State v. Nathaniel R. Lecker, 2019AP1532, 9/1/20, District 3 (recommended for publication); case activity (including briefs)

The application of a statute to undisputed facts is a question of law. This is an incontrovertible maxim of appellate review. “Question of law” sounds so august and erudite and specialized, doesn’t it? A question of law is a question into which an astute lawyer–or judge–would have special insight; he or she could be trusted to come to the right–or at least a particularly sound–answer to such a question. But sometimes statutes are written in very ordinary terms with no particular resonance, and no special definition, in the legal world. And sometimes these ordinary terms are also rather elastic–or relative. In those instances, can the answer to a “question of law” be something other than a standardless, “know it when I see it” exercise of arbitrary will?

Case in point: Lecker helped get emergency treatment for someone who was overdosing. The police asked him to come to the station the next day for an “interview,” during the course of which Lecker confessed to having drug paraphernalia in his apartment and consented to a police search, which led to the state charging him with two felonies for possessing one one-hundredth of a gram of methamphetamine and some marijuana ashes. The statute in question is § 961.443(2)(a) (2017-18) (the latest version contains the same language) which would make Lecker “immune from prosecution” for these offenses “under the circumstances surrounding or leading to his … commission of” the act of aiding the overdosing man. So the “question of law” here is whether Lecker’s possession was “under the circumstances surrounding” his aid.

“Under the circumstances” “and “surrounding” are two very, very squishy terms. So here, with their combination, we have squishy². What “circumstances” “surrounded” Lecker’s seeking of emergency help? The parties and the court resort to dictionaries, but they don’t add anything in the way of concreteness–they just provide commonsensical definitions of both terms. (¶16). In the end, the court finds Lecker’s possession of paraphernalia and marijuana ashes in his home to be too far removed, factually, from his act of helping the overdose victim – even though Lecker’s involvement with that situation began in his home.

It’s not an indefensible conclusion, at least in the abstract. But it is undeniably arbitrary. A lush and shady lawn “surrounds” the Capitol building. So do the inner loop, the outer loop, the city of Madison, the beltline (partly), the state of Wisconsin, the asteroid belt, and, it is theorized, the Oort cloud. You can draw a line somewhere, but it’s not going to be anchored in the meaning of “surround.”

But let’s leave the abstract for a moment. However arguable the “surroundingness” question may be academically, the point of the immunity statute is to encourage people to seek help for overdose victims by removing the threat of criminal punishment for those who do so. As the discussion above suggests, it would be impossible for the legislature to lay out every conceivable circumstance by which a person’s drug possession might be connected to his act of helping to save a life; they had to leave it to the good judgment of prosecutors and courts. Lecker helped somebody, gave the police information, and ended up getting charged with two felonies for having tiny amounts of drugs in his home. Here, at least, it doesn’t seem that the legislature has reliable partners in its efforts to prevent needless overdose deaths.