Pubdate: Sat, 24 Sep 2011
Source: Beloit Daily News, The (WI)
Copyright: 2011 The Greater Beloit Publishing Company
Author: Kevin Murphy For the Daily News


MADISON - The Wisconsin Supreme Court has accepted a Beloit man's
challenge to the authority of court commissioners to issue search
warrants and other judicial functions.

Parties on both sides agree that the decision will have a huge impact
on the functioning of the state's court system.

Beloit Police searched Douglas M. Williams' Shopiere Road residence in
2008 after obtaining a search warrant from Rock County Court
Commissioner Stephen Meyer. Police found marijuana plants and growing

Williams, 52, was charged with three marijuana offenses but his
attorney, Jonas Benarek, contested Meyer's authority to issue the
warrant. Bednark argued that issuing a search warrant is a judicial
function and commissioners, who preside over some criminal
proceedings, conduct probate matters and officiate at weddings, aren't
granted judicial powers by the state constitution.

Rock County Circuit Judge James Daley dismissed the motion and after
pleading no contest Williams was sentenced in 2010 to six months in
jail, which Daley stayed pending appeal.

The District 4 Court of Appeals asked the state's high court to
directly take the case since a decision would have enormous impact
statewide on the public and judiciary.

In a brief to the appeals court Bednarek wrote that court
commissioners were granted administrative functions, but the right to
issue a search warrant is a core constitutional protection individuals
enjoy and the Legislature can't delegate.

"Court Commissioners are not elected, therefore they lack the most
basic check on their authority that is in place for circuit court, or
even municipal court judges. Furthermore...they are also not subject
to the same oversight and disciplinary procedures as judges. To grant
unelected and less stringently regulated officials such profound power
over some of the most carefully guarded protections offered by the
Constitution is truly remarkable and should not be made lightly. Yet,
that is exactly what the State is seeking to do," Bednarek wrote.

In its appeal briefs, the state argued that the issuing of a search
warrant isn't an exercise of judicial power that needs to be conferred
by the Constitution. Also, the authority to issue a warrant isn't
exclusive to a circuit judge. In an earlier decision, the Wisconsin
Supreme recognized legislatures in other states have granted authority
to municipal clerks and other officers to issue search warrants.

In 1977, the Wisconsin Legislature reorganized the court system
eliminating county courts and establishing circuit courts and
municipal courts. The state argued that 1977 law authorized court
commissioners to issue search warrants.

Rock County Assistant District Attorney Gerald Urbik, who prosecuted
the Williams case, said if Williams prevails it would be a "huge
disruption of court services... in Rock County and in every county in
the state."

"It's been a generally accepted practice and viewed by most as an
obvious principal of long standing that our court commissioners
perform these functions...Without them the Legislature would have to
double the number of judges statewide in order to take on the
additional work," he said.

While court commissioners don't preside over plea and sentencing
hearings, they have similar qualifications and educational
requirements as circuit judges and don't get hired unless they pass a
screening process, he said.

Bednarek said the state claims that if court commissioners can't sign
warrants it puts suspicion on other functions they do on a daily
basis. Whether or not that's the case, the vast majority of their jobs
aren't signing warrants, which Bednarek maintains is one of the most
fundamental duties of a circuit judge.

"Giving police the right to search your house is one of the most
discretionary jobs judges have, that's what we elect them to do, and
to say they can hand that off to an unelected official is an offense
to the citizenry and the Constitution," he said in a phone interview.

The court hasn't set a date when it will hear arguments in the case,
which was one of eight they announced Friday they were making part of
the 2011-12 term. 
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