By Margo Kirchner
A bill before the Legislature would eliminate the need to find a notary public before filing certain court documents.
Under the bill, Senate Bill 29/Assembly Bill 27, a person could submit a court document signed under penalty of perjury, and the document would have the same effect as an affidavit sworn in front of a notary public.
The bill aligns Wisconsin law with a federal law in place since 1976 and with laws in other states.
The Senate has already passed the bill. It awaits action by the Assembly’s State Affairs Committee.
In testimony to the Senate Judiciary and Public Safety Committee in support of the bill, Attorney Thomas Shriner of Foley & Lardner said the bill will create an “inexpensive and convenient” means for submitting evidence in Wisconsin courts and agencies. Shriner testified on behalf of the Wisconsin Judicial Council, which recommended the change.
The Uniform Law Commission, a nonprofit and nonpartisan organization advocating for consistent laws across states, also supported the bill before the Senate.
The bill, if passed, will simplify submission of evidence for summary judgment motions and other points in civil litigation when affidavits are used as evidence. Attorneys will not have to coordinate getting their clients’ signatures notarized in the midst of meeting a motion deadline, for instance.
A person submitting evidence to a court or agency without a notary’s signature and stamp would simply need to write and sign at the end of a document: “I declare under penalty of false swearing under the law of Wisconsin that the foregoing is true and correct.”
Attorney Sarah Zylstra of the Boardman Clark law firm told Wisconsin Justice Initiative of the proposed rule's advantages for civil litigation attorneys and clients. The use of the rule in federal courts has shown that sworn declarations “are just as effective as affidavits, but with the benefit of being less costly and much more convenient for witnesses and attorneys,” she said. “It is not always convenient to find a notary to notarize an affidavit, and many notaries charge for their services.”
The rule “is particularly important for those in rural areas, those who have transportation challenges, and when documents need to be signed quickly, on an emergency basis,” she said.
The bill should make procedures simpler for litigants who represent themselves, too. Having documents notarized is one of many steps that self-represented people must accomplish to file court documents.
Mary Ferwerda, executive director of the Milwaukee Justice Center, said in response to questions from Wisconsin Justice Initiative that getting a signature notarized is challenging for many people.
“Most banks have a notary public on staff, but not everyone possesses bank accounts, and notary public services may not be available to those without an account. And, while courthouses do have notaries public, many people throughout the state do not live adjacent to a courthouse,” she said. Those who lack transportation or live with disabilities that limit their ability to travel are especially affected, she noted.
Plus, when notaries charge for their services, “even nominal sums can be difficult to pay,” said Ferwerda. (Ferwerda takes no position on the pending bill.)
If the bill passes, oaths of office, depositions, and real estate documents will still require a sworn statement before a notary.
Under Wisconsin law in place since 2009, a declarant who is located outside of the United States is allowed to sign documents under penalty of perjury without finding a notary. The bill would mean that declarants within the United States may do so as well.
The bill was introduced by Sens. Van Wanggaard (R-Racine), Joan Ballweg (R-Markesan), and Eric Wimberger (R-Green Bay), and Representatives Ron Tusler (R-Harrison), Nik Rettinger (R-Mukwonago), Jeffrey Mursau (R-Crivitz), Elijah Behnke (R-Oconto) and Marisabel Cabrera (D-Milwaukee). Representative Darrin Madison (D-Milwaukee) has since signed on as another cosponsor.
The change is part of a move toward uniform laws across the states and is known as the “Uniform Unsworn Declarations Act.”
By Gretchen Schuldt
The state must pay for a Kenosha county-built or designated residential facility for people on supervised release from civil commitments, the state Court of Appeals ruled last week.
The three-judge panel found the state made "a critical and pervasive error" in its brief by mischaracterizing Circuit Judge Bruce E. Schroeder's order "as requiring the State to 'buy or build a residence to house sex offenders.'”
The District II appellate judges were Mark D. Gundrum, Shelley A. Grogan, and Maria S. Lazar.
"The court’s orders did no such things," their unsigned opinion said. "They clearly identified Kenosha County as the entity responsible for all facets of the construction or placement of the contemplated structure .... The state's obligation under the orders was merely to pay whatever expenses the county incurred in construction or placement."
Schroeder issued his order in December 2021, after the county was unable to find appropriate housing for two men – Dale H. Peshek and Levin LeDoux – found to be suitable candidates for supervised release from their civil commitments as sexually violent persons.
The order was straightforward:
IT IS HEREBY ORDERED that the County of Kenosha is to construct or place a structure on the grounds of the Kenosha County Detention Center sufficient to meet their requirements under § 980.08(4)(dm), Wis. Stats., to identify an appropriate residential option.
IT IS FURTHER ORDERED that all expenses related to the construction or placement shall be borne by the State of Wisconsin and the County is to report back to the Court within 120 days of the date of this order as to the status of the construction or placement.
The state argued on appeal that it was protected through sovereign immunity, the idea that the state can decide when it can be sued for damages.
"The State’s sovereign immunity arguments cannot withstand scrutiny," the panel wrote.
The issue is not about money damages; it is about the state's statutory responsibility to treat sex offenders, the judges said.
"(I)t should come as no surprise to the State that such a commitment carries with it financial obligations which it may not dodge under the guise of sovereign immunity," the panel said. In addition, the judges said, the case does not involve a lawsuit against the state; instead, it is a part of the two men's commitment proceedings.
The appeals court also rejected the state's argument that a 2017 change in the commitment law shifted the responsibility for identifying residential placement to counties.
While that is correct, "the State fails to explain why this legislative change to the manner of locating a residence for persons found eligible for supervised release matters to the narrow funding question at issue in this appeal. ...DHS must pay for any programs or facilities necessary to place a person on supervised release."
The state's contention that there is inadequate funding to pay for the housing also was rejected by the panel.
The state Supreme Court previously has ruled that "circuit courts could order the creation of facilities necessary for supervised release — adding that the necessary facilities could be ordered 'regardless of cost,'" the panel said.
"We fail to see why those budgetary complications should control here," it said.
It took 321 days to finish an initial appearance: appeals court orders dismissal of charges
By Gretchen Schuldt
Brown County must dismiss felony charges against a man who sat in jail while completion of his initial court appearance dragged on for 321 days because the State Public Defender's office could not find a lawyer to represent him, the state Court of Appeals ruled last week.
Christopher S. Butler's preliminary hearing was held 21 days later even though state law requires it to be held within 10 days after the initial appearance.
When adjourning an initial appearance "solely to locate counsel for a defendant ... circuit courts and court commissioners must make factual findings on the record considering the justification for the adjournment, the possible prejudice to the defendant, and, where applicable, public interest," Appellate Judge Gregory B. Gill Jr. wrote for the three-member District III Court of Appeals panel. "The record before us lacks any evidence of such considerations."
He was joined in his decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark.
The charges can be dismissed without prejudice, meaning they can be refiled.
Butler was arrested by Green Bay police after they received a report that he molested two young girls. He was arrested and placed on a probation hold. He was charged on Oct. 23, 2019, with three felonies, all as repeaters: two counts of repeated sexual assault of the same child and one count of exposing genitals to a child.
Butler's initial appearance began that day. A court commissioner, identified in online court records as Paul E. Burke, set bail at $75,000 and said he would schedule a continuation of the hearing.
"At the time, the Brown County Circuit Court’s policy was to adjourn a defendant’s initial appearance until counsel was appointed to represent the defendant," Gill wrote.
Butler remained behind bars. He had six adjourned initial appearances from Oct. 23, 2019, to April 20, 2020.
"At each hearing, an SPD attorney appeared with Butler, and he or she informed a court commissioner that the SPD was still attempting to find an attorney to represent Butler," Gill wrote.
The State Public Defender's office appoints private bar attorneys to handle cases of indigent defendants when SPD staff attorneys can't handle the cases themselves, due to things like workload issues or conflicts of interest. SPD pays the private lawyers $70 per hour, well below the going rate for lawyers. The Legislature's Joint Finance Committee has recommended increasing the pay to $100 per hour.
In February, 2020, Butler had a probation revocation hearing and an administrative judge found in his favor. His probation was not revoked. The parole hold was lifted, but Butler could not make bond and remained in jail.
In March, 2020, Butler filed a speedy trial demand on his own behalf. He argued that the court lost personal jurisdiction (a court's power over a party to a case) because his preliminary hearing was not held in a timely manner.
"The motion was never formally held or ruled on by a court commissioner or the circuit court," Gill said.
A lawyer accepted an SPD appointment to handle the case, but five days later withdrew, saying she did not know whether she could meet Butler's speedy trial demand. The commissioner warned Butler that it could take a long time to find a lawyer for him.
There were more adjourned initial appearances. Butler's bail dropped to $50,000 in May, 2020, but he remained in jail. He filed another pro se motion arguing his constitutional rights were being violated.
The prosecution filed a letter with the court that June expressing concern about how long Butler's case was on hold. There had been 12 court appearances in eight months, the state said.
In July, Brown County Circuit Judge Beau G. Liegeois held a hearing and said he would " 'troubleshoot getting an attorney appointed faster,' " Gill wrote. "The court then set another adjourned initial appearance for later that month."
At that hearing, before a court commissioner, Butler asked how long it would take to find a lawyer.
"The court commissioner (Chad Resar, per online records) responded, '[T]he only thing we can do is just see what will happen, if anyone is willing to appoint you an attorney,' " Gill said.
More hearings were held on July 16, July 23, and July 30. A lawyer finally was appointed on Aug. 13, 2020.
Butler's initial appearance was completed Sept. 8 – 321 days after he was charged. A preliminary hearing was held Sept. 29, and a court commissioner bound Butler over for trial. Butler pleaded not guilty and filed a motion to dismiss because the state failed to hold a preliminary hearing within 10 days of his initial appearance, as required by law. Liegeois denied the motion; Butler appealed.
The state argued on appeal that Butler forfeited his personal jurisdiction challenges because he did not object after his initial appearance was completed, at his preliminary hearing, or when he was arraigned.
The appeals panel rejected that contention. "Butler’s objections to personal jurisdiction, which occurred prior to the initial appearance being completed, were more than sufficient to give 'both parties and the circuit court notice of the issue and a fair opportunity to address the objection,' " Gill wrote.
A court does have inherent authority to adjourn initial appearances, as they do preliminary hearings, but must consider the justification for the relief, the possible prejudice to the defendant, and public interest, he said.
"Particularly troubling is that, at the time of Butler’s pretrial detention, the blanket policy of the Brown County Circuit Court was to continuously adjourn initial appearances until counsel was located," Gill wrote.
In addition, he said, "the court did not consider appointing an attorney at county expense, which 'might prove more compelling to private attorneys,' as they would not have to go through the SPD’s qualification process and would receive greater compensation."
Neither the judge nor the court commissioners considered the total delay in Butler's case, he said.
"Additionally, it is clear from the record that the circuit court or court commissioners failed to consider 'the possible prejudice' to Butler when deciding to continuously adjourn his initial appearance," Gill wrote. "For example, the court did not consider the potential prejudice to Butler from 'further evidence gathering by police while incarcerated and the possibility that the delay could compromise the defense or result in lost evidence.' "
The state erroneously argued that Butler "terminated" his first appointed lawyer, the panel said. That lawyer withdrew because she could not meet the speedy trial deadline and provide competent counsel. Butler did not invite the error, Gill said.
"To hold otherwise would require Butler to choose between two constitutional rights: the right to a speedy trial and the right to representation by counsel," he said.
The state also was wrong in its argument that any rights violations were harmless errors because Butler was on probation hold and then was bound over for trial, he wrote.
"We disagree that the violations in this case did not affect Butler’s substantial rights," he said. "The purpose behind conducting a timely initial appearance and a timely preliminary hearing would be frustrated if the state was allowed to simply argue that probable cause existed based upon a finding made months or years later – in this case, 342 days – without any protection to the accused beforehand."
By Gretchen Schuldt
The Milwaukee County Sheriff's Department's policy of routinely deleting interrogation recordings after 60 days is unreasonable and "demonstrates bad faith through official animus," the state Court of Appeals said this week.
The three-judge panel for the District I appellate court affirmed Milwaukee County Circuit Judge Danielle L. Shelton's ruling suppressing Robert Lee Banks' confession to cocaine possession.
The panel included Appellate Judges William W. Brash III, M. Joseph Donald, and Maxine A. White.
"Although we may hope that all cases flow smoothly through the justice system in time for a law enforcement officer to retrieve a recording in under sixty days, this evidence retention policy is unreasonably short," the panel said in an unsigned opinion.
Banks was the passenger in a car stopped by a sheriff's deputy for improperly passing a car on the right. Neither Banks nor the driver had a valid driver's license, so the deputy decided the vehicle should be towed.
During a consensual search of the car, the deputy found a 9mm handgun. Both Banks and the driver were convicted felons and the deputy arrested them. During the subsequent personal search, the deputy found 2.53 grams of cocaine on Banks. The deputy also found more drugs in the car.
Banks was read his rights and, during a recorded interview, admitted to possessing the cocaine found on him. Banks was charged with possession of cocaine as a second or subsequent offense.
Banks sought the video recording during discovery and the deputy eventually "informed the state that the videos were unavailable," the panel said. The deputy said he was unaware that the video would be deleted in 60 days unless he exported it.
Banks sought dismissal of the case based on the destruction of evidence. He alleged the written summary of the interview was inaccurate and incomplete and the destruction of the video meant he could not use it to dispute the Sheriff's Department's version of events.
The state opposed the motion, arguing the there was nothing to show the deputy knew of anything in the video that could potentially help Banks and deliberately tried to hide it.
"The State asserted there was no bad faith, and at worst, it was negligent to not preserve the video recordings," the panel said.
Shelton "concluded that while Banks had not shown 'that law enforcement deliberately attempted to suppress' the video recordings, there was a 'concession by the state of a policy that allows for the automatic purging of this type of evidence [which was] a clear display of official animus toward a defendant’s due process rights,' ” the panel said.
Shelton granted Banks’ motion to exclude the deputy's testimony about the interrogation interview.
The panel in affirming the decision, found the recordings were potentially exculpatory. While Banks did not show an intent by the state to deprive Banks of helpful evidence, state law requires preservation of adult felony custodial interviews, the panel said.
"The statute does not contain a preservation requirement, but it would be illogical to compel the state to record custodial interviews without providing a means for defendants and the state to access that information," the judges said.
In addition, they said, the recording requirement leads to the reasonable inference that "the interviews themselves would be accessible during criminal investigations and prosecutions" and a policy that inhibits that access "defeats that purpose."
Joint Finance Committee approves pay increases for public defenders and prosecutors
By Alexandria Staubach
The Legislature’s Joint Finance Committee unanimously passed a motion on the budget to include significant pay increases for public defenders and prosecutors across Wisconsin, ensuring pay parity between the two positions.
The measure ensures a starting wage of $36/hour for public defenders and prosecutors, adds positions to both offices, provides state funding for some roles currently funded by federal pandemic aid expiring in 2024, and eliminates pay progression salary caps.
The motion additionally increases the rate at which private bar attorneys are compensated to take on public defender cases. Attorneys’ rates will increase from $70/hour to $100/hour for legal work and from $25/hour to $50/hour for travel.
The number of attorneys qualified to take such cases in Wisconsin declined 17.9% from 2019 to August 2022 according to a recent report by the Wisconsin Policy Forum.
The committee met at the State Capitol on Tuesday.
State Public Defender Kelli Thompson, at a press conference with Republican lawmakers after the hearing, said the measure represented a “historic investment” in the criminal justice system.
Prosecutors agreed that the funds would ensure both offices are better resourced to result in more just outcomes for Wisconsinites.
All agreed that the measure would enhance the ability of each office to attract and retain talent and fill the many vacant positions throughout the state. Filling those positions is needed to combat the immense backlog of cases created by slowdowns resulting from the COVID-19 pandemic, they said.
The plan comes in the wake of a January 2023 warning by the State Bar of Wisconsin cautioning that underfunding presents a “constitutional crisis” and the resignation of Dodge County’s district attorney over his inability to retain prosecutors.
Wisconsin Supreme Court upends century-old law and greenlights broad Legislative power to mislead voters on ballot questions
The Wisconsin Supreme Court today upheld the 2020 victims’ rights constitutional amendment. In doing so, the court tossed out a standard for assessing constitutional questions in place since 1925 and created a new standard never argued by the parties.
The majority decision and two concurrences used more ink on debates about how to interpret the constitution and the place of originalism—a theory of constitutional interpretation aimed at discerning the intent of a provision at the time it was adopted—than on the arguments raised by the parties in the case before it.
Justice Brian Hagedorn wrote the majority opinion, joined by Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Grassl Bradley. Hagedorn also wrote a concurrence to his own majority opinion. Grassl Bradley wrote a concurring opinion, joined by Ziegler and Roggensack. Justice Rebecca Dallet wrote a concurring opinion, joined by Justice Jill Karofsky.
Justice Ann Walsh Bradley dissented.
No justice denied that the victims' rights amendment diminished the rights of an accused under the state constitution. In her dissent, Walsh Bradley expressly noted that it did.
The state defendants, who filed the appeal, never raised any question about the applicable legal standard in their briefs or at oral argument. As noted by Walsh Bradley in her concurrence, they confirmed at oral argument that they were not asking the court to overturn any prior decision.
The precedent at issue was the Supreme Court's 1925 decision in State ex rel. Ekern v. Zimmerman. The parties argued their case in the trial court and appellate briefs under the language of Ekern and another case from 1953.
The Supreme Court never asked the parties to re-brief the appeal to address whether the standard in Ekern should be rejected, what a new test might be, and how the 2020 ballot question fared against the new standard.
Nevertheless, the majority threw out the Ekern test as unsupported by the text of the constitution and its original meaning. The constitution requires only that an amendment be “submitted” to the people without “any explicit obligations regarding form or substance,” Hagedorn wrote. “The text simply requires that the people must have the opportunity to ratify or reject a proposed amendment.” He pointed to early ballot questions from 1850s and 1860s that asked voters merely whether they were voting for or against amending the constitution, without any indication of the amendment’s contents at all.
The Wisconsin Supreme Court in Ekern had stated that a constitutional amendment question presented to voters “must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” and that the “essential criterion” is “an intelligent and comprehensive submission to the people, so that the latter may be fully informed on the subject upon which they are required to exercise a franchise.”
After tossing any standard from Ekern, the court adopted its new standard: a ballot question is invalid “only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment.”
Telling voters in the question that crime victims and those accused of crime would have rights protected “with equal force,” while the amendment actually provides that crime victims’ rights are protected “no less vigorous(ly)” than an accused’s was not “fundamentally counterfactual,” said the court. WJI had argued that “equal to” and “equal or greater than” were not equivalent.
Failing to tell voters that the amendment deleted a sentence of the constitution ensuring that victims’ rights provisions in the constitution or state statutes would not limit any right of an accused, while diverting voters with a phrase indicating that federal constitutional rights were not impacted by the amendment, did not rise to the level of a fundamentally counterfactual question, said the court.
“(T)he issue is not whether the amendment was explained, but whether it was ‘submitted’ to the people. Nothing in the constitution requires that all components be presented in the ballot question. The constitution leaves the level of detail required to the Legislature, which may impose more or less requirements on itself,” Hagedorn wrote.
The ballot question need not under the constitution present any kind of description of the amendment’s substance to voters at all, he wrote.
Grassl Bradley in her concurrence included significant disagreement with Dallet over constitutional interpretation.
She also opined that voters are expected to review in advance and educate themselves about proposed constitutional amendments. “By analogy, a ballot for President of the United States does not describe the candidates or their platforms. Voters are trusted to inform themselves,” she wrote.
Dallet and Karofsky would have retained the Ekern test, but found that the ballot question satisfied it.
Walsh Bradley would have retained the Ekern test, and she agreed with WJI and the four individual plaintiffs that under Ekern the 2020 ballot question was invalid.
She agreed that the provisions of the vicitms’ rights amendment “do, in fact, decrease the rights afforded to criminal defendants,” and remarked on the majority’s failure to recognize it.
“From the ballot question only, voters would have no idea that the proposed amendment diminishes the rights of criminal defendants in addition to bolstering the rights of crime victims. In my view, the diminution of a defendant’s rights previously protected by law, constitutes an ‘essential’ element of the amendment,” she wrote.
Walsh Bradley noted that the Ekern test furthered the aims of democracy: “Making sure that a ballot question includes ‘every essential’ of an amendment ensures that the public is informed and can ‘vote intelligently.’ This is critical to maintaining a democracy.”
The majority’s test “risks giving the Legislature carte blanche in crafting ballot questions,” while Ekern provided a safeguard for the public against being misled, she wrote.
“(R)ather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party. Instead of applying the test established in Ekern, the majority conjures its own test, never before stated, much less applied,” she wrote. “In addition to being created by the majority from whole cloth, this new test is unnecessary for the simple reason that we already have a test from Ekern.”
Walsh Bradley recognized that the new test would be “news to the parties here, who both argued their positions in terms of the ‘every essential’ framework Ekern sets forth.”
Victims' rights amendment stands
The 2020 crime victims’ amendment to the Wisconsin Constitution stands. The Wisconsin Supreme Court has rejected Wisconsin Justice Initiative’s challenge to the amendment.
WJI challenged the amendment, known as "Marsy's Law," on the grounds that the question put to voters for approval on the April 2020 ballot failed to properly inform them of the amendment’s contents and, in fact, misled them about the elimination of state-law rights of those accused of crimes. In addition, WJI argued, more than one ballot question was needed because the amendment had multiple parts, WJI argued.
The Wisconsin Supreme Court disagreed, through a majority decision and multiple concurrences. Justice Brian Hagedorn wrote on behalf of the court. Justice Ann Walsh Bradley dissented. (Details on the decision to follow in a separate blog post.)
Attorney Dennis Grzezinski, representing the plaintiffs, responded to the decision. “The trial court, in a careful and well-reasoned decision, had found the ballot question to be inadequate to inform Wisconsin voters of the contents of the amendment, and we were hopeful that that decision would be affirmed by the Supreme Court,” he said. “WJI and the individual plaintiffs are disappointed by the Supreme Court’s decision.”
WJI and four individual plaintiffs brought the case in December 2019 and won at the trial-court level. In November 2020, Dane County Circuit Court Judge Frank D. Remington declared that the April 2020 ballot question used to pass what is known as “Marsy’s Law” failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject, in violation of constitutional requirements. Remington stayed his decision pending appeal, so the changes went into effect.
Attorney General Josh Kaul appealed Remington’s decision to District III of the Wisconsin Court of Appeals, located in Wausau. Kaul appealed on behalf of himself, the Wisconsin Elections Commission, its chair, and then-Secretary of State Douglas LaFollette.
The case skipped from the Court of Appeals to the Wisconsin Supreme Court on certification by the District III panel of judges. In certifying the appeal, the court of appeals remarked that the case involved “significant questions of state constitutional law, the resolution of which will have a sweeping effect on our criminal justice institutions and those operating within them, including victims, defendants, prosecutors, defense attorneys, law enforcement officials, and our courts.”
The Supreme Court heard oral argument on September 6, 2022, and issued its decision on May 16, 2023.
“WJI agrees with Justice Ann Walsh Bradley's dissent,” said WJI executive director Margo Kirchner. “The Supreme Court has given the Legislature permission to frame and word referendum questions that leave out important information for voters and even mislead them. The Wisconsin Constitution is the foundation of our state’s laws; changes to it should not occur on the basis of insufficient and misleading ballot questions.”
WJI is disappointed with the outcome, but also with how the majority reached it, said Kirchner. The court decided an issue that the parties never argued in the trial court or on appeal. The court threw out the legal standard from a century-old case, which the state defendants did not challenge, and created a new standard. The parties were not asked to re-brief the case under the new standard.
During the three years the victims' rights amendment has been in effect, it has created significant challenges for criminal courts and their participants, said WJI president Craig Johnson, a criminal defense attorney and another plaintiff in the case.
"Unfortunately, the Court's decision does not fully recognize the chaos and confusion that this amendment has ushered into the day-to-day workings of our criminal courts,” said Johnson. “The amendment is a story of arguably good intentions that produced confusing and unanticipated results.”
“Further appeals can be expected, as various aspects of Marsy's Law are challenged in trial courts,” said Johnson. “I don't think we've heard the final verdict on Marsy's Law."
In addition to WJI and Johnson, plaintiffs in the case included criminal defense attorney Jerome Buting, attorney Jacqueline Boynton, and former Wisconsin Sen. Fred Risser.
Gov. Evers this week signed bills imposing harsher sentences for reckless driving and carjacking.
“Reckless driving and other dangerous behaviors are putting our kids, families, and communities at risk all across our state, and we must do more at the state level to address dangerous behavior on our roads,” he said in a press release.
Senate Bill 76, now Wisconsin Act 10, increases the maximum penalty for carjacking from 40 years in prison to 60 years in prison. It also recognizes and defines carjacking as a separate crime.
Assembly Bill 55, now Wisconsin Act 9, increases penalties for several driving-related offenses.
WJI has written about both measures previously, here and here.
Evers also complained that the Joint Finance Committee stripped some traffic-related items from his proposed state budget. Those measures, he said, included:
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: Allen Gahl v. Aurora Health Care Inc.
Majority: Justice Ann Walsh Bradley (13 pages), joined by Justices Rebecca F. Dallet, Brian Hagedorn, Jill J. Karofsky, Patience D. Roggensack, and Annette K. Ziegler
Dissent: Justice Rebecca Grassl Bradley (41 pages, plus a 25-page appendix)
The petitioner, Allen Gahl, who holds power of attorney for his uncle, John Zingsheim, seeks review of a published decision of the court of appeals reversing the circuit court's issuance of an injunction. That injunction compelled Aurora Health Care, Inc., to administer a certain medical treatment to Zingsheim. The court of appeals determined that Gahl's claim must fail because he did not identify a source of law that (1) would give a patient or a patient's agent the right to force a health care provider to administer a treatment the health care provider concludes is below the standard of care, or (2) could compel Aurora to put an outside provider that would provide such care through its credentialing process.
We conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim. Accordingly, we affirm the decision of the court of appeals.
WJI has covered this topic before. First, when the Court of Appeals decision came down, and again in advance of the SCOW arguments.
Gahl holds health care power of attorney for his uncle, Zingsheim. At the time this case was filed, on October 7, 2021, Zingsheim was a patient in Aurora's care after testing positive for COVID-19. Zingsheim eventually recovered and was released.
Through personal research, Gahl became aware of a drug called ivermectin, which had been used as a purported treatment for COVID-19. He received a prescription for ivermectin from Dr. Edward Hagen, a retired OB/GYN, who asserted that he "wrote the prescription based on a detailed discussion of Mr. Zingsheim's condition with Mr. Gahl," but never met with Zingsheim.
Aurora declined to effectuate Dr. Hagen's prescription for several reasons. According to Aurora's Chief Medical Officer, ivermectin is "primarily used as an anti-parasitic in farm animals or administered to humans for treatment of certain parasites and scabies" and is not approved by the Food and Drug Administration as a treatment for COVID-19. The Chief Medical Officer further averred that a high dose of ivermectin, such as that prescribed by Dr. Hagen, "can be dangerous to humans and cause hypotension, ataxia, seizures, coma, and even death," and that accordingly "the use of ivermectin in the treatment of John Zingsheim's COVID-19 symptoms does not meet the standard of care for treatment."
Gahl subsequently filed a complaint in the circuit court, seeking declaratory and injunctive relief. Specifically, he sought an order requiring Aurora to administer ivermectin to Zingsheim as prescribed by Dr. Hagen. Aurora opposed the requested relief.
Based on the supplemental information submitted, the circuit court (Waukesha County Circuit Judge Lloyd Carter) acted quickly, and later in the day on October 12, signed an order to show cause Gahl had drafted and submitted. The order compelled Aurora to "immediately enforce Dr. Hagen's order and prescription to administer ivermectin to their mutual patient, Mr. Zingsheim, and thereafter as further ordered by Mr. Gahl." There was no statutory basis or other legal foundation for the order set forth in its text.
Almost immediately after the order issued, Aurora objected. Aurora referred to the circuit court's order as "extremely problematic." Specifically, it observed the following alleged shortcomings:
I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for ivermectin 66mg to be taken once daily. The prescription does not indicate from where the ivermectin is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer ivermectin "as further ordered by Mr. Gahl." Mr. Gahl is not a healthcare provider. ...
The next day, on October 13, 2021, Aurora filed a petition for leave to appeal a nonfinal order with the court of appeals. Additionally on that date, the circuit court held another hearing. At this hearing, the discussion revolved largely around Zingsheim's medical condition and the advantages and disadvantages of ivermectin. After hearing from both sides, the circuit court maintained, but modified its previous order of the day before such that rather than ordering Aurora to administer the treatment, Gahl could identify a physician who could then be credentialed by Aurora. ...
Accordingly, the circuit court indicated its intent to clarify its previous order, agreeing that Gahl "is to supply or identify a physician that Aurora can then review and pass through its credentialing process. And once credentialed, that physician . . . will have permission to enter upon the premises and administer the ivermection as ordered by Dr. Hagen[.]"
In a published opinion, the court of appeals reversed the circuit court's order. It determined that "[Gahl] has failed to identify any source of Wisconsin law that gives a patient or a patient's agent the right to force a private health care provider to administer a particular treatment that the health care provider concludes is below the standard of care." ... The court of appeals further concluded that the circuit court "had no legal authority to compel Aurora to credential an outside provider to provide care that is below the standard of care." Gahl petitioned for this court's review.
A circuit court may issue a temporary injunction if four criteria are fulfilled: (1) the movant is likely to suffer irreparable harm if an injunction is not issued, (2) the movant has no other adequate remedy at law, (3) an injunction is necessary to preserve the status quo, and (4) the movant has a reasonable probability of success on the merits. ...
We begin by observing the limited nature of our review and emphasize that this case is not about the efficacy of ivermectin as a treatment for COVID-19. Rather, it is about whether the circuit court erroneously exercised its discretion by issuing the subject temporary injunction.
Gahl raises three arguments in this court in an attempt to demonstrate that the court of appeals erred and that in fact the circuit court had the authority to issue a temporary injunction. First, he contends that the power of attorney statute, Wis. Stat. § 155.30(1), provides authority to issue the subject injunction. Second, Gahl asserts that the circuit court has inherent authority to issue such an injunction. Finally, he advances that the circuit court may issue the injunction in question under a theory of implied contract between Zingsheim and Aurora. Aurora disputes each of these bases.
We need not address in depth any of Gahl's arguments because we do not know on what basis the circuit court issued the injunction. The circuit court cited no law in either its written order or its oral ruling, as Gahl conceded at oral argument before this court. This in itself constitutes an erroneous exercise of discretion.
A circuit court erroneously exercises its discretion in the context of a temporary injunction when it "fails to consider and make a record of the factors relevant to its determination." Further, whether the party seeking an injunction has a reasonable probability of success on the merits in part turns on whether the moving party has stated a claim entitling it to relief.
Although the circuit court acknowledged the four factors that must be fulfilled in order for a temporary injunction to be granted, it did not engage in any analysis of those factors. We base our determination here on its lack of analysis of Gahl's reasonable probability of success on the merits. Indeed, from a review of the circuit court's order, we do not know upon what legal basis it premised its authority to issue the injunction in the first instance. In other words, we do not know what viable legal claim the circuit court thought Gahl had presented. Without identifying the legal basis it accepted, the circuit court cannot support the conclusion that Gahl has demonstrated a reasonable probability of success on the merits. ...
In exercising its discretion, there are no "magic words" the circuit court must utter or any precise level of specificity that is required. But the record must make clear that the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach.
The circuit court heard legal argument and at one point stated that is (sic) "has a significant respect for an individual's right to choose their treatment." However, such a stray reference does not equate to a legal analysis of the probability of success on the merits of Gahl's legal claim. The circuit court did not tie such "respect" to any legal analysis or indicate how it could serve as a basis for the declaratory and injunctive relief Gahl sought.
We therefore conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim.
In this case, the circuit court used its equitable power to craft a narrow remedy, ensuring a non-state actor could not override the decision-making autonomy of a Wisconsin citizen to whom the non-state actor owed a duty of care.
The circuit court properly exercised its discretion by considering the relevant facts and applying the correct legal standard, ultimately reaching a reasonable conclusion. ... Although the court's analysis could have been more meticulous, this court has never required the detailed explanation the majority now demands.
If the majority applied the correct standard of review, it would be forced to uphold the circuit court's decision. As Judge Shelley A. Grogan, who was on the panel at the court of appeals, wrote in dissent, "it is clear the . . . decision was reasoned and based on the record and applicable law."
In this case, the circuit court properly exercised its discretion. The majority seems to take issue with the circuit court's analysis regarding only one of the four prerequisites for injunctive relief: the reasonable probability of success. The majority, however, also states, "[the circuit court] did not engage in any analysis" of any requirement. Similarly, the court of appeals majority opinion, which the majority of this court affirms, seriously misunderstood the elements. A majority of this court leaves these errors uncorrected, and therefore they are likely to feature in future cases. Although the majority seems to affirm the decision on a narrow basis, it does not expressly – or even impliedly – signal the opinion below loses its precedential value. Consequently, the court of appeals will understand itself to be bound by that opinion.
Contradicting its rejection of a magic words standard, the majority repeatedly faults the circuit court for not citing a specific source of law. ...
Ironically, the majority does not cite any authority obligating the circuit court to provide a specific citation, wading into "the native land of the hypocrite."
Although the circuit court did not recite case precedent or statutory law, it explicitly espoused a "significant respect for an individual's right to choose and choose their treatment" clearly grounded in both. In light of the petition for relief and the record as a whole, this statement should be sufficient. After all, magic words are not required. The majority nevertheless claims "such a stray reference" is insufficient. It cites nothing to support this conclusion. ...
The majority errs in treating this politically controversial case differently than other cases involving similar decisions. ... Arguably, the majority must search the record for reasons to support the circuit court's decision. Altogether absent from the majority opinion is any attempt to read the record in a light favorable to the circuit court's discretionary decision. Alternatively, the majority could remand the case to the circuit court to better explain its decision. Outright reversal is a drastic remedy, not normally imposed unless the record is totally devoid of evidence supporting the circuit court's decision.
On a final note, the majority fails to appreciate the circumstances the circuit court faced when it made its decision. Zingsheim had COVID-19, and Aurora placed Zingsheim on a ventilator. Death was a realistic possibility. Time was of the essence. As the circuit court recognized, the situation was "dire." The circuit court, which was not a medical professional, was presented with "polar opposite" information as to whether ivermectin was likely to improve Zingsheim's condition. Under such fast-paced, high-stakes circumstances, the majority commits an especially egregious error by demanding a "polished transcript" from the circuit court.
The circuit court considered the relevant facts and applied the correct legal standard to reach a reasonable decision in light of the life-or-death circumstances presented. Like the majority of the court of appeals, a majority of this court fails to look for reasons to sustain the circuit court's discretionary decision as the law requires. Under our highly deferential standard of review, the circuit court properly exercised its discretion in entering an order granting temporary injunctive relief to a man near death.
VIDEO: New Eviction Diversion Initiative to help tenants and landlords address disputes without litigation
WJI Executive Director Margo Kirchner chats with Meagan Winn, director of Milwaukee County's Eviction Diversion Initiative. The Eviction Diversion Initiative is a new program providing tenants and landlords with information and resources to resolve housing issues both inside and outside of court. Avoiding eviction litigation can be important for tenants, as an eviction judgment from (or even the filing of) an eviction lawsuit can make it difficult for tenants to find future housing. The initiative connects tenants and landlords with resources such as rental assistance, housing counseling, legal assistance, and mediation. Funded by a grant from the National Center for State Courts, the program includes data collection and development of user-friendly court rules and procedures.
Milwaukee County was one of the first cohort of states and municipalities selected by the National Center for State Courts for funding to pilot eviction-diversion strategies.
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