The Wisconsin Supreme Court’s 2022-23 term marked a departure from the preceding three terms, as the court handed down only one case related to the COVID-19 pandemic and only one election law decision. The court did issue major decisions on products liability law, the interpretation of insurance contracts and the admissibility of evidence of insurance settlements, and medical-records fees. The court also issued several important decisions relating to civil procedure.

Drop in Number of 4-3 Decisions

The court issued 45 substantive decisions (not including disciplinary decisions), seven fewer than in the term before.

Fourteen of those decisions, or 31%, were decided by a 4-3 vote. That number is down from the 2021-22 term’s historical high of 54% (4-3 decisions amounted to 37% of those handed down in the 2020-21 term).

Alan Ball, a history professor at Marquette University who compiled the statistics used in this article, said that reductions in the respective coherence of the court’s conservative and liberal blocs is behind the drop in the number of 4-3 decisions. When each bloc hung together, Ball said, more 4-3 decisions were inevitable.

According to Susan Tyndall, a civil litigator at Habush Habush & Rottier S.C. in Waukesha, the drop in the number of 4-3 decisions doesn’t mean that attorneys should change their strategy when arguing before the state’s high court.

“The basic strategy – crafting a strong legal argument – remains the same,” Tyndall said. “However, appellate practitioners should also consider the arguments accepted in last term’s cases and assess whether similar arguments might exist in support of their positions.”

No Clear Swing Vote in 2022-23 Term

In the 2021-22 term, Justice Brian Hagedorn voted with the majority in 24 of the 31 4-3 decisions. That number was eight more than any other justice and made it clear that Hagedorn, who voted with the conservative bloc in 12 cases and with the liberal bloc in the other 12, was the court’s swing justice.

In the 2022-23 term, there was no clear swing vote. Three justices – Hagedorn, Justice Ann Walsh Bradley, and Justice Jill Karofsky – each voted with the majority in 10 of the 14 cases decided by a 4-3 vote.

While Hagedorn cast the deciding vote in 86% of the 4-3 decisions in the 2021-22 term, he did so 71% of the time in the 2022-23 term.

In half (seven) of the 2022-23 term’s 4-3 decisions, Hagedorn voted with the liberal bloc, made up of A.W. Bradley, Karofsky, and Justice Rebecca Dallet. Hagedorn voted with the conservative bloc, made up of Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Bradley, in three 4-3 decisions.

Ball said one reason for the reduction in Hagedorn’s role as the swing vote was “slippage” in the coherence of the conservative bloc. In the 2021-22 term, the three conservative justices voted together in 92% of the cases. In the 2022-23 term, they voted together in 72% of the cases.

“It’s certainly a significant change,” Ball said. “There’s a little bit of a change in the number for the liberals, but a much more dramatic fragmenting of the bloc with the conservatives. Of the three [in the conservative bloc], my impression is that one that’s most likely to go her own way is Justice Rebecca Bradley. Roggensack and Ziegler seemed much more often in lock step.”

In the 2021-22 term, the three liberal justices voted together in 86% of 4-3 decisions. In the 2022-23 term, they voted together in 71% of the 4-3 decisions.

“As far as the liberal three, if that trio splits apart, it seems to me the justice most likely to go her own way, at least in criminal cases, is Karofsky,” Ball said.

The four 4-3 decisions in which Justice Hagedorn was not the swing vote were decided by the following majorities: A.W. Bradley, Roggensack, Dallet, Karofsky (2); Roggensack, Ziegler, R.G. Bradley, Karofsky (1); and A.W. Bradley, R.G. Bradley, Dallet, and Karofsky (1).

Tyndall attributes the decline in Hagedorn’s role as swing justice to the subject matter of the cases the supreme court decided in 2022-23.

“This is likely the result of the nature of the specific cases before the court,” Tyndall said. “Justice Hagedorn continues to be a swing vote, as evidenced by his joining the majority in Fleming v. Amateur Athletic Union of the United States, and the dissent in Murphy v. Columbus McKinnon Corporation.”

Bloc Alignment

Several pairs of justices anchored each bloc by consistently voting together.

For instance, Chief Justice Ziegler and Justice Roggensack voted together in 36 of the 43 cases in which they both participated (84%) and Ziegler and Justice R. Bradley voted together in 38 of the 45 cases in which they both participated (84%).

Justice Dallet and Justice A.W. Bradley voted together in 40 of 45 cases in which they both participated (89%), while Justice Karofsky and A.W. Bradley voted together in 38 of the 45 cases in which they both participated (84%).

Rise in Number of 5-2 and 6-1 Decisions

While the number of 4-3 decisions as a percentage went down in 2022-23, the number of 5-2 and 6-1 decisions as a percentage went up.

In 2021-22, 14% of the 52 decisions were decided by a 5-2 (8%) or 6-1 or 5-1 vote (6%). In 2022-23, 22% of the 45 decisions were decided by a 5-2 or 4-2 vote, and 11% were decided by a 6-1 vote.

Ball said the breakdown in cohesion of the conservative bloc is the biggest reason for the jump in 5-2 decisions. Justice Roggensack’s retirement could lead to an increase in 5-2 decisions in the 2023-24 term, Ball said.

“It will be interesting to see what happens next term, when you take one of the conservatives out and replace her with [Justice Janet] Protasiewicz, who people are supposing is going to be a liberal,” Ball said. “You would expect that the 5-2 percentage would go even higher.”

Dissents and Concurrences

Chief Justice Ziegler wrote the most dissents in 2022-23, with eight. Justice Roggensack wrote six, Justice A.W. Bradley and Justice R. Bradley each wrote five, Justice Dallet wrote four, and Justice Hagedorn and Justice Karofsky each wrote three.

Justice R. Bradley wrote the most concurrences in 2022-23, with seven. Justice Hagedorn wrote six, Justice Dallet wrote five, Chief Justice Ziegler and Justice Karofsky each wrote three, and Justice Roggensack wrote two. Justice A.W. Bradley did not write a concurrence in 2022-23.

Ballot Question Case

The court’s only election law decision in the 2022-23 term was a significant one.

In Wisconsin Justice Initiative v. Wisconsin Elections Commission,¹ the supreme court held (6-1) that the statewide ballot question concerning victims’ rights, which led to a constitutional amendment in 2020, was not required to describe every essential of the proposed amendment.

The court ruled that a ballot question for a constitutional amendment complies with section XII, article 1 of the Wisconsin Constitution if it fairly describes the actual question and is not counter-factual to the amendment itself.

In dueling concurrences, Justice Dallet and Justice R. Bradley debated the role of a supreme court precedent holding that a ballot question that failed to describe “every essential” of a proposed constitutional amendment did not pass legal muster.

Dallet argued that counter-factual ballot questions were not the only ones capable of violating section XII, article 1. R. Bradley argued that the “every essential” test violated the principles of the political question doctrine and usurped the legislature.

Tyndall said that Justice Dallet’s concurrence in Wisconsin Justice Initiative v. Wisconsin Elections Commission was more interesting to her than any of the dissents issued in the 2022-23 term.

“As pointed out by Professor Ball, the debate over the validity of ‘originalism’ in constitutional and statutory construction exploded in Wisconsin Justice Initiative Inc. v. Wisconsin Elections Commission,” Tyndall said.

“Justice Dallet’s concurrence asserts that methodologies for interpreting constitutions and statutes are not subject to stare decisis. Justices Karofsky and Ann Walsh Bradley joined that portion of Justice Dallet’s concurrence. This concurrence may gain in importance next year if incoming Justice Protasiewicz agrees with this analysis.”

Products Liability Case

Another significant decision handed down in the 2022-23 term interpreted for the first time a statutory provision related to products liability law.

In Murphy v. Columbus McKinnon Corp.,² the supreme court held that in enacting Wis. Stat. section 895.047(1), the Wisconsin Legislature retained the consumer-contemplation test for determining whether a product is defective.

Justice Roggensack wrote the majority opinion, joined by Justice A.W. Bradley, Justice Dallet, and Justice Karofsky (except for paragraphs 38 and 41). Karofsky wrote a concurring opinion, joined by A.W. Bradley and Dallet. Justice Hagedorn wrote an opinion concurring in part and dissenting in part, joined by Chief Justice Ziegler and Justice R. Bradley.

Tyndall acknowledged that the Murphy decision is significant because it interpreted a recently enacted statute. But she pointed out that products liability cases are uncommon in Wisconsin.

“Court statistics show that only 38 products liability cases were filed in 2022,” Tyndall said. “The court’s plain-language reading of the statute accords with federal cases which had interpreted the statute and provides litigants with a clear evidentiary road map for future cases.”

Insurance Cases

The court decided three important insurance cases in the 2022-23 term.

In Dostal v. Strand,³ the court held that a man’s conviction for second-degree reckless homicide for causing a death in his home did not preclude indemnification under a homeowner’s insurance policy.

In Acuity v. Estate of Shimeta,⁴ the court held that an insurance policy’s reducing clause operated to reduce the “each person” limit, not the “each accident” limit, by the payments an individual received for the individual’s injuries.

Tyndall said the effect of those decisions will likely be limited by their facts.

“Acuity v. Estate of Shimeta could have the bigger impact, because many auto insurance policies contain similar language,” Tyndall said. “However, like the Welin case it relies on, it applies only in cases involving insureds with combined single limit policies, in which the policy has the same limit of liability per person and per accident. In my experience, cases which involve both combined single limit policies and claims exceeding the limits of the primary coverage aren’t that common.”

“Similarly, Dostal involves facts which seldom arise, concerning claims for insurance coverage where a criminal conviction has already occurred. The majority decision in Dostal does not appear to alter the law regarding issue preclusion.”

In Secura Supreme Insurance Co. v. Estate of Huck,⁵ the court held (6-1) that the plain wording of an insurance policy required payment of underinsured motorist benefits based on an estate’s recovery after both reimbursements to the worker’s compensation insurer and collection of the tortfeasor’s liability payment had occurred.

Tyndall, who worked on the Secura case, said Justice R. Bradley’s dissent was noteworthy.

“In that case, six justices applied well-settled law in concluding that an underinsured motorist’s insurer could not reduce its policy limits by sums initially paid by worker’s compensation, then reimbursed to the worker’s compensation insurer out of the proceeds of a settlement with the tortfeasor’s liability insurer,” Tyndall said.

“Justice Dallet’s concurrence clarifies the issue by asking: ‘If I buy an $8 sandwich, hand the cashier a $10 bill, and she hands me my sandwich and $2 in change, how much was she ‘paid’ for the sandwich? Eight dollars, of course. But according to Secura, that isn’t so clear,’” Tyndall said. “Justice Rebecca Bradley not only agreed with the insurer – she declared the majority’s decision an ‘injury to the rule of law.’”

Civil Procedure Cases

In Fleming v. Amateur Athletic Union of the United States,⁶ the court held that a law extending the statute of limitation for actions seeking damages for sexual assault does not apply to a claim of negligent supervision of an employee who committed sexual assault.

In Allsop Venture Partners III v. Murphy Desmond S.C.,⁷ the court held that a circuit court did not err by admitting evidence that the plaintiffs had previously settled with two other defendants in a legal malpractice case.

“Allsop Venture Partners seems unlikely to produce a sea change in admissibility of evidence of settlements,” Tyndall said. “The trial court’s decision to admit settlement evidence was discretionary and thus reviewed deferentially. Importantly, while affirming that discretionary decision, the majority decision observed that the case had ‘unique facts’ and reiterated that admissibility of settlement evidence is the exception, not the rule.”

“Additionally, the court declared that the trial court erred in failing to hold that the defense’s closing argument regarding that evidence ‘crossed the line,’” Tyndall said. “Trial courts will likely continue to adhere to the statute and limit the admission of settlement evidence to avoid the opportunity for similar lines to be crossed in their courtrooms.”

Medical Records Case

In the 2022-23 term, the supreme court decided a case on an issue that has spurred a spate of appellate litigation over the last decade: whether companies can charge individuals for copies of their medical records.

In Banuelos v. University of Wisconsin Hospitals & Clinics Authority,⁸ the supreme court held that a statute that specifies the amounts a party can charge for providing medical records is silent as to electronic records. Consequently, a party cannot charge an individual a fee for producing electronic copies of the individual’s medical records.

Justice A.W. Bradley wrote the majority opinion, joined by Justice Dallet, Justice Hagedorn, and Justice Karofsky. Justice Roggensack filed a dissenting opinion. Justice R. Bradley filed a dissenting opinion, joined by Chief Justice Ziegler and Justice Roggensack.

Tyndall’s firm represented Banuelos. Jesse Blocher, also a partner at Habush Habush & Rottier, argued the case before the high court.

“We associate the increased litigation over the fee statute with the prevalence of out-of-state large data vendors taking over medical records copying from health care providers and increasingly pushing the envelope as to what charges are permissible to increase profitability,” Blocher said.

“There have also been a number of changes in federal law and regulation over the last 15 years that influence how state law applies,” Blocher said. “Our position is that the Banuelos decision continues the court’s commonsense approach of interpreting and enforcing the statute as the legislature wrote it.”

Criminal Cases

Nineteen of the 45 decisions issued by the supreme court in the 2022-23 term were in criminal law cases, with five of the 19 decided by a 4-3 vote.

Not including the decisions that were decided unanimously, the decisions in the criminal cases featured 10 different majorities, including four different four-justice majorities.

“The diverse alignments in the past term indicate that justices are carefully and independently scrutinizing the issues presented,” said Mike Tobin, a former state public defender. “Another potential factor is persuasive advocacy in framing and presenting issues effectively. Although the result of the last judicial election has been described as switching the balance of the court, the recent alignments suggest that the effect may be more subtle.”

Two of the 4-3 decisions in criminal cases involved search and seizure issues: State v. Richey⁹ and State v. Moore.¹⁰

In Richey, the supreme court held that a police officer who stopped a motorcyclist on a Harley five minutes after another officer reported a Harley driving erratically in the same area lacked reasonable suspicion for the stop.

Justice Dallet wrote the majority opinion, joined by Justice A.W. Bradley, Justice R. Bradley, and Justice Karofsky. Justice Roggensack dissented, joined by Chief Justice Ziegler and Justice Hagedorn.

The majority reasoned that because Harley-Davidsons are common on Wisconsin roads, the general description provided to the police was an insufficient basis for the reasonable suspicion legally required for a traffic stop. The dissent argued that testimony from the police officer that there were several motorcycles in the area on the night of the stop, plus the report of someone on a Harley-Davidson driving erratically, was sufficient basis for reasonable suspicion.

In Moore, the supreme court held that police officers who detected an odor of marijuana coming from a vehicle but not specifically from its driver had probable cause to arrest and search the driver.

Justice Hagedorn wrote the majority opinion, joined by Chief Justice Ziegler, Justice Roggensack, and Justice R. Bradley. Justice Dallet dissented, joined by Justice A.W. Bradley and Justice Karofsky.

In her dissent, Dallet argued that earlier Wisconsin cases holding that the odor of an illicit drug was sufficient to provide probable cause to believe that a crime had been committed should be reexamined, given the broad de-criminalization or legalization of hemp products, which produce an odor similar to that of marijuana.

Access to Victims’ Medical Records

One the term’s most significant decisions in a criminal case, State v. Johnson,¹¹ came on a 5-2 vote.

In Johnson, the supreme court overruled a 30-year-old Wisconsin Court of Appeals decision that granted criminal defendants the right to seek in camera review of a victim’s medical records.

Justice Dallet wrote the majority opinion, joined by Justice Roggensack, Justice Hagedorn, Justice Karofsky, and Justice R. Bradley (¶¶ 2-22 and 25-29). Justice Karofsky and R. Bradley each wrote a concurring opinion. Justice A.W. Bradley dissented, joined by Chief Justice Ziegler.

In her opinion for the majority, Dallet concluded that the overruled decision was unsound in principle and unworkable in practice. In her dissent, A.W. Bradley argued that the majority had cast aside a criminal procedure long relied upon by litigants, without creating a replacement.

“This decision is significant as a major victory for victims’ rights in the wake of the constitutional amendment expanding these rights,” Tobin said. “The Johnson court overruled the 1994 court of appeals case (Shiffra) that had established criteria for defense access to privately held patient records. The supreme court had previously recognized Shiffra as precedent on multiple occasions, as noted in the majority opinion, despite previous attempts to overrule it.”

Tobin said that although the Johnson decision is significant, defendants already faced a high hurdle to obtaining access to the types of records at issue in the case.

“Defendants had to make a threshold showing of potential exculpatory value (necessary to a guilt [or] innocence determination) just to have the circuit court review the records in camera,” Tobin said. “This showing was obviously difficult for a party who had not seen the records in question.”

Decision on Sentence Credit

Another important decision that came on a 5-2 vote was State v. Fermanich.¹² In that case, the supreme court held that a criminal defendant is entitled to a sentence credit for time served on a related charge that is dismissed but read in at sentencing.

Justice Hagedorn wrote the majority opinion, joined by Justice A.W. Bradley, Justice Roggensack, Justice Dallet, and Justice Karofsky. Justice Dallet filed a concurrence. Chief Justice Ziegler dissented, joined by Justice R. Bradley.

In his opinion for the majority, Hagedorn reasoned that supreme court precedent, State v. Floyd,¹³ was squarely on point. But Ziegler argued in her dissent that Floyd was “entirely disconnected from the statutory text”; she also argued that Floyd should be overruled.

“Beyond the issue of sentence credit, the opinions in Fermanich address broader jurisprudential issues of respect for precedent, scope of review – whether to address issues not directly raised or vigorously pursued by parties – and approaches to statutory interpretation,” Tobin said.

Two Double Jeopardy Decisions

The supreme court decided two cases involving double jeopardy issues in the 2022-23 term, both on 5-2 votes: State v. Killian¹⁴ and State v. Green.¹⁵

In Killian, the supreme court held that a second prosecution for alleged acts that were the subject of a previous trial that ended in a mistrial did not place the defendant in double jeopardy because several charges in the second prosecution involved different elements.

Chief Justice Ziegler wrote the majority opinion, joined by Justice Roggensack, Justice Dallet, Justice Hagedorn, and Justice Karofsky. Justice A.W. Bradley dissented, joined by Justice R. Bradley.

In her dissent, A.W. Bradley argued that the prosecutor violated a pretrial order in the first trial because he intended all along to file additional charges for alleged acts committed against the same victims. She acknowledged that those additional alleged acts were different from the acts alleged in the first trial but argued that the court should consider the entire record from the first trial when determining whether a second trial would violate Killian’s right against double jeopardy.

In Green, the supreme court held that the circuit court did not err by declaring a mistrial when defense counsel introduced third-party perpetrator evidence without first notifying the state.

“Green seemingly prioritizes local court practices and judicial discretion over the defendant’s protection against double jeopardy,” Tobin said. “The trial court declared a mistrial after a defense witness in this sex trafficking case had testified that he, rather than the defendant, had driven the victim to a hotel. The witness had been listed on the defense witness list, and the prosecution did not object to the testimony.”

“Although the witness’s testimony unquestionably raised a debatable evidentiary issue mid-trial, such a circumstance can arise in any trial, even when both parties have pursued pretrial discovery and motion practice more completely than occurred in Green,” Tobin said. “Future cases may shed more light on whether the court can find manifest necessity for a mistrial when such issues arise, rather than pausing the trial to consider both the admissibility of the evidence and possible alternatives to mistrial, if the jury has heard inadmissible evidence.”

Self-incrimination Decision

The supreme court also issued an opinion (4-3) addressing the right against self-incrimination. In State v. Hoyle,¹⁶ the supreme court held that a prosecutor who repeatedly used the term “uncontroverted” to refer to evidence in a case in which the defendant neither testified nor presented any witnesses did not violate the defendant’s Fifth Amendment right against self-incrimination.

Chief Justice Ziegler wrote the majority opinion, joined by Justice Roggensack, Justice R. Bradley, Justice Hagedorn, and Justice Karofsky. Justice Hagedorn wrote a concurring opinion, which Justice R. Bradley joined. Justice Dallet dissented, joined by Justice A.W. Bradley.

In his concurrence, Hagedorn argued that the dissent had engaged in a “choose-your-own-adventure judicial methodology.” In her dissent, Dallet argued that the “concurrence simply assumes that, because the Fifth Amendment was adopted in a radically different context than today, contemporary courts must stand silent when prosecutors use a defendant’s decision not to testify against him.”

“Overall, the Hoyle opinions feature not only analysis of the specific legal issues, but also broad discussion of methodologies for constitutional interpretation, with discussion of whether the opinions reflected judicial restraint or judicial activism,” Tobin said.

*Most of the holdings displayed in the table were summarized by Marquette University Law School Professors Daniel D. Blinka and Thomas J. Hammer and were originally published in the Supreme Court Digest that appears in Wisconsin Lawyer™.

Endnotes

¹ 2023 WI 38, 407 Wis. 2d 87, 990 N.W.2d 122.

² 2022 WI 109, 405 Wis. 2d 157, 982 N.W.2d 898.

³ 2023 WI 6, 405 Wis. 2d 572, 984 N.W.2d 382.

⁴ 2023 WI 28, 406 Wis. 2d 730, 987 N.W.2d 689.

⁵ 2023 WI 21, 406 Wis. 2d 297, 986 N.W.2d 810.

⁶ 2023 WI 40, 407 Wis. 2d 273, 990 N.W.2d 244.

⁷ 2023 WI 43, 407 Wis. 2d 387, 991 N.W.2d 320.

⁸ 2023 WI 25, 406 Wis. 2d 439, 988 N.W.2d 627.

⁹ 2022 WI 106, 405 Wis. 2d 132, 983 N.W.2d 617.

¹⁰ 2023 WI 50, 408 Wis. 2d 16, 991 N.W.2d 412.

¹¹ 2023 WI 39, 407 Wis. 2d 195, 990 N.W.2d 174.

¹² 2023 WI 48, 407 Wis. 2d 693, 991 N.W.2d 340.

¹³ 2000 WI 14, 232 Wis. 2d 767, 606 N.W.2d 155.

¹⁴ 2023 WI 52, 408 Wis. 2d 92, 991 N.W.2d 387.

¹⁵ 2023 WI 57, 408 Wis. 2d 248, 992 N.W.2d 56.

¹⁶ 2023 WI 24, 406 Wis. 2d 373, 987 N.W.2d 732.