By Gretchen Schuldt

​It was a 4-3 squeaker in the State Supreme Court this week as it upheld Joe Biden's win over Donald Trump in the Wisconsin's presidential race.

The full document is chock-full of dissents and concurrences – the entire thing is 81 pages long and long, and yes, there is a bit of the snark we have come to expect from Justice Rebecca Grassl Bradley.

We are dissecting the decision, trying to make it a bit easier for non-lawyers to follow by arranging it in some sort of logical order, grouping excerpts from the main decision, written by Justice Brian Hagedorn, with excerpts from the relevant dissents and concurrences.

We also aiming for the major points, and don't plan to replicate every word in the decision.

Our introduction to the decision is from Hagedorn, who summarized it nicely in his majority opinion which was joined by Dallet, Walsh Bradley, and Justice Jill Karofsky.

The (Trump) Campaign focuses its objections on four different categories of ballots – each applying only to voters in Dane County and Milwaukee County. First, it seeks to strike all ballots cast by voters who claimed indefinitely confined status since March 25, 2020. Second, it argues that a form used for in-person absentee voting is not a "written application" and therefore all in-person absentee ballots should be struck. Third, it maintains that municipal officials improperly added witness information on absentee ballot certifications, and that these ballots are therefore invalid. Finally, the Campaign asserts that all ballots collected at "Democracy in the Park," two City of Madison events in late September and early October, were illegally cast.

A big theme for the justices was whether Trump's complaints were filed in a timely manner, and that theme ran through much of the justices' writings.

This was definitely the least contentious issue the justices dealt with.

State law allows voters to declare themselves indefinitely confined if they meet legal requirements. This gives them the ability to avoid the requirement to present a photo ID to get an absentee ballot. 

The Dane and Milwaukee County clerks in March, in Facebook posts, said any potential voter could declare indefinite confinement because of the pandemic and Gov. Tony Evers' "Safer-at-Home" which was in effect at the time. Within a week, though, the Supreme Court said the Dane/Milwaukee County advice was erroneous. and the county clerks modified their postings.

Here is what Hagedorn, delivering a bench slap to Team Trump, said in the majority opinion.

The (Trump) Campaign does not challenge the ballots of individual voters. Rather, the Campaign argues that all voters claiming indefinitely confined status since the date of the erroneous Facebook advice should have their votes invalidated, whether they are actually indefinitely confined or not. Although the number of individuals claiming indefinitely confined status has increased throughout the state, the Campaign asks us to apply this blanket invalidation of indefinitely confined voters only to ballots cast in Dane and Milwaukee Counties, a total exceeding 28,000 votes. The Campaign's request to strike indefinitely confined voters in Dane and Milwaukee Counties as a class without regard to whether any individual voter was in fact indefinitely confined has no basis in reason or law; it is wholly without merit.

Roggensack, in a dissent joined by Grassl Bradley and Ziegler, was the only other justice to directly address the issue, and she did so only briefly. 

In the pending matter, we do not have sufficient information about the 28,395 absentee voters who claimed this status in Milwaukee and Dane counties to determine whether they lawfully asserted that they were indefinitely confined prior to receiving an absentee ballot. Therefore, I go no further in addressing this contention.                                        Next: Timeliness

By Gretchen Schuldt

The mere possibility that a man with a domestic violence record might start a relationship with a woman at work or be alone with women there is not a good enough reason to refuse to hire him in the first place, the State Court of Appeals ruled this week.

​State law prohibits employment discrimination based on a conviction record unless the conviction is for a crime with circumstances that that "substantially relate" to the job in question.

Derrick Palmer's criminal record demonstrated a tendency to "be physically abusive toward women in a live-in boyfriend/girlfriend relationship," Appeals Judge Mark Gundrum wrote for the for the three-judge District II Court of Appeals panel. The question, though, Gundrum said, was whether Cree, Inc., of Racine, showed that Palmer’s past domestic abuse is substantially related to the job he applied for. The company did not, the panel said.

Gundrum was joined in the decision by Appeals Judges Lisa S. Neubauer and Paul F. Reilly.

The decision reversed a ruling by Racine County Circuit Judge Michael Piontek. 

Palmer was convicted of in 2012 of strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property arising from a domestic altercation with a live-in girlfriend. He was sentenced to 30 months in prison and 30 months of community supervision.

In 2015, Cree, a lighting manufacturer, hired Palmer as an applications specialist, but the offer was contingent on a background check. The job would require Palmer to would work with customers and staff.

About 1,100 people worked at Cree's facility, including about 500 women.

Cree withdrew its employment offer after receiving the background check and learning of Palmer's criminal record. (Palmer also had a 2001 battery conviction related to another domestic incident, but Cree did not learn of that until later.)

Palmer filed a discrimination complaint with the Wisconsin Department of Workforce Development, and the complaint eventually made its way to the Labor and Industry Review Commission.

​LIRC found for Palmer. In its decision, the agency said that the "fact that there are female employees in the plant with whom the complainant could potentially become involved in a personal relationship that might end badly is a scenario requiring a high degree of speculation and conjecture, and one that goes well beyond any reasonable concern about job-related conduct. Moreover, the ability to meet females and form personal relationships with them is not a circumstance unique to the job at issue, but describes virtually any employment situation in which female workers might be present...." 

Cree appealed to Racine County Circuit Court, where Piontek ruled in its favor, and Palmer and LIRC appealed from there.

The appeals panel said that "Cree presented no evidence suggesting Palmer has ever been violent in a circumstance other than a live-in boyfriend/girlfriend relationship or even suggesting he has ever had such a relationship that in any way stemmed from or was related to his employment." 

Cree also presented to LIRC "no evidence suggesting Palmer would be supervising, mentoring or even working closely with female employees," Gundrum said. The panel agreed with LIRC  about the speculative nature of some of Cree's argument and that "mere contact" with others at Cree is not substantially related to Palmer's domestic violence.

Cree's position, Gundrum said, seems "more focused on the general sense that Palmer is not fit to be unconfined from prison and participating in the community at all due to his prior crimes, even though he has long since finished serving the confinement portion of his sentence."

The legislature could have exempted certain crimes, such as those for which Palmer was convicted, from the non-discrimination statute if that is what it wanted to do, Gundrum said. 

"It could have easily done that, but chose not to," he wrote.

Updated Dec. 14, 2020 to  correct the number of pages in the Fair Maps Coalition submission.

By Gretchen Schuldt

Almost 2,000 additional comments opposing a proposal to give the State Supreme Court power to draw state redistricting maps were made public in the days following the Nov. 30 comment deadline.

Negative comments came from representatives of Gov. Tony Evers; a group of nine law professors; three election scholars; two former state senators; and 1,932 various Wisconsin residents – the last in a 712-page compilation of comments from the Fair Maps Coalition. All of the submissions can be found here.

The proposal, filed with the Supreme Court by the Wisconsin Institute for Law and Liberty and former State Rep. Scott Jensen,  seeks to change the way redistricting disputes are handled by the courts.  WILL is a conservative law firm.

Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies.

The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say.

Assistant Attorneys General Anthony D. Russomanno and Brian P. Keenan, on behalf of Evers, said Jensen and WILL are asking the Supreme Court to adopt rules that conflict with the court's traditional role in original actions.
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"And they do so in the context of especially complex trial court litigation, without meaningfully addressing the core factual and practical issues that will arise," they wrote. "Further, the proposal codifies court involvement in a political process and does so before that process can even begin."

"We caution against the use of judicial rulemaking to grant jurisdiction to the Wisconsin Supreme Court over an original action that requires extensive fact-finding, is overtly political, and for which there are adequate alternative forums for resolution in the first instance," wrote the nine law professors "We do not challenge this Court’s authority to adopt rules on original jurisdiction or to hear the types of cases described in the petition. Instead, we suggest that this Court exercise its discretion to deny the petition..." 

The nine were Steven G. Calabresi, Zachary D. Clopton, James E. Pfander, and Martin H. Redish – Northwestern Pritzker School of Law; Maureen Carroll – University of Michigan Law School;  Michael C. Dorf – Cornell Law School; Atiba R. Ellis and Edward A. Fallone – Marquette University Law School; and David S. Schwartz – University of Wisconsin Law School.

Three other lawyers, who are election scholars, noted that the Supreme Court spent years considering redistricting issues before it declined in 2009 to adopt court rules for redistricting disputes.

The Jensen / WILL submissions do not mention the court's earlier consideration, wrote the experts, Justin Levitt, of the Loyola Law School; Nicholas Stephanopoulos, of Harvard Law School; and Robert Yablon, of UW Law School.

"That is a bewildering omission," they wrote. "To overlook the relevant history is to miss hugely important lessons about the challenges of rulemaking in this area."

They continued: "When this court last considered the issue, two overarching concerns drove its decision not to act: first, that adopting rules would encourage redistricting disputes to be resolved through litigation in this court rather than through the political process; and second, that inviting politically fraught redistricting litigation would threaten the court’s institutional integrity. On each of these scores, this proposed rule is far worse than the proposal that the court previously rejected."

Former State Senators Dale Schultz, a Republican, and Tim Cullen, a Democrat, submitted joint comments opposing the proposal.

"We...know that in times of increased political division, it is unlikely the Legislature will accomplish this important work if it knows the State Supreme Court is waiting, willing to take the issue out of their hands," they wrote. "We ask you to respect the Legislature as a coequal branch of government, and not adopt this rule that would prematurely involve the court in a political question."

A (very) small sampling of the comments from 1,932 individuals and compiled by the Fair Maps Coalition is below. 

"If this rule change is to take place, it will further limit the ability of the public to provide input on the process. I feel all stakeholders, not just party representatives, should continue to have an opportunity to influence this process. The rule change request is clearly politically motivated, and so should be denied in favor of the current process that uses an independent, non elected federal judge." – Aaron Day, Green Bay

"This will result in harmfully politicizing the court, excluding nonpartisan groups from full participation. This rule also provides insufficient transparency measures. Transparency is an important part of all branches of government in our democracy." – Agnes Welsch, Menomonie

"I oppose the WI Supreme Ct being allowed to take jurisdiction on redistricting matters. All parties should be allowed to plead their case about redistricting matters, not just political parties. Also, allowing the WI Supreme Ct to simply disregard the proposed rules and come up with their own, if they wish to, is unfair and improper and will lead to serious questions about political influence and transparency. Finally, Plaintiffs should be allowed to plead their case in federal courts, if necessary, to make sure their grievances are heard!" – Arthur Anderson, Elm Grove

"Allowing a rushed process disadvantages many individuals and groups. To honor our history as a democratic nation, we must allow all voices to be heard on equal grounds. Political parties may come or go, but people are here to stay." – Ann Lewandowski, Waunakee

"The GOP 'Justices' on the WI Supreme Court are setting WI back hundreds of years!" – Michael Goodman, Madison 

​Attorney General Josh Kaul appealed the judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The appeal will be heard by the District III appeals court. The state is allowed to choose the appeals court district as long as it is not the district that includes the court that issued the original decision.
District III is located in Wausau and consists of judges Lisa K. Stark , Thomas M. Hruz, and Mark A. Seidl.

In the trial court, WJI and the individual plaintiffs argued that the ballot question failed to warn voters that they were striking the state constitution’s only reference to a defendant’s fair trial, eliminating a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altering defendants’ rights set forth in other sections of the Wisconsin Constitution and state statutes.

Remington agreed, writing that the question at hand was “about the integrity of the process of amending the State Constitution by ballot. Voters deserve to know what they are voting on.” 
Plaintiffs also argued that the ballot question directly misled voters, telling them that the amendment would protect a victim’s and an accused’s rights “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives. Again, Remington agreed.

Finally, plaintiffs argued that the amendment contained more than one subject, requiring multiple ballot questions. Remington agreed again, holding that under the Wisconsin Constitution two questions were required: one for expanding victims’ rights and one for narrowing rights of the accused.

Remington did not comment on the public policy of Marsy’s Law. Instead, he focused on process, stating that “Wisconsin voters deserve no less than to be asked the right question(s). Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”

Marsy’s Law is the personal cause of billionaire and now convicted drug felon Henry Nicholas III. He and his organizations have advocated for passage of substantially similar amendments in at least 20 states. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organization aims to be “ultimately successful at the national level” as well.
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Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters.