July 1, 2022 – A member of the Wisconsin Board of Natural Resources (DNR Board) is entitled to remain on the board although his term ended on May 1, 2021, the Wisconsin Supreme Court has ruled in a 4-3 decision.In State ex rel Kaul v. Prehn, 2022 WI 50 (June 29, 2022), the court held that the expiration of DNR Board member Frederick Prehn’s term did not create a vacancy in his position. Consequently, he remained a lawful
Continue Reading Walker Appointee Entitled to Hold Over on DNR Board, Wisconsin Supreme Court Rules

July 1, 2022 – The Wisconsin Supreme Court has ruled that a sexual abuse verdict was supported by reasonable jury inferences, even though the state failed to ask victims specifically whether the statutorily-defined sexual contact occurred during the time periods charged in the complaint.In State v. Coughlin, 2022 WI 43 (June 21, 2022), the supreme court held (5-1) the state’s failure did not negate the heavy burden that the defendant had to overcome the deference traditionally accorded a jury
Continue Reading Sex Abuse Verdict Supported by Reasonable Jury Inferences

July 1, 2022 – The admission of testimony by a victim about her lack of sexual activity in the period preceding an alleged sexual assault did not warrant reversing a defendant’s sexual assault conviction, the Wisconsin Supreme Court has ruled.In State. v. Mulhern, 2022 WI 42 (June 21, 2022), a supreme court majority held that the term “sexual conduct” as used in the rape shield law includes a lack of sexual conduct.Evidence of such lack of conduct barred
Continue Reading Rape Shield Law Applies To Testimony About Lack of Sexual Activity

July 1, 2022 – A search warrant affidavit stated sufficient facts to find probable cause although it listed the driveway of the driver’s home address as the location of the drunk driving offense, the Wisconsin Supreme Court has ruled.In

State v. Green, 2022 WI 41 (June 15, 2022), the supreme court held (6-1) that the facts listed in the affidavit allowed an inference that the drunk driving offense occurred somewhere other than on the driveway of the driver’s
Continue Reading OWI Search Warrant Affidavit Sufficient After Stop on Driveway

June 30, 2022 – The Wisconsin Supreme Court has issued an
order, effective June 29, 2022 extending the five-year-old Commercial Docket Pilot Project.The order amends the Interim Commercial Court Rule to extend the end date of the project to July 30, 2024.Additionally, the order amends the rule to 1) make the selection of specified number of judges in pilot project counties by the Chief Justice of the supreme court permissive instead of mandatory; and 2) specify that the
Continue Reading Wisconsin Supreme Court Extends Business Court Pilot Project on 4-3 Vote

June 29, 2022 – The Wisconsin Supreme Court has ruled that the state’s penalty scheme for operating while intoxicated (OWI) convictions is unconstitutional because it allows a penalty enhancement for a refusal to consent to a warrantless blood draw.In State. Forrett, 2022 WI 37 (June 3, 2022), the supreme court held (4-3) that the penalty scheme ran afoul of U.S. Supreme Court precedent that prohibits imposing a criminal penalty for the blood draw refusal, because such a refusal
Continue Reading Wisconsin Supreme Court Rules OWI Penalty Scheme Unconstitutional

June 29, 2022 – The proper remedy for a circuit court’s failure to specify the grounds for extending a mental health commitment that has since expired is reversal, the Wisconsin Supreme Court has ruled.In Sheboygan County v. M.W., 2022 WI 40 (June 10, 2022), the supreme court held (4-3) that reversal, rather than remand, was the property remedy because the circuit court lacked competency to conduct any further proceedings since the order extending the commitment had expired.Series of RecommitmentsM.W.
Continue Reading Reversal is Remedy Where Court Failed to Specify Grounds for Recommitment

June 28, 2022 – A lawsuit filed to block the release of a list of all Wisconsin businesses with over 25 employees that had at least two employees test positive for COVID-19 is barred by the state public records law, the Wisconsin Supreme Court has ruled.In Wisconsin Manufacturers and Commerce v. Evers, 2022 WI 38 (June 7, 2022), the supreme court held 4-3 that a provision that generally prohibits the pre-release judicial review of decisions to release records
Continue Reading Lawsuit to Stop Release of COVID-19 Testing Data Barred by Public Records Law

State v. Mitchell D. Green, 2021AP267-CR, petition for review of an unpublished COA opinion granted 6/22/22; case activity (including briefs)
Question presented (from the State’s PFR):

Did the circuit court erroneously exercise its discretion when it concluded that there was a manifest necessity for a mistrial after Green introduced unnoticed third-party perpetrator evidence at trial via the testimony of a witness who claimed to have committed the crime but was unrepresented by counsel?

The State charged Green with
Continue Reading SCOW to review whether the admission of admissible evidence warrants a mistrial

Sauk County v. S.A.M., 2022 WI 46, reversing an unpublished court of appeals opinion, 2019AP1033; case activity
Unlike other states, Wisconsin appellate courts have for decades dismissed most appeals from expired ch. 51 orders as moot. As a result, there was been little appellate review of circuit court decisions declaring people mentally ill, committing them to government custody, and medicating them against their will. Not any more. In a 4-3 decision, SCOW holds that appeals from expired
Continue Reading SCOW: Appeals from expired ch. 51 commitment orders are not moot

State v. Donald P. Coughlin, 2019AP1876-CR, 2022 WI 43, reversing an unpublished court of appeals opinion; case activity (including briefs)
How should an appellate court measure the sufficiency of the evidence to support a jury verdict where the instructions and the special verdict define the crime differently? In a 5-1 opinion, the majority held, based on the facts of this particular case, that the jury instructions should control. It then considered whether the evidence of child sexual
Continue Reading SCOW finds sufficient evidence to reinstate 15 child sexual assault convictions

June 23, 2022 – An insurance policy that covered physical damage to property and losses caused by a suspension of operations did not cover losses caused when a coffee shop closed because of the pandemic, the Wisconsin Supreme Court has ruled.In Colectivo Coffee Roasters, Inc. v. Society Insurance, 2022 WI 36 (June 1, 2022), the supreme court unanimously held that neither the physical presence of COVID-19 virus particles nor the a state order closing the coffee shop amounted
Continue Reading Loss From COVID-19 Closure Not Covered by Property Insurance Policy

State v. Ryan Hugh Mulhern, 2022 WI 42, 6/21/22, reversing a per curiam court of appeals decision, 2019AP1565, case activity (including briefs)
When we posted on SCOW’s grant of review of the non-citable court of appeals decision in this case, we imagined the court might accept the state’s invitation to change the scope of the rape shield law and hold the evidence at issue here–testimony proffered by the state that a complaining witness had not engaged in
Continue Reading SCOW reaffirms that rape shield law excludes evidence of lack of sexual conduct

State v. Ricky Rodriguez, 2021AP2053-Cr, 6/14/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)
Rodriguez was convicted of two misdemeanors and placed on probation in early 2017. a few months later, he committed two felonies and was sentenced to prison. His probation for the misdemeanors was revoked, and he was sentenced to 9 months in jail consecutive to any other sentence. In his pro se appeal, he argued that his sentence after revocation cannot, as
Continue Reading Sentence after probation revocation may run consecutive to other sentences

State v. Smolarek, 6/16/22, District 4, (1-judge opinion, ineligible for publication); case activity (including briefs)

Smolarek was involved in a motorcycle accident. After allegedly admitting that he had smoked marijuana much earlier that day, an officer arrested him. A blood test showed that he had been driving under the influence of THC. Smolarek moved to suppress arguing that the officer got his story wrong. He admitted that he had smoked marijuana after the accident. So the officer lacked
Continue Reading COA Rejects Defendant’s Changed Story, Affirms Probable Cause for OWI

Denezpi v. United States, No. 20-7622, 2022 WL 2111348, June 13, 2022, affirming U.S. v. Denezpi, 979 F.3d 777 (10th Cir. 2020); Scotusblog page (including briefs and commentary)
Denezpi was prosecuted in the Court of Indian Offenses, a creature of the federal Bureau of Indian Affairs that provides a criminal court system for those (relatively few) tribes that haven’t set up their own. After serving a 140-day sentence in that prosecution, he was charged for and convicted of
Continue Reading SCOTUS: Successive prosecution in federal court after prosecution by Court of Indian Offenses didn’t violate Double Jeopardy Clause