Wisconsin Lawyer: Top 10 Recent Wisconsin Supreme Court Decisions:

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    December
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    2020

    Top 10 Recent Wisconsin Supreme Court Decisions

    In its 2019-20 term, the Wisconsin Supreme Court issued decisions in 25 civil cases and 20 criminal cases. Although all those decisions are important to Wisconsin law, here is a sampling of notable supreme court decisions from last term.

    Lisa M. Lawless

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    Since March 2020, the COVID-19 pandemic has affected all aspects of life, business, and government in Wisconsin. The Wisconsin Supreme Court has been significantly affected by the pandemic, and it is also a key leader in the emergency responses. The court adopted orders making adjustments to the rules and requirements governing the Wisconsin court system.1 During the 2019-20 term, the court continued operations throughout the pandemic. The supreme court issued 45 opinions in 2019-20, 25 civil opinions and 20 criminal opinions.2 Of those, 21 opinions were issued before the pandemic, and 24 were issued during the pandemic. The court held oral arguments by Zoom videoconference in April and May 2020, and it continues to do so in the 2020-21 term. The pandemic also affected the substance of the court’s work, as it accepted and issued decisions in several original actions arising from the pandemic, including a challenge to the April 28 Safer at Home order.3

    The court also accepted and decided matters at the eye of the storm, when the COVID-19 pandemic collided with the spring election, held on April 7, 2020. Most notably, on April 6, the day before the election, the supreme court enjoined Gov. Tony Evers’ Executive Order No. 74 issued earlier that day postponing in-person voting from April 7 to June 9. In-person voting took place as scheduled on April 7.

    Lisa M. LawlessLisa M. Lawless, Indiana 1992, is senior counsel at Husch Blackwell LLP, Milwaukee.

    As another example, in late March, the court accepted an original action relating to the Dane County clerk’s interpretation of the indefinitely-confined-voter exception to the voter ID requirement for absentee ballots, directing the clerk to cease making statements that all voters are indefinitely confined due to the pandemic. These matters are far from over, and in the 2020-21 term the court continues to accept cases relating to state and local4 governmental units’ responses to the pandemic and election law matters.5

    Of the 45 supreme court decisions issued in 2019-20, nearly one-quarter (10) were unanimous. Another 11 had no majority opinion, instead consisting of a lead opinion joined by two or fewer other justices, along with concurrences and dissenting opinions. The civil decisions that are the focus of this article relate to the validity of the extended Safer at Home order, the constitutionality of the 2018 extraordinary session legislation, administrative agency power and procedure, the duty to defend under insurance policies, and successor liability.

    Other subjects of the supreme court’s civil decisions include the governor’s partial veto powers; a judge’s use of Facebook to “friend” a litigant in a case over which he was presiding; constructive trusts; gaming-device laws; recoupment of Medicaid reimbursements; federal preemption of vehicle weight ordinances; wage claims; insurance; torts, including medical malpractice, fraud pleading, conversion, the safe-place statute, and recreational immunity; and real property, including condemnation and annexation.

    The criminal decisions addressed in this article concern application of the Fourth Amendment community caretaker exception applied to impounded vehicles, admissibility of witness-identification testimony, requirements of due process in sentencing decisions, the constitutionality of the involuntary-medication statute for inmates not found to be dangerous, and the elements of attorney malpractice in the criminal defense context.

    Other criminal decisions of the court covered a range of topics, including the Fourth Amendment (20 percent), sentencing (15 percent), OWI, habeas corpus standards and procedures, double jeopardy, dangerousness under mental commitment statutes, and evidence (each 10 percent), with the remainder ineffective assistance of counsel, Fifth Amendment self-incrimination, appellate procedure, and restitution.

    In the author’s view, the 10 cases described below represent some of the most significant Wisconsin Supreme Court decisions from the 2019-20 term.

    In Brief: Top 10 Recent Wisconsin Supreme Court Decisions

    Click on each link to drop to the full summary below.

    Constitutional Law

    1. Safer at Home Order, Executive Order 28

    Wisconsin Legis. v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900

    Issues: 1) Was the April 16, 2020 Safer at Home order a “rule” subject to statutory emergency rulemaking procedures? 2) In confining people to their homes, forbidding travel, and closing businesses, did the order exceed the statutory authority of Wis. Stat. section 252.02?

    Holdings: 1) Executive Order No. 28 was unenforceable because it was a “rule” as defined by Wis. Stat. section 227.01(13), but rulemaking procedures of Wis. Stat. section 227.24 were not followed in promulgating the order. 2) The order exceeded the Wisconsin Department of Health Services’ statutory authority because it applied to all persons in Wisconsin, it closed all for-profit and nonprofit businesses except those deemed “essential,” and it prohibited all travel within Wisconsin.

    2. Extraordinary Session Legislation

    Service Employees Int’l Union, Local 1 v. Vos, 2020 WI 67, 3993 Wis. 2d 38, 946 N.W.2d 35

    Issue: Are any of the challenged provisions of the extraordinary session legislation (2017 Wis. Act 369 and 2017 Wis. Act 370) facially unconstitutional?

    Holding: The provisions requiring administrative agencies to identify existing law that supports a guidance document’s contents and setting forth the procedure for the agency’s creation of guidance documents are facially unconstitutional because they interfere with the executive branch’s exercise of its core constitutional power. All other challenged provisions of the legislation are not facially unconstitutional.

    Administrative Law

    3. Administrative Agency Power and Procedure

    Lamar Cent. Outdoor LLC v. Division of Hearings & Appeals, 2019 WI 109, 389 Wis. 2d 486, 936 N.W.2d 573

    Issue: When the Wisconsin Department of Transportation (DOT) changed its position on the interpretation of Wis. Stat. section 84.30(11), eliminating the ability to cure a noncompliant sign, was the DOT required to promulgate a rule setting forth that no-cure position before applying it against a sign owner?

    Holding: The DOT was required to promulgate a rule adopting its no-cure position before applying it against a sign owner because section 84.30(1) is ambiguous as to whether and how noncompliance can be cured, given that it provides that a sign must be “brought into conformance” but “conformance” is ambiguous.

    Insurance Law

    4. Duty to Defend Under Insurance Policy

    Choinsky v. Employers Ins. Co. of Wausau, 2020 WI 13, 390 Wis. 2d 209, 938 N.W.2d 548

    Issues: 1) When a court denies an insurer’s motion to stay litigation on the merits pending determination of insurance coverage, and the case therefore proceeds on the merits and coverage simultaneously, does the insurer breach its duty to defend when it does not pay the insured’s attorney fees for the coverage dispute but it does pay the insured’s fees on the merits, pending the coverage determination? 2) Does the four-corners rule apply to the determination of a breach of the duty to defend?

    Holdings: 1) An insurer does not breach the duty to defend when it moves to stay the merits litigation and after a stay is denied it pays the insured’s attorney fees for the merits defense but not for the coverage litigation. 2) The four-corners rule does not apply to the determination of breach of the duty to defend because breach is determined based on the insurer’s actions after receipt of tender.

    Corporate Law

    5. Exceptions to Successor Liability

    Veritas Steel LLC v. Lunda Constr. Co., 2020 WI 3, 389 Wis. 2d 722, 937 N.W.2d 19

    Issue: Can the de facto merger or mere continuation exceptions to the general rule against successor liability be established by proving that there is an identity of management and control between the predecessor corporation and the successor corporation?

    Holding: An identity of management and control does not establish the “de facto merger” or “mere continuation” or the mere continuation exceptions to the rule against successor liability and those exceptions instead require proof of identity of ownership between the predecessor corporation and the successor.

    Fourth Amendment

    6. Community Caretaker Exception to Warrant Requirement for Vehicle Impound

    State v. Brooks, 2020 WI 60, 392 Wis. 2d 402, 944 N.W.2d 832

    Issue: Were sheriff’s deputies performing a bona fide community caretaker function when they seized a legally parked vehicle for towing after they ticketed the unlicensed driver for speeding but did not arrest him?

    Holding: Sheriff’s deputies were not performing a bona fide community caretaker function when they seized the vehicle for towing because the vehicle was legally parked and not impeding traffic, the driver was not under arrest, and the driver would have made arrangements to be picked up and return the car to its owner, his girlfriend.

    Evidence

    7. Admissibility of Witness Identification Testimony

    State v. Roberson, 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813

    Issues: Does due process prevent the admission of an out-of-court identification using a single Facebook photo of a defendant, and should State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, be overruled?

    Holdings: Due process does not prevent the admission of such out-of-court identification when the state established sufficient indicia of reliability to outweigh any corrupting effect of the suggestive identification method. The court overruled Dubose because it was unsound in principle, it departed from years of precedent without justification and misapplied precedent, and it did not engender a substantial body of law but was distinguished and treated negatively by the courts.

    Due Process and Sentencing

    8. Use of Extraneous Information in Sentence Determinations

    State v. Counihan, 2020 WI 12, 390 Wis. 2d 172, 938 N.W.2d 530

    Issue: Does it violate due process for a court to consult information unknown to the parties (a review of court files from comparable cases) when determining the defendant’s sentence?

    Holding: In determining a sentence, it does not violate due process for the court to consult court files concerning sentencing terms in comparable criminal cases because a court is permitted to engage in a broad inquiry in sentencing, case law holds that the court may consider the distribution of sentences in similar cases, and consulting other cases serves the goal of consistency in sentencing.

    Mental Health Statutes

    9. Involuntary Medication Statute Constitutionality

    Winnebago Cnty. v. C.S. (In re Mental Commitment of C.S.), 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875

    Issue: Is Wis. Stat. section 51.61(1)(g)3. unconstitutional to the extent it permits prison inmates involuntarily committed under Wis. Stat. section 51.21(ar) to be involuntarily medicated without any finding of dangerousness, based only on their incompetence to refuse medication?

    Holding: Given the significant liberty interest in refusing involuntary medication, section 51.61(1)(g)3. is facially unconstitutional for any inmate who is involuntarily committed under section 51.21(ar), which does not require a determination of dangerousness, when the inmate is involuntarily medicated based solely on a determination of incompetence to refuse medication.

    Attorney Malpractice

    10. Actual Innocence Rule

    Skindzelewski v. Smith, 2020 WI 57, 392 Wis. 2d 117, 944 N.W.2d 575

    Issue: Should an exception to the actual innocence rule for claims of attorney malpractice in criminal cases be made when the client admitted committing the crime but alleges attorney error in failing to raise that the criminal charge was barred by the statute of limitation?

    Holding: The actual innocence rule bars such claims and no exception should be made because the client conceded committing the crime and the consequences of such acts should be borne solely by the guilty party.

    CIVIL CASES

    Validity of Safer at Home Order, Executive Order 28

    Wisconsin Legis. v. Palm.6 The supreme court accepted an original action to determine the validity of the Safer at Home order (Executive Order 28) issued by Andrea Palm, secretary-designee of the Wisconsin Department of Health Services (DHS). The order relied solely on the authority vested in Palm by state laws, including Wis. Stat. section 252.02(3), (4), and (6). It commanded all individuals in Wisconsin to stay at home or at their place of residence with certain limited exceptions, forbade all “nonessential travel,” and closed all “nonessential” businesses, and carried penalties of up to 30 days’ imprisonment, a $250 fine, or both.7

    Issued on April 16, 2020, Executive Order 28 prohibited “[a]ll forms of travel” except “essential” travel; ordered all for-profit and nonprofit businesses to “cease all activities” except minimum operations; prohibited “[a]ll public and private gatherings of any number” not part of a single household; declared that all public and private schools must remain closed for the rest of the school year; continued the closure of salons and spas; continued the closure of restaurants and bars except for takeout or delivery service; ordered religious groups to limit gatherings, including weddings and funerals, to fewer than 10 people in a room; and imposed a six-foot physical-distancing requirement for persons not residing in a single living unit or household. The order purported to remain in effect until May 26, 2020.8

    The supreme court granted the Wisconsin Legislature’s original action petition to decide two issues: 1) whether Palm violated Wis. Stat. section 227.24, governing emergency rules, by issuing Executive Order 28 without complying with the statutory procedures; and 2) whether Palm exceeded her authority under Wis. Stat. section 252.02 by ordering all persons to stay at home, forbidding all nonessential travel, and closing all nonessential businesses.9

    On the first issue, the court held that Executive Order 28 was a “rule” as defined by case law and statute10 and therefore was subject to statutory emergency-rulemaking procedures. It was a “general order of general application” within Wis. Stat. section 227.01(13), which defines “rule.” The order applied to every person physically present in Wisconsin or coming into Wisconsin. The rulemaking procedures of Wis. Stat. section 227.24 were required to be followed during the promulgation of Executive Order 28, and because they were not followed, the order was unenforceable.

    Further, Wis. Stat. section 252.25 required that the order be promulgated using procedures established by the legislature for rulemaking if criminal penalties were to follow. It is longstanding law that “for the violation of an administrative agency’s directive to constitute a crime, the directive must have been properly promulgated as a rule.” Because Palm did not follow the law in creating the order, there could be no criminal penalties for violation of the order.11 Wisconsin Statutes section 227.01(13)(a)-(zz) is an extensive list of exemptions from rulemaking, including certain DHS orders. However, emergency orders of the DHS under Wis. Stat. section 252.02 are not exempted from rulemaking.

    In addition, the court applied the “constitutional-doubt principle,” that is, disfavoring statutory interpretations that raise serious constitutional questions. Under Palm’s theory, she could “implement all emergency measures necessary to control communicable diseases, Wis. Stat. § 252.02(6), even at the expense of fundamental liberties, without rulemaking.” The court held that such interpretation “is constitutionally suspect” and declined to construe Wis. Stat. section 252.02(6) “as an ‘open-ended grant’ of police powers to an unconfirmed cabinet secretary.” The court explained that “[t]here is no pandemic exception” to “the fundamental liberties” of the Bill of Rights and such rights “do not disappear during a public health crisis.” Similarly, the court cautioned: “The procedural requirements of Wis. Stat. ch. 227 must be followed because they safeguard all people.”12

    On the second issue, the court also held invalid Emergency Order 28 because it exceeded the scope of permissible actions under Wis. Stat. section 252.02. Palm relied on section 252.02 for her authority to adopt the order. The DHS has the power to take certain actions to control communicable diseases. The court noted that under Wis. Stat. section 227.10(2m), administrative agencies are prohibited from implementing or enforcing standards or requirements that are not explicitly required or explicitly permitted by statute or a properly promulgated rule. Section 252.02(4) addresses four sets of circumstances that permit DHS action: 1) guarding against introduction of communicable diseases into the state; 2) control and suppression of such diseases; 3) quarantine and disinfection of infected persons; and 4) sanitary care of jails, prisons, mental health institutions, schools, and public buildings and connected premises.13

    The court held that Executive Order 28 “goes far beyond” these purposes authorized in Wis. Stat. section 252.02(4). For example, the order “overreach[ed]” and exceeded the authority to quarantine infected persons, because it quarantined all persons in Wisconsin by requiring them to stay at home and it prohibited all public and private gatherings of people who do not live together. Those directives were not limited to infected persons. Further, rather than prohibiting infected persons from leaving or coming into the state, it prohibited “[a]ll forms of travel,” not simply interstate travel. Finally, the court held that nothing in Wis. Stat. section 252.02(4) permitted Palm to close all for-profit and nonprofit businesses in Wisconsin except those deemed “essential.” The order was so far beyond the DHS’s statutory authority that the court could not address which limitations might be permitted.14

    The court did not conclude that Palm was without any power to act in the face of the pandemic. “However, Palm must follow the law that is applicable to state-wide emergencies.” The court “conclude[d] that Palm’s order confining all people to their homes, forbidding travel and closing businesses exceeded the statutory authority of Wis. Stat. § 252.02, upon which Palm claims to rely.” The court declined to “define the precise scope of DHS authority under Wis. Stat. § 252.02(3), (4) and (6) because clearly Order 28 went too far.” Accordingly, the supreme court declared Executive Order 28 was “unlawful, invalid, and unenforceable.”15

    Constitutionality of Extraordinary Session Legislation

    Service Employees Int’l Union, Local 1 v. Vos.16 Service Employees International Union (SEIU) arose from the enactment of 2017 Wis. Act 369 and 2017 Wis. Act 370 (hereinafter the Acts), which the Wisconsin Legislature passed and Gov. Scott Walker signed after the November 2018 election but before the newly elected legislators, governor, and attorney general were sworn into office. They were passed as part of the legislature’s “extraordinary session.”

    Several labor organizations and individual taxpayers sued to enjoin various provisions, arguing they violated the separation of powers. They asserted that the laws either overly burden the executive branch or they took executive power and gave it to the legislature.17 The circuit court denied a motion to dismiss and entered a temporary injunction enjoining many of the challenged provisions.18

    In SEIU, the plaintiffs argued that the following provisions of the Acts were facially unconstitutional: 1) requiring legislative approval of settlements entered into by the attorney general; 2) allowing legislative intervention in litigation under certain circumstances; 3) requiring legislative committee review of proposed changes to State Capitol building security; 4) allowing multiple suspensions of administrative rules by the legislature; 5) eliminating administrative agency deference on questions of law; and 6) setting requirements for contents and promulgation of “guidance documents” by administrative agencies.

    The majority decision on categories (2), (3), (4), and (5) was joined by all seven justices, holding that those provisions are facially constitutional. The majority decision on category (1) was joined by five justices, with two justices dissenting. The majority opinion in SEIU was split in two, with Justice Hagedorn authoring the portion concerning the provisions not dealing with guidance documents and Justice Kelly authoring the guidance-documents majority opinion. The guidance-documents majority opinion was joined by four justices, with three justices dissenting.19

    The Wisconsin Constitution establishes three branches of government, authorizing three types of power: legislative, the power to make the law and decide what the law should be; executive, the power to execute or enforce the law as enacted; and judicial, the power to interpret and apply the law to disputes between parties. This separation of powers requires each branch to exercise only the power vested in it. Each branch has two types of powers, “exclusive or core powers” and “shared powers.” Core powers are conferred on a single branch by the constitution. No other branch can take up another branch’s core powers and use them as its own. A branch may exercise shared powers so long as it does not “unduly burden or substantially interfere with another branch.”20

    The provision concerning legislative involvement in litigation involving the state by settlement approval or by legislative intervention falls within the zone of shared powers, most notably in cases implicating an institutional interest of the legislature. The Wisconsin Constitution gives the legislature the general power to spend the state’s money by enacting laws. Thus, when litigation involves requests to pay money to another party, the legislature has an interest in the litigation by virtue of its institutional interest in the expenditure of state funds. These institutional interests defeated the facial challenge to the settlement approval and legislative intervention provisions.21 The Capitol building security provision also survived the facial challenge because there are constitutional applications of the provision. Because the legislature can control use of the legislative space, it also can control security measures for use of that space.22

    The provision regarding multiple suspensions of administrative rules also survived the facial challenge. In Wisconsin, agencies are required to promulgate rules for each statement of general policy and interpretation of a statute to govern its enforcement or administration of that statute. When promulgated as required by statute, rules have the force of law. The legislature can establish the procedures by which an agency promulgates rules and can even take away rulemaking authority altogether. Under the new statute, the legislature may impose a temporary three-month suspension of a rule multiple times. Temporary rule suspension power has been held constitutional.23

    The supreme court also upheld 2017 Wis. Act 369, section 35, which provides that no agency may seek deference in any proceeding based on the agency’s interpretation of any law. This provision merely codifies the supreme court’s decision in Tetra Tech. Because it merely confirms controlling law, the statute “is facially constitutional.”24

    Thus, the court held that the circuit court should have dismissed the constitutional challenge with respect to all of these provisions. The court also vacated the temporary injunction in full for all of these provisions.25

    On the guidance-documents provisions, the court rejected the facial-unconstitutionality challenge for some provisions but granted it for others. The court found that provisions defining “guidance document,” providing for judicial review of guidance documents, and describing the effective date “are not facially unconstitutional.” Those provisions are not unconstitutional in all applications.26

    As defined by the Act, guidance documents are any formal or official document or communication by an administrative agency explaining its implementation of a statute or rule enforced or administered by the agency. The Act regulated guidance documents in ways that “implicate the boundaries between the executive and legislative branches.”

    Section 33 of the Act provided that agencies must identify the applicable federal or state law that supports any statement or interpretation of law in any publication. Section 38 described the procedure an agency must follow when creating a guidance document, including posting and public comment periods and certification requirements. It set a date after which preexisting guidance documents would be rescinded if they were not processed through the new procedure. Notably, section 38 provided that a guidance document “does not have the force of law.”27 

    The court concluded that the creation of guidance documents is the exercise of core executive power. The constitutional authority of the executive encompasses determining what the law requires as well as applying it. Guidance documents, as defined, necessarily exist outside the legislature’s authority because of what they are and who creates them. “Guidance documents are communications about the law, they are not the law itself” (emphasis in original). The court held that the creation and dissemination of guidance documents fall within the executive branch’s core authority.28

    In setting forth requirements and procedures for creating guidance documents, sections 33 and 38 were “problematic” because they inserted the legislature as a gatekeeper between the predicate to executing the laws and the actual execution itself. The court reasoned that the legislature enacts the laws the executive must execute, but the legislature cannot control the executive’s knowledge or intentions about those laws. The court held that sections 33 and 38 are facially unconstitutional because there are no situations when they would not “impermissibly interfere with the executive’s exercise of his core constitutional power….”29

    Administrative Agency Power and Procedure

    Lamar Cent. Outdoor LLC v. Div. of Hearings & Appeals.30 Administrative agencies sometimes change their interpretation of a statute in a manner that adversely affects regulated activities. In Lamar, the Wisconsin Department of Transportation (DOT) developed a new statutory interpretation that prohibited Lamar Central Outdoor (Lamar), the owner of a roadside billboard, from remedying a modification that caused the sign to lose its “legal, non-conforming” status. The supreme court considered whether the DOT was required to promulgate a rule containing the new statutory interpretation before applying it against Lamar.31

    Lamar complied with all permit requirements and applicable laws relating to its billboard, dating back to 1991. The billboard was originally located next to U.S. Highway 51 in Stevens Point. In 1996, U.S. Highway 51 was redesignated as U.S. Interstate 39. However, by law such a billboard could not be located next to an interstate highway. Because the billboard was now next to an interstate, its status changed from legal to “legal, nonconforming.” The billboard came to the DOT’s attention in 2012 when Lamar applied for a permit to remove vegetation. The DOT discovered that at some point Lamar added a temporary extension panel, increasing the billboard’s advertising area beyond the original permitted size, but the panel later was removed.32

    According to the DOT, legal, conforming signs may not be enlarged, and if they are, they become illegal and are subject to removal. For that reason, the DOT denied Lamar’s permit application. The DOT also ordered Lamar to remove the billboard pursuant to Wis. Stat. section 84.30(11). Lamar appealed to the Division of Hearing and Appeals (DHA), which affirmed the order. Lamar then appealed pursuant to Wis. Stat. chapter 227, and the circuit court and the court of appeals affirmed the DHA’s decision.33

    Lamar argued that the DOT could not order it to remove the billboard because the violation was cured when the temporary panel was removed and the billboard was returned to its permitted size. The DOT previously allowed owners to cure violations under Wis. Stat. section 84.30(11) and return signs to their legal, nonconforming status. However, under a new “no-cure” policy applied to Lamar, a permit violation causes the sign to irreversibly convert to “illegal.” Lamar argued that the DOT was required to promulgate a rule before implementing its new no-cure understanding of the statute.34 Wisconsin Statutes section 227.10(1) requires agencies to “promulgate as a rule each statement of general policy and each interpretation of a statute which it specifically adopts to govern its enforcement or administration of that statute.” 

    The DOT argued that rulemaking was not necessary because the no-cure position was simply a correction of a previously erroneous understanding of the statute.35

    As held in Schoolway Transportation Co. v. Division of Motor Vehicles,36 an agency’s application of clear and unambiguous statutory requirements “does not require rulemaking.” The agency is relieved from the rulemaking requirement only if the statute at hand is plain and unambiguous. When an agency corrects a previously erroneous application of a plain and unambiguous statute, it is not “interpreting the statute, but merely conforming its practice to the law.”

    However, “when an agency changes its interpretation of an ambiguous statute, it is engaged in rulemaking” (emphasis added). Persons affected by that interpretation should be given the opportunity to be informed how the statute’s terms will be applied. The agency informs persons of the changed interpretation by promulgating a new rule. As the supreme court explained in Lamar, to “adopt a new interpretation of an ambiguous statute,” “[t]he agency must adopt a rule.”37

    Whether the DOT needed to adopt its no-cure position as a rule therefore depended on whether Wis. Stat. section 84.30(11) “unambiguously prevents the owner of a ‘legal, nonconforming’ sign from recovering the sign’s pre-existing status by curing the status-altering violation.” Accordingly, the supreme court had to “determine whether there is a clear and plain meaning of § 84.30(11) as it relates to this question.” Section 84.30(11) provides: “Any sign erected in an adjacent area after March 18, 1972, in violation of this section or the rules promulgated under this section, may be removed by the department upon 60 days’ prior notice …, unless such sign is brought into conformance within said 60 days” (emphasis added). Whether this affords an opportunity to cure the violation depends on the meaning of “conformance.”

    The DOT argued that “conformance” means conformance with the laws applied to the current circumstances and thus Lamar’s sign could not conform because the billboard is not allowed to be next to an interstate. Lamar argued that “conformance” means conforming to the laws as they applied when the permit was issued. Therefore, it could cure the violation.38

    Whether rulemaking is required for the no-cure policy depends on whether Wis. Stat. section 84.30(1) unambiguously denied Lamar the right to cure the violation. The supreme court found the statute ambiguous. The court concluded that the word “conformance” is subject to different meanings with respect to whether the statute prevents the owner of a legal, nonconforming sign from curing a status-altering violation. The word “conformance” could mean the billboard either must conform to the laws as they applied when the permit was originally issued or to the laws applied to the present circumstances. Section 84.30(11) does not plainly and unambiguously require the DOT’s no-cure interpretation.

    Therefore, under Wis. Stat. section 227.10(1), the DOT was required to promulgate its no-cure interpretation as a rule before applying it to Lamar. The court also held that if the DOT promulgates that interpretation as a rule, it cannot apply it retroactively to cured violations that existed before the rule was created. Thus, to the extent Lamar previously cured the status-altering modification to the billboard pursuant to the then-existing “cure” policy, “it is once again a ‘legal, nonconforming’ sign.”39

    Duty to Defend Under Insurance Policy

    Choinsky v. Employers Ins. Co. of Wausau.40 Insurers have a duty to defend their insureds for claims that are covered by insurance. Choinsky presented an issue of first impression: whether an insurer breaches its duty to defend when it denies a tendered claim and then follows the judicially preferred procedures for resolving the coverage dispute. The supreme court also considered the insurer’s duty to defend when the court denies a motion to stay the merits litigation pending a coverage determination and the insured is forced to litigate the merits and insurance coverage simultaneously.41

    The duty to defend arises when an insurer is served with a complaint that alleges facts that would constitute a covered claim. An insurer must provide a defense to its insured or follow one of the judicially preferred methods to resolve any coverage dispute. Wisconsin courts have provided “much guidance” on an insurer’s duty to defend and the steps to avoid breaching that duty. If the insurer breaches the duty to defend, the insured is entitled to be reimbursed for attorney fees incurred in litigating insurance coverage. It is the breach of the duty to defend, and not the existence of the duty itself, that triggers this equitable fee shifting. If the insurer does not breach the duty to defend, it is not obligated to pay the insured’s costs of litigating insurance coverage.42

    The supreme court has established several procedures for an insurer to follow after a claim has been tendered for defense, to avoid breaching the duty to defend. Those methods “are designed to strike a fair balance between the respective interests of insurers and insureds.”

    If an insurer follows one of the following procedures it will not breach the duty to defend the merits claims: 1) defend under a reservation of rights, 2) defend under a reservation of rights but seek a declaratory judgment on coverage, 3) enter into a nonwaiver agreement under which the insurer defends the insured but the insured acknowledges that the insurer has the right to contest coverage, or 4) file a motion requesting a bifurcated trial on coverage and liability and a stay of the action on the merits until coverage is determined. Those methods are designed to protect the insured from having to simultaneously pay attorney fees to defend the merits and insurance coverage.43

    If the circuit court stays merits proceedings pending the coverage determination, the insurer is not obliged to defend. A successful motion to stay stops the merits case so that the insured does not incur attorney fees litigating the merits until a coverage determination is made. However, if the court denies a stay and the merits and coverage proceed at the same time, to protect itself from being found in breach of its duty to defend, the insurer must defend its insured on the merits under a reservation of rights so that the insured does not have to pay to defend itself on liability and coverage at the same time. The obligation to defend requires the insurer to reimburse the insured’s reasonable attorney fees, retroactive to the date of the tender of defense. This provides the insured some remedy when it is forced to litigate the merits and insurance coverage at the same time. If the insurer refuses to provide a merits defense before coverage is determined, it runs the risk of breaching its duty to defend if coverage is later established.44

    The supreme court noted that the insurer is obligated to reimburse merits-litigation attorney fees only at a reasonable rate, based on the market rates associated with the type of case and the geographic location. An insurer is allowed to review fees and negotiate a reasonable rate, so any resulting delay in payment does not alone breach the duty to defend.45

    In Choinsky, the insurer, Employers Insurance, followed the necessary steps and pursued a preferred method for resolving the coverage issue. It filed a bifurcation-and-stay motion, but the court declined to stay the merits litigation. Because the merits litigation continued alongside the coverage dispute, Employers provided a full defense for its insured on the merits until coverage could be determined, retroactive to the date of the tender. The coverage and merits litigation continued for more than one year. The circuit court denied summary-judgment motions on coverage, and disputed fact questions were decided by a jury at a coverage trial.46

    The liability trial occurred one year later, and the insured, the Germantown School District, prevailed. The district then moved for an award of attorney fees it incurred in litigating insurance coverage. The circuit court denied the motion on the grounds that Employers followed a judicially preferred approach to the coverage dispute and therefore did not breach its duty to defend. The court held that if an insurer initially denies defense of a tendered claim but promptly proceeds with one of the judicially preferred methods for determining coverage, it does not breach its duty to defend. When the court denied the stay motion, Employers then provided a full merits defense retroactive to the date of tender. It thereby complied with its contractual responsibilities to the district and therefore was not responsible for the district’s coverage-related attorney fees.47

    The district argued that the circuit court was limited to the four corners of the complaint to determine whether Employers breached the duty to defend, and the court should not consider the insurer’s actions. The supreme court disagreed, noting that the four-corners rule applies to determine whether a duty to defend exists. That rule does not apply to determine whether the insured breached the duty to defend. Once it is determined that a duty to defend exists, facts outside the complaint necessarily determine breach, which turns on the insurer’s actions after receiving tender of defense.48

    The supreme court strongly encouraged circuit courts to promptly decide bifurcation-and-stay motions and to grant a stay of the merits unless case-specific factors weigh against doing so. The court advised courts to grant a stay of merits proceedings whenever possible and appropriate, observing that “staying liability after granting bifurcation is generally the best practice.”49

    Successor Liability

    Veritas Steel LLC v. Lunda Constr. Co.50 In Veritas, the supreme court reaffirmed the general rule against successor liability and the limited exceptions to that rule and declined to expand the “de facto” merger and “mere continuation” exceptions, reaffirming that the exceptions require proof of identity of ownership between the predecessor and successor corporations.

    Lunda Construction Co. held a $16 million judgment against PDM Bridge LLC for breach of a contract to supply steel for a bridge construction project. By the time the judgment was awarded, substantially all of PDM’s assets had been transferred in transactions that occurred after PDM defaulted on secured obligations and for which it owed $76 million. In the year before Lunda’s judgment was awarded, PDM defaulted under loans secured by liens on substantially all of PDM’s assets. Those assets were foreclosed in a strict foreclosure, which resulted in other entities owning PDM’s assets, PDM’s loans being acquired by others, and PDM going out of business.

    In these transactions, Bridge and other Atlas Holdings LLC affiliates acquired the PDM assets. Also, Veritas Steel LLC was assigned the first lien in the former PDM assets and became the sole secured lender for PDM’s loans. Lunda’s judgment against PDM was obtained after its assets were foreclosed. Holding an uncollectible $16 million judgment against PDM, Lunda asserted claims for successor liability against Veritas, Atlas, Bridge, and two former officers of PDM. Lunda’s successor liability claims were dismissed on summary judgment and the dismissal was affirmed on appeal.51

    It is well established that when a company sells or transfers all its assets to another company, the purchasing company does not become liable for the transferring company’s debts and liabilities. That is, the purchasing corporation does not succeed to the liabilities of the selling corporation. This general rule is designed to protect a bona fide purchaser from assuming the liabilities of a predecessor corporation.

    Wisconsin courts have recognized four exceptions to the general rule against successor liability: 1) the purchasing corporation agrees to assume the selling corporation’s liability, 2) the transaction amounts to a consolidation or merger of the purchaser and seller corporations (de facto merger exception), 3) the purchase or corporation is merely a continuation of the seller corporation (mere continuation exception), and 4) the transaction is entered into fraudulently to escape liability for such obligations. The supreme court defined and developed these exceptions in the Tift, Cody, and Fish cases in the 1980s.

    In Tift, the court explained that the de facto merger and mere continuation exceptions demonstrate that if the predecessor and successor corporations are the same organization, whether by consolidation, merger, or continuation, liability may be enforced against the successor because there is an identity between the two corporations.

    In Cody, the court held that the mere continuation exception does not apply if the facts do not demonstrate any continuity or identity of business organizations between the entities in question. The mere continuation exception is not met if the two corporations are entirely different corporations and the subsequent business is not a continuation of the original business.52

    In Fish, the court rejected the suggestion that Tift expanded the de facto or mere continuation exceptions, explaining that “[i]dentity refers to identity of ownership, not identity of product line.” Fish explained that the “key element” of the de facto merger exception “is that the transfer of ownership was for stock in the successor corporation rather than cash.”53 There must be proof of identity of ownership, that the subsequent corporation received stock or an equity ownership in the predecessor.

    The “key element” for the mere continuation exception “is a common identity of the officers, directors and stockholders in the selling and purchasing corporations.”54 For this exception, identity of ownership is established where “there ‘is a common identity of the officers, directors, and stockholders in the selling and purchasing corporations.’”55 “Unlike the de facto merger exception, the mere continuation exception may be established with evidence of the continuation of the same officers, directors, and stockholders under circumstances where there is no transfer of equity or stock ownership.56

    In Veritas, Lunda argued that Fish significantly expanded the de facto merger and mere continuation exceptions to allow the substitution of “identity of management and control” for identity of ownership.” The supreme court rejected this argument. Fish held that identity of ownership is required to meet both exceptions. As the court explained, “Identity of ownership remains the sine qua non of successor liability.” And courts post-Fish have required proof of identity of ownership to establish the de facto merger and mere continuation exceptions.

    Further, Gallenberg Equipment Inc. v. Agromac International Inc. has since rejected the argument that “control” may be equated with “ownership” for purposes of the de facto merger exception.57 The court rejected Lunda’s reading of Tift and Fish and declined to broaden the exceptions to the rule against successor liability. As the court explained, “Identity of ownership, not identity of management and control, remains the essential element that a plaintiff must establish under both the de facto merger and mere continuation exceptions.”58

    Applying these elements, the court held that there was no de facto merger or mere continuation between PDM and the entities that came to hold its former assets. There was no identity of ownership between Veritas, the asset purchaser, and PDM, the seller, under either the de facto merger or mere continuation exceptions. For the de facto merger exception, there was no stock or other indicia of equity ownership transferred from Veritas to PDM. Therefore, there was no de facto merger as a matter of law.

    On the mere continuation exception, Atlas and its subsidiaries, including Veritas, were strangers to Lunda before receiving a call regarding the prospect of purchasing PDM’s assets. Veritas and PDM had separate and distinct ownership before and after Veritas foreclosed on PDM’s assets. No director or owner of PDM became a director or owner of Veritas. Therefore, the de facto merger exception was not established. Accordingly, Lunda’s successor liability claim failed as a matter of law, and summary judgment was properly granted.59

    CRIMINAL CASES

    Community Caretaker Exception to Warrant Requirement for Vehicle Impound

    State v. Brooks.60 In Brooks, the supreme court considered the community caretaker exception to the Fourth Amendment’s warrant requirement in the context of impounding vehicles. Brooks was stopped for speeding by sheriff’s deputies and was pulled over on the side of the road. He was alone in the vehicle and had been driving with a suspended operator’s license. Brooks was not arrested for the speeding violation. He told deputies that he could have his girlfriend, a licensed driver and the vehicle’s owner, retrieve the vehicle. Declining that request, deputies told him that departmental policy required the vehicle to be impounded. To ready the vehicle for impound, a deputy conducted an inventory search of the vehicle and discovered a firearm in the trunk. Brooks was a convicted felon who could not lawfully possess a firearm. Accordingly, he was arrested for the firearm possession.

    In this case, the supreme court considered whether the deputies were performing a bona fide community caretaker function when they seized Brooks’ vehicle without a warrant. The court held that they were not and that the seizure and ensuing inventory search were both unconstitutional.61

    Brooks was charged with illegal possession of a firearm, and he moved to suppress the firearm evidence, arguing that the warrantless seizure of the vehicle and the inventory search violated the Fourth and Fourteenth Amendments. He argued that the community caretaker exception to the warrant requirement did not justify the seizure of the vehicle. The circuit court denied the suppression motion and Brooks pleaded guilty. Brooks then pursued postconviction relief, asserting that exercise of the community caretaker function was invalid because the vehicle was lawfully parked and not obstructing traffic.62

    Warrantless seizures are presumptively unreasonable and therefore unconstitutional under the Fourth Amendment. One of the exceptions to the warrant requirement allows law enforcement officers to perform a warrantless seizure when acting in the “community caretaker” role. In this case, the first seizure occurred when deputies stopped Brooks for speeding. That seizure could last no longer than necessary to complete the purpose of the stop. Authority for that seizure ended when the tasks tied to the traffic infraction were or reasonably should have been completed.

    A second seizure occurred when the deputies decided that the lack of a driver’s license required them to impound the vehicle. One deputy was in the process of issuing the traffic citation and concluding the first seizure when the other deputy began inventorying the vehicle in preparation for the tow, carrying out the second seizure. The state argued that the second seizure was justified by the community caretaker doctrine.63

    When a seizure is claimed to be justified under the community caretaker role, courts consider three criteria: 1) whether a search or seizure has occurred; 2) whether the police were exercising a bona fide community caretaker function; and 3) if so, whether the public interest outweighs the intrusion on the privacy of the individual such that the community caretaker function was reasonably exercised. The state has the burden to prove the community caretaker function justified the seizure.

    The community caretaker exception “accounts for the multifaceted nature of police work,” “first aid provider, social worker, crisis intervener, family counselor, youth mentor, and peacemaker, to name a few.” When law enforcement officers are functioning in this role, a seizure is permissible to protect persons and property so long as the seizure is totally divorced from the detection, investigation, and acquisition of evidence relating to a crime. For example, law enforcement officers sometimes act to remove vehicles impeding traffic or threatening public safety or to remove disabled or damaged vehicles from the road.64

    The community caretaker test is an objective analysis, determining whether law enforcement officers were acting in the community caretaker function. Courts will look to whether the officer had an objectively reasonable basis under the circumstances for the community caretaker function. In Brooks, the state argued that if the vehicle had been left parked, it could have been stolen or vandalized. Also, the state argued that Brooks was not the registered owner so officers had a duty to the registered owner to protect the vehicle. Finally, it argued that the deputies were merely carrying out departmental policy requiring them to tow the vehicle.65

    The supreme court rejected these arguments, holding that there was no basis to support the community caretaker function. First, the vehicle would not have been left unattended for any significant amount of time. Brooks was not under arrest before the vehicle was seized, and he could have waited in the car for a licensed driver to arrive or walked home to summon assistance. Nothing in the record suggested that a brief absence would measurably increase the risk of theft or vandalism. Nothing required deputies to act in the interests of the vehicle’s registered owner. Brooks was not arrested and he could have made arrangements to reunite the car with its owner.

    Also, the vehicle was legally parked along the side of the road. The state did not prove otherwise or that the vehicle was impeding traffic. The court rejected the argument that towing was necessary to protect the vehicle from theft or vandalism. If that were the standard, every vehicle parked in public is theoretically at risk. As the court explained, “The risk must be real, not theoretical.” Thus, impounding the vehicle was not a bona fide community caretaker function.66

    The state also argued that deputies were exercising their community caretaker function in towing the car because they did so according to departmental policy, suggesting that the deputies were acting as community caretakers merely by virtue of the policy. The court rejected this argument because compliance with an internal policy has nothing to do with whether deputies were acting in the community caretaker role when they impounded the car. A standardized policy may provide some evidence that deputies performed their community caretaker role reasonably, but it cannot establish the predicate – that they were acting as bona fide community caretakers. The departmental policy is not evidence that the deputies were acting as community caretakers.67

    Accordingly, in Brooks, the court held that the sheriff’s deputies were not acting as community caretakers when they decided to impound Brooks’ vehicle. To justify a seizure pursuant to this doctrine the state must demonstrate circumstances calling deputies to perform one of their noninvestigatory functions such as protecting persons or property, providing first aid, intervening in a crisis, serving as a peacemaker, or otherwise acting as societal problem solvers. Here, there was no property or person in need of protection, no crisis, and no problem for which there was no apparent and available solution. There was only a man in a car on the side of the road making arrangements for someone to take him home.

    Therefore, the state did not articulate an objectively reasonable basis under the totality of the circumstances for the community caretaker function. The community caretaker doctrine recognizes and makes allowances for the multifaceted nature of police work, but it has its limits. Because the officers were not acting as bona fide community caretakers when they seized Brooks’ vehicle, the seizure of the vehicle and ensuing inventory search violated the Fourth Amendment and the circuit court erred in denying Brooks’ suppression motion.68

    Admissibility of Witness Identification Testimony

    State v. Roberson.69 In Roberson, the supreme court considered the admissibility of a victim’s out-of-court identification using a single photo from Facebook. The circuit court did not allow admission of that evidence or any in-court identification. The court of appeals reversed, holding that the identification was admissible. Roberson argued that the police used an unnecessarily suggestive procedure that violated his due-process rights. In Roberson the court considered the viability of State v. Dubose,70 a witness-identification case, and decided to overrule Dubose and reaffirm long-established standards concerning witness identification.71

    In the identification in question, the victim, C.A.S., identified the man he knew only as “P” in the Facebook photo as the man who shot him. P’s real name is Roberson. Roberson was charged with first-degree reckless injury, stemming from an incident in which he allegedly shot C.A.S. over a drug deal gone wrong. C.A.S., who is white, first met P, a Black man, at Walmart. He was not told his name and knew him only as P. P and C.A.S. discussed obtaining drugs and they drove around together. They saw each other another day and C.A.S. had a potential buyer to purchase marijuana from P. C.A.S. went to deliver the marijuana but the buyer robbed him at gunpoint. C.A.S. texted P and explained what happened.

    Thereafter, P picked up C.A.S. and drove him to a dog park. The situation escalated and P pulled a gun and fired past C.A.S.’s head. C.A.S. punched P in the face. P then pointed a gun at C.A.S. and shot him in the leg. The men had further discussion and P drove C.A.S. to a friend’s house. P and C.A.S. had spent two and one-half to three hours together over a short period of time. C.A.S. was later located by police and taken into custody on a probation hold.

    Two weeks after the shooting, police officers interviewed C.A.S. at the jail. The interview was videotaped. C.A.S. told police what happened with P, and he said he was not sure if he could identify P, indicating he might not be good at identifying African Americans. The police officer pulled up a photograph of Roberson from Facebook on his phone, showing it to C.A.S. C.A.S. immediately began nodding his head to indicate that it was P. The officer then asked, “That’s him?,” and C.A.S. responded “yup,” indicating he was 100 percent sure the photo depicted P.72

    In Roberson, the supreme court considered the standards for pretrial identifications. Admissibility is governed by the rules of evidence, and the jury ultimately determines the weight and reliability of testimony. Due process also may restrict the admission of witness identification testimony. Identification evidence infected by improper police influence may be excluded when there is a substantial likelihood of irreparable misidentification unless the indicia of reliability are strong enough to outweigh the corrupting effect of police-arranged suggestive circumstances.

    The U.S. Supreme Court applies a two-step due-process analysis. First, the defendant must show that the identification method law enforcement officers use was unnecessarily suggestive such that there was a very substantial likelihood of misidentification. The burden then shifts to the state to show indicia of reliability of the identification to allow admission. This long-standing test is applied by the U.S. Supreme Court and Wisconsin courts.73

    Lineups, photo arrays, single-photo identifications, and in-person showups are different identification methods, with some inherently more suggestive than others. The supreme court has held that showups are “not per se impermissibly suggestive.” There can be reliability despite the suggestibility of the procedure, depending on factors such as the opportunity of the witness to view the suspect at the time of the crime, the witness’s degree of attention, the accuracy of any prior description of the suspect, the level of certainty demonstrated, and the time between the crime and the identification. Also pertinent is the extent to which the procedure was documented, such as by video recording.74

    Dubose, a case involving admissibility of an out-of-court showup identification, formulated a new standard for admissibility of out-of-court identification. A showup occurs when the witness is shown the suspect in person for identification. Because a showup can be analogous to showing a single photo, in Roberson the court decided the viability of Dubose.

    The supreme court overruled Dubose, holding that it is unsound in principle and was based on a misunderstanding of well-established precedent and on topical social science. Dubose departed from 26 years of precedent without a reason or any basis for rooting a different test in the Wisconsin Constitution. Dubose instead “fashioned a rule based on social science research.” However, such research “cannot be used to define the meaning of a constitutional provision.” Social science cannot change the original meaning of the Wisconsin Constitution any more than it can change the meaning of the U.S. Constitution.75

    The supreme court overruled Dubose on the ground that Dubose misunderstood and misapplied prior precedent. Dubose was not rooted in any interpretation of the U.S. or Wisconsin constitutions, and there was no need or rationale for departing from well-established law. Dubose did not usher in a substantial body of law and rather was treated as an outlier. It was never applied by other state courts and it has been treated negatively by Wisconsin courts, which have taken pains to limit it to its facts (showups) and declined to extend it to spontaneous identifications, photo arrays, or single-photo identifications. Because Dubose did not create a substantial body of law, overruling it would have minimal effect.76

    In Roberson, the supreme court applied the established two-step admissibility test. Admissibility is determined on a case-by-case basis. Although showing multiple Facebook photos would have been less suggestive than showing only one, other facts established the reliability of C.A.S.’s out-of-court identification. The officer showed the photo without suggestive questions, and only after C.A.S. expressed recognition of the person in the photo did the officer ask if it was the suspect. Also, the state argued that a Facebook photo is not as suggestive as a mugshot and further that the photo was not suggestive at all given that the two men were well acquainted.77

    The supreme court assumed without deciding that Roberson met his burden of proving an impermissibly suggestive identification method. The burden then shifted to the state to prove reliability. The court found sufficient indicia of reliability. C.A.S. had ample opportunity to view Roberson (P to him), spending several hours with him on three separate occasions over a short period of time. The identification occurred within two weeks after the shooting. C.A.S. had no mental impairment or cognitive conditions. C.A.S. and Roberson had significant interactions, agreeing to do business together and engaging in transactions, Thus, it would be expected that they would know each other’s faces. C.A.S. expressed certainty after seeing the photo. Finally, the identification was extremely well documented and videotaped in its entirety.78

    Considering the totality of the circumstances bearing on the identification, the court held that the state carried its burden of proving the identification was reliable even though the identification method was suggestive. The court held that there was not a substantial likelihood of misidentification by an unreliable identification. Therefore, the identification was admissible and a jury could decide whether Roberson was correctly identified as P.79

    Use of Extraneous Information in Sentencing Determinations

    State v. Counihan.80 In this case, the supreme court considered whether due process is violated when a court consults information unknown to the parties, in this situation files from comparable cases, when determining the sentence in a criminal matter. The supreme court also considered whether the defendant forfeited her due-process objection by not objecting at the sentencing hearing to the court’s consideration of such information.81

    Counihan pleaded no contest to five misdemeanor counts of theft in a business setting. While employed as the Door County Humane Society’s executive director, Counihan used the organization’s credit card to pay personal expenses exceeding $22,000. In the plea agreement, the state and the defense jointly recommended probation, a withheld sentence, and restitution.

    After hearing testimony, the court explained the bases for its sentencing decision and described information that it consulted. The court also disclosed that it reviewed the sentences and files in a handful of similar cases, providing the case numbers and information derived from the review. In those comparable cases, jail time was ordered in all but one case, and restitution ranged from four to six figures. The judge noted that every case is different and said that he consulted the other cases for comparison’s sake but did not rely solely on them. The sentencing hearing was the first time the parties learned that the court consulted other case files.82

    The circuit court gave counsel an opportunity to raise issues before the sentencing announcement, but no issues were voiced. The circuit court rejected the parties’ joint sentencing recommendation and instead imposed two nine-month jail sentences to be served concurrently. The judge also ordered restitution, fines, and court costs.83

    Counihan filed a postconviction motion claiming her counsel was ineffective at the sentencing hearing for not objecting to the consideration of other cases or seeking adjournment to review them. The court denied postconviction relief, finding that counsel made a reasonable tactical decision not to object and that even if counsel’s performance had been deficient, it did not affect the outcome. The judge reaffirmed that he did not rely solely on the other case files, and he merely consulted them to get a sense for the court’s institutional memory on sentencing. Because he was a relatively new judge, he thought he had a responsibility to the defendant and the community to determine what sentences have been imposed in comparable cases to confirm that the court’s planned sentence was consistent.84

    The supreme court first considered whether the defendant forfeited the due-process claim by not objecting at the sentencing hearing. Forfeiture is the failure to make the timely assertion of a right. Some rights are forfeited when they are not asserted at trial. “The purpose of the forfeiture rule is to enable the circuit court to avoid or correct any error as it comes up, with minimal disruption of the judicial process and maximum efficiency.” Also the rule gives the parties and court notice of an issue and a fair opportunity to address it. Finally, as a rule of judicial administration, a reviewing court may disregard a forfeiture and address the merits of an unpreserved issue.

    The court held that forfeiture should not apply to information first disclosed during the sentencing hearing especially because counsel did not have an opportunity to investigate the information. Moreover, filing a postconviction motion was a timely means of raising an alleged error during sentencing.85

    That said, the supreme court rejected Counihan’s due-process claim on the merits, holding that the sentencing did not violate due process. Due process guarantees that a defendant will be sentenced based on reliable information, and circuit courts are required to provide on the record the reasons and objectives for the sentence.

    In fashioning a sentence, courts are also encouraged to refer to information provided by others, such as counsel recommendations, police reports, the complaint, and presentence investigation reports. Counihan argued that the circuit court’s consideration of sentences in similar cases without providing advance notice of such review violated her due-process right to rebut information at sentencing.

    The court disagreed, holding that a court may conduct a “broad inquiry,” largely unlimited in scope, to determine sentencing. Further, circuit courts may consider information about the distribution of sentences in similar cases. This practice is “congruent” with the policy supporting consistency in sentencing. The circuit court did not investigate facts or gather evidence related to the defendant’s case. Rather, it merely determined the court’s institutional memory due to the judge’s relative inexperience.

    The supreme court explained that it would be “loath” to adopt a rule preventing a circuit court from accessing institutional memory, thereby requiring it to review every case in “a vacuum.” The court’s review of case files is no different than experienced judges exploring their personal memory bank of other cases. A file review allows a new judge to access the same information that a judge would learn through collaboration with other judges and is a useful option for judges in small courts and one-judge counties.

    Finally, the failure to provide advance notice of the comparable cases did not violate due process. When a circuit court consults its institutional memory without the aid of written material, it is not required to inform the parties of all past cases that came to mind. “The use of hard copy files does not occasion a different rule.” The use of unknown information in sentencing did not violate due process. The judge disclosed his reasoning for the sentence at the hearing, and the sentencing hearing reflected that Counihan received the individualized sentence to which she was entitled. The judge considered and weighed all the surrounding facts and circumstances.86

    Involuntary Medication Statute Constitutionality

    Winnebago Cnty. v. C.S. (In re Mental Commitment of C.S.).87 In State v. Fitzgerald, issued in the 2018-19 term, the supreme court considered the standard for ordering the involuntary medication of a criminal defendant to restore the defendant’s competency to stand trial and the constitutionality of statutory standards for court-ordered involuntary medication.88 In C.S., issued in the 2019-20 term, the court considered the constitutionality of the statute that permits involuntarily committed prison inmates to be involuntarily medicated without any finding of dangerousness, based only on their incompetence to refuse medication. The court held that the statute is unconstitutional.

    C.S., who has schizophrenia, was an inmate in the Wisconsin prison system. While he was incarcerated, he was committed and determined to be incompetent to refuse medication under Wis. Stat. section 51.61(1)(g). The commitment and involuntary-medication orders were not based on any determination of dangerousness. Neither the involuntary commitment statute nor the involuntary medication statute requires a determination of dangerousness. C.S. was involuntarily committed under Wis. Stat. section 51.20(1)(ar) upon a showing he was mentally ill, a proper subject for treatment, and in need of treatment.

    Under Wis. Stat. section 51.61(1)(g)3., C.S. was involuntarily medicated solely because he was determined incompetent to refuse medication. After he was released, C.S. filed a motion for post-commitment relief. He argued that section 51.61(1)(g) is facially unconstitutional for any inmate involuntarily committed under section 51.20(1)(ar) without a determination of dangerousness. The circuit court denied the post-commitment motion, C.S. appealed, and the court of appeals affirmed.

    The supreme court held that section 51.61(1)(g)3. is facially unconstitutional for any inmate who is involuntarily committed under section 51.20(1)(ar) without a determination of dangerousness, when the inmate is involuntarily medicated based solely on a determination that the inmate is incompetent to refuse medication. Incompetence to refuse medication alone is not an essential or overriding state interest and cannot justify involuntary medication. Accordingly, the supreme court reversed the court of appeals and remanded with an order to vacate the involuntary medication and treatment order.89

    The court began by comparing involuntary commitment as to inmates and non-inmates. To involuntarily commit a person who is not in prison, the petitioner must prove that the person is dangerous as defined by statute. Inmates, however, can be involuntarily committed without a determination of dangerousness. As the court explained, “This distinction between inmates and non-inmates is embedded in the Wisconsin Statutes.”

    To involuntarily commit a non-inmate, the petitioner must prove that the non-inmate is mentally ill, a proper subject for treatment, and dangerous. The statutory definitions of dangerousness require a substantial probability of harm to that person or another. In contrast, to involuntarily commit an inmate, under Wis. Stat. section 51.20(1)(ar) the petitioner merely must prove that the individual is an inmate of a state prison, is mentally ill, and is a proper subject of treatment and in need of treatment. A petitioner need not prove dangerousness to involuntarily commit an inmate.90

    Patients, including inmates, have the right to refuse all medication and treatment except as ordered by the court under Wis. Stat. section 51.61(1)(g) or in a situation in which medication or treatment is necessary to prevent serious physical harm to the patient or others. A court may order involuntary medication if the individual is not competent to refuse medication. A patient has a right to exercise informed consent with regard to medication unless the court makes a determination under Wis. Stat. section 51.61(1)(g)3. that the individual is not competent to refuse medication or unless the medication or treatment is necessary to prevent serious physical harm.91

    Once lawfully committed, non-inmates can be involuntarily medicated either to prevent serious physical harm or because the person is not competent to refuse medication. The relevant distinction is that the lawfully committed non-inmates have already been determined by a court to be dangerous but the inmate need not be dangerous to be involuntarily committed and involuntarily medicated. The involuntary medication order against C.S. was based merely on a determination that he was incompetent to refuse medication. For this reason, C.S. argued that Wis. Stat. section 51.61(1)(g)3. is facially unconstitutional to the extent that it permits the involuntary medication of an inmate who is involuntarily committed without a determination of dangerousness and based merely on a determination of incompetence to refuse medication.92

    The supreme court agreed, finding the statute facially unconstitutional on that basis. Under the 14th Amendment, no state “shall deprive any person of life, liberty, or property without due process of law.” All persons have a “significant liberty interest” in refusing involuntary medication. The supreme court held that Wis. Stat. section 51.61(1)(g)3. is facially unconstitutional for any inmate who is involuntarily committed under Wis. Stat. section 51.21(ar), which does not require a determination of dangerousness, when the inmate is involuntarily medicated based solely on a determination of incompetence to refuse medication.

    This holding is based on U.S. Supreme Court involuntary medication cases and the Wisconsin Supreme Court’s decisions in Fitzgerald and Lenz v. L.E. Phillips Career Development Center.93 Those authorities confirm that an inmate has a significant liberty interest in avoiding unwanted administration of antipsychotic drugs. Due process permits the state to treat a prison inmate who has a serious mental illness with antipsychotic drugs if the inmate is dangerous to himself, herself, or others and the treatment is in the inmate’s medical interest. The state does not have a legitimate interest in involuntarily medicating an inmate absent a determination of dangerousness. Rather, the state’s authority to involuntarily medicate is expressly linked to dangerousness and the inmate’s medical interest, such as when the refusal to take drugs puts the inmate’s health gravely at risk. The challenged portion of Wis. Stat. section 51.61(1)(g)3. is not linked to dangerousness, the inmate’s medical interest, or grave health risks.94

    “All people have a ‘significant liberty interest in avoiding’ involuntary medication.” Only an “essential” or “overriding” state interest can overcome an inmate’s significant liberty interest in avoiding involuntary medication. Incompetence to refuse medication alone is not an essential or overriding state interest and it does not permit the state to involuntarily medicate a mentally ill inmate. Incompetence to refuse, alone, without any determination of dangerousness at any stage of the proceedings is insufficient grounds for the involuntary medication of an inmate.95

    Attorney Malpractice – Actual Innocence Rule

    Skindzelewski v. Smith.96 In Hicks v. Nunnery,97 Wisconsin adopted the “actual innocence” rule for attorney malpractice claims in the criminal defense context. In Skindzelewski, the supreme court considered this rule and a requested exception to it. David Skindzelewski was charged with theft by contractor in March 2014 for work he failed to perform for which he was paid four years earlier. He stole less than $2,500, and he was charged with a Class A misdemeanor. The statute of limitation for the crime is three years.

    Skindzelewski admitted to the crime, pleaded guilty, and was sentenced to an eight-month jail term. He served four months of his sentence, until the circuit court vacated his conviction in postconviction proceedings on statute-of-limitation grounds. Skindzelewski sued Smith, his criminal defense attorney, for malpractice for failing to raise the statute of limitation as an affirmative defense.

    A legal malpractice claim requires proof of attorney negligence, client harm, and causation. To establish causation, the plaintiff must show that but for the attorney’s negligence the client would have been successful in prosecuting or defending the action. When the legal malpractice arises from professional services rendered in a criminal case, the client must additionally prove that he or she was actually innocent of the criminal charge as a component of the causation element. Neither party asked the supreme court to overrule Hicks or otherwise challenged its rationale.98

    In the malpractice action Smith admitted negligence but asserted affirmative defenses, including the actual innocence rule. That rule requires a criminal defendant who sues his or her defense attorney for malpractice to establish that he or she did not commit the crime of which he or she was convicted. Skindzelewski conceded his guilt but advocated for an exception to the actual innocence rule. The circuit court and court of appeals both held that the malpractice claim failed as a matter of law because the defendant could not prove that he was actually innocent of the crime for which he was convicted.99

    The circuit court declined to adopt a novel exception to the actual innocence rule and dismissed the action on summary judgment. Skindzelewski appealed and the court of appeals affirmed, holding that it had no power to modify Hicks. The supreme court also rejected the argument, holding that an exception to the actual innocence rule was not warranted and that “recognizing one under these circumstances would reward criminality.”100

    Skindzelewski asked the supreme court to adopt a narrow exception to the actual innocence rule that would relieve plaintiffs from the obligation to establishing their innocence whenever defense counsel’s negligence results in a conviction or sentence unauthorized by law, citing cases in which criminal defendants served sentences that were legally impermissible, exceeding statutory maximums.

    The court distinguished those cases, noting that none applied an exception to the actual innocence rule based on a failure to raise an affirmative defense. Skindzelewski served several months less than the statutory maximum for his misdemeanor conviction. The court reasoned that a criminal defense attorney’s failure to raise the statute of limitation as an affirmative defense is analogous to a failure to make a meritorious motion to suppress evidence. Hicks held that the actual innocence rule applies even when a conviction results from an attorney’s failure to bring a clearly meritorious suppression motion that would be case dispositive. Skindzelewski acknowledged that criminal defendants cannot sue their counsel for failing to make a motion to suppress that would have been granted if brought, even if an acquittal would have surely followed.

    The actual innocence rule arises out of public policy considerations. The rule precludes many criminal-defense malpractice claims because even if an attorney’s negligence harms a defendant by adversely affecting the case outcome, attorney error does not negate a guilty defendant’s culpability. Neither failing to make a motion to suppress nor failing to raise the statute of limitation severs the causal link between a criminal defendant’s culpable behavior and the time spent incarcerated, when the criminal defendant is actually guilty. Regardless of the attorney’s error, the defendant bears ultimate responsibility for the criminal conduct and its consequences.

    In contrast, if a defendant serves the maximum time authorized by statute for the criminal conduct but then serves additional time as a result of an attorney’s error, the additional incarceration is causally disconnected from the antecedent criminality. In other words, any period of incarceration in excess of the statutory maximum sentence is solely attributable to the attorney’s error and completely detached from the defendant’s criminal conduct. Similarly, an attorney’s causing the loss of a plea deal including a sentence suspension is solely attached to the attorney’s error and entirely unrelated to the defendant’s criminal conduct.101

    The supreme court reasoned that Skindzelewski took money from his victim as an advance payment for work he never performed. Instead of returning the money he converted it to his own use. He pleaded guilty to the crime of theft by contract and served part of the eight-month sentence. Once the statute of limitation issue was discovered, his imprisonment was cut short and he was released from jail. Despite his guilt, the law did afford him a remedy for the erroneous conviction – “namely, his liberty.” “The law does not, however, give him an additional monetary remedy against his negligent lawyer.”

    The court concluded: “Doing so would be tantamount to rewarding this guilty defendant for his crime, which ‘would … shock the public consciousness, engender disrespect for courts and generally discredit the administration of justice.’” Skindzelewski failed to provide any compelling reason to change existing law. “The actual innocence rule is premised on the fundamental principle that society imposes consequences for criminal acts, to be borne solely by the guilty.”

    The court held that nothing about the case warranted carving out an exception to the actual innocence rule. Because Skindzelewski conceded guilt, his malpractice claim against his criminal defense attorney was legally barred. Skindzelewski could not succeed on his legal malpractice claim, so the supreme court affirmed the dismissal of his case.102

    Cite to 93. Wis. Law. 18-35 (December 2020).

    Endnotes

    1 On March 22, 2020, the supreme court entered emergency orders expanding remote working capabilities and reducing the number of employees in court offices in state office buildings and extending or tolling certain appellate filing deadlines, putting jury trials on hold, and ceasing in-person court proceedings. The court amended the orders on April 15 and extended some of them on May 22, 2020, and on Oct. 1, 2020. On March 31, 2020, the court entered Interim Rule 20-02 regarding suspension of deadlines in noncriminal cases for each circuit court until it implemented an operational plan for safe resumption of in-person proceedings. The court also issued an order on March 25, 2020, permitting remote administration of oaths for depositions, paving the way for depositions by videoconference. For more information regarding these orders, see “Headlines,” at www.wicourts.gov/news/headlines.jsp, and for the orders, see www.wicourts.gov/covid19.htm.

    2 The opinion total does not include decisions in attorney and judicial discipline and Board of Bar Examiners matters. It also does not include the two cases that were dismissed as improvidently granted.

    3 Wisconsin Legis. v. Palm, 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900 (setting aside April 16 extension of Safer at Home order). Palm is one of the decisions discussed in this article.

    4 On Sept. 10, 2020, the supreme court accepted original actions in three consolidated matters challenging Madison and Dane County’s Aug. 21 school closure orders for students in grades 3-12. In the meantime, it enjoined application of the closure orders until the actions are decided on the merits. Lindsey v. Heinrich, WCRIS v. Heinrich, and St. Ambrose Academy Inc. v. Parisi, Nos. 2020AP1419-OA, 2020AP1420-OA, 2020AP1446-OA (oral argument set for Dec. 8, 2020).

    5 Wisconsin Legis. v. Evers, No. 2020P608-OA (Apr. 6, 2020) (invalidating order postponing election); Jefferson v. Dane Cnty., No. 2020AP557-OA (Mar. 31, 2020) (considering indefinitely-confined-voter exception to voter ID requirements for absentee ballots). The author is one of the attorneys for petitioners in Jefferson. In the 2020-21 term, the supreme court heard oral argument in an original action challenging the validity of Executive Order Nos. 82 and 90 including a state-wide mask mandate. Fabick v. Evers, No. 2020AP1718-OA (argued Nov. 16, 2020). Additionally, on Sept. 29 the court heard arguments in Jefferson, seefootnote 5, and Zignego v. Wisconsin Elections Commission, Nos. 2019AP2397, 2020AP112, another election-related case concerning Wisconsin election laws governing the voter rolls.

    6 2020 WI 42, 391 Wis. 2d 497, 942 N.W.2d 900. In Palm, the court heard and decided the original action very quickly. Oral argument was May 5, 2020, and the decision was issued May 13, 2020. Palm was a 188-page decision, with a majority opinion joined by four justices (see id. ¶¶ 66 n.1, 88), three concurring opinions providing additional thoughts of justices in the majority, and three dissenting opinions authored or joined by the three dissenting justices.

    7 Id. ¶¶ 2, 3, 7, 9.

    8 Id. ¶ 7.

    9 Id. ¶ 2.

    10 Citizens for Sensible Zoning Inc. v. DNR, 90 Wis. 2d 804, 280 N.W.2d 702 (1979); see also Wis. Stat. § 227.01(13).

    11 Palm, 2020 WI 42, ¶¶ 3, 9, 17, 22, 24, 36, 38-40, 42, 58.

    12 Id. ¶¶ 3, 30, 31, 53, 58.

    13 Id. ¶¶ 44, 45, 48 n.16, 51.

    14 Id. ¶¶ 49, 50.

    15 Id. ¶¶ 4, 55, 59. 

    16 2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35. The author is one of the attorneys for the Wisconsin Legislature in the SEIU case.

    17 Id. ¶ 3; see Andrew Cook, “Extraordinary Session Laws: New Limits on Governor and Attorney General,” Wis. Law. (May 2019). In a decision last term, the Wisconsin Supreme Court upheld the enactment of the extraordinary session acts, holding that they were adopted in a valid session of the Legislature. See Lisa M. Lawless, “Top 10 Recent Wisconsin Supreme Court Decisions,” Wis. Law. (Dec. 2019).

    18 SEIU, 2020 WI 67,¶¶ 4, 7, 9, 38, 43, 48, 393 Wis. 2d 38.

    19 Unanimous decision on (2), (3), (4), and (5): id. ¶¶ 10, 16, 50-51, 71-73, 86 n.16, n.25 (legislative intervention in litigation); id. ¶¶ 74-77 (State Capitol building security); id. ¶¶ 78-83 (multiple suspensions of administrative rules); id. ¶ 84 (administrative agency deference); see also id. ¶¶ 164 n.2, 174 & n.2, n.11 (concurring opinion of Justice Dallet, joined by Justice Walsh Bradley, joining the majority opinion on topics (2), (3), (4), and (5)). Id. ¶¶ 50, 52-70, 72-73 (legislative approval of settlements); dissent on category (1): id. ¶¶ 163-89 (Dallet, J., with Walsh Bradley, J., dissenting). Majority opinion on guidance documents (category (6)): id. ¶¶ 87-135; dissents: id. ¶¶ 136-62 (Roggensack, C.J., dissenting); id. ¶¶ 190-214) (Hagedorn, J., with Ziegler, J., dissenting).

    20 Id. ¶¶ 1, 2, 34, 35.

    21 Id. ¶¶ 50-54, 63-64, 69, 71-72.

    22 Id. ¶¶ 74-77.

    23 Id. ¶¶ 78-83; Wis. Stat. § 227.10(1).

    24 SEIU, 2020 WI 67,¶ 84, 393 Wis. 2d 38.

    25 Id. ¶ 86.

    26 Id. ¶¶ 88, 89, 109-12, 119.

    27 Id. ¶¶ 89, 90

    28 Id. ¶¶ 94-106.

    29 Id. ¶¶ 107-8.

    30 2019 WI 109, 389 Wis. 2d 486, 936 N.W.2d 573.

    31 Id. ¶ 1.

    32 Id. ¶¶ 2-4.

    33 Id. ¶¶ 5-8.

    34 Id. ¶¶ 11-13.

    35 Id. ¶¶ 14, 15, 17.

    36 72 Wis. 2d 223, 240 N.W.2d 403 (1976).

    37 Lamar, 2019 WI 109, ¶¶ 16, 23, 24.

    38 Id. ¶¶ 25, 33, 34.

    39 Id. ¶¶ 38-40.

    40 2020 WI 13, 390 Wis. 2d 209, 938 N.W.2d 548.

    41 Id. ¶¶ 1, 2.

    42 Id. ¶¶ 14, 16.

    43 Id. ¶¶ 15, 16, 17, 18.

    44 Id. ¶¶ 17, 18, 19-20, 29 n.11.

    45 Id. ¶¶ 37, 38.

    46 Id. ¶¶ 6-11.

    47 Id. ¶¶ 3-8, 12, 26-29, 43.

    48 Id. ¶¶ 5, 40, 41, 42, 45.

    49 Id. ¶¶ 30, 43.

    50 2020 WI 3, 389 Wis. 2d 722, 937 N.W.2d 19.

    51 Id. ¶¶ 1, 2, 5-13.

    52 Id. ¶¶ 17, 18, 20, 22, 24; Fish v. Amsted Indus. Inc., 126 Wis. 2d 293, 376 N.W.2d 820 (1985); Cody v. Sheboygan Mach. Co., 108 Wis. 2d 105, 321 N.W.2d 142 (1982); Tift v. Forage King Indus. Inc., 108 Wis. 2d 72, 322 N.W.2d 14 (1982).

    53 Veritas, 2020 WI 3, ¶¶26, 27, 28, 389 Wis. 2d 722 (quoting Fish, 126 Wis. 2d at 301).

    54 Id. ¶¶ 27, 29 (quoting Fish, 126 Wis. 2d at 302).

    55 Id. ¶ 29 (quoting Fish, 126 Wis. 2d at 302) (internal quotations and citation omitted).

    56 Id. ¶ 29.

    57 10 F. Supp. 2d 1050, 1056 (E.D. Wis. 1998).

    58 Veritas, 2020 WI 3, ¶¶ 3, 4, 16, 30, 31, 32, 34.

    59 Id. ¶¶ 35, 36.

    60 2020 WI 60, 392 Wis. 2d 402, 944 N.W.2d 832.

    61 Id. ¶ 1.

    62 Id. ¶¶ 2-6.

    63 Id. ¶¶ 8-11.

    64 Id. ¶¶ 12-14.

    65 Id. ¶¶ 16.

    66 Id. ¶¶ 18-20 & n.12.

    67 Id. ¶ 21.

    68 Id. ¶¶ 23, 26.

    69 2019 WI 102, 389 Wis. 2d 190, 935 N.W.2d 813.

    70 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582

    71 Roberson, 2019 WI 102, ¶¶ 1, 2, 3, 4, 22.

    72 Id. ¶¶ 6-17.

    73 Id. ¶¶ 24-29, 34-36.

    74 Id. ¶¶ 32, 34-36.

    75 Id. ¶¶ 37-40, 43-44, 46-48.

    76 Id. ¶¶ 51-65.

    77 Id. ¶¶ 67-69 & n.9.

    78 Id. ¶¶ 67, 69-77.

    79 Id. ¶¶ 78, 82.

    80 2020 WI 12, 390 Wis. 2d 172, 938 N.W.2d 530.

    81 Id. ¶¶ 4, 5, 21, 29, 35, 36, 37, 53.

    82 Id. ¶¶ 7-11.

    83 Id. ¶¶ 13, 14-16.

    84 Id. ¶¶ 17-19.

    85 Id. ¶¶ 23-37, 52.

    86 Id. ¶¶ 5, 38-48, 49-51, 53 & n.14.

    87 2020 WI 33, 391 Wis. 2d 35, 940 N.W.2d 875.

    88 2019 WI 69, 387 Wis. 2d 384, 929 N.W.2d 165; see also Lisa M. Lawless, “Top 10 Recent Wisconsin Supreme Court Decisions,” Wis. Law. (Dec. 2019).

    89 C.S., 2020 WI 33, ¶¶ 1-2, 5, 8-9, 10-11.

    90 Id. ¶¶ 15-17.

    91 Id. ¶ 18.

    92 Id. ¶ 20.

    93 167 Wis. 2d 53, 482 N.W.2d 60 (1992).

    94 C.S., 2020 WI 33, ¶¶ 21-28, 391 Wis. 2d 35.

    95 Id. ¶¶ 33-34, 46.

    96 2020 WI 57, 392 Wis. 2d 117, 944 N.W.2d 575.

    97 2002 WI App 87, 253 Wis. 2d 721, 643 N.W.2d 809.

    98 Skindzelewski, 2020 WI 57, ¶¶ 9-11.

    99 Id. ¶¶ 3-4.

    100 Id. ¶¶ 2, 5-6.

    101 Id. ¶¶ 12-21.

    102 Id. ¶¶ 22-23.




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