Oct. 27, 2023 – An assistant district attorney may not appeal an order finding him in contempt for inviting a victim to a trial despite a trial court’s order sequestering the victims until they testified, the Wisconsin Court of Appeals has ruled.

In Attorney Thomas L. Potter v. Circuit Court for Milwaukee County, 2022AP1396 (Oct. 17, 2023), the Court of Appeals District I held that the collateral attack rule barred the attorney’s appeal, despite the fact that the issue of whether the circuit court erred by issuing the sequestration order was moot.

Two Attorney Victims

In April 2021, the State charged Arielle Simmons with battery and disorderly conduct in Milwaukee County Circuit Court.

The State alleged that Simmons hit Donald, a criminal defense attorney, in the face and poured coffee on Frank, another criminal defense attorney.

Donald was representing Simmons’ boyfriend in a criminal case. But he’d withdrawn from representing the boyfriend the day before Simmons allegedly hit him, after the boyfriend had requested his withdrawal.

Motion to Exclude Victims

The circuit court set March 7, 2022 as the trial date in Simmons’ case.

On Feb. 18, Simmons’ attorney filed a motion in limine and asked the court to exclude Donald and Frank, as well as other witnesses, from the courtroom when they weren’t testifying.

Simmons’ attorney argued that sequestering the witnesses was necessary to give his client a fair trial.

The State opposed the motion in limine, and the circuit court adjourned to trial until May 31, 2022.

Dueling Constitutional Rights

On May 31, the State filed a motion arguing that the victims had a right under the Wisconsin Constitution to attend the entire trial.

The circuit court acknowledged that victims have a right to attend trials under Marsy’s Law. But the circuit court pointed out that under Marsy’s Law, a victim’s rights may not be interpreted to supersede a defendant’s constitutional rights.

The circuit court then ordered that Donald and Frank were not to be in the courtroom until they were called to testify.

Court finds ADA in Contempt

Later on May 31, during a sidebar held during jury selection, Thomas Potter, an assistant district attorney, told the circuit court that he’d invited Donald to attend the opening statements, despite the circuit court’s order.

Potter then read aloud an email to Donald in which Potter said that he believed the circuit court’s order was legally erroneous and he wanted an appellate court to review the order.

The circuit court ruled that the email violated the order, found Potter in contempt of court, and fined him $500.

Potter appealed.

Attempted Collateral Attack

Judge Timothy Dugan began his opinion by noting that Potter’s appeal was an attempt to collaterally attack the circuit court’s contempt order.

Dugan noted that under Maness v. Meyers, 419 U.S. 449 (1975), attorneys must promptly comply with a court’s orders – a proposition referred to as the collateral attack rule.

Potter argued that his conduct fell within one of the exceptions to the collateral attack rule established by the Wisconsin Supreme Court:

• the order or judgment was procured by fraud;

• the order or judgment was void because the court acted without jurisdiction; or

• there was no meaningful opportunity for review of the order.

Potter argued that in his case, there was no meaningful opportunity for review of the order sequestering the victims.

The circuit court argued that the State could have sought review of the order by:

• filing a petition for a supervisory writ under Wis. Stat. Rule 809.51(1);

• seeking review under article I, section 9m(4)(b) of the Wisconsin Constitution, which authorizes victims to obtain review of adverse decisions regarding their rights; or

• pursuing an interlocutory appeal

Exception to Mootness Doctrine

Potter argued that the issue of whether the circuit court erred by issuing the sequestration order was moot, because the victims were not in the courtroom until they testified, and the mootness doctrine would thwart any attempt at meaningful review of the issue.

As a result, Potter argued, the collateral attack rule shouldn’t apply.

Judge Dugan agreed that the issue was moot, because “an order from this court could not correct any error by the circuit court, if it were to find error, in excluding victims.”

But Dugan concluded that the issue qualified for an exception to the mootness doctrine, because it was likely to be repeated but evade review because it was the type of issue typically resolved before an appeal would be complete.

Opportunity for Meaningful Review Existed

Judge Dugan pointed out that the supreme court had recognized the expansion of victim’s rights and their importance under the Wisconsin Constitution.

“Thus, when an appellate court considers whether it should consider a moot issue regarding victim’s rights – here, being sequestered from the trial – it would recognize that the victim’s rights are a matter of great public importance,” Judge Dugan wrote.

Because an appellate court could consider the issue of the sequestration order despite its mootness, Dugan concluded, there was an opportunity for meaningful review of the issue, and Potter could not attack the circuit court’s order finding him in contempt.