Court commissioners’ power up for debate

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The defendant argues the state constitution does not grant authority

The power of court commissioners to issue search warrants, in addition to other authority granted with the position, is currently pending before the Wisconsin Supreme Court.

Though sec. 757.69(1)(b), a state statute, grants many court commissioner functions, including the power to issue warrants, the defendant in the case, Douglas Williams, argues the Wisconsin Constitution does not grant such powers.

At the forefront of the dispute is the meaning of the term “judicial power.”

Williams was charged with drug offenses after a search authorized by a court commissioner. He moved to suppress the fruits of the search on the ground that the commissioner lacked authority to do so, but entered a guilty plea after his motion was denied. The Court of Appeals certified the case to the Supreme Court, which accepted review.

The statute provides, “A circuit court commissioner may … in criminal matters issue summonses, arrest warrants or search warrants …”

Article VII, sec. 2 of the state constitution, however, does not explicitly grant such power, providing instead, “The judicial power … shall be vested in a unified court system consisting of one supreme court, a court of appeals, a circuit court, such trial courts of general uniform statewide jurisdiction as the legislature may create by law, and a municipal court if authorized by the legislature under section 14.”

Prior to the court system’s reorganization by constitutional amendment in 1977, the constitution did give commissioners the authority to issue warrants.

In his brief to the court, Williams argues, “Court commissioners, as the statute describes them, are outside the limitations of judges in whom the constitution exclusively invests the authority to exercise the judicial power. They also are outside the democratic process by which citizens elect judges that populate the circuit courts. Court commissioners need not be qualified electors; they are not elected nor are they removable by impeachment.

“And they need not reside in the county they serve, unlike judges … It follows then that a judicial court commissioner may not, consistent with the Wisconsin Constitution, exercise a court’s judicial power.”

In the state’s response, it argues that issuing search warrants is not a judicial power vested exclusively in courts, citing similar holdings from other states and a U.S. Supreme Court holding that the Fourth Amendment does not require warrants be issued by judicial officers. Shadwick v. City of Tampa, 407 U.S. 345 (1972).

In its brief, the state contends, “The issuance of a search warrant is not a final adjudication on the ultimate merits of the cause that is binding on the parties. The issuance of a search warrant by a circuit court commissioner is subject to review by the circuit court.”

Accordingly, the state contends, issuing a warrant is not a judicial power solely vested in courts.

In response to the state’s reliance on Shadwick, Williams counters that the Florida Constitution at issue in Shadwick gave court commissioners power to issue warrants, a power he contends the 1977 amendments to the Wisconsin Constitution eliminated.

The state also contends history is on its side: “Courts, litigants and circuit court commissioners themselves would be more than a little inconvenienced by the belated discovery that circuit court commissioners were constitutionally abolished in 1977.”

Wisconsin’s court commissioners have also weighed in, on the side of the state. In an amicus curiae brief, the Wisconsin Association of Judicial Court Commissioners and Wisconsin Family Court Commissioners’ Association Inc. emphasize the amount of work commissioners perform in Wisconsin courts.

They contend their work does not run afoul of the constitution because all of their decisions are subject to de novo review, including the issuance of search warrants.

A decision from the court is expected later this term.