RECEIVED

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.

SUPPLEMENTAL REPLY BRIEF OF DEFENDANT-APPELLANT

TO AMICI CURIAE

On Certification from Wisconsin Court of Appeals, District IV

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

Counsel for Douglas Meier Williams

H URLEY , B URISH & S TANTON , S . C .

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
SUPPLEMENTAL REPLY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.

T HE P EOPLE A MENDED THE C ONSTITUTION, N OT THE

L EGISLATURE, AND D ID S O IN P LAIN T ERMS; L EGISLATIVE
INTENT AND HISTORY C HANGE NOTHING. . . . . . . . . . . . . . . 2

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.

E VEN IF S ECTION 757.69(8) S AVES A LL E LSE T HEY D O, THE

A BSENCE OF D E N OVO R EVIEW OF S EARCH W ARRANTS
M EANS C OURT C OMMISSIONERS M AY N OT ISSUE T HEM. . . 7

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE UNDER RULE 809.19(12). . . . . . . . . . . . . . . . . . . . . . . 13

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H URLEY , B URISH & S TANTON , S . C .

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-

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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

C ONSTITUTION, S TATUTE & R ULES

W IS. C ONST. Art. VII, 2.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5
W IS. C ONST. Art. VII, 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
W IS. C ONST. Art. XII. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4
W IS. C ONST. Art. XII, 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
-iii-

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W IS. S TAT. 173.23(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

W IS. S TAT. 757.69(8). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 7-9
W IS. S TAT. 809.19(4)(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
W IS. S TAT. 809.19(8)(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
W IS. S TAT. 809.19(8)(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
W IS. S TAT. 809.19(8)(c)2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
W IS. S TAT. 809.19(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
W IS. S TAT. 969.08(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
W IS. S TAT. 969.08(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

O THER A UTHORITIES
F EDERALIST P APERS, Nos. 9, 10, 48 (1787, 1788). . . . . . . . . . . . . . . . . . . . 2

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On November 11, 2011, this Court granted petitioner leave to reply to

the brief of amici curiae Wisconsin Association of Judicial Court
Commissioners and Wisconsin Family Court Commissioners
Association, Inc. The amici understandably seek to defend their turf.
Petitioner seeks instead to defend the state constitution. This is his
supplemental reply.

SUPPLEMENTAL REPLY

Amicis brief crystallizes three truths. First, the peoplenot the

legislatureamended this states constitution and they did so in words
that have plain meaning. What legislators and legislative staff may
have intended in 1977 and before, or for that matter the historical
thoughts and actions of prominent judges and lawyers long before that,
really matter not. The people spoke, and spoke clearly.
Second, separating the judicial functions that court commissioners now
perform (unconstitutionally) from the non-judicial functions that they
perform (constitutionally) is not so hard. Issuing search warrants is
judicial; conciliation conferences in small claims cases, for example, are
not. A principled line is possible, as Williams explains momentarily.
Third, even if W IS. S TAT. 757.69(8), providing de novo review of court
commissioners actions, saves all else that they dobrings all of it over
to the constitutional side of the linethat statute cannot save the
issuance of warrants. Why? Because nearly 30 years of emphatic case
law make de novo review of a search warrant unavailable under
Wisconsin law. See, e.g., State v. Multaler, 2002 WI 35, 7, 252 Wis. 2d
54, 62, 643 N.W.2d 437, 441. Section 757.69(8) simply does not operate
on warrants, or come even close, so there is no way to save a court
commissioners role here.

H URLEY , B URISH & S TANTON , S . C .

Douglas Williams explores each of these three truths now in more

detail.
I.

T HE P EOPLE A MENDED THE C ONSTITUTION, N OT THE

L EGISLATURE, AND D ID S O IN P LAIN T ERMS; L EGISLATIVE I NTENT
AND HISTORY C HANGE NOTHING .

The Wisconsin Constitution contemplates its own amendment.

W IS. C ONST. Art. XII. It clearly establishes a democratic system of
amendment, not a republican one.1 That is, the people (or, more
precisely, the electors) amend their constitution directly as a pure
democracy; they do not act indirectly, as they do with statutes, through
elected legislators or delegates as a republic, meaning a representative
democracy. W IS. C ONST. Art. XII, 1.
The people of this state directly amended their constitution in
1977 in words that are very plain. That constitution once invited the
legislature to give powers of a judge in chambers to court
commissioners. W IS. C ONST. Art. VII, 23 (1975, or earlier versions).
By the 1977 amendment, the people repealed that section, removed
reference to court commissioners, and vested all relevant judicial
power in circuit courts. W IS. C ONST. Art. VII, 2. Where the meaning
of the words in an enactment is clear, courts generally do not, indeed
ought not, dig deeper for legislative history or intentions. See, e.g.,
State ex rel. Kalal v. Dane County Circuit Court, 2004 WI 58, 43-48,
271 Wis. 2d 633, 661-65, 681 N.W.2d 110, 123-25 (concerning statutory

Venerable old Greek meanings, not current partisan American ones.

Hence the small d and small r. See FEDERALIST PA PERS , Nos. 9, 10, 48 (1787,
1788). As the foundational document, the state constitution provides the
opportunity for direct, pure democracy. Once in place, anew or as amended, by its
very nature that constitution creates a constitutional and representative
democracywhich is to say precisely that it creates a republic.

H URLEY , B URISH & S TANTON , S . C .

interpretation; one of many cases, but a lucid, thorough synthesis). In

other words, where an enactment has plain meaning, that enactment
itself embodies the intent of those who adopted it. The 1977
amendment is plain in that way.
One member of this Court, joined by another current member
and one former member, has argued cogently that the method of
interpreting a constitutional amendment is not identical to the method
of interpreting a statute. See Dairyland Greyhound Park, Inc. v. Doyle,
2006 WI 107, 114-18, 295 Wis. 2d 1, 79-82, 719 N.W.2d 408, 447-48
(Prosser, J., concurring in part, dissenting in part) (joined by Wilcox &
Roggensack, JJ.); see also State v. Cole, 2003 WI 112, 10, 264 Wis. 2d
520, 530, 665 N.W.2d 328, 333. Even under that view, plain meaning is
the first consideration and the remaining two are better calibrated to
original constitutional provisions of 1848 than to more modern
amendments. See id. at 117, 295 Wis. 2d at 81-82, 719 N.W.2d at 448;
Schilling v. State Crime Victims Rights Bd., 2005 WI 17, 13-26, 278
Wis. 2d 216, 224-35, 692 N.W.2d 623, 627-32.
This means that all of the interesting historical information and
fragmentary clues to the views of some legislators, and some legislative
staffers, that the amici so capably recount, Brief of Amicus Curiae at 2-5,
are beside the point here. Legislators did not amend the constitution;
they performed only the prerequisite acts. The people amended the
constitution. They spoke clearly. They amended their constitution to
exclude court commissioners from judicial power. That made law of
the fundamental, constitutional sort.
This Court need look no further than the language of the
amendment itself to find that law. Making of the background
intentions of legislators, staff, and prominent judges and lawyers what
they will is the work of historianslegitimate and important work at
that. But making something of that is not the work of judges, for this
Court then would be making law. That was the prerogative of the
3

H URLEY , B URISH & S TANTON , S . C .

people of Wisconsin here, acting as the direct democracy that Art. XII
contemplates, and they made law with clear meaning.

II.

A P RINCIPLED L INE C AN S EPARATE JUDICIAL FROM N ON-JUDICIAL

T ASKS OF C OURT C OMMISSIONERS, AND S EARCH W ARRANTS ARE
ON THE J UDICIAL S IDE OF THAT L INE.

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

H URLEY , B URISH & S TANTON , S . C .

meaning,2 is that any order or determination that would thwart

restoration of all parties to their exact positions ex ante reflects use of a
power, and is beyond the ken of a non-judge in the judicial branch.
Such orders or determinations always includeor shouldeither
finding facts, drawing legal conclusions, or both.
Practically, this means that self-executing temporary or
provisional orders, or actions that necessarily alter property or liberty
or rights or duties immediately, are not constitutionally delegable to
clerks, para-judges, or anyone other than a judge. This states
constitution vests judicial power exclusively in circuit courts, as
relevant here. W IS. C ONST. Art. VII, 2. In the judicial branch, when
anyones incoming allocation of property or liberty is altered (in other
words, rights or duties are changed), power necessarily has been
exercised. Only power alters those allocations. In the judicial branch,
that power ipso facto is judicial.
On the chart of court commissioners duties that amici offer in
their appendix, this Court then could apply the line. Amicis Appendix
at 102-112. Advising criminal defendants or mentally ill detainees of
legal rights would remain proper roles for court commissioners; these
involve reciting rights, not determining or altering them. Directing the
indigent, in any type of eligible case, to the State Public Defender
would be proper. Conciliation conferences would be proper; they
involve neither fact-finding nor conclusions of law, and they determine
no rights or obligations. Prehearing conferences in juvenile matters
would be proper for the same reason. Performing marriages would be
fine (whatever loss of liberty or property a marriage entails already is
a matter of free choice and covenant between those adults before the
2

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.

H URLEY , B URISH & S TANTON , S . C .

state recognizes the union). Administering oaths and affidavits or

conducting depositions, fine. Other ministerial duties, also fine.
Additionally, there may be some close calls: initial appearances in
county ordinance or non-criminal traffic cases, for example, where bail
is no issue and adjudication of nothing occurs. One at least could argue
that these roles would be ministerial, involving no fact-finding, no legal
conclusions, and no reallocation of existing shares of liberty and
property, rights and duties.
But roles in which a court commissioner determines operative
facts or draws legal conclusions that alter a partys property or liberty,
even pending later review, are judicial. In those cases, a party cannot
be restored fully to his position ex ante. That is, if the bail decision is
erroneous, at least 72 hours of a persons liberty are lost forever. See
W IS. S TAT. 969.08(1), (3). Liberty lost never is regained; no divinity
will tack on three days in fresh air, or three sunrises, at the end of that
mans life. If the temporary placement order in a divorce action is
wrong, or a restraining order wrongly granted, a judge who later sets
it right on de novo review cannot return to the aggrieved parent the time
lost with her child. Conversely, a restraining order mistakenly denied
may result in the petitioner becoming a victim of a serious crime before
a judge can correct the error, and the very risk of that alters the
petitioners liberty. A mistaken order on disposition of an animal
under W IS. S TAT. 173.23(3) may mean that someones pet is
euthanized before a judge can right the wrong. In a small claims
action, a mistaken judgment may be partially executed by garnishment,
or executed entirely, before a judge can set it aside; restoring the parties
to their position ex ante may be impossible, because they will expend
further time, effort, and expense to undo the wrong (and if wages were
garnished wrongly, the wage-earner may have defaulted on utility bills
or gone without groceries meanwhile). An improper suspension of
driving privileges may cost someone a job, which produces property,
and certainly will cost him an irretrievable measure of his liberty,
before a judge sets it right.
6

H URLEY , B URISH & S TANTON , S . C .

Search warrants are an especially easy call. The warrant issues

and the Fourth Amendment interests suffer intrusion before judge or
affected person knows the warrant exists, or can act to stop it. The
intrusion, if wrongful, cannot be undone. A person wrongly searched
never is restored to his position ex ante; at most he is compensated for
his loss of property, liberty, or peace of mind. The legal right itselfto
be free of unreasonable search or seizure by the sovereigns agentsis
denied irretrievably.
So the line, if this Court draws one, should hew to this criterion:
in the judicial branch, no fact-finding, legal conclusions, or
determination of rights or duties that would preclude full restoration
of all parties to their positions ex ante may be the work of an official less
than a judge. The issue is not whether an order is final, in the various
legalistic senses of that word. The issue is whether an action within the
judicial branch irreversibly alters the existing allocations of liberty and
property, rights and duties, of the parties. If so, it rightly is the work
of judges. It is an exercise of power, which in the judicial branch vests
only in courts.

III.

E VEN IF S ECTION 757.69(8) S AVES A LL E LSE T HEY D O, THE

A BSENCE OF D E N OVO R EVIEW OF S EARCH W ARRANTS M EANS
C OURT C OMMISSIONERS M AY N OT I SSUE T HEM .

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

H URLEY , B URISH & S TANTON , S . C .

commissioner is subject to a circuit judges de novo review. See Brief of

Amicus Curiae at 7-9.3
Even if it were true, theoretically, that at some point a judge
could review de novo a court commissioners decision to issue a search
warrant, that would be cold comfort to the homeowner whose door the
police break open at midnight on a court commissioners authority.
The very nature of a search warrant precludes pre-deprivation review;
it issues ex parte and is unknown to the subject of the search until police
execution of the warrant already is under way. There necessarily is no
opportunity for review until after the deprivation of the Fourth
Amendment right already is complete. So for that reason alone,
757.69(8) cannot save a role for court commissioners in issuing a
search warrant, regardless what else it might preserve to the office of
court commissioner.
But the truth is worse. In fact, no judge ever gives de novo review
to a court commissioners decision to issue a search warrant, even postdeprivation. Not even close. For almost 30 years, Wisconsin courts
have insisted that there is no such review of a decision to issue a search
warrant. To the contrary, review of the decision to issue a search
warrant gets great deference. Multaler, 2002 WI 35, 7, 252 Wis. 2d
at 62, 643 N.W.2d at 441; State v. Kerr, 181 Wis. 2d 372, 379, 511 N.W.2d
586, 589 (1994) (specifically addressing a search warrant that a court
commissioner issued); State v. Wheaton, 114 Wis. 2d 346, 352, 338
N.W.2d 322, 325 (Ct. App. 1983), overruled on other grounds, State v.

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.

H URLEY , B URISH & S TANTON , S . C .

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).

H URLEY , B URISH & S TANTON , S . C .

before intrusion on the Fourth Amendment. Even after, review is not

de novo as the court commissioners insist. It is at the opposite pole.

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.

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H URLEY , B URISH & S TANTON , S . C .

Dated at Madison, Wisconsin, November 18, 2011.

Respectfully submitted,
D OUGLAS M. W ILLIAMS, Defendant-Appellant

__
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

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H URLEY , B URISH & S TANTON , S . C .

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

H URLEY , B URISH & S TANTON , S . C .

CERTIFICATE OF COMPLIANCE WITH RULE 809.19(12)

I hereby certify that:

I have submitted an electronic copy of this supplemental reply brief,
excluding the appendix, if any, which complies with the requirements
of W IS. S TAT. 809.19(12). I further certify that:
This electronic brief is identical in content and format to the printed
form of the brief filed as of this date.
A copy of this certificate has been served with the paper copies of this
brief filed with the court and served on the opposing party.

____________________________
Stephen P. Hurley

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