Aug. 19, 2015 – The Wisconsin Supreme Court will get busy next month, with the first oral arguments of the administrative 2015-16 term to begin after Labor Day. Before the court’s new term starts, let’s recap what happened in the last one.
First we turn to Alan Ball, a history professor at Marquette University, for some timely statistics on the court’s work, courtesy of Ball’s SCOWstats blog. Ball is undertaking a long-term analysis of Wisconsin’s appellate courts, a project he began in 2011.
As Ball notes, “researchers who examine the court’s work may encounter some findings that they had not anticipated,” notably “the near elimination of 4-3 decisions and a correspondingly large increase in unanimous decisions.”
Only One 4-3 Decision
The Wisconsin Supreme Court issued 53 decisions,1 but just one 4-3 decision, interesting because the court is often viewed as divided along so-called “liberal” and “conservative” lines. The court has not released just one 4-3 decision in the last 20 years, according to Ball.
In the 2013-14 term, the court issued 4-3 decisions in 16-of-61 cases2 (26 percent). Justice Patience Roggensack, now chief justice, aligned with Justices Annette Ziegler and Michael Gableman in 11 of those 4-3 decisions, with Justice Patrick Crooks casting the deciding vote in eight cases; Justice David Prosser was the swing vote in three.
This term, the only 4-3 decision came in State v. Dillard, 2014 WI 123 (Nov. 26, 2014), in which the majority ruled that Myron Dillard could withdraw his guilty plea of armed robbery because he was misinformed about the sentence he faced if convicted.
Then-Chief Justice Shirley Abrahamson3 wrote the majority opinion, joined by Justices Ann Walsh Bradley, Patrick Crooks, and Michael Gableman.
The court issued a 4-2 decision in Schmitz v. Peterson, 2015 WI 85 (July 16, 2015), a case involving a John Doe investigation into alleged illegal campaign finance violations by Gov. Scott Walker’s 2012 recall campaign, and other campaigns.
Justice Bradley did not participate in the case, citing a conflict. Chief Justice Roggensack and Justices Prosser, Ziegler, and Gableman voted to end the probe, finding no merit to the allegations. Justices Abrahamson and Crooks dissented.
Wisconsin Supreme Court: Decisions by Vote Split
Uptick in Unanimous Decisions
While the 4-3 decisions significantly decreased, the number of the supreme court’s unanimous decisions increased by 25 percent from last term. About 55 percent of the court’s decisions were decided unanimously, compared to 30 percent last term.
Professor Ball wondered whether the uptick in unanimous decisions signals more cohesion on the court, or whether there’s a different explanation.
“Perhaps the justices in Madison were responding, if only subconsciously, to frequent charges last year that the court was bitterly polarized,” Ball wrote.
“I would be grateful to learn of other theories that might help account for the substantial increase in unanimous decisions issued during this turbulent period. …”
Marquette Law Professor Daniel Blinka had a couple thoughts on this. Blinka largely agreed with Ball’s impressions and said the increased unanimity could be viewed “as part of an institutional reboot.”
“To reestablish the court’s legitimacy among the public and profession, the justices may have ‘pulled in their elbows’ and are saving disagreements for really salient issues, where passions and policy collide,” Blinka said in an email. “The court needs to promote an image of reasoned disagreements rooted in the rule of law, rather than one more reminiscent of a legislature that brokers conflicting interests.”
Professor Blinka also wondered whether the court’s unanimity “is a product of the seemingly vanilla cases – with the notable exception of the Doe cases – that it selected for review last year. Put differently, there may not have been as many divisive cases as we’ve seen in past years, but this is my speculation,” Blinka said.
Michael Brennan, an attorney at Milwaukee-based Gass Weber Mullins LLC and a former circuit court judge in Milwaukee County, also noted that while the frequency of unanimous decisions increased this term, the reasoning of the justices in their opinions has not necessarily corresponded.
According to Ball's stats, the justices delivered 36 concurrences, not counting partial concurrences. Justice Abrahamson and Justice Ziegler combined to write 20 concurring opinions (10 each). Justice Prosser wrote five, followed by Roggensack (4), Bradley (4), and Gableman (2).
"A good number of this term's 7-0 decisions include concurrences with the lead opinion which employ different reasoning, sometimes outspokenly so," said Brennan.
One example, Brennan notes, is the debate among the justices on stare decisis and the “new federalism” in the companion cases of State v. Luedtke and State v. Weissinger.
"A second example is Anderson v. Aul, involving statutory construction," Brennan said. "The lead opinion uses a 'contextual' interpretation, which a majority of the Court rejects for a traditional plain-meaning analysis. Unanimity in the result for the Wisconsin Supreme Court has not necessarily meant unanimity in the path to arrive at the result."
Dissents and Other Notes
According to Ball's statistics, Justice Abrahamson wrote the most dissenting opinions at 13, and was the lone dissenter in four-of-six cases decided by 6-1 or 5-1 votes. In 14-of-17 cases decided by 5-2 or 4-2 votes, Justice Abrahamson and Justice Bradley aligned in dissent.
Of its 53 decisions, 30 decisions (57 percent) came in criminal (or OWI) cases. Of those 30 decisions, 12 were 5-2 decisions, with Justices Abrahamson and Bradley dissenting in all 12 of them. In 16 criminal cases, the result was unanimous.
Throughout the year, the supreme court released decisions impacting numerous areas of the law, including insurance, OWI, Fourth Amendment, real estate, and employment law. Below are brief summaries of a number of those decisions.
In State v. Hemp, 2014 WI 129 (Dec. 18, 2014), the court unanimously ruled that the record of a defendant who was under 25 when he pled guilty to marijuana possession should have been expunged automatically once he completed the conditions of his probation; he was not required to take additional steps to clear his record.
org jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.
In State v. Scull, 2015 WI 22 (March 5, 2015), the court unanimously upheld a warrantless dog sniff outside the defendant’s home, which alerted to drugs inside, concluding the “good-faith exception” to the warrant requirement applied.
In State v. Kempainen, 2015 WI 32 (March 19, 2015), a unanimous court ruled that the case against a man accused of sexually assaulting his stepdaughter many years ago can proceed despite his argument that the state did not allege crimes on specific dates.
In State v. Moore, 2015 WI 54 (June 16, 2015), a majority (5-2) upheld a minor’s conviction for second-degree reckless homicide as a party to a crime even though police did not record all of his custodial interrogation, normally required for minors.
In State v. Shata, 2015 WI 74 (July 9, 2015), the court ruled (5-2) that a criminal defense lawyer sufficiently advised his client on the deportation consequences of pleading guilty, despite the client’s claim that deportation was certain to result.
In State v. Houghton, 2015 WI 79 (July 14, 2015), the court ruled (5-2) that police officers can conduct traffic stops with reasonable suspicion that the driver is committing a traffic violation, even if the officer is mistaken about the law.
In State v. Herrmann, 2015 WI 84 (July 15, 2015), the court unanimously ruled that a circuit court judge was not objectively biased when she sentenced a defendant who was drunk when he rear-ended a car, killing one person and seriously injuring four others.
In State v. Guarnero, 2015 WI 72 (July 9, 2015), a court majority (5-2) ruled that a conspiracy conviction under the Racketeer Influenced and Corrupt Organizations Act (RICO) counted as a prior drug-related crime for sentencing purposes.
In State v. Hogan, 2015 WI 76 (July 10, 2015), a majority (5-2) ruled that police unlawfully extended a traffic stop but upheld a search based on valid consent.
In State v. Williams, 2015 WI 75 (July 10, 2015), the court unanimously ruled that it was harmless error for a trial court to give jury instructions that described a theory of culpability not presented to the jury, upholding a conviction for felony-murder.
In State v. Delebreau, 2015 WI 55 (June 16, 2015), the court ruled (5-2) that a waiver of Miranda rights is sufficient to waive the Sixth Amendment right to counsel, and that Art. I, Sec. 7 of the Wisconsin Constitution does not provide greater protections than the Sixth Amendment in the context of such waiver.
OWI and PAC
In State v. Griep, 2015 WI 40 (April 23, 2015), the supreme court unanimously (6-0) ruled that an expert witness could testify about a driver’s blood alcohol level based on lab tests performed by an analyst who was unavailable to testify.
In State v. Luedtke and State v. Weissinger, 2015 WI 42 (April 24, 2015), the supreme court unanimously ruled that the due process rights of two defendants accused of driving with drugs in their systems were not violated even though blood samples were destroyed before they could independently test them.
In State v. Blatterman, 2015 WI 46 (May 5, 2015), the court unanimously upheld the arrest and subsequent blood draw of an OWI defendant whose wife called police to report that he was suicidal, although police did not observe any traffic violations.
In State v. Chamblis, 2015 WI 53 (June 12, 2015), a unanimous court ruled that an appeals court could not direct a circuit court to amend a judgment of conviction for driving with a prohibited alcohol concentration and impose a harsher sentence.
In Stoker v. Milwaukee County, 2014 WI 130 (Dec. 19, 2014), a majority (5-2) ruled that Milwaukee County had legal authority to prospectively reduce pension amounts that accrue while employees are still working, a loss for health care workers and its union.
In Wisconsin Federation of Nurses and Health Professionals v. Milwaukee County, 2015 WI 15 (Feb. 12, 2015), a majority (5-2) ruled that a Milwaukee ordinance prospectively eliminating Medicare Part B premium reimbursements in retirement for county attorneys and health care workers did not violate the workers’ vested contract rights.
In Runzheimer International Ltd. V. Friedlen, 2015 WI 45 (April 30, 2015), the court unanimously ruled that a promise of continued employment constitutes lawful consideration to support restrictive covenant agreements with existing employees.
Real Estate and Land Use
In 118th Street Kenosha LLC v. Wis. Dept. of Transportation, 2014 WI 125 (Dec. 10, 2014), the court unanimously ruled that a commercial property owner could not get just compensation for the WisDOT’s relocation of a road, limiting access to the business.
In Bank of New York Mellon v. Carson, 2015 WI 2015 (Feb. 17, 2015), the court ruled (7-0) that circuit courts can order the sale of foreclosed and abandoned property. A four-justice majority ruled that courts can order the sale within a reasonable time.
In First Weber Group Inc. v. Synergy Real Estate Group LLC, 2015 WI 34 (March 24, 2015), a unanimous court ruled that an arbitration panel, not a court, must decide whether a real estate company timely made a request to arbitrate issues on costs and attorney’s fees against another real estate company.
In MS Real Estate Holdings LLC v. Donald P. Fox Family Trust, 2015 WI 49 (May 15, 2015), the court unanimously upheld a right of first refusal contract, despite one party’s claim that the contract was indefinite and could be terminated after a reasonable time.
In Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50 (May 29, 2015), a majority (6-1) ruled that the City of Green Bay’s decision to rescind a conditional use permit for a renewable biomass energy facility was not based on substantial evidence and the city improperly rescinded the permit.
In Ash Park LLC v. Re/Max Select LLC, 2015 WI 65 (July 7, 2015), the court unanimously upheld a broker’s commission, even though the procured buyer could not consummate the sale, because the seller had an “enforceable contract” against the buyer.
In Augsburger v. Homestead Mutual Ins. Co., 2014 WI 133 (Dec. 26, 2014), a majority (6-1) ruled that “mere ownership of the property on which a dog resides is not sufficient to establish that an individual is an owner of a dog” for dog bite liability purposes.
In Preisler v. Kuettel’s Septic Service LLC, 2014 WI 135 (Dec. 30, 2014), a majority (6-1) ruled that a business insurance policy did not cover damage caused by septage used as farm fertilizer, classifying septage as a “pollutant” under a pollution exclusion clause.
In Wilson Mutual Insurance Co. v. Falk, 2014 WI 136 (Dec. 30, 2014), a majority (5-1) ruled that two dairy farmers are insured up to $500 for each neighboring water well that was contaminated after they negligently spread liquid manure as fertilizer on their own farm. A pollution exclusion clause bars coverage beyond that.
In Anderson v. Aul, 2015 WI 19 (Feb. 25, 2015), the Wisconsin Supreme Court unanimously ruled that an attorney Aul was not covered under a professional liability insurance policy because the attorney did not timely notify the insurer of the claims.
Personal Injury, Torts
In Christ v. Exxon Mobil Corp., 2015 WI 58 (June 23, 2015), a 5-2 majority ruled that a statute of limitations did not necessarily bar survival and wrongful death claims arising from benzene exposure, concluding such claims can accrue after a decedent’s death.
In Dakter v. Cavallino, 2015 WI 67 (July 7, 2015), the court unanimously rejected the appeal of a truck driver who said a jury instruction on trucker negligence was incorrect.
1 Not including lawyer disciplinary decisions.
2 Not including lawyer disciplinary decisions.
3 In April 2015, voters passed a constitutional amendment that changed how the chief justice is selected. Seniority previously allowed Abrahamson to hold that post, but the amendment requires the justices to vote for its chief every two years. On April 29, a 4-3 majority elected Justice Patience Roggensack as chief justice. A federal judge has upheld the change, despite a lawsuit by Justice Abrahamson.