By Joe Forward, Legal Writer, State Bar of Wisconsin

July 6, 2010 – A circuit court judge may reject a plea agreement reached between the defendant and prosecution as long as it is in the public interest to do so, the Wisconsin Supreme Court recently held.

In State v. Conger, 2010 WI 56 (June 30, 2010), the Wisconsin Supreme Court held a circuit court has discretion to reject any plea agreement that does not serve the public interest. The court — in an opinion by Justice N. Patrick Crooks — also held that rejecting a plea agreement does not in and of itself require judicial recusal from further participation in the case.

Joshua Conger was charged with intent to deliver more than 200 grams of marijuana within 1000 feet of a park, a Class H felony, and possession of drug paraphernalia.

In 2007, the parties reach a plea agreement reducing the felony to three misdemeanors for possession of marijuana. Fond Du Lac County Circuit Court Judge Peter Grimm ultimately rejected the plea agreement. Conger's motion for an order of recusal was rejected. The state joined Conger's appeal petition, and the appeal was certified to the supreme court.

Deference to the prosecutor?

In State v. Kenyon, 85 Wis. 2d 36, 270 N.W.2d 160 (1978), the supreme court held that a circuit court judge can reject a plea agreement that does not serve the public interest. Conger and the state argued that a plea agreement endorsed by a prosecutor enjoys a "strong presumption" that such an agreement serves the public interest.

In this case, they argue, deferring to the prosecutor's judgment is warranted "because the recommendation was made after consideration of all the relevant facts, and constituted a reasonable exercise of a prosecutor's inherent power…" Counsel for Judge Grimm argued that a trial court has the discretion to make that decision.

The supreme court held that a prosecutor's inherent power to amend charges "stops at the point of arraignment" and circuit court's may use discretion to reject a plea agreement that does not comport with the public interest.

The court wrote: "deciding whether to reject a plea agreement is squarely within the court's authority; to hold otherwise would permit encroachment by the executive branch into the realm that has historically, in Wisconsin, been that of the judicial branch."

What factors are appropriate in determining whether to reject?

Kenyon, the court explained, "sketched the broad outlines" in determining what factors to consider when deciding whether a plea agreement is in the public interest. But determining the public interest "is a consideration that is not capable of precise outlines," the court wrote.

Those factors may include, but are not limited to, public perception, the victim's interest, and the character and background of the defendant, the court noted.

Among other considerations, the circuit court had concerns about the quantity of marijuana found in Conger's home, the street value, and the law enforcement agency's opinion that the charges should not be reduced. Thus, the circuit court properly applied the law as set forth in the Kenyon case, the supreme court concluded.

Recusal after rejecting plea agreement?

The supreme court also held that "rejecting a plea agreement on the grounds that it is not in the public interest does not fall under any of the rules that automatically require a court's recusal from further participation in a case."

Rejecting a plea agreement does not automatically implicate the judge as having a "personal interest" requiring recusal, the court explained.

However, the court remanded the case to determine whether the appeal has now made Judge Grimm an interested party requiring recusal.

Notes

Justice David Prosser dissented, stating that this case is the latest example of the court "expanding the power of the judiciary at the expense of other branches of government." Chief Justice Shirley Abrahamson filed a separate opinion, concurring with the majority.

Attorneys

Anthony O'Malley of Zacherl, O'Malley & Endejan S.C., Fond du Lac, represented Joshua Conger. Brady Williamson, Katherine Stradler, and Patricia Wheeler of Godfrey & Kahn S.C., Madison, represented Judge Grimm.  James Freimuth, assistant attorney general, argued on behalf of the state. The University of Wisconsin Law School filed an amicus brief.