State ex rel. Antonio S. Davis v. Circuit Court for Dane County, the Honorable Ellen K. Berz and State of Wisconsin, 2024 WI 14, 3/26/24; case activity
A majority of the Wisconsin Supreme Court affirms the court of appeals’ denial of Davis’ petition for a supervisory writ after concluding the the circuit court had no “plain duty” to treat Davis’ request for substitution as timely under Wis. Stat. § 971.20(4). The court also uses the decision to clarify that a petition for a supervisory writ is not the preferred vehicle to seek appellate review of a circuit court’s denial of a request for substitution that was filed after arraignment. Op, ¶11.
As outlined in our post on SCOW’s decision to take Davis’ PFR, the merits of Davis’ case presented interesting questions about how an unrepresented misdemeanor defendant [intelligently] exercises his right to substitution when the strict statutory deadline passes long before counsel is secured. The case also involved discrepancies between how different counties handle these situations, including the use of adjourned initial appearances, which would have solved the entire issue presented in Davis’ case, and differing local rules extending the statutory deadline, and how the backlog for SPD appointed counsel affects defendants who have no control over whether a court enters a plea on their behalf or they are able to secure counsel.
However, the court avoids answering any of those questions and instead decides the case by holding that the circuit court had no plain duty to grant Davis’ request for substitution. Notably, the court recognizes that its decision addresses only whether the court had a plain duty to grant Davis’ belated request under the established law on petitions for supervisory writs: “To start, in a supervisory writ posture, appellate courts may decide a case based on the existence of a plain duty rather than address the substantive issue. Indeed, we have done so here.” Op., ¶43.
While prior decisions have called a petition for a supervisory writ the “preferred route” for review, the court explains why it is not. Aside from the heightened standard, the court notes the supervisory writs often are accompanied by incomplete appellate records and the fact that application of equitable doctrines, like equitable tolling, inherently conflict with a plain duty standard. Instead, the court explains that “a petitioner should file a petition for interlocutory appeal or an appeal from a final judgment or order, not a petition for supervisory writ.” Op., ¶44.
In terms of substance, the court holds that the circuit court had no plain duty to grant Davis’ request for two reasons. First, the court holds that no “government created obstacle,” at least as previously recognized in the caselaw, prevented Davis from complying with the statutory deadline. However, because the majority decides Davis’ case through the plain duty rubric, the decision essentially leaves open the question of whether strict application of the statutory deadline applied in Davis’ case. Likewise, the court rejects Davis’ reliance on equitable tolling because the circuit court had no duty to apply the equities in Davis’ favor, again, at least based on the established caselaw.
In two concurring opinions and a dissent, the other members of the court spar about whether the court should have (1) overturned longstanding precedent that neither party requested, see R.G. Bradley, concurring, ¶¶46-75, (2) applied the forfeiture doctrine against Davis, see Hagedorn, concurring, ¶¶76-77, or dismissed his petition for review as improvidently granted, see Ziegler, dissenting, ¶¶78-83. In the end, while the court provides some procedural clarity for litigants going forward, the substantive questions presented in Davis’ case remain unanswered.
