A bill introduced in the Legislature last week has the potential to criminalize possession of home-brewing equipment used for anything other than wine-making.

The bill, AB250, also would prohibit anyone with a felony record from getting a retail license to sell tobacco or cigarettes, though it does not explain the why the prohibition is needed or even helpful.

On the home-brewing front, the bill "generally prohibits a person from possessing a still or other apparatus for manufacturing, rectifying, distilling, refining, or purifying intoxicating liquor other than wine," according to the Legislative Reference Bureau. (Emphasis added.) 

Violations would be punishable by up to nine months in jail and a $10,000 fine.

The bill also says that mere possession of the equipment "is prima facie evidence of possession for the purpose of manufacturing, rectifying, distilling, refining, or purifying of intoxicating liquor other than wine."

Yes, there are exceptions to the proposed law. "The prohibition does not apply to a person that holds an intoxicating liquor manufacturer's or rectifier's permit from DOR or that has registered the still or a distilled spirits plant under federal law."  

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.  ​

The case: Zignego v. Wisconsin Elections Commission

Majority: Justice Brian Hagedorn (24 pages), joined by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Patience Roggensack

Dissent: Justice Rebecca Grassl Bradley (22 pages), ​joined by Justice Annette Ziegler

The upshot

Our election laws tell us how they will refer to the Commission: by use of the term "commission" (or occasionally "elections commission"). Wis. Stat. §5.025. The "board of election commissioners" refers to a different kind of entity under our laws, one whose province is local. See Wis. Stat. §§7.20, 7.21, 7.22. In short, Zignego's argument that the Commission is required to carry out the mandates of §6.50(3) is contrary to what the statute says because the statute assigns its duties to municipal election officials. The Commission has no statutory obligation, and therefore no positive and plain duty, to carry out the requirements of § 6.50(3). The circuit court therefore erred by issuing a writ of mandamus ordering it to do so.

The circuit court's contempt order against the Commission and several of its commissioners likewise must be reversed. 

Background

The issues in this case arose when the Commission received a "movers report" from the Electronic Registration Information Center, Inc. (ERIC), a multi-state consortium created to improve the accuracy of voter registration systems. This report identifies currently registered voters who may no longer be eligible to vote at their registered address because they either died or moved. After receiving the report, the Commission conducted internal vetting and, in October 2019, sent notices to approximately 230,000 Wisconsin voters who the report suggested may no longer reside at their registered address. These notices informed the recipients that they could affirm their address by: (1) doing so at myvote.wi.gov; (2) returning the attached postcard to their municipal clerk; or (3) voting at the next election....

Zignego...filed suit against the Commission and five of its commissioners seeking a declaration and temporary and permanent injunctive relief, or in the alternative, a writ of mandamus. The circuit court conducted a hearing on December 13, 2019, and orally ruled that a writ of mandamus would issue ordering the Commission to comply with Wis. Stat. § 6.50(3). The written mandamus order followed shortly thereafter compelling the Commission to "deactivate the registration of those electors who have failed to apply for continuation of their registration within 30 days of the date the notice was mailed...." 

The Commission, however, took no action to comply with the writ. Zignego followed with a motion asking the circuit court to hold the Commission and its commissioners in contempt. On January 13, 2020, the circuit court conducted a hearing and found the Commission and several commissioners in contempt. The court imposed, as a remedial sanction, a forfeiture of $50 per day against the Commission and a forfeiture of $250 per day against each of the three commissioners who voted to take no action to comply with the writ.

That same day, the Commission filed a notice of appeal with respect to the contempt order and moved for a stay. Also on the same day, this court denied Zignego's petition for bypass. The next morning, the court of appeals stayed both the contempt order and the writ of mandamus, explaining that the court's reasoning would be set forth in a subsequent order. A week later, the court of appeals issued its opinion and reversed the circuit court's writ of mandamus and contempt orders. Zignego petitioned this court for review, which we granted....

​The Guts

We begin in the same way the election statutes begin—— by defining who the main actors are in this delicate democratic dance. The statutes regularly refer to and largely define three primary actors for our purposes here: (1) a "municipal clerk"; (2) a "board of election commissioners"; and (3) "the commission...."

To translate, a board of election commissioners is established in our high population cities and counties——at this point, only in the City of Milwaukee and Milwaukee County – to carry out the duties otherwise accomplished by municipal and county clerks everywhere else. It should therefore come as no surprise that the phrase "municipal clerk or board of election commissioners" appears in tandem all over our election statutes because this describes the duties of local election officials. In fact, this conjoined phrasing appears dozens of times in chapter 6 alone.

The final entity relevant for our purposes is the Wisconsin Elections Commission. It has a separate defined nomenclature located in Wis. Stat. §5.025. In chapters five through ten and 12 of the statutes, "'commission' means the elections commission." Hundreds of times in the chapters following, the legislature uses either "commission" or occasionally, "elections commission," to denote the Commission. Immediately following this definition, Wis. Stat. §5.05 extensively lays out various powers and duties of the Commission (other statutes add to this list)....Of some relevance here, the Commission is..."responsible for the design and maintenance of the official registration list" and "shall require all municipalities to use the list in every election...." 

Under Wis. Stat. §6.36(1)(a), the Commission "shall compile and maintain electronically an official registration list." But editing the list is a different matter. The laws specify that the list must "be designed in such a way that the municipal clerk or board of election commissioners of any municipality . . . may, by electronic transmission, add entries to or change entries on the list for any elector who resides in, or who the list identifies as residing in, that municipality and no other municipality." §6.36(1)(c). Again, all three entities are mentioned. The Commission maintains the statewide list, but the municipal clerk or board of election commissioners must be able to change the registration status for individuals within their municipality....

As these provisions make clear, Wis. Stat. § 6.50 sometimes directs the Commission to act, and other times it directs municipal officials to do so....

While additional statutory context could be considered to reinforce the same themes, it is time we turn our attention to the subsection at issue here, Wis. Stat. § 6.50(3), which provides in full:

Upon receipt of reliable information that a registered elector has changed his or her residence to a location outside of the municipality, the municipal clerk or board of election commissioners shall notify the ​elector by mailing a notice by 1st class mail to the elector's registration address stating the source of the information. All municipal departments and agencies receiving information that a registered elector has changed his or her residence shall notify the clerk or board of election commissioners. If the elector no longer resides in the municipality or fails to apply for continuation of registration within 30 days of the date the notice is mailed, the clerk or board of election commissioners shall change the elector's registration from eligible to ineligible status. Upon receipt of reliable information that a registered elector has changed his or her residence within the municipality, the municipal clerk or board of election commissioners shall change the elector's registration and mail the elector a notice of the change. This subsection does not restrict the right of an elector to challenge any registration.... 

Zignego's primary argument in this case is that the Commission is a "board of election commissioners" under § 6.50(3). This argument disregards nearly every foundational principle of statutory interpretation. 

In short, according to the plain meaning supported by its statutory context, "board of election commissioners" under Wis. Stat. § 6.50(3) does not include the Commission. The Commission has no mandatory duties under this provision....

Wisconsin Stat. § 6.50(3) does not apply to the Commission; there is no credible argument that it does. Accordingly, the circuit court erred in granting a writ of mandamus based on an improper interpretation of § 6.50(3), and its contempt order cannot survive the reversal of the writ of mandamus. We affirm as modified the decision of the court of appeals, and remand the cause to the circuit court for dismissal.

By Gretchen Schuldt

A bill that would dramatically expand the pool of people eligible to have their criminal records expunged drew strong support at a public hearing this week before the Assembly Criminal Justice and Public Safety Committee..

Grace, 34, a former Wisconsin resident, told about a crime she committed 13 or 14 years ago, when she took a plea deal on a theft charge, that continues to follow her.

Now she is married, lives in Florida, has children, and wants to be a firefighter.

"The haunting of my past continues to appear, and drag me into the stereotypical felon's barrier," she said. "I am not the felony charge, but it is defining the future I admire to become. Can you imagine the feeling of being known at every intersection of progress by the worst failure of your life? Probably not... I am being disabled by something many years ago should be put into proper context today. I can only imagine the thousands of stories of good people reestablishing their lives, but still walking around with invisible shackles of a poor decision."

Multiple organizations, including WJI, the State Public Defender's Office, the Badger Institute, and the Milwaukee Police Association, testified in favor of the bill, AB69. 

WJI President Craig Johnson said the measure "is very important as it allows people who have made a mistake to get a fresh start without being stigmatized for life in their search for gainful employment, housing, and in other contexts."

​Dale Bormann Jr., president of the Milwaukee Police Association, said his members see the devastation crime visits upon the victim and the perpetrator's family and future.

​"We also see many outstanding members of the community who may have, for whatever reason, engaged in a single criminal act years prior, taking full responsibility for their act and have worked to better themselves, but struggle to  move forward," he said. 

The union hopes "this bill will allow people not to be defined by their worst day but rather the entirety of their collective actions throughout their life."

By Gretchen Schuldt

Police use of a jailhouse snitch after his target retained a lawyer amounted to an improper government interrogation, the State Court of Appeals ruled Tuesday.

"What occurred here was the intentional, surreptitious creation of an opportunity to confront (Richard Michael) Arrington without counsel present," Appeals Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel.

In addition, Arrington's trial lawyer failed to provide effective counsel when he did not object to or try to suppress recordings of Arrington made by the informant, the panel said.

Seidl was joined in his opinion by Appeals Judges Lisa K. Stark and Thomas M.  Hruz.

Arrington was charged in 2016 in connection with the shooting death of Ricardo Gomez in Green Bay.

A witness, 17, testified that Arrington fired a gun after exchanging words with another man, Shorty. Shorty was standing near another Gomez and one of the bullets instead struck Gomez in the chest, killing him.

There was no dispute during the jury trial that Arrington fired shots toward the house where Gomez and Shorty stood, Seidl wrote. Arrington, though, argued he fired in self-defense and that he believed that Shorty was reaching for a gun to shoot him.

Another witness testified that it appeared "Shorty reached for his waist as though he was reaching for a weapon," according to a brief filed in the appeal. The 17-year-old said it looked like Shorty was reaching for something, according to the brief.

"Arrington also claimed that it looked as if Shorty accidentally shot Gomez..." Seidl wrote.

Arrington turned himself into police after learning they were looking for him.

Arrington was housed in the Brown County Jail with the informant, Miller. Miller already was working with Green Bay Police Detectives Michael Wanta and Bradley Linzmeier in an effort to get information from two other inmates about a different homicide not involving Arrington.

"Miller believed Arrington would tell him things about the pending charges against him," Seidl wrote. "Miller asked the detectives if he should record his conversations with Arrington, and the detectives told him that he could."

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.  ​

The case: Fabick v. Evers

Majority: Justice Brian Hagedorn (27 pages), joined by Justices Rebecca Grassl Bradley, Patience Roggensack, and Annette Ziegler.

Concurrence: Rebecca Bradley (19 pages),  joined by Roggensack.

Dissent: Justice Ann Walsh Bradley (29 pages), ​joined by Rebecca Dallet, and Jill Karofsky.

The upshot

Over the last year, a dangerous new virus has spread throughout the world, disrupted our economy, and taken far too many lives. In response, Governor Tony Evers declared multiple states of emergency under Wis. Stat. § 323.10 (2019-20), triggering a statutory grant of extraordinary powers to the governor and the Department of Health Services (DHS) to combat the emergent threat. The question in this case is not whether the Governor acted wisely; it is whether he acted lawfully. We conclude he did not.

​

Background

At the outset, we must remember that our constitutional structure does not contemplate unilateral rule by executive decree. It consists of policy choices enacted into law by the legislature and carried out by the executive branch. Therefore, if the governor has authority to exercise certain expanded powers not provided in our constitution, it must be because the legislature has enacted a law that passes constitutional muster and gives the governor that authority.

Some may wish our analysis would focus on ensuring the Governor has sufficient power to fight COVID-19; others may be more concerned about expansive executive power. But outside of a constitutional violation, these policy concerns are not relevant to this court's task in construing the statute...Our inquiry is simply whether the law gives the governor the authority to successively declare states of emergency in this circumstance....

The statute provides that a state of emergency "may be revoked at the discretion of either the governor by executive order or the legislature by joint resolution," and a "state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature." These directives can be distilled into three statutory commands. First, the initial duration of a state of emergency is determined by the governor, but it "shall not exceed" 60 days. Second, a state of emergency may be cut shorter than the initial duration by either the governor through executive order or by the legislature through joint resolution. Finally, a state of emergency may be extended longer than 60 days by the legislature alone. 

These are clear statutory commands, plainly stated. They compel the conclusion that the legislature enacted Wis. Stat. § 323.10's time-limiting language to meaningfully constrain the governor's authority to govern by emergency order....

Where the governor relies on the same enabling condition for multiple states of emergency, or declares a new state of emergency to replace a state of emergency terminated by the legislature, the governor acts contrary to the statute's plain meaning. If it were otherwise, § 323.10's duration limiting provisions would cease to perform any meaningful function. These limitations would be no more than perfunctory renewal requirements and would serve as merely a trivial check on indefinite emergency executive powers....

in 2002, the legislature adopted portions of a Model State Emergency Health Powers Act ("MSEHPA") that had been proposed in the wake of 9/11.14 These revisions...added the public health emergency to Wisconsin law. The legislature borrowed extensively from the model act in drafting these provisions, including its definition of a "public health emergency." But the legislature did not adopt every model provision. Notably, it did not adopt the proposal to allow the governor to renew the public health emergency declaration every 30 days. Rather, it incorporated this language into its already-existing emergency declaration language with its already-existing time limitations....

We conclude that Wis. Stat. § 323.10's duration-limiting language forbids the governor from declaring successive states of emergency on the same basis as a prior  state of emergency, and that the governor may not reissue a new emergency declaration following legislative revocation of a state of emergency declared on the same basis.

Application

In support of the challenged emergency declarations before us, the Governor argues the 60-day limit is no bar to multiple declarations of emergency based on the same public health emergency. Our analysis above forecloses this interpretation. But the Governor makes an alternative argument. He asserts that each declaration was supported by differing onthe-ground conditions related to COVID-19. In essence, he argues the ups and downs of COVID-19 have created independent enabling conditions thereby renewing his power to declare a new state of emergency with each new front in the fight against COVID-19. The dissent agrees. It argues that a new emergency may be declared as long as the governor drafts "a new set of onthe-ground facts."

This approach, however, does what a proper consideration of the entire statute does not permit– it reads the duration limitations right out of the law. A governor will surely have little difficultly drafting a new emergency order stating that the challenges or risks are a little different now than they were last month or last week. So long as the emergency conditions remain, the governor would possess indefinite emergency power under this atextual theory. The more reasonable reading is that the 60-day time limit and legislative ​revocation power are real limitations that constrain the governor's power to deploy emergency powers with regard to that emergency. Statutory restrictions on executive power cannot be avoided by modest updates to the "whereas" clauses of an emergency declaration. 

We recognize that determining when a set of facts gives rise to a unique enabling condition may not always be easy. But here, COVID-19 has been a consistent threat, and no one can suggest this threat has gone away and then reemerged. The threat has ebbed and flowed, but this does not negate the basic reality that COVID-19 has been a significant and constant danger for a year, with no letup. In the words of the statute, the occurrence of an "illness or health condition" caused by a "novel . . . biological agent" has remained, unabated....

Several times in briefing before this court, and at oral argument, the Governor suggested Wis. Stat. § 323.10's provision giving the legislature authority to revoke a state of emergency supported his reading of the 60-day time limit as permitting renewals precisely because the legislature had an effective check. Since this case was argued, however, the legislature did revoke the state of emergency declared in Executive Order #104, only to have a new one——in Executive Order #105——immediately declared by the Governor....

As we have discussed, Wis. Stat. § 323.10 provides that an emergency declaration order "may be revoked at the discretion of . . . the legislature by joint resolution." In order to have any effect, this provision must mean that the governor may not simply reissue an emergency declaration revoked  by the legislature.18 Any other interpretation would render the legislature's statutory power to revoke an emergency declaration illusory. The statute gives the legislature the power to override a governor's declaration of emergency, not the other way around.

The Governor defends Executive Order #105 as different than Executive Order #104 on something he says is new – the purported loss of federal nutrition benefits——along with updates regarding the current threats presented by COVID-19. However, if an emergency declaration is a prerequisite to receiving these funds, this was no less true during the operation of Executive Order #104, which the legislature revoked. The Governor cannot make an end run around legislative revocation simply by itemizing a previously unidentified justification for the state of emergency. Reading the statute to encourage a game of whaca-mole between the governor and legislature would defeat Wis. Stat. § 323.10's explicit legislative check on the governor's emergency power. 

Concurrence

Governor Evers' interpretation of Wis. Stat. § 323.10 as a license to unilaterally decree consecutive states of emergency based upon the same underlying cause would violate the structural separation of powers embedded in the Wisconsin Constitution, rendering the statute an unconstitutional delegation of legislative power to the executive branch....

While this case may be resolved by applying the plain language of the statute, the constitutional infirmities of Governor Evers' interpretation of the law warrant discussion. An understanding of the structure of our government is a prerequisite to grasping the constitutional flaws in the Governor's analysis. 

The Wisconsin Constitution prohibits unlawful delegations of power among the branches as a bulwark for the people....In specifying the powers of each branch, the constitution prohibits one branch from assuming the powers of another and also forbids one branch from ceding its own powers to another....

This case concerns the legislative function, and the legislature's authority to transfer it to another branch of government....Safeguarding constitutional limitations on the exercise of legislative power is particularly important in light of its awesome sweep....