Milwaukee Journal Sentinel: Teen charged with Mayfair Mall shooting now to be waived into adult court.
YouTube: Video of Ketanji Brown Jackson's swearing in as U.S. Supreme Court justice.
The Guardian: U.S. Supreme Court guts ability of Environmental Protection Agency to combat climate change.
Not only was this case about a regulation that does not exist, that never took effect, and which would have imposed obligations on the energy sector that it would have met regardless. It also involves two legal doctrines that are not mentioned in the constitution, and that most scholars agree have no basis in any federal statute.
However, the supreme court has sided with West Virginia, a major coal mining state, which argued that “unelected bureaucrats” at the EPA should not be allowed to reshape its economy by limiting pollution – even though emissions from coal are helping cause worsening flooding, heatwaves and droughts around the world, as well as killing millions of people through toxic air.
CNN: U.S. Supreme Court allows Biden Administration to end "remain in Mexico" policy.
Biden's bid to terminate the program had been challenged in court by a coalition of red states led by Texas that argued that ending it ran afoul of immigration law. They also argued that (the) administration violated the Administrative Procedure Act -- which requires that agencies take certain procedural steps when implementing policy -- in how it went about unwinding the program, formally known as Migrant Protection Protocols.
SCOTUSblog: U.S. Supreme Court expands state jurisdiction to prosecute crimes on reservations.
On Wednesday, the court reversed the presumption against state jurisdiction, holding that unless Congress acts to preempt state jurisdiction, states can prosecute non-Indians for all crimes committed in Indian country.
Slate: Attacks on civil servants are a common theme in recent U.S. Supreme Court decisions.
These attacks have dire downstream effects. They allow the justices to substitute their own preferences and policies for those of scientists, lawyers, environmental regulators, and public health experts, who across state, local, and federal government have decades more expertise than a federal judge can ever hope to have. In the process, it also allows them to add to the simmering public distrust of institutions and agencies, and to locate public trust only in the justices themselves and the citizen vigilantes who come to believe that they should enforce laws themselves.
Above the Law: Ginni Thomas backtracks on talking with the Jan. 6 committee.
The Hill: Michigan Supreme Court overturns Flint-water-crisis indictments against former governor and other state officials on procedural grounds.
“The Citizens of Flint should know that these cases are not over. Public commentary to the contrary is presumptive and rash. Our reading is that the Court’s opinion interprets the one-man grand jury process to require charges to be filed at the district court and include a preliminary examination,” Michigan Solicitor General Fadwa Hammoud said in a statement.
“Our team is prepared to move forward through that process. We relied upon settled law and the well-established prosecutorial tool of the one-man grand jury, used for decades, to bring forward charges against the nine defendants in the Flint water crisis. We still believe these charges can and will be proven in court.”
On June 22 Angela Lang, the executive director of BLOC (Black Leaders Organizing for Communities), and Keisha Robinson, BLOC's deputy director, joined WJI to chat about their organization's activities, which include court watching, canvassing neighborhoods, and developing future leaders in the Black community.
BLOC works through coordinated political action to ensure a high quality of life and access to economic opportunity for members of the Black community in Wisconsin and to empower Black leaders with the tools, training, and resources needed to organize and guarantee that their issues, concerns, and values are represented at all levels of government. Over just a few years BLOC has become a forceful nonprofit in the Milwaukee area.
If you missed the Salon, or if you want to watch or listen again, click on the link below for the recording.
This and recordings of several other past salons are also available on WJI's YouTube channel here.
Milwaukee Journal Sentinel: Wisconsin governor and attorney general sue to block 1849 abortion law.
"The reality is that if the (19th) century abortion ban remains in effect, sexual assault victims in Wisconsin will be required under Wisconsin law to carry the rapist's baby to term without medical intervention. That is not a free society," (Attorney General Josh) Kaul said. . . .
(Assembly Speaker Robin Vos responded:) "Abortion isn't health care and for the governor and attorney general to try and use the courts to enact law is just wrong as the original Roe v Wade decision over 50 years ago. I'm confident our courts will see through their tactics and uphold the law."
Milwaukee Journal Sentinel: Wisconsin Supreme Court expands review of involuntary commitments.
According to one analysis, Wisconsin commits more people for involuntary mental treatment per capita than any other state — more than 43 per 1,000 people with a serious mental illness. The average was around nine per 1,000 seriously ill people.
Madison.com: Michael Gableman sued once again over public records access.
The lawsuit, filed in Dane County Circuit Court, points to comments Gableman made in recent testimony that he has deleted emails from his government email account. Gableman also said last week he had a staffer delete the personal email account he used in the early months of his review last year, making those records inaccessible.
Reuters: U.S. Supreme Court reinstates Louisiana's Republican-drawn maps.
The Washington Post: U.S. Supreme Court sends abortion rules to states after restricting minority voting rights.
It is not a coincidence that the court is making our democracy less democratic at the very moment it is returning the issue of abortion to the political process (in the name of democracy).
After all, the Supreme Court that overruled Roe is itself the product of minority rule. Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett were all confirmed by senators who collectively represented fewer people than the senators who voted against them. Those three justices, moreover, were appointed by a president who received fewer total votes than the opposing Democratic candidate.
Slate: Why states can't bar residents from interstate travel to seek abortions elsewhere.
Cannabis Business Times: United Nations report on worldwide marijuana use and impacts of legalization.
Vox: Abysmal health care inside jails and prisons during the pandemic.
When 25-year-old Clayton McCray was sent to jail in September 2019, he had no idea the detention would end up costing him his leg. But that’s what happened, in large part because the pandemic exacerbated his poor medical treatment behind bars.
"Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications.
Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.
Name: Michael S. Kenitz
Appointed to: Washington County Circuit Court
Appointment date: March 4, 2022
Law School – Marquette University, Milwaukee, Wisconsin
Undergraduate – Marquette University, Milwaukee, Wisconsin
High School – Hartford Union, Hartford, Wisconsin
Recent legal employment:
September 2006-present – Kenitz Law Office, LLC, Hartford, Wisconsin
Bar and administrative memberships:
U.S. District Court, Eastern District of Wisconsin
General character of practice:
I opened my own law practice directly out of law school in my hometown of Hartford, Wisconsin after I graduated from Marquette Law School in 2006. I have been a solo practitioner in that capacity ever since. Most cases that I handle involve the representation of individuals or small businesses and given the nature of my practice and "small town" atmosphere, there is typically a very direct relationship between myself and my clients.
Describe typical clients:
My clients are most often individuals or small businesses that reside or are located in Hartford or the surrounding areas, typically in Washington County. I also handle cases as a Guardian Ad Litem, often representing the interests of wards in custody and placement or guardianship disputes. My practice consists primarily of litigation-oriented cases in the areas of criminal, traffic, civil, family, and small claims.
Number of cases tried to verdict: 23 jury; approximately double if including family/court trials
List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years:
1. In 2017, I was appointed by the State Public Defender's office to represent a woman who was charged with Operating While Intoxicated-4th offense and drug-related charges when she was arrested in the parking lot of her child's daycare center. It was alleged that the abuse of prescription drugs were impairing the client's ability to drive. … The case went to trial in 2018. There were some bad facts on the surface of the case, but a focus on the details (such as using squad video evidence to point out that a gust of wind, never mentioned in the police report, could explain a poor "walk and turn" test) resulted in the presentation of a legitimate defense. Unfortunately, the client was convicted. The reason it is significant to me is because the client, and the client's sister (who was very close to the case), demonstrated total appreciation and gratitude for my efforts, despite the result. It reminded me that for some clients, having somebody fight for them and pour their heart into a case can be just as important as the result.
2. In 2019 I was appointed to serve as the Guardian Ad Litem for a six year old boy in a post-judgment custody and placement dispute. The primary issue that developed in the case was the mother's desire to move with the child to the State of Louisiana. The case was eventually tried over the course of two days … . It was a very difficult, emotional case, and it seemed evident that my recommendation as Guardian Ad Litem was going to carry significant weight. After thorough investigation of the case, I ultimately recommended in favor of permitting the Mother to move with the child, and for the father to have placement periods during summer and breaks. The court followed my recommendation. Developments in the case since that ruling have reaffirmed that I made the right recommendation and that the court made the right decision. It was significant to me because it highlighted the very serious issues that sometimes have to be decided that will have an impact on the parties before the court, and that such decisions need to be approached with full preparation, thoughtful consideration, and careful study of legal principles involved to reach the right conclusion.
3. In 2021, I was appointed to represent a father of a 12-year-old child whose maternal grandparents were seeking guardianship of her after the death of the child's mother. Temporary guardianship was granted, and the Guardian Ad Litem appeared to be heading towards recommending in favor of a permanent guardianship.… It seemed to me that others involved in the case viewed it as a "slam-dunk" that the child would remain with the grandparents. At trial, I made numerous evidentiary objections to the grandparents' case-in-chief that were sustained (properly, in my view) and after extensive preparation with my client, he presented himself favorably as a witness to the great surprise of the other attorneys. Ultimately, the court denied the guardianship petition and my client was reunited with his daughter. It was significant to me because it reinforced the importance of preparation and having faith in your client even when others involved in the case see it as a foregone conclusion.
Experience in adversary proceedings before administrative bodies:
Unless one would consider revocation hearings before the Division of Hearings and Appeals for defendants on probation or extended supervision as such a proceeding, my practice has not been involved in such hearings. In the event such hearings are considered applicable to this question, I have represented dozens of defendants facing revocation in such situations, including cases taken to a revocation hearing and administrative appeal or the negotiation of an Alternate to Revocation ("ATR").
Describe your non-litigation experience (e.g., arbitration, mediation).
I have done some basic estate planning for individuals, typically including the drafting and execution of Wills and Power of Attorney documents. I have also performed occasional document reviews (contracts, leases, etc.) for individual clients. My experience with alternative dispute resolution such as arbitration/mediation has been done in the context of litigation where I am representing a party.
All public offices to which you were appointed or elected:
Supplemental court commissioner, appointed, April 2020-present
Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: N/A
Previous runs for public office: N/A
All judicial or non-partisan candidates endorsed in the last ten years:
Todd K. Martens, Washington County Circuit Court judge, 2016/2017
Professional or civic and charitable organizations:
Washington County Bar Association, 2006-present; president 2015-2016
United Way of Washington County, board of directors, 2013-2016
Hartford's Better Education Scholarship Trust (BEST), 2006-2012
Sycamore Tree (Daycare), president, board of directors, 2017-present
Significant pro bono legal work or volunteer service:
For the last several years, I have been a volunteer attorney for the Washington County "Family Law Assistance Program", or FLAP. This is a program whereby attorneys that practice in Washington County volunteer time over the noon hour on Tuesdays at the Washington County Courthouse. During this time, individuals can seek the assistance of volunteer attorneys with forms, procedural questions, and other forms of assistance that do not involve providing legal advice.
Why I want to be a judge -- In my previous application submitted to this Committee in December of 2019 for the opening created by the retirement of the Honorable Andrew T. Gonring, I described how the evolution of my legal education, career, and personal life led me to feel a calling to serve as a judge. I wanted to make a tangible impact on the people of my community, and I felt at that time that serving as a judge was the most direct way for me to do precisely that.
Those feelings have only intensified since I wrote about them in 2019. In my law practice, I have seen the crucial role that a judge can play in making an impact on someone's life; not just on the parties in the cases that appear before the court, but on the friends, families, and communities of those parties. And the longer I practice, the clearer it is that a judge plays this crucial role to both the legal system and to the people of his or her community.
Everyday conversations with clients routinely demonstrate this phenomenon. It is remarkable how many clients will begin telling you about their case by referring to something they heard the judge say in court. 'The judge said that ... " or "I remember the judge told me... " or any number of similar statements, as an example. For many, the law is an intimidating subject that is difficult to understand and even more difficult to relate to. An encounter with a judge, however, breaks these barriers. "The law" and "court" can seem vague and complex; "the judge," however, can make a profound impact on people.
I want to serve as a judge because I want to make this impact on the community my family knows and loves. My wife and I were both born in Hartford, in Washington County. We were both raised in Hartford. We went to school in Hartford. We started dating as teenagers when we both attended Hartford Union High School. We were married in Hartford. And now, I am a practicing attorney, she is a nurse manager for Froedtert & The Medical College of Wisconsin, and we are proudly and happily raising our four daughters in the same community we grew up in. We love this community, and I love the legal profession. Serving as a judge would be a fulfilling, rewarding opportunity to merge these two passions in a way unlike any other.
That is why I want to be a Washington County Circuit Court Judge.
Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin.
In my previous application, I explained how my particular background as a clerk in law school led me to become familiar with the issue of “tort reform” laws, and I pointed to the decision in Mayo v. Wis Patients Comp. Fund, 2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678 to answer this question. That case declared the $750,000 damage cap on noneconomic damages in medical malpractice to be constitutional. The decision overruled the relatively recent Ferdon case finding just the opposite, for all intents and purposes. In citing Mayo, I mentioned that a large concern of mine was that the ruling suggests to the public that the Wisconsin Supreme Court is becoming an overtly political body, and that its rulings are merely temporary orders until the next election cycle or the next judicial appointment.
Developments in our country since that application has made this potential development even more concerning. The nominating process to fill vacancies in the United States Supreme Court and the national dialogue surrounding “hot-button” issues before the court, for instance, have me even more worried that the court system is being seen as a purely political body.
The primary reason it is so important to avoid these developments, in my view, is because the courts are the governmental institution that people have most faith in turning to when they feel that a wrong must be addressed. If that faith is shaken, the credibility of courts across the country is damaged.
This does not mean that all precedent must always stand, of course. But it is one thing to overrule precedent; it is another to engage in political discourse from the bench. In my view, the Mayo case reads more as a political disagreement with Ferdon than it does a legal one. I shudder to think what happens to the courts as an institution if the people of the United States, and the people of Wisconsin, begin to think of courts the same way they think of Congress.
Certainly, there are very large issues that the Wisconsin Supreme Court and U.S. Supreme Court often handle that have an enormous impact on the people. But because I believe the Mayo case pushes us too far in the direction of damaging the credibility of the courts as an institution, I believe it has had a negative impact on the people of Wisconsin.
Two or three judges whom I admire and why:
My previous application first cited Washington County’s Annette Ziegler primarily because (1) of the kind way she treated me as a new attorney appearing before her and (2) because she was the first female Washington County judge in history. These reasons are admittedly more personal than professional; my feeling that a judge can have an impact on people simply by the way they treat them is demonstrated by the impact she had on me as a young attorney appearing before her. And raising four young daughters, it provides a clear example for me to cite to my children how they can make an impact on their community and society as a whole, so long as they are committed to doing so.
I also cited Justice Antonin Scalia and Justice Ruth Bader Ginsburg, not necessarily for their views or legal philosophies but for their friendship and decorum towards one another. Earlier in this application I wrote about my views on the importance of the court keeping its credibility as an institution. Justice Scalia and Justice Ginsburg maintaining their friendship in such a public and obvious manner, given their equally public and equally obvious disagreements, helped demonstrate to the country that their disagreements were not personal or political – they were intellectual and philosophical.
If I were once again to be permitted an additional choice (if Justices Scalia and Ginsburg’s friendship is considered one), I would reiterate my admiration for the Honorable Andrew Gonring of the Washington County Circuit Court. Judge Gonring stands out as the most obvious judge in my career that made a direct impact on the people appearing before him, the impact that is so important to me … In addressing the Washington County Bar Association after his retirement, he indicated to us that while he may have appeared tough at times, he tried not to ask of any lawyer anything that he would not have asked of himself. I agree that he did just that.
The proper role of a judge:
First and foremost, I believe that the role of a judge is to apply the law as written in the statutes and as interpreted by controlling cases to the best of his or her ability regardless of the judge’s personal view towards the wisdom of the law.
Many circumstances at the trial court level will, of course, require the judge to exercise discretion in making decisions. When doing so, I believe a judge should consider and call upon the guidance of established legal standards; his/her training, education, and experience; community standards; and in some instances, his/her intuition.
I also believe it is the proper role of a judge to ensure that every party in a case receives, and feels as though they received, a fair chance in court. This means a judge must avoid any preconceived notions of their cases or the parties before them. A judge must be willing to make decisions that they believe are correct without regard to outside criticism that it may generate from talk radio, social media, or otherwise. Parties will never leave a courtroom agreeing with every decision the judge has made; but they can leave a courtroom agreeing that both sides had their day in court and were treated with fairness and respect.
Finally, I also believe it is the role of a trial judge to serve as an example to others in the community. A judge should conduct himself or herself with the temperament, humility, and decorum that is fitting of the judiciary. Doing so benefits the community at large, reinforces credibility in the judicial branch, and helps reassure the public that the courts are indeed a special place in the State of Wisconsin and the United States of America.
Wispolitics.com: Wisconsin Supreme Court appoints or reappoints five chief judges.
Milwaukee Journal Sentinel: Parent complaints over books in Oconomowoc school district leads to possible defamation claim.
The conservative law firm Wisconsin Institute for Law and Liberty has sent a letter to the Oconomowoc Area School District on behalf of a local parent who said the district is trying to silence her for complaints about the district's use of what she called age-inappropriate instructional materials. . . .
In a May 13 letter, attorneys representing the district, Mark Olson and Emily Turzinski, said statements (Alexandra) Schweitzer made during testimony at a state Senate on Education Committee meeting, and in a letter regarding the district's curriculum and library materials, were false and defamatory.
ABC News: U.S. Supreme Court rules in favor of man seeking resentencing under First Step Act.
The justices ruled 5-4 that trial judges who are asked to resentence inmates may look at a wide range of factors, including some that have nothing to do with crack cocaine offenses that had produced longer stints in prison, disproportionately for people of color.
The high court settled a disagreement among the nation's appellate courts over what judges should do in these cases.
E&E News: Language in abortion ruling about standing may impact future climate cases.
The ominous sign for environmentalists in Dobbs v. Jackson Women’s Health Organization comes 63 pages into the 79-page opinion as Justice Samuel Alito, writing for the majority, argues that earlier abortion cases have “diluted” the law and “ignored the court’s third-party standing doctrine” — which generally requires parties before the court to have some proof of injury (Greenwire, June 24).
Environmentalists have worried the court would use the standing doctrine to determine who can be heard. Alito took a narrow approach to standing when he was a federal appeals court judge, and his reference to the provision in a draft copy of Dobbs that was obtained last month by POLITICO set off alarms (Climatewire, May 6).
Marijuana Moment: Drug czar recognizes possible medical benefits of marijuana.
One particularly notable exchange came in response to a question from Rep. Ro Khanna (D-CA), who pressed the official on the seeming “contradiction” that marijuana remains a federally banned substance under the Controlled Substances Act (CSA) despite growing evidence that the plant’s constituents can treat chronic pain in a way that is safer than opioids that are less strictly regulated.
“There is evidence to suggest that, in cases of certain chronic pain, cannabis can be efficacious,” (Office of National Drug Control Policy Director Rahul) Gupta, who previously provided consulting services to a cannabis company prior to serving in the White House, said.
The Vetting Room: Background on Doris Pryor, nominee for Seventh Circuit Court of Appeals.
Milwaukee Journal Sentinel: Death at Milwaukee County Jail may have been suicide.
Milwaukee Journal Sentinel: Helping those released from prison get up to speed on new technology.
PolitiFact: Fact-checking Justice Alito's opinion overturning Roe.
The Hill: U.S. Supreme Court rules in favor of football coach who conducted postgame prayers.
The Hill: A summary of the bipartisan gun legislation.
Milwaukee Journal Sentinel: Wisconsin Lutheran High School sues City of Milwaukee over denied property tax exemption.
The school paid about $106,000 in property taxes for the dorm in 2021, after city officials rejected their new request last year for an exemption. The school then sought a refund, which the Common Council rejected in March.
Now taking the fight to court, the school has pro-bono representation from conservative law firm Wisconsin Institute for Law & Liberty. They filed their suit in circuit court Wednesday, arguing that the full services of the dormitory make its purpose "educational" and therefore eligible for exemption.
Milwaukee Journal Sentinel: The benefits of rent control for housing stability in Milwaukee.
Rent control helps to promote residential stability. Tenants living in rent-controlled units are far less likely to move out than those in uncontrolled units, which suggests that rent control helps tenants avoid de facto evictions. This has numerous benefits, including positive long-term physical and mental health outcomes, especially for children.
Reuters: Surprising no one, Supreme Court expands gun rights.
The 6-3 ruling, with the court's conservative justices in the majority and liberal justices in dissent, struck down New York state's limits on carrying concealed handguns outside the home. The court found that the law, enacted in 1913, violated a person's right to "keep and bear arms" under the U.S. Constitution's Second Amendment. . . .
"This ruling contradicts both common sense and the Constitution, and should deeply trouble us all," (President Joe) Biden said. "In the wake of the horrific attacks in Buffalo and Uvalde, as well as the daily acts of gun violence that do not make national headlines, we must do more as a society - not less - to protect our fellow Americans."
Slate: Will the Supreme Court protect the rights of Jews like it does the rights of Christians?
Enter a synagogue in Florida, which filed a complaint in state court last week claiming that the Florida legislature’s new law, which goes into effect July 1, banning almost all pre-viability abortions, violates the state constitution’s religious liberty provisions, which afford even broader protections than those of the federal Constitution. In the complaint, petitioners note that while Florida seeks to ban abortion at 15 weeks’ gestation, “in Jewish law, abortion is required if necessary to protect the health, mental or physical well-being of the woman, or for many other reasons not permitted under the Act.”
LaviniaGoodell.com: More on the life of Lavinia Goodell, who is included in WJI's Unsung Heroes series.
Milwaukee Journal Sentinel: Milwaukee Common Council approves $900,000 settlement with fired police officers.
Slate: Supreme Court's visible turbulence means there's more on the inside.
From a leaked draft in Dobbs to a series of revelations about the wife of a sitting Supreme Court justice texting with one of the main architects of the Trump administration’s failed coup — the goings-on within the court this term have made headlines and raised eyebrows. Justice Clarence Thomas has spoken of the relationships at the court as a betrayal. The institution is surrounded by fencing. Some conservative legal pundits have attempted to spin these headlines as part of a partisan, liberal effort to further delegitimize the formerly leak-proof and ostensibly apolitical institution. But despite their million-dollar efforts, diligent court watchers know that the turbulence reflects a radical shift playing out within the court itself.
Reuters: Takeaways from yesterday's Jan. 6 committee hearing.
Miami Herald: Former Tallahassee mayor, who almost won Florida governorship in 2018, indicted for fraud.
The 21-count indictment was unsealed Wednesday following his arrest. (Andrew) Gillum and his political adviser, Sharon Janet Lettman-Hicks, are charged with 19 counts of wire fraud and one count of conspiracy to commit wire fraud, with each count carrying a maximum of 20 years in prison. Gillum is also facing a count of making false statements to the FBI, which carries a maximum of five years in prison.
Federal prosecutors allege that Gillum, 42, and Lettman-Hicks, 53, diverted money from his political committee to pay Gillum directly, defrauding campaign mega-donors and organizations that believed they were donating to legitimate political causes.
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 and footnotes 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. Valiant M. Green
Majority opinion: Justice Brian Hagedorn (7 pages), joined by Chief Justice Annette K. Ziegler and Justices Patience D. Roggensack, Rebecca Grassl Bradley, Rebecca F. Dallet, and Jill J. Karofsky
Dissent: Justice Ann Walsh Bradley (11 pages)
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.
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.
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.
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.
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?
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