Professional Documents
Culture Documents
11-18-2011
CLERK OF SUPREME COURT
IN THE SUPREME COURT OF WISCONSIN
OF WISCONSIN
_______
No. 2010 AP 1551-CR
S TATE OF W ISCONSIN,
PlaintiffRespondent,
v.
D OUGLAS M EIER W ILLIAMS,
DefendantAppellant.
Stephen P. Hurley
Wisconsin Bar No. 1015654
H URLEY, B URISH & S TANTON, S.C.
33 East Main Street, Suite 400
Madison, Wisconsin 53703
[608] 257-0945
Jonas B. Bednarek
Wisconsin Bar No. 1032034
B EDNAREK L AW O FFICE, LLC
10 East Doty Street, Suite 617
Madison, Wisconsin 53703
[608] 257-1680
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
SUPPLEMENTAL REPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.
II.
A P RINCIPLED L INE C AN S EPARATE J UDICIAL FROM N ONJUDICIAL T ASKS OF C OURT C OMMISSIONERS, AND S EARCH
W ARRANTS ARE ON THE JUDICIAL S IDE OF THAT L INE. .. . . 4
III.
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE UNDER RULE 809.19(12). . . . . . . . . . . . . . . . . . . . . . . 13
-i-
TABLE OF AUTHORITIES
C ASES
Aguilar v. Texas,
378 U.S. 108 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Dairyland Greyhound Park, Inc. v. Doyle,
2006 WI 107, 295 Wis. 2d 1, 719 N.W.2d 408. . . . . . . . . . . . . . . . 3
Illinois v. Gates,
462 U.S. 213 (1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Schilling v. State Crime Victims Rights Bd.,
2005 WI 17, 278 Wis. 2d 216, 692 N.W.2d 623. . . . . . . . . . . . . . . 3
Scott v. State,
73 Wis. 2d 504, 243 N.W.2d 215 (1976). . . . . . . . . . . . . . . . . . . . . 9
Spinelli v. United States,
393 U.S. 410 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
State ex rel. Kalal v. Dane County Circuit Court,
2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110. . . . . . . . . . . . . . . 2
-ii-
State v. Cole,
2003 WI 112, 264 Wis. 2d 520, 665 N.W.2d 328. . . . . . . . . . . . . . 3
State v. Gillespie,
2005 WI App 35, 278 Wis. 2d 630, 693 N.W.2d 320. . . . . . . . . . . 8
State v. Kerr,
181 Wis. 2d 372, 511 N.W.2d 586 (1994) .. . . . . . . . . . . . . . . . . 8, 9
State v. Multaler,
2002 WI 35, 252 Wis. 2d 54, 62, 643 N.W.2d 437. . . . . . . . . . . 1, 8
State v. Pham,
137 Wis. 2d 31, 403 N.W.2d 35 (1987). . . . . . . . . . . . . . . . . . . . . . 8
State v. Wheaton,
114 Wis. 2d 346, 338 N.W.2d 322 (Ct. App. 1983). . . . . . . . . . . . 8
O THER A UTHORITIES
F EDERALIST P APERS, Nos. 9, 10, 48 (1787, 1788). . . . . . . . . . . . . . . . . . . . 2
-iv-
SUPPLEMENTAL REPLY
people of Wisconsin here, acting as the direct democracy that Art. XII
contemplates, and they made law with clear meaning.
II.
Let this Court now entertain the idea that there are
constitutionally permissible roles for parajudicial personnel, as the
inelegant term recurring occasionally in amicis brief and appendix puts
it, and that court commissioners are such para-judges. The Court then
might ask whether there is some coherent line to draw between the
judicial, on one side, and the parajudicial, on the other. Williams thinks
that quite possible. It lies close to, but not exactly congruent with, the
states line between final decisions establishing legal rights or
obligations and other official acts.
All agree that the judicial branch, not another, is under
consideration here. That branch is a realm in which judges necessarily
have responsibility not just for outcomes at the end, but for peoples
fortunes (pecuniary and otherwise) during a process that is due.
Outcomes occur during that process by substantive decisions and acts:
motions are won or lost; interim orders are entered or lifted; in some
types of cases, bail or a supersedeas bond is set or modified. Finality
is not quite the issue, then. Any action that alters allocations of liberty
or property, which is to say makes a change in any rights or duties, is
an outcome and necessarily is judicial, if the alteration could not be
reversed entirely on prompt review. The key distinction between this
principle and the legal notion of finality, which has different shades of
A decision may be final in the sense of being ready for initial appellate
review. It may be final in the sense that ultimate appellate review has concluded.
Or it may be final in the sense that it has operated and expired by its own terms
(like a warrant, once executed). Possibly there are other variants as well.
III.
The amici point to W IS. S TAT. 757.69(8) as proof that their role
is not truly judicial. As they put it, court commissioners have no
power to make final, binding determinations of any sort. Brief of
Amicus Curiae at 8. Rather, commissioners function as assistants to
judges and expediters of the judicial process. Id. For amici, the
clincher is 757.69(8), which provides that any decision of a court
The court of appeals already has put one significant act of court
commissioners beyond reach of 757.69(8), so before the question of warrants even
arises, that statute does not mean in practice what it and amici say it means. A
criminal defendant has no right to a de novo preliminary hearing after a court
commissioners bindover, because a more specific statute trumps this general one.
State v. Gillespie, 2005 WI App 35, 7-10, 278 Wis. 2d 630, 634-37, 693 N.W.2d
320, 322-23.
Pham, 137 Wis. 2d 31, 403 N.W.2d 35 (1987). And that review cannot
exceed the scope of the record available to the court commissioner at
the time she issued the warrant. Scott v. State, 73 Wis. 2d 504, 508, 243
N.W.2d 215, 217 (1976); Kerr, 181 Wis. 2d at 378, 511 N.W.2d at 588.4
That limitation to an earlier record in itself is in some tension with the
concept of de novo review. It is in direct conflict with 757.69(8), which
promises a hearing de novo.
If the Court looks to federal law, from which it borrowed this
great deference standard of review, it will find that the bar on de novo
review of issuance of a search warrant goes back more than 40 years.
It dates at least to Aguilar, 378 U.S. at 111; and to Spinelli v. United
States, 393 U.S. 410, 419 (1969) (a magistrates determination of
probable cause for a search warrant should be paid great deference by
reviewing courts) (Gates also overruled Spinelli, but again on other
grounds).
Yes, all of these cases concern appellate review of search warrant
issuance, not circuit court review. But Gates spoke as clearly to a trial
courts review of an issuing magistrates decision as to an appellate
courts. Gates, 462 U.S. at 236 (we have repeatedly said that after-thefact scrutiny by courts of the sufficiency of an affidavit should not take
the form of de novo review; writing specifically of search warrants).
And neither this Court nor the court of appeals ever has suggested that
a circuit judge has, for some reason, a more robust power to review a
search warrants issuance by another official than does this Court.
If the Court assumes, then, that 757.69(8) would save much of
what court commissioners do today from constitutional challenge, still
it must strike issuance of warrants from the list of duties that judges
may delegate to commissioners. Review is altogether unavailable
4
This rule comes from Aguilar v. Texas, 378 U.S. 108, 109 n.1 (1964),
overruled on other grounds, Illinois v. Gates, 462 U.S. 213 (1983).
CONCLUSION
Douglas Williams asks that this Court REVERSE the judgment of the
circuit court denying his motion to suppress and REMAND the case
for proceedings consistent with the Courts opinion.
10
__
Stephen P. Hurley
Wisconsin Bar No. 1015654
Dean A. Strang
Wisconsin Bar No. 1009868
Marcus J. Berghahn
Wisconsin Bar No. 1026953
H URLEY, B URISH & S TANTON, S.C.
33 East Main Street, Suite 400
Madison, Wisconsin 53703
[608] 257-0945
Jonas B. Bednarek
Wisconsin Bar No. 1032034
B EDNAREK L AW O FFICE, LLC
10 East Doty Street, Suite 617
Madison, Wisconsin 53703
[608] 257-1680
11
CERTIFICATION
I certify that this supplemental reply brief conforms with the rules
contained in W IS. S TAT. 809.19(8)(b) and (c), for a brief produced
using proportional serif font. The length of the portions of this reply
brief described in W IS. S TAT . 809.19(4)(b) is 2,889 words. See W IS.
S TAT. 809.19(8)(c)2.
Stephen P. Hurley
12
____________________________
Stephen P. Hurley
13