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  • September 01, 2021

    2020-21 Supreme Court Term: Historic Level of 4-3 Decisions

    Challenges to the executive branch's authority to act during COVID-19 continued this term, and other high-profile cases were election-related. This article includes insights from a civil litigator and former public defender, with holdings and votes on every case.

    Joe Forward

    Wisconsin Supreme Court hearing room

    Sept. 1, 2021 – The Wisconsin Supreme Court will open the 2021-22 term after Labor Day, entering its third consecutive COVID-19 term. Before moving forward, we look back at the 2020-21 term, with insights from a civil litigator and former public defender.

    In the 2019-20 term, the first term the court was dealing with COVID-19, the court decided high-profile disputes between the executive and legislative branches of government, which sparred over the governor’s authority to extend statewide emergency orders related to COVID-19.

    Challenges to executive branch authority continued this term, with three major decisions on executive branch’s authority to act during the pandemic. But the court also decided several major election-related decisions this term.

    Historic Level of 4-3 Decisions

    The court issued 51 substantive decisions this past term (not including per curiam decisions or disciplinary decisions), up from 43 last term.

    Of the court’s 51 decisions, 30 were civil matters and 21 were criminal cases. Of the 51 decisions, 19 (37 percent) were 4-3 decisions.

    According to Marquette History Professor Alan Ball, that’s the highest percentage of 4-3 decisions in the previous 64 years that he has researched so far at SCOWstats, where he compiles Wisconsin Supreme Court statistics that are used throughout this article.

    “It’s also a higher percentage than the percentage of unanimous decisions, which has never happened before,” Ball said. The court was unanimous in 17 cases (33 percent), and 11 of those were criminal cases (six civil cases were unanimously decided).

    “Some commentators, discussing the U.S. Supreme Court, suggest that close decisions should be expected given the court’s law development function and that cases usually do not reach it unless there are strong arguments on both sides,” said Susan Tyndall, a civil litigator at Habush Habush & Rottier S.C. in Waukesha.

    “The same analysis applies to the Wisconsin Supreme Court. This term, the court addressed many highly charged political issues, including those related to elections and the pandemic,” Tyndall noted. “In many of those cases, multiple amicus parties also presented strong arguments to the court. Therefore, the high number of 4-3 decisions is not surprising, in my view, given the nature of the issues.”

    In nine of the 4-3 decisions, the four-justice majority was the same: Justice Patience Roggensack (chief justice until April 2021), Justice Annette Ziegler (current chief justice), Justice Brian Hagedorn, and Justice Rebecca Bradley.

    Vote Split: Wisconsin Supreme Court Decisions 2020-21

    In another five decisions, the four-justice majority was the same: Justice Hagedorn, Justice A.W. Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky.

    Justice Hagedorn proved to be the swing vote in 16 of the 19 decisions decided by a 4-3 vote. “When it becomes clear among them that [Hagedorn] is going to be a close case, he might become the equivalent of a matrimonial prize in the village,” Ball said.

    “I have often heard that appellate advocates should pitch their arguments to find favor with swing justices,” Tyndall said.

    “Civil litigators should definitely study Justice Hagedorn’s decisions to learn what types of arguments have found favor with him. However, we don’t want to lose other justices’ votes by making an argument obviously pitched to one justice. I believe in making the strongest and most persuasive arguments possible while including arguments of the type which have already found favor with the justices.”

    While Justice Hagedorn proved to be the wildcard, other alignments were clearer. Justices A.W. Bradley, Dallet, and Karofsky aligned in 16 of 19 cases (84 percent) decided by a 4-3 vote, while Justices Roggensack, Ziegler, and R. Bradley aligned in 15 of 19 cases decided by a 4-3 vote.

    Justice Rebecca Bradley wrote the most dissenting opinions (12), and was the lone dissenter in five of the six cases decided by a 6-1, 5-1, or 4-1 vote.

    “While many consider Justice R. Bradley to be the most ‘conservative’ justice on the court, her decisions would not always produce the most ‘conservative’ result,” Tyndall said. “For example, in Graef, she was the only justice who would have allowed an injured employee to pursue a tort claim outside of the worker's compensation system.

    “As is her stated judicial philosophy, her dissent relied heavily upon hewing to her interpretation of the statutory language. The same holds true for her United America dissent, where she was the lone justice who would have allowed a landowner to recover for damage caused by a highway change of grade.”

    Election Cases

    Early in the term, the supreme court was dealing with election-related claims, pre- and post-election in November 2020. The court’s first three decisions were election-law related, responding to disputes on absentee ballots and deadline extensions.

    The election case of Democratic National Committee v. Bostelmann found its way to the U.S. Supreme Court after the Wisconsin Supreme Court ruled (4-3) that the legislature has authority to represent the state’s interests in the validity of state laws.

    Democrats sought to extend voting deadlines for absentee ballot voters amid COVID-19, and Republican lawmakers argued against any extension.

    The scrum at the Wisconsin Supreme Court in Bostelmann involved Republican lawmakers’ standing to intervene in the case. A week before Election Day, the U.S. Supreme Court (5-3) declined to extend Wisconsin election deadlines.

    Post-election, in Trump v. Biden, the supreme court (4-3) declined to invalidate more than 200,000 votes in Wisconsin’s presidential election. Justice Hagedorn wrote the majority opinion, joined by Justices A.W. Bradley, Dallet, and Karofsky.

    This case largely paved the way for Wisconsin’s Democratic electors to certify Wisconsin’s electoral votes for President-elect Joe Biden.

    In Jefferson v. Dane County, the supreme court (4-3) clarified that in the future, a “stay-at-home” order is not a basis, on its own, for voters to declare “indefinitely confined” status and vote by absentee ballot without showing photo ID.

    The supreme court also decided a case involving voter registrations and who has responsibility to change the registration status of voters who move outside the district.

    “In the past, there did not seem to be so much election-related litigation.” Tyndall noted. “In my view, political polarization is at least partially responsible for driving the increase in such challenges. It is possible, however, that the pace has increased because some are litigating selected issues now as a calculated strategy, trying to seek an advantageous result while there is a conservative majority on the court.”

    Executive Authority and COVID-19

    Later in the term, as noted, the court continued to decide challenges to the executive branch’s authority to impose health-related restrictions during COVID-19.

    In Fabick v. Evers, a 4-3 majority ruled that Wisconsin law does not give the governor authority to successively declare public health emergencies that trigger the state health department’s authority to control a pandemic through measures like mask mandates.

    In Tavern League of Wisconsin, Inc. v. Palm, a 4-3 majority confirmed that a statewide emergency order limiting capacity at restaurants, bars, and other indoor facilities was invalid and unenforceable.

    In James v. Heinrich, a 4-3 majority ruled that the Dane County Health Department exceeded its authority when it ordered all schools, including private schools, to cease in-person instruction.

    In all three cases, the majority included the same justices: Justice Roggensack, Chief Justice Ziegler, Justice Hagedorn, and Justice R. Bradley.

    Other Close Cases

    In Kemper Independence Insurance Company v. Ismet Islami, a 4-3 majority ruled that a homeowner was not entitled to coverage for the fire that burned down her house because her husband, who was legally separated from her at the time, intentionally set the fire and concealed information from the insurance company. Justices Roggensack, R. Bradley, Hagedorn, and Chief Justice Ziegler formed the four-justice majority.

    In Schwab v. Schwab, the 4-3 majority ruled that a statute of repose barring action upon a judgment unless filed within 20 years of the judgment did not bar a contempt action by a petitioner seeking half her ex-spouse’s pension under a marital settlement agreement. Justices A.W. Bradley, Roggensack, Dallet, and Karofsky formed majority.

    In Ritter v. Farrow, interpreting the Wisconsin Condominium Ownership Act with respect to “intangible” personal property, ruled that ownership of the tradename and trademark for a lakeside resort, a longstanding dispute, transferred to a new owner upon sale of the resort. Justices R. Bradley, Dallet, Hagedorn, Karofsky formed the majority.

    The Ritter and Schwab decisions were the only two civil decisions in which the majority did not include a similar trio with Justice Hagedorn as the deciding vote.

    “The outcomes in these civil decisions were not surprising,” Tyndall said. “While there were strong arguments to support a different result in both Schwab and Islami, the outcome accords with previous cases decided by the court.

    “It is always somewhat surprising to see an unusual grouping of justices joining in a decision. For example, the dissent in Ritter, written by then-Chief Justice Roggensack, was joined current Chief Justice Ziegler and, unusually, by Justice A.W. Bradley. When I see such unusual groupings, I often check SCOWstats to see how often these justices have voted together. It is a great resource for appellate advocates.”

    Majority Alignments in 4-3 Cases: Wisconsin Supreme Court Decisions 2020-21

    Criminal Cases

    The supreme court decided 21 criminal cases. Six cases were 4-3 decisions, three of them in Fourth Amendment cases discussed in the August 4 edition of Inside Track. Only two criminal decisions had the same alignment among the majority justices.

    “The different alignments in these decisions suggest a high degree of independent and serious judicial analysis,” said Mike Tobin, former deputy state public defender.

    “Although certain justices on any court will be closer in their judicial philosophies and vote together more frequently, it seems healthy to see different alignments in these close cases.”

    Three Fourth Amendment cases highlight the differing rationales among the justices. In one case, the court ruled (4-3) that an officer unlawfully seized a driver when he withheld her driver’s license upon returning to her vehicle and continued questioning her without reasonable suspicion that she was engaged in criminal activity.

    Justice Patience Roggensack wrote the majority opinion, joined by Justices Ann Walsh Bradley and Jill Karofsky.

    In another case, the court ruled (4-3) that a vehicle stop was supported by reasonable suspicion after an officer observed a known drug user enter the defendant’s car, which was parked on the street, and then exit after 10-15 seconds.

    Justice Hagedorn wrote the majority opinion, joined by Chief Justice Zieglerand Justices Roggensackand R. Bradley.

    “Overall, I think that despite some crossover votes, we can discern clear distinctions in overall philosophy in these cases,” Tobin said.

    Tobin says one major difference, which builds upon decades of U.S. Supreme Court debate and precedent, concerns the application of the good-faith exception to the Fourth Amendment’s exclusionary rule.

    “Justices who favor broad protection of individual rights tend to favor the exclusionary rule as supporting protection against unreasonable searches and seizures,” he said.

    “Justices who emphasize the importance of effective law enforcement tend to excuse Fourth Amendment violations when they do not believe that exclusionary rule could have deterred the police conduct in question.”

    A "good-faith exception" was at issue in a murder case decided this term. The supreme court (4-3) upheld the trial court’s decision to allow incriminating cell phone data that one police agency shared with another. The defendant argued the “second search” – the sharing of the data – required a warrant.

    The court did not directly address whether a “second search” requires a warrant. Instead, the 4-3 majority concluded that a good-faith exception to the warrant requirement applied because there’s no precedent on whether a second search requires a warrant.

    Tobin said Burch is an example of a Fourth Amendment issue comprising multiple sub-issues. “In these situations, the court often decides the case on the alternative ground that has the broadest support,” Tobin said.

    With alternative theories available, Tobin said courts sometimes sidestep or defer an issue or sub-issue that need not be addressed to render a decision.

    “In Burch, however, the court did not sidestep either issue: all justices are on record on both issues,” he said. “Because the four justices who constituted the majority opinion agreed on only one of these two sub-issues, the lead opinion emphasizes that sub-issue, and, as a result, the analysis of the remaining sub-issue (second search) is found in two minority opinions.”

    Tobin said the majority opinion did not determine whether the warrantless second search was valid. “However, in the minority opinions, one of which was a partial dissent, a total of four justices declared that the Sheriff's Department should have obtained a warrant for this search of cell phone data,” he said.

    “Three justices – Dallet, A.W. Bradley, and Karofsky – dissented as to the good-faith issue, but the fourth (R. Bradley), joined the majority in holding that the exclusionary rule did not require suppression of the cellphone evidence. Therefore, the shared opinion of these four justices represents only a potential future holding on this issue.”

    Because a majority of the justices did expressly say that a warrant is required for a second search of a cell phone, the argument for good faith may be weaker in a future case, Tobin noted.

    “Part of the majority's reasoning was that there is no precedent requiring a warrant for this type of second search,” he said. “Now that a majority of the court has endorsed the need for a warrant, albeit not as part of the Burch holding, police would be well advised to seek a warrant in a similar future situation.”

    Second Amendment

    The court also decided two Second Amendment right to bear arms cases. In State v. Roundtree, the court (5-2) rejected the defendant’s as-applied constitutional challenge to Wisconsin’s felon-in-possession statute, concluding the statute is “substantially related to important governmental objectives,” including public safety.

    Joe ForwardJoe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.

    Justice R. Bradley and Justice Hagedorn both filed dissents exceeding 30 pages.

    They argued the state did not meet its burden to show that prohibiting firearm possession by a person convicted of failing to pay child support, a felony, substantially relates to the government’s interest in preventing gun violence.

    “[T]he State deprives Leevan Roundtree of his fundamental constitutional right to keep and bear arms, based solely on his failure to pay child support more than ten years ago, with no showing that he poses a danger to society,” Justice R. Bradley wrote.

    In State v. Christian, the supreme court (6-1) upheld the defendant’s conviction for operating or going armed while intoxicated. The defendant argued that the Second Amendment protects his right to bear arms, and he was acting in self-defense.

    A majority ruled that he did not act in self-defense, the core of the Second Amendment. Justice Hagedorn wrote a concurring opinion. Justice R. Bradley was the lone dissenter, concluding again that the criminal statute cannot supersede the right to bear arms.

    “The fact that Christen did not act in self-defense has nothing to do with his Second Amendment right to go armed in case of confrontation,” R. Bradley wrote.

    “While many readers may not be troubled by the outcome of this case in light of Christen's threatening behavior toward his roommates and their guests, the majority's decision erodes a fundamental freedom, the ‘true palladium of liberty’ for all Americans.”

    “As in other areas, U.S. Supreme Court decisions interpreting the 2nd Amendment can drive state-court litigation. Defense attorneys are well-advised to consider motion practice (and appeals, if convictions ensue) is cases in which prosecution is premised on firearm possession.

    Unconscious Driver-OWI

    Finally, the court decided an issue that has cropped up numerous times in the last six years: Whether police can rely on the state’s informed consent law to initiate blood draws from drivers suspected of drunk driving who become unconscious or unresponsive.

    In recent years, the Wisconsin Supreme Court justices have been divided on the question of whether the implied consent law is sufficient, alone, to allow warrantless blood draws when drivers are unconscious and incapable of withdrawing consent.

    A majority ruled that Wisconsin’s implied consent law, as applied to incapacitated drivers, is “unconstitutional beyond a reasonable doubt,” which lays this issue to rest.

    “Because the recognized warrant exception for exigent circumstances is analyzed under a totality-of-circumstances approach, the Prado holding certainly does not preclude a valid warrantless blood draw in a future case,” Tobin said.

    “In fact, in an earlier Wisconsin case, a U.S. Supreme Court plurality wrote that exigent circumstances will almost always justify a warrantless blood draw when probable cause exists to believe that an unconscious driver has an illegal blood alcohol concentration.

    Tobin said police are nonetheless well-advised to seek a warrant, particularly in jurisdictions in which electronic warrants can be obtained promptly.

    “Conversely, if police make no effort to obtain a warrant, a defense motion to suppress is advisable, supported by evidence of the available process in the jurisdiction,” he said.

    Civil Case Decisions, 2020-211

    1. Democratic National Committee v. Bostelmann, 2020 WI 80 (Oct. 6, 2020).

    AREA: State Government

    HOLDING: Under Wis. Stat. section 803.09(2m), the Wisconsin Legislature has the authority to represent the state of Wisconsin’s interest regarding the validity of state laws.

    VOTE: 4-3.

    HAGEDORN (majority opinion), joined by ROGGENSACK, ZIEGLER, and R. BRADLEY

    DALLET (concurring opinion), joined by A.W BRADLEY and KAROFSKY

    2. Jefferson v. Dane County, Wisconsin, 2020 WI 90 (Dec. 14, 2020)

    AREA: Absentee Voting – “Indefinitely Confined” Voters – COVID-19

    HOLDINGS

    1) “The plain language of Wis. Stat. § 6.86(2)(a) requires that each elector make an individual assessment to determine whether he or she qualifies as indefinitely confined or disabled for an indefinite period. A county clerk may not ‘declare’ that any elector is indefinitely confined due to a pandemic.”

    2) An elector’s determination of indefinite confinement must be based on age, physical illness, or infirmity. “[W]e conclude that both the contention that electors qualify as indefinitely confined solely as the result of the COVID19 pandemic and the declared public health emergency and the contention that Wis. Stat. § 6.86(2)(a) could be used for those who ‘have trouble presenting a valid ID’ are erroneous because those reasons do not come within the statutory criteria.”

    3) An elector must be indefinitely confined because of the elector’s own age, physical illness, or infirmity, not those of another person. The court rejected the argument that when an elector is caring for another person who is indefinitely confined because of age, physical illness, or infirmity, the caretaker can be considered indefinitely confined, for purposes of voting laws.

    VOTE: 4-3.

    ROGGENSACK (majority opinion), joined by ZIEGLER, R. BRADLEY, AND HAGEDORN

    A.W. BRADLEY (concurred in part, dissented in part)

    DALLET (concurred in part, dissented in part), joined by KAROFSKY

    3. Donald J. Trump v. Joseph R. Biden, 2020 WI 91 (Dec. 14, 2020)

    AREA: 2020 Presidential Election – Action to Invalidate Ballots – Laches

    HOLDINGS: 1) The plaintiffs’ challenge to “indefinitely confined” voter ballots was without merit. 2) Laches barred relief on the remaining three categories of ballots challenged by the plaintiffs.

    VOTE: 4-3.

    HAGEDORN (majority opinion), joined by A.W. BRADLEY, DALLET, and KAROFSKY

    DALLET and KAROFSKY (concurring opinion)

    HAGEDORN (concurring opinion), joined by A.W BRADLEY.

    ROGGENSACK (dissenting opinion), joined by ZIEGLER and R. BRADLEY.

    ZIEGLER (dissenting opinion), joined by ROGGENSACK and R. BRADLEY.

    R. BRADLEY (dissenting opinion), joined by ROGGENSACK.

    4. Moreschi v. Village of Williams Bay, 2020 WI 95, (Dec. 30, 2020)

    AREA: Zoning Appeals – Certiorari Review – Triggering Event

    HOLDINGS: 1) For purposes of a certiorari review of a decision by a zoning board, the “triggering event” for the 30-day period is the filing of the written decision, not the board’s oral decision. 2) The board’s written decision and the certiorari record complied with the pertinent statutes and ordinances.

    VOTE: 5-1.

    DALLET (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, ZIEGLER, and KAROFSKY (except ¶¶23 and 24)

    DALLET (majority opinion) with respect to ¶¶23 and 24, joined by A.W. BRADLEY and KAROFSKY

    ZIEGLER (concurring opinion), joined by ROGGENSACK

    R. BRADLEY (dissenting opinion)

    HAGEDORN did not participate.

    5. Michael Anderson v. Town of Newbold, 2021 WI 6 (Jan. 6, 2021)

    AREA: Shorelands – Zoning – Subdivision Authority

    HOLDINGS: The town of Newbold ordinance establishing minimum shoreland frontage is not a zoning ordinance; rather, it is a permissible exercise of the town’s subdivision authority.

    VOTE: 5-2.

    A.W. BRADLEY (majority opinion), joined by ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY.

    HAGEDORN (dissenting opinion), joined by R. BRADLEY.

    6. Mohns Inc. v. BMO Harris Bank National Association, 2021 WI 8 (Feb. 2, 2021)

    AREA: Discovery Sanctions – Unjust Enrichment – Punitive Damages

    HOLDINGS: 1) The circuit court did not erroneously exercise its discretion when it imposed judgment on liability as a sanction for BMO’s discovery violations. 2) Because the law does not permit recovery of damages for both breach of contract and unjust enrichment arising from the same conduct, the award of damages for unjust enrichment must be set aside. 3) The punitive-damages award must be overturned because it was based on an award of damages for contract claims; punitive damages are recoverable only in tort.

    VOTE: 5-0.

    R. BRADLEY (unanimous opinion).

    ZIEGLER and HAGEDORN did not participate.

    7. Waupaca County v. K.E.K., 2021 WI 9 (Feb. 9. 2021)

    AREA: Future Dangerousness – Extensions – Proof “Alternatives”

    HOLDINGS: Extension of a petitioner’s mental commitment comported with the statutes and met due-process and equal-protection requirements.

    VOTE: 5-2.

    ZIEGLER (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, R. BRADLEY, and HAGEDORN.

    DALLET (dissenting opinion), joined by KAROFSKY.

    8. Ted Ritter v. Tony Farrow, 2021 WI 14 (Feb. 23, 2021)

    AREA: Trademarks – Ownership – Sale of Business

    HOLDINGS: Buyers of a resort-management business acquired exclusive ownership of the business’s trademarks upon purchase of the business.

    VOTE: 4-3.

    KAROFSKY (majority opinion), joined by R. BRADLEY, DALLET, and HAGEDORN.

    ROGGENSACK (dissenting opinion), joined by A.W. BRADLEY and ZIEGLER.

    9. Applegate-Bader Farm, LLC v. DOR, 2021 WI 26 (March 16, 2021)

    AREA: Promulgation of Administrative Rules – Environmental Impact Statement

    HOLDINGS: 1) Administrative agencies must consider indirect, as well as direct, environmental effects of proposed rules when deciding whether to prepare an environmental impact statement (EIS). 2) The Department of Revenue (DOR) failed to develop a reviewable record that demonstrates that it made a preliminary investigation and reached a reasonable conclusion about the environmental consequences of its amendment to Wis. Admin. Code section Tax 18.05(1)(d).

    VOTE: 5-1.

    ROGGENSACK (majority opinion), joined by A.W. BRADLEY, R. BRADLEY, DALLET, and KAROFSKY.

    HAGEDORN (dissenting opinion).

    ZIEGLER did not participate.

    10. Jere Fabick v. Tony Evers, 2021 WI 28 (March 31, 2021)

    AREA: Public Health Emergencies – Power of Governor to Declare Additional States of Emergency

    HOLDINGS: Governor Tony Evers’ successive declarations of a COVID-19 public health emergency after the expiration of his original 60-day order violated Wis. Stat. section 323.10.

    VOTE: 4-3.

    HAGEDORN (majority opinion), joined by ROGGENSACK, ZIEGLER, and R. BRADLEY.

    R. BRADLEY (concurring opinion), joined by ROGGENSACK.

    A.W. BRADLEY (dissenting opinion), joined by DALLET and KAROFSKY.

    11. Village of Slinger v. Polk Properties, LLC, 2021 WI 29 (April 1, 2021)

    AREA: Zoning – Nonconforming Use – Abandonment

    HOLDINGS: A property owner did not abandon the property’s lawful nonconforming use because the owner continued to use the property in the same manner in which it had been used before the zoning was changed.

    VOTE: 6-0.

    R. BRADLEY (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, DALLET, and KAROFSKY.

    ZIEGLER (concurring opinion).

    HAGEDORN did not participate.

    12. Christus Luth. Church of Appleton v. Wis. Dept. of Trans., 2021 WI 30 (April 1, 2021)

    AREA: Eminent Domain – Validity of Jurisdictional Offer

    HOLDINGS: A jurisdictional offer made by the Wisconsin Department of Transportation (DOT) was “based” “upon” the appraisal of “all property proposed to be acquired” by eminent domain.

    VOTE: 4-3.

    KAROFSKY (majority opinion), joined by A.W. BRADLEY, DALLET, and HAGEDORN.

    ROGGENSACK (dissenting opinion), joined by ZIEGLER and R. BRADLEY.

    13. Timothy Zignego v. Wisconsin Elections Commission, 2021 WI 32 (April 9, 2021)

    AREA: Voter-registration Cleanup – Wis. Stat. Section 6.50(3) – Wisconsin Elections Commission

    HOLDINGS: The Wisconsin Elections Commission (WEC) has no duty to carry out the commands of Wis. Stat. section 6.50(3).

    VOTE: 4-3.

    HAGEDORN (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, DALLET, and KAROFSKY.

    R. BRADLEY (dissenting opinion), joined by ZIEGLER.

    14. Tavern League of Wisconsin, Inc. v. Andrea Palm, 2021 WI 33 (April 14, 2021)

    AREA: COVID-19 Emergency Order 3 – Promulgation Required Under Rulemaking Procedures Set Forth in Wis. Stat. Chapter 227

    HOLDINGS: There was no majority opinion in this case. The lead opinion of three justices concluded that Emergency Order 3, issued in response to the COVID-19 pandemic, was invalid because it was an administrative rule that should have been promulgated through the rulemaking procedures of Wis. Stat. chapter 227. A fourth justice concurred in the court’s mandate but did not join the lead opinion.

    VOTE: 4-3.

    ROGGENSACK announced the mandate of the Court, and delivered an opinion, joined by ZIEGLER and R. BRADLEY.

    HAGEDORN (concurring opinion)

    A.W. BRADLEY (dissenting opinion), joined by DALLET and KAROFSKY.

    15. Country Visions Coop. v. Archer-Daniels-Midland Co., 2021 WI 35 (April 21, 2021)

    AREA: Right of First Refusal – Valuation – “Prospective Offer Price”

    HOLDINGS: The circuit court properly considered a property’s “unique synergies” when it set the exercise price higher than the appraised value on property subject to a right of first refusal.

    VOTE: 7-0.

    ZIEGLER (unanimous opinion).

    ROGGENSACK (concurring opinion).

    16. David Stroede v. Society Insurance, A Mutual Company, 2021 WI 43 (May 18, 2021)

    AREA: Trespasser Immunity-Personal Injury

    HOLDINGS: Off-duty employee of tavern was not an "other lawful occupant of real property" under Wis. Stat. § 895.529, and does not have immunity from a lawsuit filed by an intoxicated patron that he ejected from the tavern, allegedly causing injuries.

    VOTE: 4-1.

    KAROFSKY (majority opinion), joined by ZIEGLER, DALLET, and HAGEDORN.

    R. BRADLEY (dissenting opinion).

    ROGGENSACK did not participate.

    A.W BRADLEY withdrew from participation.

    17. United America, LLC v. Wis. Dept. of Transportation, 2021 WI 44 (May 18, 2021)

    AREA: Highway Change-of-Grade Projects – Damages to Abutting Lands

    HOLDINGS: “Damages to the lands” within the meaning of Wis. Stat. section 32.18 does not include diminished property value when the Wisconsin Department of Transportation (DOT) has changed the grade of a highway abutting the lands.

    VOTE: 7-0.

    DALLET (majority opinion), joined by ZIEGLER, A.W. BRADLEY, ROGGENSACK, HAGEDORN, and KAROFSKY.

    R. BRADLEY (dissenting opinion).

    18. Francis G. Graef v. Continental Indemnity Company, 2021 WI 45 (May 20, 2021)

    AREA: Personal Injury Worker’s Compensation

    HOLDINGS: The Wisconsin Worker's Compensation Act provides the exclusive remedy for the injuries alleged in the complaint.

    VOTE: 6-1.

    KAROFSKY (majority opinion), joined by ZIEGLER, A.W. BRADLEY, ROGGENSACK, DALLET, and HAGEDORN.

    R. BRADLEY (dissenting opinion).

    19. Ronald L. Collison v. City of Milwaukee Board of Review, 2021 WI 48 (June 2, 2021)

    AREA: Property Tax Valuation & Assessment

    HOLDINGS: Utilizing the income approach to value the property according to its highest and best use as a parking lot, the assessor properly considered the impairment of the value of the property due to contamination in arriving at a valuation pursuant to Wis. Stat. § 70.32(1m).

    VOTE: 4-3.

    A.W. BRADLEY (majority opinion), joined by DALLET, HAGEDORN, and KAROFSKY.

    ROGGENSACK (dissenting opinion), joined by ZIEGLER, and R. BRADLEY.

    20. Southport Commons, LLC v. DOT, 2021 WI 52 (June 8, 2021)

    AREA: Notice of Claim-Department of Transportation-Road Relocation-Property Damage

    HOLDINGS: The term "occurred" in the context of Wis. Stat. § 88.87(2)(c) – relating to property damaged by the construction or maintenance of a highway or railroad grade -- does not mean "discovered." The notice of claim period in § 88.87(2)(c) begins to run when the damage happens or takes place.

    VOTE: 4-3.

    A.W. BRADLEY (majority opinion), joined by DALLET, HAGEDORN, and KAROFSKY.

    ROGGENSACK (dissenting opinion), joined by ZIEGLER, and R. BRADLEY.

    21. Kemper Independence Insurance Company v. Ismet Islami, 2021 WI 53 (June 8, 2021)

    AREA: Home Insurance Coverage Fraud and Concealment

    HOLDINGS: (1) Ydbi is an insured under the terms of the home insurance policy (“Policy”), both under the plain language of the insurance contract and because Wisconsin's marriage laws recognize Ydbi as Ismet's spouse; (2) the Policy's "concealment or fraud" condition precludes coverage for Ismet a conclusion unaffected by the Policy's "intentional loss" exclusion; and (3) Wis. Stat. § 631.95(2)(f) does not apply because the record lacks any evidence showing Ydbi's arson constituted "domestic abuse" against Ismet, as statutorily defined.

    VOTE: 4-3.

    R. BRADLEY (majority opinion), joined by ZIEGLER, ROGGENSACK, and HAGEDORN.

    KAROFSKY (dissenting opinion), joined by A.W BRADLEY and DALLET.

    22. Southwest Airlines Co. v. Wis. Department of Revenue, 2021 WI 54 (June 8, 2021)

    AREA: Property Tax Exemption

    HOLDINGS: Southwest is not entitled to the hub facility exemption for either the 2013 or 2014 property tax assessment. The plain language of the statute requires that an air carrier company operate 45 departing flights on each weekday without exception, and Southwest admittedly did not meet this requirement.

    VOTE: 7-0.

    A.W BRADLEY (unanimous opinion)

    23. Eau Claire County Department of Human Services v. S. E., 2021 WI 56 (June 10, 2021)

    AREA: Child in Need of Protection or Services Termination of Parental Rights

    HOLDINGS: (1) the "15 out of 22 months" timeframe, as codified in the 2018 amended version of Wis. Stat. § 48.415(2)(a)3 (2017-18), began to run when mother received written notice accompanying the initial 2016 CHIPS order; and (2) starting the "15 out of 22 months" timeframe in 2016 does not violate mother’s due process rights.

    VOTE: 4-3.

    R. BRADLEY (majority opinion), joined by ZIEGLER, ROGGENSACK, and HAGEDORN

    DALLET (dissenting opinion), A.W. BRADLEY and KAROFSKY.

    24. City of Mayville v. DOA, 2021 WI 57 (June 11, 2021)

    AREA: Administrative & Municipal Law Cooperative Plan Statute, Wis. Stat. 66.0307.

    HOLDINGS: 1) City of Mayville had standing to seek judicial review of a cooperative plan (the "Plan") between the Village of Kekoskee (the "Village") and the Town of Williamstown (the "Town"). (2) The "Village of Williamstown Detachment Area" set forth in the Plan changes Mayville's boundary line. Because the Plan changed Mayville's boundary line, Wis. Stat. § 66.0307(2) required that Mayville be a party to the Plan.

    VOTE: 4-3.

    ROGGENSACK (unanimous opinion).

    25. Sara Lindsey James v. Janel Heinrich, 2021 WI 58 (June 11, 2021)

    AREA: Administrative Law-Emergency Order-COVID-19-School Closure-Religious Rights

    HOLDINGS: (1) local health officers do not have the statutory power to close schools under Wis. Stat. § 252.03; and (2) Heinrich's Order infringes the Petitioners' fundamental right to the free exercise of religion guaranteed under Article I, Section 18 of the Wisconsin Constitution, which Jacobson cannot override.

    VOTE: 4-3.

    R. BRADLEY (majority opinion), joined by ZIEGLER and ROGGENSACK, and in which HAGEDORN joined except for footnote 18.

    HAGEDORN (concurring opinion).

    DALLET (dissenting opinion), joined by A.W. BRADLEY and KAROFSKY.

    26. Kathy Schwab v. Paul Schwab, 2021 WI 67 (June 22, 2021)

    AREA: Statute of Repose Marital Settlement Agreement Pension

    HOLDINGS: Wisconsin’s statute of repose, Wis. Stat. § 893.40, does not bar ex-wife’s action to obtain half of ex-spouse’s pension, under the terms of a marital settlement agreement, because it was impossible for the ex-spouse to perform on his promise — and therefore for Kathy to enforce that promise —until after the statutory period of repose had run.

    VOTE: 4-3.

    DALLET (majority opinion), joined by A.W. BRADLEY, ROGGENSACK, and KAROFSKY.

    ZIEGLER (dissenting opinion), joined by R. BRADLEY and HAGEDORN.

    R. BRADLEY (dissenting opinion).

    27. Cheyne Monroe v. Chad Chase, 2021 WI 66 (June 22, 2021)

    AREA: Torts – Malicious Prosecution

    HOLDINGS: 1) A withdrawal of a prior proceeding may satisfy the favorable-termination element of a malicious-prosecution action. 2) We also adopt the approach of the Restatement (Second) of Torts § 674 cmt. j (1977), which is consistent with our cases and focuses on the circumstances of the termination to determine whether it was favorable.

    VOTE: 7-0.

    KAROFSKY (unanimous opinion).

    28. St. Augustine School v. Carolyn Stanford Taylor, 2021 WI 70 (July 2, 2021)

    AREA: Transportation Benefits – Private Schools Affiliated With Same Religious Denomination

    HOLDINGS: In determining whether schools are “affiliated with the same religious denomination” pursuant to Wis. Stat. § 121.51, which deals with transportation benefits, the Superintendent of Public Instruction is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings.

    VOTE: 5-2.

    A.W. BRADLEY (majority opinion), joined by DALLET, HAGEDORN, and KAROFSKY.

    ROGGENSACK (concurring opinion).

    HAGEDORN (concurring opinion).

    R. BRADLEY (dissenting opinion), joined by ZIEGLER.

    29. Clean Wisconsin, Inc. v. DNR, 2021 WI 71 (July 8, 2021)

    AREA: Environmental Law – Authority of Department of Natural Resources – Impact of Wis. Stat. § 227.10(2m)

    HOLDINGS: The Wisconsin Department of Natural Resources had the explicit authority to impose animal unit maximum and off-site groundwater conditions on respondent’s Wisconsin Pollutant Discharge Elimination System permit.

    VOTE: 4-2.

    KAROFSKY (majority opinion), joined by ZIEGLER, A.W. BRADLEY, and DALLET.

    DALLET (concurring opinion), joined by A.W. BRADLEY and KAROFSKY.

    ROGGENSACK (dissenting opinion), joined by R. BRADLEY.

    R. BRADLEY (dissenting opinion).

    HAGGEDORN did not participate.

    30. Clean Wisconsin, Inc. v. DNR, 2021 WI 72 (July 8, 2021)

    AREA: Environmental Law – Authority of Department of Natural Resources – Impact of Wis. Stat. § 227.10(2m)

    HOLDINGS: The Wisconsin Department of Natural Resources erroneously interpreted the law when it concluded that it had no authority to consider the environmental effects of the eight wells at issue in this case when evaluating applications to operate those wells.

    VOTE: 4-2.

    DALLET (majority opinion), joined by ZIEGLER, A.W. BRADLEY, and KAROFSKY.

    R. BRADLEY (dissenting opinion), joined by ROGGENSACK.

    HAGGEDORN did not participate.

    Criminal Case Decisions, 2020-21

    1. State v. Kevin L. Nash, 2020 WI 85 (Nov. 19, 2020)

    AREA OF LAW: Alford Pleas

    HOLDING: The circuit court record established strong proof of the defendant’s guilt that overcame the innocence maintained by the defendant’s Alford plea.

    VOTE: 7-0.

    ZIEGLER (majority opinion) for a unanimous Court.

    R. BRADLEY (concurring opinion)

    KAROFSKY (concurring opinion), joined by A.W. BRADLEY and DALLET.

    2. State v. Jamie Lane Stephenson, 2020 WI 92 (Dec. 18, 2020)

    AREA OF LAW: Expert Testimony – Standard of Review – Sufficient Evidence

    HOLDING: In a Wis. Stat. chapter 980 commitment proceeding, expert testimony is not necessary to prove a person’s future dangerousness, the standard of review is the “sufficiency-of-the-evidence” test, and adequate evidence supported the factual findings in this case.

    VOTE: 5-2.

    R. BRADLEY (majority opinion), joined by ROGGENSACK, ZIEGLER, HAGEDORN, and KAROFSKY

    A.W. BRADLEY, J (dissenting opinion), joined by DALLET

    3. State v. George E. Savage, 2020 WI 93 (Dec. 23, 2020)

    AREA OF LAW: Sex Offenders – Registration – Homelessness

    HOLDING: Homelessness is not a defense to a failure to comply with the sex offender registry requirements.

    VOTE: 7-0.

    ZIEGLER (unanimous opinion).

    4. State v. Leevan Roundtree, 2021 WI 1 (Jan. 7, 2021)

    AREA OF LAW: Possession of Firearm by Felon – “As Applied” Constitutional Challenge to Wis. Stat. section 941.29(2) (2013-14)

    HOLDING: The statute prohibiting felons from possessing firearms was not unconstitutionally applied to the defendant.

    VOTE: 5-2.

    A.W. BRADLEY (majority opinion), joined by ROGGENSACK, C.J., ZIEGLER, DALLET, and KAROFSKY

    DALLET (concurring opinion), JOINED BY A.W BRADLEY and KAROFSKY

    R. BRADLEY (dissenting opinion)

    HAGEDORN (dissenting opinion)

    5. State v. Angel Mercado, 2021 WI 2 (Jan. 20, 2021)

    AREA OF LAW: Sex Assault – Child Witnesses – Recorded Statements – Wis. Stat. Section 908.08

    HOLDING: The defendant forfeited several grounds of objection to the use of a prerecorded statement by a child victim, and the statement itself was admissible under Wis. Stat. section 908.08(7) and the residual-hearsay exception, Wis. Stat. section 908.03(24).

    VOTE: 7-0.

    ROGGENSACK (unanimous opinion)

    6. State v. Brian L. Halverson, 2021 WI 7 (Jan. 29, 2021)

    AREA OF LAW: Miranda– “Custody” – Incarceration

    HOLDING: When the defendant, who was in jail, spoke on the telephone with a law enforcement officer in another jurisdiction, he was not in “custody” for Miranda purposes and thus no Miranda waiver was necessary.

    VOTE: 5-2.

    HAGEDORN (majority opinion) for a unanimous Court.

    R. BRADLEY (concurring opinion), joined by ZIEGLER

    DALLET (concurring opinion), joined by A.W. BRADLEY and KAROFSKY.

    7. State v. Alfonso C. Loayza, 2021 WI 11 (Feb. 11, 2021)

    AREA OF LAW: OWI – Proof of Prior Out-of-state OWI Convictions

    HOLDING: The state proved, by a preponderance of the evidence, a prior California conviction for operating while intoxicated (OWI).

    VOTE: 7-0.

    A.W. BRADLEY (unanimous opinion).

    8. State v. Decarlos K. Chambers, 2021 WI 13 (Feb. 23, 2021)

    AREA OF LAW: Criminal Trials – Defendant’s Objective of Asserting Innocence – McCoy Claim That Defense Counsel Conceded Defendant’s Guilt

    HOLDING: Defense counsel did not concede the defendant’s guilt during closing arguments and continually advocated the defendant’s position of absolute innocence.

    VOTE: 7-0.

    ZIEGLER (unanimous opinion).

    9. State v. Anthony James Jendusa, 2021 WI 24 (March 10, 2021)

    AREA OF LAW: Interlocutory Appeals – Discovery – “Raw Data”

    HOLDING: The court of appeals properly exercised its discretion in denying an interlocutory appeal; nevertheless, on the merits, the Wisconsin Department of Corrections (DOC) database at issue was discoverable under the applicable statute.

    VOTE: 4-3.

    DALLET (majority opinion), joined by A.W. BRADLEY, HAGEDORN, and KAROFSKY.

    ZIEGLER (dissenting opinion), joined by ROGGENSACK and R. BRADLEY

    10. State v. Mark D. Jensen, 2021 WI 27 (March 18, 2021)

    AREA OF LAW: Confrontation – Hearsay – Law of the Case

    HOLDING: In the retrial of this murder case, the circuit court is bound by the earlier decision in State v. Jensen (2007) regarding the use of testimonial hearsay.

    VOTE: 7-0.

    DALLET (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, R. BRADLEY, and HAGEDORN. ZIEGLER and KAROFSKY joined except for ¶35.

    KAROFSKY (concurring opinion), joined by ZIEGLER.

    11. State v. Mitchell L. Christen, 2021 WI 39 (Jan. 21, 2021)

    AREA OF LAW: Second Amendment – Armed While Intoxicated – Self-defense

    HOLDING: The defendant was properly convicted of going armed with a firearm while intoxicated.

    VOTE: 6-1.

    ZIEGLER (majority opinion), joined by A.W. BRADLEY, ROGGENSACK, DALLET, and KAROFSKY.

    HAGEDORN (concurring opinion).

    R. BRADLEY (dissenting opinion).

    12. State v. Tavodess Matthews, 2021 WI 42 (May 14, 2021)

    AREA OF LAW: Judicial Substitution – Wis. Stat. § 801.58(1) – Timeliness of Request for Substitution

    HOLDING: The respondent’s request for judicial substitution was timely filed.

    VOTE: 7-0.

    DALLET (unanimous opinion).

    13. State v. James Timothy Genous, 2021 WI 50 (June 4, 2021)

    AREA OF LAW: Fourth Amendment – Investigative Stops

    HOLDING: Police officers had sufficient reasonable suspicion to justify a traffic stop of the defendant’s vehicle and the seizure of an unlawful weapon.

    VOTE: 4-3.

    HAGEDORN (majority opinion), joined by ZIEGLER, ROGGENSACK, and R. BRADLEY.

    DALLET (dissenting opinion), A.W. BRADLEY and KAROFSKY.

    14. State v. Heather Jan VanBeek, 2021 WI 51 (June 4, 2021)

    AREA OF LAW: Seizures of the Person – Retention of Driver’s License – Reasonable Suspicion

    HOLDING: The bottom line of this divided opinion is a reversal of the circuit court’s denial of the defendant’s suppression motion. The various matters as to which there was majority agreement of the justices are summarized in the text that follows.

    VOTE: 4-3.

    ROGGENSACK (majority opinion) with respect to ¶¶22-35 and ¶¶46-65, joined by A.W. BRADLEY, DALLET, and KAROFSKY, and an opinion with respect to ¶¶1-21, ¶¶36-45, and ¶66.

    DALLET (concurring opinion), joined by BRADLEY and KAROFSKY.

    ZIEGLER (dissenting opinion), joined by R. BRADLEY and HAGEDORN.

    15. State v. Jordan Alexander Lickes, 2021 WI 60 (June 15, 2021)

    AREA OF LAW: Expungement – Violations of Conditions of Probation Imposed by Department of Corrections

    HOLDING: The circuit court erred in expunging the defendant’s convictions because the defendant violated the probation conditions that the Wisconsin Department of Corrections (DOC) imposed.

    VOTE: 5-2.

    R. BRADLEY (majority opinion), joined by ZIEGLER, ROGGENSACK, HAGEDORN, and KAROFSKY.

    A.W. BRADLEY (dissenting opinion), joined by DALLET.

    16. State v. Jacob Richard Beyer, 2021 WI 59 (June 15, 2021)

    AREA OF LAW: “Stipulated Trials” – Guilty Plea Waiver Rule

    HOLDING: “Stipulated trials” that are based wholly on stipulated facts and a stipulated finding of guilt are not permissible in Wisconsin.

    VOTE: 7-0.

    ROGGENSACK (majority opinion), joined by ZIEGLER, A.W. BRADLEY, R. BRADLEY, DALLET, and KAROFSKY, and in which HAGEDORN joined with respect to Part I and Parts II.A., C., and D.

    17. State v. Adam W. Vice, 2021 WI 63 (June 16, 2021)

    AREA OF LAW: Polygraph Exams – Post-test Interrogation – Voluntariness

    HOLDING: An individual’s statements made during a police interrogation after a “failed” polygraph exam were not barred by the inadmissibility of the polygraph test itself; the defendant’s statements were voluntary for purposes of the Fifth Amendment.

    VOTE: 6-0.

    KAROFSKY (majority opinion), joined by ZIEGLER, ROGGENSACK, R. BRADLEY, and DALLET, and in which HAGEDORN joined except for ¶25 and footnote 14.

    HAGEDORN (concurring opinion).

    A.W. BRADLEY withdrew from participation.

    18. State v. Alan M. Johnson, 2021 WI 61 (June 16, 2021)

    AREA OF LAW: Jury Instructions – Other Acts Evidence

    HOLDING: The circuit court erred in failing to instruct the jury on perfect self-defense and second-degree reckless homicide but properly exercised its discretion in precluding Johnson from testifying about what he found on the homicide victim’s computer.

    VOTE: 4-3.

    HAGEDORN (majority opinion), joined by A.W. BRADLEY, R. BRADLEY, and DALLET.

    ZIEGLER (dissenting opinion), joined by ROGGENSACK, and in which KAROFSKY joined ¶¶1-3, 5-23, and 30- 48.

    19. State v. Dawn M. Prado, 2021 WI 64 (June 18, 2021)

    AREA OF LAW: Fourth Amendment – OWI Law – Blood Draw

    HOLDING: Five-justice majority held that the incapacitated driver provision in Wisconsin’s implied consent law is unconstitutional but a “good faith exception” to the warrant requirement justified the blood draw.

    VOTE: 7-0.

    ANN WALSH BRADLEY (majority opinion), joined by R. BRADLEY, DALLET, HAGEDORN, and KAROFSKY.

    ROGGENSACK (concurring opinion), joined by ZIEGLER.

    20. State v. Anthony M. Schmidt, 2021 WI 65 (June 18, 2021)

    AREA OF LAW: Child Pornography Surcharge – Nonpunitive Sanction – Application to Read-in Offenses

    HOLDINGS: 1) The child pornography surcharge is a collateral consequence of conviction, and the judge need not inform the defendant about the surcharge during a guilty-plea colloquy. 2) The circuit court correctly imposed the child pornography surcharge for images associated with charges that were dismissed but read in for purposes of sentencing.

    VOTE: 4-3.

    ZIEGLER (majority opinion), joined by ROGGENSACK, R. BRADLEY, and KAROFSKY, and in which A.W. BRADLEY, DALLET, and HAGEDORN joined with respect to Parts I, II, and III.A.

    ROGGENSACK (concurring opinion), joined by R. BRADLEY, J.

    HAGEDORN (opinion concurring in part, and dissenting in part), joined by A.W. BRADLEY and DALLET.

    21. State v. George Steven Burch, 2021 WI 68 (June 29, 2021)

    AREA OF LAW: Search and Seizure – Cell Phone Data – Consent – Exclusionary Rule – “Fitbit” Authentication

    HOLDINGS: 1) In a situation in which the defendant’s cell phone data was obtained by one law enforcement agency from another, any “constitutional defect” in the transfer did not warrant exclusion of the data. 2) The circuit court properly admitted information from a “Fitbit” even though it was unaccompanied by expert testimony.

    VOTE: 4-3.

    HAGEDORN (majority opinion), ZIEGLER, ROGGENSACK, and R. BRADLEY, and in which DALLET and KAROFSKY joined with respect to Parts I. and II.B.

    R. BRADLEY (concurring opinion).

    DALLET (opinion concurring in part and dissenting in part), joined by KAROFSKY, and in which A.W. BRADLEY joined except for footnote 1.

    A.W. BRADLEY (dissenting opinion).

    Endnotes

    1 Most holdings summarized by Marquette University law professors Daniel D. Blinka and Thomas J. Hammer and originally published in the Supreme Court Digest of Wisconsin Lawyer.™




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