Criminal Law

Possession of Firearm by Felon – “As Applied” Constitutional Challenge to Wis. Stat. section 941.29(2) (2013-14)

State v. Roundtree, 2021 WI 1 (filed 7 Jan. 2021)

HOLDING: The statute prohibiting felons from possessing firearms was not unconstitutionally applied to the defendant.

SUMMARY: In 2003, Roundtree was convicted of multiple felony counts of failure to pay child support. As a result, he is permanently prohibited from possessing a firearm.

In 2015, law enforcement officers learned that Roundtree had a revolver and charged him with possession of a firearm by a felon, contrary to Wis. Stat. section 941.29(2) (2013-14). [Editors’ Note: The substance of this statute is now codified at Wis. Stat. section 941.29(1m).] Roundtree pleaded guilty to this charge.

Roundtree sought postconviction relief, arguing that Wisconsin’s lifetime firearm ban for all felons is unconstitutional as applied to him because his conviction more than 10 years ago for failure to pay child support does not justify such a ban. He maintained that the conviction was for a nonviolent felony and that no public safety objective is served by preventing him from owning a firearm (see ¶ 2).

The circuit court applied the “guilty plea waiver rule” and held that Roundtree waived his constitutional challenge by entering a guilty plea. In an unpublished opinion, the court of appeals affirmed but on different grounds. Rather than applying the guilty-plea-waiver rule, the court of appeals relied on what it considered to be settled law that the firearm ban applies regardless of the defendant’s particular prior felony (see ¶ 11). In a majority opinion authored by Justice A.W. Bradley, the supreme court affirmed.

The majority first determined that in addressing the defendant’s claim that the statute is unconstitutional as applied to him, it would apply intermediate-scrutiny analysis (¶ 29). This mode of analysis asks “whether a law is substantially related to an important governmental objective” (¶ 28).

Applying intermediate scrutiny and recognizing that Wis. Stat. section 941.29(2) burdens conduct falling within the scope of the Second Amendment (see ¶ 42), the majority concluded that “the felon-in-possession statute is constitutional as applied to Roundtree because the statute in question is substantially related to important governmental objectives, namely public safety and the prevention of gun violence” (¶ 53). Among other things, the court noted recidivism data showing “a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence” (¶ 51).

The majority never addressed whether Roundtree waived his constitutional challenge by pleading guilty. A concurring opinion authored by Justice Dallet and joined in by Justice A.W. Bradley and Justice Karofsky argued that “[i]t should be law in Wisconsin that a guilty plea does not waive a defendant’s right to challenge the statute of conviction’s constitutionality, facially or as applied, provided the challenge can be resolved without contradicting the record” (¶ 61).

In dissent, Justice R.G. Bradley wrote that she would have applied strict scrutiny and would have held Wis. Stat. section 941.29(2) unconstitutional as applied to the defendant (see ¶ 104).

In a separate dissent, Justice Hagedorn wrote that he would have applied at least intermediate scrutiny to the defendant’s constitutional challenge and would have held that the state did not carry its burden of showing that the firearm dispossession law – as applied to Roundtree – substantially advanced the state’s interest in protecting against gun-related violence (see ¶ 171).

Election Law

Absentee Voting – “Indefinitely Confined” Voters – COVID-19

Jefferson v. Dane Cnty., 2020 WI 90 (filed 14 Dec. 2020)

HOLDINGS: The court’s several holdings are described in the numbered paragraphs below.

SUMMARY: Ordinarily, when a Wisconsin resident (hereinafter “elector”) chooses to vote by absentee ballot, the elector must comply with the procedure set forth in Wis. Stat. section 6.86(1). In most circumstances, the requirements to obtain an absentee ballot are twofold: 1) apply with the elector’s municipal clerk and 2) provide a photo proof of identification with the application (see ¶ 17). However, there are two categories of electors who can request an absentee ballot pursuant to the provisions of Wis. Stat. section 6.86(2)(a) without providing photo identification : 1) electors who are indefinitely confined because of age, physical illness, or infirmity; and 2) electors who are disabled for an indefinite period (see ¶ 18).

Before the April 2020 election, the Dane County clerk informed the municipal clerks in his jurisdiction that during the COVID-19 emergency and based on Gov. Evers’ stay-at-home order, the clerk was declaring that all Dane County voters could indicate as needed that they are indefinitely confined because of illness and thereby obtain absentee ballots without providing photo identification. The Milwaukee County clerk followed with a nearly identical announcement.

In this original action, petitioners Mark Jefferson and the Republican Party of Wisconsin sought a declaration that “(1) Respondents lack the authority to issue an interpretation of Wisconsin’s election law allowing all electors in Dane County to obtain an absentee ballot without a photo identification and (2) Governor Evers’ Emergency Order #12 (‘Emergency Order #12’) did not authorize all Wisconsin voters to obtain an absentee ballot without a photo identification” (¶ 1).

In a majority opinion authored by Chief Justice Roggensack, the court concluded as follows:

1) “The plain language of Wis. Stat. § 6.86(2)(a) requires that each elector make an individual assessment to determine whether he or she qualifies as indefinitely confined or disabled for an indefinite period. A county clerk may not ‘declare’ that any elector is indefinitely confined due to a pandemic” (¶ 23).

2) An elector’s determination of indefinite confinement must be based on age, physical illness, or infirmity (see ¶ 39). “[W]e conclude that both the contention that electors qualify as indefinitely confined solely as the result of the COVID19 pandemic and the declared public health emergency and the contention that Wis. Stat. § 6.86(2)(a) could be used for those who ‘have trouble presenting a valid ID’ are erroneous because those reasons do not come within the statutory criteria” (¶ 30).

3) An elector must be indefinitely confined because of the elector’s own age, physical illness, or infirmity, not those of another person (see ¶ 39). The court rejected the argument that when an elector is caring for another person who is indefinitely confined because of age, physical illness, or infirmity, the caretaker can be considered indefinitely confined, for purposes of voting laws, for those reasons as well (see ¶ 33).

Accordingly, the court concluded that the respondents’ interpretation of Wisconsin election laws was erroneous. Additionally, it concluded that Emergency Order #12 did not render all Wisconsin electors “indefinitely confined” and thereby obviate the requirement of a valid photo identification to obtain an absentee ballot (¶ 40).

Justice A.W. Bradley filed an opinion concurring in part and dissenting in part. Justice Dallet, joined by Justice Karofsky, also filed an opinion concurring in part and dissenting in part.

2020 Presidential Election – Action to Invalidate Ballots – Laches

Trump v. Biden, 2020 WI 91 (filed 14 Dec. 2020)

HOLDINGS: 1) The plaintiffs’ challenge to “indefinitely confined” voter ballots was without merit. 2) Laches barred relief on the remaining three categories of ballots challenged by the plaintiffs.

SUMMARY: In the 2020 presidential election, the initial Wisconsin county canvasses showed that Wisconsin voters selected Joseph R. Biden and Kamala D. Harris as the recipients of Wisconsin’s electoral college votes. Petitioners Donald J. Trump, Michael R. Pence, and Donald J. Trump for President Inc. (hereinafter the “campaign”) brought an action under Wis. Stat. section 9.01 seeking to invalidate an amount of Wisconsin ballots that would have changed Wisconsin’s certified election results. Specifically, the campaign sought to invalidate the ballots of more than 220,000 Wisconsin voters in Dane and Milwaukee counties.

The campaign’s objections were targeted at four different categories of ballots. First, the campaign sought to strike all ballots cast by voters who claimed “indefinitely confined” status since March 25, 2020. [Editors’ Note: Absentee voting by those claiming “indefinitely confined” status is described in Jefferson v. Dane County, analyzed in the preceding case digest.]

Second, the campaign argued that a form used for in-person absentee voting is not a “written application” and therefore all in-person absentee ballots should be struck.

Third, the campaign maintained that municipal officials improperly added witness information on absentee-ballot certifications and that these ballots are therefore invalid.

Finally, the campaign asserted that all ballots collected at Democracy in the Park, two city of Madison events in late September and early October, were illegally cast (see ¶ 2). At these events held in city parks, sworn city election inspectors collected absentee ballots and also served as witnesses if an elector brought an unsealed, blank ballot (see ¶ 19).

The circuit court affirmed the determinations of the Dane and Milwaukee county election officials. The campaign appealed and filed a petition to bypass the court of appeals. The supreme court granted that petition and, in a majority opinion authored by Justice Hagedorn, affirmed the decision of the circuit court.

The supreme court concluded as follows: “Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before the election. We conclude the challenge to indefinitely confined voter ballots is without merit, and that laches bars relief on the remaining three categories of challenged ballots” (¶ 32).

Several other opinions also were filed in this case. Justice Dallet and Justice Karofsky filed a concurring opinion. Justice Hagedorn filed a concurring opinion in which Justice A.W. Bradley joined. Chief Justice Roggensack filed a dissenting opinion in which Justice Ziegler and Justice R.G. Bradley joined. Justice Ziegler filed a dissenting opinion in which Chief Justice Roggensack and Justice R.G. Bradley joined. Justice R.G. Bradley filed a dissenting opinion in which Chief Justice Roggensack and Justice Ziegler joined.

Sexually Violent Persons

Expert Testimony – Standard of Review – Sufficient Evidence

State v. Stephenson, 2020 WI 92 (filed 18 Dec. 2020)

HOLDINGS: In a Wis. Stat. chapter 980 commitment proceeding, expert testimony is not necessary to prove a person’s future dangerousness, the standard of review is the “sufficiency-of-the-evidence” test, and adequate evidence supported the factual findings in this case.

SUMMARY: Based on a “host of sexually violent offenses,” Stephenson was committed as a sexually violent person under Wis. Stat. chapter 980. In 2017, the circuit court held a hearing on his petition for discharge. The prime issue was Stephenson’s future dangerousness, which was contested by both sides. Although the circuit court judge refused to discharge him, the judge placed Stephenson on supervised release. In a published decision, the court of appeals affirmed. See 2019 WI App 63.

The Wisconsin Supreme Court affirmed in a majority opinion authored by Justice R.G. Bradley, which addressed three issues. First, the supreme court held that the state is not required to present expert testimony on whether Stephenson was “dangerous to others because his mental disorder makes it more likely than not that he will engage in one or more future acts of sexual violence” (¶ 19). Nowhere does Wis. Stat. chapter 980 require proof by expert testimony of a person’s future dangerousness; the court also declined to create such a rule by case law (see ¶ 20).

The opinion reviewed the case law that requires expert testimony as a matter of law (civil cases) as well as past cases on Wis. Stat. chapter 980 hearings. The court distinguished several cases involving employment discrimination and termination of parental rights (see ¶ 26). In short, the issue falls within the discretion of the factfinder and need not be predicated on expert opinion testimony.

Second, the supreme court expressly declined to change the case law and “depart from the sufficiency-of-the-evidence standard of review courts have been using for over 20 years” (¶ 30). Stephenson failed to demonstrate that the current standard was “unworkable” or “unsound” such that there was a compelling reason to depart from stare decisis principles (¶ 33).

Third, based on the supreme court’s review of the record, the court held that sufficient evidence supported the circuit court’s determinations (see ¶ 36).

Justice A.W. Bradley dissented, joined by Justice Dallet. The majority opinion, they contended, “undermines the delicate balance” that governs Wis. Stat. chapter 980 proceedings, which blend elements of civil and criminal procedure (¶ 43). This balance mandates proof by expert opinion testimony on the issue of future dangerousness. The dissent also supported a revised standard of review, because the current sufficiency standard “saddles the respondent with a nearly insurmountable burden to overcome when reviewing the sufficiency of the evidence” (¶ 44).

Zoning

Zoning Appeals – Certiorari Review – Triggering Event

Moreschi v. Village of Williams Bay, 2020 WI 95 (filed 30 Dec. 2020)

HOLDINGS: 1) For purposes of a certiorari review of a decision by a zoning board, the “triggering event” for the 30-day period is the filing of the written decision, not the board’s oral decision. 2) The board’s written decision and the certiorari record complied with the pertinent statutes and ordinances.

SUMMARY: A married couple tore down an existing home on a lot and planned to build a new one, which required a variance to the setback-zoning ordinance. The town approved the building plans, and the couple then petitioned the zoning board for a variance. At the hearing, the board heard various objections, including one by an adjacent neighbor who complained that the new house would be a “detriment” to her property.

Despite the objections, the board unanimously approved the variance by an oral vote at its May 23 meeting. On June 12, the adjacent neighbor filed a writ of certiorari, alleging that the board had acted improperly because the plan did not meet all five conditions specified in an ordinance. In a later meeting on July 31, the board issued “approved minutes” of the May 23 meeting along with a signed, written document titled “Determination Form” (¶ 8).

The approved minutes and the Determination Form were filed with the circuit court along with other pertinent documents presented at the May 23 meeting. The circuit court affirmed the board’s decision, and in an unpublished decision the court of appeals affirmed.

The supreme court affirmed the court of appeals in a majority opinion authored by Justice Dallet. The neighbor raised three issues (see ¶ 12). The first was what constituted the “triggering event” for purposes of the certiorari review. The neighbor contended that the triggering event was either the board’s oral decision on May 23 or its issuance of “draft” minutes on June 28. Thus, the July 31 documents (the minutes and the Determination Form) were filed beyond the 30-day period during which, by law, the board was required to decide appeals and applications (see ¶ 16).

The court rejected this interpretation of the pertinent statutes. Construing Wis. Stat. section 62.23(7)(e), it held that the triggering event was the filing of the Determination Form on July 31, not the board’s oral decision on May 23 (see
¶ 20). The term “filing” was not defined by statute, so the court resorted to “common dictionary definitions.” Thus, the “`filing of the decision in the office of the Board’ must be the delivery of a document to the Board’s office that states the Board’s decision” (¶ 21). The Determination Form “check[ed] all the requisite boxes for a filing of the decision” (¶ 24).

Because the right to certiorari review was not triggered until the board filed the Determination Form, there was “no merit” to the neighbor’s contention that the inclusion of the form or the written minutes in the certiorari review record denied her due process (¶ 25). It was not a “new decision” (¶ 26). Finally, the record revealed that the board’s decision rested on a correct theory of law under pertinent ordinances (see ¶ 27).

Justice Ziegler, joined by Chief Justice Roggensack, concurred. They contended that a board’s minutes may also meet the statutory requirements for certiorari review (see ¶ 29).

Justice R.G. Bradley dissented on grounds that the board had “unlawful[ly] and improper[ly]” altered its minutes and added findings in the later documents prepared after the May 23 hearing (¶ 42).