Constitutional Law
Domestic Partnerships – “Marriage” Amendment
Appling v. Walker, 2014 WI 96 (filed 31 July 2014)
HOLDING: Same-sex domestic partnerships recognized by Wis. Stat. chapter 770 are consistent with the 2006 “marriage” amendment to the Wisconsin Constitution.
SUMMARY: In this widely publicized decision, the Wisconsin Supreme Court affirmed the court of appeals (2014 WI App 3) in holding that same-sex domestic partnerships, created by Wis. Stat. chapter 770, do not violate the Wisconsin Constitution’s 2006 provision that valid marriages, or a status substantially similar to marriage, are limited to those between “one man and one woman.” Justice Crooks wrote the opinion for the court, which repeatedly emphasizes the high burden carried by one challenging the constitutionality of any statute (see ¶ 6).
Prof. Daniel D. Blinka, U.W. 1978, is a professor of law at Marquette University Law School, Milwaukee.
Prof. Thomas J. Hammer, Marquette 1975, is a law professor and Director of Clinical Education at Marquette University Law School, Milwaukee.
The court examined the plain meaning of the 2006 provision (see ¶ 23), the information given to voters during the debates and ratification process (see ¶ 27), and the legislature’s posture in adopting chapter 770 in light of the marriage amendment. The opinion closely examines the legal status created by chapter 770 relationships (see ¶ 42) and their relationship to the legal status fostered by the marriage amendment (see ¶ 52).
“The proper interpretation of a constitutional amendment is what the framers and the voters who approved it thought it meant. The voters were told by proponents, including the framers of the Amendment, that same-sex couples could be granted rights notwithstanding the Amendment. The message given to the voters did not present the qualifications in regard to extending [same-sex] benefits that the Plaintiffs now claim” (¶ 56).
Chief Justice Abrahamson concurred but wrote separately “to call the reader’s attention” to other litigation relating to Wisconsin’s marriage amendment, including a federal case that found it unconstitutional under the federal constitution.
Justice Roggensack concurred as well, writing separately to emphasize the “foundational legal principles” that support judicial decision-making, which “is not based on whether the statute reviewed is grounded in a liberal legislative philosophy or in a conservative legislative philosophy” (¶ 64).
Criminal Law
NGI Defense – Involuntary Intoxication
State v. Anderson, 2014 WI 93 (filed 30 July 2014)
HOLDING: The circuit court properly instructed the jury regarding the effects of intoxication during the second (responsibility) phase of a trial in which the defendant pleaded not guilty by reason of mental disease or defect.
SUMMARY: The defendant was charged with murdering his former girlfriend and attempting to murder her then-boyfriend. During the second (responsibility) phase of a trial in which the defendant entered a plea of not guilty by reason of mental disease or defect (NGI), a defense expert testified that the defendant suffered from a mental defect that left him unable to control his unlawful conduct and that the mental condition was in part the product of alcohol consumption and the defendant’s use of a prescribed medication for attention deficit disorder (ADD). The trial judge instructed the jury that a mental defect cannot be the product of the voluntary consumption of “drugs or alcohol” (¶ 13). The jury rejected the NGI defense. In an unpublished decision, the court of appeals reversed, holding that the jury instruction on intoxication was wrong.
The supreme court reversed the court of appeals in a majority decision authored by Justice Gableman. Although the state and the defense had agreed that the instruction was erroneous, the court held, to the contrary, that it was a correct statement of law (see ¶ 19). The defendant could not assert an involuntary-intoxication defense because there was no evidence that he could not distinguish right from wrong when committing the crimes when taking the prescription medication for ADD (see ¶ 28).
This left him the NGI defense. “We have never distinguished between the use of prescription drugs and the use of illegal drugs in the context of an insanity defense, and see no reason to do so now” (¶ 27). Case law (State v. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999)) holding that prescription medication can be basis for an involuntary intoxication defense thus has no bearing on the NGI defense (See ¶ 29).
Justice Prosser concurred but would have found any error harmless.
Chief Justice Abrahamson dissented, joined by Justice Bradley. They contended that the majority opinion failed to “provide any reason why the use of prescription drugs as directed cannot form the basis of an NGI defense when our case law already recognizes that such use can form the basis of an involuntary intoxication defense” (¶ 52).
Criminal Procedure
Preliminary Examinations – Hearsay
State v. O’Brien, 2014 WI 54 (filed 9 July 2014)
HOLDING: Wis. Stat. section 970.038, which permits the use of hearsay evidence at preliminary examinations in felony cases, does not violate the defendant’s confrontation, compulsory process, or due process rights or the accused’s right to the effective assistance of counsel.
SUMMARY: In these consolidated appeals, the defendants challenged the constitutionality of Wis. Stat. section 970.038, which permits the state to use at preliminary examinations hearsay evidence that would be otherwise inadmissible at trial. The circuit courts and the court of appeals (see 2013 WI App 97) upheld the statute’s constitutionality.
The supreme court affirmed in a majority opinion authored by Justice Bradley. Parties challenging a statute’s constitutionality must show its unlawfulness beyond a reasonable doubt (see ¶ 17). Preliminary examinations are a statutory right, not a constitutional right (see ¶ 19). Their scope is “narrow”; they are not mini-trials, rather, they serve to show only that a plausible or believable “account” underlies the prosecution (see ¶ 24).
The court held that Wis. Stat. section 970.038 does not violate the Constitution’s confrontation right, which is a trial right (see ¶ 33) nor does it offend the compulsory process clause by restricting the defendant’s right to call witnesses. In one of the consolidated cases, the circuit court quashed a defendant’s subpoena of a sexual assault victim, but the ruling was correctly based on the defendant’s failure to show that the victim’s testimony would be relevant at the preliminary examination (see ¶ 38). The supreme court underscored that section 970.038 did not “address or alter” the defendant’s right to call witnesses at a preliminary examination, as permitted by Wis. Stat. section 970.03(5) (see ¶ 35).
The court next rebuffed the argument that Wis. Stat. section 970.038 violates the right to receive effective assistance from counsel, who necessarily play very different roles at trial and at preliminary examinations. “Counsel retains the ability to cross-examine the witnesses presented by the State, challenge the plausibility of the charges against the defendant, argue that elements are not met, and present witnesses on behalf of the defendant” (¶ 43). For similar reasons, the due process right did not vitiate section 970.038. The scope of such hearings is “narrow” and the defense has adequate means to challenge the plausibility of the state’s hearsay evidence (see ¶ 49).
Finally, the court declined the defendants’ invitation to impose specific rules limiting the state’s use of hearsay at preliminary examinations (see ¶ 51). “Reliability,” the court reminded, “is the hallmark of admissible hearsay” (¶ 57). “The court has discretion in determining what evidence is sufficiently reliable. Although newly enacted Wis. Stat.§ 970.038 allows for greater use of hearsay at preliminary examinations, it does not eliminate the court’s obligation to exercise its judgment. It is the circuit court’s role to act as the evidentiary gatekeeper” (¶ 60).
Chief Justice Abrahamson dissented based on the majority’s failure to harmonize Wis. Stat. section 970.038 with the statutory right of the defense to call witnesses, as provided by Wis. Stat. section 970.03(5). “At some point, plausibility and credibility elide” (¶ 78). The majority set the bar too high on the defendant’s right to call witnesses. “If preliminary examinations are to serve as effective roadblocks to frivolous and fraudulent prosecutions, and if they are truly to be a ‘critical stage’ of trial, the preliminary examination cannot be reduced to a farce, in which a defendant has no ability to challenge or rebut the narrative advanced by the State’s proffered double and triple hearsay testimony” (¶ 84).
Plea Bargaining – Offers to Plead – Excluded Statements
State v. Myrick, 2014 WI 55 (filed 10 July 2014)
HOLDING: The defendant’s testimony at an alleged accomplice’s preliminary examination should have been excluded under Wis. Stat. section 904.10.
SUMMARY: Myrick and Winston were charged with murder. While trying to obtain a plea deal, Myrick testified against Winston at the latter’s preliminary examination. Myrick failed to get the deal he sought, and he was tried for first-degree intentional homicide. During the trial, the state offered against Myrick his earlier testimony at Winston’s preliminary examination. Myrick objected that his testimony was inadmissible under Wis. Stat. section 904.10 because it was made in connection with an offer to plead guilty. The circuit court overruled Myrick’s objection and admitted the testimony. On appeal, the court of appeals reversed the conviction on the ground that Myrick’s statements (testimony) were part of an “on-going plea bargaining process” (¶13). See 2013 WI App 123.
The supreme court affirmed in a majority opinion authored by Justice Roggensack. The court opened by discussing the importance of plea bargaining in modern criminal procedure. Section 904.10 promotes plea bargaining by insulating statements made during negotiations (see ¶ 19). A defendant’s offer to plead guilty need not be “express or explicit; it can be implied from a defendant’s words and conduct” (¶ 21). The record revealed that “Myrick exhibited a subjective expectation to negotiate a plea, and that Myrick’s expectations were objectively reasonable” (¶ 33). Case law recognizes an exception for statements made after negotiations are completed (for example, a deal is struck and a defendant testifies at an accomplice’s trial), but that exception was inapplicable because negotiations with Myrick were “ongoing,” that is, no deal had been reached (see ¶ 38).
Chief Justice Abrahamson concurred, urging that the court adopt the approach in federal practice, which does not “split hairs over the distinction between Wisconsin’s ‘offer’ rule and the federal ‘discussions’ rule” (¶ 43).
Justice Gableman, joined by Justice Prosser and Justice Ziegler, dissented. The dissent centered on whether and when the negotiations were completed and sets forth “far-reaching practical implications” with the majority’s position that may unfairly affect future cases (¶ 61).
Preliminary Hearings – Findings Required in Cases Involving Adult Court Original Jurisdiction over Juveniles Charged with Certain Serious Offenses – Wis. Stat. Section 970.032(1)
State v.Toliver, 2014 WI 85 (filed 23 July 2014)
HOLDING: The probable-cause finding at the preliminary hearing for a juvenile charged in adult court with attempted first-degree intentional homicide was sufficient even though the judge did not specifically state that there was probable cause to believe that the defendant committed the specific felony with which he was charged.
SUMMARY: A juvenile who is charged in adult court with a violation of one of the serious offenses enumerated in Wis. Stat. section 938.183(1), including attempted first-degree intentional homicide, is entitled to a preliminary examination under Wis. Stat. section 970.032(1). At such a hearing, the court must find that “there is probable cause to believe that the juvenile has committed the violation of which he or she is accused under the circumstances specified in s. 938.183(1)(a), (am), (ar), (b), or (c), whichever is applicable,” if the adult court is to retain exclusive original jurisdiction over the juvenile (emphasis added).
In this case, the defendant juvenile (Toliver) was charged with attempted first-degree intentional homicide. At the conclusion of the preliminary hearing, the judge found probable cause to believe that “a felony” was committed but did not make a specific finding of probable cause with respect to the charged offense. The ultimate issue on appeal was whether this was a sufficient probable-cause determination for the adult court to retain jurisdiction. In a majority decision authored by Justice Prosser, the supreme court concluded that it was.
Said the court, “although the articulation of the probable cause determination in this case should have been more precise, the preliminary hearing transcript demonstrates that the circuit court found probable cause that Toliver committed attempted first-degree intentional homicide. [The victim] testified that Toliver held a gun to his head, threatened to shoot him, and then shot him in the back. Toliver did not introduce any evidence of mitigating circumstances. The circuit court had the complaint and the information, both of which listed Toliver’s date of birth at the top and contained only one felony charge and a [misdemeanor] charge for possession of a dangerous weapon by a person under 18. Toliver did not object that the court’s probable cause be more specific, and the court did not discharge Toliver as would be required if it failed to find probable cause for the specific offense. Thus, the record demonstrates that when the court found probable cause to believe Toliver committed a felony, the felony to which the court referred was attempted first-degree intentional homicide, the only felony with which Toliver was charged” (¶ 11).
The court provided the following guidance to judges conducting preliminary hearings pursuant to Wis. Stat. section 970.032. They should: “(1) acknowledge on the record that the individual being charged is a juvenile; (2) refer to the specific charge or charges that require adjudication in adult court under Wis. Stat. § 938.183(1); and (3) state on the record that there is probable cause to believe the juvenile offender has committed the specific crime or crimes charged” (¶ 35).
Chief Justice Abrahamson filed a dissenting opinion that was joined by Justice Bradley.
Search and Seizure – Tracking Cell Phones Using Cell Site Location Information and a Stingray
State v. Tate, 2014 WI 89 (filed 24 July 2014)
HOLDING: Tracking the defendant’s cell phone using cell site location information and a stingray was properly authorized by a court order that satisfied the warrant requirements of the federal and state constitutions.
SUMMARY: Believing that the possessor of a particular cell phone was involved in a homicide, police obtained an “order” from a circuit judge approving the use of a pen register/trap and trace device and the release of certain subscriber information, such as cell tower activity and location information. This order “functioned as a warrant for [the court’s] constitutional considerations and as a criminal subpoena in regard to the information obtained from the cell service provider” (¶ 2 n.3). To obtain the order, the law enforcement agency submitted a sworn affidavit to the judge.
Acting on this order, officers obtained cell site information from the service provider (US Cellular), and they used a stingray to locate the phone based on signal strength. Having determined the phone’s location, they found the suspect (defendant Tate) in his mother’s apartment, and he was subsequently charged with homicide. He moved to suppress evidence seized from the apartment, statements from people in the apartment building, and statements he personally made after his arrest, arguing that law enforcement officers needed a search warrant to track his phone and that the circuit judge’s order was not the equivalent of a warrant. The circuit court denied the motion, and the defendant entered a guilty plea. In an unpublished decision, the court of appeals affirmed.
In a majority decision authored by Justice Roggensack, the supreme court affirmed. The court assumed without deciding that “(1) law enforcement’s activities constituted a search within the meaning of the Fourth Amendment and Article I, Section 11 [of the Wisconsin Constitution]; and (2) because the tracking led law enforcement to discover Tate’s location within his mother’s home, a warrant was needed” (¶ 2).
The supreme court then concluded that the “order” signed by the circuit judge satisfied the warrant requirements of the federal and state constitutions. It was signed by a judge and was based on an affidavit that provided sufficient facts to support a finding of probable cause that the cell phone site information sought by law enforcement would aid in a particular apprehension or conviction for a particular offense (see ¶ 33). As for the particularity requirements of a warrant, the court held that “the employment of the electronic serial number for Tate’s phone satisfies the particularity requirement because that number permits a particularized collection of cell site information for only one cell phone” (¶ 41).
The majority further concluded that “specific statutory authorization was not necessary for [the circuit judge] to issue the order that authorized the procedures used to track Tate’s cell phone because the order was supported by probable cause. Nonetheless, the order did comply with the spirit of Wis. Stat. § 968.12 and Wis. Stat. § 968.135, which express legislative choices about procedures to employ for warrants and criminal subpoenas” (¶ 51).
In a footnote, the court noted that subsequent to the tracking of the defendant’s cell phone, the legislature enacted 2013 Wisconsin Act 375 (effective April 24, 2014), “which sets out the actions to be taken when an investigative or law enforcement officer seeks to obtain cell phone tracking information. See Wis. Stat. § 968.373 and Wis. Stat. § 968.375(4)(c) (2013-14)” (¶ 2 n.5).
Chief Justice Abrahamson filed a dissenting opinion, part of which was joined by Justice Bradley.
Search and Seizure – Warrantlessly Obtaining Cell Phone Location Information – Exigent Circumstances – Interrogation – Failure to Unequivocally Invoke Fifth Amendment Right to Counsel
State v. Subdiaz-Osorio, 2014 WI 87 (filed 24 July 2014)
HOLDING: There was no majority opinion in this case but four justices agreed that warrantlessly obtaining cell phone tracking data for the defendant’s cell phone was lawful under the exigent-circumstances exception to the warrant requirement, and five justices agreed that the police did not violate the defendant’s Miranda right to counsel when they interrogated him.
SUMMARY: After fatally stabbing his brother, defendant Subdiaz-Osorio borrowed his girlfriend’s car and fled the scene of the crime. Kenosha police officers quickly suspected that the defendant, who was in the country illegally, was heading for Mexico and carrying the murder weapon. They marshalled their information and, acting through the Wisconsin Department of Justice, asked the defendant’s cell phone provider to track his cell phone location. The tracking was successful, and Subdiaz-Osorio was arrested on a highway in Arkansas as he headed south. Several Kenosha officers promptly went to Arkansas to interrogate him.
Subdiaz-Osorio was questioned in Spanish and given his rights in Spanish. After the officers explained the extradition process, Subdiaz-Osorio asked how he could get an attorney because he could not afford one. The officers told him that Arkansas would provide him an attorney if he needed one but then continued to question him. Subdiaz-Osorio later moved to suppress all evidence obtained after his arrest on grounds that the search of his cell phone’s location information violated his Fourth Amendment rights and that he was denied his Fifth Amendment right to counsel. He also alleged violations of his rights under the Wisconsin Constitution. The circuit court denied the motions, and the defendant entered a guilty plea to a reduced charge. In an unpublished decision, the court of appeals affirmed.
The supreme court affirmed. Justice Prosser wrote the court’s lead opinion, in which no other justice joined. Justice Prosser assumed without deciding that people have a reasonable expectation of privacy in their cell phone location data and that when police track a cell phone’s location, they are conducting a search (see ¶ 9). Although the police in this case did not have a warrant or other court order when they tracked the defendant’s cell phone location, Justice Prosser concluded that they did have probable cause for a warrant and that the exigent circumstances of this case (threat to the safety of others, risk of destruction of evidence, and likelihood that the defendant would flee) created an exception to the warrant requirement (see ¶ 10).
Lastly, Justice Prosser concluded that Subdiaz-Osorio failed to unequivocally invoke his Fifth Amendment right to counsel when he said, “How can I do to get an attorney here because I don’t have enough to afford for one.”
“Subdiaz-Osorio asked how he could get an attorney, which could lead a reasonable officer to wonder whether Subdiaz-Osorio was affirmatively asking for counsel to be present during the custodial interrogation or simply inquiring about the procedure for how to obtain an attorney. Moreover, Subdiaz-Osorio asked how he could get an attorney immediately after a discussion about the extradition process. The context is important, and the interviewing officers could reasonably believe that Subdiaz-Osorio was asking how to get an attorney for his extradition hearing rather than asking for counsel to be present at the interrogation. Therefore, the interviewing officers did not violate Subdiaz-Osorio’s Fifth Amendment rights when they continued to question him after he asked about how he could get an attorney” (¶ 11) (citation omitted).
Three justices (Justice Roggensack, Justice Ziegler, and Justice Gableman) who wrote or joined concurring opinions agreed that the facts of this case qualify for the exigent-circumstances exception to the warrant requirement. And four justices (Justice Crooks, Justice Roggensack, Justice Ziegler, and Justice Gableman) agreed with Justice Prosser that there was no Fifth Amendment Miranda violation in this case.
Justice Bradley wrote a concurrence in which she concluded that the circuit court erred in denying the defendant’s motion to suppress but that the errors were harmless (see ¶ 90). Justice Crooks concurred to indicate that he would decline to apply the exclusionary rule to the cell phone tracking data in this case on the basis of the good-faith exception (see ¶ 109). Chief Justice Abrahamson filed a dissenting opinion.
Public Trial Right – Closure of Courtroom During Voir Dire Proceedings Due to Overcrowding – Forfeiture of Right by Failing to Object
State v. Pinno, State v. Seaton, 2014 WI 74 (filed 18 July 2014)
HOLDING: The defendants forfeited their right to a public trial when they failed to object to closure of the courtroom during voir dire proceedings due to courtroom overcrowding.
SUMMARY: In the voir dire proceedings in these two unrelated cases, the judge said he wanted the public to leave the courtroom to make room for large jury panels. Neither defendant objected, and both defendants were later found guilty by juries in trials that were completely open to the public after the juries were selected. On appeal, the court of appeals certified the cases to the supreme court on the question of whether closure of a public criminal trial without objection from the defendant is subject to a waiver analysis or a forfeiture analysis on review. In a majority decision authored by Justice Prosser, the supreme court affirmed the convictions.
The majority reached the following conclusions with respect to a defendant’s right to a public trial: “First, the Sixth Amendment right to a public trial extends to voir dire. Presley v. Georgia, 558 U.S. 209, 213 (2010). A judge’s decision to ‘close’ or limit public access to a courtroom in a criminal case requires the court to go through an analysis on the record in which the court considers overriding interests and reasonable alternatives as set out in Waller v. Georgia, 467 U.S. 39, 45, 48 (1984). The court must make specific findings on the record to support the exclusion of the public and must narrowly tailor the closure” (¶ 6).
“Second, the Sixth Amendment right to a public trial may be asserted by the defendant at any time during a trial. A defendant who fails to object to a judicial decision to close the courtroom forfeits the right to a public trial, so long as the defendant is aware that the judge has excluded the public from the courtroom. Although the Supreme Court has categorized a violation of the right to a public trial as a structural error, that categorization does not mandate a waiver analysis, and a defendant need not affirmatively relinquish his right to a public trial in order to lose it” (¶ 7).
“Third, the records in these cases are clear that neither Seaton nor Pinno objected to the alleged courtroom closure. In Seaton’s case, the allegation that courtroom personnel prevented the public from reentering the courtroom does not alter the analysis because Seaton was aware of the initial exclusion. If courtroom personnel did prevent the public from coming back into the courtroom, that prevention was part of the initial exclusion. Therefore, Seaton and Pinno both forfeited their rights to a public trial” (¶ 8).
“Fourth, defendants must demonstrate prejudice to prove ineffective assistance of counsel when counsel fails to object to the closure of the courtroom. The categorization of the denial of the public trial right as structural error does not create a presumption of prejudice in ineffective assistance of counsel claims. Seaton and Pinno have not proven that they were prejudiced by their attorneys’ failure to object to the exclusion of the public from the courtroom. Therefore, both defendants have failed to prove that their counsel was ineffective” (¶ 9).
(Editors’ Note: In this decision the majority articulated procedures for judges to follow whenever they intend to close their courtrooms to the public for any reason (see ¶¶ 75-80).)
Chief Justice Abrahamson and Justice Crooks filed separate dissenting opinions, both of which Justice Bradley joined.
Exculpatory Evidence – Ineffective Assistance of Counsel
State v. Jenkins, 2014 WI 59 (filed 11 July 2014)
HOLDING: Defense counsel’s failure to call a key witness in a closely contested homicide case constituted ineffective assistance of counsel.
SUMMARY: Jenkins was charged with homicide. An eyewitness identified him as the shooter. Another witness, CJ, however, told police that Jenkins was not the shooter. Defense counsel did not call CJ as a witness. Jenkins was convicted. After the trial, the circuit court held a Machner hearing and denied the defendant’s claims of error. In an unpublished decision, the court of appeals affirmed, rejecting the defendant’s assertion of ineffective assistance of counsel.
The supreme court reversed in a majority opinion authored by Chief Justice Abrahamson. The opinion applies well-settled law on ineffective assistance of counsel (see ¶¶ 36-38). First, defense counsel’s deficient performance was “clear from the record” (¶ 42). A failure to call a “key witness” may sometimes be a “reasonable trial strategy,” but not in this case, especially as counsel could give no reason for not calling CJ to testify
(see ¶¶ 45, 47).
Second, prejudice flowed from trial counsel’s error. The court’s analysis is necessarily fact intensive, but suffice it to say the opinion focuses on the “credibility contest” that unfolded at trial, featuring inconsistent testimony by witnesses of marginal character (¶ 59). “Wisconsin case law has similarly recognized that when a potential witness ‘would have added a great deal of substance and credibility’ to the defendant’s theory and when the witness ‘could not have been impeached as having a criminal record,’ the exclusion of the witness’s testimony is prejudicial, even if the witness’s credibility could be impeached” (¶ 62). The assessment of prejudice was based on the totality of the circumstances.
Justice Crooks concurred, but wrote separately “to provide guidance on an issue of central importance not fully addressed by the majority in this case, namely, whether the circuit court properly scrutinized and weighed the credibility of Jones’s testimony in applying the prejudice prong of the ineffective assistance of counsel test” (¶ 69).
Justice Ziegler, joined by Justice Gableman, dissented on grounds that under the highly deferential standard governing trial counsel’s conduct, counsel was not ineffective because neither was he deficient nor was sufficient prejudice shown. The dissent also concluded that the defendant was not entitled to a new trial in the interest of justice, an argument unaddressed by the majority.
Right to Testify – Harmless Error
State v. Nelson, 2014 WI 70 (filed 16 July 2014)
HOLDING: The trial judge committed harmless error in precluding a defendant from testifying on her own behalf.
SUMMARY: Nelson, age 18, was convicted of three counts of sexually assaulting a 14-year-old boy. She admitted to the conduct in text messages and phone conversations with the boy’s mother, which police officers overheard. At trial, Nelson wanted to testify in her own behalf but the trial judge refused to permit her testimony on grounds that while she might contradict the victim on some facts, she would nonetheless admit the three acts of sexual contact that formed the basis for the charges. Put differently, it was not in Nelson’s interest to testify. The jury convicted her, and the court of appeals affirmed in an unpublished decision.
The supreme court affirmed in a majority opinion authored by Justice Roggensack. Although the court laid out the framework governing a defendant’s decision to testify at trial, including the trial judge’s duty to conduct a limited colloquy, the state’s concession that the circuit court erred in this case meant that the supreme court did not have to reach this issue. The court then held that such errors are “trial errors” that are subject to harmless-error analysis. Trial errors are distinguished from “structural errors” that “permeate the entire process” (¶ 34).
This holding is “consistent with the majority of other jurisdictions that on direct appeal have applied harmless error review to a circuit court’s denial of a defendant’s right to testify” (¶ 35). The harmless-error test considers 1) the importance of the defendant’s testimony to the defense case, 2) the cumulative nature of the testimony, 3) the presence or absence of corroborating/contradicting evidence, and 4) the strength of the state’s case. Applying this test, the court found the error harmless.
Justice Ziegler concurred, finding that the trial judge was not “necessarily incorrect” on this record (¶ 53) yet that protecting a defendant from herself, as here, should be “rare” (¶ 59).
Chief Justice Abrahamson dissented, joined by Justice Bradley. The dissent concluded that the circuit court erred and that such errors are not subject to harmless-error analysis (see ¶ 67).
Interrogation – Right to Silence – Unequivocal Assertion
State v. Cummings, 2014 WI 88 (filed 24 July 2014)
HOLDING: In situations in which defendants failed to unequivocally assert their right to silence, police officers could continue the custodial interrogations.
SUMMARY: This opinion reviews two separate cases in which defendants claimed that police interrogation continued even after they asserted their right to silence. In both instances, the circuit court denied the motion to suppress and in unpublished decisions the court of appeals affirmed.
The supreme court affirmed in a majority opinion authored by Justice Ziegler. The Miranda doctrine permits a suspect who has initially waived his or her rights to later terminate questioning by asserting the right to silence and the right to counsel. Each right must be asserted “unequivocally” (¶¶ 47-48, 50). In one of these cases, a suspect’s statement, “Well, then take me to my cell” was deemed to be a “rhetorical device” (¶ 54) that was part of the suspect’s give-and-take with interrogators, not an unequivocal assertion of the right to silence (see ¶ 59). In the other case, the suspect’s statement “I don’t want to talk about this” was, “in full context,” not an assertion of the right to silence (see ¶ 61). The majority opinion here discusses a suspect’s latitude to selectively assert the right not to answer questions as opposed to a blanket assertion that terminates all interrogation (see ¶ 67).
Justice Prosser concurred in part and dissented in part, joined by Justice Bradley. In his view, the suspect in the second case had unequivocally asserted his right to silence in a manner consistent with case law.
Chief Justice Abrahamson dissented. Her opinion focuses on case law blurring objective and subjective standards that “reveals an unsettling arbitrariness”
(¶ 108).
Harmless Error – Ineffective Assistance of Counsel
State v. Hunt, 2014 WI 102 (filed 1 Aug. 2014)
HOLDING: The circuit court committed harmless error in excluding testimony by a defense witness that corroborated the theory of defense; the court also rejected three claims of ineffective assistance of counsel.
SUMMARY: A jury convicted the defendant of one count of causing a child under age 13 to observe sexual activity. In an unpublished decision, the court of appeals reversed because the trial judge had excluded evidence that corroborated the defense theory of the case.
The supreme court reversed the court of appeals in a majority opinion authored by Justice Gableman. The court agreed with the parties that the trial judge erred in excluding certain testimony that was “directly relevant” to the defense theory (see ¶ 25). Nonetheless, the court deemed the error to be harmless. Although the analysis is necessarily fact intensive, the court more generally observed it found “another factor in particular informs our analysis – that is, the presence or absence of evidence corroborating or contradicting the erroneously admitted or excluded evidence” (¶ 30). Here a police officer’s testimony “functionally served the same purpose” as the excluded testimony from another witness by corroborating the defendant’s version of events.
The court also rejected three claims of ineffective assistance of counsel. The first claim related to defense counsel’s alleged mishandling of hearsay evidence. The court held that no prejudice stemmed from “counsel’s failure to cite an applicable hearsay exception” (¶ 43). Essentially, the hearsay related to the source of the images, whereas Hunt was charged with exposing a minor to those images; their source was not an element of the crime (see id.).
A second claim alleged that Hunt’s trial counsel failed to effectively press arguments to exclude another sexual image. Here too no prejudice stemmed from any error: the image in question was not an element of a charged offense, and the jury was properly instructed as to its use (see ¶ 48). A third claim alleged that trial counsel had failed to ensure that the jury instructions clearly distinguished among the various images. The court found, however, that trial counsel was not deficient, having made a “reasonable strategic choice” (¶¶ 54, 55).
Justice Bradley dissented, joined by Chief Justice Abrahamson and Justice Prosser. They argued that exclusion of the corroborating testimony was not harmless error, especially in a “he-said – she-said case” (¶ 61). The excluded evidence supported the defendant’s credibility (see ¶ 62). The dissent underscores the importance of corroborating evidence (see ¶ 85).
Rape Shield – Prior Consensual Acts
State v. Sarfraz, 2014 WI 78 (filed 22 July 2014)
HOLDING: The circuit court properly excluded some evidence of an alleged prior sexual relationship between the victim and the defendant in a sexual assault prosecution.
SUMMARY: The defendant was charged with sexually assaulting an adult acquaintance. At trial, the judge permitted some evidence of an alleged prior consensual sexual relationship between the victim and the defendant, which the victim disputed, but excluded other alleged evidence on grounds it was too dissimilar. The defendant was convicted. In a published decision, the court of appeals reversed the conviction, ruling that the circuit court abused its discretion under the rape shield law, which permits evidence of prior consensual sexual conduct between a victim and defendant. See 2013 WI App 57.
The supreme court reversed the court of appeals in an opinion authored by Justice Gableman. The decision necessarily is fact intensive. The supreme court said that the circuit court properly determined that any probative value was outweighed by the prejudice inherent in the excluded evidence, which is the third element of the test governing the exception for prior consensual acts under the rape shield law. Nonetheless, the rape shield law’s exception did “not require[] proffered evidence of past sexual conduct between the accuser and the defendant to be the same as the criminal conduct alleged against the defendant” (¶ 46).
Justice Ziegler, joined by Justice Roggensack, concurred in the majority opinion but wrote separately regarding the “materiality” of the excluded evidence (see ¶ 64).
Justice Prosser did not participate in this case.
Opinion Testimony – Wis. Stat. Section 907.04
State v. Rocha-Mayo, 2014 WI 57 (filed 11 July 2014)
HOLDING: The circuit court properly admitted opinion testimony from a physician about the defendant’s intoxication in an emergency room after an accident that resulted in the defendant being charged with homicide by intoxicated use of a vehicle.
SUMMARY: The defendant was charged with homicide by intoxicated use of a vehicle after a collision involving his car and two motorcycles. At trial, the court permitted Dr. Falco, an emergency room physician who treated the defendant, to testify that the defendant appeared to be intoxicated at the time he was undergoing treatment in the emergency room.
In a majority decision authored by Justice Crooks, the supreme court concluded that the doctor’s testimony was properly admitted. Wisconsin Statutes section 907.04, which governs opinions on ultimate issues, provides that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Both parties agreed that Dr. Falco’s testimony was permissible under section 907.04.
However, the defendant argued that the circuit court erred in allowing Dr. Falco to testify in regard to his level of intoxication; to support this position he relied on Lievrouw v. Roth, 157 Wis. 2d 332, 459 N.W.2d 850 (1990) in which the court of appeals explained that the “ultimate issue” described in section 907.04 cannot be one that is a legal concept for which the jury needs definitional instructions.
The supreme court concluded that “Dr. Falco’s testimony complies with both Wis. Stat. § 907.04 and Lievrouw. This is because the ultimate issue at stake was whether Rocha-Mayo was intoxicated at the time of the collision…. Dr. Falco’s testimony was permissible because it did not embrace the ultimate issue: whether Rocha-Mayo was intoxicated at the time of the accident. As previously noted, Dr. Falco’s testimony related only to his belief that Rocha-Mayo was intoxicated while undergoing treatment in the ER. Furthermore, Dr. Falco did not give any opinion as to Rocha-Mayo’s ability to drive his vehicle safely. In fact, on cross-examination Rocha-Mayo’s counsel specifically asked Dr. Falco if he could opine on Rocha-Mayo’s level of intoxication at the time of the accident. After explaining that Rocha-Mayo’s blood alcohol level on the night of the accident would have fluctuated depending on the rate his body metabolized the alcohol, Dr. Falco responded, ‘I cannot.’ Therefore, we conclude that the circuit court acted appropriately within its discretion when it allowed Dr. Falco to testify about Rocha-Mayo’s state of intoxication while he was being treated in the ER” (¶¶ 28-29).
The defendant also argued that the circuit court erred in admitting the results (0.086) of a preliminary breath test (PBT) that was administered by a nurse in the emergency room for diagnostic purposes and in instructing the jury that it could (but was not required to) find that the defendant was under the influence of an intoxicant at the time of the alleged driving if it was satisfied that there were 0.08 grams or more of alcohol in 210 liters of the defendant’s breath at the time the breath sample was obtained.
The supreme court assumed – but did not decide – that the circuit court erred in both respects. However, it concluded that these errors were harmless beyond a reasonable doubt. Based on all the evidence in the case, “it is clear beyond a reasonable doubt that the jury would have found the defendant guilty absent the alleged errors” (¶ 30).
Justice Ziegler filed a concurring opinion in which she joined the majority opinion but wrote separately “to go further than the majority opinion and conclude that the plain language of Wis. Stat. § 343.303 ‘expressly bars’ admission of preliminary breath test (PBT) results in trials which involve operating a motor vehicle under the influence of an intoxicant (‘OWI’)” (¶ 41). Justice Roggensack and Justice Gableman joined this concurrence.
Chief Justice Abrahamson filed a dissent. Justice Prosser filed a dissent that was joined by the Chief Justice and by Justice Bradley.
Labor and Employment Law
Public Sector Labor Law – Constitutionality of 2011 Wisconsin Act 10
Madison Teachers Inc. v. Walker, 2014 WI 99 (filed 31 July 2014)
HOLDING: The supreme court upheld 2011 Wisconsin Act 10 against numerous constitutional challenges described below.
SUMMARY: In 2011, the Wisconsin Legislature passed Act 10, a budget-repair bill proposed by Governor Scott Walker. Act 10 significantly altered Wisconsin’s public-employee labor laws. It prohibits general employees (as opposed to public-safety employees) from collectively bargaining on issues other than base wages, prohibits municipal employers from deducting labor organization dues from paychecks of general employees, imposes annual recertification requirements, and prohibits fair-share agreements requiring nonrepresented general employees to make contributions to labor organizations.
In this case, plaintiffs Madison Teachers Inc. and Public Employees Local 61 challenged several provisions of Act 10. “The plaintiffs alleged, among other things, that four aspects of Act 10 – the collective bargaining limitations, the prohibition on payroll deductions of labor organization dues, the prohibition of fair share agreements, and the annual recertification requirements – violate the constitutional associational and equal protection rights of the employees they represent. The plaintiffs also challenged Wis. Stat. § 62.623 (2011-12), a separate provision created by Act 10, which prohibits the City of Milwaukee from paying the employee share of contributions to the City of Milwaukee Employes’ Retirement System [ERS], alleging it violates the home rule amendment to the Wisconsin Constitution. The plaintiffs argued, in the alternative, that if Wis. Stat. § 62.623 does not violate the home rule amendment, it nevertheless violates the constitutionally protected right of parties to contract with each other” (¶ 2).
In a majority decision authored by Justice Gableman, the supreme court “[upheld] Act 10 in its entirety” (¶ 3). Its numerous holdings are as follows:
“First, we hold that the plaintiffs’ associational rights argument is without merit. We reject the plaintiffs’ argument that several provisions of Act 10, which delineate the rights, obligations, and procedures of collective bargaining, somehow infringe upon general employees’ constitutional right to freedom of association. No matter the limitations or ‘burdens’ a legislative enactment places on the collective bargaining process, collective bargaining remains a creation of legislative grace and not constitutional obligation. The First Amendment cannot be used as a vehicle to expand the parameters of a benefit that it does not itself protect. Accordingly, we conclude that Wis. Stat. §§ 111.70(4)(mb), 66.0506, 118.245, 111.70(1)(f), 111.70(3g), 111.70(4)(d)3 and the third sentence of § 111.70(2) do not violate the plaintiffs’ associational rights” (¶ 160).
“Second, we reject the plaintiffs’ equal protection claim under a rational basis standard of review. We apply rational basis review to the plaintiffs’ argument that the collective bargaining framework established by Act 10 violates the constitutional rights of general employees through disparate treatment of those who choose to collectively bargain and those who do not. Finding the plaintiffs’ argument to be unconvincing, we hold Act 10 survives the plaintiffs’ equal protection challenge under rational basis review” (¶ 161).
“Third, we hold the plaintiffs’ home rule amendment argument fails because Wis. Stat. § 62.623 primarily concerns a matter of statewide concern. Accordingly, we hold that Wis. Stat. § 62.623 does not violate the home rule amendment” (¶ 162).
“Finally, we hold that the plaintiffs’ Contract Clause claim fails. The City of Milwaukee was not contractually obligated to pay the employee share of contributions to the Milwaukee ERS. Further, even if the contributions paid by the City were a contractual right, we hold the contract was not substantially impaired by Wis. Stat. § 62.623. Therefore, we hold that the plaintiffs failed to establish beyond a reasonable doubt that Wis. Stat. § 62.623 violates the Contract Clause of the Wisconsin Constitution” (¶ 163).
Justice Crooks filed a concurring opinion. Justice Bradley filed a dissent that was joined by Chief Justice Abrahamson.
Real Property
Mortgages – Equitable Assignment – Statute of Frauds
Dow Family LLC v. PHH Mortgage Corp., 2014 WI 56 (filed 10 July 2014)
HOLDING: Under the equitable-assignment doctrine, a mortgage automatically passes by operation of law upon the assignment of a mortgage note, which also satisfies the statute of frauds.
SUMMARY: In 2009, Dow Family LLC (Dow) purchased a four-unit condominium. At closing, Dow satisfied a 2003 mortgage but not a mortgage from 2001, owed to PHH Mortgage Corp. (PHH), based on representations that the 2001 mortgage was a “mistake” and did not exist. PHH later asserted its right, and a circuit court granted summary judgment in PHH’s favor. The court of appeals held that the equitable-assignment doctrine assigned the mortgage to PHH by virtue of its holding the underlying note; the transfer also satisfied the statute of frauds. The court of appeals remanded the case for trial, however, because PHH failed to authenticate the note for purposes of summary judgment. See 2013 WI App 114. Dow appealed the issues involving equitable assignment and the statute of frauds.
The supreme court affirmed in an opinion written by Justice Crooks. The doctrine of equitable assignment “is alive and well in Wisconsin” (¶ 23). The opinion reviews both case law and Wis. Stat. section 409.203(7).
The opinion “today clarifies the existence and application of equitable assignment in Wisconsin. This clarification results in no unfairness to Dow. First, in general, equitable assignment does not require mortgagors to satisfy anything beyond their debt(s) and accompanying liens. In addition, specific to this case, Dow had notice of the 2001 mortgage prior to the 2009 sale. Here, the title commitment informed Dow of the outstanding 2001 mortgage. Dow apparently relied on information from the Sullivans and their attorney to conclude that the 2001 mortgage was listed on the title commitment in error. However, Dow had full opportunity to investigate the existence of the 2001 mortgage prior to the purchase” (¶ 35).
Nor did the statute of frauds impede the mortgage’s enforcement. “We agree with PHH and hold that under the doctrine of equitable assignment a mortgage is automatically transferred by operation of law when the note is transferred. Therefore, we hold that the ‘by operation of law exception’ found in Wis. Stat. § 706.001(2)(a) exempts the mortgage assignment at issue from the statute of frauds” (¶ 40).
Chief Justice Abrahamson concurred, writing separately because she could not support the majority’s “blanket application of the nineteenth-century doctrine of equitable assignment to the modern mortgage system” (¶ 51). Her concurrence “describes the characteristics of traditional and modern real estate mortgages, the doctrine of equitable assignment, the purpose and value of the recording statutes, and unresolved issues raised by the majority opinion’s blanket acceptance of the doctrine of equitable assignment and MERS [Mortgage Electronic Recording System]” (¶ 53).
Justice Bradley did not participate in this case.
Torts
Railways – Preemption
Partenfelder v. Rohde, 2014 WI 80 (filed 22 July 2014)
HOLDING: A Memorial Day parade was not a “specific, individual hazard” that constituted an exception to federal regulations that normally preempt state-law claims regarding train speed.
SUMMARY: During a Memorial Day parade, a car stalled on a railway track. Two people were seriously injured when a train struck the car as they tried to remove a child from a car seat. The plaintiffs sued the railway for negligence. The defendants contended that state-law claims were preempted by provisions of the Federal Railroad Safety Act (FRSA). The circuit court dismissed various claims against the defendants. A divided court of appeals affirmed in part and reversed in part in a published decision. See 2013 WI App 48.
The supreme court affirmed in part and reversed in part in a majority opinion authored by Justice Prosser. The FRSA preempts state-law claims rooted in statute and common law. An exception applies for state claims alleging a negligent failure to slow or stop a train in response to a “specific, individual hazard” (¶ 28). The event must be one that makes an accident imminent, not one that creates a generally dangerous condition (see ¶ 36).
After reviewing case law and several “practical concerns,” the court concluded that “the parade and its attendant traffic do not constitute a specific, individual hazard; instead, the circumstances of this case presented only a general danger of traffic congestion” (¶ 50). “A specific, individual hazard exists when there is a particular hazard that poses the risk of an imminent danger of a collision under circumstances that the Secretary [of Transportation] could not have taken into consideration when promulgating uniform, national regulations” (id.) Such was not the case here. On remand, the circuit court will take up whether the train crew was negligent in response to the vehicle stuck on the tracks (see ¶ 53).
Chief Justice Abrahamson dissented, joined by Justice Bradley. They disagreed with the majority’s determination that the only state tort law claims that escape federal preemption are those alleging a specific, individual hazard. This is contrary to the federal statute and the state’s interest in protecting tort victims (see ¶ 67).
Wrongful Death – “Surviving Spouse”
Force v. American Family Mut. Ins. Co., 2014 WI 82 (filed 22 July 2014)
HOLDING: The “estranged spouse” of a deceased individual was not a “surviving spouse” for purposes of the wrongful-death statute, thus entitling the deceased’s minor children to maintain their claims for wrongful death.
SUMMARY: Billie Joe Force (the deceased) died as a result of a motorcycle accident in 2006. Although he had married Linda in 1995, they separated soon thereafter and the two had no contact in the five years before his death. They never divorced. The deceased was also the father of three minor children with two women to whom he was never married (see ¶ 23). The circuit court ruled that the surviving spouse, Linda, had no compensable damages because of their estrangement and that the minor children were foreclosed by statute from maintaining a wrongful-death claim. The court of appeals certified the case to the supreme court, which granted certification.
In a decision authored by Chief Justice Abrahamson, the supreme court held that for purposes of the wrongful-death statute, the deceased’s estranged spouse was not a “surviving spouse”; thus, the minor children as lineal heirs could maintain wrongful-death claims against the tortfeasor. The issue before the court was: “Can minor children recover for the wrongful death of their father under Wis. Stat. § 895.04(2) (2011-12) when the deceased leaves behind a spouse who was estranged from the deceased and who is precluded from recovering for the wrongful death?” (¶ 3).
The majority opinion, which includes a table of contents (see ¶ 20), repeatedly emphasizes the unique facts before it and the need to avoid an absurd, unreasonable result that contravenes legislative policy. Although the defendants’ position was supported by the text and to an extent by the cases, the outcome they sought was untenable in light of the legislature’s purpose. In distinguishing prior cases, the court underscored that the estranged spouse, Linda, “did not contribute in any manner to the injury and death of the deceased” (¶ 90). The holding was consistent with case law from other jurisdictions (see ¶ 103) and statutory history (see ¶ 125).
Justice Prosser filed a separate concurring opinion, observing that “this case requires the court to confront head-on statutory language that, if applied literally, would produce an absurd or unreasonable result” (¶ 133).
Justice Roggensack dissented, joined by Justice Ziegler and Justice Gableman. The dissent pointed to the statute’s language and the potential for “mischief” (¶ 148). Justice Ziegler filed a separate dissent that was directed at Justice Prosser’s concurrence and stressed the court’s limited role in construing statutes, even when the result is “unpalatable” (¶ 165).
Voting
Voter ID – 2011 Wisconsin Act 23 – Constitutionality
League of Women Voters v. Walker, 2014 WI 97 (filed 31 July 2014)
HOLDING: The voter identification process set forth in 2011 Wisconsin Act 23 comports with the Wisconsin Constitution.
SUMMARY: In this widely publicized case, the supreme court upheld the constitutionality of 2011 Wisconsin Act 23’s voter identification procedure against various challenges. The court stressed the “very heavy burden” assumed by any party that challenges the constitutionality of a statute (see ¶ 17).
The opinion, written by Justice Roggensack, first held that Act 23 comported with article III of the Wisconsin Constitution in that Act 23 imposed no additional elector qualifications. Act 23 requires voters to present an acceptable means of photo identification from among nine alternatives (see ¶ 7). Voter identification “is a mode of identifying those who possess constitutionally required qualifications” (¶ 35).
Nor did Act 23 conflict with the voter registration provisions of article III, section 2 of the Wisconsin Constitution: “Requiring an elector identify himself or herself by stating his or her full name and address is unquestionably part of the registration process” (¶ 43).
Finally, Act 23 was “reasonable” under the constitution. The majority had “little trouble” identifying various ways in which Act 23 “strengthened” the right to vote (¶ 51). Relying on the U.S. Supreme Court’s decision in Crawford v. Marion County Election Board, 553 U.S. 181 (2008), for example, the Wisconsin court observed that presenting photo identification has become, to some extent, a “condition of our time” (¶ 53).
Vigorously dissenting was Chief Justice Abrahamson, joined by Justice Bradley. The dissent likened Act 23 to “an illegal de facto poll tax” that “brings the specter of Jim Crow front and center” (¶ 71). The dissent’s position is summarized at paragraphs 80-93.
2011 Wisconsin Act 23 – Photo ID – Documentation – Burdens on Suffrage
Milwaukee Branch of the NAACP v. Walker, 2014 WI 98 (filed 31 July 2014)
HOLDING: The burdens and inconveniences imposed by 2011 Wisconsin Act 23’s photo ID requirement are constitutional; voter identification cards must be issued without requiring documents for which an elector must pay a fee.
SUMMARY: This case is a companion to League of Women Voters v. Walker, 2014 WI 97 (digested above), which held that 2011 Wisconsin Act 23, which requires various forms of photo identification when voting, does not impose any additional electoral qualifications in violation of the Wisconsin Constitution. In this case the court took up the separate but related issue of whether Act 23 imposes burdens and inconveniences that render it facially unconstitutional. The court upheld Act 23’s constitutionality against these challenges in an opinion authored by Justice Roggensack.
The opinion lays out the time, inconvenience, and cost associated with Act 23’s photo identification requirements. The time and inconvenience, said the court, “are no more an imposition than is the exercise of the franchise itself, which can involve waiting in long lines and traveling distances in order to personally cast a ballot on election day” (¶ 46). The cost of producing documents needed for a photo identification is, however, “a severe burden on the right to vote” (¶ 63). Act 23 itself provides that the Department of Transportation, which is responsible for most forms of required identification, “may not charge a fee” (¶ 60).
“The modest fees for documents necessary to prove identity would be a severe burden on the constitutional right to vote not because they would be difficult for some to pay. Rather, they would be a severe burden because the State of Wisconsin may not enact a law that requires any elector, rich or poor, to pay a fee of any amount to a government agency as a precondition to the elector’s exercising his or her constitutional right to vote” (¶ 62).
The “flaw,” however, is not in Act 23 but in the administrative regulations that require people to pay for the necessary supporting documentation (¶ 65). To correct the “flaw,” the court adopted a “saving construction” of pertinent administrative regulations: “One who petitions an administrator pursuant to § Trans 102.15(3)(b) for an exception is constitutionally ‘unable’ to provide those documents and they are constitutionally ‘unavailable’ to the petitioner within our interpretation of § Trans 102.13(3)(b), so long as petitioner does not have the documents and would be required to a pay a government agency to obtain them” (¶ 69). The process for obtaining such documentation free of charge is further explained in paragraphs 70-71.
Chief Justice Abrahamson dissented, elaborating on her dissent in League of Women Voters (digested above).
Justice Crooks, joined by Justice Bradley, also dissented, finding that Act 23’s photo ID requirements “severely burden[] eligible voters without being narrowly tailored to achieve the state’s compelling interests of reducing voter fraud and increasing voter confidence in the outcomes of elections” (¶ 86).
