Inside Track: Wisconsin Supreme Court’s 2015-16 Term: Fewer Decisions, Lots of Change:

Justice mural in Wisconsin State Capitol

Aug. 3, 2016 – The Wisconsin Supreme Court issued 43 opinions this term, not including attorney discipline cases, which is 19 percent fewer than the 2014-15 term and 38 percent fewer that the 2013-14 term. But the decline may not be surprising.

According to Marquette University History Professor Alan Ball, who tracks Wisconsin Supreme Court statistics through his blog, SCOWstats.com, the court issued fewer opinions this term than any other term in the last 25 years. The 2004-05 term was a peak year, when the court issued 96 opinions, according to Ball’s statistics.¹

But fewer decisions makes sense when reviewing the bigger picture. For the first time since 1996, the court began the term with a new leader in Chief Justice Patience Roggensack, who became chief in April 2015 after voters approved a constitutional amendment that changed how chief justices are selected in Wisconsin.

In September 2015, Justice N. Patrick Crooks announced that he would retire when his term expired on July 31, 2016. Sadly, he passed away about a week later.

Gov. Scott Walker appointed Rebecca Bradley to replace Justice Crooks. Then Justice R. Bradley won a divisive election in April to keep the seat for a 10-year term. She did not participate in several cases that were argued before she began her appointment.

Less than a month later, Justice David Prosser announced that he would retire on July 31, 2016, with five years remaining on his term. In an exclusive interview with the State Bar of Wisconsin, Justice Prosser talked about his 18-year judicial career and his departure.

On July 22, Gov. Walker appointed attorney Daniel Kelly to replace Justice Prosser. Justice Kelly won’t face an election to keep the seat until 2020. The 2015-16 term started with Justice Crooks and Justice Prosser. The 2016-17 term will start with Justice Kelly and Justice R. Bradley in their place.

“The frequency the Court grants certiorari has markedly decreased over a number of years,” said Michael Brennan, a trial and appellate lawyer at Gass Weber Mullins LLC in Milwaukee. He was a Milwaukee County circuit court judge for nine years.

“The various challenges mentioned are as good an explanation as any for this year’s small number,” Brennan said. “The addition of two new justices in the last two years could alter that, based on their views as to which cases should be heard.”

By the Numbers

Aside from fewer decisions, the court’s split numbers are much different than the 2014-15 term, according to Ball’s statistics. Last year, there were 29 unanimous (7-0 or 6-0) decisions, which represented 55 percent of the cases.² This year, only 18 percent were unanimous.³

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 email or by phone at (608) 250-6161.

In addition, the court only decided one 4-3 decision last term. Most cases were decided unanimously, or by a 5-2 (or 4-2) majority (32 percent). But this term, the court decided seven 4-3 (or 3-2) decisions (18 percent), and 60 percent were decided 5-2 (or 4-2).

“I think there's a strong correlation between the declining number of cases heard each year and the increased number of split decisions,” said Marquette University Law Professor Dan Blinka, co-author of the Wisconsin Lawyer^™ magazine’s Supreme Court Digest.

“With fewer cases, justices have more time to devote to concurring opinions, not to mention dissents. It may be better if the court heard more cases. On the other hand, the declining number of cases heard may just signal what a terrific job our court of appeals is doing with a much, much larger case load.”

Commenting on unanimous decisions, Brennan said the number rises and falls each year, and the trend may be a function of the cases reviewed for that particular term.

“Last term, the number of unanimous opinions increased, and I noted that the reasoning of the justices in their opinions had not necessarily corresponded, with a good number of the unanimous decisions including concurrences with differing rationales,” he said. “This term, one is tempted to attribute the decrease in the number of unanimous opinions to the difficulty among the justices in finding common ground,” he said.

All Wisconsin appellate practitioners are indebted to Marquette University Professor Alan Ball for his insightful, thorough, and interesting work at www.scowstats.com. – Michael Brennan

“Examples include the initial footnotes in Singh v. Kemper (constitutionality of legislation that allowed inmates early release from prison) and State v. Lynch (status of Shiffra/Green process to obtain review of privileged medical records), which describe a court splintered as to result and reasoning,” Brennan noted.

Unlike last year, with just one 4-3 decision, the court delivered seven 4-3 (or 3-2) decisions this term. And one might expect similar alliances.

But there was a different majority in all but two of those cases, both 3-2 decisions.⁴ In the four 4-3 decisions, the four justices in agreement were never the same.

“That varying combination of justices resulting in one-vote majorities this term could be attributed to those differing approaches in last year’s concurrences, ‘flipping votes’ and becoming dissents,” Brennan said.

Major cases included: Milwaukee Police Association v. City of Milwaukee (a 5-2 majority struck down a Milwaukee ordinance that requires city workers to reside in the city); United Food v. Hormel Foods Corporation (a 4-2 majority ruled that workers who spent time putting on (donning) and taking off (doffing) required clothes and gear before and after shifts must be paid for it); and Peggy Z. Coyne v. Scott Walker (a 4-3 majority struck down parts of a 2011 law that gave the governor power to reject rules promulgated by the superintendent of public schools).

Decisions of the Term

To keep members informed on the latest decisions, the State Bar of Wisconsin covers supreme court decisions with summaries of holdings and rationales through WisBar News, CaseLaw Express^™, and the Wisconsin Lawyer’s Supreme Court Digest.

The following table includes short summaries of the court’s decisions this term, noting court splits with links to opinions. Additional links will show the full court summary from WisBar News. Below, another table will show the court’s rulemaking decisions.

Supreme Court: Decisions (2015-16)

July 13, 2016	Aman Singh v. Paul Kemper (5-2) (Roggensack, R. Bradley dissent)	A majority ruled that a 2011 law retroactively repealing inmates’ ability to obtain early release was an unconstitutional ex post facto law as applied to one of Singh’s crimes. Full story.
July 13, 2016	State v. Patrick J. Lynch (3-3) (separate writings filed)	A majority could not agree on whether a victim alleging sexual assault should be barred from testifying if she refuses to release her mental health treatment records for in camera inspection, or whether criminal defendants are even entitled to request the records in the first place. Full story.
July 13, 2016	State v. Eric L. Loomis (7-0) (concurrences filed)	The court unanimously ruled that if properly used, a circuit court’s consideration of a COMPAS risk assessment at sentencing does not violate a defendant’s due process rights.
July 12, 2016	City of Eau Claire v. Melissa M. Booth (5-2) (Abrahamson, A.W. Bradley dissent)	A woman with seventh, eighth, and ninth operating while intoxicated (OWI) charges pending against her challenged a first-offense OWI she received in 1992, arguing the circuit court back then lacked subject matter jurisdiction. Full story.
July 12, 2016	Lands' End, Inc. v. City of Dodgeville (4-2) (Prosser, Roggensack dissent)	Lands’ End, the clothing and apparel store, won a significant judgment against the City of Dodgeville. The Wisconsin Supreme Court decided how much interest applies to the judgment under a judgment interest statute. Full story.
July 12, 2016	State v. Timothy L. Finley, Jr. (5-2) (Ziegler, R. Bradley dissent)	A majority ruled that a defendant was entitled to withdraw his plea because he was misinformed of the potential penalty he faced if convicted.
July 6, 2016	Dennis D. Dufour v. Progressive Classic Ins. Co. (5-2) (Abrahamson, A.W. Bradley dissent)	A majority sided with an insurance company that retained damages received on a subrogation claim, despite a motorcycle accident victim’s argument that subrogation damages should go to him. Full story.
July 6, 2016	State v. Leopoldo R. Salas Gayton (6-0) (concurrence filed)	Leopoldo Salas Gayton, convicted for homicide by intoxicated use of a vehicle, argued that a judge improperly considered his immigration status as a factor at sentencing. The supreme court unanimously ruled the judge did not. Full story.
July 6, 2016	Sonja Blake v. Debra Jossart (5-2) (Abrahamson, A.W. Bradley dissent)	A woman convicted of welfare fraud 30 years ago will never get her childcare certification back, a majority ruled, upholding a 2009 law that bans childcare certifications if convicted for certain crimes. Full story.
July 1, 2016	State v. Mastella L. Jackson (5-2) (Abrahamson, A.W. Bradley dissent)	A majority ruled that physical evidence obtained after the illegal interrogation of a murder suspect was not “fruit of the poisonous tree” because police would have inevitably discovered the evidence. Full story.
June 30, 2016	Water Well Solutions Service Group Inc. v. Consolidated Insurance Company (5-2) (A.W. Bradley, Abrahamson dissent)	A majority ruled that the four corners rule, in duty to defend cases, “requires the court to compare the language in the complaint to the terms of the entire insurance policy, without considering extrinsic evidence, even when an insurer unilaterally declines to defend its insured.”
June 30, 2016	David M. Marks v. Houston Casualty Company (7-0) (concurrences filed)	A majority ruled that an insurance company did not breach its duty to defend an insured because the claims and counterclaims against the insured did not allege facts that would give rise to coverage.
June 29, 2016	Fontana Builders, Inc. v. Assurance Company of America (6-1) (R. Bradley dissent)	A majority ruled that a homeowner’s insurance policy that covered occupants did not terminate a builder’s risk insurance policy because construction was not complete and the builder still owned the property when a fire occurred.
June 28, 2016	State v. Rory A. McKellips (4-2) (Abrahamson, Bradley dissent)	A majority upheld a former girls’ high school basketball coach’s conviction for using a “computerized communications system” to facilitate sexual contact with a player, despite his argument that he did not use a computerized communication system when he used a flip-phone without internet. Full story.
June 23, 2016	Prince Corporation v. James N. Vandenberg (5-2) (Abrahamson, A.W. Bradley dissent)	Four people acquired real estate as tenants-in-common. One of them accumulated personal debt, including tax debt. A majority decided which judgment creditor would receive property sale proceeds, and how much. Full story.
June 23, 2016	John Doe 56 v. Mayo Clinic Health System - Eau Claire Clinic, Inc. (5-2) (A.W. Bradley, Abrahamson dissent)	A majority ruled that minor unnamed plaintiffs alleging that their physician touched their genitals inappropriately during medical exams cannot maintain the lawsuit because of the statute of limitations.
June 23, 2016	Milwaukee Police Association v. City of Milwaukee (5-2) (A.W. Bradley, Abrahamson dissent)	Employees who work for the city of Milwaukee, including law enforcement and Milwaukee public school teachers, can now live outside the city limits without fear of being fired, a majority ruled. Full story.
June 14, 2016	State v. Richard J. Sulla (7-0) (concurrence filed)	A circuit court properly denied a plea withdrawal motion without an evidentiary hearing, even though the defendant argued that he did not enter the plea knowingly, intelligently, and voluntarily, the court unanimously ruled. Full story.
May 26, 2016	State v. Luis C. Salinas (5-2) (Abrahamson, A.W. Bradley dissent)	A majority ruled the state properly joined intimidation charges to a sexual assault case that was not opened yet when the defendant made repeated threats to his girlfriend, a witness, from a jailhouse phone. Full story.
May 20, 2016	Albert D. Moustakis v. State of Wisconsin Department of Justice (4-3) (Roggensack, Gableman, and Ziegler dissent)	A majority ruled that a district attorney cannot stop the Wisconsin Department of Justice from releasing public records about him to a local newspaper, concluding district attorneys don’t have a statutory right to block such records from being released. Full story.
May 20, 2016	State v. Stephen LeMere (4-2) (A.W. Bradley, Abrahamson dissent)	Criminal defense lawyers representing defendants accused of sexually violent crimes are not required to inform their clients that pleading guilty could result in the possibility of civil commitment, a majority ruled. Full story.
May 18, 2016	Peggy Z. Coyne v. Scott Walker (4-3) (Roggensack, Ziegler, and R. Bradley dissent)	A majority struck down a 2011 law that gave the governor power to reject rules promulgated by the superintendent of public schools and effectively clipped the superintendent’s rulemaking authority. Full story.
May 12, 2016	St. Croix County Department of Health and Human Services v. Michael D. (5-2) (Abrahamson, A.W. Bradley dissent)	A majority ruled that a mother received proper notice of a termination of parental rights action, and her rights were properly terminated based on the record.
May 12, 2016	Cheryl M. Sorenson v. Richard A. Batchelder (5-2) (Abrahamson, A.W. Bradley dissent)	A majority ruled that a woman involved in a car accident with a state employee cannot move forward with her lawsuit because she delivered notice of claim to the attorney general by personal service, not certified mail. Full story.
April 29, 2016	Walworth State Bank v. Abbey Springs Condominium Association, Inc. (5-2) (Abrahamson, A.W. Bradley dissent)	A majority ruled that a condominium policy violated Wisconsin law by restricting a new condo owner's access to condo amenities, like a golf course, if the prior condo owner's assessments remained unpaid after foreclosure. Full story.
April 22, 2016	State v. James Elvin Lagrone (5-2) (A.W. Bradley, Abrahamson dissent)	A majority ruled that a circuit court is “not required to conduct a right-to-testify colloquy at the responsibility phase of a bifurcated trial resulting from a plea of not guilty by reason of mental disease or defect.”
April 15, 2016	Yasmine Clark v. American Cyanamid Company (3-3, per curiam)	The court reached a stalemate, and sent the case back to the appeals court to decide whether a state statute retroactively deprives a victim of lead paint poisoning from asserting a vested property right. Full story.
April 7, 2016	S. A. M. v. Nancy M. Meister (6-0) (concurrences filed)	After her son and daughter-in-law divorced, Carol Meister, who lived in Ohio, filed a motion seeking court-ordered rights to visit her four grandchildren. A majority clarified the standard to determine such rights. Full story.
April 7, 2016	State v. Jimmie Lee Smith (4-2) (Abrahamson, A.W. Bradley dissent)	A majority upheld the conviction of a defendant who argued that he was incompetent to stand trial or be sentenced for a charge of second-degree sexual assault, reversing an appeals court decision. Full story.
March 30, 2016	Patti J. Roberts v. T.H.E. Insurance Company (4-3) (Prosser, Roggensack, and R. Bradley dissent)	A majority ruled that a woman injured by a runaway hot air balloon can pursue negligence claims against the operator even though she signed a liability waiver and despite the state’s recreational immunity statute. Full story.
March 15, 2016	State v. Patrick K. Tourville (7-0)	The court unanimously ruled that the state did not breach a plea agreement by recommending “consecutive” sentences when the plea agreement was silent on the issue of “concurrent” or “consecutive” sentences. Full story.
March 1, 2016	United Food v. Hormel Foods Corporation (4-2) (Gableman, Ziegler dissent)	Workers who spent time putting on (donning) and taking off (doffing) required clothes and gear before and after shifts will be paid for it, under a decision that affirmed a judgment for the workers’ union. Full story.
March 1, 2016	Wisconsin Pharmacal Company, LLC v. Nebraska Cultures of California, Inc. (3-2) (Abrahamson, A.W. Bradley dissent)	A probiotic supplier supplied the wrong probiotic to a company that uses probiotic ingredients in health supplement pills, forcing a product recall. But the supplier’s error is not covered by insurance, a majority ruled. Full story.
Feb. 24, 2016	State v. Andy J. Parisi (5-2) (A.W. Bradley, Abrahamson dissent)	A majority ruled that a warrantless blood draw by police was constitutional because it was supported by exigent circumstances. Full story.
Feb. 24, 2016	Kenneth C. Burgraff, Sr. v. Menard, Inc. (3-2) (Roggensack, Ziegler dissent)	In a tangled case, a majority ruled that a settlement did not extinguish an auto insurer’s duty to defend hardware store chain owner Menard Inc. in a lawsuit commenced against Menard by an injured customer. Full story.
Feb. 10, 2016	State v. Charles V. Matalonis (4-3) (Abrahamson, A.W. Bradley, Prosser dissent)	Believing someone could be injured inside, police officers searched a Kenosha man’s home without a warrant, including a locked room that contained a marijuana plant. A majority upheld the search. Full story.
Feb. 4, 2016	Hoffer Properties, LLC v. State of Wisconsin (5-1) (Prosser dissent)	A majority ruled that a business with direct access to a busy rural state highway could not obtain more compensation from the Wisconsin Department of Transportation (DOT), which eliminated the business’s direct access. Full story.
Jan. 28, 2016	State v. Melisa Valadez (4-2) (Prosser, Roggensack dissent)	A majority ruled that a lawful permanent resident of the United States who pled guilty to drug charges more than a decade ago can withdraw her pleas and enter new ones because she did not receive proper warnings about the immigration consequences of pleading guilty. Full story.
Jan. 15, 2016	State v. Brett W. Dumstrey (A.W. Bradley, Abrahamson dissent)	A majority ruled that a warrantless police stop in a private parking garage was legal because police had reasonable suspicion to make the stop and the garage was not a constitutionally protected area. Full story.
Jan. 5, 2016	Winnebago County v. Christopher S. (4-2) (Abrahamson, A.W. Bradley dissent)	A majority rejected a prison inmate’s constitutional challenge to the involuntary commitment statute. He appealed orders to involuntary commit him and treat him with psychotropic drugs.
Dec. 30, 2015	State of Wisconsin Department of Justice v. State of Wisconsin Department of Workforce Development (3-2) (A.W. Bradley, Abrahamson dissent)	A majority ruled that a state department of justice (DOJ) employee demoted after questioning whether the DOJ could legally use taxpayer funds for the attorney general’s security detail at a Republican National Convention did not have whistleblower law protection. Full story.
Dec. 18, 2015	New Richmond News v. City of New Richmond (3-3, per curiam)	Vacating an order to grant petition, which had bypassed the appeals court.
Nov. 25, 2015	State v. Daniel S. Iverson (6-0) (concurrences filed)	The court unanimously ruled that a state trooper legally stopped a vehicle for littering, which led to a drunk driving arrest, despite the defendant’s argument that troopers can’t make traffic stops for non-traffic offenses. Full story.

Rulemaking

The supreme court has rulemaking authority to “regulate pleading, practice, and procedure in judicial proceedings in all courts, for the purposes of simplifying the same and of promoting the speedy determination of litigation upon its merits. The rules shall not abridge, enlarge, or modify the substantive rights of any litigant.”⁵

While the court’s case decisions were down, it cleared 19 final orders relating to supreme court rules, much higher than recent years. Most notably, the court adopted mandatory e-filing in circuit courts and modernized the lawyer trust account rules.

Supreme Court: Final Rules (2015-16)

July 28, 2016	14-02	In the matter of the Petition to Amend/Dissolve Wisconsin Statute 801.54 Discretionary Transfer of Civil Actions to Tribal Court. Denied.
July 28, 2016	12-01	In the matter of review of Report of the Wisconsin Supreme Court Advisory Committee on Rule Procedures. Denied.
July 28, 2016	07-11c	In the matter of review of Wis. Stat. section 801.54, discretionary transfer of cases to tribal court. No action.
July 21, 2016	15-05	In the matter of the Petition to Amend Supreme Court Rule Chapter 31 and Chapter 10.03, related to CLE for pro bono. Adopted. (Effective 1/01/17).
July 21, 2016	15-04	In the matter of the Petition to Modify SCR 20:1.9(c). Denied.
July 21, 2016	15-03	In the matter of the Petition for Amendments to Rules of Professional Conduct for Attorneys. Adopted. (Effective 1/01/17).
July 19, 2016	08-17A	In the matter of Review of the Creation of an Access to Justice Commission. Voted to continue.
July 19, 2016	09-07	In the matter of amendment of Chapter 72 of the Supreme Court Rules relating to expunction. Dismissed.
June 24, 2016	15-06	In the matter of the Proposed Amendment to Wis. Stat. section 803.08 Allocating a Portion of Unclaimed Class Action Awards to Support the Provision of Legal Services to Low Income and Indigent Persons. Adopted. (Effective 1/01/17).
April 28, 2016	14-03	In the matter of the Petition to Create Wisconsin Statute 801.18., relating to mandatory e-filing. Adopted. (Effective 7/01/2016).
April 21, 2016	14-06	In the matter of the Petition to Amend Supreme Court Rules 22.001(2), 22.02(6)(c), 22.03(1), 22.25(3), and 22.25(4). Adopted. (Effective 7/01/16).
April 4, 2016	14-07	In the matter of Petition for Amendment to Rules Relating to Electronic Banking. Adopted. (Effective 07/01/16).
Dec. 21, 2015	15-01	Review of the Office of Lawyer Regulation. Dismissed.
Dec. 21, 2015	13-17	Creation of Rules Relating to Judicial Code Review Committee. Dismissed.
Dec. 21, 2015	12-11	Creation of a Judicial Code Review Committee. Dismissed.
Dec. 10, 2015	12-08	In the matter of the Petition to Create Supreme Court Rule 74.02, Appointment of the Judicial Commission Members. Denied.
Nov. 25, 2015	15-02	In the matter of the Amendment of Rules of Appellate Procedure, Wis. Stat. sections 809.01, 809.105, 809.11, and 809.15. Adopted. (Effective 7/01/16).
Aug. 27, 2015	14-04	In the matter of the Petition to Create Wis. Stat. section 801.19. Adopted. (Effective 07/01/16).
Aug. 7, 2015	12-09	In re matter of Publication of Supreme Court Orders - creation of rules under Supreme Court Rules Ch. 80 and amendment of Supreme Court Rule 98.07, Publication of Rules. Adopted. (Effective 8/07/15).