By Gretchen Schuldt

The state Supreme Court will hear arguments Tuesday in a case that could have a profound impact on how hospitals and doctors treat patients and the degree of control patients have over their medical care.

At issue is whether patients or their representatives can demand treatment that their caregivers believe is below an adequate standard of care.

The Court of Appeals, in a 2-1 decision, ruled in May that Aurora Health Care did not have to administer ivermectin to John Zingsheim, a COVID-19 patient. Ivermectin, promoted by some as a COVID treatment, is primarily used as an anti-parasitic in farm animals and is given to humans to treat some parasites and scabies. It has not been approved by the FDA for COVID-19 treatment. 

Aurora declined to administer the drug, requested by Zingsheim’s representative, Allen Gahl, who is the plaintiff in the appeal. Waukesha County Circuit Judge Lloyd Carter first ordered Aurora to administer ivermectin, then said Gahl should find a physician willing to administer the drug and to whom Aurora could grant credentials to practice in its hospital. Once credentialed, that doctor would have permission to go to the hospital and administer the ivermectin to Zingsheim.

Aurora appealed and won. Then-Appellate Judge Lori Kornblum wrote that Gahl “failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment,” so the lower court “erroneously exercised its discretion in granting Gahl injunctive relief.”

Appellate Judge Shelley A. Grogan, in dissent, said Carter ruled reasonably when he issued the injunction directing Aurora to credential a doctor willing to give the treatment to Zingsheim.

Zingsheim recovered.

Aurora, in its brief to the Wisconsin Supreme Court, agreed that Gahl failed to meet legal standards to be granted the relief he sought. In addition, it argued, “There is no authority that would give hospital patients a legal right to demand a specific treatment against the medical judgment of their providers.”

Aurora is represented by attorneysJason J. Franckowiak, Michael L. Johnson, and Randall R. Guse.

Karen Mueller, the lawyer representing Gahl, said in her appeal brief that “It has been established in the record that the hospital relies heavily on the CDC and the FDA for directions on what drugs to give and what drugs to withhold from their patients.” 

Mueller accused Aurora of “strict and blind adherence to unconstitutional edicts, guidelines and administrative rules of federal agencies who had loftier goals than keeping John Zingsheim and many other Wisconsin citizens alive.” 

Both parties have allies in the case. The Wisconsin Medical Society and the American Medical Association filed a joint amicus brief supporting Aurora. Two groups, the Front Line COVID-19 Critical Care Alliance and the Association of American Physicians and Surgeons, are weighing in on behalf of Gahl.

The AMA and Medical Society said reversing the appellate decision would mean that doctors will be forced “to choose between the law and their ethical duties, potentially exposing patients to harm and physicians to liability.” 

Ivermectin is not-an FDA-approved COVID treatment, attorneys Patricia Epstein Putney and Melita M. Mullen wrote.

“To the contrary, the FDA cautions that taking ivermectin – even in amounts approved for human consumption – can interfere with other medications” and cause a variety of reactions ranging from nausea to “seizures, coma, and even death,” they wrote.

Doctors can administer off-label prescriptions if they minimize risk, the treatment is backed by evidence and clinical experience, and the treatment is shown to improve patient outcomes, they said. 

“Novel treatments do not become part of the standard of care simply because they are ethically attempted, however,” they said. “And physicians do not breach ethical or legal duties by declining to administer them. Consequently, even if a physician could ethically treat COVID-19 with ivermectin, patients have no legal or ethical entitlement to that care.”

The Physicians and Surgeons group, in supporting Gahl, said Grogan’s dissent was right and that Wisconsin law “does fully recognize the right of a patient ‘to request and receive medically viable alternative treatments.’ That right would be meaningless if a powerful, revenue-maximizing business such as Aurora could interfere with access to treatment without judicial review, as the panel majority decision mistakenly establishes.”

The FDA found “decades ago” that ivermectin is safe, attorneys Rory E. O’Sullivan and Andrew L. Schlafly wrote in the brief. Many physicians have prescribed it for countless COVID-19 patients, they said.

“Yet Aurora blocked access to that physician-prescribed medication by patients trapped in its hospital,” they said. “Aurora never disclosed to the public that patients who admit themselves to that hospital will be automatically denied this medical care that is widely available outside of its hospital. As Aurora benefits enormously from its nonprofit tax status in purportedly serving the public, it can hardly hide behind its private status now to evade judicial review for how it senselessly blocked access to medication by all the patients hospitalized there for COVID-19.”

Attorney Joseph W. Voiland, writing for the Critical Care Alliance, said overturning the Court of Appeals decision would “preserve the equitable and statutory authority…of trial judges to grant temporary injunctive relief, particularly in matters where a patient is on their deathbed without many, if any, other option.” 

Mueller, Schlafly, and Voiland have represented and advocated for conservative causes in the past, such as arguing that the 2020 presidential election was “stolen” (Mueller), filing suit to challenge the Affordable Care Act (Schlafly), or submitting an amicus brief for Sen. Ron Johnson in Wisconsin’s ballot-box case (Voiland).

Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.
​
The case: State of Wisconsin v. Charles W. Richey
 
Majority: Justice Rebecca Frank Dallet (13 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, and Jill J. Karofsky
 
Dissent: Justice Patience Drake Roggensack (6 pages), joined by Chief Justice Annette Kingsland Ziegler and Justice Brian K. Hagedorn

The upshot
 
The Fourth Amendment requires a police officer to have particularized reasonable suspicion that a crime or non-criminal traffic violation took place before performing a traffic stop.  Here, a stop based on the generic description of a Harley-Davidson motorcycle recently seen driving erratically in the area fell short of that threshold. . . .

                                                                                                   * * *

We therefore reverse the decision of the court of appeals and remand to the circuit court with instructions to vacate the judgment of conviction and to grant Richey's motion to suppress.
 ​
Background
 
Officer Alexis Meier was on patrol in the Village of Weston at 10:59 PM on a Saturday night in late April. Over the radio, she heard a report that a sheriff's deputy was investigating a disabled motorcycle at a nearby intersection. After just fifteen seconds, the deputy cleared that stop without explanation. Five minutes later, at 11:04 PM, that same sheriff's deputy told nearby officers to be on the lookout for a Harley-Davidson motorcycle driving erratically and speeding north on Alderson Street (near the intersection with Jelenik Avenue)—approximately a mile away from the location he had given for the disabled motorcycle. The sheriff's deputy did not give any additional details about either the motorcycle or its driver. Officer Meier later said that she believed that the motorcycle the deputy saw on Alderson Street was fleeing police.

Five minutes after the deputy's report, at 11:09 PM, Officer Meier spotted a motorcycle driving east on Schofield Avenue a little more than a block west of the intersection with Alderson Street—about a half-mile from the reported location of the speeding Harley. Traffic was light at that time of night. Additionally, Officer Meier had seen relatively few motorcycles out that early in the year and none around the time of the deputy's report. Meier looked up the registration, which showed that it was a Harley-Davidson registered to Richey. She followed the Harley-Davidson for several blocks, but did not see any erratic driving, speeding, or other traffic violations. Meier nevertheless performed a traffic stop, suspecting that this Harley-Davidson was the one seen driving erratically on Alderson Street five minutes earlier.

The court included a map to aid the reader:

The guts

The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures." Investigative stops, including traffic stops, are seizures and must therefore comply with the Fourth Amendment. 

To conduct an investigative stop, the police must have "reasonable, articulable suspicion that criminal activity is afoot." Reasonable suspicion must be founded on concrete, particularized facts warranting suspicion of a specific individual, not "'inchoate and unparticularized suspicion[s] or hunch[es].'" We assess reasonable suspicion in light of the totality of the circumstances.  Thus, we look at the "whole picture" to determine whether the officer had reasonable suspicion, not each fact in isolation. 

The whole picture here includes the following information known to Officer Meier before she stopped Richey's motorcycle:

• A Harley-Davidson was driving erratically and speeding north on Alderson Street towards Schofield Avenue five minutes earlier.
• Meier  first  saw  Richey's  motorcycle  driving  east  on Schofield Avenue a little more than a block west of the intersection with Alderson Street——about a half-mile from the reported location of the speeding Harley.
• Richey's motorcycle was a Harley-Davidson and was the only motorcycle she saw around the time of the deputy's report.
• Meier followed Richey for several blocks but did not observe any speeding, erratic driving, or other traffic violations.
• Traffic was light that night, and Meier had seen relatively few motorcycles out that early in the year.

It is undisputed that the only reason Officer Meier pulled Richey over is she suspected he was the erratic driver the deputy saw five minutes earlier. The question is whether that suspicion was reasonable.

Although we acknowledge that it is a close question, we hold that the stop was not supported by reasonable suspicion. To clear the reasonable-suspicion threshold, Officer Meier's suspicions had to be particularized; she needed concrete reasons for believing that Richey's Harley-Davidson and the one seen five minutes earlier speeding north on Alderson Street were one and the same. But the sheriff's deputy's generic description of a Harley-Davidson gave her very little to work with. Except for the manufacturer, she knew nothing specific about the Harley the deputy saw—not the model, type, size, or color, let alone a license plate number. Nor did she know anything about the driver, what he or she was wearing, whether he or she wore a helmet, or even whether the driver appeared to be a man or a woman. And although she followed Richey for several blocks before initiating the stop, there is no indication that she radioed the deputy during that time to ask for more details.

The State nevertheless argues that Officer Meier's suspicions were particularized because Richey's motorcycle "fit a highly specific and particular description." Namely, it was a Harley driving in the same general area as the deputy's report late in the evening and at a time of year when relatively few motorcycles were on the roads. These facts are part of the totality of the circumstances, but they are not enough to transform Officer Meier's hunch into particularized reasonable suspicion. For starters, the "highly specific" description of a Harley-Davidson could apply to a large number of vehicles. After all, Wisconsin is the home of Harley-Davidson, and it is one of, if not the most popular manufacturers of motorcycles in Wisconsin. Although reasonable suspicion is a low bar, it is not so low that it allows the State to stop so many otherwise law-abiding citizens based on such a generic description. Additionally, although the circuit court found that it was "the beginning, very beginning, of [motorcycle] season," it also acknowledged that "[c]ertainly, people drive their bikes in April."

That Richey's Harley was spotted close to the location of the deputy's call just five minutes later does not add much to the particularity of Officer Meier's suspicions either. Although proximity in time and place to a report of criminal activity can, under some circumstances, provide some of the particularity that is otherwise lacking in a report of criminal activity, Richey's exact location and direction of travel raise more questions than they answer. Returning to the map above, the letter "D" marks where the deputy saw the erratic driver, and the arrow shows the direction of travel. Although Richey was seen in that general area five minutes later, at the spot marked with the letter "A," we note that Richey was headed east on Schofield Avenue towards the intersection with Alderson Street at that time.  In other words, Richey was driving towards the reported location of the erratic and speeding driver when Officer Meier first saw him. Given that Officer Meier thought the erratic driver was fleeing police that would be a strange choice. Additionally, counsel for both parties acknowledged at oral argument that the speed limits in the area were likely the 25 or 30 mile-per-hour limits applicable to most city streets. Even at normal speed, it would take only about a minute to travel from the location of the deputy's report to where the officer saw Richey, and a driver fleeing police at high speed could have gone much farther in the same amount of time. Thus, in order for Richey to have been the subject of the deputy's report, he would have had to have driven north on Alderson Street at high speed, ridden around the general area for several minutes, and eventually looped back in the direction he came from while now driving normally. This unlikely sequence of events, when coupled with the deputy's generic description of a Harley- Davidson headed north on Alderson Street, demonstrates that Officer Meier's suspicions were not sufficiently particular to Richey. 

                                                                                                  * * *

. . . . Here, the sheriff's deputy reported a Harley-Davidson driving erratically north on Alderson Street at high speed and then lost sight of it. And Officer Meier had to use a combination of logic and guesswork to locate that motorcycle. The problem is that . . . the deputy gave Officer Meier little on which to ground her logic. She did not know anything about the motorcycle other than that it was a Harley-Davidson and she knew nothing about its driver. And the timing and location at which Officer Meier first saw Richey did not fill those gaps, since these facts support only a tenuous inference that Richey was the motorcyclist Officer Meier was looking for. Accordingly, we hold that, in light of the totality of the circumstances, Officer Meier lacked reasonable suspicion to perform the stop. . . .

The dissent

Reasonable suspicion is a common-sense test based on the totality of the circumstances known to the officer at the time of the seizure. Stated otherwise, "was the action of law enforcement officers reasonable under all the facts and circumstances present[.]" Reasonable suspicion includes all factual circumstances and the reasonable inferences arising from those facts. I conclude that the record before us fully supports reasonable suspicion to stop Charles W. Richey; and therefore, evidence of Richey's eighth Operating While Intoxicated (OWI) violation was admissible. There is nothing in the record that allows us to conclude Officer Meier's inference that Richey was the motorcyclist her colleague warned of was unreasonable. Because the majority opinion refuses to accept reasonable inferences from undisputed facts, it enables Richey to achieve suppression of evidence of drunk driving that was apparent after he was stopped. Accordingly, I respectfully dissent.

                                                                                                 * * *

The question here is at what point does societal interest in investigating a reported law violation rise to the level of reasonably supporting an investigative stop. LaFave has identified six factors that we have concluded should be considered in assessing whether the facts and the reasonable inferences from those facts support reasonable suspicion for an investigatory stop:

(1) [T]he particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the number of persons about in that area; (4) the known or probable direction of the offender's flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in other criminality of the type presently under investigation.
 
Here, Officer Meier clearly articulated that only five minutes before she saw Richey, she was asked to be on the lookout for a Harley-Davidson motorcycle that another officer had observed speeding and driving in a reckless manner. When she saw Richey, she called in the license plate on his cycle and confirmed that his bike was a Harley-Davidson. Her sighting was within the geographic area in which the speeding motorcyclist was seen. In addition, she had seen no other motorcycles in that area and it was late at night when she stopped Richey.

Furthermore, it was reasonable to infer that Richey was the driver of the Harley-Davidson another officer had reported as speeding and committing other traffic violations. Richey was present in the same area as the reported traffic violator; his presence was within five minutes of (the sheriff deputy's) report and request that other officers be on the lookout for a Harley-Davidson motorcyclist. It was late at night and Officer Meier had seen no other motorcycles. April 28, the date of the stop, also was too early in the season for many motorcyclists to be out. It was possible that if Officer Meier did not act "immediately the opportunity for further investigation would be lost[.]" "A minimal amount of facts may, under these circumstances, be given greater weight than if the opportunity to act in the future is not foreclosed."

It also is important to our analysis to note that there is nothing in the record that causes the inference that Richey was the driver of the Harley-Davidson motorcycle that (the sheriff's deputy) had seen speeding five minutes earlier to be an unreasonable inference. The majority opinion does not address why the brief period of time after the lookout was called and the defined location of the traffic violation that are part of the reasonable suspicion analysis, as LaFave and we required in (a prior case), do not support reasonable suspicion.

The facts are not in dispute and reasonable inferences from those facts support reasonable suspicion that it was Richey who was speeding and driving his motorcycle in a reckless fashion. Based on the officer's articulable facts, it was not unreasonable to stop Richey on that night. Accordingly, I would affirm the court of appeals and I dissent from the majority opinion.

The majority opinion concludes that the Wisconsin Elections Commission's (WEC) documents (hereinafter memos) are invalid because ballot drop boxes are not legal in Wisconsin and because absentee ballots must be personally delivered by the voter to the municipal clerk at the clerk's office. I agree, and join the majority opinion. I write further to explain that, under Wisconsin statutes, it is the elector who shall mail the absentee ballot to the municipal clerk. Accordingly, I respectfully concur. 

                                               ***


The circuit court decided that the elector was required to personally mail his or her own completed ballot to the clerk's office. Affirming the circuit court's decision is expressed in several briefs (sic), as is the need for uniform guidance. The WEC has issued memos that encourage drop boxes over mail-in ballot returns, and municipal clerks and election officials have acted on those memos. Teigen is a Wisconsin voter who is affected by the WEC's memos. Because the controversy is justiciable, I proceed to the merits of Teigen's statutory interpretation claim with regard to mailing absentee ballots, and conclude that the memos encourage drop boxes over mailing completed ballots and are inconsistent with Wis. Stat. § 6.87(4)(b)1. Therefore, they are contrary to law. 

                                                                                ***

The statute provides in regard to mailing that absentee ballots "shall be mailed by the elector . . . to the municipal clerk." Electors are statutorily defined as "[e]very U.S. citizen age 18 or older who has resided in an election district or ward for 28 consecutive days before any election where the citizen offers to vote[.]"  Accordingly, when the statute says "the elector[,]" it means, the voter. 

The plain statutory text, provides that if a ballot is returned by mail, it is the "elector" who does the mailing. The legislature could have said "may be mailed by the elector" if it were not mandatory that the elector do the mailing. ...
​
                                                                                ***

That agents are not permitted by the terms of Wis. Stat. § 6.87(4)(b)1 to mail absentee ballots is further supported by comparing the language in that statute with other statutes in which the legislature has explicitly allowed an agent or non-elector to participate in the absentee voting process. Those statutes, in keeping with the policy in Wis. Stat. § 6.84(1), have formalistic, regulated conditions attached. 

​For example, when a voter is a member of a sequestered jury, the legislature has provided very detailed instructions about voting and returning the ballot where a non-voter participates. ...

Another example of the legislature's recognition of agents involved in voting or ballot return is found in Wis. Stat. § 6.86(3)(a) for hospitalized electors. ...

Wisconsin Stat. § 6.87(5) also permits the use of an agent when the elector is disabled. ... Once again, when the legislature decided that use of an agent in voting was permissible, it specified the circumstances under which an agent could be employed and defined criteria for performing as an agent in regard to absentee ballots. 

Accordingly, because the text and context of § 6.87(4)(b)1. instruct me to do so, I conclude that no one but the elector may mail an absentee ballot unless the elector and his or her designated agent fit within a different statutory circumstance that explicitly permits it.

This court's binding precedent allows WEC – a creature of the legislature authorized only to implement Wisconsin's election laws – to make law by executive fiat, thereby granting it a potent "Badge[] of Domination[.]" In Trump v. Biden, a majority of this court gave WEC's "advice" the force of law. It declared this "advice" is "the rulebook" for elections – never mind what the statutes enacted by the legislature say. ...

Even properly promulgated administrative rules do not have this kind of weight; in the hierarchy of laws, rules fall beneath statutes (if rules may even be called law). I would overrule Trump, but it remains binding precedent under which the WEC memos have the force of law. Because a majority of this court accords them this effect, they must be rules. Because they were not promulgated according to statutorily prescribed procedures, they are invalid for this additional reason. ...

This court's decision in Trump gave WEC the power to materially alter how elections in this state are conducted – without a single procedural check. Trump should be overruled, but if the court continues to hold the memos need not be promulgated as administrative rules, they should at least be subject to the statutory procedures we struck down in SEIU (Service Employees International Union, Local 1 v. Vos). As the law stands, WEC's staff have absolute prerogative power. The constitution does not permit such corruption of the carefully calibrated powers among the branches of government.

In that case, Grassl Bradley writes, SCOW denied the legislature a role in previewing and clearing guidance documents issued by the administration.

                                                                                ***

​Although the memos should not have the force of law, the majority erroneously concluded otherwise in Trump. In that case, Donald Trump, the incumbent President, and his campaign appealed the results of a recount in two Wisconsin counties. The ballots President Trump sought to strike fell into four categories; two are most relevant in this case. First, he argued "that a form used for in-person absentee voting [wa]s not a 'written application' and therefore all in-person absentee ballots should be struck." Second, President Trump argued "that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots [wer]e therefore invalid."

As the majority acknowledged, "Wisconsin law provides that a 'written application' is required before a voter can receive an absentee ballot, and that any absentee ballot issued without an application cannot be counted." A majority of this court refused to consider whether the form utilized for in-person absentee voting, EL-122, constituted a written application. It noted, "both counties did use an application form created, approved, and disseminated by the chief Wisconsin elections agency." The majority emphasized "local election officials used form EL-122 in reliance on longstanding guidance from WEC." Therefore, it concluded, "[p]enalizing the voters election officials serve and the other candidates who relied on this longstanding guidance is beyond unfair." "To strike ballots cast in reliance on the guidance now, and to do so in only two counties, would violate every notion of equity that undergirds our electoral system." In Trump, a majority of this court allowed its notions of "equity" and "unfair[ness]" to trump the law. 

Invoking the same rationalizations, the majority declined to examine whether election officials violated a statute by adding missing witness information to absentee ballot certifications. Wisconsin Stat. § 6.87(6d) provides, "[i]f a certificate is missing the address of a witness, the ballot may not be counted." The majority defied this clear textual command because it was concerned that "election officials followed guidance that WEC created, approved, and disseminated to counties in October 2016." It continued, "the election officials relied on this statewide advice and had no reason to question it."

Overall, the majority compared voting – the foundation of free government – to a football game: "[E]lection officials in Dane and Milwaukee Counties followed the advice of WEC where given. . . . Our laws allow the challenge flag to be thrown regarding various aspects of election administration. The challenges raised by the Campaign in this case, however, come long after the last play or even the last game; the Campaign is challenging the rulebook adopted before the season began. Election claims of this type must be brought expeditiously. The Campaign waited until after the election to raise selective challenges that could have been raised long before the election. . . . The Campaign is not entitled to relief, and therefore does not succeed in its effort to strike votes and alter the certified winner of the 2020 presidential election." (Emphasis added by Grassl Bradley.)

Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. 

And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. 

The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission

Concurrence: Justice Brian Hagedorn (35 pages)

Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky

Majority/Lead Opinion: Justice Rebecca Grassl Bradley (52 pages),  joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler; joined in part by Hagedorn

Concurrence: Roggensack (14 pages)

Concurrence: Grassl Bradley (17 pages), joined by Roggensack and Ziegler

​Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.

Concurrence

​The principal issue in this case involves the lawfulness of ballot drop boxes. This case is not about the risk of fraudulent votes being cast or inspiring confidence in elections. This is not about ensuring everyone who wants to vote can, nor should we be concerned with making absentee voting more convenient and secure. Those are policy concerns, and where the law does not speak, they are the business of the other branches, not the judicial branch. This case is about applying the law as written; that's it. To find out what the law is, we read it and give the words of the statutes the meaning they had when they were written. 

                                                                                   ***

A careful study of the text, including its history, along with the supporting statutory context, reveals that unstaffed drop boxes for absentee ballot return are not permitted. Rather, this statute specifies return of absentee ballots through two and only two means: mailing by the voter to the municipal clerk, or personal delivery by the voter to the municipal clerk. And personal delivery to the clerk contemplates a person-to-person exchange between the voter and the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. The two (Wisconsin Elections Commission) memos advising otherwise therefore conflict with the law and are properly void. 

                                                                                   ***

Before diving into the law, I offer two observations. First, the election law statutes we are asked to consider are by no means a model of clarity. Many of the controlling provisions were originally enacted over 100 years ago and have been layered over with numerous amendments since. Reasonable minds might read them differently. Significant questions remain despite our decision in this case, especially as absentee voting has become increasingly common. Although our adjudication of this case will provide some assistance, the public is better served by clear statutes than by clear judicial opinions interpreting unclear statutes. The legislature and governor may wish to consider resolving some of the open questions these statutes present. 

Second, some citizens will cheer this result; others will lament. But the people of Wisconsin must remember that judicial decision-making and politics are different under our constitutional order. Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular. Even so, we must follow the law anyway. To the extent the citizens of Wisconsin wish the law were different, the main remedy is to vote and persuade elected officials to enact different laws. This is the hard work of democracy.

                                                                                   ***
Standing

​Standing is the foundational principle that those who seek to invoke the court's power to remedy a wrong must face a harm which can be remedied by the exercise of judicial power. Some of my colleagues have begun to describe standing in far looser terms. It is a really nice thing to have in a case, they seem to say, but not important at the end of the day. I disagree. We have said standing is not jurisdictional in the same sense as in federal courts and that its parameters are a matter of sound judicial policy. But as Justice Prosser put it, "Judicial policy is not, and has not been, carte blanche for the courts of Wisconsin to weigh in on issues whenever the respective members of the bench find it desirable."

                                                                                   ***

Teigen argues that Wis. Stat. § 5.06 gives voters like him a statutory right to have local election officials in the area where he lives comply with election laws. ...

Teigen has a legal right protected by Wis. Stat. § 5.06 to have local election officials in his area comply with the law. The only question, then, is whether the memos at least threaten to interfere with or impair Teigen's right to have local election officials comply with the law. I conclude they do. 

The two memos challenged in this case provide local election officials advice on absentee ballot return – advice Teigen contends is unlawful. Regardless of whether the memos are themselves binding on local election officials (a question explored further below), they no doubt carry persuasive force with those administering elections. Many local election officials will follow advice offered by WEC, even when that advice is not legally binding. Indeed, the record in this case reveals that many local election officials employed drop boxes consistent with WEC's advice after the memos issued. If that advice is contrary to law, it stands to reason that many local election officials, including those in Teigen's area, are likely to rely on and implement erroneous advice. Applying the plain terms of Wis. Stat. § 227.40(1), the memos Teigen challenges at the very least threaten to interfere with or impair his right to have local election officials comply with the law. ... In this case, the question is whether WEC issued an allegedly unlawful rule or guidance document that makes it likely local election officials will not follow election laws. And on that question, Teigen has sufficiently alleged standing. ...

                                                                                   ***

Yet the majority/lead opinion suggests it creates broad voter standing against any election official or WEC by any elector for nearly any purported violation of any election law. Without tethering the analysis to an on-point text, this analysis is unpersuasive and does not garner the support of four members of this court.

Hagedorn writes that Teigen did not have to file a complaint with WEC before going to court.  

In addition, Wis. Stat. § 227.40(1) expressly opens the courthouse doors to those challenging administrative rules or guidance documents: "A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question." This seems to carve out a particular kind of legal claim – a challenge to rules and guidance documents – and relieves the petitioner of pleading one's case with the agency first. Applying this as written, and in the absence of other contrary arguments, I conclude Teigen was not required to take his case to WEC before seeking judicial relief. ... 

Drop boxes and ballots

In the two memos at issue here, WEC advised clerks that absentee voters could cast their ballots via staffed or unstaffed drop boxes, that drop boxes may be placed at (the) clerk's office or elsewhere, and that individuals other than the voter may deliver the voter's absentee ballot to the clerk. These three positions are inconsistent with Wisconsin's election statutes. The law requires that to return an absentee ballot in person, voters must personally deliver their ballot to the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. Because WEC's memos conflict with these statutory directives, they are invalid.

                                                                                   ***

Wisconsin Stat. § 6.87(4)(b)1 was originally enacted as part of Wisconsin's earliest comprehensive absentee voting law in 1915. Regarding return of a ballot, the law provided: "Said envelope shall be mailed by such voter, by registered mail, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in ​person." This wording, plainly read, suggests both the mailing and the delivery must be done by the voter, and directed to the ballot-issuing officer. 

Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Here's the first one. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. 

And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. 

The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission

Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky

Majority/Lead Opinion: Justice Rebecca Grassl Bradley (52 pages),  joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler; joined in part by Justice Brian Hagedorn

Concurrence: Roggensack (14 pages)

Concurrence: Grassl Bradley (17 pages), joined by Roggensack and Ziegler

Concurrence: Hagedorn (35 pages)

Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.​

Dissent
​
While Grassl Bradley, in her lead opinion, refers to Teigen and Thom as "Wisconsin voters," Walsh Bradley refers to them together simply as "Teigen." Walsh Bradley explains in a footnote: "The majority/lead opinion refers to Teigen and Thom as the "Wisconsin voters" throughout its opinion. This could be misleading to the reader. True enough, Teigen and Thom are voters who live in Wisconsin. But the use of the term could lead the reader to believe that the plaintiffs here represent a wider swath of people than they actually do. Thus, I refer to the two plaintiffs collectively as 'Teigen. ' "

Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it. Such a result, although lamentable, is not a surprise from this court. It has seemingly taken the opportunity to make it harder to vote or to inject confusion into the process whenever it has been presented with the opportunity.

A ballot drop box is a simple and perfectly legal solution to make voting easier, especially in the midst of a global pandemic.

But it is apparently a bridge too far for a majority of this court, which once again rejects a practice that would expand voter participation.

The majority/lead opinion's analysis is flawed in three main ways. It expands the doctrine of standing beyond recognition, is premised on a faulty statutory interpretation, and without justification fans the flames of electoral doubt that threaten our democracy. 

                                                                               ***
Standing

Teigen has suffered an "injury in fact" to his constitutional right to vote, the majority/lead opinion says, merely because he alleges that election law was not followed. In accepting Teigen's standing to bring this suit, it further states: "the failure to follow election laws is a fact which forces everyone . . . to question the legitimacy of election results."

The majority/lead opinion says that Teigen's "rights and privileges as [a] registered voter[]" give him standing to bring this action challenging the statewide administration of elections. Taken to its logical conclusion, the majority/lead opinion indicates that any registered voter would seemingly have standing to challenge any election law. The impact of such a broad conception of voter standing is breathtaking and especially acute at a time of increasing, unfounded challenges to election results and election administrators.

                                                                               ***
Statutory interpretation

The majority/lead opinion's interpretation of Wis. Stat. § 6.87(4)(b)1. ignores an important distinction. Section 6.87(4)(b)1. uses the phrase "municipal clerk." It does not say "municipal clerk's office." 

This is important because elsewhere the Wisconsin Statutes are replete with references to the "office of the municipal clerk," the "office of the clerk," or the "clerk's office." Not only is such an "office" referenced, but it is specified as a place where a delivery or an action takes place. ... 

We also know that a "municipal clerk" under the statutes is distinct from the "office of the municipal clerk," because "municipal clerk" is specifically defined as "the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives." In other words, the "municipal clerk" is a person, and the "office of the municipal clerk" is a location. ...

If the legislature wanted to require return of a ballot to the clerk's office, it certainly could have done so, as it did in the litany of provisions using such language. ...

Can delivery to a drop box constitute delivery "to the municipal clerk?" Absolutely. A drop box is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk. This is true even if the drop box is located somewhere other than within the municipal clerk's office. As stated, the "municipal clerk" in the statutes is a person, and the "office of the municipal clerk" is a location. Applying this principle, there is nothing in the statute that even hints that unstaffed drop boxes are impermissible. Rather, a drop box, which the clerk or the clerk's designee sets up, maintains, and empties, is simply another way to deliver a ballot "to the municipal clerk." The majority/lead opinion's attempt to avoid the statute's plain language fails.

                                                                               ***

On its face, Wis. Stat. § 6.855 (governing alternate absentee ballot sites) sets forth that alternate voting sites "must be a location not only where voters may return absentee ballots, but also a location where voters 'may request and vote absentee ballots.'" Thus, as the majority/lead opinion acknowledges, "[b]allot drop boxes are not alternate absentee ballot sites under (the statute) because a voter can only return the voter's absentee ballot to a drop box, while an alternate site must also allow voters to request and vote absentee at the site." 

The majority/lead opinion reads into (the law) an implication beyond the statute's language. Although the majority/lead opinion correctly acknowledges that (the statute) does not describe drop boxes, it seeks support for its result in the assertion that "[t]he legislature enacted a detailed statutory construct for alternate sites" while at the same time "the details of the drop box scheme are found nowhere in the statutes." This argument falls flat for the same reason the majority/lead opinion's statutory analysis of Stat. § 6.87(4)(b)1 fails: the legislature did not include a detailed scheme for drop boxes in the statutes because it did not need to do so. As analyzed above, (state law) already authorizes them. 

                                                                               ***

State law allows local election officials some discretion on how elections in their communities should be run, Walsh Bradley writes.

Threshold issues

The Democratic Senatorial Campaign Committee challenged the plaintiffs' standing in the case. Only Roggensack and Ziegler joined in Grassl Bradley's reasoning in rejecting the challenge, meaning that her lead opinion does not constitute a binding precedent on the question.

DSCC argues the Wisconsin voters lack standing, asserting they "have not demonstrated 'a personal stake in the outcome of the controversy' separate and apart from the public at large, nor have they shown they have 'suffered or [are] threatened with an injury to an interest that is legally protectable.' " ​We reject this argument because the Wisconsin voters do have a "stake in the outcome" and are "affected by the issues in controversy." 
                                                                                ***

If the right to vote is to have any meaning at all, elections must be conducted according to law. Throughout history, tyrants have claimed electoral victory via elections conducted in violation of governing law. For example, Saddam Hussein was reportedly elected in 2002 by a unanimous vote of all eligible voters in Iraq (11,445,638 people). Examples of such corruption are replete in history. In the 21st century, North Korean leader Kim Jong-un was elected in 2014 with 100% of the vote while his father, Kim Jong-il, previously won 99.9% of the vote. Former President of Cuba, Raul Castro, won 99.4% of the vote in 2008 while Syrian President Bashar al-Assad was elected with 97.6% of the vote in 2007. Even if citizens of such nations are allowed to check a box on a ballot, they possess only a hollow right.* Their rulers derive their power from force and fraud, not the people's consent. By contrast, in Wisconsin elected officials "deriv[e] their just powers from the consent of the governed." 

​The right to vote presupposes the rule of law governs elections. If elections are conducted outside of the law, the people have not conferred their consent on the government. Such elections are unlawful and their results are illegitimate. ...

The Wisconsin voters' injury in fact is substantially more concrete than the "remote" injuries we have recognized as sufficient in the past. The record indicates hundreds of ballot drop boxes have been set up in past elections, prompted by the memos, and thousands of votes have been cast via this unlawful method, thereby directly harming the Wisconsin voters. The illegality of these drop boxes weakens the people's faith that the election produced an outcome reflective of their will. The Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question. 

                                                                                ***

Justice Brian Hagedorn disagrees with our standing analysis, proffering an alternative basis for standing divined from searching the penumbra of Wis. Stat. § 5.06. Although § 5.06 appears nowhere in the complaint and sets forth specific procedures that were never invoked, Justice Hagedorn concludes it nevertheless confers standing on the Wisconsin voters. It can't.

Grassl Bradley, joined by Roggensack and Ziegler, also finds that the two voters did not first have to file their complaint with WEC and that the agency abandoned any sovereign immunity defense.

Although WEC asserted in its answer that sovereign immunity barred "some" of the Wisconsin voters' claims, it did not say which ones. No reasonable judge could view WEC's briefing and answers at oral argument as maintaining a sovereign immunity defense. WEC's attorney even said at oral argument that WEC takes "no position" on the matter. 

*In a footnote, Grassl Bradley writes, "Justice Hagedorn seems to disagree, indicating the right to vote encompasses nothing more than the mere ability to cast a ballot. He fails to recognize that a lawful vote loses its operative effect if the election is not conducted in accordance with the rule of law."

The guts

(Joined by Hagedorn, Roggensack and Ziegler)

WEC's staff may have been trying to make voting as easy as possible during the pandemic, but whatever their motivations, WEC must follow Wisconsin statutes. Good intentions never override the law.

                                                                                ***

Nothing in the statutory language detailing the procedures by which absentee ballots may be cast mentions drop boxes or anything like them. ​

Wisconsin Stat. § 6.87(4)(b)1. provides, in relevant part, that absentee ballots "shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." The prepositional phrase "to the municipal clerk" is key and must be given effect. ... An inanimate object, such as a ballot drop box, cannot be the municipal clerk. At a minimum, accordingly, dropping a ballot into an unattended drop box is not delivery "to the municipal clerk[.]"

State law allows establishment of alternate absentee ballot sites, Grassl Bradley writes.

Ballot drop boxes are not alternate absentee ballot sites because a voter can only return the voter's absentee ballot to a drop box, while an alternate site must also allow voters to request and vote absentee at the site. If a drop box were an alternate ballot site, by the plain language of the statute, "no function related to voting and return of absentee ballots that is to be conducted at the alternate site may be conducted in the office of the municipal clerk or board of election commissioners." 

Existing outside the statutory parameters for voting, drop boxes are a novel creation of executive branch officials, not the legislature. The legislature enacted a detailed statutory construct for alternate sites. In contrast, the details of the drop box scheme are found nowhere in the statutes, but only in memos prepared by WEC staff, who did not cite any statutes whatsoever to support their invention.

Wisconsin Stat. § 6.855 identifies the sites at which in person absentee voting may be accomplished—either "the office of the municipal clerk" or "an alternate site" but not both. "An alternate site" serves as a replacement for "the office of the municipal clerk" rather than an additional site for absentee voting. Wisconsin Stat. § 6.87(4)(b)1. requires the elector to mail the absentee ballot or deliver it in person, "to the municipal clerk," which is defined to include "authorized representatives." This subparagraph contemplates only two ways to vote absentee: by mail and at "the office of the municipal clerk" or "an alternate site" as statutorily described. No third option exists.

                                                                                ***

The defendants contend "to the municipal clerk" encompasses unstaffed drop boxes maintained by the municipal clerk. A hyper-literal interpretation of this prepositional phrase, taken out of context, would permit voters to mail or personally deliver absentee ballots to the personal residence of the municipal clerk or even hand the municipal clerk absentee ballots at the grocery store. "Municipal clerk," however, denotes a public office, held by a public official acting in an official capacity when performing statutory duties such as accepting ballots. The statutes do not authorize the municipal clerk to perform any official duties related to the acceptance of ballots at any location beyond those statutorily prescribed.

The upshot

When ascertaining if a records requester is entitled to attorney's fees as a part of a mandamus action under the state's public records law, a party must "prevail[] in whole or in substantial part," which means the party must obtain a judicially sanctioned change in the parties' legal relationship. With respect to the mandamus action before us, the City properly applied the balancing test when it decided to temporarily withhold access to the draft contract in response to Friends' open records request. Accordingly, regardless of whether Friends may pursue fees after voluntary delivery of the requested record, Friends cannot prevail in its mandamus action and is not entitled to attorney's fees.

Background

Friends of Frame Park, a citizens' group, in October 2017 requested information about the city's plan to bring baseball to Waukesha and to Frame Park. The city rejected a request for a copy of the proposed contract with Big Top Baseball, saying it was still in negotiation and the city wanted to protect its bargaining position. The city said it would release the proposed contract after the Common Council took action on it.

The contract was on the Common Council agenda for Dec. 19, 2017. Friends sued on the day before the meeting for release of the records.

The following evening, the City's Common Council met. It is unclear from the meeting minutes whether, or to what extent, the draft contract was discussed. The minutes note the following with respect to Frame Park: "Citizen speakers registering comments against baseball at Frame Park"; the "City Administrator's Report" included a "Northwoods Baseball League Update"; and an "item for next Common Council Meeting under New Business" was to, "Create an ADHOC Committee for the purpose to address Frame Park and Frame Park issues." 

The city released the requested records on Dec. 20, even though the council had not voted on the contract.

Consistent with its explanation initially denying release, the City explained the documents "are being released now because there is no longer any need to protect the City's negotiating and bargaining position."

Friends then amended its complaint, asking the circuit court to hold that the City improperly withheld the draft contract. In advance of trial, the City filed a motion for summary judgment which the circuit court granted; Friends did not move for summary judgment. ...

Friends appealed, and the Court of Appeals reversed the lower court decision. The city appealed to SCOW.

The guts
​
Four justices agree that to "prevail[] in whole or in substantial part" means the party must obtain a judicially sanctioned change in the parties' legal relationship. Accordingly, a majority of the court adopts this principle. 

This conclusion arguably raises other statutory questions. Prior court of appeals cases have held that a requester could still pursue attorney's fees even if the records have been voluntarily turned over. This conclusion rested on its causation-based theory, however. The concurrence argues that under the proper statutory test we announce today, a mandamus action becomes moot after voluntary compliance, and record requesters have no separate authority to pursue attorney's fees. We save this issue for another day. Even if record requesters can pursue attorney's fees following release of the requested records, an award of fees would not be appropriate here. This is so because in temporarily withholding the draft contract, the City complied with the public records law. Applying the balancing test, the City pointed to the strong public interest in nondisclosure – namely, protecting the City's negotiating and bargaining position and safeguarding the Common Council's prerogative in contract approval. These considerations outweigh the strong public policy in favor of disclosure. Furthermore, the City recognized the balance of interests would shift after the Common Council meeting, and it properly disclosed the draft contract at that time. Therefore, the City did not violate the public records law. And thus, the requester did not and could not prevail in whole or substantial part in this action. Therefore, no judicially sanctioned change in the parties' relationship is appropriate and the requester is not entitled to any attorney's fees. 
                                                                             
                                                                                  ***
Section 19.37 of the state statutes provides that the record requester may be entitled to various damages and fees as a result of the mandamus action. Relevant to this case, the statute contains the following fee-shifting provision: "Except as provided in this paragraph, the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requestor if the requester prevails in whole or in substantial part in any action filed under sub. (1) relating to access to a record or part of a record. ..."  Besides attorney's fees, the law also specifies that the circuit court shall award actual damages if "the authority acted in a willful or intentional manner" and may award punitive damages if the authority "arbitrarily and capriciously denied or delayed response to a request or charged excessive fees."

The fee-shifting provision was comparable to one contained in the federal Freedom of Information Act, Hagedorn said.  A federal appeals court ruled that damages could be awarded if records were released prior to the conclusion of a FOIA case if bringing the case caused the records to be released. In 2001, however, the U.S. Supreme Court rejected that reasoning.

It expressly rejected ... the causation-based interpretation, concluding instead that "the term 'prevailing party' " refers to "one who has been awarded some relief by the court." Congress eventually adopted a law restoring the causation provision. The Wisconsin Legislature has not specifically embraced causation-based awards, Hagedorn said.

When the legislature uses a legal term of art with a broadly accepted meaning – as it has here with "prevails" ... we generally assume the legislature meant the same thing. If the idea that a party could prevail in a lawsuit in the absence of court action was unknown in Wisconsin when this statute was adopted, we should not read that interpretation into the statute now given the absence of any evidence that it was understood to have that meaning when enacted.

A causation or catalyst theory is not a comfortable fit with statutory text that allows recovery of attorney's fees "if the requester prevails in whole or in substantial part in any action."  The better course is to follow the United States Supreme Court's lead and return to a textually-rooted understanding of when a party prevails in a lawsuit. Absent a judicially sanctioned change in the parties' legal relationship, attorney's fees are not recoverable. ...

Without a causation-based theory governing the meaning of prevailing party under the statute, however, it is unclear whether voluntary compliance following the filing of a lawsuit could still allow a requester to pursue fees. We reserve this question for another day. Even if attorney's fees may be awarded after the voluntary production of records, the City here did not violate the law, as explained below. Friends therefore would not be entitled to any judicial relief – that is, it would not prevail in whole or substantial part – even if fees are available in this context. Accordingly, Friends is not entitled to attorney's fees either way.

                                                                                  ***

Invoking the language in Wis. Stat. § 19.85(1)(e) (exemptions to open meetings requirements) the City explained that "the contract [was] still in negotiation with Big Top." Withholding disclosure was important to "protect the City's negotiation and bargaining position" and "the City's ability to negotiate the best deal for the taxpayers." Disclosure "would substantially diminish the City's ability to negotiate different terms the Council may desire for the benefit [of] the City" and "compromise[]" "the City's negotiating and bargaining position." The City further explained that the "draft contract is subject to review, revision, and approval of the Common Council before it can be finalized, and the Common Council [has] not yet had an opportunity to review and discuss the draft contract." The City indicated it would disclose the draft contract after the Common Council had taken action.

The circuit court correctly concluded the reasons set forth in the City's letter supported temporarily withholding the draft contract. Without question, the public interest in matters of municipal spending and development is significant. There is good reason for the public to know how government spends public money. This ensures citizen involvement and accountability for public funds. However, contract negotiation often requires a different calculus. Wisconsin ... law identifies the public interest in protecting a government's "competitive or bargaining" position in adversarial negotiation. It is not uncommon for the state or local municipalities to negotiate certain contracts in private, especially in competitive business environments. ...

Under these circumstances, the City's interest in withholding the draft contract to protect its bargaining position until the Common Council had the opportunity to consider the contract outweighed the public's interest in immediate release. The City properly applied the balancing test and did not violate the public records law by temporarily withholding the draft contract, nor did it delay release of the contract unreasonably. Accordingly, regardless of whether the issue of attorney's fees is moot, Friends is not entitled to attorney's fees because it did not prevail in whole or in substantial part on the merits of its mandamus action.

Concurrence

The court of appeals has repeatedly failed to give the legal term of art in statute its accepted legal meaning. In at least six cases, the court of appeals has instead endorsed the now-defunct "catalyst theory," under which a party may be deemed to have prevailed – even in the absence of favorable relief from a court – if the lawsuit achieved at least some of the party's desired results by causing a voluntary change in the defendant's conduct.

In this case, the court of appeals erred in applying ... precedents, embracing a purposivist and consequentialist approach to statutory interpretation, in derogation of the textualist approach Wisconsin courts are bound to follow.  

I write separately because the majority/lead opinion does not acknowledge this case is moot, obviating any need to address the merits. All records were given to the requester before the circuit court ever rendered a decision. ... In this case, the act requested had already been performed, so neither the circuit court nor the court of appeals nor this court needed to address the merits of Friends' public records claim. Because this case is moot, we need not consider whether Friends is entitled to relief. Without favorable relief, Friends cannot recover attorney fees. Because the majority/lead opinion reaches the merits of this case without any explanation of what possible favorable relief could be granted, I respectfully concur.

After the public records statute damages section was enacted in 1982, the court of appeals adopted the catalyst theory, which conflicts with the longstanding meaning of what it means to prevail in a court case. A "fair reading" of a statute requires adherence to the statute's text as it was understood at the time of the statute's enactment. 

The upshot
​
The Fourth Amendment to the United States Constitution provides in relevant part: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . ." After Valiant M. Green was arrested for operating while intoxicated (OWI), law enforcement obtained a warrant to draw his blood.  Green now argues the facts supporting that warrant were insufficient to find probable cause. We disagree.

Background

Here, the circuit court issued a search warrant to draw Green's blood based on the affidavit of Kenosha Police Officer Mark Poffenberger. The affidavit took the form of a pre-printed document with blank spaces and check-boxes that Officer Poffenberger completed. It stated that around 1:19 p.m. on May 25, 2014, Green "drove or operated a motor vehicle at driveway of [Green's home address]" — the underlined portion being part of the preprinted form, and the remainder Officer Poffenberger's handwritten addition. Several checked boxes provided additional facts. First, Green was arrested for the offense of "Driving or Operating a Motor Vehicle While Impaired as a Second or Subsequent Offense, contrary to chapter 346 Wis.Stats." Second, Green "was observed to drive/operate the vehicle by" both "a police officer" and "a citizen witness," whose name was written in by Officer Poffenberger. A third checked box was labeled "basis for the stop of the arrestee's vehicle was," and Officer Poffenberger supplied "citizen statement" by hand.

The affidavit also described Green's statements and the officer's observations. According to Officer Poffenberger's handwritten note, Green "admitted to drinking alcohol at the house." And Officer Poffenberger checked several boxes noting that when he made contact with Green, he observed a strong odor of intoxicants, red/pink and glassy eyes, an uncooperative attitude, slurred speech, and an unsteady balance. Finally, Officer Poffenberger checked boxes indicating that Green refused to perform field sobriety tests, refused to submit to a preliminary breath test, and was "read the 'Informing the Accused' Statement . . . and has refused to submit to the chemical test requested by the police officer."
​
After the warrant issued, medical staff drew Green's blood. It revealed a blood alcohol level of 0.214 g/100 mL, an amount well above the legal limit. The State charged Green with fourth offense OWI, fourth offense operating with a prohibited alcohol concentration (PAC), and resisting an officer. Green moved to suppress the results of the blood draw on the grounds that the warrant was deficient. The circuit court denied the motion. It concluded that even if the court erroneously issued the warrant (the court thought it had), the error did not merit suppression. At trial, the jury found Green guilty of OWI and PAC. The circuit court granted the State's motion to dismiss the OWI count and entered judgment against Green on the PAC count. The court of appeals summarily affirmed, holding the circuit court properly issued the warrant in the first place. We granted Green's petition for review.

The guts

When we examine whether a warrant issued with probable cause, we review the record that was before the warrant-issuing judge. Specifically, we look at the affidavits supporting the warrant application and all reasonable inferences that may be drawn from the facts presented. However, our review is not independent; we defer to the warrant-issuing judge's determination "unless the defendant establishes that the facts are clearly insufficient to support a probable cause finding." Probable cause exists where, after examining all the facts and inferences drawn from the affidavits, "there is a fair probability that contraband or evidence of a crime will be found in a particular place."
​
                                                                                     ***

Before us, Green continues to argue the warrant was issued without probable cause. He focuses not on the indicia of intoxication, but the location where he operated his vehicle. Green's main argument is that the handwritten word "driveway" on the form alleges only that he drove within the confines of his driveway. This matters because the statute criminalizing OWI and PAC offenses — Wis. Stat. § 346.63(1)(a), (1)(b) — does "not apply to private parking areas at . . . single-family residences." Rather, the laws apply "upon highways" and "premises held out to the public for use of their motor vehicles." Green's driveway is not a highway nor is it a (sic) held out to the public for motor vehicle use. Thus, because Green would not have committed an OWI or PAC by operating his vehicle on his driveway, Green contends the affidavit alleged only noncriminal activity and fell short of showing probable cause that any criminal activity occurred.

Green's argument fails, however, because reasonable inferences from the affidavit support finding probable cause that Green drove on a public road. And that's all that is needed. "Probable cause is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior." So when we examine a warrant application, the "test is not whether the inference drawn is the only reasonable inference." Rather, the "test is whether the inference drawn is a reasonable one." This warrant passes the test.

Following the pre-printed word "at" is space for a location, which Officer Poffenberger identified as the driveway of Green's residential address. It is reasonable to read the officer's addition of the phrase "driveway of [residential address]" to refer to a specific location on the road, much like an intersection would provide a similarly specific location. The affidavit does not say Green's driving occurred merely in his driveway, but at his driveway — a location that can reasonably be read to refer to a position on the road adjacent to his driveway. Other portions of the affidavit are consistent with this reading. The affidavit points to two witnesses who observed Green "drive/operate the vehicle": a police officer and a named citizen witness. And the stop was occasioned by a citizen statement; someone besides the officer saw something that occasioned a call to the police. Viewing the entire affidavit together, a judge could reasonably infer that Green operated his vehicle on the road while intoxicated, not solely in his driveway. This "is not the only inference that can be drawn, but it is certainly a reasonable one."
​
Examining the totality of the facts laid out in the affidavit, we conclude Green has not met his burden to show the affidavit was clearly insufficient to support a finding of probable cause. Accordingly, Green's challenge to the warrant and motion to suppress the evidence obtained thereby fails.

The dissent

Confronted with the absence of probable cause here, the majority contrives to manufacture its presence. The affidavit in support of the warrant said that Green drove his car while intoxicated "at his driveway." But this isn't a crime. The law requires that one drive on a highway, and Green's private driveway obviously does not meet that requirement.
​
In retrospect, even the warrant-issuing judge in this case acknowledged that the facts alleged in the affidavit in support of the search warrant did not amount to probable cause. He recognized that "I did make an error in not frankly asking the officer" for "more data."

                                                                                   ***

​First, the majority errs by drawing several inferences from an affidavit that does not allege a crime has actually been committed. Wisconsin's OWI laws apply only to highways and "premises held out to the public for use of their motor vehicles." Such laws explicitly do not apply to "private parking areas" at single- family residences.

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Despite the fact that the OWI statutes apply only on highways and not private roads or driveways, the majority insists that the handwritten "driveway" could "refer to a specific location on the road, much like an intersection would provide a similarly specific location." But the affidavit did not say "at the intersection" or "on the road adjacent to the driveway." The majority would have us believe that "at the driveway" does not mean what it says. How can it be reasonable to infer that a crime has been committed when the only reasonable inference that can be drawn from the affidavit is that Green was operating a vehicle at his own driveway?

The upshot

We conclude that because the State's significant pretrial interests in bringing a defendant who meets each one of the factors set out in Sell v. United States to competency for trial and providing timely justice to victims outweigh upholding a defendant's liberty interest in refusing involuntary medication at the pretrial stage of criminal proceedings . . . (the) automatic stay of involuntary medication orders pending appeal does not apply to pretrial proceedings. ​

Background

On December 27, 2019, the State filed a criminal complaint charging Green with first-degree intentional homicide with use of a dangerous weapon. Pretrial, defense counsel raised reason to doubt Green's competency to proceed. The circuit court ordered a competency examination, which was completed by Dr. Craig Schoenecker and filed with the court. At the competency hearing, Dr. Schoenecker testified that Green was not competent but could be restored to competency through anti-psychotic-type medication within the 12-month statutory timeframe. ...

After the hearing, the circuit court found Green incompetent. Accordingly, the court entered an order of commitment for treatment with the involuntary administration of medication. Following this determination, Green appealed and filed an emergency motion for stay of the involuntary medication order pending appeal, which was automatically granted by the circuit court pursuant to our decision in (State v) Scott. 

The State responded with motions to lift the automatic stay and to toll (pause) the statutory time period to bring a defendant to competence, both of which were granted by the circuit court. Green appealed. He moved for relief pending appeal, which included reinstatement of the temporary stay. The court of appeals reversed the circuit court's involuntary medication order and its order lifting the automatic stay of involuntary medication. In addition, the court of appeals determined that the circuit court lacked authority to toll the statutory time period to bring Green to competency. We granted the State's petition for review. 

Upon granting review, the parties submitted briefs addressing the circuit court's ability to toll the limits on the maximum length of commitment for competency restoration. However, following oral argument, additional briefing was ordered to answer whether the automatic stay required by Scott applied to pretrial proceedings. We determine: (1) whether Scott's automatic stay applies to pretrial competency proceedings and (2) whether Wis. Stat. § 971.14(5)(a)1. permits tolling the 12-month limitation provided to restore a defendant to competency. ​

The guts
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If a defendant is found to be incompetent, a court may allow the government to confine and involuntarily medicate the defendant if certain criteria are met. 

In Scott, the court ruled that involuntary medication orders are subject to an automatic stay pending appeal to preserve the defendant's 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs.'

In Sell, the Supreme Court set forth criteria for determining when the government may be allowed to involuntarily medicate a defendant for the purpose of making the defendant competent to stand trial.  In short summation, a court must find that: (1) there are important government interests at stake, including bringing a defendant to trial for a serious crime; (2) involuntary medication will significantly further those state interests; (3) involuntary medication is substantially likely to render the defendant competent to stand trial; and (4) administration of the drugs is in the patient's best medical interest in light of his medical condition. However, postconviction circumstances that call for governmental involuntary medication are "rare."

As with (a prior defendant's) concern in a postconviction context, significant, competing interests underlie our consideration of the involuntary administration of medication in a pretrial context. The defendant holds the same substantial liberty interest in refusing involuntary medication, regardless of the stage of proceedings. Once a defendant is subject to involuntary medication, irreparable harm could be done. On the other hand, the State has a significant interest in bringing a defendant to trial. The State's power "to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace." Further, unlike postconviction proceedings, in pretrial proceedings, the State has yet to employ a significant portion of the criminal justice process to try to achieve justice and uphold the considerable victim and community interests at stake. For example, victims are guaranteed a right to "justice and due process," as well as a "timely disposition of the case, free from unreasonable delay." Wis. Const. art. I, § 9m(2)(d). The "unreasonable delay" phrase is part of the "Marsy's Law" amendment to the state constitution approved by voters last year. And while treatment to competency is not always necessary for postconviction proceedings, the State is required to bring a defendant to competency before a defendant can be tried. 

The terms of (state law) limit the treatment time for an incompetent defendant to "a period not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less." As soon as a defendant is in custody for treatment, the statutory time during which he or she may be held before trial begins. 

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If the State is unsuccessful at restoring competency for trial, the likelihood of which is increased if treatment is prevented by the automatic stay of Scott, a defendant must be discharged from commitment and released unless civil commitment proceedings are commenced. . . .

Since our decision in Scott, the State has been trapped on both ends of the pretrial competency process. On one hand, (statute) permits a defendant to be held for 12 months to be brought to competence. On the other hand, Scott's automatic stay of the involuntary medication order keeps the State from starting the treatment that has been ordered by a court. While the State was given some leeway in the form of a modified Gudenschwager test, this is a high burden, and when employed, can use up the entire 12-month maximum commitment period that is permitted for treatment. And, if the State is not able to satisfy this Gudenschwager test and the time during which treatment can be required expires, the State is without recourse for prosecution. This is an unexpected consequence of the automatic stay that we created in Scott.