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Home / Commentary / ON THE DEFENSIVE: Recognizing a court’s inherent authority

ON THE DEFENSIVE: Recognizing a court’s inherent authority

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Few motions in criminal cases cause more confusion than those based on a court’s inherent authority.

Consternation exists for some judges because those motions rely heavily on equitable arguments, without strict legal authority supporting them. Sometimes, however, the fair administration of justice requires courts to entertain, and grant, those requests.

The Wisconsin Supreme Court unfortunately chose to duck defining a court’s inherent authority when it was presented with that opportunity in State v. Dowdy (2012).

The question in Dowdy was one that circuit courts frequently encounter. The defendant, after serving a significant period of probation, moved that the circuit court terminate the remainder of his term.

He argued that he was sufficiently rehabilitated, and, therefore, probation no longer served its function. The circuit court granted the motion on statutory grounds.

On appeal, the state and defense disagreed over the statutory authority for the ruling but agreed generally that circuit courts possessed inherent authority to terminate probation. The Supreme Court concluded the statutes do not permit early termination of probation.

But justices refused to respond to the alternative argument involving the scope of the court’s inherent authority. The Supreme Court held that the defendant’s original petition was not “grounded” in the circuit court’s alleged inherent authority.

There should be little question that circuit courts possess that inherent authority, and not just because the parties, the Department of Corrections and the American Bar Association unanimously agree. Wisconsin courts generally exercise inherent authority to ensure the effective functioning of the court and to fairly administer justice.

If courts have the inherent authority to modify a sentence, which is required to fairly administer justice, surely they also must have the inherent authority to reduce a probationary term once the rehabilitative objectives of supervision have been met.

Terminating probation is just one scenario in which a court may act pursuant to its inherent authority.

Another is the scarlet letter represented by the Consolidated Court Automation Programs, the statewide, computer case management system for the circuit courts. It is unfair that people who have been acquitted, or had their charges dismissed, should be further stigmatized with a criminal case that anyone can view on CCAP.

For unknown reasons, neither the Legislature nor the Supreme Court has acted to confer circuit courts with the specific power to seal CCAP entries. Lacking specific statutory authority for the request, petitions to remove CCAP entries must be grounded in the court’s inherent authority.

And, just like the court’s inherent authority to terminate probation, courts should grant those motions when fairness calls for it.

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