The SCOW docket: When "at the driveway" means "in the street near the end of the driveway"6/22/2022 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 upshot 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. Background 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. The guts 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. The dissent 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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By Gretchen Schuldt A court cannot order a private health care provider to implement a treatment that the provider believes is below the standard of care, the state Court of Appeals ruled this week in a split decision. The District II Court of Appeals panel, in a decision written by Appellate Judge Lori Kornblum, reversed a ruling by Waukesha County Circuit Judge Lloyd Carter and said that Aurora Health Care did not have to administer ivermectin to a COVID-19 patient. Kornblum was joined in the decision by Appellate Judge Lisa S. Neubauer. Ivermectin is primarily used as an anti-parasitic in farm animals and is given to humans to treat some parasites and scabies. It has not been approved by the FDA for COVID-19 treatment. Appellate Judge Shelley A. Grogan dissented, saying that Carter made a reasonable ruling when he issued an injunction directing Aurora to credential a doctor willing to give the treatment to the patient, John Zingsheim. The suit is one of several similar suits involving New York attorney Ralph Lorigo that have been filed around the country. In the Wisconsin case, Lorigo represented plaintiff Allen Gahl, Zingsheim's health-care representative. Gahl also was represented by attorney Karen L. Mueller, a far-Right candidate for Wisconsin attorney general. "Requests for injunctive relief must be premised on the existence of a viable legal claim upon which the petitioner can show a reasonable likelihood of success," Kornblum wrote. "Gahl fails to meet this foundational requirement. ... Because Gahl has failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment, the court erroneously exercised its discretion in granting Gahl injunctive relief." Zingsheim, 60, was admitted to the hospital in September 2021 and placed in the intensive care unit. He was intubated on Oct. 3, but his condition deteriorated. He was offered other treatments, accepting some and declining others. "Gahl, 'losing hope for [the patient’s] survival,' searched for 'an alternative treatment' and became aware of the proposed treatment" (ivermectin), Kornblum said, adding in a footnote that there is no evidence that Gahl is a doctor "or a medical professional of any kind." Gahl obtained a prescription for the drug from Dr. Edward Hagen, who did not examine Zingsheim but prescribed a drug for him based on talking to Gahl. The hospital refused to administer the drug, however, because officials believed that doing so would not meet the standard of care. Gahl went to court in an effort to force Aurora to comply with his wishes. "Importantly, Gahl initially did not submit an affidavit from Hagen or any other licensed medical professional ...explaining why the proposed treatment was necessary for this patient or within the standard of care," Kornblum wrote. Aurora argued that there is no legal authority in the state compelling a health care provider to administer a treatment the provider believes to be below the standard of care. Aurora also said that Hagen did not even have access to Zingsheim's medical records and "raised its concern to the court that the Wisconsin State Licensing Board had previously disciplined Hagen for prescribing medications to a person who was not his patient and whom he had not examined." Hagen admitted to the state Medical Examining Board that he prescribed drugs, including opiates, to a neighbor for about 1½ years without examining him beforehand. He also said he did not keep medical records on the patient or consult with the patient's physician. The examining board reprimanded Hagen in 2013. Aurora filed affidavits in support of its position, including one that described the risks that ivermectin posed. They include, according to the affidavits, heart damage, liver damage, stroke, kidney damage, hypotension, loss of bodily movement control, seizures, coma, and death. At an October hearing, Judge Carter asked for more evidence and gave the two sides until that afternoon to supplement the record. Among the items Gahl submitted was an unsworn, undated declaration from ivermectin-supporter Dr. Pierre Kory "explaining his support for the use of the proposed treatment for COVID-19 patients," Kornblum wrote. "The declaration is conspicuously devoid of any discussion of the patient in this case." "None of the documents Gahl filed relating to Kory establish that Kory ever examined this patient or spoke with this patient’s treating medical providers. ... At no time did Gahl submit any medical information from any health care professional who had actually examined this patient, reviewed this patient’s records, or who could give a medical opinion to a reasonable degree of medical probability about the benefits of the proposed treatment on this patient at this time," she wrote. Carter ordered Aurora to administer ivermectin but also set a hearing for the next day to allow Aurora to give reasons why his order should not go into effect. "While the court cited the criteria for granting a temporary injunction at the hearing, the court never applied those criteria to the facts of the case on the record or in the order," Kornblum said. "The court failed to identify which, if any, legal claim asserted by Gahl in the petition provided a basis for the injunctive relief requested, much less the legal authority supporting such a claim." Aurora sent a letter to the judge objecting to the order and saying it was "problematic." "I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for [the proposed treatment] 66mg to be taken once daily," the letter said. "The prescription does not indicate from where [the proposed treatment] is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer [the proposed treatment] 'as further ordered by Mr. Gahl.' Mr. Gahl is not a healthcare provider." At the hearing the next day, Aurora said the patient was improving and no longer tested positive for COVID. "Gahl’s attorney switched his argument from using the proposed treatment as an emergency treatment for COVID-19 to giving the proposed treatment for 'COVID and the damages that come about as a result of COVID,' ” Kornblum wrote. Carter modified his order somewhat, ruling that Gahl should find a physician willing to administer the drug and to whom Aurora could grant credentials to practice in its hospital. Once credentialed, that doctor would have permission to go to the hospital and administer the ivermectin to Zingsheim. "At no point did the court issue an oral or written order explaining whether or how Gahl had established the ... criteria for injunctive relief. The court also did not identify any claim set forth in Gahl’s petition which supported the request for relief, much less the legal authority supporting the claim," Kornblum said. Aurora appealed. Gahl effectively acknowledges that ivermectin treatment is below the accepted level of care, Kornblum said. "He admits that using the proposed treatment for COVID-19 is not approved by the FDA, as it is an 'off-label use of the drug,'" she wrote. "We do not decide the medical question of what the standard of care should be. We are not doctors. We decide the legal question, as both Aurora and Gahl agree, of whether the court has the authority to order Aurora to provide treatment that is below the currently accepted standard of care for COVID-19," she said. "The court failed to identify any viable claim upon which the temporary injunctive relief was granted, and as such, Gahl did not show a reasonable likelihood of success on the merits," Kornblum wrote. Injunctions are used to preserve the status quo, Kornblum said, but "the court’s order neither preserved nor restored the status quo between the parties, but instead altered the status quo and granted much, if not all, of the relief Gahl ultimately seeks in this case." "Recognizing that he has failed to identify any legal basis for the circuit court’s action, Gahl urges us to ignore the law based on his assertions that the treatment protocols for COVID-19 are wrong. ... These criticisms do not empower us to order a private health care provider to administer a proposed treatment that does not fall within its standard of care when there is no legal authority upon which to do so. Our role is to interpret and apply the law as written. We are bound by the law, and the law in this case does not provide a basis for judicial intervention," she said. In dissent, Grogan said the issue at hand was not, as Aurora argued, whether a court could order a provider to offer care below the standard of care; it was, instead, whether Carter erroneously exercised his discretion in granting the injunction. "Based on the record," she wrote, "it is clear the circuit court’s decision was reasoned and based on the record and applicable law." Patients have rights in Wisconsin, she said, including the right to make their own health care decisions, the right to informed consent, and the right to request and receive medically viable alternative treatments. "Although Wisconsin law does not afford a patient the right to demand any treatment the patient desires, it does recognize a patient’s right to request and receive medically viable alternative treatments," Grogan wrote. "The fact that the circuit court was presented with differing opinions about what treatment is proper for Zingsheim suggests the jury is still 'out' as to whether there is only one particular and established 'standard of care' in treating this novel virus. Time will eventually reveal what the standard of care or reasonable alternative treatment is for people in Zingsheim’s position. What is important here is that the circuit court had before it information from two independent physicians (one indicating he was the world’s foremost expert on treating COVID-19) who both agreed that a protocol different than that which Aurora had administered, without success, would be proper and could be beneficial to Zingsheim." The SCOW docket: Citing Marsy's Law, court OKs drugging pretrial defendants against their will5/25/2022 Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: State of Wisconsin v. Joseph G. Green Majority opinion: Justice Patience D. Roggensack (24 pages), joined by Justices Rebecca Grassl Bradley, Brian Hagedorn, and Annette K. Ziegler; Justices Ann Walsh Bradley, Rebecca F. Dallet and Jill J. Karofsky joined in part Concurrence / dissent: Walsh Bradley (7 pages), joined by Dallet and Karofsky The upshot We conclude that because the State's significant pretrial interests in bringing a defendant who meets each one of the factors set out in Sell v. United States to competency for trial and providing timely justice to victims outweigh upholding a defendant's liberty interest in refusing involuntary medication at the pretrial stage of criminal proceedings . . . (the) automatic stay of involuntary medication orders pending appeal does not apply to pretrial proceedings. Background On December 27, 2019, the State filed a criminal complaint charging Green with first-degree intentional homicide with use of a dangerous weapon. Pretrial, defense counsel raised reason to doubt Green's competency to proceed. The circuit court ordered a competency examination, which was completed by Dr. Craig Schoenecker and filed with the court. At the competency hearing, Dr. Schoenecker testified that Green was not competent but could be restored to competency through anti-psychotic-type medication within the 12-month statutory timeframe. ... After the hearing, the circuit court found Green incompetent. Accordingly, the court entered an order of commitment for treatment with the involuntary administration of medication. Following this determination, Green appealed and filed an emergency motion for stay of the involuntary medication order pending appeal, which was automatically granted by the circuit court pursuant to our decision in (State v) Scott. The State responded with motions to lift the automatic stay and to toll (pause) the statutory time period to bring a defendant to competence, both of which were granted by the circuit court. Green appealed. He moved for relief pending appeal, which included reinstatement of the temporary stay. The court of appeals reversed the circuit court's involuntary medication order and its order lifting the automatic stay of involuntary medication. In addition, the court of appeals determined that the circuit court lacked authority to toll the statutory time period to bring Green to competency. We granted the State's petition for review. Upon granting review, the parties submitted briefs addressing the circuit court's ability to toll the limits on the maximum length of commitment for competency restoration. However, following oral argument, additional briefing was ordered to answer whether the automatic stay required by Scott applied to pretrial proceedings. We determine: (1) whether Scott's automatic stay applies to pretrial competency proceedings and (2) whether Wis. Stat. § 971.14(5)(a)1. permits tolling the 12-month limitation provided to restore a defendant to competency. The guts
If a defendant is found to be incompetent, a court may allow the government to confine and involuntarily medicate the defendant if certain criteria are met. In Scott, the court ruled that involuntary medication orders are subject to an automatic stay pending appeal to preserve the defendant's 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs.' In Sell, the Supreme Court set forth criteria for determining when the government may be allowed to involuntarily medicate a defendant for the purpose of making the defendant competent to stand trial. In short summation, a court must find that: (1) there are important government interests at stake, including bringing a defendant to trial for a serious crime; (2) involuntary medication will significantly further those state interests; (3) involuntary medication is substantially likely to render the defendant competent to stand trial; and (4) administration of the drugs is in the patient's best medical interest in light of his medical condition. However, postconviction circumstances that call for governmental involuntary medication are "rare." As with (a prior defendant's) concern in a postconviction context, significant, competing interests underlie our consideration of the involuntary administration of medication in a pretrial context. The defendant holds the same substantial liberty interest in refusing involuntary medication, regardless of the stage of proceedings. Once a defendant is subject to involuntary medication, irreparable harm could be done. On the other hand, the State has a significant interest in bringing a defendant to trial. The State's power "to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace." Further, unlike postconviction proceedings, in pretrial proceedings, the State has yet to employ a significant portion of the criminal justice process to try to achieve justice and uphold the considerable victim and community interests at stake. For example, victims are guaranteed a right to "justice and due process," as well as a "timely disposition of the case, free from unreasonable delay." Wis. Const. art. I, § 9m(2)(d). The "unreasonable delay" phrase is part of the "Marsy's Law" amendment to the state constitution approved by voters last year. And while treatment to competency is not always necessary for postconviction proceedings, the State is required to bring a defendant to competency before a defendant can be tried. The terms of (state law) limit the treatment time for an incompetent defendant to "a period not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less." As soon as a defendant is in custody for treatment, the statutory time during which he or she may be held before trial begins. *** If the State is unsuccessful at restoring competency for trial, the likelihood of which is increased if treatment is prevented by the automatic stay of Scott, a defendant must be discharged from commitment and released unless civil commitment proceedings are commenced. . . . Since our decision in Scott, the State has been trapped on both ends of the pretrial competency process. On one hand, (statute) permits a defendant to be held for 12 months to be brought to competence. On the other hand, Scott's automatic stay of the involuntary medication order keeps the State from starting the treatment that has been ordered by a court. While the State was given some leeway in the form of a modified Gudenschwager test, this is a high burden, and when employed, can use up the entire 12-month maximum commitment period that is permitted for treatment. And, if the State is not able to satisfy this Gudenschwager test and the time during which treatment can be required expires, the State is without recourse for prosecution. This is an unexpected consequence of the automatic stay that we created in Scott. By Gretchen Schuldt A man who did not have a chance to cross examine the officer who issued him a citation or to present evidence on a new charge determined by a judge is entitled to a new trial, a state appeals court ruled Tuesday. District 1 Court of Appeals Judge Timothy G. Dugan did not even decide the case on the issue raised by defendant Roosevelt Cooper, Jr. – that he was denied discovery – but instead relied on Milwaukee County's recognition of errors in Cooper's trial. "As the County acknowledged in its supplemental brief, '[a]t no point throughout the trial was Cooper afforded the opportunity to question or cross-examine' the officer and 'Cooper was denied his right to trial,' ” Dugan wrote. "A review of the record confirms the County’s characterization of the proceedings." Cooper was cited in December 2020 for reckless driving / endangering safety. The officer who issued the citation testified at trial before Milwaukee County Circuit Judge Jonathan Richards that the officer observed Cooper speeding and making multiple lane changes while close to other vehicles. The officer said Cooper was driving about 80 mph in a 55-mph zone. The officer's dash cam video showed that Cooper drove on a non-traffic area of the roadway, changed lanes without signaling, and drove faster than the cars around his, Dugan wrote. Cooper said he swerved into the non-traffic area to avoid an accident with a car in front of him when its driver slammed on the brakes. The video, however, was never moved into evidence and Dugan said in a footnote that Cooper was not under oath when he began explaining his actions. "It was not until the county started questioning Cooper following Cooper's explanation of the video that Cooper was put under oath," he wrote. At the end of the bench trial, Richards said he could not see where Cooper endangered safety, but that Cooper was speeding, passed six cars, and drove in the non-traffic area, Dugan wrote. The judge found Cooper guilty of unreasonable and impudent speed. "The county expressed confusion over the finding, and the clerk interrupted saying that Cooper was not charged with speeding," Dugan wrote. The county said it could amend the charge to unreasonable and imprudent speed "and over Cooper’s objection, the trial court accepted the amended charge and found Cooper guilty" of the charge. Richards ordered Cooper to pay a $100 forfeiture, according to online court records. The county, in its appeals briefing, said a judge has the power to amend a charge to conform to the evidence, but that the court also must find that the parties consent to the change, Dugan wrote. That is also state Supreme Court precedent, Dugan said. "The county...concedes that the trial court failed to make any finding that Cooper consented to the amended charge, and in fact, the county maintains that Cooper was clear that he did not consent to the amended charge," Dugan said. "The county also concedes that the trial court failed to give the parties an opportunity to present additional evidence to support the amended charge." In addition, "Despite receiving an assurance that he would have an opportunity to question the officer, Cooper received no such opportunity," Dugan wrote. While he is not required to accept the county's concessions, it is appropriate in this case, Dugan said. "As a result, this court concludes that Cooper is entitled to a new trial on the amended charge of unreasonable and imprudent speed," he said. By Gretchen Schuldt A Meijer Store employee's use of derogatory, homophobic terms when talking about a co-worker disqualified her from unemployment after she got fired for the comments, a divided state Court of Appeals panel ruled recently. Susan A. Wozniak's comments constituted harassment, Appellate Judge M. Joseph Donald wrote in the 2-1 decision for the District I Court of Appeals panel. He was joined by Appellate Judge Maxine A. White. Appellate Judge Timothy G. Dugan dissented. The decision affirms Milwaukee County Circuit Judge William S. Pocan, who ruled in favor of the Department of Workforce Development in its action against the state Labor and Industry Review Commission. LIRC had contended that Wozniak was entitled to unemployment benefits; DWD disagreed. The case began when Wozniak, frustrated that a fellow greeter was not doing his job, complained to co-workers. One of them reported the conversation to management, saying that Wozniak said the co-worker was a “pretty boy,” “fairy,” and “fruit loop.” Wozniak also said that he was gay, and that “the way he skipped around the store made her sick,” according to the appeals court decision. Wozniak, interviewed by management, admitted calling the co-worker a "pretty boy," denied calling him a "fairy," and said if she had used the other terms she should not have done so. Wozniak was suspended and eventually fired. Meijer, in its dismissal, cited Wozniak's “discriminatory remarks towards a team member." Wozniak filed for unemployment, and DWD found that the firing was not for "misconduct or substantial fault connected with her employment." Wozniak was entitled to benefits, the agency said. Meijer appealed. The administrative law judge reversed DWD and ruled that Wozniak was fired for misconduct and not entitled to benefits. Wozniak appealed again, this time to the LIRC. The administrative law judge was overturned and Wozniak was back to being eligible for unemployment compensation. The LIRC vote was 2-1. DWD asked a circuit court to consider the matter, and Pocan eventually ruled that LIRC had erred in finding that Wozniak’s comments did not constitute misconduct or substantial fault. LIRC appealed. Wisconsin law, Donald wrote, defines misconduct as one or more "threats or acts of harassment, assault, or other physical violence instigated by an employee at the workplace of his or her employer.” While the law does not define harassment, DWD and LIRC agreed on a definition as "words, gestures, and actions which tend to annoy, alarm, and abuse (verbally) another person. ... [h]arassment may include verbal abuse, epithets, and vulgar or derogatory language, display of offensive cartoons or materials, mimicry, lewd or offensive gestures, and telling of jokes offensive to protected class members.” Wozniak’s comments were derogatory and aimed at the co-worker's sexual orientation, Donald wrote. "Whether the comments were made directly to the co-worker is of no consequence" under the statute, he said. LIRC contended that Meijer did not provide a definition or examples of harassment in its work rules, Donald wrote, but the law does not require that the company have an anti-harassment policy or rule. There also is no requirement that a person "knowingly" engage in harassment, he said. "We will not read additional language into a statute," he said. Dugan, in his dissent, said that Meijer had not met its burden in showing that Wozniak was fired for misconduct or substantial fault. Harassment that fits the definition of "misconduct" must include an element of intent, which Wozniak's statements did not, Dugan said. "Her comments were not loud enough for anyone to hear," he wrote. "She did not make her comments to customers, and she did not make her comments directly to the co-worker about whom she was complaining. The record is also devoid of evidence that either of these co-workers were offended or unable to continue with their work responsibilities as a result of the conversation. Thus, Wozniak’s comments were part of an isolated incident during a brief, private, casual conversation that does not rise to the level of misconduct and that demonstrates no intent to harass her co-worker within the meaning of" the law. While the majority did not address the substantial fault issue because it already found Wozniak committed misconduct, Dugan did. "As has been repeatedly stated, there is no dispute that Meijer’s workplace rules prohibited harassment but also provided no definition of what was considered harassment under the rule. ...Wozniak would have had no reason to believe that her brief, private conversation with two co-workers would qualify as harassment," he wrote. To study bail jumping in Wisconsin, WJI and the Mastantuono Coffee & Thomas law firm are looking county by county at 2021 bail-jumping charges. Which counties are charging bail jumping the most? Who are some of the defendants? What happens to those cases? We'll report the statistics from individual counties and tell you the stories from randomly chosen cases. Bayfield County Total number of cases with bail-jumping charges: 41 Total number of misdemeanor and felony cases: 178 Percent of misdemeanor and felony cases that include bail-jumping charges: 23% Total number of felony cases with bail-jumping charges: 35* Total number of all felony cases: 115 Percent of felony cases that include bail-jumping charges: 30% Total number of misdemeanor cases with bail-jumping charges: 6 Total number of all misdemeanor cases: 63 Percent of misdemeanor cases that include bail-jumping charges: 10% Largest number of bail-jumping charges issued in a single case: 6 Number of felony bail-jumping charges issued: 57 Number of misdemeanor bail-jumping charges issued: 20 *Felony cases can include felony or misdemeanor bail-jumping charges or both; misdemeanor cases can include only misdemeanor bail-jumping charges. Case counts reported as of January 2022. Case file
Ashley last year racked up 14 counts of felony bail jumping, exposing her to a potential 84 years in prison on those charges alone. Add in four counts of misdemeanor bail jumping, and she was looking at a possible 87 years – a life sentence for the 35-year-old woman – on bail-jumping charges alone. Then there were the other felony and misdemeanor charges she faced: 20 all together, ranging from disorderly conduct to battery to a law enforcement officer. In each of her cases, she posted bond. In the end, she pleaded to a variety of charges, including bail jumping. Most charges were dismissed in plea bargaining, however, and her penalty was far, far below the maximum she originally faced. As in many bail-jumping cases, alcohol and drug abuse played a big part in Ashley's legal problems. And in her case, so did her obsession with a man, whom she simply would not leave alone, according to criminal complaints. She broke into his home and harassed him with hundreds of unwanted texts. She was arrested several times on charges related to her obsession. Her 2021 bail-jumping history actually began in 2019, when she was arrested in Bayfield County for drunk driving. She pleaded guilty to first-offense OWI with a child in her car and was sentenced in January, 2020, to 30 days in jail. Her license was revoked for 14 months, and Ashley was ordered to install an ignition interlock device on her car. In February, 2020, Ashley was arrested again and charged with second-offense drunk driving, with second-offense operating with a prohibited blood-alcohol content, failure to install the ignition interlock device required after her first OWI case, and driving while her license was revoked. Her blood alcohol content was .136, according to the criminal complaint, well above the legal limit of .02 that applied to her because of the interlock requirement. In March, 2020, Ashley was busted for taking her car to the Bayfield County Courthouse at about 8:30 a.m. and to the Sheriff's Department at 12:15 p.m., according to the criminal complaint. Her occupational license, a result of her first drunk-driving case, allowed her to drive from 4:45 a.m. to 8 a.m. and from 1:30 p.m. to 5:30 p.m. Her trips to the courthouse and Sheriff's Department occurred outside those hours. She was charged in May with two counts of driving on a revoked license, a misdemeanor. Circuit Judge John P. Anderson set a $500 signature bond to cover both 2020 cases. Ashley faced her first three bail-jumping charges in July, 2021, when she was allegedly dumping clothes and other personal items belonging to her boyfriend's roommate in a burn pit and a water-filled hot tub. "Victim said that items were ruined including her leather boots ($400), leather jacket ($200), Samsung Galaxy S7 phone ($700) and other personal belongings," the complaint said. A witness told police that Ashley called him the night of the incident. Ashley told him that "she found out her boyfriend was cheating on her with his ex-girlfriend/roommate so she through (sic) some of her belongings into the hot tub and took some others," the complaint said. Ashley was charged with criminal damage to property and entry to a locked room. Because she was still on bond for the 2020 cases, she also was charged with two counts of misdemeanor bail jumping. It's unclear from online court records whether Anderson required a bond from Ashley. Things spun downward for Ashley. She was charged in August, 2021, with 15 new criminal counts. They included her first felonies and her first two felony bail-jumping charges. Police got a call on Aug. 1 from a man – apparently the same man – who was staying at his father's house. Ashley, he said, broke into his dad's and would not leave. She finally left in a car shortly before a deputy arrived. "Victim reported (Ashley) was texting him nonstop obscenities and very long messages," the criminal complaint said. Earlier that very day, shortly before 4 a.m., Ashely texted "I swear to God, if you cheated and I find out – I will cover your cock in lye" and "If you fucking cheated on me, you don't tell me the truth, and I have an STD or find out you cheated it will be very unfavorable for you and your whore." The man told a deputy that Ashley would not stop texting him despite his requests. The deputy took pictures of Ashley's texts – more than 300 in all, according to the complaint. The man told the deputy that he was worried about what Ashley might do. Note: Hey, this one is a little different! WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in three: First we shortcutted the decision, then the dissent, and now the concurrences. Why? Because this package of writings, and the strange U.S. Supreme Court decision that led to it, are extremely important to the state and country. Besides that, the SCOW decisions are unusually long – 142 pages, all in, not counting the cover sheets. And instead of allowing each writing justice 10 paragraphs, we are giving each 15. Other than that, the rules remain the same. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Billie Johnson v. Wisconsin Elections Commission Concurrence: Justice Rebecca Grassl Bradley (49 pages), joined by Justices Patience D. Roggensack and Annette K. Ziegler Concurrence: Justice Brian Hagedorn (4 pages) Dissent: Justice Jill J. Karofsky (39 pages), joined by Justices Ann Walsh Bradley and Rebecca F. Dallet (See part 2) Majority opinion: Ziegler (50 pages), joined by Grassl Bradley, Hagedorn, and Roggensack (See part 1) Grassl Bradley's concurrence This redistricting cycle proceeded in a manner heavily focused on color, supposedly for remedial purposes, but accomplishing nothing but racial animosity as showcased by the dissent's race-baiting rhetoric and condescension toward people of color. The United States Supreme Court rejected Homer Plessy's argument that racial segregation violates the Fourteenth Amendment, to its everlasting shame. Plessy exists in our nation's history as a stain, dishonoring America's quest for equality under the law for all, which began with the founding. At times, the United States has strayed from this sacred principle, often on the basis of sham social science of the day promoting the repugnant notion that people of different races would be better off if the law distinguished between them. Allowing social science to infect constitutional analysis inevitably "result[s] in grave abuses of individual rights and liberty." *** Judges can certainly consider whether a particular government action has had a disparate impact on minorities – our color-blind Constitution does not countenance ignoring incidents of discrimination. Under a color-blind approach, however, this court may not order a remedy that purports to address racial discrimination by discriminating on the basis of race. The Constitution prohibits this court from sorting people on the basis of their race. *** Imposing a race-based redistricting plan, without strong evidence of necessity, endorses the stereotype that people of the same race must think alike and must think differently than people of other races. Governor Evers' plan, adopted by this court on March 3, imposed "distinctions . . . based upon race and color alone," which is "the epitome of that arbitrariness and capriciousness constitutionally impermissive under our system of government." *** The inconclusive pseudo-science presented to this court fell far short of justifying race-based redistricting, as the majority opinion thoroughly explains. It amounted to little more than selectively-cited election data, which appears to have been researched only after-the-fact. That is to say, mapmakers seem to have used racial stereotypes, not legitimate social science, to heuristically draw maps that segregated people based on race. No such "shortcuts" are allowed for proponents of race-based redistricting as a remedy for past discrimination. The dissent's ambitious attempt to paint Milwaukee County as the Jim Crow-era South reflects "an effort to cast out Satan by Beelzebub." The dissent would remedy what it perceives as racial disparities by literally "draw[ing] lines between the white and the black" with no apparent recognition that doing so replaces one devil with another. *** The people have a "right to know" what happened this redistricting cycle. Unfortunately, media coverage on this case, like on so many others, has been skewed by partisan pundits disappointed in the "results." One media outlet went so far as to run a subheadline attacking the motives of the nation's highest court: "The justices [of the United States Supreme Court] are concerned that Wisconsin's legislative maps may give too much political power to Black people." Ian Millhiser, Black Voters Suffer Another Significant Loss in the Supreme Court, Vox (Mar. 23, 2022) https://www.vox.com/2022/3/23/22993107/supreme-court-wisconsinrace-gerrymander-voting-rights-act-legislature-electionscommission. Worse still, while accusing the justices of indulging an "inflammatory assumption," specifically, "[t]hat legislative maps with fewer Black-majority districts are often preferred to those that give more power to Black voters," the author made an inflammatory assumption of his own, seemingly designed to foster racial tension. See id.; see also Mark Joseph Stern, The Supreme Court's Astonishing, Inexplicable Blow to the Voting Rights Act in Wisconsin, Slate (Mar. 23, 2022), https://slate.com/news-and-politics/2022/03/supreme-court-voting-rights-shredder-wisconsin.html. *** Governor Evers' oddly shaped districts are numerous — and many of the odd shapes in his plan are analogous to the PMC's (People's Maps Commission). For example, Governor Evers redrew Senate District 4, currently represented by Sen. Taylor, to extend into Waukesha and Ozaukee Counties. The result was a substantial decrease in BVAP (Black voting-age population). Under his plan, Assembly District 11 would extend to Mequon. In critiquing a similar feature of the PMC's map, Rep. LaKeshia Myers rhetorically asked, "[w]hy? That's going to cross the county line. Doesn't make sense. Doesn't make sense at all. . . . That's not going to stick when it comes to people's interest. That's not going to stick when it comes to thinking you're going to elect people that look like me." Without any VRA (Voting Rights Act)-grounded justification, Governor Evers violated Article IV, Section 4 the Wisconsin Construction, which requires assembly districts "to be bounded by county, . . . town, or ward lines[.]" Governor Evers' plan also would have harmed the Black community by forcing it to bear the brunt of disruption stemming from redistricting. While demonstrating high overall core retention, Governor Evers concentrated major changes in Milwaukee County, proposing what the Legislature fairly labelled a "most-change Milwaukee" map. According to the Legislature, Governor Evers' plan would have retained merely 72.6% of Milwaukee-area voters in their current district. In accordance with the principles expounded in our November 30 opinion, this court rightly rejects a "most-change Milwaukee," as the Legislature did with a bipartisan vote months ago. "State authorities" should not "localize the burdens of race reassignment" on a particular community. It leaves "the impression of unfairness" when a discrete and insular minority "disproportionately bears the adverse consequences of a race-assignment policy." This redistricting cycle proceeded in a manner heavily focused on color, supposedly for remedial purposes, but accomplishing nothing but racial animosity as showcased by the dissent's race-baiting rhetoric and condescension toward people of color. - Wisconsin Supreme Court Justice Rebecca Grassl Bradley In contrast to Governor Evers' plan, the Legislature's plan does not engage in the systematic and discriminatory dismantling of districts in Milwaukee. Governor Evers would sever Black voters' existing constituent-representative relationships and undermine existing voter coalitions, while largely preserving them for White voters. Whether maximizing majority Black voting districts would actually benefit the Black community remains highly suspect. Had it survived the scrutiny of the United States Supreme Court, Governor Evers' plan arguably would have limited Black communities' political power. Senator Lena Taylor wrote an amicus brief to the United States Supreme Court explaining how Governor Evers' maps "dilute[] the voting strength of Black voters in Wisconsin." She continued, "the [Wisconsin] supreme court's conclusion – with no analysis whatsoever – that the Governor's map complies with the Voting Rights Act is clearly erroneous. ... It made no determination of whether the Governor's map – or any other – contains seven Assembly districts with an effective Black majority."
The Legislature has repeatedly told this court its maps are race neutral. No party presented any evidence to this court calling into question the Legislature's attorneys' compliance with their duty of candor, but the dissent nevertheless lodges the accusation. *** Note: Hey, this one is a little different! WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in three: First we shortcutted the decision, then the dissent, and next the concurrences. Why? Because this package of writings, and the strange U.S. Supreme Court decision that led to it, are extremely important to the state and country. Besides that, the SCOW decisions are unusually long – 142 pages, all in, not counting the cover sheets. And instead of allowing each writing justice 10 paragraphs, we are giving each 15. Other than that, the rules remain the same. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Billie Johnson v. Wisconsin Elections Commission Dissent: Justice Jill J. Karofsky (39 pages), joined by Justices Ann Walsh Bradley and Rebecca F. Dallet Concurrence: Justice Rebecca Grassl Bradley (49 pages), joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler Concurrence: Justice Brian Hagedorn (4 pages) Majority opinion: Ziegler (50 pages), joined by Grassl Bradley, Hagedorn, and Roggensack (See part 1) Karofsky begins her dissent with a bit of background on the "odyssey" that led to SCOW's original decision to select redistricting maps submitted by Gov. Tony Evers. That decision was appealed to the U.S. Supreme Court, which overturned it and sent it back to SCOW, which then selected maps submitted by the Legislature. We are careening over the waterfall because the Legislature's maps fare no better than the Governor's under the U.S. Supreme Court's rationale. If, according to the U.S. Supreme Court, the Governor's addition of a Milwaukee-area majority-minority district evinces a disqualifying consideration of race, then the Legislature's removal of a Milwaukee-area majority-minority district reveals an equally suspect, if not more egregious, sign of race-based line drawing. In addition, if a further-developed record is required to definitively determine whether the Governor's seventh majority Black district is required then a further-developed record is also required to definitively determine that the Legislature's removal of a majority-minority district does not violate federal law. The Court indicated that in a case like this where the court sits as the map-drawer in the first instance, the court, rather than the parties, are responsible for showing that the number of majority-minority districts required by the VRA (Voting Rights Act) constitutes the narrowly tailored remedy allowed under the Fourteenth Amendment's Equal Protection Clause. In choosing the Legislature's maps the majority repeats this court's reversible mistake by again failing to implement fact-finding procedures conducive to addressing the relevant issues under both the VRA and the Equal Protection Clause. *** Karofsky briefly traces Milwaukee's history of segregation and discrimination. The VRA's application in redistricting is designed to remedy precisely these kinds of historical wrongs – those that create current barriers to democratic participation. Instead of allowing the past unconstitutional practices of redlining and racially restrictive covenanting to continue limiting Black people's opportunity to participate in our democracy, the VRA establishes that it is a sufficiently compelling government interest to draw districts that counteract the historical racial gerrymander. We must, of course, also consider the Fourteenth Amendment's Equal Protection Clause. And in doing so, it is impossible to ignore the 180-degree turn from that clause's purpose to how it has been wielded in this case. Ratified in 1868 after the Civil War, the Fourteenth Amendment demands that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Since Brown v. Board of Education, the Equal Protection Clause has been invoked to desegregate this country, protect the voting rights of its citizens, and fight discrimination in its many forms. More recently, the Equal Protection Clause has been turned on its head and used, not to fight against the constant pull of our collective historical failing toward the promise of a better future, but to bar our government's ability to remedy past mistakes. The majority opinion perfectly captures this reversal by relying on cases pontificating that "[r]acial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions," and that "[r]ace-based assignments . . . embody stereotypes that treat individuals as the product of their race[.]" This argument is nothing short of gaslighting, seemingly denying Milwaukee's history of purposeful racial segregation. It was unrelenting overt racial discrimination that balkanized Milwaukee into "competing racial factions" and reduced Black individuals to a "product of their race." The fault and responsibility to remedy this systemic segregation lies not with Milwaukee's residents but instead with the government and the society that perpetuated racial redlining and restrictive covenants. Those practices shaped Milwaukee and that history of discrimination cannot be undone by force of will alone. The Milwaukee area perfectly demonstrates why the VRA's race-conscious remedy is often needed. Segregation of minority communities does not happen accidentally. If this country were anywhere close to living up to the "goal of a political system in which race no longer matters," then maybe we could apply the promise of Equal Protection in a race-blind manner. But the overwhelming evidence shows that we have not lived up to that goal. As such, a race-blind and effects-blind application of the Equal Protection Clause has become a sword against progress wielded by majority groups who fear giving away too much of their accumulated power. I fervently hope it will regain its place as a shield against harmful discriminatory action. *** Prior to the U.S. Supreme Court's decision, an Equal Protection analysis began with whether "race was the predominant factor motivating the [map-drawer]'s decision to place a significant number of voters within or without a particular district. That entails demonstrating that the [map-drawer] 'subordinated' other factors –compactness, respect for political subdivisions, partisan advantage, what have you – to 'racial considerations.'" Yet, the Court's opinion did not first analyze whether race was the "predominant factor" motivating this court's districting decisions. Instead, it appeared that the Court took this court's limited analysis regarding the VRA, meant only to ensure the least-change map did not violate that law, as evidence that race – not least change – predominated our choice of maps. Our March 3 opinion never professed as much. While the U.S. Supreme Court's opinion said it was unclear whether this court viewed itself or the Governor as the map-drawer, we plainly stated that the court itself was the map-drawer. ("As a map-drawer, we understand our duty is to determine whether there are 'good reasons' to believe the VRA requires a seven-district configuration.") *** Despite our clear declaration that "least change" predominated our choice of maps, and despite the purported purpose of "least change" as a neutral criterion to shed ourselves of the political baggage that would be inherent in party-drawn maps, the Court nonetheless transposed the Governor's motivations onto this court. We are left to conclude that the motivations of the party submitting the map are the relevant motivations we must analyze going forward. This court can no longer hide behind a "least change" gloss to ignore a party's ulterior motives. The U.S. Supreme Court left us with other unanswered questions:
In light of these uncertainties, and in order to avoid further reversible error, I believe we must implement one of the first three options set out above: (1) invite further briefing and fact finding on the unsettled VRA questions; (2) invite an expert or the parties to submit redrawn, race-neutral maps for the Milwaukee area; or (3) invite an expert or the parties to submit a whole new, reliably-race-neutral map. The majority opinion attempts to shift the blame by noting that the parties stipulated through their joint discovery plan that they did not anticipate discovery "beyond the exchange of maps, expert disclosures, and any documents or data that a party intends to rely upon or an expert has relied upon." But we had the authority, indeed the responsibility, to direct further discovery or examination of expert witnesses. This court's initial reliance on the joint discovery plan was guided by the court's "least change" directive, which failed to account for the full and definitive Equal Protection or VRA inquiry the U.S. Supreme Court now demands. This persistent imprudence in developing a record has now led us to a legally untenable outcome at odds with the Court's directive. The Equal Protection and VRA claims usually litigated after the implementation of a remedial map must now be fully adjudicated as part of this decision – an impossible task on this record. *** The Legislature's maps fail for two reasons: first, we are not to act as a gubernatorial veto override body; and second, the Legislature's maps show evidence of racially motivated packing and cracking that could violate both the Equal Protection Clause and the VRA. The Legislature's maps derive from a failed political process. In Wisconsin, the redistricting process follows the same process as the enactment of any law. Both houses of the legislature must pass a bill containing new maps, which is then presented to the governor who may approve or veto the bill, the latter of which the legislature may override with a supermajority vote. Here, the Legislature, having failed to override the gubernatorial veto, submitted the very same proposal to us. By now implementing that failed bill, this court judicially overrides the Governor's veto, thus nullifying the will of the Wisconsin voters who elected that governor into office. But our constitution provides only one avenue to override such a veto; no judicial override textually exists. Nor, historically, has this court ever exercised such a supreme power. By judicially enacting the very bill that failed the political process, a bare majority of this court, rather than a supermajority of the legislature, has taken the unprecedented step of removing the process of lawmaking from its constitutional confines and overriding a governor's veto ourselves. More recently, the Equal Protection Clause has been turned on its head and used, not to fight against the constant pull of our collective historical failing toward the promise of a better future, but to bar our government's ability to remedy past mistakes. - Wisconsin Supreme Court Justice Jill J. Karofsky In addition to being derived from a failed political process, the Legislature's maps show signs of violating the Equal Protection Clause. If, as the U.S. Supreme Court explained, the Governor's addition of a majority-minority district sufficed to show that race predominated its proposal, then equally, if not more, suspect is the Legislature's removal of a majority-minority district. Despite the majority opinion's assertions, the Legislature's maps do not appear to be race-neutral and calling the claim "indisputable" does not make it so. The Legislature's claim that it drew its maps without considering race, quite frankly, flies in the face of its transfiguration of Milwaukee's six current districts with a Black voting age population (BVAP) majority. In Milwaukee, the BVAP increased 5.5 percent while the White voting age population decreased 9.5 percent over the last decade. Those demographic changes make the Legislature's draw down of BVAP percentage in five out of six VRA districts – one by over 12 percent – with the remaining VRA district packed at 73.3 percent BVAP highly suspicious.
*** Self-serving professions of race-neutrality should also be ignored because the Legislature offered no alternative reasons for making decisions regarding Milwaukee's districts. The Legislature's "least change" pretext fails when it openly admits its Milwaukee-area changes substantially differed from its treatment of the rest of the state. Nor can the Legislature justify its unique redrawing of Milwaukee districts on a desire to keep municipalities whole; it split at least one relevant village, Brown Deer, by dividing its Black population between two districts. Respecting "communities of interest" also fails to justify the Legislature's actions because no party submitted evidence establishing such communities. That leaves the more nefarious partisan advantage reasoning – a reliable pretext for racial motivations. But a neutral judicial body cannot adopt a map on such a justification, especially now that the party's motives are imputed onto the court. The Legislature also has not, and could not, claim such a justification as this court barred consideration of partisanship in our redistricting process. As such, no judicially acceptable justification for the Legislature's Milwaukee-area redistricting decisions exists. *** This has been a profoundly disheartening odyssey. The unavoidable political nature of remedial redistricting plagued us every step of the way. Too rarely did this process present true questions of law – this court's only area of expertise. At every change in the tide, this court seemed to choose what it hoped to be a short-cut to streamline our voyage, only to find ourselves lost and unable to do our work as a non-partisan court of law. But the redistricting process is likely to stalemate and come before this court again in the future. And when it does, I hope that we have learned our lesson. I hope that we will permit a politically insulated federal court to manage the task. Federal courts are better able to conduct extensive factfinding through trial-style litigation, a task for which we proved ill equipped. Note: Hey, this one is a little different! WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in three: First the decision, then the dissent, then the concurrences. Why? Because this package of writings, and the strange U.S. Supreme Court decision that led to it, are extremely important to the state and country. Besides that, the SCOW decisions are unusually long – 142 pages, all in, not counting the cover sheets. And instead of allowing each writing justice 10 paragraphs, we are giving each 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the 15 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Billie Johnson v. Wisconsin Elections Commission Majority opinion: Justice Annette K. Ziegler (50 pages), joined by Justices Rebecca Grassl Bradley, Brian Hagedorn, and Patience Roggensack Concurrence: Grassl Bradley (49 pages), joined by Roggensack and Ziegler Concurrence: Hagedorn (4 pages) Dissent: Justice Jill J. Karofsky (39 pages), joined by Justices Ann Walsh Bradley and Rebecca F. Dallet The upshot Upon review of the record, we conclude that insufficient evidence is presented to justify drawing state legislative districts on the basis of race. The maps proposed by the Governor, Senator Janet Bewley, Black Leaders Organizing for Communities ("BLOC"), and Citizen Mathematicians and Scientists ("CMS") are racially motivated and, under the Equal Protection Clause, they fail strict scrutiny. By contrast, the maps proposed by the Wisconsin Legislature are race neutral. The Legislature's maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature's maps exhibit minimal changes to the existing maps, in accordance with the least change approach we adopted in Johnson v. Wis. Elections Comm'n. Therefore, we adopt the state senate and assembly maps proposed by the Legislature for the State of Wisconsin. Background In 2011, the Wisconsin Legislature passed and the Governor signed state legislative and congressional maps after the 2010 census. Over the subsequent ten years, the population of Wisconsin changed; people moved away from some areas and people moved into others. These changes were recognized in the 2020 census, which identified a population increase in the state from 5,686,986 to 5,893,718. The Petitioners filed this original action in August 2021 to remedy alleged malapportionment in Wisconsin's state legislative and congressional maps. In September 2021, this court accepted the case, and in October 2021, the court directed the parties to file briefs addressing what factors the court should consider when selecting new maps. ... On November 30, 2021, the court issued a decision explaining the framework by which the court would select maps. The court identified that under the Equal Protection Clause of the United States Constitution, "a State [must] make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as practicable...." The court explained that, in addition to satisfying all Equal Protection Clause requirements, the court must consider compliance with Section 2 of the Voting Rights Act ("VRA"). ... In its November 30 decision, the court adopted the "least change approach," whereby the court would select maps that "comport with relevant legal requirements" while "reflect[ing] the least change necessary." The court rejected the suggestion that the court consider partisan fairness and proportional representation of political parties when selecting maps. *** On March 3, 2022, the court issued a decision adopting the Governor's state legislative and congressional maps. The court reasoned that the Governor's maps included the least alterations to preexisting maps. In addition, the court said that the Governor's maps complied with the Equal Protection Clause, the VRA, and the Wisconsin Constitution. After the court issued its March 3 decision, the Petitioners and the Legislature sought certiorari review by the United States Supreme Court, asserting that the court's adoption of the Governor's state legislative maps constituted a racial gerrymander in violation of the Equal Protection Clause. ... On March 23, 2022, the United States Supreme Court reversed the court's decision to select the Governor's state legislative maps. The Supreme Court confirmed that, under the Equal Protection Clause, a state government cannot draw district maps on the basis of race unless the state satisfies strict scrutiny. However, the state must possess this evidence before it creates maps based on racial classifications. In the case before this court, the Supreme Court reasoned that, based on the filings and presentations made by the Governor, the Governor had failed to present a strong evidentiary basis for believing the VRA mandated the district lines he drew. Specifically, the Supreme Court identified that the Governor's primary explanation for his racially drawn maps was the fact that it was cartographically possible to draw them. According to the Supreme Court, "[s]trict scrutiny requires much more." Based on the record, the Governor's maps failed to satisfy this legal standard. ... The Supreme Court remanded the case to us for further proceedings. The Court explained that we could "choose from among...other submissions." Alternatively, the court could "take additional evidence if [we] prefer[ed] to reconsider the Governor's maps." It instructed, however, that "[a]ny new analysis...must comply with our equal protection jurisprudence." *** The Supreme Court has demanded that three specific preconditions be met before it can conclude that the creation of additional majority-minority districts may be necessary: "(1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority vote[s] sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." These three requirements are called the "Gingles preconditions." ... The VRA requires an "intensely local appraisal" which "pars[es] . . . data at the district level" and evidences a lack of minority electoral opportunity, such that a race-based remedy is needed. ...The inquiry is emphatically not to create "the maximum number of majority-minority districts," regardless of the on-the-ground characteristics of the minority communities under consideration. ... The guts
Here, examining the available record, we conclude that there is not a "strong basis in evidence" that the VRA requires the use of race to draw majority-black legislative districts. Specifically, there is insufficient evidence to demonstrate that here, black voters have their choice of candidate blocked by a cohesive and oppositional voting bloc. The Governor failed to present evidence that a race-based remedy was necessary under the VRA, but nonetheless drew districts on the basis of race to create seven majority-black districts. The Supreme Court recognized that the Governor "provided almost no other evidence or analysis supporting his claim that the VRA required the seven majority-black districts that he drew." The Supreme Court further noted that the Governor's "main explanation for drawing the seventh majority-black district was that there is now a sufficiently large and compact population of black residents to fill it apparently embracing just the sort of uncritical majority-minority district maximization that we have expressly rejected." This is clearly in violation of the Equal Protection Clause, as a race-based remedy cannot precede proof of a VRA violation. ... The Governor's maps were racially motivated and are thus subject to strict scrutiny. ... He produced no evidence of electoral history and no district-specific evidence demonstrating that the black communities he moved among districts would be denied the opportunity to effectively participate in democracy absent his proposed district lines. ... (Ziegler outlined reasons for rejecting maps submitted by Bewley, BLOC, and CMS. All, she said, failed to meet VRA requirements.) In contrast to the maps proposed by the Governor, Senator Bewley, BLOC, and CMS, the Legislature's proposed maps are indisputably race neutral. No party argued and no evidence was provided demonstrating that the Legislature's maps were, in fact, not race neutral. The Legislature affirmed multiple times that the maps proposed by the Governor and BLOC to create exactly 51% BVAP (Black voting-age population) districts were a "racial gerrymander," and by contrast, the Legislature utilized "race-neutral criteria" to draw districts in the Milwaukee area, as it did for all other citizens regardless of race in the remainder of the state. Unlike the other parties, the Legislature never asserted that the Gingles preconditions required the drawing of majority-black districts. To the contrary, the Legislature's expert stated correctly that "the electoral patterns detailed by [BLOC] raise serious doubts about whether the Gingles threshold standard is currently met." *** Only those maps that purposefully discriminate between individuals are subject to strict scrutiny. Maps come under strict scrutiny "not just when they contain express racial classifications, but also when, though race neutral on their face, they are motivated by a racial purpose or object." The standard to demonstrate racial motivations through circumstantial evidence alone is high and rarely met. The map must be "so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to segregate[e] ... voters on the basis of race." *** No such evidence of discriminatory intent has been provided, and, with the presumption of good faith in mind, we cannot conclude that the Legislature's maps are so highly irregular that they are "unexplainable on grounds other than race." Unlike the Governor and BLOC, who carefully calibrated BVAP in their districts, the BVAP in the Legislature's districts varies depending on the unique geography and community characteristics of those districts. BVAP in the Legislature's districts varies from 45.8% to 71.5%. In so doing, the Legislature's maps perform very well in race-neutral criteria. Out of the plans proposed, the Legislature's maps have low population deviation and have a low number of local government splits, including in the Milwaukee-area districts. In addition, the Legislature's maps include few incumbency pairings, and they move few voters into new senate districts with different election cycles. Those characteristics are seen in the Milwaukee-area districts, as they are throughout the state. Further, the districts with high BVAP are compact and do not have "highly irregular" features common to racial gerrymanders. ... When drawing districts, race-neutral considerations drove the Legislature's decisions; racial targets did not. ... No party challenged or presented evidence which would support a claim that any of the districts in the Legislature's maps were racially motivated. In addition, no evidence was presented in the record that could overcome the presumption of good faith or show that any district lines in the Legislature's maps, including those districts with high BVAP, were "unexplainable on grounds other than race." The Governor and BLOC argue that the Legislature's maps violate the VRA by having one assembly district at 45.8% BVAP and another at 71.5% BVAP. However, neither the Governor nor BLOC cite authority standing for the position that, using race-neutral redistricting criteria, having low or high percentages of black voters in a given district on its own violates the VRA. ... The Governor and BLOC also argue that the Legislature's 10th assembly district, which has 45.8% BVAP, does not provide effective democratic opportunity for black voters. Thus, the Governor and BLOC aver that the Legislature's maps include only five effective black assembly districts. However, assembly district 10 does not create a VRA violation because the Gingles preconditions are not satisfied – namely, the record does not demonstrate that black voters are usually denied their preferred candidate. In fact, the evidence demonstrates otherwise. ... The Governor and BLOC point to BLOC's analysis on a single election result, the 2018 Democratic Gubernatorial Primary, to demonstrate that the 10th assembly district violates the VRA. We are unaware of a single case that has found the existence of a strong evidentiary record, applied the VRA, and satisfied strict scrutiny through consideration of a single result from an exogenous election in a party primary. ... Even so, under BLOC's own statistics, the black preferred candidate won in the Legislature's 10th assembly district by a comfortable margin. According to BLOC, the black preferred candidate, Mahlon Mitchell, won a plurality of the vote and beat the next strongest candidate, the Governor, 39% to 29%. This indicates that the Legislature's 10th assembly district supports black preferred candidates, not that white coalitions stymie black electoral opportunity in violation of the VRA. ... [T]he Legislature provides its own analysis on the 10th assembly district that contradicts BLOC's conclusions. The Legislature did not rely on one election, but instead considered the 2018 Democratic Lieutenant Gubernatorial Primary in addition to the 2018 Democratic Gubernatorial Primary. Not only did the Legislature find that the 10th assembly district selected the black-preferred candidate in the gubernatorial primary (as did BLOC), the Legislature also found that the 10th assembly district supported the black-preferred candidate in the lieutenant gubernatorial primary by a wide margin. Given this evidence, the Legislature concluded that this district would not usually exhibit white coalition voting blocking black-preferred candidates. In addition, CMS analyzed the Legislature's 10th assembly district by considering whether "the outcome in most general elections favors the Black candidate of choice" and whether "Mandela Barnes and Mahlon Mitchell [the black candidates of choice in the 2018 Democratic lieutenant gubernatorial and gubernatorial races] perform strongly in their respective 2018 Democratic primary elections." CMS concluded that the Legislature's 10th assembly district was "perfectly effective" for black voters. On this record, we cannot agree with the Governor and BLOC that the Legislature's race-neutral proposal would violate the VRA. ... *** Because the maps submitted by the Governor, Senator Bewley, BLOC, and CMS are eliminated for being racially motivated, we concentrate our review on the Legislature's maps. In maximum population deviation, the Legislature's maps perform exceptionally well. The Legislature's maps recognize the sizable population shifts, keep Wisconsin citizens in their existing districts and also achieve population equality across districts. The Legislature's maximum population deviation is .57% for the Senate and .76% for the Assembly. This is in line with deviations accepted by federal courts. *** The Legislature's maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature's maps exhibit minimal changes to the existing maps. Therefore, we adopt the state senate and assembly maps of the Legislature for the State of Wisconsin. Next: The dissent. Karofsky takes on the SCOW majority and the U.S. Supreme Court. On April 13, 2022, Dane County Circuit Judge Everett Mitchell discussed the pipeline from child welfare to adult prison and his efforts to turn that pipeline off, how to address trauma among the youth he sees in juvenile court, shortcomings in the justice system when it comes to dealing with kids, and the role of a judge. |
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