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Aug. 1, 2018 – The Wisconsin Supreme Court concluded its 2017-18 term, issuing its final substantive decision early last month. Not including attorney discipline, the state Supreme Court issued 63 authored decisions, up from 50 decisions last term.

As Marquette University History Professor Alan Ball notes at SCOWstats – a source of much data for this article – this is the second consecutive term with a significant increase in the Court’s output. In 2013-14, the Court issued just 43 merit opinions.

Of the 63 decisions, 36 were civil cases and 27 were criminal cases. Twenty-six cases, the highest percentage, were 5-2 (or 4-2) decisions, with Justices Shirley Abrahamson and Justice Ann Walsh Bradley joining dissents together in 19 of those 26 decisions.

Although Justices A.W. Bradley and Abrahamson aligned in 90 percent of cases, some combination of Chief Justice Patience Roggensack, Justice Michael Gableman and Justice Annette Ziegler aligned in more than 95 percent of all cases for the term.

Gableman was in the majority in 58 cases, Ziegler in 54, and Roggensack in 53. By contrast, Abrahamson joined the majority in 25 cases, followed by A.W. Bradley (30).

Justices Daniel Kelly and Justice Rebecca Bradley aligned 84 percent of the time, and were the dissenters in four of the 5-2 decisions. The alignments will likely change in the coming terms as Milwaukee County Circuit Court Judge Rebecca Dallet won election to succeed Gableman, who retired, and the next term will be Shirley Abrahamson’s last.

What can lawyers do to prepare for judicial changes like this?

“While lawyers certainly attempt to shape their arguments to appeal to a majority of justices, I think our attempts at ‘ESP’ only go so far,” said Susan Tyndall, a shareholder in the Waukesha office of Habush Habush & Rottier S.C.

Tyndall said lawyers should try to attend when justices speak at seminars, to learn about their preferences and avoid their ‘pet peeves,’ or read up on their statements concerning judicial philosophy, which can be helpful in preparing briefs and arguments.

“In addition, if the new justice has trial or appellate court experience, reading prior decisions, particularly in cases with similar issues, can illuminate the arguments which found success with them,” she said.

The Court issued more 4-3 decisions this term with 10 compared to just six last term, which may just correspond with a higher number of total decisions issued. And it also issued more unanimous (7-0, 6-0, or 5-0) decisions, with 17 compared to 12 last term.

4-3 Decisions

In eight of the 10 decisions with a 4-3 split, Chief Justice Roggensack and Justices Ziegler and Gableman aligned with another justice, not always the same one.

For instance, in State v. Kerr, the majority upheld an arrest warrant, and the evidence obtained when the defendant was arrested, despite the defendant’s argument that the warrant was invalid because the warrant-issuing judge did not follow procedure.

Justice Kelly joined Roggensack-Gableman-Ziegler in that decision. Justice A.W. Bradley dissented, joined by Justice Abrahamson. Justice R. Bradley wrote a seperate dissent, providing more insight as one of the newer justices.

“Rebecca Bradley's separate dissent in Kerr includes consideration of the Wisconsin Constitution in reviewing a suppression issue related to a court failing to follow proper procedure in issuing a warrant,” said Deputy State Public Defender Michael Tobin.

Tobin said this openness is in contrast to the approach of uncritically adopting federal case law as equally applicable to Wisconsin.

“Although the majority in Kerr ruled that the sole justification for the exclusionary rule is to deter improper conduct by law enforcement, Justice R. Bradley highlighted the danger of judicial misconduct in the issuance of warrants, which can result in unreasonable and highly invasive searches and seizures,” Tobin said.

Kelly was also the swing vote in Movrich v. Lobermeier, in which the majority ruled that the public trust doctrine did not allow a property owner to erect and maintain a pier on flowage waters over submerged land owned by the property owner’s brother.

Again, Justices R. Bradley, and Justices Abrahamson and A.W. Bradley dissented, concluding the property owner had a right to erect and maintain the pier over flowage water, and Justice R. Bradley (alone) suggested that compensation should be paid to property owners affected by the majority’s ruling, based on diminished property rights.

“I am not well-versed in property law, but given the number of flowages in Wisconsin, it appears that Movrich might be a big deal, with a potential to affect many Wisconsin landowners’ riparian rights, as Justice R. Bradley’s dissent observed,” Tyndall said.

“Movrich also appears to suggest the court may return to reliance on highly technical judicial distinctions which courts have, in general, been moving away from for decades.”

In State v. Monahan, the four-justice majority, with Justice Kelly, the majority ruled that the exclusion of certain GPS location data, which may have supported a defense theory, was harmless error and a conviction should not be reversed.

Justice R. Bradley dissented, joined by Justices Abrahamson and A.W. Bradley, concluding that it was not harmless error to exclude the GPS data.

In three other cases, Justice R. Bradley provided the swing vote for the majority, which included Chief Justice Patience Roggensack, and Justices Ziegler and Gableman.

In State v. Smith, a majority upheld a drunk driving conviction, despite the defendant’s argument that police violated his Fourth Amendment rights.

Justice Kelly wrote a dissenting opinion, joined by Justices Abrahamson and Justice A.W. Bradley, concluding the police’s traffic stop violated the Fourth Amendment.

“Justice Kelly's dissent in Smith forcefully argues that the majority have substantially eroded Fourth Amendment rights by upholding the extension of a traffic stop after the officer has learned that the initial basis for the stop was incorrect,” Tobin said.

“This case involved the police opening a car door and discovering that the driver was intoxicated. However, the basis for the original stop was that the owner of the vehicle did not have a valid license, and that basis was invalid once the officer saw that the driver was someone else.”

Tobin said Justice Kelly’s dissent examines each event following a police seizure, holding the state to the burden of showing the reasonableness of all portions of a stop and its aftermath.

“Although Justice Kelly criticized the majority's interpretation of federal precedent, his opinion did not address whether the Wisconsin Constitution may provide broader protection than does the Fourth Amendment against searches or seizures in this case or in other circumstances.”

In Talley v. Mustafa, a 4-3 majority ruled that a business liability policy covering a convenience store did not cover a negligent supervision claim arising from a physical altercation between the store’s security guard and a store customer.

Justice Kelly dissented, joined by Justices Abrahamson and A.W. Bradley. They concluded that the business liability policy covered the altercation because the assault, from the convenience store owner’s perspective, was an unintended “accident.”

In Milwaukee Police Association v. City of Milwaukee, a 4-3 majority ruled the City of Milwaukee violated the rights of employees in the public Employee Retirement System (ERS) by changing voting rules to the ERS Annuity and Pension Board. The change enlarged the number of board members, three seats as mayoral appointments.

Justice Abrahamson dissented, joined by Justice A.W. Bradley. Justice Kelly wrote a separate dissent, concluding employee rights to proportional representation and at-large elections do not exist under the constitution, statute, regulation, or case law.

In two cases, Justice A.W. Bradley provided the swing vote on the majority, joining Chief Justice Roggensack, Justice Ziegler, and Justice Gableman.

In Estate of Miller v. Storey, the 4-3 majority upheld $30,000 in exemplary and actual damages, $20,000 in attorney fees, and double costs in favor of an estate that filed a small claims action against the decedent’s niece for civil theft of funds from the estate.

Justice Kelly dissented, joined by Justice R. Bradley, concluding that the estate was not entitled to attorney fees under a provision allowing a plaintiff to cover costs related to “investigation and litigation.” Abrahamson’s dissent applied a $5,000 cap on damages.

And in Winebow v. Capital-Husting Co., Inc., Justice A.W. Bradley sided with the majority in ruling that wine distribution agreements are not intoxicating liquor dealerships subject to special provisions under the Wisconsin Fair Dealership Law. Justice R. Bradley dissented, joined by Justice Abrahamson and Justice Kelly.

So, in the closer cases like this, are we likely to see similar challenges soon, especially given that the court is changing?

“Lawyers will undoubtedly look for cases in which to challenge 4-3 decisions where changes in the court’s roster may make a difference in the result, but cases with suitable facts may not immediately arise. Such challenges must be mounted with care,” Tyndall said.

“The court may be reluctant to change the law and thus appear to invite other, similar challenges on multiple fronts. However, a SCOWstats post from 2017 demonstrates that, when the court’s personnel changes, such challenges can be successful.”

As for criminal cases, Tobin said that turnover on a state supreme court raises the possibility that the court may revisit issues with a different perspective.

“Even without changes in court membership, similar issues arise in criminal appeals, for example suppression issues and challenges to irregularities in procedures for accepting guilty pleas. Advocates can highlight factual differences that may result in a different application of legal standards adopted in earlier cases in which relief was denied.”

Unanimous Decisions

In 17 cases, the seven justices aligned in the ultimate judgment, but did not always align on rationale. For instance, the Court was fully united in 10 decisions (including two in which one justice did not participate). Seven decisions drew at least one concurrence.

Justice R. Bradley wrote the most concurrences, with seven, followed by six for Justice Kelly and five for Justice Abrahamson. For instance, in Tetra Tech EC Inc. v. Wisconsin Department of Revenue, the unanimous court ruled that the DOR could impose a tax on a company for the “processing” of river sediments into reusable sand.

A majority also decided to stop “deferring to administrative agencies’ conclusions of law,” an aspect of the case that two attorneys recently discussed in their article, “Sea Change: No More Great Weight Deference to Administrative Agencies.”

Justice Kelly wrote the lead opinion but three concurrences were filed, with differing views expressed by five different justices.

In State v. Dorsey, the unanimous (6-0) court upheld domestic violence-related convictions despite the defendant’s argument that the trial court improperly admitted “other-acts evidence.” Justice R. Bradley wrote a concurrence, joined by Justice Kelly, arguing that circuit courts should admit evidence of other acts with greater latitude.

High-Profile Cases

Perhaps the most high-profile of the decisions this term involved a political science professor at Marquette University, John McAdams, who took his case to the Wisconsin Supreme Court after he was suspended for a blog post he published in 2014.

In McAdams v. Marquette University, the Supreme Court ruled (4-2) that the disciplinary process was not entitled to any deference and the school breached a contractually protected right of academic freedom. Justice Kelly wrote the lead opinion.

Justice Rebecca Bradley wrote a 22-page concurrence to discuss, more broadly, the doctrine of academic freedom. Justice Kelly wrote a concurrence to address bias, and Justice A.W. Bradley wrote a dissent, joined by Justice Abrahamson. They said the school is private and neither academic freedom nor free speech could save McAdams.

Another high-profile case was Koschkee v. Evers, in which a 4-3 majority issued an order that the state Superintendent of Schools, Tony Evers, and the Department of Public Instruction were entitled to choose the legal counsel of their choice in pending litigation about rulemaking powers. Attorney General Brad Schimel had argued that the Department of Justice must represent Evers.

Justice R. Bradley dissented, joined by Justice Gableman and Justice Kelly, concluding that the Wisconsin Constitution and the applicable statutes unmistakably require the Department of Justice to represent Evers and the Department of Public Instruction.

Finally, in State v. Mitchell, a 5-2 majority upheld the warrantless blood draw of an unconscious driver, but the majority justices were split on rationale. Three justices ruled that informed consent allowed the blood draw, but two justices said the warrantless blood draw was legal because police believed critical evidence would be lost.

“Although the lead opinion is styled as the opinion of the court, it is a three-justice plurality opinion. Two justices, Kelly and Rebecca Bradley, concurred on the separate ground of exigent circumstances,” Tobin noted.

“As pointed out by the two dissenting justices (Abrahamson and Ann Walsh Bradley), the U.S. Supreme Court held in McNeely that the reasonableness of a warrantless blood draw of an OWI suspect is determined on a case-by-case basis, under a totality-of-circumstances test. Although the three opinions in Mitchell all focused primarily on the implied-consent law, a (fractured) majority agreed that the totality test applies in this situation.”

Conclusion

This article provides a sampling of the Wisconsin Supreme Court decisions in the 2017-18 term, but is not an exhaustive. Throughout each term, the State Bar of Wisconsin covers many decisions with court summaries published on WisBar News.