concluding, in a termination of parental rights case, that the case did “not fall within the scope of … § 806.02(5)” because “[a]lthough [the parent] was not physically present at the fact-finding hearing, she nevertheless ‘appeared’ at the hearing via her counsel”
How later courts described this case
- concluding, in a termination of parental rights case, that the case did “not fall within the scope of … § 806.02(5)” because “[a]lthough [the parent] was not physically present at the fact-finding hearing, she nevertheless ‘appeared’ at the hearing via her counsel”
- stating that, for an error to “affect the substantial rights” of a party, “there must be a reasonable possibility that the error contributed to the outcome of the action or proceeding”
- explaining that "we nonetheless must examine the entire record to determine whether it provides a factual basis to support the court's finding of grounds for termination."
- concluding that we "must examine the entire record to determine whether it provides a factual basis to support the court's finding of grounds for termination."
Written by the judges who cited it.
The opinion
*23 SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE
¶ 37. (concurring).
Errors are the insects in the world of law, travelling through it in swarms, often unnoticed in their endless procession. Many are plainly harmless; some appear ominously harmful. Some, for all the benign appearance of their spindly traces, mark the way for a plague of followers that deplete trials of fairness.
The well-being of the law encompasses a tolerance for harmless errors adrift in an imperfect world. Its well-being must also encompass the capacity to ward off the destroyers. So an inquiry into what makes error harmless, though one of philosophical tenor, is also an intensely practical inquiry into the health and sanitation of the law.
Roger J. Traynor, Foreword, The Riddle of Harmless Error (1970).
¶ 38. The harmless error doctrine, as applied in state and federal courts alike, has inspired several decades of commentary, criticism, skepticism, and attempted clarification. 1 This academic and judicial *24 scrutiny will likely continue to flourish as this court and other courts expand the harmless error doctrine to violations of substantive rights in which the effect of the error is difficult, if not impossible, to quantify. 2
¶ 39. The present case, like other cases this year 3 and in prior years, 4 requires this court to apply the harmless error doctrine. Some may view the cases decided today as an opportunity to "fix" Wisconsin's *25 harmless error doctrine once and for all. I do not share this sentiment. Appellate courts should not tinker with the harmless error doctrine without the benefit of briefing by both parties, oral argument on the issue, and an exploration of the federal and state cases and the historical development of the law. 5
¶ 40. Our cases and scholarly commentary reveal that the doctrine of harmless error is a work in progress. 6 Numerous approaches have been explored in the legal literature. For example, Justice Roger Tray-nor and others have proposed that the harmless error test might vary depending on the nature of the error. 7 For errors at trial that affect some aspect of the fact-finding process, Justice Traynor proposed that the appellate court reverse unless it finds it "highly probable that the error did not affect the judgment." 8 Justice Traynor would require reversal for "errors that carry a high risk of prejudice to the judicial process itself," such as errors relating to the composition of a jury. 9 Likewise, Justice Traynor would require reversal for *26 errors "that inherently carr[y] a high risk of affecting the judgment," such as admitting an unlawfully obtained confession or not policing against the effect of prejudicial pretrial publicity. 10
¶ 41. My hope is for increased discussion of the doctrine of harmless error and educational programs for the bench and the bar regarding the application of, and limitations of, the doctrine. Appellate counsel should continue to brief the issue of harmless error in requests for new trials.
¶ 42. Although I j oin the maj ority opinion, for the reasons set forth, I write separately.
See, e.g., Roger J. Traynor, The Riddle of Harmless Error (1970) (proposing several different variations of the harmless error standard depending on the nature of the error); Harry T. Edwards, Madison Lecture: To Err is Human, But Not Always Harmless: When Should Legal Error Be Tolerated, 70 N.Y.U. L. Rev. 1167 ,1199 (1995) (expressing skepticism that "in practical application we can ever solve the riddle of harmless error").
See also James Edward Wicht III, There is No Such Thing as a Harmless Constitutional Error: Returning to a Rule of Automatic Reversal, 12 B.Y.U. Pub. L. 73 (1997); Gregory Mitchell, Against "Overwhelming" Appellate Activism: Constraining Harmless Error Review, 82 Calif. L. Rev. 1335 (1994); Vilija Bilaisis, Comment, Harmless Error: Abettor of Courtroom Misconduct, 74 J. Crim. L. & Criminology 457 (1983); Comment, *24 Confusion in the Court: Wisconsin's Harmless Error Rule in Criminal Appeals, 63 Marq. L. Rev. 643 (1980). For a discussion of reversible error and the review function, and a critique of Wisconsin case law, see Ruggero J. Aldisert, The Judicial Process: Readings, Materials and Cases 706-42 (1976).
See, e.g., State v. Lindell, 2001 WI 108 , 245 Wis. 2d 689 , 629 N.W.2d 223 (applying harmless error doctrine to the circuit court's failure to strike a biased juror for cause, requiring the defendant to use a peremptory challenge to remove the juror).
See also Green v. Smith, 2001 WI 109 , 245 Wis. 2d 772 , 629 N.W.2d 727 ; Koffman v. Leichtfuss, 2001 WI 111 , 246 Wis. 2d 31 , 630 N.W.2d 201 ; Martindale v. Ripp, 2001 WI 113 , 246 Wis. 2d 67 , 629 N.W.2d 698 ; Nommenson v. Amer. Cont'l, 2001 WI 112 , 246 Wis. 2d 132 , 629 N.W.2d 301 ; Lindell, 2001 WI 108 .
See, e.g., State v. Mendoza, 227 Wis. 2d 838, 864 , 596 N.W.2d 736 (1999); State v. Jones, 226 Wis. 2d 565 , 597—98, 594 N.W.2d 738 (1999); State v. Agnello, 226 Wis. 2d 164, 178-79 , 593 N.W.2d 427 (1999); State v. Armstrong, 223 Wis. 2d 331, 367-71 , 588 N.W.2d 606 (1999); State v. Sullivan, 216 Wis. 2d 768, 792-94 , 576 N.W.2d 30 (1998); State v. Jackson, 216 Wis. 2d 646, 668-69 , 575 N.W.2d 475 (1998); State v. Huntington, 216 Wis. 2d 671, 695-96 , 575 N.W.2d 268 (1998); State v. Alexander, 214 Wis. 2d 628, 652-54 , 571 N.W.2d 662 (1997).
This court has also applied the harmless error doctrine in the context of administrative agency determinations. See, e.g., Responsible Use of Rural and Agrie. Land v. PSC, 2000 WI 129, ¶ 63, 239 Wis. 2d 660 , 619 N.W.2d 888 ; State ex rel. Anderson-El v. Cooke, 2000 WI 40, ¶¶ 21-24 , 234 Wis. 2d 626 , 610 N.W.2d 821 .
See also State v. Grant, 139 Wis. 2d 45, 88 , 406 N.W.2d 744 (1987) (Abrahamson, J., concurring).
See, e.g., 5 Wayne R. LaFave et al., Criminal Procedure § 27.6(b), at 938-39 (2d ed. 1999) ("Few areas of doctrinal development have been marked by greater twisting and turning than the development of standards for applying the harmless error rule.").
See also 5 Wayne R. LaFave et al., Criminal Procedure § 27.6(b) at 934-36 (2d ed. 1999) (noting that courts have long applied the harmless error statute differently depending on the nature of the right violated).
See Roger J. Traynor, The Riddle of Harmless Error 35, 49-51 (1970).
See Roger J. Traynor, The Riddle of Harmless Error 64-66 (1970) (noting that a defendant challenging, for example, the denial of the right to peremptory challenges could not possibly *26 show prejudice, and that the appellant "should not be called upon to do the impossible at the appellate stage").
See Roger J. Traynor, The Riddle of Harmless Error 58-64 (1970).