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  • September 07, 2022

    Supreme Court 2021-22 Term: More Than Half of Decisions Were 4-3

    Decisions on legislative maps, the authority to adopt pandemic control measures, and public records were among the cases decided this term by a 4-3 margin. This article includes insights from a legal historian, as well as a civil litigator and a former public defender, and lists the holding and vote in each case.

    Jeff M. Brown

    justice mural in Wisconsin state capitol rotunda

    Sept. 7, 2022 – The Wisconsin Supreme Court opens the 2022-2023 term this week. As the new term starts, we look back at the 2021-2022 term and ask a legal historian, as well as a civil litigator and a former public defender for their insights.

    For the third term in a row, the court decided cases challenging measures adopted by state and local government executives to combat the COVID-19 pandemic.

    It also considered several election-related challenges, issuing three decisions on redrawn legislative maps and one on the legality of ballot drop boxes.

    Number of 4-3 Decisions Sets New Record

    The court issued 52 substantive decisions this past term (not including per curiam decisions and disciplinary decisions), one more than last term. Thirty-seven decisions came in civil cases and 15 came in criminal cases.

    More than half of the decisions, 28 (54%) were 4-3 decisions – a big jump from last term, when 19 of 51 decisions (37%) were 4-3 decisions.

    Marquette University History Professor Alan Ball, who compiled the statistics used in this article, said that’s the highest percentage of 4-3 decisions in the 65 years of supreme court decisions that he has researched.

    “It seems unlikely that changing our approach will result in fewer close decisions,” said Susan Tyndall, a civil litigator at Habush Habush & Rottier S.C. in Waukesha.

    “As SCOWstats demonstrated, there are two blocs of judges which vote with each other in nearly all cases. However, studying the decisions, particularly the individual justices’ writings on issues similar to those litigators are bringing before the court, should help litigators develop arguments that appeal to a majority of the court.

    Vote Split: Wisconsin Supreme Court Decisions 2021-22 

    Hagedorn Swing Justice Again

    As was the case last term, Justice Brian Hagedorn proved to be the swing vote in the majority of the 4-3 decisions.

    In 12 decisions, Hagedorn joined with the following bloc – Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Bradley – to make up the majority.

    In another 12 decisions, Hagedorn joined with a different bloc – Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky – to make up the majority.

    “It’s pretty much his court on any really contentious case,” Ball said of Hagedorn. “By default, he’s the one who decides those cases.”

    “Pitching arguments to Justice Hagedorn may be a successful strategy in some cases, but it will depend on the issue before the court,” Tyndall said.

    “For example, in some insurance coverage cases, the court delivered unanimous decisions. Providing a strong and well-reasoned argument relying primarily on Wisconsin authority may be a stronger strategy in civil cases, which seem to result in fewer 4-3 decisions.”

    The remaining four 4-3 decisions were split evenly between the following two majorities: Justice A.W. Bradley, Justice R.G. Bradley, Justice Dallet, and Justice Karofsky; and Justice Roggensack, Justice Ziegler, Justice R.G. Bradley, and Justice Karofsky.

    “It shows how important Karofsky’s election was,” Ball said. “Suddenly, Hagedorn became much, much more important. It also suggests how extraordinarily important the election in 2023 is going to be, when Justice Roggensack retires.”

    Bloc Alignment

    Several pairs of justices anchored each bloc by consistently voting with each other.

    For instance, both Chief Justice Ziegler and Justice Roggensack and Ziegler and Justice R.G. Bradley voted together in 50 out 52 cases (96%), while Justice Rebecca Dallet and Justice A.W. Bradley voted together in 49 out of 52 cases (94%).

    For the cases that were decided by other than a unanimous vote, both Chief Justice Ziegler and Roggensack and Ziegler and Bradley voted together in 33 out of 35 cases (94%) and Dallet and A.W. Bradley voted together in 32 out of 35 cases (91%).

    “As I mentioned earlier, SCOWstats demonstrates that there are two three-justice blocs which vote together in nearly every case,” Tyndall said. “Thus, it is hard to single out one justice as more ‘conservative’ than the rest.

    “Based on these statistics, Justice Rebecca Bradley appears to be the most conservative justice this year, her opinions and dissents tracking conservative lines in all of the cases that I reviewed.”

    Drop in 5-2 and 6-1 Decisions

    As was the case last year, the court issued more 4-3 decisions than it did unanimous decisions. The court’s 17 unanimous decisions made up 33% of the whole; 11 came in civil cases and six came in criminal cases.

    “The unanimous percentage stayed about the same,” Ball said. “What was dramatically different – what almost collapsed – were the 5-2 and 6-1 decisions.”

    Of the 52 decisions, four (8%) came by a vote of 5-2 and three (6%) came by a vote of 6-1.

    Ball attributed the decline in 5-2 and 6-1 decision to the frequent splits between the two three-justice blocks.

    Dissents and Concurrences

    Justice Dallet penned the most dissents last term, with eight. Justice A.W. Bradley wrote seven, Justice Roggensack and R.G. Bradley each wrote six, Chief Justice Ziegler wrote five, and Justice Karofsky wrote four.

    Justice Hagedorn wrote only two dissents but wrote 12 concurrences, two-thirds of the number (18) written by the other six justices combined. The justice with the next most concurrences was Justice R.G. Bradley, with five.

    Elections Law Decisions

    Perhaps the most high profile cases were decided in the area of election law this term. One of those cases, Johnson v. Wisconsin Elections Commission, involved a challenge to existing legislative redistricting maps, with three court three decisions.

    The court issued the first decision in November 2021. In the decision, the court ruled (4-3) that it would redraw legislative districts only where necessary to fix malapportionment between districts caused by population changes reflected in the 2020 census. Justice R.G. Bradley wrote the majority opinion, joined in full by Chief Justice Ziegler and Justice Roggensack and in part by Justice Hagedorn.

    In the second decision, issued in March 2022, the court adopted (4-3) legislative maps drawn by Gov. Tony Evers, a Democrat. Justice Brian Hagedorn wrote the majority opinion, joined by Justice A.W. Bradley, Justice Dallet, and Justice Karofsky.

    Several Republican legislators immediately filed an emergency appeal with the U.S. Supreme Court. Three weeks later, the U.S. Supreme Court reversed the Wisconsin Supreme Court in a per curiam decision issued on the emergency docket and remanded the case.

    Upon remand, the Wisconsin Supreme Court adopted (4-3) legislative maps drawn by the legislature – maps that Evers had vetoed. Chief Justice Ziegler wrote the majority opinion, joined by Justice Roggensack, Justice R.G. Bradley, and Justice Hagedorn.

    Professor Joseph Ranney, a legal historian at Marquette University Law School, said it’s unlikely that Wisconsin courts will apply many of the standards laid down in the Johnson cases to future redistricting disputes.

    “The Johnson majority felt the ‘least change’ approach was best suited to the unique circumstances presented by the 2020 redistricting process, but the court may conclude that other approaches best fit constitutional requirements in future redistricting disputes,” Ranney said.

    Ranney also said that the time pressure confronting the supreme court in Johnson forced the court to forego a thorough analysis of whether the maps drawn by either the governor or the legislature violated the Voting Rights Act (VRA).

    “In future redistricting disputes, the court may have more time for deliberation and more guidance from the U.S. Supreme Court on application of the VRA. For example, in the coming years, we will likely hear from the U.S. Supreme Court on the constitutionality of various aspects of the VRA and on whether state legislatures have unlimited power to draw Congressional districts, immune from judicial review,” Ranney said.

    “Those decisions may greatly change the legal landscape of redistricting law during the next decade.”

    In Teigen v. Wisconsin Elections Commission, the supreme court struck down guidance from the Wisconsin Elections Commission that allowed local elections officials to set up ballot drop boxes. Justice R.G. Bradley wrote the majority opinion, joined by Chief Justice Ziegler, Justice Roggensack, and Justice Hagedorn.

    “Election-related disputes continue to dominate the news, so I suspect we will continue to see election related decisions, though one can hope that the volume will drop,” Tyndall said.

    COVID-19 Authority

    The court issued three decisions resolving pandemic-related lawsuits.

    In WMC v. Evers, the court held (4-3) that a lawsuit that sought to block the release of a list of Wisconsin businesses that had at least two employees test positive for COVID-19 was barred by the state public records law. Justice Dallet wrote the majority opinion, joined by Justice A.W. Bradley, Justice Hagedorn, and Justice Karofsky.

    By a 4-3 vote, the court upheld COVID-19 restrictions issued by the Dane County health officer in Becker v. Dane County. Justice Jill Karofsky wrote the majority opinion, joined by Justice A.W. Bradley, Justice Dallet and Justice Hagedorn.

    In Colectivo Coffee Roasters, Inc. v. Society Insurance, the court unanimously held that an insurance policy that covered physical damage to property and losses caused by a suspension of operations did not cover losses caused when a coffee shop closed because of the pandemic. Justice Dallet wrote the majority opinion.

    Majority Alignments in 4-3 Cases

    State Agency Cases

    Three cases challenging state agency actions also resulted in 4-3 decisions.

    In County of Dane v. PSC, the court held that a party that issued subpoenas to a former member of the Public Service Commission failed to show specific and objective bias during an agency adjudication. Justice Roggensack wrote the majority opinion, joined by Chief Justice Ziegler, Justice R.G. Bradley, and Justice Hagedorn.

    The decision in Friends of the Black River Forest v. DNR saw the court refine an important element of the standing analysis that governs lawsuits challenging state agency actions. The court held that the “zone-of-interests” inquiry historically conducted by Wisconsin courts to help decide whether a party has standing under Wis. Stat. ch. 227 has no statutory basis.

    Justice R.G. Bradley wrote the majority opinion, joined by Chief Justice Ziegler, Justice Roggensack, and Justice Hagedorn.

    In State ex relKaul v. Prehn, the court ruled that a member of the Board of Natural Resources whose term had expired was entitled to hold over as a lawful member of the board. Chief Justice Ziegler wrote the majority opinion, joined by Justice Roggensack, Justice R.G. Bradley, and Justice Hagedorn.

    Public Records, Anonymous Plaintiff Cases

    In two other cases decided by a 4-3 margin, the court issued decisions with significant ramifications for government transparency.

    In Friends of Frame Park, U.A. v. City of Waukesha, the court held that to recover attorney fees under Wisconsin’s public records law, a records requester must obtain a judicially sanctioned change in the relationship between the requester and the custodian of the records.

    The custodian provided a requested record to the requester after the requester filed a mandamus action but before the court had ruled on the filing. The supreme court ruled that, as used in the public records law, “prevails” is a term of art that means to prevail in a lawsuit as a result of court action.

    Justice Hagedorn wrote the majority, joined by Chief Justice Ziegler, Justice Roggensack, and Justice R.G. Bradley.

    In John Doe No.1 v. Madison Metropolitan School District, the court held that the circuit court did not err by requiring parents who sued a school district over its transgender policy to disclose their identities to the school district’s lawyers.

    Justice Hagedorn wrote the majority, joined by Justice A.W. Bradley, Justice Dallet, and Justice Karofsky.

    “These cases do highlight how significant Justice Hagedorn’s position can be on the cases that the court reviews and demonstrate that, especially in cases involving litigation against a governmental entity, attempting to persuade Justice Hagedorn may be particularly important,” Tyndall said.

    “However, appellate litigators should not focus so narrowly that they fail to develop well-framed and supported arguments because in every case, they must persuade the majority of justices.”

    Fees for Medical Records

    The supreme court also addressed an issue that has spurred a spate of appellate litigation over the last decade: how much companies can charge patients for copies of their medical records.

    In Townsend v. Chart Swap, LLC, the court unanimously held that woman who sued a medical records software company failed to state a claim, because the company was not a health care provider under the statute that sets limits on medical records fees.

    “While at first blush the Townsend case appears to conflict with earlier decisions regarding medical records, its consideration was limited by the pleadings in that case,” Tyndall said.

    “Our firm has an appeal on a similar medical records issue before the Wisconsin Supreme Court in Banuelos v. University of Wisconsin Hospitals and Clinics Authority, which is set for oral argument on November 1. Thus, litigators should expect further development in this area of law this term.”

    Criminal Cases

    Fifteen of the 52 decisions issued by the supreme court last term came in criminal cases, with six of the 15 decided by a 4-3 vote.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Not including the decisions that were decided unanimously, the decisions in the criminal cases featured six different majorities, including four different four-justice majorities.

    “The different alignment of the justices in criminal cases highlights the importance of advancing alternative arguments when possible,” said Mike Tobin, formerly a deputy state public defender.

    “Because of the plethora of cases with multiple opinions, even in cases that are ostensibly 7-0 decisions, attorneys should consider the possibility that they may need two or more viable legal theories to persuade a majority of the justices.

    “Although tailoring arguments to the most-likely swing justice remains critically important, attorneys cannot safely assume that there is a reliable coalition that will join a single opinion.”

    Unlike last year, only one of the 4-3 decisions in criminal cases involved the Fourth Amendment.

    In that case, State v. Forrett, the court held that the state’s OWI penalty scheme ran afoul of U.S. Supreme Court precedent that prohibits imposing a criminal penalty for a driver’s refusal to consent to a blood draw, because such a refusal is protected by the Fourth Amendment.

    Justice Rebecca Dallet wrote the majority opinion, joined by Justice A.W. Bradley, Justice R.G. Bradley, and Justice Jill Karofsky.

    Of the other three Fourth Amendment decisions handed down this term, one was decided unanimously and the other two were decided by a 6-1 margin, with Justice A.W. Bradley dissenting in both.

    “Nimmer is seemingly the most significant Fourth Amendment case decided this term,” Tobin said. “Although all the justices agreed that the stop and frisk of the defendant was proper, the three separate opinions showed different perspectives that could affect future cases.

    “Most importantly, all three opinions discuss whether a lesser quantum of suspicious circumstances can justify a stop when police are investigating a particularly serious crime. At least according to the other two opinions, the lead opinion appears to favor this ‘sliding-scale’ approach, which the Seventh Circuit has adopted.”

    Tobin said the search-and-seizure cases decided this term point to potentially winning arguments in future cases.

    “Depending on the type of case, either party may emphasize the relative severity (or lack thereof) as relevant to whether the police had reasonable suspicion for a stop and frisk,” Tobin said. “Also, absent suspicious gestures or police knowledge that a suspect was prohibited from carrying a firearm, the weight afforded to suspected firearm possession is likely to be a point of contention.

    “The three justices who strongly dissented in Dodson regarding use of gun ownership as a sentencing factor may similarly disapprove of police relying on gun possession as a suspicious circumstance. A defendant could conceivably succeed in this type of Fourth Amendment case if another justice agreed that the totality of circumstances did not equate to reasonable suspicion.”

    In one of the 4-3 criminal decisions, the supreme court interpreted a 2007 law that provides victims of human trafficking with an affirmative defense for any offense committed as a direct result of a trafficking offense.

    In State v. Kizer, the court held that the law provided a complete defense to first-degree intentional homicide for a woman who shot and killed the man who trafficked her. Justice Rebecca Dallet wrote the majority opinion, joined by Justice A.W. Bradley, Justice R.G. Bradley, and Justice Jill Karofsky.

    The Forrett and Kizer decisions were two of only four in which Justice Hagedorn did not vote with the majority.

    “Despite the narrow holding regarding the specific statutory subsection, the Kizer opinions may offer guidance for future cases requiring statutory construction,” Tobin said. “For example, the majority placed great emphasis on the lack of specific statutory language limiting the effect of the defense to lowering the degree of homicide.

    “The majority contrasted this lack of limiting language with other provisions that specify a reduction of the charge rather than a complete defense. Conversely, the dissent emphasized the lack of any clear statutory language to abrogate the common-law rule regarding coercion as a mitigation defense.

    Firearms Ownership

    As it did last term, the supreme court decided two cases involving the Second Amendment right to bear arms.

    In one case, State v. Dodson, the court held (4-3) that the defendant failed to show that the sentencing judge’s discussion of the defendant’s gun ownership improperly predisposed the judge against all gun owners.

    Justice Karofsky wrote the majority, joined by Justice A.W. Bradley, Justice, and Justice Hagedorn.

    In the other gun-rights case, State ex rel Doubek v. Kaul, the court held (7-0) that the state Department of Justice (DOJ) erred by revoking a concealed weapons permit (CCW) issued to a man who was convicted of disorderly conduct after threatening his wife.

    The case turned upon the interplay between the state statute that defines disorderly conduct and a federal statute that prohibits DOJ from issuing a CCW to person convicted of a misdemeanor crime of domestic violence.

    In her concurrence, Justice Karofsky wrote that while the majority opinion was legally correct, the “result is as nonsensical as it is dangerous.”

    Tobin said the holdings in Dodson and State ex rel Doubek v. Kaul suggest that defense lawyers should raise Second Amendment issues whenever possible.

    “Although the narrow Dodson majority did not find that the sentencing court improperly relied upon gun ownership, their opinion assumed that such reliance would have been improper. In a different context, such as a suppression motion challenging a search or arrest, the defense may have a persuasive argument that information about gun possession was irrelevant. “

    According to Tobin, the two decisions hold lessons for police and prosecutors too.

    “In documenting reasons for a search (such as in a warrant application), police and prosecutors are well advised to present additional information,” Tobin said. “Factual issues may arise regarding what police did or did not know about the suspect’s criminal record and/or license to carry a concealed firearm.

    The State ex rel Doubek v. Kaul decision, Tobin said, entails specific implications for domestic violence cases.

    “Doubek is important for cases alleging domestic violence: a conviction for disorderly conduct will not result in a ban on firearm possession, even if the alleged facts could have met the federal criteria for such disqualification.

    “A conviction for misdemeanor battery of a domestic partner meets the federal criteria, so the difference between the consequences often provides a strong incentive for the defense to seek a plea negotiation for amendment to disorderly conduct.”

    Civil Case Decisions, 2021-20221

    1. Waukesha County v. E.J.W., 2021 WI 85 (Nov. 23, 2021)

    Subject area: Civil commitment

    Holding: When a final mental health commitment hearing is rescheduled, Wis. Stat. section 51.20(11)(a) allows a jury demand to be filed up until 48 hours before the rescheduled final hearing.

    Vote: 4-3

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

    ZIEGLER (dissent), joined by ROGGENSACK and R.G. BRADLEY

    2. Andrea Townsend v. ChartSwap, LLC, 2021 WI 86 (Nov. 26, 2021)

    Subject area: Health law

    Holding: An entity that provided copies of health-care records was not subject to the statutory fee restrictions that regulate health-care providers.

    Vote: 7-0

    ROGGENSACK (majority opinion), joined by ZIEGLER, R.G. BRALDEY, and HAGEDORN in full and A.W. BRADLEY, DALLET, and KAROFSKY, except for ¶¶17 and 23-26

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

    3. Billie Johnson v. Wisconsin Elections Commission, 2021 WI 87 (Nov. 30, 2021)

    Subject area: Redistricting

    Holding: The Wisconsin Supreme Court will use a least-change approach to remedying any constitutional or statutory infirmities in existing maps; it will not consider the partisan makeup of districts.

    Vote: 4-3

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

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

    4.City of Waukesha v. City of Waukesha Board of Review, 2021 WI 89 (Dec. 21, 2021)

    Subject area: Municipal law

    Holding: A municipality cannot seek certiorari review of a tax assessment determination by the municipality’s own board of review.

    Vote: 7-0

    A.W. BRADLEY (unanimous opinion)

    5. Danelle Duncan v. Asset Recovery Specialists, Inc., 2022 WI 1 (Jan. 6, 2022)

    Subject area: Commercial law

    Holding: In a non-judicial repossession case, the term “dwelling” includes an apartment building’s parking garage.

    Vote: 4-3

    DALLET (majority opinion), with respect to all parts except ¶¶ 29, 31-34 joined by A.W. BRADLEY, HAGEDORN, and KAROFSKY; opinion with respect to ¶¶ 29, 31-34, joined by A.W. BRADLEY and HAGEDORN.

    KAROFSKY (concurring opinion)

    ROGGENSACK (dissent), joined by ZIEGLER and R.G. BRADLEY

    6. Daniel J. Hennessy, Jr. v. Wells Fargo Bank, N.A., 2022 WI 2 (Jan. 14, 2022)

    Subject area: Civil procedure

    Holding: The circuit court properly exercised its discretion when upholding a contract based on a judgment by a Mexican court.

    Vote: 7-0

    ZIEGLER (majority opinion)

    DALLET (concurring opinion), joined by HAGEDORN and KAROFSKY

    7. Friendly Village Nursing and Rehab, LLC v. State of Wisconsin Department of Workforce Development, 2022 WI 4 (Jan. 26, 2022)

    Subject area: Unemployment insurance

    Holding: 1) “Interest-of-justice” factors do not apply in the analysis of “excusable neglect” under Wis. Stat. section 108.16(8)(b)4. 2) There was no basis in the record on which to excuse neglect on the part of the purchaser of a business in filing an application to succeed to the unemployment insurance account of the previous owner after the statutory deadline.

    Vote: 4-3

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

    ROGGENSACK (dissent), joined by ZIEGLER and R.G. BRADLEY

    8. Andrew Waity v. Devin Lemahieu, 2022 WI 6 (Jan. 27, 2022)

    Subject area: Legislature

    Holding: 1) The leadership of the Wisconsin Legislature had authority under Wis. Stat. section 16.74 to enter into contracts for legal services relating to the decennial redistricting process. 2) The circuit court erroneously declined to stay its injunction pending appeal.

    Vote: 4-3

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

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

    9. Elliot Brey v. State Farm Mutual Automobile Insurance Company, 2022 WI 7 (Feb. 15, 2022)

    Subject area: Insurance

    Holding: Statutes permitted an insurer to require that UIM coverage for a car accident only be available to an insured if the insured incurred bodily injury caused by the accident.

    Vote: 7-0

    R.G. BRADLEY (unanimous opinion)

    10. State v. Yakich, 2022 WI 8 (Feb. 16, 2022)

    Subject area: Civil commitment

    Holding: Circuit courts have the discretion to order that multiple NGI commitments run consecutively.

    Vote: 5-2

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

    DALLET (dissent), joined by A.W. BRADLEY

    11. Claudia Bauer v. Wisconsin Energy Corporation, 2022 WI 11 (Feb. 24, 2022)

    Subject area: Property

    Holding: Wisconsin Energy Corp. had a prescriptive right to a gas pipeline that ran under the owner’s property based on permission granted 40 years earlier by the previous owner.

    Vote: 7-0

    KAROFSKY (unanimous opinion)

    12. Loren Imhoff Homebuilder, Inc. v. Lisa Taylor, 2022 WI 12 (March 1, 2022)

    Subject area: Arbitration

    Holding: Two parties did not forfeit their objections to an award by an arbitrator who allegedly slept during the arbitration hearing.

    Vote: 6-0

    ROGGENSACK (unanimous opinion)

    KAROFSKY did not participate

    13. Billie Johnson v. Wisconsin Elections Commission, 2022 WI 14 (March 3, 2022)

    Subject area: Redistricting

    Holding: The supreme court adopted redistricting maps for the congressional and state legislative districts as proposed by Gov. Tony Evers.

    Vote: 4-3

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

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

    ZIEGLER (dissent), joined by ROGGENSACK and R.G. BRADLEY

    ROGGENSACK (dissent), joined by ZIEGLER and R.G. BRADLEY

    R.G. BRADLEY (dissent) joined by ZIEGLER and ROGGENSACK

    14. Brown County v. Brown County Taxpayers Association, 2022 WI 13 (March 4, 2022)

    Subject area: Taxation

    Holding: Brown County’s sales and use tax complies with Wis. Stat. section 77.70.

    Vote: 5-2

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

    R.G. BRADLEY (dissent), joined by ZIEGLER

    15. Cree Inc. v. LIRC, 2022 WI 15 (March 10, 2022)

    Subject area: Employment law

    Holding: A company’s decision not to hire an individual convicted of multiple acts of domestic violence did not violate employment discrimination statutes.

    Vote: 4-3

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

    DALLET (dissent), joined by A.W. BRADLEY and HAGEDORN

    16. State ex rel Nudo Holdings, LLC v. Board of Review for the City of Kenosha, 2022 WI 17 (April 12, 2022)

    Subject area: Taxation

    Holding: Land was properly classified as residential, rather than agricultural, for purposes of setting the property tax.

    Vote: 4-3

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

    ROGGENSACK (dissent), joined by ZIEGLER and R.G. BRADLEY

    17. Sewell v. Racine Unified Sch. Dist. Bd. of Canvassers, 2022 WI 18 (April 12, 2022)

    Subject area: Elections

    Holding: The court of appeals properly affirmed the results of a referendum recount.

    Vote: 7-0

    ROGGENSACK (unanimous)

    18. Billie Johnson v. Wisconsin Elections Commission , 2022 WI 19 (April 15, 2022)

    Subject area: Redistricting

    Holding: Upon remand from the U.S. Supreme Court, the Wisconsin Supreme Court adopted the maps enacted by the Wisconsin Legislature for redrawing state legislative districts.

    Vote: 4-3

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

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

    HAGEDORN (concurring opinion)

    KAROFKSY (dissent), joined by A.W. BRADLEY and DALLET

    19. Andruss v. Divine Savior Healthcare, Inc., 2022 WI (May 6, 2022)

    Subject area: Health law

    Holding: A negligence action against a community-based residential facility (CBRF) was not governed by Wis. Stat. chapter 655.

    Vote: 7-0

    ZIEGLER (unanimous opinion)

    20. State v. Joseph Green, 2022 WI 30 (May 13, 2022)

    Subject area: Competency

    Holding: 1) A defendant who is found to be incompetent in the pretrial setting and who appeals an order for involuntary medication to restore competency is not entitled to an automatic stay of that order pending appeal. 2) The one-year maximum commitment for restoration of competency applicable in this case is not subject to tolling.

    Vote: 4-3

    ROGGENSACK (majority opinion), joined by ZIEGLER, and R.G. BRADLEY, and HAGEDORN (in full) and A.W. BRADLEY, KAROFSKY (with respect to Part II.D.), and DALLET (with respect to Part II.D. and ¶¶ 3 and 53)

    A.W. BRALDEY (concurring in part and dissenting in part), joined by DALLET and KAROFSKY

    21. Doubek v. Kaul, 2022 WI 31 (May 20, 2022)

    Subject area: Gun rights

    Holding: Disorderly conduct is not a misdemeanor crime of domestic violence under a federal law that disqualifies certain individuals from holding permits for concealed carry of weapons.

    Vote: 7-0

    HAGEDORN (unanimous opinion)

    KAROFKSY (concurring opinion)

    22. Colectivo Coffee Roasters, Inc. v. Society Insurance, 2022 WI 36 (June 1, 2022)

    Subject area: Insurance

    Holding: A business’s pandemic-related losses were not covered by its property insurance policy.

    Vote: 7-0

    DALLET (unanimous opinion)

    23. Wisconsin Manufacturers and Commerce v. Evers, 2022 WI 38 (June 7, 2022)

    Subject area: Public records

    Holding: The public records law’s general prohibition on pre-release judicial review of decisions to provide access to public records bars the plaintiffs’ claims.

    Vote: 4-3

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

    ZIEGLER (dissent), joined by ROGGENSACK and R.G. BRADLEY

    24. Sheboygan County v. M.W., 2022 WI 40 (June 10, 2022)

    Subject area: Civil commitment

    Holding: The proper remedy for a circuit court’s failure to specify the grounds for extending a mental health commitment that has since expired is reversal, because the circuit court lacked competency to conduct any further proceedings.

    Vote: 4-3

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

    ZIEGLER (dissent), joined by ROGGENSACK and R.G. BRADLEY

    25. Great Lakes Excavating, Inc. v. Dollar Tree Stores, Inc., 2022 WI 44 (June 22, 2022)

    Subject area: Contract law

    Holding: By crossing out the words “to Date” and writing the word “Partial,” a subcontractor transformed a complete waiver of a construction lien into a partial one.

    Vote: 5-2

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

    DALLET (dissent), joined by A.W. BRADLEY

    26. Container Life Cycle Management , LLC v. DNR, 2022 WI 45 (June 23, 2022)

    Subject area: Administrative law

    Holding: A letter from the DNR informing a company that the agency could not issue the company a permit for existing equipment was not subject to judicial review, because letter did not adversely affect the company’s substantial interests.

    Vote: 5-2

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

    R.G. BRADLEY (dissent), joined by ZIEGLER

    27. Sauk County v. S.A.M., 2022 WI 46 (June 23, 2022)

    Subject area: Civil commitment

    Holding: Because an expired commitment order affected the firearm rights of the person subject to the order and subjected him to potential financial liability, his appeal of the order was not moot.

    Vote: 4-3

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

    ZIEGLER (concurring opinion/dissent), joined by ROGGENSACK and R.G. BRADLEY

    28. State ex rel Kaul v. Prehn, 2022 WI 50 (June 29, 2022)

    Subject area: Legislative

    Holding: A member of the state DNR Board remained a lawful member of the board after his term expired, and the governor had no authority to replace him.

    Vote: 4-3

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

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

    29. Friends of Black River Forest v. DNR, 2022 WI 52 (June 30, 2022)

    Subject area: Civil procedure

    Holding: To have standing under ch. 227, a party must show that an agency’s action has adversely affected an interest which the law either 1) recognizes or 2) seeks to protect or regulate.

    Vote: 4-3

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

    HAGEDORN (concurring opinion)

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

    30. Wisconsin Property Tax Consultants, Inc. v. Wisconsin Department of Revenue, 2022 WI 51 (June 30, 2022)

    Subject area: Administrative law

    Holding: A circuit court erred by deferring to the state Tax Appeals Commission on the question of whether a letter from the state Department of Revenue constituted an unpromulgated rule.

    Vote: 7-0

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

    ZIEGLER (concurring opinion)

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

    31. Backus v. Waukesha County, 2022 WI 55 (July 5, 2022)

    Subject area: Property law

    Holding: Wis. Stat. section 32.09(6g), which entitles a property owner to severance damages, does not apply to a temporary limited easement.

    Vote: 4-3

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

    R.G. BRADLEY (dissent), joined by ZIEGLER and ROGGENSACK

    32. Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57 (July 6, 2022)

    Subject area: Public records

    Holding: In order to recover attorney fees under Wisconsin’s public records law, a records requester “must obtain a judicially sanctioned change” in the relationship between the requester and the custodian of the records by prevailing in a lawsuit.

    Vote: 4-3

    HAGEDORN (majority opinion) joined by ZIEGLER, ROGGENSACK, and R.G. BRADLEY with respect to ¶3; opinion joined by ZIEGLER, and ROGGENSACK with respect to ¶¶13-24, joined by ZIEGLER and ROGGENSACK; opinion with respect to ¶¶1-2, 4-12, 25-38.

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

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

    33. State v. C.G., 2022 WI 60 (July 7, 2022)

    Subject area: Federal constitutional law

    Holding: A state law that prohibits a transgender sex offender from legally changing her name does not violate the First and Eighth Amendments to the U.S. Constitution.

    Vote: 4-3

    R.G. BRADLEY (majority opinion), with respect to all parts except ¶¶6 and 36-46, joined by ZIEGLER, ROGGENSACK, and HAGEDORN; opinion with respect to ¶¶6 and 36-46, joined by ZIEGLER and ROGGENSACK

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

    34. County of Dane v. PSC , 2022 61 WI (July 7, 2022)

    Subject area: Administrative law

    Holding: A circuit court erred by denying a motion to quash two subpoenas of a former member of the Public Service Commission, because the party that issued the subpoenas failed to show specific and objective bias during the commission’s adjudication.

    Vote: 4-3

    ROGGENSACK (majority opinion) with respect to ¶4, joined by ZIEGLER, R.G. BRADLEY, and HAGEDORN; opinion joined by ZIEGLER and R.G. BRADLEY

    HAGEDORN (concurring opinion)

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

    35. John Doe 1 v. Madison Metropolitan School District, 2022 65 WI (July 8, 2022)

    Subject area: Courts and the judiciary

    Holding: A circuit court did not erroneously exercise its discretion by requiring parents who sued a school district over its transgender student policy to disclose their identities to defense counsel.

    Vote: 4-3

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

    ROGGENSACK (dissent), joined by ZIEGLER and R.G. BRADLEY

    36. Becker v. Dane County, 2022 WI 63 (July 8, 2022)

    Subject area: State constitutional law

    Holding: Public health orders issued during the pandemic by Dane County’s health officer complied with state law and the state constitution.

    Vote: 4-3

    KAROFSKY (majority opinion), with respect ¶¶1-28 and 44-45, joined by A.W. BRADLEY, DALLET, and HAGEDORN; opinion with respect to ¶¶29-43, joined by A.W. BRADLEY and DALLET

    HAGEDORN (concurring opinion)

    R.G. BRADLEY (dissent), joined by ZIEGLER and ROGGENSACK

    37. Teigen v. Wisconsin Elections Commission, 2022 WI 64 (July 8, 2022)

    Subject area: Elections law

    Holding: Wisconsin law does not authorize the use of ballot drop boxes; Wisconsin statutes require voters to either mail or personally return ballots to a municipal clerk’s office or a designated alternate site.

    Vote: 4-3

    R.G. BRADLEY (majority opinion), with respect ¶¶4-10, 12-13, 52-63, and 73-85, joined by ZIEGLER, ROGGENSACK, and HAGEDORN; opinion with respect to ¶¶1-3, 11, 14-51, 64-72, 86, n.29, and 87, joined by ZIEGLER and ROGGENSACK

    ROGGENSACK (concurring opinion)

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

    HAGEDORN (concurring opinion)

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

    Criminal Case Decisions, 2021-2022

    1. State v. Lira, 2021 WI 81 (Nov. 18, 2021)

    Subject area: Sentencing

    Holding: The defendant is not entitled to the sentence credit he sought because the time for which he sought credit was not time spent in custody “in connection with the course of conduct for which sentence was imposed.”

    Vote: 7-0

    ZIEGLER (unanimous opinion)

    2. State v. Dodson, 2022 WI 5 (Jan. 26, 2022)

    Subject area: Sentencing, gun rights

    Holding: The defendant failed to show by clear and convincing evidence that the circuit court relied on an improper factor – gun ownership – when sentencing him for a homicide.

    Vote: 4-3

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

    HAGEDORN (concurring opinion)

    R.G. BRADLEY (dissent), joined by ZIEGLER and ROGGENSACK

    3. State v. Van Linn, 2022 WI 16, (March 24, 2022)

    Subject area: Search and seizure

    Holding: Evidence of a hospital’s diagnostic blood draw was admissible in an operating-while-intoxicated case under the independent-source doctrine.

    Vote: 6-1

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

    A.W. BRADLEY (dissent)

    4. State v. Clark, 2022 WI 21 (April 20, 2022)

    Subject area: Right to counsel

    Holding: In the defendant’s collateral attack on prior operating-while-intoxicated (OWI) convictions, which she claimed were obtained in violation of her right to counsel and for which transcripts are no longer available, she retains the burden to demonstrate that the alleged violations of her right to counsel occurred.

    Vote: 4-3

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

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

    5. State v. Ruffin, 2022 WI 34 (May 26, 2022)

    Subject area: Right to counsel

    Holding: The circuit court did not erroneously exercise discretion by denying, without an evidentiary hearing, the defendant’s motion challenging the effectiveness of his trial counsel.

    Vote: 7-0

    A.W. BRADLEY (unanimous opinion)

    6. State v. Forrett, 2022 WI 37 (June 3, 2022)

    Subject area: Search and seizure

    Holding: Wis. Stat. sections 343.307(1) and 346.65(2)(am) are unconstitutional to the extent that they count prior revocations resulting solely from a person’s refusal to submit to a warrantless blood draw as prior offenses for the purpose of increasing the criminal penalty in subsequent operating while intoxicated prosecutions.

    Vote: 4-3

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

    HAGEDORN (dissent), joined by ZIEGLER and ROGGENSACK

    7. State v. Valiant Green, 2022 WI 41 (June 15, 2022)

    Subject area: Search and seizure

    Holding:A search warrant affidavit stated sufficient facts to find probable cause even though it listed the driveway of the driver’s home address as the location of the drunk driving offense, because the facts listed in the affidavit allowed an inference that the drunk driving offense occurred somewhere other than on the driveway of the driver’s home address.

    Vote: 6-1

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

    A.W. BRADLEY (dissent)

    8. State v. Mulhern, 2022 WI 42 (June 21, 2022)

    Subject area: Evidence

    Holding:The admission of testimony by a victim about her lack of sexual activity in the period preceding an alleged sexual assault did not warrant reversing a defendant’s sexual assault conviction, because the term “sexual conduct” as used in the rape shield law includes a lack of sexual conduct.

    Vote: 7-0

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

    ZIEGLER (concurring opinion), joined by R.G BRADLEY

    9. State v. Coughlin, 2022 WI 43 (June 21, 2022)

    Subject area: Criminal procedure

    Holding:A sexual abuse verdict was supported by reasonable jury inferences, even though the state failed to ask victims specifically whether the statutorily-defined sexual contact occurred during each of the time periods charged in the complaint.

    Vote: 5-1

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

    DALLET (dissent)

    KAROFKSY did not participate

    10. State v. Nimmer, 2022 WI 47 (June 23, 2022)

    Subject area: Search and seizure

    Holding:A stop of a man who was the only person seen by police in the area where gun shots had been reported by Shotspotter technology was constitutional.

    Vote: 7-0

    R.G. BRADLEY (majority opinion), joined by ZIEGLER, and ROGGENSACK and HAGEDORN (except for ¶¶ 28, 29 n.12, and 39-58); opinion with respect to ¶¶ 28, 29 n.12, and 39-58, joined by ZIEGLER and ROGGENSACK.

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

    HAGEDORN (concurring opinion)

    11. State v. X.S., 2022 WI 49 (June 29, 2022)

    Subject area: Criminal procedure

    Holding:A circuit court erred by denying a prosecutor’s request to waive a juvenile who allegedly committed a mass shooting into adult court, because that decision was not reasonably supported by the facts and the record.

    Vote: 4-3

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

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

    HAGEDORN (dissent), joined by A.W. BRADLEY and DALLET

    12. State v. Arrington, 2022 WI 53 (July 1, 2022)

    Subject area: Right to counsel

    Holding:Inculpatory recordings made secretly by a defendant’s cellmate and introduced at the defendant’s homicide trial did not violate the defendant’s Sixth Amendment right to counsel, because the defendant’s cellmate had not acted as a government agent in making the recordings

    Vote: 7-0

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

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

    13. State v. Whitaker, 2022 WI 54 (July 5, 2022)

    Subject area: Sentencing

    Holding: A judge’s statement that prison time for an Amish man convicted of sexual assault was necessary to send a message to the Amish community does not entitle the man to a resentencing, because nothing in the record showed that the judge gave the defendant a harsher sentence solely because of his religious beliefs or his association with the Amish community.

    Vote: 7-0

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

    ROGGENSACK (concurring opinion) joined by ZIEGLER

    R.G. BRADLEY (concurring opinion)

    HAGEDORN (concurring opinion)

    14. State v. Spencer, 2022 WI 56 (July 6, 2022)

    Subject area: Right to counsel

    Holding: A judge’s ex parte meeting with a juror who had taken ill did not violate a defendant’s Sixth Amendment right to counsel, because the meeting did not constitute a critical stage of the proceedings.

    Vote: 4-3

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

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

    DALLET (dissent), joined by KAROFSKY

    15. State v. Kizer, 2022 WI 58 (July 6, 2022)

    Subject area: Criminal procedure

    Holding: The affirmative defense available to victims of sex trafficking for crimes committed as a direct result of the trafficking under Wis. Stat. section 939.46(1m) is a complete defense to first-degree intentional homicide.

    Vote: 4-3

    DALLET (majority opinion), joined by A.W. BRADLEY, R.G. BRADLEY, and KAROFSKY (except for ¶¶ 27-29 and n. 9-11); opinion with respect to ¶¶ 27-29 and n.9-11 joined by A.W. BRADLEY and KAROFSKY.

    R.G. BRADLEY (concurring opinion)

    ROGGENSACK (dissent), joined by ZIEGLER and HAGEDORN

    Endnotes

    1 Most of the holdings displayed in the table were summarized by Marquette University Law School Professors Daniel D. Blinka and Thomas J. Hammer, and were originally published in the Supreme Court digest that appears in Wisconsin Lawyer.™


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