Supreme Court Upholds Warrantless Breath Tests and Limits Penalties for Blood Test Refusals

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In Birchfield v. North Dakota, 579 U.S. __ (June 23, 2016), the United States Supreme Court held warrantless breath tests incident to arrest for drunk driving constitutional, but found warrantless blood tests unconstitutional.  The Court also held that, despite the existence of implied consent laws in all States, criminal penalties cannot be imposed against drivers who refuse to submit to a blood test.

This case is the consolidation of three separate state matters, all involving defendants arrested for drunk driving.  Defendant Danny Birchfield refused to submit to a blood test.  Birchfield was charged with misdemeanor refusal and entered a conditional plea.  His argument that criminal refusal penalties are prohibited by the Fourth Amendment was rejected throughout the state courts.  After being arrested, William Bernard was advised of Minnesota’s implied consent law, including the fact that refusal to submit to breath testing is a criminal offense.  The district court dismissed the charges against Bernard on the grounds that warrantless breath testing was not permitted by the Fourth Amendment, though the district court decision was reversed by the court of appeals and the affirmed by the Minnesota Supreme Court.  Defendant Steve Beylund was given the informed consent advisory after his arrest.  He agreed to have his blood tested, but later argued his consent was coerced because the officer’s warning advised him that refusal to consent to the blood test could have criminal repercussions.  This argument was rejected by the North Dakota courts.

Providing the background for its decision, the Court first discussed the need for drunk driving laws, as well as the methodologies available for testing blood alcohol concentration.  It also described the history of implied consent laws nationwide as well as the evolution of laws to combat and deter test refusals.  After laying this groundwork, the Court established a very clear delineation between breath and blood testing for BAC, holding the Fourth Amendment permits warrantless breath testing incident to arrest for drunk driving, but not warrantless blood testing.  Under the well-established search-incident-to-arrest doctrine, arrest alone justifies search of person.  However, there was no definitive guidance on whether blood or breath tests should be allowed incident to arrest.  As a result, the Court considered the respective privacy impacts of such tests.  Breath tests, on the one hand, require only negligible physical intrusion and the arrested party is simply expelling into the mouthpiece air that he or she would ultimately exhale at some point in the future.  Further, breath tests provide only a BAC reading, leaving no DNA or other biological information in the possession of the government.  A blood test, on the other hand, requires piercing of the skin and extraction a part of the arrestee’s body.  The resulting sample can be preserved and law enforcement could later extract information well beyond a BAC level.

The Court then evaluated the States’ need to obtain BAC readings.  The States have a “paramount” interest in protecting public safety by deterring drunk driving.  By imposing severe penalties for refusal, States incentivize cooperation in BAC testing.  Further, imposition of a warrant requirement for every BAC test further overburdens courts, particularly in more rural areas. 

Based on the minimal privacy impact of breath tests as compared to the substantial need for BAC testing, the Court found the Fourth Amendment allows for warrantless breath tests incident to arrest for drunk driving.  In contrast, however, the Court found the States failed to provide a sufficient justification for requiring the more intrusive blood testing without a warrant.  Nonetheless, the Court noted that law enforcement retains the ability to obtain a warrant or rely upon the exigent circumstances exception to obtain blood testing without a warrant when appropriate, as discussed in the Court’s decision in Missouri v. McNeely, 113 S. Ct. 1552, 569 U.S. __ (2013). 

With respect to the application of the implied consent laws and evaluation of refusal penalties, the Court found “[t]here must be a limit to the consequences to which motorists may be deemed to have consented by virtue of decision to drive on public roads.”  Id. at __ (slip op. at 36).    Drivers may only consent to “reasonable” conditions with a “nexus” to the privilege of driving and bearing penalties that are proportional to the violation.  Id. at __ (slip op. at 37).  Applying this standard, adopted from Fifth Amendment jurisprudence, the Court found drivers cannot be found to have consented to blood testing under threat of criminal penalties.

The three underlying cases were disposed of in accordance with the Court’s decision. 

The majority opinion was authored by Justice Alito.  Justice Sotomayor drafted an opinion, concurring in part and dissenting in part, which was joined by Justice Ginsburg.  This opinion dissented from the majority on the grounds that, like blood testing, breath testing should also require a warrant.  A warrant is required only in cases where the arrestee refuses, which occurs a minority of the time, and the opinion posits that adequate time and resources are available to obtain a search warrant in such cases.  Justice Thomas concurred in part and dissented in part, arguing, as he did in McNeely, that warrants should be not required for breath or blood testing incident to arrest for drunk driving.  Justice Thomas promoted the position that the dissipation of alcohol from the blood stream provides the basis for a per se rule that the exigent circumstances exception to the warrant requirement applies in all drunk driving arrests once probable cause is established.

The majority’s decision provides seemingly clear instruction on the appropriate approach to pursuing BAC testing when a driver refuses.  Those municipalities and law enforcement agencies regularly utilizing blood testing will need to ensure that their policies and approach to dealing with refusals comply with the warrant or warrant exception parameters outlined in Birchfield.  Wisconsin law does not criminalize refusal, and therefore, this decision is unlikely to affect refusal penalties in our state.  

Why Murr v. Wisconsin is a Fascinating Takings Case that the U.S. Supreme Court Should Not Decide

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The U.S. Supreme Court is commanding attention this week for its decisions in the final, and sometimes more contentious, cases of this Term. And while we too are following the Court this week, we’re also looking at a case the Court will hear in the fall. Murr v. Wisconsin, No. 15-214 (U.S.), is a fascinating takings case from the northwest corner of our state. Last week, we filed an amicus curiae brief in Murr, arguing on behalf of organizations representing every level of local government in Wisconsin that the case should not be decided on the merits of the constitutional question it presents. Instead, the brief argues, the Court should dispose of the case through one of three means: by dismissing the writ of certiorari as improvidently granted, by remanding the case to the Wisconsin state courts for further proceedings, or by certifying a question of Wisconsin state law to the Wisconsin Supreme Court.

The amicus brief we filed was written on behalf of the Wisconsin Counties Association, the Wisconsin Towns Association, and the League of Wisconsin Municipalities. Taken together, these three voluntary membership organizations represent every level of local government in the state of Wisconsin. In representing the WCA, the WTA, and the League in the Murr case, we worked with co-counsel at von Briesen & Roper, S.C.

This post about the Murr case is broken into three parts, which can be read together or separately. The first part provides an overview of the facts and the proceedings that brought this case to the U.S. Supreme Court. The second part discusses the arguments we presented in our amicus brief. And the third part summarizes the arguments the parties have presented to the Supreme Court in their merits briefs so far (the petitioners have not yet filed their reply brief) and that the federal government has offered. Readers who seek greater detail, either factual or legal, can find our brief, as well as the merits briefs of the parties and briefs by other amici here

Part 1: The Factual and Procedural Background of Murr v. Wisconsin

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The case involves two adjacent riverfront lots along the St. Croix River in northwest Wisconsin. In 1968, the Upper St. Croix River was one of eight rivers granted federal protection under the Wild and Scenic Rivers Act. In 1972, another act of Congress extended protection to the Lower St. Croix River. Legislation and regulation on the state and local levels followed, so that by the mid-1970s, land use along the Lower St. Croix River (where the lots at issue in this case are situated) were subject to several overlapping sets of zoning requirements.

William and Margaret Murr, the parents of the petitioners in the current suit, bought two adjacent riverfront lots along the Lower St. Croix in the early 1960s. Both lots were bisected by a 130-foot-high bluff, with a lower portion along the river and a higher portion atop the bluff. On the eastern lot (called Lot F in the litigation), the Murrs built a cabin close to the water. They then transferred title to both the lot and the cabin to their family plumbing business. The western lot (Lot E), they kept vacant and in their own names.

In 1982, the Murrs transferred title to Lot F and the cabin from the family business back to themselves. This was the first time that the lots were under common ownership after the adoption of the zoning regulations at issue in the case. In 1994, the Murrs gifted Lot F (the one with the cabin) to their six children. In 1995, they did the same with Lot E. Two of the children subsequently relinquished their interests in the lots, so that the lots are now owned by four siblings (the petitioners in the current suit).

In 2004, the petitioners sought to flood-proof the cabin on Lot F. They filed a permit application with St. Croix County. The County responded with a detailed letter explaining that overlapping zoning regulations applied to the lots and restricted how the petitioners could use their land. While there were options for flood-proofing the cabin in its current location, they were somewhat limited and would require obtaining variances from some of the zoning regulations overseen by the County, the Town of Troy, and the Wisconsin Department of Natural Resources. There were also additional options, including building a larger home on top of the bluff, but the petitioners rejected that approach as impractical.

For more than a year, the petitioners engaged in discussions with County zoning staff, Town officials, and WDNR representatives. In March 2006, the petitioners filed a plan to move the cabin back from the water, closer to the bottom of the bluff, and to expand its footprint. They also filed applications to the County Board of Adjustment for the five variances and two special exception permits necessary to achieve their plan. The County zoning staff analyzed the applications in detail. They reviewed the materials the petitioners submitted, visited the property, held further discussions with the petitioners, studied the applicable zoning regulations, and invited feedback from the Town of Troy, the St. Croix County Land and Water Conservation Department, the WDNR, and the Federal Emergency Management Agency (which insures homes, including the petitioners’ cabin, within the floodplain of the Lower St. Croix River). At the end of that process, the County zoning staff made extensive findings and recommended that the Board of Adjustment deny the petitioners’ applications. After seeing the recommendation and before the Board had held a hearing, the petitioners withdrew their applications.

In June 2006, the petitioners tried again. This time they sought six variances and two special use permits. Of particular note was a new request for a variance that would allow them to develop or sell Lot E separate from Lot F. A variance from applicable zoning law was necessary for separate development or sale, because each lot individually was too small—after accounting for portions of the property within the floodplain or the slope preservation zone— for development under the regulations applicable to the Lower St. Croix Riverway Overlay District. Those regulations had not been in existence when the Murrs built the cabin on Lot F, but they began to apply in 1975. And they included a provision, fairly common in Wisconsin and elsewhere, that where two contiguous properties had the same owners and were substandard (that is, too small for development as zoned), the lots were treated as one property for zoning purposes. This provision meant both that the petitioners’ plans were analyzed in the context of the two lots being one property and that the petitioners could not raise funds for their renovation of the cabin on Lot F by selling Lot E to someone else as developable riverfront property.

Once again, the County zoning staff engaged in a thorough review of the petitioners’ applications. The Town of Troy recommended approving the petitioners’ requests for variances and special exceptions to renovate the cabin on Lot F, but sought further research on the request for a variance to develop or sell Lot E separately. The WDNR and the St. Croix County Land and Water Conservation District recommended denying all of the petitioners’ applications. FEMA took no position. The County zoning staff again made extensive findings and, on the basis of those findings, recommended that the Board of Adjustment deny the petitioners’ applications. The Board held a hearing on June 22, 2006. The petitioners participated in the hearing. The Board denied all of the petitioners’ applications on June 28, 2006.

One of the petitioners, Donna Murr, then filed a certiorari suit in the Circuit Court for St. Croix County. Her suit alleged that the Board of Adjustment had acted improperly in denying the petitioners’ applications for variances and special use permits. The Circuit Court affirmed the Board of Adjustment’s denial of the variance to treat Lots E and F separately, but held that the Board of Adjustment should have granted the variances and special exceptions to renovate the cabin on Lot F. Both sides appealed the Circuit Court’s ruling. The Wisconsin Court of Appeals concluded that the Circuit Court had exceeded the scope of proper certiorari review in deciding that the Board of Adjustment should have granted some of the variances and special exceptions. It restored the Board of Adjustment’s decision in full.

The judicial proceedings over the propriety of the Board of Adjustment decision lasted for several years, until the Wisconsin Supreme Court denied Donna Murr’s petition for review of the appellate ruling in May 2011. During those proceedings, the petitioners and the County zoning staff resumed discussions in search of a way that the petitioners could reach their goals of flood-proofing the cabin. Shortly after the certiorari suit ended, the petitioners promised the County zoning staff that they were going to submit a new plan for the cabin. They never followed through with that promise. Instead, the petitioners filed another law suit.

The petitioners’ second suit, which has now reached the U.S. Supreme Court, focused solely on the denial of the variance application to develop or sell Lot E separately from Lot F. The suit alleged that the County regulation on which the denial was based—the regulation treating contiguous, substandard lots under common ownership as one property—and a state regulation that informs the Lower St. Croix Riverway Overlay District deprived them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” Therefore, they asserted, the regulations constitute an uncompensated taking of their private property, in violation of article I, section 13 of the Wisconsin Constitution and the Fifth Amendment to the U.S. Constitution.

In the Circuit Court for St. Croix County, the County and the State moved for summary judgment. They articulated four independent, alternative grounds on which the court could rule in their favor: (1) the petitioners’ claim was time-barred under the applicable Wisconsin statute of limitations; (2) the case was not ripe for adjudication because the petitioners had not exhausted their administrative remedies before starting litigation; (3) the petitioners had no cognizable property right in Lot E separate from Lot F because the ordinance considered them as one property; and (4) the petitioners could not demonstrate a regulatory taking because they had not been deprived of all or substantially all of the beneficial use and value of their property.

The Circuit Court granted summary judgment for the County and the State. The court found that the petitioners had not filed their suit within the six-year limit set by Wis. Stat. § 893.93(1)(a). It reasoned that there were several dates when the six-year clock could have begun ticking, and that the petitioners’ claim was untimely under all of them. According to the Circuit Court, the clock could have started when the ordinance at question was adopted in 1975, since that action put the Murrs (the petitioners’ parents) on notice that their lots would be considered one property for zoning purposes if the lots came under common ownership. Or the clock could have started when the lots came under the petitioners’ common ownership in 1995, since they should then have researched the zoning regulations that applied to their property. (Neither the Circuit Court nor the parties considered the fact that the two lots had come under the Murrs’ common ownership in 1982.) Or the clock could have started in late 2004 when the petitioners began consulting County zoning staff about their options for flood-proofing the cabin, because the County staff sent letters explaining the applicable regulations to the petitioners at that time. Or the clock could have started as late as April 2005, when the petitioners’ attorney sent Donna Murr an email specifically addressing the ordinance provision treating contiguous, substandard lots under common ownership as one property. In any of those scenarios, the Circuit Court explained, the petitioners’ suit, filed in March 2012, was untimely.

Then, despite having already determined that the petitioners’ suit could not go forward, the Circuit Court analyzed the merits of the petitioners’ constitutional claim. It did not acknowledge, much less address, the County and State’s arguments that the petitioners’ claim was unripe or that the petitioners did not have a separate legal property right in Lot E. It went straight to the constitutional issue and held that the petitioners had not suffered a regulatory taking because they retain “several options for the use and enjoyment of their property despite the denial of the variance” to develop or sell Lot E separately.

The petitioners appealed this decision to the Wisconsin Court of Appeals. That court recognized the procedural oddness of the Circuit Court having “reached the merits,” “[d]espite th[e] conclusion” that “the [petitioners’] claim was time barred.” Murr v. State, 2015 WI App 13, ¶10,  359 Wis.2d 675, 859 N.W.2d 628 (Table) (unpublished) (per curiam). Nevertheless, the appellate court proceeded with its own analysis of the merits of the constitutional claim and did “not reach the issue of whether [the petitioners’] claim was timely filed.” Id., ¶12. The appellate court, like the Circuit Court, held that there was no regulatory taking in this case. Id., ¶31. The Wisconsin Supreme Court denied the petition for review. Murr v. State, 2015 WI 47, 366 Wis.2d 59, 862 N.W.2d 899 (Table).

At that point, the petitioners, represented by new counsel, filed a petition for a writ of certiorari in the U.S. Supreme Court. The State of Wisconsin waived its right to oppose the petition. St. Croix County filed a brief opposing the petition. The Court granted certiorari in January 2016. Murr v. Wisconsin, 136 S. Ct. 890 (2016). In April, the petitioners filed their opening merits brief, followed by eleven amicus briefs supporting them. In June, the State of Wisconsin and St. Croix County each filed merits briefs, followed by several amicus briefs, including ours. The petitioners’ reply brief is due in July. 

To read about our amicus brief arguing that the Court should not decide on the merits of this case, click here

Part 2: Why the Supreme Court Should Decide Not to Decide Murr v. Wisconsin

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The amicus brief we filed on behalf of WCA, WTA and the League did not delve into the merits of the takings issue that the parties are disputing. Rather, it sought to complement the parties’ arguments and assist the Court in two ways:

  • First, based on our clients’ expertise as representatives of Wisconsin local governments, we sought to contextualize the zoning ordinance at issue by showing that its approach to contiguous, substandard lots under common ownership is widespread in Wisconsin. (Other amici sought to provide additional context by discussing the historical evolution of similar provisions and their prevalence in other states.)
  • Second, we argued that, because of the procedural history of the case in the Wisconsin state courts, the case should not be the occasion for a new constitutional decision about takings.
  • Finally, we identified three possible procedural avenues by which the Court could dispose of the case without reaching an unnecessary constitutional decision.

The brief advances the interests of the WCA, the WTA, and the League by sharing additional information about how local governments in Wisconsin approach zoning decisions and urging the Supreme Court not to reach an unnecessary constitutional decision that would intrude on the balance that Wisconsin has maintained since statehood between individual property rights and respect for decision-making about land use at the local level.

Providing additional information about Wisconsin land use law

As explained in an earlier part of our blog discussion about the Murr case, the petitioners’ suit challenges a provision in the St. Croix County zoning regulations applicable to the Lower St. Croix Riverway Overlay District. Under that provision, where two contiguous properties have the same owners and are substandard (that is, too small for development as zoned), the lots are treated as one property for zoning purposes. In this case, the provision meant both that the petitioners’ plans were analyzed in the context of the two lots being one property and that the petitioners could not raise funds for their renovation of the cabin on Lot F by selling Lot E to someone else as developable riverfront property.

Our brief emphasized that such an approach is not unique either to St. Croix County or to the Lower St. Croix Riverway. Indeed, as detailed in an appendix to our brief, fifty of Wisconsin’s seventy-two counties—nearly seventy percent—have enacted zoning ordinances that effectively combine commonly-owned, contiguous, substandard lots into a single lot. Specifically, thirty-three counties—more than forty-six percent—implicitly combine commonly owned, contiguous, substandard lots through zoning ordinances. An additional seventeen counties—nearly twenty-four percent—explicitly consider commonly owned, contiguous, substandard lots as a single lot. We provide examples of ordinances that accomplish this goal implicitly and explicitly, as well as a table citing the analogous ordinances in each of the fifty Wisconsin counties that have such ordinances. We also provide a list of the twenty-two counties that do not have a similar ordinance.

Arguing against constitutional adjudication at this juncture

As explained in the earlier discussion of the procedural history, St. Croix County and the State sought summary judgment in their favor in the circuit court. When they did so, they articulated four independent, alternative grounds on which the court could rule in their favor. The circuit court agreed with the first of these arguments, that the suit was not filed within the time limits set forth in Wis. Stat. § 893.93(1)(a), the applicable statute of limitations. Then, despite having already determined that the petitioners’ suit could not go forward, the circuit court proceeded to address the merits of the petitioners’ constitutional claim, which it found lacking.

When the petitioners appealed, the Wisconsin Court of Appeals noted the procedural oddity of the circuit court deciding the merits after having ruled that the case could not proceed because it was untimely. Murr v. State, 2015 WI App. 13, ¶10. Yet the appellate court then proceeded to affirm on the basis of its own constitutional analysis, opting “not [to] reach the issue of whether [the petitioners’] claim was timely filed” but to “assume, without deciding, that it was.” Id., ¶12. The Wisconsin Supreme Court declined to hear the petitioners’ appeal, so the state courts’ analysis ended at that point.

At the petitioners’ request, the U.S. Supreme Court agreed to hear the case to consider the question of how the ‘parcel as whole’ concept described in Penn Central Transportation Company v. City of New York, 438 U.S. 104, 130-31 (1978), applies to a takings analysis involving two commonly-owned, contiguous parcels of property. As our discussion of the merits illustrates, this is a fascinating question that has the potential to significantly alter constitutional jurisprudence on the meaning and application of the takings clause. But our amicus brief argues that there is no reason to answer that question at this point and that the Supreme Court should decline to do so.

Constitutional adjudication is unnecessary—and even inappropriate—at this stage because the case can be resolved without looking to the text of the Constitution. Under the long-established and well-settled rule of constitutional avoidance, courts resolve constitutional questions, only “[i]f they become indispensably necessary to the case.” Ex parte Randolph, 20 F. Cas. 242, 254 (C.C.D. Va. 1833) (Marshall, C.J., riding circuit). As a result, Chief Justice Roberts has explained in a unanimous opinion, courts “will not decide a constitutional question if there is some other ground upon which to dispose of the case.” Bond v. United States, 134 S. Ct. 2077, 2087 (2014) (internal quotation marks omitted; citing Ashwander v. Tenn. Valley Auth., 297 U. S. 288, 347 (1936) (Brandeis, J., concurring)). This rule applies as long as there is a non-constitutional basis for resolving a dispute, even where a lower court has already weighed in on the constitutional question. See, e.g., Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 485 U.S. 660, 669-74 (1988) (remanding for resolution of a threshold state-law question that could obviate the constitutional question decided by the Oregon Supreme Court and appealed to the U.S. Supreme Court).

In Murr, the Wisconsin Court of Appeals expressly chose not to consider whether the petitioners’ case was timely filed. By doing so, the court waded into the waters of constitutional adjudication unnecessarily. The takings question never arises if the petitioners’ suit is barred by the statute of limitations, as the circuit court in fact held. And no court has considered the limitations issue and concluded that the circuit court got it wrong. Given that, there is no necessity for the U.S. Supreme Court to address the constitutional issue. This is a case that can be—and, indeed, has been—adjudicated solely on the grounds of state statutory law. In such a case, the rule of constitutional avoidance militates against constitutional adjudication.

Moreover, no court—not the circuit court, the Wisconsin Court of Appeals, nor the Wisconsin Supreme Court—even considered the argument that the petitioners’ suit is unripe because they failed to exhaust all of their options before the St. Croix County Board of Adjustment prior to filing suit. Yet, “a final and authoritative determination of the type and intensity of development legally permitted on the subject property” is “an essential prerequisite” to a regulatory takings action. MacDonald, Sommer & Frates v. Yolo Cty., 477 U.S. 340, 348 (1986). This is necessarily true because “[a] court cannot determine whether a regulation has gone ‘too far’ unless it knows how far the regulation goes.” Id. “[A] claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue.” Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 186 (1985). The St. Croix County Board of Adjustment’s denial of a variance application submitted once in conjunction with one specific building plan for the petitioners’ property does not constitute “a final decision” for purposes of the ripeness analysis. See, e.g., Yolo Cty., 477 U.S. at 348-52.

The record in Murr that the petitioners’ claim is unripe is incontrovertible. The petitioners’ own conduct and words make this clear. During the eighteen months between the petitioners’ first approach to the County zoning staff about flood-proofing their cabin and the denial of their application for a variance to use Lots E and F separately, County officials repeatedly identified and suggested alternative development plans to the petitioners. The petitioners never pursued those alternatives. Moreover, even several years after the Board of Adjustment decision at issue and shortly before filing this lawsuit, the petitioners indicated to County officials that they would be submitting a new development plan for regulatory consideration. They never did. In deposition testimony, one of the petitioners explained that they “still want to pursue these [other development options outlined by the County] at some point in time. It’s just that we are in the process of the [sic] doing the taking.” But as long as those other develepment options remain on the table and have not been pursued, a takings claim remains unripe for adjudication.

Suggesting several alternate avenues to dispose of this case

Given the procedural peculiarities that militate against constitutional adjudication in Murr at this point, our amicus brief suggests three possible ways the Supreme Court could dispose of the case.

First, the Court could dismiss its writ of certiorari as improvidently granted. Doing so would end the case. It would leave the Wisconsin Court of Appeals decision below as the final word. But, because that decision was an unpublished decision signed not by any individual judge but issued per curiam (by the court as a whole), Wisconsin law prohibits its citation as a binding precedent or even as a persuasive authority. Wis. Stat. § 809.23(3). Thus, dismissal would not perpetuate the Court of Appeals’ constitutional analysis. It would simply end the dispute between the parties to this case and leave the constitutional question identified by the petitioners for resolution in another case.

Second, the Court could vacate the Court of Appeals decision and remand the case to the Wisconsin courts for a decision on whether the petitioners’ case was timely filed and/or whether their claim is ripe for adjudication. When relying on the rule of constitutional avoidance, this Court often vacates and remands for further proceedings consistent—or at least “not inconsistent”—with its opinion. If the Wisconsin Court of Appeals (and, potentially, the Wisconsin Supreme Court after it) were to follow the circuit court’s decision in concluding that petitioners’ suit was time-barred, that would render constitutional adjudication unnecessary. Of course, if the Wisconsin courts ultimately decided that neither the statute of limitations nor the ripeness doctrine resolved the case and again issued a constitutional ruling, the case could come back to the U.S. Supreme Court. See, e.g., Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872 (1990) (deciding the constitutional question avoided in earlier round of litigation after the Oregon Supreme Court held that resolution of threshold state-law question did not obviate the Free Exercise issue).

Third, the Court could certify a question of law to the Wisconsin Supreme Court. Wis. Stat. § 821.01. That certification could focus on when the limitations clock in this case began to run, on the ripeness of the petitioners’ claim under the administrative processes available to the petitioners, or on both. Were the Wisconsin Supreme Court to hold Petitioners’ suit time-barred or unripe, no constitutional adjudication would be needed. On the other hand, if resolution of the certified question(s) did not end the case, this Court could proceed to decide the constitutional issue.

Any of these approaches would have the virtue of respecting prudential doctrines that counsel against deciding constitutional questions unnecessarily. They would also acknowledge and advance the careful balance Wisconsin has struck between individual property rights, on the one hand, and state and local decision-making, on the other.

To read about the positions taken by the parties on the merits of the case, click here

Part 3: The Arguments of the Parties and the Federal Government in Murr v. Wisconsin

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The dispute over the validity of the St. Croix County zoning ordinance at issue in Murr really depends on how you define the petitioners’ property. (For an overview of the facts of this case, click here.) If, like the petitioners, you believe that Lots E and F are separate properties and must be considered as such, then there is a stronger argument that the zoning laws result in a taking. If, like the County and the State, you believe that the St. Croix County ordinance effectively merged the two lots into a single property once they came under common ownership, then there probably is no taking, because the petitioners have several options for uses of the property that would conform to the zoning laws.

A regulation is often more onerous when applied to a smaller parcel than to a larger parcel. For that reason, land owners alleging a taking generally seek to define the affected property in the narrowest possible terms, while regulators generally seek to define the property as broadly as possible. In takings law, the definition of the property subject to the challenged regulation is known as the “denominator question.” Here, the petitioners insist that the Wisconsin Court of Appeals erroneously understood the Constitution to require considering Lots E and F together as the denominator. The County and the State (as well as the federal government) disagree with that contention, though they offer different reasons for their conclusions.

The petitioners’ argument

The petitioners assert that Lots E and F are two separate parcels of land. They rely on Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), to support the argument that their adjacent properties cannot be considered as one. In that case, the owner of Grand Central Terminal claimed to have suffered a regulatory taking when New York City cited its Landmarks Preservation Law in denying the owner’s application to build an office tower above Grand Central. Specifically the company claimed its air rights had been taken without compensation. The U.S. Supreme Court held there was not a taking. The Court explained that, because takings law does not provide for dividing a single parcel into segments, the air rights should not be considered separate from the rest of the property for the takings analysis.

The petitioners read Penn Central as supporting their position. They see it as rejecting the idea that a single property can be divided into separate subdivisions with the aim of showing that one piece had been taken. But they also see it as a narrow ruling that does not allow—much less require—the aggregation of commonly owned parcels for a takings analysis. They note that, although the New York state courts evaluating the takings claim in Penn Central had considered income from other nearby properties also owned by the same developer who owned Grand Central Terminal, the U.S. Supreme Court did not adopt that reasoning. As a result, the petitioners cite Penn Central for the proposition that property neither be segmented nor aggregated in determining the denominator for a takings analysis; rather, the property must be viewed on its own terms. In this case, they see those terms as the metes and bounds that define Lot E as separate a property from Lot F.

The petitioners argue that their parents’ expectations when they purchased Lots E and F further support treating the lots as separate properties for the takings analysis. Their expectations that the two lots were distinct properties and that they had ownership rights—including the rights to possess, exclude, to use, and to convey—over each property were reasonable because the government created and approved the lots as separate parcels.

The State of Wisconsin’s argument

The State argues the petitioners’ property is one unified whole. To support this conclusion, it relies on Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Lucas says that, in identifying the relevant denominator for a takings analysis, a court should consider how state law shaped the land owner’s reasonable expectations. The State argues that applying Lucas respects each state’s authority over the division of land within its borders and that relying on state law leads to greater predictability in the results of takings litigation. The State suggests that courts should avoid looking to case-specific and subjective factors to determine the relevant parcel, because doing so will lead to less-predictable outcomes.

The State therefore frames the question in Murr this way: how have Wisconsin’s laws and regulations shaped the petitioners’ reasonable expectations regarding their land? In response, the State argues that, under Lucas, the petitioners’ claim that Lots E and F are separate parcels is unreasonable in light of Wisconsin law. To support that conclusion, the State points to the St. Croix County zoning ordinance that merges contiguous, substandard properties under common ownership; a similar regulation promulgated by the Wisconsin Department of Natural Resources; and the Wisconsin Supreme Court’s ruling in Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996).

St. Croix County’s argument

Like the State, St. Croix County argues the petitioners’ property is one parcel, not two. The County focuses on the issue of valuation, arguing that the Wisconsin Court of Appeals correctly considered the value of Lots E and F as one combined property with a residence, rather than the hypothetical value of Lots E and F separately with a residence on each lot. The County explains that state law defines property interests and that lot lines are not themselves controlling. It notes that the lot lines for the petitioners’ property were not permanent, but had changed several times since they were initially drawn in 1959. The County contends the Court should consider several factors—of which lot lines should be only one—when determining the relevant parcel, including ownership history, unity of use, and government treatment of the land. The County urges the Court to ignore the owner’s subjective desires for use of the property.

The County defends its zoning ordinance (and the state regulation underlying it) that treats contiguous, substandard properties under common ownership as merged by noting that many other states have similar regulations, which are “longstanding and widespread.” The County explains that isolated lots that are nonconforming to zoning ordinances are usually granted variances. However, if nonconforming lots are adjacent and have common ownership, the lots are combined and denied the variance in order to meet the zoning under the code (or become closer to meeting it). The County contends that such laws are important for striking a balance between achieving zoning goals and maintaining land uses that were allowed when the land owner purchased the property. The County notes the prevalence of such merger laws shape land owner’s reasonable expectations, as well as other factors.

Solicitor General’s amicus brief

The Solicitor General of the United States, who is the nation’s chief legal advocate, filed an amicus brief in support of the State and the County. In that brief, the United States government agrees with both the State and the County’s conclusion that the lots are one parcel, but it reaches that conclusion for different reasons.

The government explains that state lot lines do not establish the relevant parcel. Spatial, functional, and temporal considerations establish that Lots E and F are one property. The lots are contiguous, have common ownership, were acquired closely in time, and share the same topography. The Wisconsin regulation merging substandard lots in the area provides an additional reason to consider the two lots as one. On this basis, the government joins the State and the County in urging the Supreme Court to affirm the Wisconsin Court of Appeals decision.

The Solicitor General has also filed a motion asking the Supreme Court to grant the federal government some time at oral argument to advocate for its position.

The petitioners have an opportunity to respond to the State, the County, and the federal government’s arguments in their reply brief, which is due by July 29. 

Our main, introductory post on Murr v. Wisconsin can be found here

Law clerk Olivia Pietrantoni assisted in researching and writing this post. 

Two Recent Decisions Shed Light on Prohibition of Double Jeopardy for Criminal Defendants

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The Wisconsin Court of Appeals recently decided two cases in which criminal defendants objected to efforts by the State to prosecute them twice for the same crime. Both the U.S. Constitution (in the Fifth Amendment) and the Wisconsin Constitution (in article I, section 8) prohibit double jeopardy. The defendant in the first case prevailed on his double-jeopardy claim. The defendant in the second case, however, did not. While both cases involve the same constitutional guarantee, the Court of Appeals decisions present an illuminating contrast in how the double-jeopardy prohibition works in practice.

In State v. Troka, 2014AP2470-CR (Apr. 21, 2016), the Court of Appeals held that the double-jeopardy prohibition bars the state from re-prosecuting Russell Troka. The state initially prosecuted Troka for attempted first-degree homicide, strangulation or suffocation, substantial battery, and disorderly conduct. See Troka, slip op. ¶ 2. (Troka pleaded no contest to a charge of bail jumping. See id. n.1.)

At trial, after the state presented and rested its case, Troka began presenting his defense. During the second day of trial, Troka called Dr. Richard Tovar as an expert witness to offer an opinion about the victim’s injuries and their possible causes. See id. ¶¶ 3, 6. Troka’s lawyer had failed to provide the prosecution with a summary of the opinions to which Dr. Tovar would be testifying. See id. ¶ 6. On that basis, after Dr. Tovar had answered questions about his background and experience, but before he said anything about the victim’s injuries or his opinions in the case, the prosecution objected that Dr. Tovar’s opinions should be excluded. See id.

Troka concedes that his lawyer failed to provide a summary of Dr. Tovar’s opinions and that, as a result, Dr. Tovar should not have been allowed to testify. See id. ¶ 22. The dispute is about what the court should have done next. Jeopardy attaches once the case has started (as soon as the jury is sworn in, if there’s a jury). See id. ¶ 14. And “[o]nce jeopardy attaches, prosecution of a defendant before a jury other than the original jury is barred unless: (1) there is a ‘manifest necessity’ for a mistrial; or (2) the defendant either requests or consents to a mistrial.” Id. ¶ 15 (quotation marks and citation omitted).

In Troka’s case, there had been two full days of trial, so jeopardy had attached. And “there is no dispute that the defense did not request or consent to a mistrial.” Id. Instead, Troka had suggested that Dr. Tovar’s testimony be discontinued; his lawyer characterized the testimony as not critical to the defense and proposed that the court tell the jury the defense had decided to move on with their case. See id. ¶¶ 8, 23. Additionally, on appeal, Troka argued that two of the remedies provided in the statute to cure the failure to provide a summary of the testimony were: granting a short continuance for the prosecution to prepare for Dr. Tovar’s testimony or, alternatively, allowing the testimony and then instructing the jury that it could draw an adverse inference from the defense’s failure to give advance notice to the state—would also have resolved the situation and allowed trial to continue.

The prosecution disagreed. It told the trial judge that Dr. Tovar was a critical defense witness and that excluding his testimony would provide possible grounds for Troka to get a conviction in this trial reversed on appeal. See id. ¶ 20. As a result, the prosecution argued, the only solution was to declare a mistrial. See id. ¶¶ 20, 27. Traditionally, only the party calling the witness may make the determination whether the witness is critical. And Troka’s lawyer made clear that Dr. Tovar was not a critical witness because the defense had two other medical experts it had properly disclosed and planned to call as witnesses. See id. ¶ 27. Nevertheless, “[t]he circuit court accepted the State’s argument in support of its mistrial motion,” even though “there was no basis for the circuit court to have concluded that the record as a whole established that Tovar’s testimony was critical.” Id. ¶¶ 21, 28.

Noting that “a circuit court should declare a mistrial only ‘with the greatest caution, under urgent circumstances, and for very plain and obvious causes,’” id. ¶ 29 (quoting State v. Mattox, 2006 WI App 110, ¶ 13), the Court of Appeals concluded that “the record does not adequately support the circuit court’s, or the State’s, reliance on the mere possibility of Troka having a successful ineffective assistance of counsel argument on appeal of a conviction, in order to find a manifest necessity for a mistrial,” id. ¶ 32. And, it follows that “because there was no manifest necessity for a mistrial, a second trial would violate Troka’s right to proceed with his original jury.” Id.

Thus, the Court of Appeals concluded the double-jeopardy prohibition applied, and ordered the state’s prosecution of Troka be dismissed. Id. ¶ 33.

While Troka arguably benefited from a series of events that began with his own lawyer’s procedural error in not disclosing Dr. Tovar’s opinions to the prosecution, the defendant in State v. Berry, 2015AP1195-CR (Apr. 26, 2016), did not fare as well in his double-jeopardy argument, even though the issues there began with a mistake by the State.

In 2014, Berry was a passenger in a car stopped by a Milwaukee police officer. See Berry, slip op. ¶ 2. Berry informed the officer that he held a valid Florida permit to carry a concealed handgun and that he was in possession of a gun. See id.

Berry was taken into custody on an outstanding unrelated warrant. See id. Court records indicated that he had previously been convicted of a felony and advised that his status as a felon prohibited him from possessing a firearm. See id. ¶ 3. The State charged him with being a felon in possession, which violates a state statute. See id.

Berry waived his right to a jury trial and proceeded with a bench trial. See id. In a bench trial, jeopardy attaches once the court begins to hear evidence. See id. ¶ 9. At trial, Berry stipulated to the following facts: (1) he had been convicted of a felony in 2004; (2) his conviction had not been reversed; and (3) he was in possession of a firearm when arrested in 2014. See id. ¶ 4. On the basis of these stipulated facts, the court convicted Berry of violating Wis. Stat. § 941.29(2)(a). See id.

After Berry’s conviction but before his sentencing, his lawyer discovered that Berry had not been convicted of a felony in 2004. See id. ¶ 5. Rather, he had pleaded guilty to a misdemeanor. See id. Once the court learned these facts, it vacated the judgment of conviction for being a felon in possession. See id. The court did not enter a judgment of acquittal, but instead dismissed the felon-in-possession charge with prejudice. See id.

The same day that the court vacated Berry’s conviction, the State brought a new charge against Berry. See id. ¶ 6. Whereas he had previously been charged (and convicted) under Wis. Stat. § 941.29(2)(a), which prohibits those who have been convicted of a felony from possessing a firearm, he was now charged under Wis. Stat. § 941.29(2)(b), which prohibits firearm possession of those who have been adjudicated delinquent as a juvenile. See id. The State relied on the same traffic stop from January 2014 as the predicate for the charge. See id. Berry sought to dismiss the new charge on double-jeopardy grounds. See id. The trial court denied his motion, and the Wisconsin Court of Appeals affirmed that decision. See id.

Where the State seeks to impose more than one penalty for the same behavior, courts engage in a two-part analysis: first, they consider whether the two offenses charged are identical in fact or law; then the determine whether the legislature intended to authorize multiple punishments. See id. ¶ 10 (citing State v. Eaglefeathers, 2009 WI App 2).

Under the first step, the Court of Appeals examined the elements the prosecution must prove to prevail under § 941.29(2)(a) and § 941.29(2)(b). See id. ¶ 11. Each charge requires two elements. The first element—that the defendant possessed a firearm—is common to both charges. But each charge has a distinct second element: under § 941.29(2)(a), the defendant must have been previously convicted of a felony; under § 941.29(2)(b), the defendant must have been previously adjudicated delinquent after April 21, 1994, for an act that, if committed by an adult, would be a felony. See id. Because the two charges have different second elements, they are not identical in law. See id.

Under the second step, “‘when multiple charged offenses are different in fact or in law, … the burden of proof [falls] on the defendant to show that the legislature intended to preclude cumulative punishments.’” Id. ¶ 12 (quoting Eaglefeathers, 2009 WI App 2, ¶ 15). Here, the two charges, at least as applied to Berry in this instance, were identical in fact. And the Court of Appeals held that Berry failed to show that the legislature intended not to allow an individual to be punished under both subsections of § 941.29(2). See id. ¶ 13.

As a result, the Court of Appeals concluded, Berry was not subjected to double jeopardy when the State first prosecuted him on one charge and then on the other. See id. ¶ 17.

Taken individually, both Troka and Berry are interesting decisions. Troka benefitted from the double-jeopardy prohibition, even though his mistrial arose from his own lawyer’s failure to make a necessary pretrial disclosure. Berry, by contrast, did not benefit from the double-jeopardy prohibition, even though it was the State that initially charged him under the wrong statutory section based on inaccurate court records. Read in tandem, these cases provide a good overview of double-jeopardy law—whether tried to a jury or a judge, whether involving violent crimes or regulatory violations, whether arising from mistrials or developments after conviction. And they show that application of the double-jeopardy prohibition does not always reach intuitive outcomes.