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    Wisconsin Lawyer
    April 13, 2022

    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


    Awards – Objections – Timeliness – Forfeiture

    Loren Imhoff Homebuilder Inc. v. Taylor, 2022 WI 12 (filed 1 March 2022)

    HOLDING: Two parties did not forfeit their objections to an award by an arbitrator who allegedly slept during the arbitration hearing.

    SUMMARY: In a dispute between two homeowners and a remodeling contractor, the parties commenced an arbitration proceeding that involved a five-day evidentiary hearing. The homeowners asserted that the arbitrator was biased in favor of the contractor and had been asleep for significant parts of the testimony, but the arbitrator refused to recuse himself and ruled in favor of the contractor. The circuit court, however, found that the homeowners had shown by clear and convincing evidence that the arbitrator had “imperfectly executed” his power and the court denied the contractor’s motion to confirm the award.

    In a published decision, the court of appeals reversed, ruling that the homeowners had forfeited their claims by failing to raise them until after the close of evidence. See 2020 WI App 80.

    The supreme court reversed the court of appeals in a unanimous opinion authored by Justice Roggensack. The court addressed the significant differences between judicial proceedings and arbitration, especially with reference to “waivers” and “forfeitures” of issues. “Here, the homeowners raised their objections to the arbitrator’s sleeping to him before he issued the arbitral award. Even though it was after the evidentiary hearing was completed, there remained the opportunity for the arbitrator to make corrections for his sleeping during the evidentiary hearing. However, he failed to do so” (¶ 22). Thus, the homeowners raised their objections in a timely manner.

    The court was, however, evenly divided on whether the award should be vacated pursuant to Wis. Stat. section 788.10. Accordingly, the supreme court remanded the case to the court of appeals, which had not considered this issue (see ¶ 23).

    Justice Karofsky did not participate in this case.

    Criminal Procedure

    Not Guilty By Reason of Mental Disease or Defect (NGI) – Consecutive NGI Commitments

    State v. Yakich, 2022 WI 8 (filed 16 Feb. 2022)

    HOLDING: Circuit courts have discretion to order that multiple NGI commitments run consecutively.

    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: In two separate cases, defendant Yakich was found not guilty by reason of mental disease or defect. The circuit court ordered a two-year term of commitment in one of the cases and a three-year term of commitment in the other case. The court also ordered that the periods of institutionalized commitment run consecutively to one another.

    Yakich appealed the orders, arguing that the circuit court lacked authority to require the two NGI commitment orders, which were issued in separate cases, to run consecutively to one another. In an unpublished decision, the court of appeals affirmed.

    In a majority opinion authored by Chief Justice Ziegler, the supreme court affirmed the court of appeals. It concluded that circuit courts have discretion to impose consecutive NGI commitments, whether those commitments are mandated in the same order or in separate orders (see ¶ 25).

    Said the majority, “[t]he plain text of the statute [Wis. Stat. § 971.17(1)] ties NGI commitment periods to the length of confinement that would have occurred if the defendant were not NGI. Criminal terms of confinement can run consecutively, and so can NGI commitment orders” (¶ 26).

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


    Redistricting – Drawing New Maps for Congressional and State Legislative Districts

    Johnson v. Wisconsin Elections Comm’n, 2022 WI 14 (filed 3 March 2022)

    DECISION: The supreme court adopted redistricting maps for the congressional and state legislative districts as proposed by Gov. Tony Evers.

    SUMMARY: Every 10 years, states are required to redraw the boundaries for congressional and state legislative districts to account for population changes. This means the maps enacted into law in 2011 cannot constitutionally serve as the basis for future elections. In the first instance, drawing new maps is the responsibility of the state legislature and the governor via the legislative process.

    That process having failed in Wisconsin in the current redistricting endeavor, the Wisconsin Supreme Court was left with what it described as the “unwelcome task of filling the gap” (¶ 2). To do so, it had set forth in an earlier opinion the approach it would use. SeeJohnson v. Wisconsin Elections Comm’n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469. In that decision the court concluded that, rather than craft its own maps, it would invite the parties to this litigation to submit proposed maps. The court said that it would choose maps that minimize changes from current law and would evaluate maps for compliance with state and federal law. It declined invitations to consider the partisan makeup of proposed districts (see ¶ 4).

    After that decision was issued, the parties submitted proposed maps, briefs, and expert reports. In a majority opinion authored by Justice Hagedorn, the supreme court adopted the maps submitted by Gov. Tony Evers. The court first considered the proposed maps for Wisconsin’s eight congressional districts. The first issue was which map most complies with the court’s least-change directive.

    “With only eight districts, core retention – a measure of voters who remain in their prior districts – is the best metric of least change” (¶ 7). Governor Evers’ proposed map scored the best on this metric. His submission also complies with the U.S. Constitution and all other applicable laws. Therefore, the court adopted the governor’s proposed congressional map.

    The court next considered proposed maps for the state’s legislative districts. The proposed maps making the least changes from current law are those Gov. Evers submitted. The court also concluded that the governor’s maps satisfy the requirements of the state and federal constitutions.

    “Under the Wisconsin Constitution, all districts are contiguous, sufficiently equal in population, sufficiently compact, appropriately nested [that is,three assembly districts nested within each senate district], and pay due respect to local boundaries. Governor Evers’ proposed maps also comply with the federal constitution’s population equality requirement” (¶ 8).

    The court also addressed the Voting Rights Acts (VRA) in connection with the governor’s proposal to add a seventh majority-Black assembly district in the Milwaukee area. Said the court: “As a map-drawer, we understand that our duty is to determine whether there are ‘good reasons’ to believe the VRA requires a seven-district configuration. In assessing the information presented by the parties, we conclude there are good reasons to believe a seventh majority-Black district is needed to satisfy the VRA. Governor Evers’ assembly map accomplishes this” (¶ 10).

    The court concluded its opinion by addressing the implementation of its decision. The court enjoined the Wisconsin Elections Commission from conducting elections under the 2011 maps beginning with the August 2022 primary elections, and it ordered the commission to implement the congressional and state legislative maps submitted by Gov. Evers for all upcoming elections. “This order shall remain in effect until new maps are enacted into law or a court otherwise directs” (¶ 52).

    Justice Hagedorn’s majority opinion in this case was joined in by Justice A.W. Bradley, Justice Dallet, and Justice Karofsky. Justice A.W. Bradley wrote a concurring opinion in which Justice Dallet and Justice Karofsky joined. Chief Justice Ziegler, Justice Roggensack, and Justice R.G. Bradley each wrote a dissenting opinion in which the other dissenters joined.


    Underinsured Motorist (UIM) Coverage – Bodily Injury

    Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7 (filed 15 Feb. 2022)

    HOLDING: Statutes permitted an insurer to require that UIM coverage for a car accident only be available to an insured if the insured incurred bodily injury caused by the accident.

    SUMMARY: After a man’s death in a car accident, his minor son, Brey, intervened in a lawsuit brought by his father’s parents against the driver, the car’s owner, and their insurers. State Farm insured Brey as a “resident relative” under a policy issued to his mother and covering a vehicle not involved in the accident. The UIM coverage in the State Farm policy required that for an insured to be paid compensatory damages under the policy, the insured must have sustained bodily injury caused by the accident (see ¶ 4). Brey was not in the vehicle when the accident occurred and suffered no injuries.

    The circuit court granted summary judgment in favor of State Farm. In a published decision, the court of appeals reversed, holding that pertinent statutes barred an insurer from limiting UIM coverage to those who are killed or suffer bodily injury (see ¶ 7). See 2020 WI App 45.

    The supreme court reversed the court of appeals in a unanimous opinion authored by Justice R.G. Bradley. The court rejected Brey’s contention that Wis. Stat. section 632.32(2)(d) precludes insurers from limiting UIM coverage to injured persons (see ¶ 10).

    Applying a “plain meaning” approach to statutory interpretation, the court rejected the court of appeals’ “hyper-literal approach” to the statute, which isolated a statutory definition while ignoring “the context of the Omnibus Statute’s pertinent text as a whole” (¶¶ 12-13). Brey’s argument was “incompatible” with multiple statutes addressing the “anti-stacking” of policies, including limitations on “drive-other-car” exclusions (¶¶ 15-19). The court also plumbed the provision’s “statutory history” (as distinguished from “legislative history”) – a history that encompasses extensive changes in UIM coverage over the decades (¶ 20).

    Finally, the court addressed the derivative nature of wrongful death claims under UIM and uninsured motorist policies. Because Brey’s father, who was not an insured, could not have claimed UIM coverage, neither could Brey. “Nothing in Wis. Stat. § 632.32(2)(d) precludes insurers from affording coverage to only those insureds who are injured in an auto accident” (¶ 32).


    Public Utility – Prescriptive Rights – Summary Judgment

    Bauer v. Wisconsin Energy Corp., 2022 WI 11 (filed 24 Feb. 2022)

    HOLDING: Wisconsin Energy Corp. had a prescriptive right to a gas pipeline that ran under the owner’s property based on permission granted 40 years earlier by the previous owner.

    SUMMARY: In 1980, the owner of a lakeside lot granted Wisconsin Energy Corp. written permission to install a gas pipeline that ran under her property to service the home of her adjacent neighbor. Over the years, Wisconsin Energy Corp. periodically “serviced” the line. Bauer, the current owner, purchased the property in 1996 but did not learn of the pipeline until 2014, when she rejected Wisconsin Energy Corp.’s request to enlarge the easement and then demanded that Wisconsin Energy Corp. remove the existing pipeline. In the litigation that followed, the circuit court granted summary judgment in favor of Wisconsin Energy Corp. The court of appeals summarily affirmed.

    The supreme court affirmed in a unanimous opinion authored by Justice Karofsky. To start with, the circuit court properly rejected Bauer’s motion that it reconsider the summary-judgment ruling based on additional submissions. The judge reasonably concluded that Bauer “lacked necessary factual predicates” on both of her constitutional claims and had presented no newly discovered evidence that warranted reconsideration (¶ 16).

    Turning to the merits, the supreme court contrasted the law governing prescriptive rights in real property at common law with the rights granted public utilities by Wis. Stat. section 893.28(2). Both rules require continuous use for a set time period, but the statute departs from the common law in three ways: it omits any mention of the use being “adverse” or “hostile and inconsistent with the exercise of the titleholder’s rights”; it reduces the “vesting period” from 20 to 10 years; and it does not mention the use being “visible, open, and notorious” or “under an open claim of right” (¶ 19).

    Addressing the omissions, the court held that the legislature “necessarily had to remove both the adversity and claim-of-right requirements to allow a permissible use to ripen into a prescriptive right” – which “makes sense in light of the common view that a claim of right is a subpart of the larger adversity requirement” (¶ 21). It saw no need to address whether Wis. Stat. section 893.28(2) “still requires a visible, open, and notorious use” because the court’s ultimate conclusion in this case would be the same either way (¶ 22).

    Thus, the court assumed without deciding that the statute still requires a public utility’s use be continuous for 10 years and visible, open, and notorious. On the summary-judgment record before it, the court held that Wisconsin Energy Corp. met both conditions (see ¶ 23). Reasonable maintenance on the line to continue its initial purpose did not break Wisconsin Energy Corp.’s continuous use (see ¶ 26). The previous owner’s written permission showed Wisconsin Energy Corp.’s use was visible, open, and notorious (see ¶ 27).


    County Sales and Use Tax – Validity

    Brown Cnty. v. Brown Cnty. Taxpayers Ass’n, 2022 WI 13 (filed 4 March 2022)

    HOLDING: Brown County’s sales and use tax complies with Wis. Stat. section 77.70.

    SUMMARY: This case, which concerns the Brown County sales and use tax, was before the supreme court on certification from the court of appeals. The court of appeals certified the following issue regarding how counties can use the proceeds of sales and use taxes: “Does the sales and use tax Brown County enacted in 2017 and implemented as part of its 2018 budget process ‘directly reduce the property tax levy,’ as required by Wis. Stat. § 77.70 (2015-16), if the proceeds are designated to fund new capital projects that collectively would otherwise exceed the levy limits established by Wis. Stat. § 66.0602, but the County could otherwise fund the projects by borrowing?” (¶ 2).

    The Brown County Taxpayers Association (BCTA) contended that Brown County’s sales and use tax is invalid because it does not dollar-for-dollar directly reduce the county’s property tax levy and thus violates Wis. Stat. section 77.70, which provides that “[t]he county sales and use taxes may be imposed only for the purpose of directly reducing the property tax levy ….” The BCTA asserted that Brown County impermissibly uses the sales and use tax to fund new capital projects.

    In response, the county argued that its sales and use tax complies with Wis. Stat. section 77.70. It contended, in accordance with a longstanding Wisconsin Attorney General opinion (OAG 1-98 (May 5, 1998), see Wis. Dep’t of Just., AG Opinion Archive,, that pursuant to Wis. Stat. section 77.70, a county can use a sales and use tax to fund any project that could otherwise be paid for with property taxes.

    In a declaratory-judgment action regarding the validity of the sales and use tax, the circuit court upheld the tax, granting summary judgment in favor of Brown County. In a majority opinion authored by Justice A.W. Bradley, the supreme court affirmed.

    It concluded that “Brown County’s sales and use tax ordinance is consistent with Wis. Stat. § 77.70. Section 77.70 does not require a dollar-for-dollar offset to the property tax levy. Instead, it authorizes counties to impose a sales and use tax for the specific purpose of directly reducing the property tax levy, while leaving the means to accomplish that purpose up to the county. Because the County’s ordinance does in fact directly reduce the property tax levy by funding projects that would otherwise have been paid for through additional debt obligations, we determine that the ordinance is permissible” (¶ 5).

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

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