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    Wisconsin Lawyer
    February 01, 2016

    Supreme Court Digest

    In this column, Prof. Daniel Blinka and Prof. Thomas Hammer summarize all decisions of the Wisconsin Supreme Court (except those involving lawyer or judicial discipline).

    Daniel D. Blinka & Thomas J. Hammer

    Appellate Procedure

    Petition to Bypass Vacated – Supreme Court Equally Divided

    New Richmond News v. City of New Richmond, 2015 WI 106 (filed 18 Dec. 2015)

    ORDER: The supreme court was equally divided on whether to affirm or reverse the circuit court’s decision, and thus the petition to bypass the court of appeals was reversed and the matter was remanded to the court of appeals.

    Daniel D. BlinkaProf. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.

    Thomas J. HammerProf. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.

    SUMMARY: The supreme court accepted jurisdiction over this appeal on a petition to bypass the court of appeals. The court was equally divided on whether to affirm or reverse the circuit court’s judgment. The case was argued before the full court; however, Justice Crooks passed away before the court issued its decision. Justice Rebecca G. Bradley was appointed to the court after the case was heard and decided but before an opinion was released. Justice Abrahamson, Justice Ann Walsh Bradley, and Justice Prosser would affirm the decision of the circuit court. Chief Justice Roggensack and Justice Ziegler and Justice Gableman would reverse.

    In a per curiam decision, the court vacated the decision to accept the petition to bypass and remanded the matter to the court of appeals. “We have previously stated that when a tie vote occurs in this court on a bypass or certification, ‘justice is better served in such an instance by remanding to the court of appeals for their consideration’” (¶ 2) (citations omitted).

    Justice Abrahamson filed a concurring opinion pointing out that there is a way to break the tie vote in this case: Justice Rebecca G. Bradley could participate (see ¶ 15). “[U]nder past precedent of this court and the United States Supreme Court, it appears that if a new justice is available to break a tie vote, then the court, without the new justice’s input, decides whether to reargue the case. In reargument, the new justice participates” (¶ 26). Justice Ann Walsh Bradley joined this concurrence.

    Employment Law

    Whistleblower Statute – Disclosures

    Wisconsin Dep’t of Justice v. Wisconsin Dep’t of Workforce Dev., 2015 WI 114 (filed 30 Dec. 2015)

    HOLDING: A state employee’s emails were not subject to statutory “whistleblower” protection.

    SUMMARY: Schigur, a Wisconsin Department of Justice (DOJ) employee, wrote emails in which she expressed concerns about the lawfulness of spending state funds to provide a security detail for the Wisconsin attorney general at a national political convention in 2008. One month later she was removed from her position as a DOJ director and returned to her old job as an agent.

    Schigur contended that her demotion constituted retaliation in violation of Wis. Stat. sections 230.80-.89. The Equal Rights Division ruled in her favor but the circuit court reversed, ruling that Schigur had not disclosed “information” protected by the statute. In a published decision, the court of appeals affirmed the circuit court. See 2015 WI App 22.

    The supreme court affirmed the court of appeals in a majority opinion authored by Justice Ziegler. “We conclude that an opinion alone, as to the lawfulness or appropriateness of government activity is not ‘information’ as that term is defined in Wis. Stat. § 230.80(5). We further conclude that under the specific facts of this case, and assuming without deciding that Schigur’s e-mail contained ‘information’ regarding the proposed security detail, the communication of the information to [named DOJ employees] was not a ‘disclosure’ under Wis. Stat. § 230.81 because the information was already known to the recipients of the e-mails” (¶ 29).

    Quoting the court of appeals, the supreme court agreed that the statute “does not cover employee statements that merely voice opinions or offer criticism” (¶ 38). Although other statements in the email might arguably constitute “information,” those facts were known to the recipients (see ¶ 49). Finally, Schigur’s argument that the DOJ believed that she disclosed protected information “rests on a misinterpretation of Wis. Stat. § 230.80(8)(c) and therefore fails” (¶ 58).

    Justice Ann Walsh Bradley dissented, joined by Justice Abrahamson. The dissent contended that the majority’s opinion “undermines the legislative purpose of Wisconsin’s whistleblower statute,” creating a “heretofore unknown rule that bars the application of the explicit legislative directive of liberal construction” (¶ 64).

    Justice Prosser and Justice Rebecca G. Bradley did not participate in this decision.

    Mental Commitments

    Mental Health Commitment of State-prison Inmate – Involuntary Administration of Psychotropic Medication

    Winnebago Cty. v. Christopher S., 2016 WI 1 (filed 5 Jan. 2016)

    HOLDINGS: 1) Wis. Stat. section 51.20(1)(ar), which provides for the involuntary commitment of prison inmates for mental health care, is facially constitutional.  2) The circuit court did not err when it ordered the involuntary administration of psychotropic medication and treatment for the appellant.

    SUMMARY: This case was before the supreme court on certification from the court of appeals. It involves the involuntary mental commitment of a state-prison inmate for mental health care pursuant to Wis. Stat. section 51.20(1)(ar) and an order for the involuntary administration of psychotropic medication to him pursuant to Wis. Stat. section 51.61(1)(g). In a majority decision authored by Justice Gableman, the supreme court affirmed the orders of the circuit court.

    The inmate argued that Wis. Stat. section 51.20(1)(ar) violates his substantive due process rights and is facially unconstitutional. Specifically, he contended that the statute is unconstitutional because it authorizes the involuntary commitment of an inmate without first finding the inmate to be dangerous (see ¶ 3). This contrasts with the Wis. Stat. section 51.20(1) requirement that a person who is not a prison inmate be found dangerous before being involuntarily committed.

    Applying a “rational basis” level of scrutiny, the majority concluded that “[b]ecause we can think of at least one ‘conceivable set of facts’ where Wis. Stat. § 51.20(1)(ar) is constitutional, namely where the State’s interest is in caring for and assisting inmates who suffer from mental illness, [the appellant] has failed to prove that the statute is unconstitutional under all circumstances. Accordingly, we hold that Wis. Stat. § 51.20(1)(ar) is facially constitutional” (¶ 47).

    With respect to the order for the involuntary administration of psychotropic medication, the supreme court held that, under the facts of this case, “the circuit court did not err when it concluded that the County proved by clear and convincing evidence that [the appellant] was incompetent to refuse psychotropic medication and treatment as required by Wis. Stat. § 51.61(1)(g)4.b.” (¶ 56).

    Justice Abrahamson filed an opinion concurring in part and dissenting in part, which was joined by Justice Ann Walsh Bradley.

    Justice Rebecca G. Bradley did not participate in this decision.

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