice was required. The supreme court affirmed the order terminating the father's parental rights.

Chief Justice Abrahamson filed a dissenting opinion.

Motor Vehicle Law

Criminal OWI - Application of Habitual Criminality Statute

State v. Delaney, 2003 WI 9 (filed 4 March 2003)

The defendant was charged with operating a vehicle while intoxicated (OWI) as a third-time offender. To this charge the prosecution added an allegation of habitual criminality under the general repeater statute (Wis. Stat. § 939.62) because the defendant had a prior felony conviction for attempted possession of THC with intent to deliver.

The defendant moved to dismiss the habitual criminality penalty enhancer under section 939.62, arguing that addition of this enhancer was improper because he already faced enhanced penalties as a repeat offender under the OWI statute. The circuit court denied the motion, and the defendant was thereafter convicted as charged. The court of appeals affirmed.

In a majority decision authored by Justice Crooks, the supreme court affirmed the court of appeals. The court concluded that a defendant convicted of the crime of second or subsequent offense OWI, as the defendant had been, is subject to the penalty enhancements provided for in both the OWI statute and the general repeater statute, "so long as the application of each enhancer is based on a separate and distinct prior conviction or convictions" (¶ 36). The court said that a careful reading of the general repeater statute reveals that the plain language of section 939.62 does not exclude OWI offenses from the category of crimes to which the habitual criminality statute may be applied.

Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

Municipal Law

Authority of Municipality to Acquire and Develop Private Property - Public Purpose Doctrine

Town of Beloit v. County of Rock, 2003 WI 8 (filed 4 March 2003)

This case concerns a parcel of land along the Rock River that was acquired by the town of Beloit and that the town seeks to develop into a residential subdivision. The circuit court concluded that the public purpose doctrine did not allow for such actions by the town.

The court of appeals reversed. It held that the town had statutory authority to develop the land and that its goals in doing so constituted a public purpose.

In a majority decision authored by Justice Crooks, the supreme court affirmed the court of appeals. It held that the combination of the town's enunciated goals of creating jobs, promoting orderly growth, increasing the tax base, and preserving and conserving an environmentally sensitive area for the benefit of town citizens constitutes a legitimate and valid public purpose under Wisconsin statutes and case law and the U.S. and Wisconsin constitutions.

At the heart of this dispute is the town's plan to expend tax monies to develop and sell the land in question. The public purpose doctrine commands that public funds be used only for public purposes. Courts are to give great weight to the opinion of the legislative body. If any public purpose can be conceived of that might rationally justify the expenditure, the constitutional test is satisfied. Wisconsin municipalities have traditionally been given wide discretion to determine whether a public expenditure is warranted due to public necessity, convenience, or welfare. As such, the public purpose doctrine has been broadly interpreted.

Applying these principles, the supreme court held that the combination of goals described above is a legitimate and valid public purpose justifying the expenditure of public funds by the town.

Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.

Real Property

Trespass - Adverse Possession - Owner in Possession

O'Neill v. Reemer, 2003 WI 13 (filed 5 March 2003)

The O'Neills and Reemer owned adjoining land. A dispute erupted over a strip of land that runs along the boundary between the two properties. Although Reemer has record title to the strip, the O'Neills claimed ownership based on adverse possession.

After Reemer permitted Weyerhaeuser to log the strip, the O'Neills brought this trespass action against Reemer and Weyerhaeuser. Relying on Shelton v. Dolan, 224 Wis. 2d 334 (Ct. App. 1998), the trial court ruled that the adverse possession claim ripened in 1964, and that therefore the 30-year period set forth in Wis. Stat. section 893.33(2) ran between 1964 and 1994. Because the O'Neills had not recorded any instruments or notice of claim before 1994, their claim was barred as of 1994.

In the alternative, the court ruled that because a fence was constructed in 1944, issues of fact existed that precluded summary judgment for either party. The court of appeals affirmed the circuit court based on Shelton, but acknowledged "questions regarding the validity" of Shelton's construction of section 893.33 that only the supreme court could clarify.

The supreme court, in an opinion authored by Justice Bradley, reversed and remanded. The supreme court expressly overruled Shelton because it misinterpreted and misapplied earlier cases and "draws a line that is neither required by the language of Wis. Stat. § 893.33(5) nor supported by sound policy" (¶32).

The court "reaffirmed" prior cases to the effect that "the owner-in-possession exception to the 30-year recording requirement applied to adverse possession claims" (¶37). To hold otherwise would mean that "one who has adversely possessed property for over 50 years would not be able to claim title while one who has adversely possessed property between 20 and 50 years would be able to do so. In addition, adverse possession claims sometimes involve situations in which the parties are operating under the belief that the adverse possessor has record title to the property that is being possessed. It is therefore illogical to create an expectation that the adverse possessor make a filing of record before the incident prompting the lawsuit arises" (¶31).

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