Criminal Procedure

Guilty Pleas – Deportation Consequences

State v. Reyes Fuerte, 2017 WI 104 (filed 19 Dec. 2017)

HOLDINGS: 1) A circuit court’s failure to strictly comply with the requirements of Wis. Stat. section 971.08(1)(c) regarding advice to a defendant pleading guilty about deportation consequences is subject to harmless-error analysis. 2) The circuit court’s error in this case was harmless as a matter of law.

SUMMARY: Wisconsin Statutes section 971.08(1)(c) requires that, before accepting a plea of guilty or no contest, the circuit court must address the defendant personally and advise the defendant as follows: “If you are not a citizen of the United States of America, you are advised that a plea of guilty or no contest for the offense with which you are charged may result in deportation, the exclusion from admission to this country or the denial of naturalization, under federal law.”

Wisconsin Statutes section 971.08(2) articulates a remedy when the circuit court fails to make the required statement. It provides that if the defendant later shows that the plea is likely to result in his or her deportation, exclusion from admission to the United States, or denial of naturalization, the court on the defendant’s motion shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea. In State v. Douangmala, 2002 WI 62, ¶ 25, 253 Wis. 2d 173, 646 N.W.2d 1, the court prohibited application of harmless-error analysis when reviewing a circuit court’s failure to comply with Wis. Stat. section 971.08(1)(c).

In a majority opinion authored by Justice Gableman, the supreme court concluded that Douangmala should be overruled. “We hold that Douangmala was objectively wrong because it failed to properly consider the harmless error statutes, Wis. Stat. §§ 971.26 and 805.18…” (¶ 3). Douangmala “was wrongly decided because harmless error analysis does apply to § 971.08(2)” (¶ 4).

In this case the circuit court’s admonition to the defendant did not strictly comply with Wis. Stat. section 971.08(1)(c). The judge used the word “resident” rather than “citizen” and made no mention of “denial of naturalization.” The supreme court concluded that these errors were harmless as a matter of law. The defendant had been alerted to the potential immigration consequences of his plea in the standard plea questionnaire/waiver of rights form, which contains an admonition similar to that required by Wis. Stat. section 971.08(1)(c). Defense counsel stated on the record that he reviewed the form’s content with the defendant.

Moreover, the immigration consequence relevant to the defendant (deportation) was raised by the circuit court; the defendant was not concerned about being denied naturalization.

The majority specifically reminded circuit court judges that simply reading the language of the admonition contained in Wis. Stat. section 971.08(1)(c) “is by far the best option” (¶ 19). “Though, as a result of this opinion, harmless error now applies as a ‘safety net’ for circuit courts, the best practice remains reading the exact language of the statute” (id.).

Justice Abrahamson filed a dissenting opinion that was joined in by Justice A.W. Bradley.

Traffic Stops – Duration – Ordinary Inquiries Incident to Traffic Stops

State v. Smith, 2018 WI 2 (filed 9 Jan. 2018)

HOLDINGS: 1) The mission of a traffic stop includes making “ordinary inquiries” of the driver regarding driver’s license status, vehicle registration, existence of open warrants, and so on. 2) The officer in this case did not unlawfully extend the traffic stop even though the reason for the stop evaporated before the officer spoke with the defendant; the officer was permitted to complete the “ordinary inquiries.” 3) Opening the passenger door of the vehicle to speak with the defendant was not an unreasonable search inasmuch as the driver’s door and driver’s window were inoperable.

SUMMARY: A Madison police officer was monitoring a particular neighborhood for gang retaliation after what may have been gang-related shots fired the previous night. The officer’s attention was drawn to a particular car, which stopped momentarily in the middle of the street. The officer ran a check on the vehicle’s registration and learned that the car’s registered owner had a suspended driver’s license. The officer pulled the vehicle over and, as he approached it, determined that the registered owner, a woman, was not the driver because the driver was a man.

The officer asked the driver, later identified as defendant Smith, to open the door or roll down the window. Smith responded that both the door and the window were broken. The officer then went to the passenger side of the vehicle and opened the door; this appears to have been a joint effort with the defendant, who had moved to the passenger seat and was working the door handle from inside the vehicle.

Once the door was opened, the officer noted that Smith had bloodshot eyes and smelled of alcohol. These indications ultimately led the officer to find additional evidence of intoxication, and Smith was arrested and charged with seventh-offense operating while intoxicated. Smith moved to suppress all evidence acquired from the traffic stop. The circuit court denied the motion, and Smith pleaded guilty.

In a per curiam decision, the court of appeals reversed the conviction and remanded the matter to the circuit court with orders to grant the defendant’s suppression motion.

In a majority opinion authored by Justice R.G. Bradley, the supreme court reversed the court of appeals. It held that “when an officer conducts a valid traffic stop, part of that stop includes checking identification, even if the reasonable suspicion that formed the basis for the stop in the first place has dissipated” (¶ 2). The dual mission of a traffic stop includes determining whether to issue a traffic ticket and making the ordinary inquiries incident to the stop.

“As long as the initial stop was lawful, requesting identification is a permissible part of the dual mission of every traffic stop. The ordinary inquiries portion of the traffic stop’s mission includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance” (¶ 10) (internal citations and quotations omitted).

Applying these principles, the majority concluded that “the stop in Smith’s case did not violate the Fourth Amendment. The mission of the lawful traffic stop did not end when reasonable suspicion dissipated because at that moment, the sergeant had not completed the ordinary inquiries of checking Smith’s license, registration, and insurance. Before [Sergeant] Gonzalez could complete the ordinary inquiries incident to the stop, he discovered Smith did not have a valid driver’s license and saw signs Smith had been driving drunk. At this point, the sergeant had probable cause to extend the stop to investigate and eventually arrest Smith for drunk driving” (¶ 21).

The court further concluded that “the police officer’s act of opening the passenger door in order to effectively communicate with a driver otherwise inaccessible due to the malfunctioning driver’s door and window did not constitute an unreasonable search because the officer’s actions, viewed objectively, would warrant a person of reasonable caution to believe the action taken was appropriate” (¶ 3).

“[T]he officer’s act of opening the passenger door to facilitate safe, face-to-face contact with the otherwise inaccessible driver did not constitute an unreasonable search” (¶ 37). The officer’s action “was reasonable and the intrusion on Smith’s personal liberty was an incremental, de minimus one” (¶ 35).

Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Abrahamson. Justice Kelly filed a dissenting opinion that was joined in by Justice Abrahamson and Justice A.W. Bradley.

Defendant’s Presence at Trial – Waiver

State v. Washington, 2018 WI 3 (filed 9 Jan. 2018)

HOLDING: By his conduct, the defendant waived his statutory right to be present at trial.

SUMMARY: A jury convicted the defendant of burglary and obstructing an officer. Before trial, the defendant had dismissed two defense lawyers and tried to fire the third on the day of trial, a move the trial judge denied. The defendant refused to attend jury selection and sat out the entire trial despite numerous invitations by the judge to join the proceedings. In a published decision, the court of appeals affirmed the convictions. See 2017 WI App 6.

The supreme court affirmed in a majority opinion authored by Justice A.W. Bradley. The court found waivers of the defendant’s constitutional and statutory rights to be present at trial based on his conduct (see ¶ 29). It rejected his contention that Wis. Stat. section 971.04(3) permits such waivers only if the defendant was present (he was not) when the jury was sworn in. The case law, history, and the text of subsection (3) make clear that this exception applies to situations when a defendant absconds during the course of a trial; it has no application to an obstreperous defendant who refuses to be present at the very start of the trial. In short, subsection (3) did not apply here.

Turning to the accused’s Wis. Stat. section 971.04(1) right to be present at trial, the court held that the defendant waived his right to be present through his conduct (see ¶ 41). Moreover, the judge gave an appropriate jury instruction and repeatedly invited the defendant to join the trial in progress, which he declined to do. The supreme court emphasized, however, that while waivers through conduct are recognized, the best practice is for the judge to take an express waiver on the record (see ¶¶ 54-56).

Justice Abrahamson withdrew from participation. A concurring opinion by Justice Gableman, joined by Justice R.G. Bradley and Justice Kelly, contended that the defendant had also “forfeited” his right to be present at trial.

Torts

Unjust Enrichment – Attorneys – Conflicts – Fiduciaries

Sands v. Menard, 2017 WI 110 (filed 29 Dec. 2017)

HOLDING: The plaintiff failed to plead sufficient facts to support her unjust-enrichment claim; because the plaintiff was a lawyer, SCR 20:1.8(a) served as a “guide” to her standard of care; and the circuit court properly granted summary judgment in favor of the plaintiff on a breach-of-fiduciary-duty claim and against her in her claim against the trustees.

SUMMARY: Plaintiff Sands, a lawyer, sued Menard and multiple entities following the breakup of their personal-professional-business relationships, which spanned 1998-2006 and spawned much litigation. In this case, the circuit court dismissed both Sands’ claims and Menard’s counterclaims. The court of appeals affirmed.

The supreme court affirmed in a majority opinion authored by Chief Justice Roggensack. At the center was Sands’ unjust-enrichment claim against Menard based on Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 305 (1987). Watts broadly held that public policy does not preclude unmarried, former cohabitants from raising unjust-enrichment claims grounded in contracts or quasi-contracts (see ¶¶ 29, 31).

After explicating Watts, the court held that Sands’ pleadings fell short of any valid claims. There was no “joint enterprise.” Menard made his fortune decades before his involvement with Sands (see ¶ 48), and Sands and Menard did not commingle finances (see ¶ 49). Nor did Sands plead a valid unjust-enrichment claim under the Watts three-part standard. Her contributions were not material to the creation of Menard’s wealth. It was unclear whether the benefits she conferred on Menard were offset by benefits she received (see ¶¶ 50-51). Promises of “ownership” allegedly made by Menard were “not persuasive” (¶ 52).

Although not “necessary” to its determination, the court took up the “important issue” of the role played by SCR 20:1.8(a), which governs financial dealings between lawyers and clients, in such unjust-enrichment cases. The court first clarified some “general principles.” In-house counsel licensed to practice law outside Wisconsin are not subject to regulation by the State Bar (see ¶ 55). Rule violations are adjudicated only in disciplinary actions. Nonetheless, the rules serve as useful “guidelines” in civil litigation (¶ 57).

The supreme court rejected the court of appeals’ position that SCR 20:1.8(a) creates an “absolute bar” to Sands’ claim: “First, Supreme Court Rules that regulate the ethical practice of law in Wisconsin cannot be used as an absolute defense in a civil action in which an attorney is a party” (¶ 65). The court “clarified” case law suggesting otherwise. Second, Sands was not “practicing law” as in-house counsel; thus, she was not entitled to State Bar membership and was not subject to SCR 20:1.8(a) (id.).

The remainder of the opinion is a fact-intensive discussion in which the court rejected Sands’ claims and various counterclaims by defendants.

Justice Abrahamson, joined by Justice A.W. Bradley, concurred in part and dissented in part. They supported remanding Sands’ unjust-enrichment claim for trial but took issue with the majority’s construction of Watts.