 Johnson A bill pending in the state Legislature that would allow "elder" victims and witnesses to provide early testify in criminal cases is unnecessary and provides undue benefits to prosecutors, WJI told a Legislative committee last week.
The bill, Assembly Bill 43, would allow witnesses and alleged victims at least 60 years old to give their testimony in criminal court cases ahead of the trial and possibly over the phone. The measure already has been approved by the state Senate as Senate Bill 18. "Although we very much sympathize with complainants in criminal cases who are older, this bill duplicates a process that already addresses many of the concerns that exist in these situations," WJI President Craig Johnson said in testimony to the Assembly Judiciary Committee. State law allows a witnesses' testimony to be taken provided through deposition if it appears the person will not be able to appear at trial. The law gives judges the power to reject deposition requests. The law also allows either side to request deposition testimony. AB43, however, would allow only the prosecution to request early testimony and does not require a reason for the request. The judge would be required to hold a hearing within 60 days to take the testimony. Johnson said the bill would create a speedy trial right for alleged victims and witnesses. That, he said, "could adversely impact a defendant's ability to prepare a defense. In so doing, it can create grounds for costly appeals which would drag out cases longer than under current law. This is the exact opposite result from what appears to be intended." The bill does not say what happens if the judge fails to meet the 60-day deadline, Johnson wrote. "What if the defendant does not have a lawyer representing him or her?" he asked. "What happens if the defense lawyer has been on the case for just a few days or a week and has not been given adequate time to prepare? What if a defense investigator has not finished work on the case? Again, these are issues that can result in lengthy and costly appeals." The bill also could violate a defendant's constitutional right to confrontation because it would allow alleged victims and witnesses to testify by phone or by audivisual means, rather than face-to-face, "live" in a courtroom, he said. "Finally," Johnson said, "the bill says that the elder's testimony 'shall be admissible in evidence against the defendant in any court proceeding in the case.' It does not make mandatory admissibility of the testimony on behalf of the defendant if it is exculpatory." Other groups offered testimony in favor of the bill. The Alzheimer's Association, for example, said it has "witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify in the case." The Greater Wisconsin Agency on Aging Resources, Inc., the Elder Law and Special Needs Section of the State Bar of Wisconsin, and AARP Wisconsin also supported the bill.
0 Comments
 Roggensack 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 a WJI insertion. The case: Tavern League of Wisconsin v. Andrea Palm Majority: Justice Patience Roggensack (18 pages), joined by Justices Rebecca Grassl Bradley and Annette Ziegler Concurrence: Justice Brian Hagedorn (2 pages) Dissent: Justice Ann Walsh Bradley (15 pages), joined by Justices Rebecca Dallet and Jill Karofsky The upshot The Department of Health Services (DHS) Secretary-designee, Andrea Palm, issued Emergency Order 3 on October 6, 2020, as a response to the COVID-19 pandemic. Emergency Order 3 limited the size of indoor public gatherings either to 25 percent of a facility's permitted capacity or, if no general capacity limit was prescribed, to 10 people. We conclude that Emergency Order 3 meets the definition of a rule, as we recently explained in Wisconsin Legislature v. Palm. Therefore, Emergency Order 3 should have been promulgated according to rulemaking procedures. Because it was not, Emergency Order 3 was not validly enacted and was unenforceable. Accordingly, we affirm the decision of the court of appeals. Background On October 6, 2020, as her second response to COVID-19 cases in Wisconsin, Palm issued Emergency Order 3. Emergency Order 3 limited the number of people who could be present at indoor, public gatherings.... Emergency Order 3 stated in part: 2. Public gatherings limited. a. Public gatherings are limited to no more than 25% of the total occupancy limits for the room or building, as established by the local municipality. b. For indoor spaces without an occupancy limit for the room or building that is established by the local municipality, such as a private residence, public gatherings are limited to no more than 10 people. The order listed entities who were exempt from its public gathering limits: childcare settings, schools and universities, health care and human services operations, Tribal nations, governmental and public infrastructure operations (including food distributors), places of religious worship, political rallies, and other gatherings protected by the First Amendment. Emergency Order 3 was enforceable by civil forfeiture, and it was to be effective until November 6, 2020. One week after DHS issued Emergency Order 3, the Tavern League of Wisconsin, Inc., the Sawyer County Tavern League, Inc., and the Flambeau Forest Inn, LLC (collectively the "Tavern League plaintiffs") initiated this lawsuit in Sawyer County circuit court. The Tavern League plaintiffs alleged that Emergency Order 3 was "a general order of general application . . . in other words, it is a rule." The Tavern League plaintiffs further alleged that DHS did not undertake proper rulemaking procedures under ch. 227 and as required by our decision in Palm.... The circuit court, the Honorable John M. Yackel originally presiding, granted the Tavern League plaintiffs' motion for an ex parte temporary injunction. Judge Yackel did not provide reasoning for his decision.... (Later) the circuit court, the Honorable James C. Babler now presiding, granted The Mix Up's motion to intervene but vacated Judge Yackel's ex parte order and denied The Mix Up's motion for temporary injunctive relief.... The court of appeals summarily reversed the circuit court.... The guts The Mix Up urges us to dismiss the review that we granted to DHS because the issues are now moot. The Mix Up argues that, because Emergency Order 3 expired on November 6, 2020, there is not a live controversy.... The Mix Up is correct that the issue in this case is moot; Emergency Order 3 expired on November 6, 2020. However, we conclude that this case satisfies several of our mootness exceptions set forth above, one of which we address below.... Emergency Order 3 impacts every person in Wisconsin, in one way or another, and it is open to all who come into Wisconsin during its operation. It charts a course that the Secretary-designee will repeat with future orders. Accordingly, it is important to confirm, once again, that Emergency Order 3 is beyond the power that the legislature delegated to the Secretary-designee. This satisfies the great public importance mootness exception. Accordingly, we decline to dismiss our review; instead, we turn to the merits.... (In Palm) We...explained that agency action that exhibits all of the following criteria meets the definition of a rule: "'(1) a regulation, standard, statement of policy or general order; (2) of general application; (3) having the effect of law; (4) issued by an agency; (5) to implement, interpret or make specific legislation enforced or administered by such agency.'" The court of appeals concluded that Emergency Order 3 was a rule because it was issued by DHS purportedly pursuant to its authority under Wis. Stat. § 252.02(3), it imposed statewide restrictions on public gatherings and it made subjective policy decisions regarding which entities were subject to its mandate and which entities were exempt. Because Emergency Order 3 was not promulgated as a rule the court of appeals concluded that it was invalid and unenforceable. We agree. On its face, Emergency Order 3 meets the definition of a rule and DHS was required to comply with rulemaking procedures in ch. 227. DHS contends that Emergency Order 3 was not a rule because it issued Emergency Order 3 under Wis. Stat. § 252.02(3)6 rather than the more general statutory subsections discussed at length in Palm, namely §§ 252.02(4) and (6)....Additionally, DHS argues that § 252.02(3) "confer[s] well-delineated statutory power" and therefore does not require rulemaking to enforce. This argument reads Palm too narrowly and misses Palm's overarching holding....(W)hether DHS issued Emergency Order 3 under a different statutory subsection than those Palm focused on is of no import if DHS's action meets the definition of a rule.... Emergency Order 3 is a general order generally applied, and therefore, it meets the facial definition of a rule...explained further in Palm.... Emergency Order 3 satisfied all five criteria that define a rule and, because it was not promulgated through rulemaking procedures, it was not valid or enforceable.  Hagedorn Concurrence
Some details have changed, but this case arises because Palm issued another order doing exactly what this court said she may not do: limit public gatherings by statewide order without promulgating a rule. Palm hopes to achieve a different outcome this time by seizing on some of the vulnerabilities in last term's decision. To be sure, the court's rationale in Palm was, in some respects, incomplete. My objections to the court's legal analysis were no secret. But creative efforts to engineer a different result from an indistinguishable set of facts would, in my view, be a departure from basic principles of judicial decision-making. The reach and nature of stare decisis——a Latin phrase that means "to stand by things decided"——is the subject of much debate.1 But if stare decisis is to have any import at all in our legal system, it surely must apply when a court has told a specific party that certain conduct is unlawful, and that party does the very same thing again under the same circumstances. That is what we have here. No further clarification of our opinion in Palm is needed; its application is plain. We held that Palm's statewide order limiting public gatherings (along with a number of other restrictions) meets the statutory definition of a rule, and must be promulgated as a rule to have legal effect. Respect for this court and its authority compels me to stand by that decision today. Updated 4/15/2021 By Gretchen Schuldt 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 does not prohibit brewing beer at home, but prohibits possessing the apparatus that could also be used for liquor-making. Think carboys and airlocks. The bill also would outlaw possession of stills not used to make alcohol. Collectors may have them, and stills are used to distill other, non-alcoholic products such as water, oils and perfumes. The bill also carries a presumption of guilt. It 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."  Hagedorn 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.  Grassl Bradley Dissent
For years, the Wisconsin Elections Commission (WEC) undertook responsibility for notifying voters of WEC's receipt of information indicating they had moved and therefore may need to register to vote using their new addresses. If a voter failed to confirm the validity of the registered address, WEC removed that voter from the rolls, in accordance with state law. In 2019, WEC decided to disregard the law and instead delay deactivation of ineligible voters for up to two years. The majority relieves WEC of its statutory obligations, determining that these duties actually belong to local election officials and not WEC. The majority's decision leaves the administration of Wisconsin's election law in flux, at least with respect to ensuring the accuracy of the voter rolls. The majority is correct that, pursuant to Wis. Stat. § 6.50(3), "municipal clerk[s] or board[s] of election commissioners" have a statutory obligation to change an elector's registration from eligible to ineligible status if an elector has moved. In reading the election statutes in isolation, however, the majority misses the broader picture: under the full statutory scheme of Wisconsin's election laws, WEC – the state's chief election commission – also has a statutory obligation to change the status of ineligible voters on the statewide voter registration list. Wisconsin Stat. § 5.05(15) makes WEC "responsible for the design and maintenance of the official registration list" statewide and § 5.05(2w) gives WEC "responsibility for the administration of chs. 5 to 10 and 12...." Reading these statutes as a whole reveals WEC's "positive and plain duty" to fulfill its statutory responsibility to change the status of ineligible voters; therefore, the circuit court properly issued a writ of mandamus – a conclusion that should come as no surprise to WEC considering it has routinely complied with this duty for years. The majority's circumscribed statutory interpretation leaves WEC off the hook for its violations of Wisconsin's election laws. I respectfully dissent.... As documented in the record in this case, in 2017 ERIC sent WEC a maintenance report showing a list of registered voters for whom ERIC received data indicating they had moved and were no longer eligible to vote at their listed addresses. After reviewing this list to ensure its accuracy, WEC sent notices to those voters asking them to confirm whether they still lived at their registered addresses. With respect to voters who failed to confirm their addresses, WEC marked their registration records as ineligible and required those individuals to re-register before voting again. These actions demonstrate that WEC understood and embraced its duty under Wisconsin's election laws to maintain the voter rolls. In 2019, ERIC sent WEC another maintenance report with a list of registered voters who ostensibly had moved. Again, WEC vetted this information to ensure its accuracy and subsequently sent notices to the affected voters. This time, however, for voters who did not confirm whether they still lived at their registered addresses, WEC did not promptly change its records to reflect these voters' ineligibility. Instead, WEC decided to delay deactivation of these voters' registrations for up to two years, thereby knowingly permitting voters to cast ballots in multiple elections with invalid registrations. Wisconsin's applicable election laws had not changed. As a general matter, Wis. Stat. § 6.36(1)(a) requires WEC "to compile and maintain electronically an official registration list." (Emphasis added). Wisconsin Stat. § 5.05(15) expressly mandates that WEC "is responsible for the design and maintenance of the official registration list under s. 6.36." (Emphasis added). Although Wisconsin courts have never directly interpreted this statute, its interpretation is dispositive in this case. Indeed, "to maintain" is more than just an obligation to create a registration list or to electronically insert data; it is a duty to "maintain" its accuracy. The ordinary meaning of "to maintain" is to "to keep in a condition of good repair or efficiency." Applying the legislature's plain language, to "maintain" the official registration list means WEC must ensure its accuracy. An interpretation that permits WEC to escape its statutory obligation to ensure the accuracy of the voter rolls would be absurd.... Notwithstanding Wis. Stat. § 6.50(3)'s applicability to municipal clerks and board of election commissioners, WEC once recognized its own, independent obligation under state and federal law to ensure the accuracy of Wisconsin's voter rolls.... WEC decided to rewrite the law to give such voters "between 12 months and 24 months" after the notification was sent. Failing to follow the legislature's mandate – as WEC did in this very case – opens the door to voter fraud, erodes "[c]onfidence in the integrity of our electoral processes, . . . drive[s] honest citizens out of the democratic process, and breed[s] distrust of our government...." In addition to contaminating Wisconsin's elections, WEC's refusal to obey the circuit court's order harmed the integrity of Wisconsin's justice system. The court of appeals' stays in this case excused WEC's allegedly contemptuous conduct and signaled to the public that no one is bound by a circuit court order. Defiance of court orders, permitted by the court of appeals and now condoned by this court, threatens the integrity of our entire judicial system. ...  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." Johnson 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."  Seidl 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. Hagedorn 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. Grassl Bradley 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.... There were 45,486 state court criminal convictions for marijuana possession from through 2010 through 2019. Check out the county-by-county breakdown, along with trends, here. The data is from Wisconsin Circuit Court Access system via the Milwaukee County District Attorney's Office. Catch our earlier post here.  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: Applegate-Bader Farm, LLC v Wisconsin Department of Revenue Majority: Justice Patience Roggensack (26 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca Dallet, and Jill Karofsky. Dissent: Justice Brian Hagedorn (10 pages) Not participating: Justice Annette Ziegler  Roggensack The upshot We conclude that administrative agencies must consider indirect, as well as direct, environmental effects of their proposed rules when deciding whether to prepare an EIS. Therefore, Applegate met its threshold burden even though it alleged only indirect environmental effects of the rule. On review of the Department's decision not to prepare an EIS, we conclude that the Department failed to develop a reviewable record that demonstrates that it made a preliminary investigation and reached a reasonable conclusion about the environmental consequences of its action. Therefore, the Department failed to comply with WEPA. Accordingly, we reverse the court of appeals' decision that concludes to the contrary. Background Applegate operates a farm in southern Wisconsin on approximately 11,000 acres of land. Roughly 2,000 of those acres are enrolled in a federal Wetland Reserve Easement (WRE) ("easement") through the Agricultural Conservation Easement Program (ACEP). Applegate's easement is permanent, and therefore it is unable to use the land subject to the easement for agricultural purposes. This action arises out of a 2015 revision of Wis. Admin. Code § Tax 18.05(1)(d) and the effect that that revision had on landowners with certain conservation easements.... (State law allows agricultural land to be taxed at a generally lower rate than other types of property, which must be taxed uniformly. In 2015, the state adopted a rule limiting the types of land subject to an easement that qualified for the agricultural rate. Applegate's 2,000 acre easement did not qualify. – WJI) As it relates to Applegate's WEPA (Wisconsin Environmental Policy Act) claim, Applegate alleged the following: 206. The final rule order excluded wetlands covered by the ACEP and WRE and completely removed agricultural use value assessment from wetlands enrolled in the Stream Bank Protection program...; the Conservation Reserve Enhancement program...; and the Non-point Source Water Pollution Abatement program.... 207. The Department ignored and/or failed to consider evidence in its possession from the Department of Natural Resources that the exclusion and removal of wetlands in agricultural conservation easements from Tax 18.05(1)'s definition of "agricultural use" causes farmers to destroy sensitive wetlands by placing cows within the wetlands to achieve use value assessment. 208. The Department further ignored and/or failed to consider evidence in its possession from the [Department of] Natural Resources that the exclusion of WRP/WRE easements from Tax 18.05(1) is causing property owners to not enroll their wetlands into the federal program. 209. The removal and exclusion of wetlands conserved in agricultural easements from agricultural use value will result in the further destruction, degradation and loss of wetlands in this State. 210. The exclusion and removal of wetlands conserved in agricultural easements from agricultural use value has and will continue to have a significant effect upon the environment, thus, necessitating compliance with WEPA, Wis. Stat. [§] 1.11.... 215. The Defendants failed to fulfill their independent duties under WEPA, Wis. Stat. § 1.11, to evaluate the environmental impact of excluding permanent conservation easements from Tax 18.05(1)(d) and failed to consider [the] full range of reasonable alternatives to minimize adverse social, economic and environmental impacts to the Plaintiff, state taxpayers, the effect on the State's wetlands and associated wildlife. 216. The final decisions (and non-decisions) of the Defendants relative to the passage of Tax 18.05(1)(d) were arbitrary, capricious, erroneous and contrary to law under WEPA... The court granted the Department's motion for summary judgment on the WEPA claim, holding that Applegate failed to allege facts that supported its claim of environmental effect of the rule.... (The Court of Appeals upheld the ruling. – WJI) The court of appeals read our decision in Wisconsin's Environmental Decade, Inc. v. DNR to obviate the need for an EIS for indirect environmental effects. Because Applegate's claims of environmental harm were all indirect, the court held that it had not raised a bona fide WEPA claim.... The guts The court of appeals was incorrect. As we have consistently held, agencies must consider both direct and indirect environmental effects of their major actions to determine whether those effects will have a significant effect on the human environment. Accordingly, we conclude that Applegate met its threshold burden under WED III, and we therefore address the record underlying the Department's negative-EIS decision. As WEPA is based principally on the National Environmental Policy Act (NEPA), we may look to federal law in our quest to interpret WEPA's requirements. Under NEPA, "effects" include both direct and indirect effects, and indirect effects are defined as those that "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." Especially pertinent to this case, "[i]ndirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems." Similarly, federal courts have long held that federal agencies must consider both direct and indirect environmental effects of major agency actions when determining whether to prepare an EIS. Despite what we thought was clear direction, the court of appeals read part of our decision in (Wisconsin Environmental Decade) as requiring a WEPA petitioner, such as Applegate, to allege that an agency action must have direct environmental effects in order to raise a bona fide WEPA claim. Specifically, the court of appeals concluded that "Applying WED [IV] here, it is clear that [Applegate's] theory of indirect effects of (the tax code) on how farmers use easement program lands cannot, on its own, give rise to a bona fide claim under WEPA." The court of appeals misread WED IV.... We were not referring to indirect environmental effects, but rather, we were referring to indirect, nonenvironmental effects.... However, that holding does not undermine the principle that indirect environmental effects may on their own become "significant" and necessitate an EIS. Having confirmed that indirect environmental effects are to be considered in deciding whether to prepare an EIS and that Applegate has made sufficient allegations to constitute a bona fide WEPA challenge, we now consider the two-step review that we apply to negative-EIS decisions. Once again, the steps are: (1) whether the agency has developed a reviewable record, and (2) whether the record reveals that the agency's determination not to prepare an EIS was reasonable. We conclude that, for the reasons discussed below, the Department failed the first step of this analysis. It did not develop a record from which we may conclude that its negative-EIS decision was reasonable. ... We have, on several occasions, concluded that an agency's record was satisfactory despite the record not having the specific information or investigation that the petitioner would have preferred....However, in each of those cases, the record revealed that the respective agency's decision was well reasoned and considered both the relevant environmental effects and the consequences of those effects. Such a record was not developed here. The Department's rulemaking record spans just over 800 pages. The Department argues that this record is sufficient to permit judicial review of its negative-EIS decision. We disagree. Upon a review of the record we notice documents and information that would signal to an agency that its action may have environmental effects and that it may need to take a "hard look" at those potential effects. However, what is not present within this administrative record is any agency discussion of the environmental effects of the rule. Nor is there any discussion, memoranda, e-mail, transcript or other documentation that explains the Department's rationale behind its negative-EIS decision. Without anything in the record that demonstrates the Department's reasoning for its negative-EIS decision, we are unable to conclude that the Department satisfied the first step of our required review.... We conclude that administrative agencies must consider indirect, as well as direct, environmental effects of their proposed rules when deciding whether to prepare an EIS. Therefore, Applegate met its threshold burden even though it alleged only indirect environmental effects of the rule. On review of the Department's decision not to prepare an EIS, we conclude that the Department failed to develop a reviewable record that demonstrates that it made a preliminary investigation and reached a reasonable conclusion about the environmental consequences of its action. Hagedorn The dissent
The majority concludes administrative agencies must consider both direct and indirect environmental effects when deciding whether to prepare an Environmental Impact Statement (EIS) under the Wisconsin Environmental Protection Act. I agree. I part ways with the majority, however, because Applegate-Bader Farm, LLC (Applegate) did not assert a bona fide challenge, and therefore the Department of Revenue (DOR) was not required to prepare an EIS. To raise a bona fide challenge, Applegate must credibly allege that the rule change would significantly affect the environment's status quo prior to the change. Applegate's allegations do not come close to credibly alleging that the policy under the new rule as compared to the old rule would cause significant environmental impact. I respectfully dissent because I conclude that the rule amendment was not promulgated in violation of WEPA.... How is the judiciary to determine when an action might have a significant effect on the environment such that an EIS is required? State and federal courts analyzing this kind of language have understood this statutory call to leave significant room for agency discretion. To that end, this court adopted the following approach for so-called negative-EIS determinations: We are of the opinion that the test of reasonableness should be applied to review a negative threshold decision under WEPA. Complete de novo review would be akin to treating the entire question of significant environmental effect as one of law. Where a question of law is presented, the reviewing court of course will determine the question independently regardless of the standard by which the agency's overall decision is to be tested. However, the question whether there is present in a given case a major action significantly affecting the environment will in general be a matter of both law and fact. . . . [Wis. Stat. § 1.11(2)(c)] contemplates the exercise of judgment by the agency, but that judgment must be reasonably exercised within the limits imposed by the Act. This reasonableness standard has governed review of WEPA claims ever since. Moving beyond the statutory command, we went further...and mandated a process for the express purpose of enabling judicial review. Namely, an agency must create "a reviewable record reflecting a preliminary factual investigation covering the relevant areas of environmental concern." We then review that record to determine whether the agency made a "reasonable judgment" that no EIS is needed. This court recognized, however, that an agency need not undertake a preliminary investigation for every single major agency action. We observed that some alleged environmental challenges would be so "patently trivial or frivolous" that an agency may reasonably conclude no preliminary investigation is required to pass them over; searching judicial review in that circumstance would be inappropriate. Id. at 424. We explained that where it is clear that an action will not significantly affect the quality of the human environment, no bona fide challenge is made and an agency may reasonably decide not to conduct any further investigation. DOR has not challenged this framework here, and I accept these basic principles. Nonetheless, it is worth candidly observing that the preliminary investigation requirement is a judicial creation, not a statutory mandate. While the desire for courts to have something to work with is understandable, and perhaps necessary, this judicially-imposed preliminary procedure is a means to review compliance with actual statutory commands, and should be understood in that light. This case raises the question of whether a bona fide claim was made, thus requiring a preliminary investigation. In my view, the majority's approach to this requirement is too strict, and insufficiently attentive to the fact that we're a judicially-created step removed from the statutory requirement itself. Again, WEPA requires an EIS for major actions significantly impacting the environment, not a preliminary investigation into whether an EIS is required.... Additionally, as a matter of consistency with the statute, a bona fide challenge should also demonstrate that the agency knew or should have known of the significant environmental effect at the time it considered the major action. Unless the agency is presented the information during the rulemaking process, it may not learn of the alleged effect until long after the rule has been promulgated. WEPA does not require invalidation of already-promulgated rules based on information about the environment that was not known, constructively or otherwise, before the rule was adopted. Therefore, the bona fide challenge requirement should demand credible allegations that the agency knew or should have known of the particular and potentially significant environmental effects alleged in the challenger's complaint. In this case, Applegate's complaint references documents found in the rulemaking record, but it nevertheless falls short of stating a bona fide challenge. Even assuming DOR knew of Applegate's allegations during the rulemaking process, these allegations, as articulated in the majority's citation to Applegate's complaint, do not rise to the level where DOR needed to prepare an EIS or even investigate further.... Nowhere does Applegate explain how the 2014 amendment to § Tax 18.05 altered...baseline environmental condition(s) (or for that matter how DOR should have evaluated such an effect). Therefore, I conclude Applegate failed to state a bona fide WEPA challenge.  Chisholm By Gretchen Schuldt Criminal cannabis convictions dropped significantly in Milwaukee County and the state over a 10-year period, but racial gaps remain, according to a new report by the Milwaukee County District Attorney's Office. And the statewide decline largely was driven by what happened in Milwaukee County, according to the report. While the number of cannabis arrests dropped dramatically in Milwaukee County from 2010 through 2019, the state's arrest numbers remained steady, peaking in 2018 at 17,428. Statewide, "arrests for possession of marijuana have not decreased below 14,000" per year during the decade, the report said. Overall, the number of marijuana possession arrests in Milwaukee County dropped 60%, from 4,785 to 1,927 from 2010 to 2019, according to the data. That is a decline of 2,858 arrests. "Arrests now represent ~ (about) 13% of overall state arrests (down from ~33%), with ~16% of Wisconsin's population," the report said. The number of convictions in the county declined 94% over the same time period, the report said. There were 1,285 convictions in 2010 and just 96 in 2019, a decline of 1,189. The drop in Milwaukee County convictions drove a statewide decline over the decade, the report said. Convictions for marijuana possession dropped statewide from 5,108 in 2010 to 4,021 in 2019, a decline of 1,087, or 21%. "Notably, 2018 conviction trends without Milwaukee saw 10-year highs," the report said. "And felony convictions only decreased ~3% instead of a ~43% decrease." Still, racial disparities persist. Black people in 2019 were 3.2 times more likely than Whites to be arrested in Milwaukee County for marijuana possession only, without other crimes attached, according to the report. The gaps were far larger in some other counties, the report said. "The worst disparities in Wisconsin are in Ozaukee County (34.9 more likely) and Manitowoc (29.9 more likely)," the report said. Statewide, according to an earlier ACLU study, Black people were 4.2 times as likely to be arrested for pot possession than Whites. The new study, by District Attorney John Chisholm and researcher Brendan DuPont, is based on state circuit court records and FBI arrest data. The study is part of the office's efforts with the National Institute of Corrections Evidence-Based Decision Making Initiative to improve decision-making. "We focused on diverting or declining cases, like possession of marijuana, away from the justice system when appropriate," the report said. In 2015, Chisholm's office implemented a policy to not prosecute non-violent individuals who possess 28 grams (just under an ounce) or less of marijuana, the report said. Chisholm said in an interview that his office is unlikely to charge marijuana possession cases unless there is another issue, such as impaired driving, possession of a firearm while impaired, or an associated crime of violence. Chisholm favors cannabis legalization and regulation.  The policy does not mean that possession cases are not prosecuted at all or that the arrests just disappear. "I suspect a lot of them are sent to municipal court," Chisholm said. Municipalities in the state have the option of prosecuting marijuana possession cases in municipal courts, where offenses are punishable by forfeitures are considered civil, not criminal matters. Counties other than Milwaukee County account for much of the racial disparities in convictions, according to the report. "In 2019, Milwaukee County had 69% of the state's Black population, but only 8% of its marijuana possession convictions," the report said. "Ninety-two percent of Black marijuana possession convictions occur outside Milwaukee County, despite the rest of Wisconsin representing only 31% of the Black population." Statewide, Black people had 14 convictions per 10,000, while the White conviction rate was 3.27 per 10,000. Black people were 4.3 times more likely than White people to be convicted, according to the report. In Milwaukee County, both races were less likely to be convicted than elsewhere, but the disparity was larger. The Milwaukee County conviction rate in 2019 was .11 per 10,000 residents for White people and 1.7 per 10,000 for Black people, about 15.5 times higher than for Whites. In 2010 Black people statewide were 9.5 times more likely to be convicted in marijuana possession cases. Black people then had 39.23 convictions per 10,000, compared to White people with 4.1 convictions per 10,000. The study did not fully examine other racial groups due to a lack of reliable data. It did say, though, that convictions in marijuana possession-only cases for American Indians or Alaskan Natives hit a 10-year high in 2019. |
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The Wisconsin Justice Initiative Inc. does not endorse candidates for political office. The Wisconsin Justice Initiative Inc. is a 501(c)3 organization.