CoA upholds probation condition requiring judge’s permission to live with certain persons

State v. Junior L. Williams-Holmes, 2022 WI App 38, petition for review granted, 11/16/22, reversed and remanded, 2023 WI 49; case activity (including briefs)

Williams-Holmes was given a bifurcated prison sentence and consecutive probation after being convicted of battery to and false imprisonment of his girlfriend. Because of Williams-Holmes’s history of domestic violence, the circuit court ordered, as a condition of probation and extended supervision, that Williams-Holmes not reside with any member of the opposite sex or any child not related to him by blood “without permission of the Court.” (¶1). Williams-Holmes argues the circuit court’s condition is improper because it results in the court “administering” probation, which is a task reserved for the Department of Corrections. The court of appeals disagrees, holding that the circuit court may impose this condition—though it must implement it using the statutory process for modifying conditions of supervision.

While §§ 301.03(3) and 973.10(1) grant DOC with the authority to “administer” probation, parole and extended supervision matters and “control” probationers, §§  973.01(5) and 973.09(1)(a) authorize a circuit court to impose reasonable and appropriate supervision conditions, and §§ 302.113(7m)(a) and 973.09(3)(a) authorize circuit courts to “modify” conditions of extended supervision and probation, respectively.

Ordering the defendant not to live with certain people “without the permission of the court” sure looks like the court is claiming the power to make the kind of specific decisions regulating a defendant’s living arrangements that would normally be left to DOC supervision agents. And that appearance is reinforced by the circuit judge’s statement that the condition originated in his distrust of DOC. As the judge explained when denying Williams-Holmes postconviction motion challenging the condition: “it was the practices of [DOC] which led me initially to impose the requirement for my approval of DOC’s practice of residential placements of offenders with unrelated children.” (¶5 (emphasis modified/supplied)).

The judge also helpfully explained that its approval process of living arrangements in previous cases was an informal one involving e-mails between the court and DOC agent, a process the circuit court thought was fine based on its perceived role as “regulat[or]” of the “behavior” of a “probationer” and its belief that “supervision” of its “program of probation” is the role of the court. (¶¶5-6, 14). The court of appeals holds this informal approach to giving (or denying) permission usurps DOC’s power because it amounts to the court effectively—and unlawfully—managing, directing, and superintending the supervision condition on a situation-by-situation basis. (¶17).

Why, then, does the court of appeals affirm the condition in this case? By interpreting it as a broad “no contact” order that outright bars Williams-Holmes from residing with any woman or child who’s not a blood relative. It supports this interpretation with some of the circuit court’s remarks at sentencing (e.g., “I’ve already put in, in effect, a no contact. He’ll have to come in and get approval”; and “even though I’ve restricted your living with children, you can come back to court and get permission if you show that you’re going to be a responsible individual”). (¶13). Read this way, the court of appeals says, the condition is a reasonable and appropriate prohibition on specific living arrangements that may be modified with “the permission of the court”—though, crucially, not by using the informal process the circuit court envisioned; instead, “permission” must be sought and granted via the formal modification process set out in § 302.115(7m)(a) or 973.09(3)(a). (¶¶13, 18).

Thus, the court of appeals rejects William-Holmes’ request that the language of the supervision conditions be changed from “without the permission of the court” to “without the permission of [DOC].” That change would be “inconsistent with the probationary program envisioned and ordered by the [circuit] court,” given that it’s clear the judge “lacked confidence in the department’s ability and/or willingness to properly administer the no-residing-with-women-or-unrelated-children conditions imposed in this case.” (¶19).

It’s wrong to say the circuit court lacked confidence in DOC’s ability or willingness to properly administer a “condition” that, according to the court of appeals, amounts to  a clear and simple ban on living with women or unrelated children. That’s easy to administer. Instead, the court actually lacked confidence in DOC’s ability to make the right decision about whether a specific defendant should live with a specific woman or child. Because the circuit court didn’t like DOC’s past “practices” or decisions regarding defendants living with unrelated women or children, it sought to implement its own practices and decisions in order to “regulate” the behavior of the person on supervision when it comes to specific living arrangements—something it believed it can do based on its (wrong) view of its role as at least an equal, if not greater, partner in the business of regulating the behavior of persons on supervision. (¶¶5-6, 14, 17).

So despite the court of appeals’ reading the “condition” as a no-contact order, the circuit court’s demand that living arrangements be subject to its “permission” amounts to administration of probation disguised as a broad prohibition, and affirming the “condition” condones the circuit court’s incorrect belief it has an exalted role when it comes to supervision. Further, by the logic of this decision, a judge may apparently set all kinds of “conditions” that bar a defendant from a multitude of places or activities or living arrangements and thereby force the defendant or DOC to petition the court for modification to ensure that the defendant does only what the judge allows—all without “administering” probation, despite the substantial amount of behavior regulation this scheme would achieve.

It’s also wrong to say that affirming the “condition” is consistent with the probationary program envisioned and ordered by the circuit court. The circuit court intended an informal, situation-by-situation review achieved, apparently, by direct communication with the supervision agent, who would supply the relevant information. Though not detailed, the statutory modification process demands more. A person on ES must file a petition, § 302.113(7m)(a)—but only after serving at least one year of ES, with no more than one petition every 12 months, § 302.113(7m)(e) (though DOC could apparently file on the person’s behalf at any time, if it backs the modification). A person on probation must show “cause,” § 973.09(3)(a), which requires some sort of filing asking for modification and setting forth grounds. Modification requests under either statute could often require development and presentation of relevant evidence, probably at a hearing, at which DOC, the state, and victims could presumably participate (at least for modification of ES conditions, § 302.113(7m)(b) and (c). All in all, then, modification proceedings could take considerable court time, not to mention the time of other interested parties, which means the court of appeals rationale for validating the circuit court’s order thrown a spanner into the works of the informal “probationary program” “envisioned” and “ordered” by the circuit court that the reviewing court is supposed to respect and affirm. (¶15).