Administrative Law

Wis. Stat. chapter 227 Challenges to Administrative Decisions – Standing

Friends of Black River Forest v. Kohler Co., 2022 WI 52 (filed 30 June 2022)

HOLDING: The petitioners lacked standing to challenge a land-exchange deal between the Wisconsin Department of Natural Resources (DNR) and Kohler Co.

SUMMARY: This case involved standing to challenge administrative decisions in the context of a petition for judicial review, which is governed by Wis. Stat. sections 227.52 and 227.53. There are two elements of standing in Wisconsin. First, a petitioner must establish “injury in fact”: whether the petition alleges an injury to the interest of the petitioner that is a direct result of agency action (¶ 21). The second element is whether the interest asserted is recognized by law (see ¶ 18). Though some previous decisions described the second element as a “zone of interests” inquiry, the court in this case concluded that this nomenclature has no basis in the text of the above-cited statutes (¶ 2).

In a majority opinion authored by Justice R.G. Bradley, the court said the following: “In clarifying that the ‘zone of interests’ expression of standing has no basis in Wisconsin law, we retain our well-established standing inquiry for challenges to administrative decisions. In order for Wis. Stat. ch. 227 petitioners to satisfy the second standing element, they must identify a statute which protects, recognizes or regulates an interest the petitioners allege has been ‘adversely affected.’ Wis. Stat. §§ 227.01(9), 227.52, 227.53(1). Absent from this purely statutory analysis is any subjective judicial assessment of whether the asserted interest falls within a ‘zone of interests’ under an identified statute” (¶ 46).

This case involved a challenge to a land exchange between Kohler Co. and the Wisconsin DNR. It involved an area within a state park that Kohler sought to acquire in connection with its plan to develop a golf course. The Friends of the Black River Forest and Claudia Bricks (hereinafter Friends) filed a Wis. Stat. chapter 227 petition seeking judicial review of the land exchange.

The circuit court dismissed Friends’ challenge, concluding that they did not have standing. In an unpublished decision, the court of appeals reversed the circuit court. The supreme court reversed the court of appeals, concluding that Friends lacked standing to challenge the land exchange.

Friends alleged five aesthetic, recreational, conservational, and procedural injuries arising from the land-swap decision; the supreme court assumed without deciding that these alleged injuries satisfy the first prong (“injury in fact”) of standing analysis (see ¶ 32). However, as to the second prong of standing analysis, the court concluded that none of the statutes or administrative regulations cited by Friends (Wis. Stat. sections 27.01, 23.11, and 23.15 and Wis. Admin. Code sections NR 1.47 and 44.04) protects, recognizes, or regulates Friends’ asserted interests (see ¶ 47). Accordingly, Friends lacked standing to challenge the land exchange between Kohler and the DNR (id.). (Editors’ Note: The petitioners did not bring a claim under the Wisconsin Environmental Protection Act. See ¶ 26 n.10.)

Justice Hagedorn filed a concurring opinion. Justice Karofsky filed a dissenting opinion that was joined in by Justice A.W. Bradley and Justice Dallet.

Judicial Review – “Finality” Requirement

Container Life Cycle Mgmt. LLC v. Wisconsin DNR, 2022 WI 45 (filed 23 June 2022)

HOLDING: A letter by the Wisconsin Department of Natural Resources (DNR) was not subject to judicial review because it did not adversely affect the party’s substantial interests.

SUMMARY: Container Life Cycle Management LLC (hereinafter CLCM) refurbishes used chemical containers and is regulated by the DNR. In 2017, the DNR notified CLCM that CLCM had violated its existing air permit. In 2018, the DNR sent CLCM several letters with which CLCM disagreed. In January 2019, CLCM petitioned the circuit court to review several DNR letters dated December 2018. The circuit court granted the DNR’s motion to dismiss the petition on the ground that the December letters did not constitute a final determination of the pending matters (see ¶ 23). In an unpublished decision, the court of appeals affirmed.

The supreme court affirmed in a majority opinion authored by Justice A.W. Bradley. The issue raised in this case implicates what it means for a decision to “adversely affect the substantial interests” of a party and thus to be reviewable under Wis. Stat. section 227.52 and the case law construing it (¶ 30). The key letter did not “affect CLCM’s substantial interests” (¶ 39). It did not “conclusively determine” certain issues. Moreover, “a letter indicating that CLCM simply must comply with the process to get a permit, which may accrue some cost to CLCM, does not adversely affect CLCM’s substantial interests” (¶ 44).

Justice R.G. Bradley, joined by Chief Justice Ziegler, dissented based on their interpretation of the December letters.

Public Service Commission – Discovery Subpoena – Due Process

County of Dane v. Public Serv. Comm’n of Wis., 2022 WI 61 (filed 7 July 2022)

HOLDING: The circuit court improperly denied a motion to quash a discovery subpoena served on a Public Service Commission (PSC) commissioner.

SUMMARY: The PSC approved a transmission line, and the approval sparked a lawsuit by Dane County and others. One party sought to expand the record produced before the PSC, as provided by Wis. Stat. section 227.57(1), with the objective of finding grounds to overturn the PSC’s decision based on the alleged bias of several commissioners (see ¶¶ 6, 10). The circuit court permitted the expansion of the record by concluding that an allegation of the “appearance of bias” was a due-process violation that was sufficient to invalidate the PSC’s decision (¶ 15). Commissioner Mike Huebsch requested that the subpoenas be quashed, but the circuit court denied the request (see ¶ 16). After further proceedings, the supreme court granted an emergency petition for supreme court review that stayed further action, including trial testimony (see ¶ 18).

The supreme court reversed the circuit court’s order. In a majority opinion authored by Justice Roggensack, four justices agreed “that the circuit court improperly denied Huebsch’s motion to quash the discovery subpoena he received. Driftless’ allegations of bias do not come close to the level of alleging a cognizable due process claim under Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 884 (2009), and Miller v. Carroll, 2020 WI 56, ¶ 24, 392 Wis. 2d 49, 944 N.W.2d 542” (¶ 4). A majority could not agree “on how to address the procedural posture of this case” (id.).

Justice Hagedorn, who joined the majority as to paragraph 4, filed a concurring opinion that pursued a different procedural path that focused on document subpoenas under Wis. Stat. section 805.07(3) and that had the same “practical effect” as the path chosen in the majority-lead opinion.

Justice Karofsky, joined by Justice A.W. Bradley and Justice Dallet, dissented. “Plain and simple, this appeal is moot” (¶ 99).

Civil Procedure

Primary Jurisdiction Doctrine – Legal Issues – Agency Issues

Wisconsin Prop. Tax Consultants Inc. v. Wisconsin Dep’t of Revenue, 2022 WI 51 (filed 30 June 2022)

HOLDING: The circuit court should not have deferred to an administrative agency because the issue involved a question of law.

SUMMARY: In 2017, the Wisconsin Legislature enacted new tax exemptions relating to “machinery, tools, and patterns, not including such items used in manufacturing.” In a letter to the Wisconsin Department of Revenue (DOR), Wisconsin Property Tax Consultants Inc. and Wisconsin Manufacturers and Commerce Inc. (hereinafter WMC) contended that the exemption extended to manufacturers. The DOR disagreed in a reply letter. WMC responded by filing this declaratory-judgment action that raised three issues: 1) was the DOR letter an unpromulgated rule, 2) did the DOR erroneously interpret the statute, and 3) was the DOR’s position unconstitutional.

The circuit court dismissed all three claims, observing that the Tax Appeals Commission was then considering the statute at issue. In a published decision, the court of appeals affirmed. See 2021 WI App 47.

The supreme court reversed the court of appeals in a majority opinion authored by Justice Hagedorn. “Our cases have consistently drawn the line between fact-bound and agency-specialized questions (which may warrant deference) and predominately legal or nonspecialized questions (which do not)” (¶ 7). Since the decision in Tetra Tech EC Inc. v. Wisconsin Department of Revenue, 2018 WI 75, 382 Wis. 2d 496, 914 N.W.2d 21, courts no longer defer to “administrative agencies’ conclusions of law in many circumstances” (¶ 8). “Although the analysis will depend on the specifics of each case, courts generally should decide pure questions of law when they are presented, particularly when those questions lie outside an agency’s area of expertise” (¶ 9).

Applying these principles to the single claim raised by the WMC regarding unpromulgated rules, the supreme court held that it presented a legal issue that the circuit court should have decided. Simply put, the “unpromulgated rule claim in this case would not benefit from the Tax Appeals Commission’s specialized expertise in tax law or its fact-finding capabilities” (¶ 13).

Chief Justice Ziegler concurred but noted that WMC could not bring a claim before the Tax Appeals Commission on this issue (see ¶ 16). Justice Roggensack, joined by Justice R.G. Bradley, filed a separate concurrence stressing that the commission had no jurisdiction to decide the unpromulgated-rule issue (see ¶ 21).

Construction Liens

Lien Waivers – Limiting the Waivers

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

HOLDING: The construction-lien-waiver document in this case satisfied the statutory requirements of Wis. Stat. section 779.05(1) necessary to limit the waiver of the plaintiff’s lien rights.

SUMMARY: Riverworks City Center LLC contracted with AMCON Design and Construction Co. to construct a commercial building and parking lot. AMCON subcontracted with Great Lakes to perform excavating work for installation of the parking lot. The original contract amount for this work was $37,165, but after the installation started, Great Lakes encountered poor soil quality necessitating additional excavating work. As a result, and following a series of change orders, the amount AMCON owed Great Lakes ultimately totaled $222,238.

After completing its work on the project, Great Lakes invoiced AMCON for $222,238 and, when no payment was received, served Riverworks and Dollar Tree Stores (the anchor tenant of the building) with a notice of intent to file a claim for a construction lien. At that point, and upon AMCON’s invitation, the owner of Great Lakes, Duwayne Bruckner, went to AMCON’s office to collect payment. A representative from AMCON told Bruckner only $33,448 was available for payment and presented to Bruckner a preprinted lien waiver form titled “Waiver of Lien to Date” for his signature. Before signing the waiver and accepting the $33,448 check, Bruckner crossed off “to Date” in the document title, replaced it with the handwritten word “Partial,” and initialed the document next to the modification. Bruckner made no other changes to the form.

Following unsuccessful efforts to receive payment for the outstanding amount due, Great Lakes filed a subcontractor claim for lien pursuant to Wis. Stat. section 779.06 and sued for the balance of $188,790. Riverworks moved for partial summary judgment as to the claim for foreclosure of the lien on the ground that Great Lakes did not comply with Wis. Stat. section 779.05(1)’s procedure for limiting the waiver to a particular portion of the work, resulting in a full waiver of its lien rights.

The circuit court agreed and granted Riverworks’ motion. In a published decision, the court of appeals affirmed. See 2021 WI App 23. In a majority opinion authored by Justice R.G. Bradley, the supreme court reversed the court of appeals.

Construction liens are purely statutory in nature and can be waived. Any such waivers are deemed to waive all lien rights “except to the extent that the [waiver] document specifically and expressly limits the waiver to apply to a particular portion of such labor, services, materials, plans, or specifications.” Wis. Stat. § 779.05(1). Any ambiguity in the waiver document is construed against the person signing it.

Riverworks asserted that the handwritten modification described above created an ambiguity because the printed body of the waiver document otherwise constituted a full waiver, under which Great Lakes “waive[s] and release[s] any and all lien or claim of, or right to, lien, … on account of labor, services, material, fixtures, apparatus or machinery furnished to this date,” and as of that date, all of the work had been completed. Riverworks argued the resulting ambiguity must be construed against the person signing it. Great Lakes disagreed, asserting that the waiver is unambiguously a partial waiver because there is no competing interpretation of the document.

The supreme court agreed with Great Lakes “that the waiver document is not ambiguous and satisfies § 779.05(1) as a partial waiver of the lien with respect to only the $33,448 paid. The handwritten term ‘Partial,’ in conjunction with the specific amount of consideration, indicates the lien was waived only to the extent of that portion of the total amount owed” (¶ 12).

Said the court: “The lien waiver in this case cannot be construed as a full waiver because the handwritten word ‘Partial’ must be given effect. Because the word ‘Partial’ is handwritten, it governs over the preprinted language waiving all lien rights to date” (¶ 16). The court further concluded that the word “Partial” “unambiguously applies to the ‘particular portion of such labor, services, materials, plans, or specifications’ represented by the amount of the ‘$33,448 Dollars’ written on the waiver form and received in consideration for the partial release” (¶ 19).

Justice Dallet filed a dissenting opinion that was joined in by Justice A.W. Bradley.

Criminal Law

Human Trafficking – Victims – Affirmative Defenses

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

HOLDING: Crimes committed by victims of human trafficking are subject to a complete defense provided by Wis. Stat. section 939.46 if there is a “logical, causal connection between the offense and the trafficking.”

SUMMARY: Kizer is charged with first-degree intentional homicide and other felonies. She claims that she was a victim of human trafficking engaged in by the deceased individual. Kizer, who has not yet gone to trial, asserted that she might raise the affirmative defense provided by Wis. Stat. section 939.46(1m), which shields victims of human trafficking or child sex trafficking. The circuit court judge narrowly construed the statute, denying that Kizer could raise the defense. In a published decision, the court of appeals reversed the circuit court. See 2021 WI App 46.

The supreme court affirmed the court of appeals in a majority opinion authored by Justice Dallet (except for paragraphs 27-29 and notes 9-11, which involve the rule of lenity and principles of statutory construction). The court held that Wis. Stat. section 939.46(1m) provides a complete defense to certain criminal offenses, including intentional homicide; thus, it does not simply mitigate them. This conclusion follows from the rule of lenity. Moreover “an offense is ‘committed as a direct result’ of a violation of the human-trafficking statutes if there is a logical, causal connection between the offense and the trafficking such that the offense is not the result, in significant part, of other events, circumstances, or considerations apart from the trafficking violation” (¶ 2). “[I]t is not enough to say simply that because the defendant is a victim of human trafficking, any offense they commit subsequently must be a direct result of the trafficking” (¶ 19). The supreme court declined to rule on whether, as a factual matter, Kizer can raise the defense at trial.

Justice R.G. Bradley concurred, except in the discussion of the rule of lenity at paragraphs 27-29. Justice Roggensack dissented, joined by Chief Justice Ziegler and Justice Hagedorn, contending that Wis. Stat. section 939.46 is not a complete defense but mitigates first-degree intentional homicide to second-degree intentional homicide (see ¶ 44).

Criminal Procedure

Right to Counsel – Government Agents – False Friends

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

HOLDING: Statements made to another jail inmate did not violate the Sixth Amendment right to counsel.

SUMMARY: The defendant shot and killed a person. While in custody and after having been formally charged, the defendant made incriminating statements to another jail inmate (hereinafter “the informant”), who recorded them on a device provided by law enforcement officers. The device had been given to the informant to assist in the investigation of another jail inmate in an unrelated matter. Defense counsel here did not object to the introduction of the recorded statements at trial.

The jury convicted the defendant of first-degree intentional homicide and of being a felon in possession of a firearm. In a published decision, the court of appeals reversed the conviction on grounds that use of the recording violated the defendant’s Sixth Amendment right to counsel. See 2021 WI App 32.

The supreme court reversed the court of appeals in a majority opinion authored by Justice Roggensack. The use of the recorded statements did not violate the defendant’s Sixth Amendment right, and the failure to object to their introduction did not constitute ineffective assistance of counsel. The informant had been provided the device for use in another, unrelated case.

In short, the court found no “agency relationship” between the police officers and the informant, equipped with a recording device, who told detectives that he would question the defendant about the murder charge. Rather, the informant had made a “unilateral decision to volunteer his information to law enforcement” (¶ 61). The law enforcement officers had not directed the informant to question the defendant nor had they paid or promised him anything regarding this case (see ¶ 62). As to the claim of ineffective assistance of counsel, the court held that on these facts the defendant had not been prejudiced by any error in the use of the statement (see ¶ 76).

Justice Dallet concurred, describing the case as a “textbook example” of a Sixth Amendment violation but one that was not prejudicial in light of the mountain of evidence pointing to the defendant’s guilt. She was joined by Justice A.W. Bradley and Justice Karofsky.

Terry Stops – Reasonable Suspicion – ShotSpotter Technology

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

HOLDING: The investigative stop of the defendant was supported by reasonable suspicion to believe that he was engaged in criminal activity.

SUMMARY: This case involved ShotSpotter technology and its place in the calculus of the reasonable suspicion required to conduct a Terry stop of an individual. As described by a police officer at the suppression hearing conducted in the circuit court, ShotSpotter is a “gunshot location system.” The officer explained that “it uses ‘acoustic sensors’ to ‘record sounds to try to locate … gunfire.’ More specifically, ‘when the acoustic sensors pick-up the sounds of gunfire, [they] send[] an alert to an office in California. There is somebody standing by in the office who listens to the audio and … if it sounds like actual gunshots, they will send the alert’” (¶ 4). [Editors’ Note: Defendant Nimmer did not argue that the time that elapses between ShotSpotter detecting gunfire and notifying officers is sufficiently long to be a material fact. Nor did he dispute ShotSpotter’s reliability (see ¶¶ 4-5).]

Two Milwaukee police officers received a ShotSpotter alert. When they arrived on the scene no more than one minute after receiving the report, they saw only one person: defendant Nimmer. After noticing the squad car, Nimmer “accelerated his pace” away from it. He also dug around his left side with his left hand. One of the officers stepped out of the squad car and walked toward Nimmer, who “bladed” his left side away from the officer while continuing to dig around his left side. [Editors’ Note: “Blading” is a technique used to conceal a weapon. “‘[A] person carrying a gun … turn[s] 90 degrees away from the person observing or approaching, placing his body between the gun and the other person’” (¶ 1 n.1) (citation omitted).]

The officers considered these movements suspicious because they were consistent with actions a person might take in attempting to conceal a weapon. The officers stopped Nimmer to investigate whether he was involved in the shooting. Concerned for their safety, one of the officers frisked Nimmer and found a handgun. Nimmer is a convicted felon, and the officers arrested him for being a felon in possession of a firearm.

Nimmer moved to suppress the gun, arguing that it was found during a stop for which there was no reasonable suspicion. The circuit court denied the motion, and the defendant pleaded guilty as charged. In an unpublished per curiam decision, the court of appeals reversed. In a majority-lead opinion authored by Justice R.G. Bradley, the supreme court reversed the court of appeals.

An officer without a warrant can briefly stop an individual if the officer has reasonable suspicion to believe the individual is involved in criminal activity. Reasonable suspicion depends on the totality of the circumstances.

In this case, the court concluded that “[s]everal facts known to the officers and accepted by the circuit court collectively give rise to reasonable suspicion that Nimmer was involved in criminal activity: (1) ShotSpotter generates reliable reports of gunfire in near real-time; (2) within a minute of receiving the ShotSpotter report, the officers arrived on scene; (3) Nimmer was at nearly the exact location where ShotSpotter reported gunfire; (4) Nimmer was the only person the officers saw; and (5) Nimmer made furtive movements upon noticing the officers” (¶ 27).

Accordingly, the supreme court concluded that the stop of the defendant was lawful. The defendant did not challenge the frisk of his person following the stop (see ¶ 23 n.10).

Part of Justice R.G. Bradley’s opinion did not garner majority support. In that part, the justice suggested that if the crime being investigated is grave enough, police officers can stop and frisk without as much suspicion as would be required in a less serious type of criminal case. Only Chief Justice Ziegler and Justice Roggensack joined this portion of Justice R.G. Bradley’s opinion.

Justice Dallet filed a concurring opinion that was joined in by Justice A.W. Bradley and Justice Karofsky. Justice Hagedorn also filed a concurring opinion.

Jury Trials – Sick Juror – Judge’s Meeting with Juror Without Counsel Present

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

HOLDINGS: The numerous holdings in this case are summarized in the numbered paragraphs below.

SUMMARY: Defendant Spencer was tried before a jury on one count of felony murder and one count of felon in possession of a firearm. After the close of evidence – but before the jury began deliberating – the circuit judge was informed by a bailiff that one of the jurors (Juror 2) was ill; the juror had been lying down in the jury room. At the judge’s suggestion, the sick juror moved to the judge’s chambers to rest. Thereafter, the judge met with the juror to inquire about the juror’s health. No attorneys were present at this meeting.

According to the judge, the juror felt queasy and light-headed; the juror thought these symptoms were related to some health issues she had recently been experiencing and she did not know how much time she would need before she could continue participating in the trial. After conferring with counsel and at the request of the defense attorney, the judge asked the juror whether the health issues had anything to do with her service as a juror or with the behavior of any of the other jurors; the juror replied, “Oh, no. This has nothing to do with the trial” (¶ 15).

Ultimately, the judge dismissed the sick juror and proceeded with the remaining 12 jurors. Defense counsel moved for a mistrial, which the judge denied. The jury convicted the defendant on both charges.

The defendant filed a postconviction motion asserting that the judge’s ex parte contact with the juror violated the defendant’s Sixth Amendment right to counsel and claiming that defense counsel was ineffective for failing to object to certain hearsay testimony that was admitted during the trial. The circuit court denied the motion without an evidentiary hearing.

In an unpublished decision, the court of appeals affirmed the denial of the defendant’s motion, concluding that any error implicating the Sixth Amendment was harmless, and remanded the case to the circuit court to conduct an evidentiary hearing on the ineffective-assistance-of-counsel claim. In a majority opinion authored by Justice R.G. Bradley, the supreme court affirmed in part and reversed in part.

A majority of the supreme court concluded as follows:

1) “Considering both the substance and the timing of the meeting, we conclude the judge’s communications with the juror did not violate Spencer’s Sixth Amendment rights because the meeting did not constitute a critical stage at which the presence of counsel was required. Trial counsel was present for the court’s decision to dismiss the juror, which was made on the record and with counsel’s participation” (¶ 24). “[T]he judge’s meeting with Juror 2 regarding her health did not constitute a critical stage of the proceedings because the meeting (1) occurred prior to deliberations and (2) involved only a discussion of the juror’s health and ability to proceed. Both the timing and substance of the communications dictate that counsel’s absence did not result in a constitutional violation” (¶ 31).

2) The defendant’s trial counsel was present at the conference concerning the dismissal of the juror and was present for the judge’s decision to dismiss the juror. The court asked the juror a question on behalf of defense counsel regarding the nature of the juror’s illness, and counsel was invited to make motions related to the sick-juror issue. “The decision to dismiss [the juror] occurred on the record, in the presence of counsel, and with counsel’s participation. That is all the Constitution requires” (¶ 38).

3) Even if the judge’s meeting with the sick juror were a critical stage of the proceedings, any Sixth Amendment violation was harmless error (see ¶ 39). “Given [the evidentiary] record, there is no reasonable possibility that trial counsel’s absence during the judge’s meeting with Juror 2 affected the outcome of the trial. There is no reason to believe counsel would have altered Juror 2’s symptoms somehow or asked more probing questions enabling Juror 2 to remain on the panel. There is no reason to believe Juror 2’s presence on the panel would have altered the outcome of the trial in the face of overwhelming evidence of Spencer’s guilt and with no disruption to the deliberative process” (¶ 46).

4) The defendant was not entitled to an evidentiary hearing on his claim of ineffective assistance of counsel because the record as a whole conclusively demonstrates that the defendant is not entitled to relief (see ¶ 50).

Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Dallet and Justice Karofsky. Justice Dallet filed a dissent in which Justice Karofsky joined.

Sentencing – Prejudice – Religion

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

HOLDING: A defendant’s sentence was not increased because of the defendant’s religious beliefs.

SUMMARY: The defendant pleaded guilty to sexually assaulting a child. He lived in an Amish community. The judge sentenced him to two years of initial confinement and two years of extended supervision. During sentencing, the judge remarked on the Amish community’s need for adults to protect its children. In a published decision, the court of appeals affirmed the sentence, finding that it did not infringe on the defendant’s right to religious liberty. See 2021 WI App 17.

The supreme court affirmed in a majority opinion authored by Justice Karofsky. None of the trial judge’s remarks at sentencing suggested that the sentence was increased because of the defendant’s religious beliefs or his place in the Amish community. Rather, the judge’s pertinent remarks touched on “valid considerations of general deterrence and protection of the public” (¶ 17).

Justice Roggensack filed a concurring opinion that was joined in by Chief Justice Ziegler. Justice R.G. Bradley and Justice Hagedorn filed separate concurring opinions.

Jury Instructions – Sufficiency of Evidence

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

HOLDING: Sufficient evidence supported multiple convictions for sexual assaults of children.

SUMMARY: The defendant was charged with sexually assaulting three boys in the late 1980s and 1990s. The charges alleged various “sexual contacts” that occurred within separate, specified time periods. A jury convicted him on all counts involving the three boys but acquitted him of a child enticement charge involving another person. In an unpublished decision, the court of appeals affirmed the convictions relating to one boy but reversed those involving the other boys based on insufficient evidence.

The supreme court reversed the court of appeals in a majority opinion authored by Justice A.W. Bradley. In assessing the sufficiency of the evidence, the supreme court looked to the jury instructions that defined “sexual contact” and “the theory of the crime presented throughout the trial” (¶ 32). The parties agreed that the jury instructions were the appropriate standard, especially because the verdict form had used an incomplete definition of the term. The remainder of the opinion is a necessarily fact-intensive analysis of the trial evidence, which the court found supported the convictions. It paid special attention to the timing of the various criminal acts, noting the state’s failure to ask “more specific questions” about the timing of the assaults but finding no error (¶ 50).

Justice Dallet dissented, underscoring that the problems in this case “are of the State’s own making” in light of how it was charged and how the evidence was presented (¶ 57).

Justice Karofsky did not participate in this case.

Evidence – Rape-Shield Statute – Harmless Error

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

HOLDING: The so-called rape-shield statute precluded a victim’s testimony that she had not had sexual intercourse with another person before the assault, but the error was harmless.

SUMMARY: The defendant was charged with sexually assaulting an acquaintance. The victim had allowed him to sleep downstairs in her apartment but made it clear that she had no sexual interest in him. The victim described the assault and was later recalled to testify that she had not had intercourse with anyone else in the days leading to the assault. The latter testimony came after a DNA expert said that samples from the victim showed semen but it could not be identified as the defendant’s. The jury convicted the defendant of second-degree sexual assault but acquitted him of a strangulation charge. In an unpublished decision, the court of appeals reversed on the ground that the victim’s “no-intercourse” testimony violated the rape-shield statute.

The supreme court reversed in a majority opinion, authored by Justice Roggensack, that agreed that the testimony violated the rape-shield statute but found the error harmless. In some earlier cases, the state admitted to committing an error in this scenario but argued that the error was harmless – an approach it eschewed here. Closely reading the statute’s text, the court held that error occurred when the victim testified “that she did not have sexual intercourse in the week preceding the assault” (¶ 30). The rape-shield law broadly prohibits evidence of a victim’s “sexual conduct,” including “life-style” in connection with “sexual activities.” None of the three exceptions to the rape-shield statute applied here (see ¶ 42). Although error, the supreme court concluded that it was harmless, because the trial involved a “straightforward assessment” of credibility (¶ 52).

A concurring opinion by Chief Justice Ziegler, joined in by Justice R.G. Bradley, concluded that the testimony did not violate the rape-shield statute.

Easements

Temporary Limited Easements – Compensation

Backus v. Waukesha Cnty., 2022 WI 55 (filed 5 July 2022)

HOLDING: The plaintiff was not entitled to severance damages under Wis. Stat. section 32.09(6g) as compensation for a temporary limited easement on his property.

SUMMARY: This case was before the supreme court on certification from the court of appeals. The certified question was posed as follows: “In light of 118th Street Kenosha, LLC v. DOT, 2014 WI 125, 359 Wis. 2d 30, 856 N.W.2d 486, is a temporary limited easement compensable under Wis. Stat. § 32.09(6g) (2019-20)?” This question arose from a dispute over the proper compensation for a temporary limited easement (TLE) that Waukesha County acquired over plaintiff Backus’s property to construct a highway bypass along the Backus property’s rear lot line. The county argued that it only needed to pay Backus the rental value of the TLE. Backus disagreed, contending that under Wis. Stat. section 32.09(6g) he is entitled to severance damages measured by the difference between the fair market value of the whole property before and after completion of the project.

The circuit court denied the county’s motion for summary judgment. In a majority opinion authored by Justice Karofsky, the supreme court reversed.

The Wisconsin DOT Real Estate Program Manual sets out two categories of easements that can be acquired for eminent domain projects: permanent easements and TLEs. The manual describes a TLE as “an interest in land that is limited in purpose and time” (¶ 11). In the specific context of a taking by eminent domain, the purpose of a TLE is “for construction,” and all TLEs “expire at the completion of the construction project” (id.). In this case, the supreme court concluded that the plaintiff was not entitled to severance damages under Wis. Stat. section 32.09(6g) as compensation for the TLE. This statute “applies only to easements that continue to exist beyond the completion of a public improvement project. Therefore, § 32.09(6g) does not apply to TLEs, which must instead be compensated under constitutional and common law principles” (¶ 19).

In a footnote, the majority provided additional clarification about compensation for TLEs: “To be abundantly clear, this opinion does not limit a property owner’s access to compensation for any provable damages caused by a TLE. This includes, but is not limited to elements of value currently included in the WI DOT Real Estate Program Manual section 2.4.6.4 such as the rental value of the TLE and damages for permanent loss of site improvements within the TLE. We do not speculate about the extent of Backus’s damages” (id. n.12).

Justice R.G. Bradley filed a dissenting opinion that was joined in by Chief Justice Ziegler and Justice Roggensack.

Elections

Absentee Ballots – Drop Boxes – “In Person” Absentee Voting

Teigen v. Wisconsin Elections Comm’n, 2022 WI 64 (filed 8 July 2022)

HOLDINGS: 1) Ballot drop boxes are illegal under Wisconsin’s election statutes. 2) “In-person” absentee voting requires the voter to personally deliver the ballot to the municipal clerk.

SUMMARY: This case concerned two documents created in 2020 by employees of the Wisconsin Elections Commission (WEC). These documents authorized municipal clerks and local election officials to establish ballot drop boxes. According to one of the documents: “A drop box is a secure, locked structure operated by local election officials. Voters may deposit their ballot in a drop box at any time after they receive it in the mail up to the time of the last ballot collection Election Day. Ballot drop boxes can be staffed or unstaffed, temporary or permanent” (¶ 1). The other document adds, “[a] family member or another person may … return the ballot on behalf of the voter,” that is, an agent of the voter may place the voter’s absentee ballot in a drop box (see id.). According to the WEC administrator, more than 500 such drop boxes were used in the fall 2020 election and again in the spring 2021 election (see ¶ 8).

Two Wisconsin voters filed this case under Wis. Stat. section 227.40, challenging the validity of these WEC documents. They advanced two arguments: 1) the documents are unpromulgated administrative rules; and 2) under Wisconsin statutes, drop boxes are illegal because a voter must personally mail or deliver the voter’s absentee ballot to the municipal clerk, not to an inanimate object. The Democratic Senatorial Campaign Committee and Disability Rights Wisconsin intervened to defend the WEC’s documents.

The circuit court granted summary judgment in favor of the plaintiffs. It also issued a permanent injunction, requiring the WEC to rescind the documents and enjoining the WEC from issuing further interpretations of law in conflict with the court’s order. An appeal followed, and the supreme court granted the plaintiffs’ petition to bypass the court of appeals.

The case generated five separate opinions from the supreme court. The majority-lead opinion authored by Justice R.G. Bradley garnered majority support but only in part. In the segments supported by Chief Justice Ziegler, Justice Roggensack, and Justice Hagedorn, the majority concluded that the WEC documents “are invalid because ballot drop boxes are illegal under Wisconsin statutes. An absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk’s office or a designated alternate site” (¶ 4). “The statutory requirements governing absentee voting must be completely satisfied or ballots may not be counted” (¶ 53). “Nothing in the statutory language detailing the procedures by which absentee ballots may be cast mentions drop boxes or anything like them” (¶ 54).

The majority also concluded that the WEC erred by stating that a family member or another person may return the ballot on behalf of the voter. “The law does not permit this” (¶ 73). “In-person” absentee voting requires the voter to personally deliver the ballot to the municipal clerk. “Reading the election statutes in context and as a whole, we conclude an absentee ballot delivered in person under Wis. Stat. § 6.87(4)(b)1. must be delivered personally by the voter. Unlike Wis. Stat. § 6.86, which allows the receipt of an absentee ballot through an agent under particular circumstances and subject to detailed procedures, no similar language authorizes voters not meeting the exceptions outlined under § 6.86 to cast a ballot through delivery by an agent” (¶ 83).

The majority did not address whether the WEC documents constituted unpromulgated administrative rules because the documents are invalid regardless (see ¶ 4). It also did not address whether the law permits a voter’s agent to place an absentee ballot in the mail on the voter’s behalf (see ¶ 5).

Justice Roggensack filed a concurring opinion. Justice R.G. Bradley, the author of the majority-lead opinion, also filed a concurring opinion that was joined in by Chief Justice Ziegler and Justice Roggensack. Justice Hagedorn, who joined his colleagues in forming a majority for segments of the majority-lead opinion, also filed a concurring opinion. Justice A.W. Bradley filed a dissenting opinion that was joined in by Justice Dallet and Justice Karofsky.

Juvenile Law

Juvenile Delinquency – Waiver to Adult Court

State v. X.S. (In Int. of X.S.), 2022 WI 49 (filed 29 June 2022)

HOLDING: The circuit court erroneously exercised its discretion by denying the state’s petition to waive the juvenile defendant into adult criminal court.

SUMMARY: A shooting occurred at a shopping mall in Milwaukee County in November 2020. X.S., who was then age 15 1/2, entered the mall with a friend, became involved in a confrontation with another group of four individuals, and opened fire with a handgun he had brought into the mall. X.S. shot eight people. The victims included X.S.’s friend, three individuals in the other group, and four bystanders. X.S. fled the scene with the help of his family, who then tried to facilitate him leaving the state to go to Florida. That plan failed. X.S. was apprehended by law enforcement officers before he could leave Wisconsin.

Earlier in 2020, X.S. had been shot during a drug deal. Three months later, in July 2020, he was charged in another incident with possessing marijuana with the intent to distribute it and with obstructing an officer. That case was handled in the juvenile court. X.S. was convicted on the obstruction charge and was ordered to participate in nine months of court-ordered supervision with many conditions. X.S. performed poorly or failed to comply with almost all the conditions (see ¶ 47).

As a result of the mall shooting, the district attorney charged X.S. in juvenile court with eight counts of first-degree reckless injury with use of a dangerous weapon and one count of illegally possessing a dangerous weapon. The state sought to have X.S. waived into adult court. At the waiver hearing, X.S.’s human-service worker and a clinical psychologist hired by X.S. recommended that his case remain in the juvenile system. The circuit court denied the request for waiver.

In an unpublished decision, the court of appeals reversed the circuit court and remanded the matter to the circuit court for a new waiver hearing. In a majority opinion authored by Chief Justice Ziegler, the supreme court modified and affirmed the decision of the court of appeals.

The majority concluded in a fact-intensive decision that the circuit court erroneously exercised its discretion by denying the state’s waiver petition. Looking to Wis. Stat. section 938.18(5), which identifies the criteria the juvenile court must apply in determining whether to waive jurisdiction to adult court, the majority concluded inter alia the following:

1) The type and seriousness of the offenses with which X.S. is charged “overwhelmingly support waiver into adult court” (¶ 43).

2) Given X.S.’s issues while under supervision in the months preceding the mall shooting, a disposition in the present case within the juvenile system would not be adequate or suitable. The majority noted that it was undisputed in the lower courts that X.S. would at most spend six to nine months in confinement if given a correctional placement by the juvenile court and that by statute the maximum time X.S. could spend in a correctional placement would be less than two years (up to his 18th birthday). Said the majority: “Given X.S.’s criminal actions at issue in this case, and his demonstrated responses to juvenile interventions in the past, the amount of confinement under consideration in this case is woefully inadequate to address X.S.’s serious needs and his risk to the public” (¶ 49).

3) X.S.’s “personality” strongly supported waiver to the adult court. While under supervision in the months preceding the mall shooting, “X.S. violated almost every court-ordered condition with which he was obliged to comply, and he committed at least eight serious felonies and one misdemeanor” (¶ 51). He was “completely unreceptive” to the resources provided to him through the juvenile justice system (id.).

4) X.S.’s prior record also supported waiver into adult court. “X.S.’s escalated criminal activity and non-compliance with court orders and programming in the juvenile justice system is nothing short of frightening. His ‘prior record’ demonstrates that juvenile court is inadequate to address X.S.’s behaviors, needs, and predispositions, and that adult adjudication can best ensure the protection of the public and the safe reintroduction of X.S. into society” (¶ 52).

In summation, Chief Justice Ziegler wrote that “[t]he facts of this case are extreme, and the circuit court’s decision is distinctly out of the ordinary: it is erroneous. Considering the criteria enumerated under Wis. Stat. § 938.18(5), the record reasonably supports only the conclusion that there is ‘clear and convincing evidence that it is contrary to the best interests of the juvenile [and] the public to hear the case’ in juvenile court. [Wis. Stat.] § 938.18(6). While we are hesitant to overturn a discretionary decision of a circuit court, the circuit court’s decision below to deny the State’s waiver petition cannot be upheld” (¶ 55) (citation omitted).

The court of appeals had remanded this case to the circuit court for a new waiver hearing. The supreme court disagreed with this mandate. “We conclude that a new waiver hearing is unnecessary. We conclude that the circuit court erroneously exercised its discretion by denying the State’s waiver petition. There exists no reasonable basis for denying the State’s waiver petition. Therefore, we remand the case to the circuit court with instructions to grant the State’s waiver petition” (¶ 56).

Though she authored the majority opinion, Chief Justice Ziegler also penned a concurrence to argue that there is a second reason why the circuit court’s decision must be reversed: “the circuit court failed to provide sufficient reasoning to support its decision” (¶ 57). Justice Roggensack and Justice R.G. Bradley, both of whom joined the majority opinion, also joined this concurring opinion.

Justice Hagedorn filed a dissenting opinion that was joined in by Justice A.W. Bradley and Justice Dallet.

Mental Health Commitments

Failure to Make Findings – Remedy – Dismissal

Sheboygan Cnty. v. M.W. (In re Mental Commitment of M.W.), 2022 WI 40 (filed 10 June 2022)

HOLDING: In an involuntary commitment proceeding, dismissal was the appropriate remedy for the circuit court’s failure to make required findings.

SUMMARY: M.W. has been under a Wis. Stat. chapter 51 mental health commitment since 2006. In August 2020, Sheboygan County filed another motion to extend the commitment. The circuit court held a hearing and later ordered that the commitment be extended. M.W. appealed to the court of appeals, which in an unpublished decision reversed the commitment order because the circuit court had not made chapter 51-specific findings as required by Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277. As a remedy, the court remanded the matter to a circuit court so that it could make the required findings.

The supreme court reversed the court of appeals in a majority opinion authored by Justice A.W. Bradley. The sole issue before the court was the appropriate remedy (see ¶¶ 2, 15). “We conclude that the recommitment order at issue here has expired and as a consequence the circuit court lacks competency to conduct any proceedings on remand. Therefore, reversal is the appropriate remedy in this case” (¶ 4).

The majority opinion discussed D.J.W. and the various approaches taken by the court of appeals in its wake. The majority rejected the county’s position that a remand for appropriate findings was the proper remedy. “We agree with M.W. that outright reversal is the appropriate remedy. Our reasoning in reaching this conclusion focuses on the circuit court’s lack of competency to conduct proceedings on remand” (¶ 34).

Justice Hagedorn joined the majority but wrote a separate concurrence that addressed the dissent authored by Chief Justice Ziegler, who was joined by Justice Roggensack and Justice R.G. Bradley.

Recommitment Orders – Appeals – Mootness

Sauk Cnty. v. S.A.M. (In re Mental Commitment of S.A.M.), 2022 WI 46 (filed 23 June 2022)

HOLDING: Expiration of a recommitment order does not render an appeal moot in situations in which the order has collateral implications.

SUMMARY: A circuit court ordered S.A.M.’s involuntary commitment based on a psychiatrist’s comments about S.A.M. not taking prescribed medication for a diagnosed brain disorder and evidence about S.A.M.’s acts of self-harm, substance abuse, and suicidal thoughts. Before the initial commitment order expired, the county petitioned to extend the commitment, a trial was held, and the court ordered a six-month recommitment along with an order prohibiting S.A.M.’s possession of a firearm. S.A.M. appealed, but an “unfortunate series of events” resulted in a prolonged delay. In an unpublished decision, the court of appeals dismissed the appeal as moot.

The supreme court reversed in a majority opinion authored by Justice Karofsky. “A case is moot when the resolution of an issue will have no practical effect on the underlying controversy” (¶ 19). A case “is not moot when the direct or collateral consequences of the order persist and vacatur of that order would practically affect those consequences” (id.). Case law requires a causal link between the legal consequences and the order. “We conclude such a causal relationship exists between a recommitment order and at least two collateral consequences: (1) the firearms ban; and (2) the liability for the cost of care” (¶ 20).

The court addressed each consequence in some depth. If a commitment order is vacated, for example, the person committed is no longer liable for the cost of care (see ¶ 24).

Turning to the merits of the appeal, the supreme court first held that the county’s pretrial filings provided adequate notice and that its 2020 opinion in Langlade County v. D.J.W., 2020 WI 41, 391 Wis. 2d 231, 942 N.W.2d 277, was “inapt” (¶ 29). Second, sufficient evidence supported a finding of dangerousness under the “third standard” governing recommitment alternatives (see ¶ 32). Third, the expert testimony comported with the statutory standards set forth in Wis. Stat. chapter 51 (see ¶ 36).

Chief Justice Ziegler, joined by Justice Roggensack and Justice R.G. Bradley, concurred in the affirmance but dissented to the majority’s “upend[ing]” of the mootness doctrine, which will “flood[]” the appellate system (¶ 38).

Motor Vehicle Law

OWI – Probable Cause for Search Warrant to Draw Blood from Arrested Driver

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

HOLDING: The affidavit in support of a search warrant to draw the defendant’s blood following his arrest for operating while intoxicated (OWI) established probable cause to believe that he drove his vehicle on a highway.

SUMMARY: Defendant Green was arrested for OWI and the circuit court issued a search warrant to draw Green’s blood based on the affidavit of a Kenosha police officer, Poffenberger. The affidavit took the form of a preprinted document with blank spaces and check boxes that Poffenberger completed. The affidavit stated that around 1:19 p.m. on May 25, 2014, Green “drove or operated a motor vehicle at driveway of [Green’s home address]” (the underlined portion in this quotation being part of the preprinted form and the remainder Poffenberger’s handwritten addition).

Several checked boxes provided additional facts. First, Green was arrested for the offense of “Driving or Operating a Motor Vehicle While Impaired as a Second or Subsequent Offense, contrary to chapter 346 Wis. Stats.” Second, Green “was observed to drive/operate the vehicle by” both “a police officer” and “a citizen witness,” whose name was written in by Poffenberger. A third checked box was labeled “basis for the stop of the arrestee’s vehicle was,” and Poffenberger supplied the words “citizen statement” by hand (¶ 3).

The defendant moved to suppress the results of the blood-alcohol test (0.214), claiming that the affidavit in support of the search warrant did not establish probable cause to believe that the defendant operated his vehicle on a highway or on premises held out to the public for motor vehicle use. Rather, said the defendant, the affidavit only established that he drove on his driveway – a location not covered by the OWI law.

The circuit court denied the motion, and the jury convicted the defendant of OWI (his fourth OWI offense). The court of appeals summarily affirmed.

In a majority opinion authored by Justice Hagedorn, the supreme court affirmed. Giving deference to the finding of probable cause made by the judge who issued the search warrant, the court concluded that reasonable inferences from the affidavit support a finding of probable cause that Green drove on a public road (see ¶ 7).

Said the majority: “Following the pre-printed word ‘at’ is space for a location, which Officer Poffenberger identified as the driveway of Green’s residential address. It is reasonable to read the officer’s addition of the phrase ‘driveway of [residential address]’ to refer to a specific location on the road, much like an intersection would provide a similarly specific location. The affidavit does not say Green’s driving occurred merely in his driveway, but at his driveway – a location that can reasonably be read to refer to a position on the road adjacent to his driveway. Other portions of the affidavit are consistent with this reading. The affidavit points to two witnesses who observed Green ‘drive/operate the vehicle’: a police officer and a named citizen witness. And the stop was occasioned by a citizen statement; someone besides the officer saw something that occasioned a call to the police. Viewing the entire affidavit together, a judge could reasonably infer that Green operated his vehicle on the road while intoxicated, not solely in his driveway. This is not the only inference that can be drawn, but it is certainly a reasonable one” (¶ 8) (footnote and internal quotation marks omitted).

In short, Green did not meet his burden to show that the affidavit was clearly insufficient to support a finding of probable cause (see ¶ 9).

Justice A.W. Bradley filed a dissenting opinion.

Sex Offenders

Registry – Name Changes – Gender Identity

State v. C.G. (In Int. of C.G.), 2022 WI 60 (filed 7 July 2022)

HOLDING: A sex offender with a “traditional masculine legal name” who later realized she was a transgender female must register as a sex offender using her legal name.

SUMMARY: At age 14, “Ella” and another person sexually assaulted a teenager who had autism. Because the act was forceful, Ella was required to register as a sex offender. Ella entered the juvenile system as a male but later self-identified as a female; the court referred to her as “Ella” throughout the opinion although Ella’s legal name is a “traditionally masculine legal name” (¶ 2). As a convicted sex offender, Ella is prohibited by Wis. Stat. section 301.47(2)(a) from filing a petition to change her legal name. The circuit court denied Ella’s motion to stay her registration as a sex offender. In a published decision, the court of appeals affirmed. See 2021 WI App 11.

The supreme court affirmed in a majority-lead opinion authored by Justice R.G. Bradley. Requiring Ella to register as a sex offender did not constitute cruel and unusual punishment under the Eighth Amendment and did not violate her First Amendment rights to free speech. Both contentions rested on Ella’s legal inability to change her legal name to conform to her gender identity. Under the Eighth Amendment, a sex offender registration requirement is not a “punishment” under prevailing authority (¶ 33).

Ella also argued that the statutes were unconstitutional punishment as applied; only three justices joined the lead opinion’s rejection of this argument as well (see ¶¶ 36-46). Nor was the name-change proscription cruel or unusual (see ¶ 50).

As for the First Amendment claim, the name-change ban in Wis. Stat. section 301.47(2)(a) does not prohibit Ella from “using an alias” (¶ 61) and is otherwise consistent with her rights. The ban does not violate “her right to free speech by infringing her expressive conduct” (¶ 71) nor does it constitute “compelled speech” (¶ 93).

Justice Hagedorn concurred, joining the majority’s opinion “in most respects” but writing separately to make three points: 1) the “as-applied” claim was “improper” (¶ 96), 2) he was “unpersuaded” that the sex-offender registry requirements trigger any free speech protections (¶ 98), and 3) he addressed the court’s use of pronouns in the opinion.

Justice A.W. Bradley dissented, joined by Justice Dallet and Justice Karofsky. They agreed that Ella’s Eighth Amendment claim failed but disagreed with the majority’s analysis and conclusions regarding the First Amendment issues because “the majority takes an overly restrictive view of expressible conduct and denigrates the import of a legal name” (¶ 105).

State Government

Wisconsin Board of Natural Resources – Expired Terms of Members

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

HOLDING: Members of the Wisconsin Natural Resources Board whose terms have expired may remain in office as holdovers until their successors are properly nominated by the governor and confirmed by the senate.

SUMMARY: The Wisconsin Department of Natural Resources (DNR) is by statute placed under the direction of the Wisconsin Natural Resources Board. The board has seven members nominated by the governor and confirmed by the State Senate for staggered six-year terms. Defendant-respondent Frederick Prehn was nominated by Governor Scott Walker for a position on the board in 2015 and was confirmed by the senate to a term to expire on May 1, 2021. In April 2021 Governor Tony Evers announced the appointment of Sandra Dee E. Naas to replace Prehn. However, the senate has not confirmed Naas, and Prehn has declined to leave his position on the board.

In this action the Wisconsin attorney general, on behalf of the state, sought quo warranto and declaratory-judgment relief, alleging that Prehn unlawfully holds a position on the board. The state argued that when Prehn’s term expired on May 1, 2021, he no longer possessed any legal right to the position. In addition, the state argued that Prehn is not entitled to “for cause” protection and can be removed at the discretion of the governor. The circuit court disagreed and dismissed the case. On bypass from the court of appeals, the supreme court affirmed.

In a majority opinion authored by Chief Justice Ziegler, the court concluded that “[u]nder Wisconsin law, the expiration of an appointed term of office does not create a vacancy justifying a provisional appointment. Wis. Stat. §§ 17.03, 17.20(2)(a).
Members of the DNR Board whose terms have expired may remain in office as holdovers until their successors are properly nominated by the Governor and confirmed by the senate. Prehn lawfully holds office as a holdover, and because there is no vacancy in Prehn’s position, the Governor may not replace Prehn through use of a provisional appointment” (¶ 35) (citations omitted).

The court further concluded that as a holdover, Prehn may be removed from the DNR Board only “for cause” (¶ 38). “This arrangement complies with the plain language of Wisconsin Statutes and does not raise constitutional concerns” (¶ 56). “[W]e cannot conclude that providing Prehn for cause protection so offends the separation of powers that he must as a matter of law be removable at the Governor’s pleasure” (¶ 55).

Justice Dallet filed a dissenting opinion that was joined in by Justice A.W. Bradley and Justice Karofsky.

» Cite this article: 95 Wis. Law. 50-60 (Sept. 2022).