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  • Inside Track
    August 19, 2020

    Annual Review: Wisconsin Supreme Court 2019-20 Term

    Several high-profile cases involved clashes between the executive and legislative branches during the Wisconsin Supreme Court's 2019-20 term. This article includes insights on decisions from a civil litigator and a former state public defender, with decision holdings and votes on every case.

    Joe Forward

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    wisconsin supreme court

    Aug. 19, 2020 – The Wisconsin Supreme Court recently concluded its 2019-20 term, issuing its final substantive decision last month. Not including attorney discipline cases, the court issued 45 authored decisions, down from 54 in the 2018-19 term.

    The decline is not surprising. In March and April, the court was busy issuing numerous orders related to COVID-19, including suspension of in-person court proceedings.

    Perhaps the court’s most high-profile decision of the term came on May 13, 2020, when a 4-3 majority determined, in Wisconsin Legislature v. Palm, 2020 WI 42, that a “safer-at-home” order by the state health department – which shut down non-essential business – was unlawful, invalid, and unenforceable.

    Susan Tyndall, a civil litigator at Habush Habush & Rottier, said some state and local officials expressed uncertainty about the scope of the decision.

    “Many cities and counties rescinded local orders and the governor did not issue another emergency order regarding the pandemic until July 30, after another spike in cases had occurred,” Tyndall said. “Thus, whether intended or not, the decision certainly seemed to have had a chilling effect on further DHS and perhaps even some local actions.”

    Other major decisions also involved conflicts between the legislative and executive branches, including a dispute about the governor’s veto power.

    In a per curiam opinion with four separate writings, Bartlett v. Evers, 2020 WI 68 (July 10, 2020), a majority ruled that Gov. Tony Evers violated his constitutional veto power when he partially vetoed provisions in the 2019-21 biennial state budget bill.

    “The court generally does not explain why a particular decision is issued as a per curiam, rather than authored, opinion,” Tyndall said.

    She noted that in the court of appeals, a per curiam decision cannot be published or cited, generally signaling that the law regarding the issue is well-settled and that another published decision would not add to Wisconsin jurisprudence.

    “Because a majority of justices must agree on a particular point for it to be the opinion of the court, it seems likely that the justices could not agree on a majority opinion and therefore, concluded that a per curiam decision would be more fitting.”

    In another case – SEIU v. Vos, 2020 WI 67 (July 9, 2020) – a majority upheld extraordinary session laws affecting executive power enacted after Gov. Scott Walker was defeated in the 2018 gubernatorial election but before Gov. Tony Evers took office.

    The opinion was announced in two separate writings and some justices joined only parts of opinions, with concurrences and dissents filed.

    While these politically charged cases grabbed headlines in Wisconsin, other major decisions – many with separate writings to distinguish rationales among justices – provide a glimpse of the differing judicial philosophies among the 2018-19 justices. The 45 decisions generated more than 60 concurring and dissenting opinions.

    The remainder of this article highlights major decisions with relevant statistics compiled by Alan Ball, a Marquette University history professor who publishes Wisconsin Supreme Court statistics at his blog, SCOWStats, as well as insights from Tyndall and Mike Tobin, former deputy state public defender.

    Civil Decisions

    As Ball notes in his blog, several civil decisions revealed divisions with no majority or narrow majorities on specific issues, leaving lawyers to decipher the code for future cases.

    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.

    Ball notes seven “fractured decisions,” in which justices may have agreed on the ultimate outcome – to reverse or uphold – but offered different rationales.

    “While I haven’t studied whether there were fractured decisions in other periods, it seems as if fractured decisions are becoming more common,” Tyndall said.

    “They make it more difficult for lower courts and litigators to predict how a majority of the court might rule on similar issues, and that can make litigators’ jobs harder.”

    Tyndall said clients often ask counsel to predict the likelihood of a certain outcome and, obviously, fractured decisions make accurate predictions much harder to make.

    “Fractured decisions can also cause problems for litigators whose clients require them to submit budgets,” Tyndall said.

    “Because lack of certainty may prompt opposing parties to continue litigation even after an adverse result, in the hope that their view will ultimately prevail, litigation costs can exceed the budgeted amount and result in friction or even unpaid fees.”

    Still, the justices issued 18 unanimous (7-0, 6-0) decisions (more than 40 percent), and 10 of them were in civil cases. In seven civil cases, the court was divided 4-3.

    In City of Cedarburg v. Hansen, for instance, a 4-3 majority ruled that a municipal court had jurisdiction over a drunk driving case charged as an ordinance violation even though the case should have been charged as drunk driving, second offense.

    Municipal courts do not have jurisdiction over misdemeanor and felony cases, which are the jurisdiction of the circuit courts. First-offense, operating while intoxicated (OWI) cases are municipal ordinance violation cases, punishable by fine and/or license suspension. But a second-offense OWI is a misdemeanor, with potential jail time.

    Justice Brian Hagedorn wrote a dissenting opinion joined by Justice Ann Walsh Bradley and Justice Rebecca Dallet.

    The dissenters concluded that “the municipal court lacked subject-matter jurisdiction to entertain the improperly charged OWI offense, and the judgment is null and void.”

    In Miller v. Carroll, a four-justice majority ruled that a judge violated due process rights by accepting a Facebook “friend” request from a litigant in a pending child custody case.

    Justice Hagedorn wrote a dissenting opinion, joined in large part by Justice Daniel Kelly and Justice Rebecca Bradley. The dissenters said the facts of the case, the circumstances of the “friending,” did not create a “serious risk of actual bias.”

    In another case, Lang v. Lions Club of Cudahy Wisconsin, 2020 WI 25 (March 5, 2020), four justices ruled that a subagent of the Lyons Club had recreational immunity from a lawsuit filed by a woman who tripped on some cords at the Lyons Club music festival.

    Justice Rebecca Dallet dissented, joined by Justice Hagedorn and Justice A.W. Bradley, concluding recreational immunity did not apply to bar the lawsuit.

    In Wisconsin Small Business United Inc. v. Brennan, 2020 WI 69 (July 10, 2020), a five-justice majority a barred a lawsuit challenging partial vetoes by former Gov. Scott Walker in the 2017-19 biennial budget, under the doctrine of laches.

    Justice Rebecca Bradley dissented, joined by Justice Kelly – both appointed by Gov. Walker – concluding Walker’s vetoes were unconstitutional because they effectively nullified the laws at issue, delaying them by 1000 years and 60 years, respectively. They would have reached the merits.

    “The constitution does not confer on the governor any authority to amend or otherwise rewrite a bill in this manner, much less abolish laws altogether,” R. Bradley wrote.

    In total, the court issued 28 civil decisions, 10 less than the 2018-19 term. Ten decisions were unanimous, five were 6-1 (or 5-1), four were 5-2 (or 4-2), and six were 4-3.

    “This term has seemed particularly consequential due to the pandemic-related issues the court was called upon to address,” Tyndall said. “I wonder whether the court’s orders regarding remote practice may be adopted long term, to provide greater flexibility in civil litigation.”

    “The decision which probably surprised me the most is Emer’s Camper Corral, LLC,” Tyndall said.

    “In the early part of my career, I defended many insurance agents against errors and omissions claims. The proof requirement created by Emer’s Camper Corral was much more stringent than any standard I recall or for which I advocated, so I found that decision particularly surprising.”

    Jump to see civil case decisions below

    Criminal Cases

    Judicial philosophies may be more apparent in criminal cases, which often involve constitutional questions that require a constitutional analysis. The court decided 17 criminal cases, including a unanimous Fourth Amendment decision.

    In State v. Brooks, a unanimous court agreed that police violated the defendant’s Fourth Amendment right when they seized his vehicle and conducted an inventory search before transferring it to an impound lot. They found a gun. Police invoked a “community caretaker exception” to the warrant requirement, but the court said it did not apply.

    “Brooks is an important reminder to the defense bar of the importance of challenging police actions that arguably infringe on 4th amendment privacy rights,” said Mike Tobin, former deputy state public defender. “

    "Although the decisions in this area, both federal and state, have most often favored the prosecution and police, the Wisconsin Supreme Court unanimously agreed in Brooks that the search of the defendant’s car was improper.”

    He said the case shows that the court is prepared to scrutinize reasons advanced for a warrantless search, in this case the community caretaker.

    Tobin said another interesting decision is State v. Roberson, 2019 WI 102 (Dec. 3, 2019), involving a victim’s identification of the defendant through a Facebook photo.

    The circuit court suppressed the identification, concluding police used an unnecessarily suggestive procedure, but the Wisconsin Supreme Court reversed (5-2), with two concurring opinions and a dissent filed. Tobin said the separate writings discussed whether research from social science is relevant to constitutional analysis.

    “Under the originalist approach advocated by the majority, the interpretation of constitutional provisions should not change according to trends in research,” Tobin said.

    “Conversely, the dissent contends that advances in research can inform the interpretation of broad constitutional considerations like reliability of evidence and fundamental fairness.”

    In State v. Coffee, another Fourth Amendment case, the court (five justices hearing the case) could not reach a majority, which left in place a decision denying the defendant’s motion to suppress evidence related to a warrantless search of the defendant’s car.

    Two justices (Chief Justice Roggensack and Justice Annette Ziegler) said police lawfully searched a vehicle’s glove compartment and then the vehicle’s trunk – where they found marijuana. The driver had been arrested for drunk driving.

    Two other justices (Justice Rebecca Dallet and Justice Ann Walsh Bradley) dissented, concluding the officer did not have reasonable suspicion to believe the vehicle might contain evidence relevant to his arrest for operating while intoxicated.

    Justice Kelly concurred with the Chief Justice Roggensack and Justice Ziegler but questioned the rationale, concluding the lead opinion “brings less rather than more clarity to the law controlling post-arrest evidence-gathering automobile searches.”

    “Despite the absence of a majority opinion, four of the five participating judges agreed upon the methodology to review car searches incident to the arrest of the driver,” Tobin said of Coffee. “This area of the law has long been rife with different interpretations of two major U.S. Supreme Court cases: New York v. Belton and Arizona v. Gant.”

    In State v. Pope, a four-justice majority declined to presume prejudice to the defendant – which may have required a new trial – because the transcript from his 1996 murder trial was no longer available. The majority said the defendant did not meet his burden.

    Justice Rebecca Bradley dissented – joined by Justices Rebecca Dallet and Justice A.W. Bradley – concluding the defendant’s constitutional right to an appeal was violated because his trial counsel failed to file a notice of intent to pursue postconviction relief.

    In total, the court decided 17 criminal cases. Eight were unanimous, one was 4-1, four were 5-2 (or 4-2), and four were 4-3 decisions.

    Jump to see criminal case decisions below

    Post Script

    According to Prof. Ball at SCOWStats, Justice Rebecca Dallet was the term’s most frequent dissenter. She wrote nine dissents, followed by Justice Hagedorn, who wrote eight dissents. At eight, Justice Rebecca Bradley penned the most concurring opinions.

    “Concurring and dissenting opinions are especially important when they focus on different legal theories from what is set forth in the majority opinion,” Tobin said.

    “When constitutional issues are present, the dissenting opinion can be helpful to litigants considering a petition for certiorari or other federal relief."

    Tobin also noted that the composition of the court changes, so earlier minority opinions may provide the foundation for future majority (or plurality) decisions.

    Justice A.W. Bradley and Justice Dallet were on the same page all term, agreeing with the result in all 21 non-unanimous cases.

    Chief Justice Roggensack and Justice Ziegler agreed in 88 percent of non-unanimous decisions (22 out of 25).

    Justice Dallet and Justice Kelly disagreed the most, agreeing in just four out of 23 non-unanimous decisions. Kelly only agreed with A.W. Bradley in five cases.

    Next term may prove different, as former Dane County Circuit Court Judge Jill Karofsky replaces Justice Kelly.

    Kelly was appointed in 2016 by Gov. Walker to fill the unexpired term of former Justice David Prosser and faced his first election this spring.

    The 2020-21 Wisconsin Supreme Court

    Chief Justice Patience Roggensack

    • 18th year on the WI Supreme Court
    • First elected in 2003
    • Last elected in 2013
    • Faces third election in 2023

    Justice Ann Walsh Bradley

    • 25th year on the WI Supreme Court
    • First elected in 1995
    • Last elected in 2015
    • Faces fourth election in 2025

    Justice Annette Kingsland Ziegler

    • 14th year on the WI Supreme Court
    • First elected in 2007
    • Last elected in 2017
    • Faces third election in 2027

    Justice Rebecca Bradley

    • 6th year on the WI Supreme Court
    • Appointed in 2015
    • Elected in 2016
    • Faces second election in 2026
    		  

    Justice Rebecca Dallet

    • 3rd year on the WI Supreme Court
    • Last elected in 2018
    • Faces second election in 2028

    Justice Brian Hagedorn

    • 2nd year on the WI Supreme Court
    • Last elected in 2019
    • Faces second election in 2029

    Justice Jill Karofsky

    • 1st year on the WI Supreme Court
    • Elected in 2020
    • Faces second election in 2030

    Wisconsin Supreme Court Holdings and Votes, 2019-20

    Civil Case Decisions1

    1. Lamar Central Outdoor LLC v. Wisconsin Division of Hearings and Appeals, 2019 WI 109 (Dec. 19, 2019).

    HOLDING: When an administrative agency wants to revise its interpretation of an ambiguous statute, it must engage in the formal rulemaking process.

    VOTE: 7-0. KELLY (unanimous opinion). No separate writings.

    WISBAR SUMMARY: New Stance on Highway Billboard Required Rulemaking, Supreme Court Says (Dec. 20, 2010)

    2. Wren v. Richardson, 2019 WI 110 (Dec. 26, 2019).

    HOLDINGS: 1) The state established the elements of laches as a defense to the petitioner’s habeas corpus petition. 2) The court of appeals appropriately exercised its discretion in applying laches in this case.

    VOTE: 4-3. HAGEDORN (majority opinion), joined by ROGGENSACK, ZIEGLER and KELLY.

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

    3. Hinrichs v. The Dow Chemical Company, 2020 WI 2 (Jan. 9, 2020).

    HOLDING: The economic loss doctrine bars the plaintiff’s common-law claims, but his claim of misrepresentation under Wis. Stat. section 100.18 was properly pleaded.

    VOTE: 4-1. ANN WALSH BRADLEY (majority opinion), joined by ROGGENSACK, ZIEGLER, DALLET, and R. BRADLEY (Parts I, II, and III).

    R. BRADLEY (concurring in part and dissenting in part).

    KELLY and HAGEDORN (did not participate).

    WISBAR SUMMARY: Supreme Court Addresses Economic Loss Doctrine in Case by Jeetops Maker (Jan. 10, 2020)

    4. Veritas Steel LLC v. Lunda Construction Co., 2020 WI 3 (Jan. 15, 2020).

    HOLDING: Successor liability rules barred claims brought by an unsecured creditor; the plaintiff waived its “fraudulent transfer” argument by not raising it before the court of appeals.

    VOTE: 7-0. DALLET (majority opinion).

    ROGGENSACK (concurring opinion).

    5. Mueller v. TL90108, LLC, 2020 WI 7 (Feb. 4, 2020).

    HOLDING: A claim for replevin based on wrongful detention accrues when the subsequent purchaser obtains the property; no demand is necessary.

    VOTE: 6-0. HAGEDORN (majority opinion).

    DALLET (did not participate).

    WISBAR SUMMARY: Supreme Court: Statutes of Repose Do No Bar Replevin Action for Stolen 1938 Vehicle (Feb. 7, 2020)

    6. Marathon County v. D.K., 2020 WI 8 (Feb. 4, 2020).

    HOLDING: 1) Although it expired in 2017, respondent D.K.’s mental commitment is not a moot issue. 2) There was clear and convincing evidence at the final hearing that D.K. was dangerous as defined by Wis. Stat. section 51.20 (1)(a)2.b.

    VOTE: 5-2. ZIEGLER (majority opinion): Parts I., II., III., IV.A., IV.B., and IV.C.1, joined by ROGGENSACK, R. BRADLEY, KELLY, and HAGEDORN.

    ZIEGLER (majority opinion): Part V., joined by ROGGENSACK, KELLY and HAGEDORN.

    ZIEGLER (opinion): Parts IV.C.2., and IV.D., joined by ROGGENSACK, and HAGEDORN.

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

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

    7. City of Cedarburg v. Hansen, 2020 WI 11 (Feb. 11, 2020).

    HOLDING: 1) The municipal court had subject-matter jurisdiction to adjudicate an operating while intoxicated (OWI) case even though the defendant had a prior OWI conviction. 2) The defendant forfeited any objection to the municipal court’s competence to adjudicate the case.

    VOTE: 4-3. ROGGENSACK (majority opinion), joined by ZIEGLER, R. BRADLEY and KELLY.

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

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

    WISBAR SUMMARY: State Supreme Court Rejects Jurisdictional Challenge in OWI Case (Feb. 12, 2020)

    8. Choinsky v. Employers Ins. Co. of Wausau, 2020 WI 13 (Feb. 13, 2020).

    HOLDINGS: An insurer did not breach its duty to defend because it followed a judicially approved method to resolve a coverage dispute; the court also rejected arguments related to delayed payment of attorney fees and the four-corners rule.

    VOTE: 5-1. R. BRADLEY (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, ZIEGLER, and DALLET.

    KELLY (dissenting opinion).

    HAGEDORN (did not participate).

    WISBAR SUMMARY: Insurer Did Not Breach Duty to Defend, Followed Judicially Preferred Procedures (Feb. 25, 2020)

    9. Town of Wilson v. City of Sheboygan, 2020 WI 16 (Feb. 14, 2020).

    HOLDING: A city properly annexed land for purposes of creating a golf course that a town opposed.

    VOTE: 7-0. DALLET (majority opinion, unanimous): Parts I., III.C., and III.D.

    DALLET (majority opinion): Parts II., III.A., III.B., and IV., joined by ROGGENSACK, A.W. BRADLEY, ZIEGLER, and HAGEDORN.

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

    HAGEDORN (concurring opinion).

    10. DSG Evergreen Family Ltd. Partnership v. Town of Perry, 2020 WI 23 (Feb. 27, 2020.

    HOLDING: Claim preclusion did not bar a declaratory judgment action brought by a landowner against a town following an eminent domain trial; however, the landowner did not have a private cause of action against the town relating to the later road construction, and the matter was not ripe for a declaratory judgment.

    VOTE: 7-0. KELLY (unanimous opinion). No separate writings.

    WISBAR SUMMARY: Private Landowner’s Road Claim Not Barred in Eminent Domain Dispute (Feb. 27, 2020).

    11. Lang v. Lions Club of Cudahy Wisconsin Inc., 2020 WI 25 (March 5, 2020)

    HOLDING: The defendant was entitled to summary judgment based on recreational immunity.

    VOTE: 4-3. ROGGENSACK, C.J., announced the mandate of the Court, and delivered an opinion, joined by ZIEGLER.

    R. BRADLEY (concurring opinion) joined by KELLY.

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

    HAGEDORN (dissenting opinion).

    12. Piper v. Jones Dairy Farm, 2020 WI 28 (March 19, 2020).

    HOLDING: 1) Under Wisconsin law, compensation for donning and doffing cannot be modified or eliminated through collective bargaining. 2) The time employees spent donning and doffing was not de minimis. 3) The circuit court erred when it summarily dismissed the employer’s equitable defenses.

    VOTE: 4-3. DALLET delivered the majority opinion of the Court, joined by A.W. BRADLEY, KELLY, and HAGEDORN.

    ZIEGLER (dissenting opinion), joined by ROGGENSACK.

    R. BRADLEY (dissenting opinion)

    13. Winnebago County v. C.S., 2020 WI 33 (April 10, 2020).

    HOLDING: Involuntary medication orders issued for state prison inmate under statutes that did not require a finding of dangerousness were unconstitutional.

    VOTE: 4-3. ZIEGLER (majority opinion), joined by A.W. BRADLEY, KELLY, and DALLET.

    R. BRADLEY (dissenting opinion).

    HAGEDORN (dissenting opinion), joined by ROGGENSACK.

    14. Pulkkila v. Pukkila, 2020 WI 34 (April 14, 2020).

    HOLDING: 1) The marital settlement agreement in this case did not establish the exclusive remedy for breach of a life insurance provision contained therein. 2) Because the circuit court did not make findings that would support imposition of a constructive trust, the court of appeals erroneously imposed a constructive trust on the life insurance proceeds.

    VOTE: 4-1. A.W. BRADLEY (majority opinion), joined by ROGGENSACK, ZIEGLER, and KELLY.

    R. BRADLEY (dissenting opinion).

    DALLET and HAGEDORN (did not participate).

    WISBAR SUMMARY: Constructive Trust Could Be Remedy for Divorce Agreement Breach on Life Insurance Proceeds (April 20, 2020).

    15. Barney v. Mickelson, 2020 WI 40 (April 24, 2020).

    HOLDING: The circuit court properly read the alternative-methods instruction to the jury.

    VOTE: 7-0. DALLET (unanimous opinion). No separate writings.

    WISBAR SUMMARY: Supreme Court Upholds Jury Verdict in Medical Malpractice Case (April 27, 2020).

    16. Langlade County v. D. J. W., 2020 WI 41 (April 24, 2020).

    HOLDING: Circuit courts are required to make specific findings in recommitment hearings, and the record in this case did not support a finding of “dangerousness.”

    VOTE: 5-2. A.W. BRADLEY (majority opinion), joined by ZIEGLER, KELLY, DALLET, and HAGEDORN.

    ROGGENSACK (dissenting opinion).

    R. BRADLEY (dissenting opinion).

    17. Wisconsin Legislature v. Palm, 2020 WI 42 (May 13, 2020).

    HOLDING: Department of Health Services (DHS) Secretary-Designee Andrea Palm’s Emergency Order 28, also known as the “Safer at Home Order,” was unlawful, invalid, and unenforceable.

    VOTE: 4-3. ROGGENSACK (majority opinion), joined by ZIEGLER, R. BRADLEY, and KELLY.

    ROGGENSACK (concurring opinion).

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

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

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

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

    HAGEDORN (dissenting opinion), joined by A.W. BRADLEY, and DALLET (¶¶198-258).

    WISBAR SUMMARY: In 4-3 Decision, Wisconsin Supreme Court Blocks Statewide Safe-at-Home Order (May 14, 2020)

    18. Correa v. Woodman’s Food Market, 2020 WI 43 (May 19, 2020)

    HOLDING: For the purpose of applying the safe-place statute, there was sufficient evidence to show the store had constructive notice of an unsafe condition.

    VOTE: 6-0. KELLY (unanimous opinion). No separate writings.

    A.W. BRADLEY (withdrew from participation).

    19. Emer’s Camper Corral, LLC, 2020 WI 46 (May 21, 2020).

    HOLDING: In a malpractice action against an insurance agency, the plaintiff must prove not only that the coverage requested was commercially available but that an insurer actually would write the policy for the insured.

    VOTE: 6-1. KELLY (majority opinion), joined by A.W. BRADLEY, ZIEGLER, R. BRADLEY, DALLET and HAGEDORN.

    ROGGENSACK (dissenting opinion).

    20. Warren v. Meisner, 2020 WI 55 (June 11, 2020).

    HOLDING:: The defendant’s claim was that his postconviction counsel was ineffective for failing to file a motion for postconviction relief in the trial court that asserted ineffectiveness of his trial counsel should have been filed in the circuit court.

    VOTE: 7-0. A.W. BRADLEY (unanimous opinion). No separate writings.

    21. Quick Charge Kiosk LLC v. Kaul, 2020 WI 54 (June 12, 2020).

    HOLDING: The “cellphone charging kiosks” that are the subject of this litigation are illegal gambling machines.

    VOTE: 7-0. HAGEDORN (unanimous opinion). No separate writings.

    22. Miller v. Carroll, 2019 WI 56 (June 16, 2020).

    HOLDING: A judge’s social media contacts with a party rebutted the presumption of judicial impartiality and violated due process.

    VOTE: 4-3. DALLET (majority opinion), joined by ROGGENSACK, ZIEGLER, and A.W. BRADLEY (except for footnote 18).

    A.W. BRADLEY (concurring opinion).

    ZIEGLER (concurring opinion).

    DALLET (concurring opinion), joined by HAGEDORN

    HAGEDORN (dissenting opinion) joined by R. BRADLEY, and KELLY (except for footnote 1 and ¶¶120-24).

    WISBAR SUMMARY: Judge Created Serious Risk of Actual Bias by Facebook “Friending” Litigant (June 25, 2020)

    23. Skindzelewski v. Smith, Jr., 2020 WI 57 (June 18, 2020).

    HOLDING:Defendant who was wrongfully jailed because the statute of limitations had run on a theft prosecution was precluded by the actual innocence bar from suing his former defense counsel, who had missed the issue.

    VOTE: 5-1. R. BRADLEY (majority opinion) joined by ROGGENSACK, C.J., ZIEGLER, and KELLY.

    HAGEDORN (concurring opinion).

    DALLET (dissenting opinion).

    A.W. BRADLEY (withdrew from participation).

    WISBAR SUMMARY: Supreme Court: No Exception to Actual Innocence Rule in Legal Malpractice Case (June 18, 2020)

    24. Town of Delafield v. Central Transport Kriewaldt, 2020 WI 61 (June 26, 2020).

    HOLDING: Seasonal weight limitations placed on trucks by a municipality fell within the scope of “reasonable access” mandated by federal law.

    VOTE: 7-0. HAGEDORN (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, ZIEGLER, and DALLETT.

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

    25. Papa v. Wisconsin Dept. of Health Services, 2020 WI 66 (July 9, 2020).

    HOLDING: DHS recoupment policy for service providers that hinged on the adequacy of the documentation irrespective of the actual provision of appropriate care exceeded DHS’s authority.

    VOTE: 6-0. ZIEGLER (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, DALLET; also joined by R. BRADLEY and KELLY (except for ¶¶46-48).

    KELLY (concurring in part and dissenting in part), joined by R. BRADLEY.

    HAGEDORN (did not participate)

    WISBAR SUMMARY: Supreme Court: DHS Exceeded Authority with Medicaid Recoupment Policy (July 20, 2020)

    26. Service Employees International Union (SEIU) v. Vos, 2020 WI 67 (July 9, 2020).

    HOLDING:Legislation directed at curbing the authority of an incoming Governor and an incoming Attorney General was constitutional on its face; certain provisions pertaining to “guidance documents” were found to be unconstitutional while others were not.

    VOTE: (7-0) (5-2) (4-3). HAGEDORN (unanimous opinion addressing all issues other than the provisions of 2017 Wis. Act 369 concerning guidance documents): Part II.E.2.-4. (7-0)

    HAGEDORN (majority opinion): Parts I, II.A.-D., II.E.1., and III, joined by ROGGENSACK, ZIEGLER, R. BRADLEY, and KELLY (5-2).

    KELLY (majority opinion with respect to the provisions of 2017 Wis. Act 369 concerning guidance documents), joined by A. W. BRADLEY, R. BRADLEY, and DALLET (4-3).

    ROGGENSACK (concurring in part and dissenting in part).

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

    HAGEDORN (concurring in part and dissenting in part) joined by ZIEGLER.

    WISBAR SUMMARY: State Supreme Court Largely Upholds 2018 Lame Duck Legislation (July 9, 2020).

    27. Bartlett v. Evers, 2020 WI 68 (July 10, 2020)

    HOLDING: There was no majority opinion in this case. However, a majority of justices reached conclusions on the validity of several challenges to the Governor’s partial vetoes of the state’s 2019-2021 biennial budget bill.

    VOTE: (5-2) (5-2) (4-3). ROGGENSACK (concurring in part and dissenting in part).

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

    KELLY (concurring in part and dissenting in part), joined by R. BRADLEY

    HAGEGDORN (concurring opinion), joined by ZIEGLER.

    WISBAR SUMMARY: Divided Wisconsin Supreme Court Rules on Governor’s Partial Vetoes (July 14, 2020)

    28. Wisconsin Small Business United v. Brennan, 2020 WI 69 (July 10, 2020).

    HOLDING:The doctrine of laches bars the petitioners’ challenge to the Governor’s partial vetoes in the 2017-19 budget bill.

    VOTE: 5-2. HAGEDORN (majority opinion), joined by ROGGENSACK, A.W. BRADLEY, ZIEGLER, and DALLET.

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

    WISBAR SUMMARY: Supreme Court: Challenge to Former Gov. Walker’s Budget Bill Vetoes Barred (July 10, 2020)

    Criminal Case Decisions

    1. State v. Hinkle, 2019 WI 96 (Nov. 12, 2019).

    HOLDING: The Fond du Lac County adult criminal court had exclusive original jurisdiction over a juvenile defendant because juvenile court jurisdiction had already been waived in a pending prosecution in Milwaukee County.

    VOTE: 4-2. R. BRADLEY (majority opinion), joined by ROGGENSACK, ZIEGLER, and KELLY.

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

    HAGEDORN (did not participate).

    WISBAR SUMMARY: Tried as Adults: Supreme Court Clarifies ‘Once Waived, Always Waived’ Rule (Nov. 13, 2019)

    2. State v. Anderson, 2019 WI 97 (Nov. 15, 2019).

    HOLDING: A police officer had reasonable suspicion to search the person of a defendant who was on extended supervision.

    VOTE: 7-0. A.W.BRADLEY (majority opinion), joined by ROGGENSACK, KELLY, DALLET, and R. BRADLEY.

    HAGEDORN (concurring opinion), joined by ZIEGLER.

    3. State v. Lopez, 2019 WI 101 (Nov. 27, 2019) (consolidated)

    HOLDING: The state lawfully charged multiple misdemeanor retail thefts as a single felony retail theft by invoking the provisions of Wis. Stat. section 971.36 (3)(a).

    VOTE: 5-2. ZIEGLER (majority opinion), joined by ROGGENSACK, KELLY, and HAGEDORN.

    R. BRADLEY (concurring opinion) joined by KELLY (in part).

    KELLY (concurring opinion).

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

    WISBAR SUMMARY: Supreme Court: Multiple Minor Retail Thefts Can be Aggregated into Felony (Dec. 2, 2019)

    4. State v. Roberson, 2019 WI 102 (Dec. 3, 2019).

    HOLDING: Eyewitness-identification procedures are subject to the “linchpin” of “reliability,” and therefore State v. Dubose is “unsound in principle” and is overruled.

    VOTE: 5-2: ROGGENSACK (opinion), joined by ZIEGLER.

    R. BRADLEY (concurs, except for ¶¶41-42), joined by KELLY.

    HAGEDORN (concurring opinion).

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

    5. State v. Pope, 2019 WI 106 (Dec. 17, 2019).

    HOLDING: In an appeal from a 1996 conviction for which the entire trial transcript is unavailable, the court declined to presume prejudice; rather, the defendant must make a facially valid claim of error.

    VOTE: 4-3. ZIEGLER (majority opinion), joined by ROGGENSACK, KELLY and HAGEDORN.

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

    6. State v. Coffee, 2020 WI 1 (Jan. 9, 2020).

    HOLDING: The circuit court’s reliance on inaccurate sentencing information was harmless error.

    VOTE: (6-1) (4-3): ZIEGLER (announced the mandate of the Court and delivered the majority opinion): Parts I,II, III, and IV.C. and D., joined by ROGGENSACK, KELLY, and HAGEDORN.

    KELLY (concurring opinion) joined by R. BRADLEY (¶¶59-63).

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

    WISBAR SUMMARY: Sentencing Court Relied on Inaccurate Information but Error was Harmless (Jan. 24, 2020)

    7. State v. Counihan, 2020 WI 12 (Feb. 13, 2020).

    HOLDINGS: 1) The defendant did not forfeit her direct challenge to the circuit court’s consideration of previously unknown information at sentencing by failing to object at the sentencing hearing. 2) The defendant’s due-process rights were not violated by the circuit court’s use of previously unknown information regarding sentences imposed on similarly situated defendants.

    VOTE: 7-0. A.W. BRADLEY (majority opinion), joined by ROGGENSACK, ZIEGLER, DALLET, and HAGEDORN; joined by and R. BRADLEY and KELLY (with respect to ¶¶39-51).

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

    8. State v. Neill, 2020 WI 15 (Feb. 14, 2020).

    HOLDING: The circuit court erroneously calculated the minimum fine for third-offense OWI when multiple penalty enhancers were involved.

    VOTE: 7-0. R. BRADLEY (unanimous opinion). No separate writings.

    9. State v. Brantner, 2020 WI 21 (Feb. 25, 2020)

    HOLDINGS: 1) The case against the defendant was properly venued in Fond du Lac County. 2) The two counts of possessing oxycodone without a prescription were multiplicitous.

    VOTE: 6-0. KELLY (majority opinion), joined by A.W. BRADLEY, R. BRADLEY, and DALLET; joined by ROGGENSACK and ZIEGLER (as to parts I, II, III.B, III.C, and IV).

    ROGGENSACK (concurring opinion), joined by ZIEGLER.

    HAGEDORN (did not participate).

    10. State v. Schultz, 2020 WI 24 (March 4, 2020).

    HOLDING: When the entire record of the defendant’s first trial is considered, he was not placed twice in jeopardy by a later prosecution.

    VOTE: 4-3. R. BRADLEY (majority opinion), joined by ROGGENSACK, ZIEGLER, and KELLY.

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

    11. State v. Harrison, 2020 WI 35 (April 17, 2020).

    HOLDING: The defendant was not entitled to sentence credit under Wis. Stat. section 973.155 because the days he spent in custody were not in connection with the course of conduct for which sentence was imposed.

    VOTE: 7-0. ROGGENSACK (majority opinion), joined by ZIEGLER, R. BRADLEY, KELLY, and HAGEDORN.

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

    12. State v. Gutierrez, 2020 WI 52 (June 3, 2020).

    HOLDING: 1) The circuit court properly excluded DNA evidence offered by the defense and properly admitted other-act evidence offered by the prosecution. 2) The defendant was not denied his right to an impartial jury.

    VOTE: 5-0. DALLET (unanimous opinion). No separate writings.

    HAGEDORN (did not participate); A.W. BRADLEY (withdrew from participation).

    13. State v. Coffee, 2020 WI 53 (June 5, 2020).

    HOLDING: There was no majority opinion in this case. Five justices heard the case. Four of them agreed that the “reasonableness approach” described below is to be used in evaluating the search of the defendant’s vehicle following his arrest for operating while intoxicated (OWI), but they split (2-2) on the application of this test to the facts of this case. Ultimately, three of the five justices voted to uphold the search.

    VOTE: 3-2. ROGGENSACK (opinion), joined by ZEIGLER.

    KELLY (concurring opinion).

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

    A.W. BRADLEY (withdrew from participation); HAGEDORN (did not participate)

    14. State v. Brooks, 2019 WI 60 (June 25, 2020).

    HOLDING: The impoundment of the defendant’s vehicle by the police was not a valid exercise of the “community caretaker” exception to the Fourth Amendment warrant requirement.

    VOTE: 7-0. KELLY (unanimous opinion). No separate writings.

    WISBAR SUMMARY: Supreme Court: Police Impound, Search of Vehicle was Unconstitutional (June 30, 2020)

    15. State v. Brown, 2020 WI 63(July 3, 2020).

    HOLDING: The officer did not unlawfully extend a traffic stop when asking the driver whether there was anything on his person that the officer “needed to know about” or “be concerned about.”

    VOTE: 4-1. R. BRADLEY (majority opinion), ROGGENSACK, ZIEGLER, and KELLY.

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

    DALLET (dissenting opinion).

    A.W. BRADLEY (withdrew from participation); HAGEDORN (did not participate).

    WISBAR SUMMARY: WI Supreme Court: Police Traffic Stop Did not Violate the Fourth Amendment (July 6, 2020).

    16. State v. Dobbs, 2020 WI 64 (July 3, 2020).

    HOLDING: The trial court properly excluded defense expert testimony on false confessions; any violations of the Miranda doctrine were harmless error.

    VOTE: 7-0. DALLET (unanimous opinion): Parts I, II, and III.C.

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

    DALLET (majority opinion): Part III.B., joined by A.W. BRADLEY, R. BRADLEY, and KELLY.

    ZIEGLER (concurring opinion), joined by ROGGENSACK and HAGEDORN.

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

    17. State v. Muth, 2020 WI 65 (July 7, 2020).

    HOLDING: There was no majority opinion in this case, although a majority of the justices affirmed the circuit court’s order of restitution.

    VOTE: 5-2. ROGGENSACK (opinion announced the mandate of the Court), joined by ZIEGLER (as to Parts II.A., B. and D., except for ¶¶58-60); joined by KELLY (as to Parts II.A., B., and D).

    DALLET (concurring opinion), joined by A.W. BRADLEY and R. BRADLEY; joined by ZIEGLER (as to ¶¶63-70 and ¶¶72-78).

    KELLY (concurred in part and dissented in part), joined by HAGEDORN (as to Parts I. and II).

    HAGEDORN (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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