Wisconsin Supreme Court says state's view of Snapchat video did not violate Fourth Amendment2/4/2026 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 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 are also italicized. You can read WJI’s coverage of oral arguments in this case here. The Case: State v. Michael Joseph Gasper  Ziegler Majority: Justice Annette Kingsland Ziegler (24 pages), joined by Chief Justice Jill J. Karofsky and Justices Rebecca Grassl Bradley, Brian K. Hagedorn, and Janet C. Protasiewicz Concurrences: Ziegler (4 pages); Justice Rebecca Frank Dallet (12 pages), joined in part by Justice Susan M. Crawford; Hagedorn (4 pages), joined by Karofsky and Protasiewicz Concurring in part and dissenting in part: Crawford (14 pages), joined in part by Dallet Upshot The Fourth Amendment serves as a limit on government power. A private search is not a government search. The Fourth Amendment is inapplicable to a search which has been completed by a private party as that search frustrates an individual’s expectation of privacy. The Fourth Amendment is implicated, however, if the government exceeds the private search. . . . We conclude that the private search doctrine applies. It is undisputed that Snapchat performed a private search when it scanned and flagged the single, 16-second video as CSAM (child sexual abuse material). The government did not exceed the scope of Snapchat’s search when it viewed the video because any expectation of privacy Gasper may have had in the video was frustrated by the private search, and there was virtual certainty that law enforcement would not find anything of significance beyond what the private search revealed. As a result, the Fourth Amendment is not implicated. Accordingly, we affirm the court of appeals and remand to the circuit court for further proceedings consistent with this opinion. Background (Michael Joseph) Gasper was charged with ten counts of possessing child pornography and nine counts of child exploitation based upon the content on his cell phone. Law enforcement obtained a warrant for his cell phone after the National Center for Missing and Exploited Children (“NCMEC”) forwarded a CyberTipline (a website to receive reports of online child sexual exploitation) report (which included a single, flagged, 16-second video) from Snapchat to the Wisconsin Department of Justice (“DOJ”). No person at Snapchat or NCMEC viewed the contents. Instead, Snapchat scanned its platform and identified the video file it flagged as known CSAM using a hash-based scanning program. The flagged video was first viewed by a person when an employee of the DOJ did so without a warrant. Then the CyberTip with the flagged video was forwarded to local law enforcement who also viewed the video without obtaining a warrant. Gasper seeks to suppress this evidence on the basis that it was obtained in violation of his Fourth Amendment rights. *** On January 13, 2023, Snapchat reported that it found CSAM and submitted a single, flagged, 16-second video to NCMEC. Snapchat’s hash-based scanning program, Microsoft’s PhotoDNA, had detected and flagged a CSAM video that had been uploaded to Snapchat’s servers from Gasper's account. PhotoDNA “scans files to determine if they are copies of known and reported [CSAM] based on their ‘hash values.’” No person at Snapchat viewed the video. NCMEC also did not view the video, but did confirm that the video was CSAM through a hash match of the uploaded file to visually similar files that were previously viewed and categorized by NCMEC. NCMEC sent a CyberTip and the flagged video to the DOJ. A DOJ analyst opened the video file, without a warrant, to confirm that it contained CSAM. After confirming the video file contained CSAM, DOJ issued an administrative subpoena to the internet service provider to obtain the name and mailing address associated with the account. The internet service provider responded with the account information which implicated Gasper. DOJ forwarded the CyberTip and attached video to the Waukesha County Sheriff's Office. There, a detective trained in this area opened the video, without a warrant, and also “confirmed that it depicted [CSAM].” Based upon the CyberTip and video content, the detective then applied for, received, and executed a search warrant for Gasper's home and electronic devices. Police discovered ten files on Gasper’s cell phone containing CSAM. Gasper was taken into custody, waived his Miranda rights, and admitted that he had accessed and stored CSAM on his cell phone. Gasper was charged with ten counts of Possession of Child Pornography, in violation of WIS. STAT. § 948.12 and nine counts of Sexual Exploitation of a Child, in violation of WIS. STAT. § 948.05. Gasper moved to suppress the evidence on the basis that it was an unconstitutional search in violation of the Fourth Amendment to the United States Constitution. He argued that because the government was the first to view the video and did so without a warrant, the search was unconstitutional. He also argued that the evidence recovered from the subsequent search warrant is likewise unconstitutional, being fruit of the initial warrantless, unconstitutional search of the Snapchat video. *** At a hearing on Gasper's motion to suppress, (t)he State submitted into evidence Snapchat’s user agreement and policies and conditions which specifically “banned [CSAM]” and informed its users that Snapchat was actively scanning for CSAM on its platform. Its user agreement and policies and conditions also informed users that Snapchat’s discovery of CSAM will be reported to NCMEC and law enforcement. *** The circuit court granted Gasper’s motion to suppress stating that “[t]here is a legitimate privacy interest in cell phones.” . . . The court of appeals reversed the circuit court’s decision and concluded that Gasper did not have a reasonable expectation of privacy. . . . Guts The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." *** The Fourth Amendment provides “rights against the government” not private parties. Stated differently, the Fourth Amendment applies to only "governmental action[.] [I]t is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual . . . .’” A government agent may “view[] what a private party ha[s] freely made available for his inspection” without offending the Fourth Amendment. This is because a private actor’s earlier search frustrates the owner’s legitimate expectation of privacy. In other words, under the private search doctrine, any expectation of privacy is lost because the private actor’s search abrogates the original expectation. . . . A private search, when repeated by the government, does not then become a government search, unless that search exceeds the scope of the private search. Herein lies the crux of Gasper’s argument—that the government exceeded Snapchat’s private search when it viewed the video without a warrant. Gasper does not argue that the video itself contained anything other than what was represented—CSAM. He also does not argue that the government searched more than the single, 16-second video Snapchat scanned, flagged, and reported. His argument relies entirely on the fact that no person at Snapchat actually looked at the video, and that because a person in the government was the first to view the video, that viewing exceeded Snapchat’s private search. But, since the State has asserted that the search was a private search, it is the defendant who bears the burden of proving that a government search occurred, to a preponderance of the evidence. Gasper agrees that Snapchat is a private party. Gasper argues that law enforcement unconstitutionally exceeded Snapchat’s private search because a person in government, not a person at Snapchat, was first to view the video with human eyes. More specifically, Gasper argues that it was unconstitutional for law enforcement to view the video because it “expanded the scope of the computer data scan contained in the CyberTip from NCMEC” and “expanded the scope of Snapchat’s private search.” Stated differently, Gasper asserts that all of the CSAM evidence should be suppressed because the search violated the Fourth Amendment. He makes much of the fact that no person at Snapchat viewed the video before forwarding it to law enforcement. But, Gasper fails to meet his burden of proving that this was a government search that exceeded the private search. The Fourth Amendment serves as a limit on government power, not a deterrent to private actors, in this case ESPs (electronic service providers) who use technology to protect the integrity of their platforms, and in so doing, find CSAM. Snapchat’s PhotoDNA detected and flagged Gasper’s video as CSAM, and Snapchat reported that video to NCMEC, who then forwarded the CyberTip and video to the DOJ who then forwarded the same to the Waukesha County Sheriff’s Office *** Here, Snapchat scanned, flagged, and reported an “apparent” CSAM video. Of course, law enforcement may examine the exact same video more thoroughly or with a different base of knowledge than a private party so long as there is a virtual certainty that they will not find anything of significance beyond that which the private search revealed. An officer may “learn” more than a lay person who views the same evidence and may see the details of the CSAM, but that alone does not automatically equate to the government exceeding the private search. (Federal courts in two cited prior cases) concluded that by viewing the video, suspected CSAM, law enforcement exceeded the private actor’s search because law enforcement saw the details of the CSAM. Those courts reasoned that viewing the video revealed the “particulars” of the CSAM to law enforcement, and in so doing, the private search was exceeded. The private search doctrine is not solely evaluated from the perspective of what details law enforcement might see when viewing the video. Instead, it is evaluated from the perspective of what the private party’s search revealed and whether there is a virtual certainty that law enforcement will not find anything else of significance beyond that which the private search revealed. *** (L)aw enforcement may receive a tip from any number of sources. The Fourth Amendment does not protect Gasper from a private actor who discovers that CSAM has been uploaded to its platform, discovered through the private actor’s scan, and the private actor forwards that CSAM to the authorities. The government did not conduct a warrantless search of Gasper’s cell phone or his Snapchat account; it merely reviewed the full CyberTip which included the video flagged as “apparent” CSAM. The private search doctrine applies when, such as here, a private actor invites a government agent to recreate the private actor’s search and there is “virtual certainty that nothing else of significance” is in the file, and that inspection “would not tell [the State] anything more than [it] already had been told.” Nothing about this review of a tip gave law enforcement unfettered access to Gasper’s Snapchat account or his cell phone. Viewing the file was not a search that expanded that of Snapchat’s. *** Gasper argues that he has a categorical expectation of privacy in the reported video . . . . (T)he (U.S.) Supreme Court (has) held that warrantless searches of cell phones are presumptively unreasonable. Gasper argues that he had a “’reasonable expectation of privacy’ in the cyberdata uploaded from his cellphone to his Snapchat account” and in the “content extracted” from that account. Gasper posits that because he accessed Snapchat exclusively from his cell phone, this case should be analyzed as if it was a cell phone search, and that he has a reasonable expectation of privacy of his cell phone and the Snapchat account. Because we conclude that Snapchat performed a private search when it scanned and identified the flagged video as CSAM and the government did not exceed the scope of Snapchat’s private search when it viewed the video, we need not analyze whether Gasper possessed a reasonable expectation of privacy entitling him to Fourth Amendment protection. We also need not determine to what extent, if any, Snapchat’s terms of service agreement influences a reasonable expectation of privacy in a Fourth Amendment analysis. Ziegler concurrence I join the opinion that I wrote for the majority and write separately to expound upon this area of the law. Although we address the Fourth Amendment’s application to Wisconsin’s state law in the majority opinion, we did not detail the federal law implications when it comes to reporting CSAM. Though Snapchat is not required to use any particular technology to identify CSAM, if it finds CSAM, then federal law requires it to report that CSAM to NCMEC. If such a CyberTip is forwarded to NCMEC, then NCMEC must forward the CyberTip to law enforcement for investigation. The stated purpose of these laws is “to reduce . . . and . . . prevent the online sexual exploitation of children.” Federal law requires Snapchat to report when it becomes aware of “apparent violations of [CSAM].” That is exactly what Snapchat did. Snapchat reported the video and stated that it contained “apparent [CSAM].” Snapchat arrived at this conclusion utilizing its hash-value algorithm—such a system has been deemed reliable, akin to a digital fingerprint, a DNA match, or a VIN number. Snapchat’s algorithm viewed each, individual pixel of the image, compared it to a database filled with known CSAM images, and determined that it contained contraband. Then, that single, 16-second video was removed from Gasper’s account, and Snapchat followed the procedure outlined in federal law. In this case, Snapchat alone decided that this video contained CSAM. Snapchat, as a private actor, followed the letter of the federal law. Thus, federal law supports the process used in this case. Once Snapchat reported the CSAM, the government did not expand the scope of the search. It was Snapchat who frustrated Gasper’s expectation of privacy—not the government. Snapchat, through its algorithm, used its own resources to search for and identify contraband. Like the Supreme Court in United States v. Jacobsen, other federal appellate courts have also applied the private search doctrine and concluded that there is no expansion of the private search when there is a “virtual” or “substantial” certainty that the government agent’s search will not reveal anything more than what the private party represented. However, in Jacobsen, unlike the case at issue, law enforcement’s search exceeded the search conducted by the Federal Express employees. Law enforcement opened the box, observed the baggies of powder, and tested the substance for cocaine. Although the testing was clearly beyond the employee’s private search, the court concluded that the intrusion was nonetheless de minimis. As such, Jacobsen teaches that virtual certainty does not necessarily mean identical. Once the private search has frustrated an individual’s reasonable expectation of privacy, the Fourth Amendment does not always require that the private search be perfectly replicated by the government. Quite obviously, law enforcement is not required to avert its eyes from criminal activity. Viewing the provided video allowed law enforcement to confirm or dispel that it contained CSAM, as reported. Here, the government viewed what Snapchat’s private search revealed: one, 16-second CSAM video from Gasper’s account. It viewed what Snapchat provided and nothing more. Foregoing a warrant to view what this private actor provided through its own private search, is not only practical, it is constitutional. Snapchat followed federal law by reporting the flagged video to NCMEC, and then NCMEC carried out its duties by forwarding the CyberTip to the government. In other words, this “apparent violation” followed congressional safeguards, which exist to reduce and prevent online sexual exploitation of children. Gasper would require the detective to first obtain a warrant to view the CSAM-video Snapchat provided. But Gasper’s argument assumes Fourth Amendment protection exists here, despite this being a private search. He also assumes that law enforcement would limit its warrant request to the video alone. As the majority opinion explained, the government is not required to obtain a warrant before viewing this private search. And as a practical matter, if law enforcement had probable cause to obtain a warrant to view the video for CSAM, then it likely follows that it would have probable cause to seek a much broader warrant searching Gasper’s entire account, home, and electronic devices. . . . Given that the Fourth Amendment’s touchstone is reasonableness, it is more reasonable for law enforcement to conduct this limited review of a private search before engaging in a far more invasive investigation based on an expansive warrant. *** Lastly, while not dispositive in this case, it is interesting to note that Gasper’s arguments highlight the conflict between who might have competing privacy interests in the CSAM. Wisconsin has long held strong victim rights protection both in the form of legislation and in our constitution. One might opine about the child victim’s privacy interest in a CSAM file. Justice Sotomayor has recognized, “[t]here is little doubt that the possession of images of a child being sexually abused would amount to an intentional invasion of privacy tort—and an extreme one at that.” *** I would note, however, that Gasper’s arguments that a person at Snapchat needed to view the CSAM before law enforcement could, would subject a child victim to even more victimization. The more human eyes that witness the wrongdoing, the more the child is victimized. And, if employees of the ESPs are forced, under Gasper’s logic, to personally view and witness the CSAM video, they too may be victims of secondary trauma. But for now, those considerations will be left for another day.   Dallet Dallet concurrence Now more than ever we live in a digital world. Vast amounts of information are created, stored, and shared using smartphones, computers, and other digital devices. And those devices “are portals to an endless array of online services [and] communities” where we can store our private information or share it with friends and strangers alike, all with the tap of a finger. Now that we “live an online existence that can rival the physical one,” courts must grapple with the difficulties of adapting existing Fourth Amendment rules in order to preserve the delicate balance between privacy rights and the needs of law enforcement. Unfortunately both the court of appeals and majority fail at that task in this case, weakening our Fourth Amendment rights in the process. The court of appeals did so by concluding that boilerplate terms of service imposed by electronic service providers like Snapchat can limit or even eliminate users’ Fourth Amendment rights online. And although the majority wisely vacates the court of appeals’ published opinion, it does so only summarily. Making matters worse, the majority also misapplies the private-search doctrine, and concludes that no Fourth Amendment violation occurred in this case. I write separately to explain why both of these decisions are wrong, and why the good-faith exception to the exclusionary rule nonetheless applies. *** Dallet first addressed the court of appeals determination that the private terms-of-service agreement between Gasper and Snapchat eliminated any Fourth Amendment protection Gasper had in the video: Granting a contractual right of access to an otherwise private space in the real world similarly does not eliminate reasonable expectations of privacy, thus authorizing law enforcement to access that space without a warrant. Apartment leases and hotel-rental agreements commonly include terms permitting the apartment owner or manager to access the unit for inspections or maintenance, or allowing hotel management or housekeeping to enter a guest’s room for maintenance or cleaning. Yet in both contexts, courts have made clear that granting such a right of access doesn’t eliminate the renter’s reasonable expectation of privacy and open the space up to warrantless government searches. *** These same principles should apply with equal force in the digital setting of this case. Because breaches of private agreements in the real world do not eliminate renters’ or users’ reasonable expectations of privacy against government intrusion, it is irrelevant that Gasper breached Snapchat’s terms of service when he privately uploaded the video to his account. Snapchat’s contractual right to, for example, delete his account or the video for breaching the terms of service says nothing about whether the government could search the video without a warrant. And the fact that Snapchat’s terms stated it could search Gasper’s account and would report CSAM it found to law enforcement is similarly irrelevant. That is because granting a private party the contractual right to access an otherwise private space doesn’t mean the government can access that same space without first obtaining a warrant. Thus, even though the terms of service put Gasper on notice that Snapchat might turn over his files to the government, “the mere ability of a third-party intermediary to access the contents of a [file] cannot be sufficient to extinguish a reasonable expectation of privacy.” *** Although the majority rightly vacates the court of appeals’ published opinion, unfortunately its decision erodes Fourth Amendment rights in different way. As Justice Crawford’s separate writing correctly explains, Gasper’s Fourth Amendment rights were violated when, without obtaining a warrant, a Wisconsin DOJ analyst viewed for the first time a video privately uploaded to Gasper’s Snapchat account. In concluding otherwise, the majority misapplies the private-search doctrine, holding that it was “virtual[ly] certain[]” that by viewing the video for the first time, the analyst “would not find anything of significance beyond what” was already revealed by Snapchat’s prior private search. But that private search was limited in scope, scanning only the video’s hash value—“a sort of digital fingerprint” for computer files—and identifying it as a match for the hash value of an image or video previously flagged as containing CSAM. The hash match alone, however, “revealed nothing, either to [Snapchat] or those with whom it shared the match, about what in particular the [video] depicted (or even what the [file it matched to] depicted).” And for that reason, the analyst’s actions exceeded the scope of Snapchat’s prior private search. *** When evidence is obtained in violation of the Fourth Amendment, the typical remedy is to exclude evidence obtained through that unlawful search. Nevertheless, the exclusionary rule is not automatic, and should be applied only when doing so would yield “appreciable deterrence.” To that end, the Supreme Court has applied the “good-faith exception” to the exclusionary rule, which recognizes that when law enforcement’s conduct is less culpable, applying the exclusionary rule is less likely to lead to meaningful deterrence. If law enforcement acts “in objectively reasonable reliance on . . . a facially valid warrant properly issued by a neutral, detached magistrate; an apparently constitutional statute; or a binding appellate precedent,” applying the exclusionary rule is not warranted. By contrast, when law enforcement demonstrates “‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights,” the exclusionary rule should apply to deter that misconduct. Some situations, like the one in this case, fall between those two poles. And when that happens, courts must assess the situation’s unique facts, weighing the costs of suppression against the deterrence benefits of exclusion in light of “the ‘flagrancy of the police misconduct’ at issue.” In other words, applying the good-faith exception requires much more than the broad, legally incorrect, and conclusory statement in Justice Ziegler’s concurrence that “[w]hen police act in good faith, or an area of the law is unsettled, there is no police misconduct to deter.” Here’s what the good-faith-exception analysis should look like. At the time the DOJ analyst viewed for the first time the video privately uploaded to Gasper’s Snapchat account, the Fifth and Sixth Circuits held that a warrant was not required before doing so under the private-search doctrine. Two state courts reached the same conclusion. The Ninth Circuit disagreed, however, holding that a warrant was required. According to testimony at the suppression hearing in this case, attorneys at DOJ analyzed this split of authority and concluded that a warrant was not required before law enforcement in Wisconsin opened for the first time a file allegedly containing CSAM that was attached to a CyberTip. As I have written before, in the face of uncertainty, law enforcement should of course “‘err on the side of constitutional behavior’ and get a warrant.” Had they done so here, years of appellate proceedings could have been avoided at virtually no cost, since such a warrant would have been easy to obtain. Nevertheless, under these circumstances, I would not apply the exclusionary rule. Law enforcement’s actions here were not the kind of “‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights” the exclusionary rule is needed to deter. Instead, law enforcement made a reasoned, though mistaken in my view, decision to follow the weight of non-binding authority on an unsettled legal question, as reflected in the decisions of two federal circuits and two state appellate courts. Even though not all instances of law enforcement reliance on non-binding precedent will fall within the good faith exception, this one does.  Hagedorn Hagedorn concurrence Some basic Fourth Amendment principles guide our analysis. The Fourth Amendment generally prohibits a government search without a warrant when that search invades a reasonable expectation of privacy. Searches performed by private actors, however, are not government searches and therefore not subject to Fourth Amendment protections. *** When a private actor conducts a search, the reasonable expectation of privacy has been frustrated. Thus, as long as the subsequent government search does not exceed the scope of the private search, the government has not invaded any additional expectation of privacy. When a search merely replicates what the private actor did, no Fourth Amendment search occurs. But Jacobsen also permits some searches that exceed the scope of the private party search if the additional infringement on the remaining interest in privacy is minimal. Where the residual privacy interest is negligible, Fourth Amendment interests similarly do not justify the need for a warrant. *** One of the complications in this type of case is Jacobsen’s focus on what one might learn from a search, which is rooted in the Supreme Court’s jurisprudence regarding the search of a container. Jacobsen focuses on whether the law enforcement’s subsequent search is “virtually certain” to result in learning more than law enforcement already knew. It is not clear to me that this focus is equally illuminating in digital searches or when the potential criminal activity is more complex. I can imagine all kinds of circumstances where law enforcement is sure to learn more than a private actor even while conducting the exact same search. A private actor suspecting financial fraud, for example, is unlikely to notice all that a trained law enforcement officer would see when replicating the private party’s search. And doctrinally, the private search doctrine rests upon whether the scope of the search has been exceeded, not whether law enforcement notices more than the private actor. For this reason, I’m not sure the emphasis on “virtual certainty” is as helpful in light of the kind of search we are examining here. The real question from Jacobsen would seem to be whether the defendant’s privacy interest was frustrated. Here, the whole video was searched by Snapchat, even though Snapchat did not have a human watch the video. In my view, the expectation of privacy in the video was frustrated by Snapchat’s digital viewing of the video, which means law enforcement doesn’t exceed the scope of the private search by also viewing the video—albeit in a different manner. The second way this case can be resolved is by following the analysis in the field test portion of Jacobsen. To the extent this search exceeds the scope of the PhotoDNA hash search performed by Snapchat, we still must ask how much of a remaining expectation of privacy Gasper had in the video after Snapchat’s search. The answer is not much. Gasper had little expectation of privacy remaining in the contents of this 16-second video after its contents had already been searched and it had already been flagged for illegal CSAM. Here, to the extent watching the video is deemed an additional government search by exceeding the scope of Snapchat’s digital search, it isn’t much of one. Any additional invasion of Gasper’s reasonable expectation of privacy in this video was small to non-existent, and I would conclude it was insignificant—just like the field test in Jacobsen.  Crawford Crawford partial concurrence and partial dissent
Although the government’s interests in protecting children from sexual abuse and exploitation and holding perpetrators accountable are unquestionably compelling, those interests do not excuse the government from following the basic commands of the Constitution. Here, the Fourth Amendment required the government to obtain a search warrant before opening and viewing Michael Gasper’s Snapchat file. Many electronic service providers (ESPs) digitally monitor their platforms for harmful content and voluntarily share suspected child sexual abuse materials (CSAM) with the government, as Snapchat did here. When the State opened and viewed the video file it received from Snapchat, it acquired information beyond what was detected by Snapchat’s digital scan. The State utilized that additional information—a detailed description of the contents of the video—when it applied for a search warrant for Gasper’s home and cell phone. The State should have, and readily could have, obtained a search warrant before viewing the video file it received from Snapchat. It chose not to do so. The State’s deliberate decision to open and view the file without first obtaining a search warrant cannot be excused as good faith. I would affirm the circuit court’s order suppressing the evidence the State obtained by opening and viewing the file, specifically the content of that video. I conclude, however, that the remaining facts gained from the CyberTip and investigation were sufficient to support probable cause for the search warrant of Gasper’s home and devices. I thus agree with the mandate reversing the circuit court’s order suppressing evidence obtained pursuant to the search warrant. *** The majority does not reach the question of whether Gasper had a reasonable expectation of privacy in the video file because it concludes that the State’s opening of the file and viewing the video did not exceed the scope of Snapchat’s “private search,” and thus does not implicate the Fourth Amendment. I disagree with the majority’s conclusion that the State’s actions did not exceed the scope of Snapchat’s digital scan, as discussed below. I would also hold that the court of appeals erred in concluding that Gasper did not have a reasonable expectation of privacy in the video file because his “conduct was obviously unlawful” and contrary to Snapchat’s terms of service. I agree with Justice Dallet that Gasper had a reasonable expectation of privacy in files he placed in his password-protected Snapchat account, and that Snapchat’s specific terms of service did not extinguish that expectation of privacy. . . . *** Jacobsen held that when the government’s inspection reveals “nothing else of significance” beyond what was disclosed to it by a private party, no legitimate privacy interest protected under the Fourth Amendment is infringed. The government here knew only that Snapchat had flagged the file as “apparent CSAM” after conducting a digital scan. It did not know what specimen of “known CSAM” Snapchat’s scan had determined to digitally match Gasper’s file. Nor did the government have a description of the content of the video. Until government agents opened and viewed the file, the State did not know if the file contained an intact video or if it depicted CSAM as defined by state law. Only by opening and playing the file did the government confirm it contained an intact video that was unequivocally CSAM. The detective’s inclusion of a detailed description of the video in the search warrant affidavit underscores the investigative value of the evidence obtained by opening the file. It is simply not true that “nothing else of significance” was disclosed by viewing the video. *** Unlike the majority, I find the federal cases holding that the government’s conduct exceeds the private search to be persuasive and in alignment with Jacobsen. The digital scans conducted by ESPs provide only a binary determination that a file falls within a category of contraband, and even then, the classification is a tentative one: that a file is potential CSAM. Only the officers’ subsequent viewing of the video confirmed that the file contained intact CSAM and, in this case, disclosed the unambiguously illegal nature of the content under Wisconsin law. Moreover, even assuming an ESP’s hash-value scanning is highly reliable and accurate in identifying CSAM, that reliability does not dispense with the Fourth Amendment’s warrant requirement. “[T]he reliability of [an ESP’s] hash matching technology is pertinent to whether probable cause could be shown to obtain a warrant, not to whether the private search doctrine precludes the need for the warrant.” A law enforcement officer may, for example, have highly reliable information about the presence of drugs in a home; but the reliability of that information does not justify a warrantless entry and search. “Incontrovertible testimony of the senses that an incriminating object is on premises belonging to a criminal suspect may establish the fullest possible measure of probable cause. But even where the object is contraband, this Court has repeatedly stated and enforced the basic rule that the police may not enter and make a warrantless seizure.” *** In an era of rapidly-advancing technology, including the deployment of artificial intelligence tools that collect and analyze vast amounts of data, the majority’s application of the private search doctrine creates troubling precedent. This court, in holding that opening the file and viewing the video was no different than Snapchat’s digital scan, sanctions greater government intrusion in reliance on private companies’ technological tools. Condoning warrantless government searches that surpass a commercial entity’s previous intrusion into places in which citizens reasonably expect privacy undermines the Fourth Amendment’s protections against unreasonable searches. *** In this case, the government indisputably did not rely on settled precedent when it inspected Gasper’s file without first obtaining a search warrant. Moreover, it was aware that the federal circuit courts were divided on whether a search warrant is required under similar circumstances. Instead of taking the course of action that would ensure it was acting constitutionally—applying for a search warrant—the government instead chose to risk violating Gasper’s rights. The State’s policy was to open and view all of the files attached to CyberTips without a search warrant, despite knowing full well that the law was unsettled. Applying the exclusionary rule here would serve the purpose of deterring the government’s deliberate choice to evade the warrant requirement. The good-faith exception should not be applied to reward the government’s strategic avoidance of its obligations under the Fourth Amendment. *** ESPs have many reasons for wanting to keep their platforms free of harmful and inappropriate content like CSAM, and many utilize software to monitor and prevent it. However, those efforts do not open the door to warrantless searches by the government of ESP users’ private, password-protected data. By opening and viewing Gasper’s video without a search warrant, the State exceeded the bounds of the ESP’s private search. The State did not do so with the virtual certainty that it would find nothing of significance in the file. Its visual examination of the video not only confirmed that the file contained CSAM, but it revealed specific images that the State described in detail in the search warrant affidavit. Because the State’s decision to forego a search warrant before opening and viewing the video cannot be excused under the good-faith exception, the evidence obtained from the warrantless viewing should have been suppressed. Nevertheless, I would hold that the CSAM found during the execution of the search warrant need not be suppressed because the warrant was supported by sufficient untainted evidence.
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Note: In a normal SCOW docket post we crunch Supreme Court of Wisconsin decisions down to manageable size. The rules for this are that no justice gets more than 10 paragraphs as written in the actual decision and the “upshot” and “background” sections do not count because of their summary and necessary nature. In this post, we’re breaking down last week's unsigned order of the court in cases challenging Wisconsin's congressional districting, plus the concurring and dissenting opinions. Each justice will still receive no more than 10 paragraphs. Regular italics are in the original opinion. Italics surrounded by parentheses indicate WJI insertions. This post is slightly different than prior ones because there are actually two orders. Two separate cases challenge Wisconsin’s congressional districting, and the court issued an order in each case. The orders and opinions in each case are nearly identical and address substantively the same arguments. The quotations for this post come from Bothfeld. As usual, we’ve generally removed citations from the opinions for ease of reading. However, in this instance, some statutory citations and references to prior Supreme Court decisions are necessary to understand the opinions. Several references to the multiple Johnson opinions in particular are left in. That case concerned the challenges to Wisconsin’s redistricting maps following the 2020 census and resulted in opinions subsequently called Johnson I, Johnson II, and Johnson III. Finally, we have included both versions of one paragraph of Justice Annette Kingsland Ziegler’s dissent. Following issuance of these orders on Nov. 25, journalist Mark Joseph Stern quickly posted on Bluesky and reported in Slate about Ziegler’s inaccurate quotation and interpretation of the U.S. Supreme Court's decision in Moore v. Harper. Stern told Wisconsin Justice Initiative last week that he asked the Wisconsin Supreme Court to correct it. Ziegler’s initial dissent was replaced by a new version eliminating the quotation marks and adding a parenthetical. We quote both versions, with the changed language in bold. The cases: Elizabeth Bothfeld v. Wisconsin Elections Commission Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission Majority: Unsigned but consisting of Chief Justice Jill Karofsky and Justices Rebecca Dallet, Janet Protasiewicz, and Susan Crawford (5 pages) Concurrence in part and dissent in part: Justice Brian K. Hagedorn (2 pages) Dissent: Justice Annette Kingsland Ziegler (9 pages) Dissent: Justice Rebecca Grassl Bradley (7 pages) Upshot (The court held that pursuant to state statutes it must appoint a three-judge panel and select a venue for each case to hear the challenges to congressional districting. The court chose Dane County Circuit Court as the venue for both cases and appointed the following circuit court judges: Bothfeld case: Julie Genovese, Dane County Circuit Court Mark Sanders, Milwaukee County Circuit Court Emily Lonergan, Outagamie County Circuit Court WBLD case: David Conway, Dane County Circuit Court Patricia Baker, Portage County Circuit Court; and Michael Moran, Marathon County Circuit Court) Background On July 22, 2025, this court received written notice from the Dane County Clerk of Courts of the filing of a summons and complaint on July 8, 2025, by Elizabeth Bothfeld and other individual voters (collectively, “Bothfeld”) against the Wisconsin Elections Commission et al. (collectively, “WEC”). The complaint alleges that Wisconsin’s current congressional map violates the Wisconsin Constitution in various respects. The Dane County Clerk of Courts enclosed a copy of the summons and complaint in its July 22, 2025 written notice to this court. This court opened miscellaneous Case No. 2025XX1438 to receive these filings. *** On September 25, 2025, this court entered an order requiring the parties to submit simultaneous briefs and response briefs addressing “whether Bothfeld’s complaint filed in the circuit court constitutes ‘an action to challenge the apportionment of a congressional or state legislative district’ under WIS. STAT. § 801.50(4m).” (The court granted motions by individual voters and the Wisconsin Legislature to file amici curiae (nonparty) briefs and granted a motion to intervene filed by a group of Congressmen and individual voters.) Majority . . . . WISCONSIN STAT. § 731.035(1) states that “[u]pon receiving notice under s. 801.50(4m), the supreme court shall appoint a panel consisting of 3 circuit court judges to hear the matter. The supreme court shall choose one judge from each of 3 circuits and shall assign one of the circuits as the venue for all hearings and filings in the matter.” *** The Bothfeld plaintiffs argue that their complaint clearly constitutes “an action to challenge the apportionment of any congressional or state legislative district” for purposes of WIS. STAT. § 801.50(4m). This is so given that, in various cases over many years’ time, this court has used the terms “redistricting,” “apportionment,” and “reapportionment” interchangeably to mean redrawing Wisconsin’s congressional and state legislative districts so as to comply with state or federal law. The court’s use of these terms interchangeably comports with (the Wisconsin Constitution), which labels the state legislative redistricting process “Apportionment” in its title and describes the legislature’s task as to “apportion and district” anew. Moreover, cases interpreting an analogous federal statute, which requires appointment of three-judge panels to hear “apportionment” challenges in federal courts, consistently use the terms “apportionment” and “redistricting” interchangeably. Given the above, the Bothfeld plaintiffs argue, their complaint plainly falls within the scope of § 801.50(4m), thus requiring this court to appoint a three-judge panel and designate a circuit court venue pursuant to state law. The Congressmen, the Legislature, and the amici generally argue that Bothfeld’s complaint does not fall within the scope of WIS. STAT. § 801.50(4m) because the complaint is not an “apportionment” challenge, which they define narrowly as a challenge to the distribution of legislative seats among districts. Bothfeld’s complaint is instead a “redistricting” challenge, which they define narrowly as a challenge to district boundaries. In their view, the non-synonymous nature of the terms is confirmed by the Wisconsin Constitution, which uses the terms “apportion” and “district” in a single section, indicating that the terms have distinct meanings. Moreover, these parties argue, “apportionment” refers only to legislative action, not the remedial judicial action that this court took in Johnson II, of adopting Wisconsin’s current congressional map. Because Bothfeld’s lawsuit is not an “apportionment” challenge, these parties submit, the court should not appoint a three-judge panel. Instead, the court should employ its superintending authority and dismiss Bothfeld’s complaint, as the suit constitutes an improper collateral attack on Johnson II that a lower court is in no position to adjudicate. The defendants—WEC, its members, and its administrator—filed a statement explaining that it takes no position on the question posed. We conclude that Bothfeld’s complaint does constitute “an action to challenge the apportionment of any congressional or state legislative district” for purposes of WIS. STAT. § 801.50(4m). We acknowledge, as noted by the parties, that in (a prior case) we stated in a footnote, without citation, that “[r]eapportionment is the allocation of seats in a legislative body where the district boundaries do not change but the number of members per district does (e.g., allocation of congressional seats among established districts, that is, the states); redistricting is the drawing of new political boundaries[.]” But this statement did not address the meaning of § 801.50(4m)—a statute that did not exist until nearly 10 years after the Jensen decision. Were we to view Jensen as dispositive of the meaning of the term “apportionment” in § 801.50(4m)—such that here, the term would refer only to the allocation of congressional seats to Wisconsin—it is difficult to conceive of any state-court “action to challenge the apportionment of any congressional . . . district” to which § 801.50(4m) would apply, as “apportionment” in that sense occurs only at the federal level, not the state level. We decline to adopt such a cramped reading of the statute, particularly given that neither we nor other courts have consistently used the term “apportionment” in such a limited sense. We also reject as unsupported the suggestion in the briefing that “apportionment” refers only to legislative action, not judicial action. Because Bothfeld’s complaint constitutes an “action to challenge the apportionment of a congressional or state legislative district” within the meaning of § 801.50(4m), this court is required to appoint a three-judge panel and to select a venue for the action pursuant to (state statute).  Hagedorn Concurrence in part and dissent in part The question before us at this stage is a narrow one, and it does not involve whether the petitioners have valid claims or can obtain their requested relief. The issue is simply whether this court should appoint a three-judge panel pursuant to (state statutes). As the court’s order explains, I conclude these statutes apply to this case, and a panel must be appointed. I disagree, however, with how this court is fulfilling its statutory mandate. Wis. Stat. § 801.50(4m) provides a unique venue selection mechanism for actions challenging “the apportionment of any congressional . . . district,” and directs us to WIS. STAT. § 751.035. That section then sets forth procedures to provide both a new location and a new judicial decision-maker. These statutes are transparently designed to prevent forum shopping in disputes over where congressional lines should be drawn. To avoid litigants simply choosing their preferred venue and judge, the statute requires the appointment of a three-judge panel with each judge coming from a different judicial circuit, and then requires that venue be assigned to one of those circuits. Given the nature of this case and the statute’s implicit call for geographic diversity and neutrality, a randomly-selected panel and venue would be a better way to fulfill the statutory mandate. Instead, my colleagues have chosen to keep this case in Dane County and leave the originally assigned Dane County judge on the panel. The court has also hand-selected two additional judges rather than using a neutral process. To be clear, I am not suggesting the judicial panel will fail to do its job with integrity and impartiality. But this approach is an odd choice in the face of a statute so clearly designed to deter litigants from selecting their preferred venue and judge. I also write to respond to the entreaty from the Congressmen, the Legislature, and the amici that we use our superintending authority to seize this case from the circuit court, exercise independent jurisdiction, and dismiss it on the merits. This request is not without force given the unique posture of this case. The petitioners here make the rather extraordinary plea for the circuit court to declare a 2022 decision and order of this court unconstitutional. That said, these issues are not yet ours to decide. Our role at this stage is limited—dealing only with the statutory mandate to appoint a three-judge panel which is then empowered to adjudicate the petitioners’ claims. To be sure, the Congressmen, the Legislature, and the amici raise legal roadblocks that must be reckoned with. But setting the precedent that this court should swoop in and shut down a case before it ever gets to us is not a door we should open. The circuit court panel will consider all the relevant substantive and procedural arguments in due course, and I would give it that opportunity. I therefore concur in the court’s order appointing the panel, but I disagree with the method the court uses to appoint the panel and select venue.  Ziegler Ziegler dissent Today, my colleagues—disregarding the United States Constitution, the Wisconsin Constitution, and fundamental legal principles—approve a collateral attack of our court’s decision by a panel of circuit court judges, unsupported in the law and barred by laches. The majority not only undermines our constitutional authority and circumvents established redistricting precedent but also, again, usurps the legislature’s constitutional power. In allowing this litigation to proceed, the majority abdicates its constitutional superintending authority to Wisconsin’s circuit courts. Compounding the constitutional problems which prohibit a circuit court panel from reconsidering or overturning our decisions, the selection process for this hand-picked panel lacks even a hint of transparency. Behind closed doors, my colleagues chose three circuit court judges to consider apportioning, not redistricting, court-established congressional maps - something this panel is not constitutionally empowered to do. This action is barred by laches and is contrary to the Wisconsin Constitution and the Elections Clause of the United States Constitution. Under our state constitution and the United States Constitution, map-drawing authority lies with the legislature alone. And, our court has repeatedly declined to reconsider its adoption of Governor Evers’ congressional maps in Johnson II. While we were forced to act in the Johnson cases due to the impasse between the legislature and the governor, we are not faced with any such constitutional crisis here. This panel is not apportioning maps that the legislature drew and the governor approved. The so-called “apportionment” is of maps our court selected. The majority does not consider any of these distinctions in its order. Because these are court-created maps, the panel has no constitutional authority to revisit or change them, nor can it redefine apportionment because that too was decided in Johnson I. In Johnson I and Johnson II, the court decided apportionment, partisan gerrymandering, and congressional map districting, and those decisions remain unchanged, as do the court-selected congressional maps. Plaintiffs cite no authority to support a circuit judge panel revisiting our court’s determinations on apportionment. What the panel is to consider in addressing only apportionment is as clear as mud. If our court understands that the constitution forbids such a panel from reconsidering or overturning our court’s decision on apportionment or redistricting, then it is unclear what else the panel can do other than restate Johnson I and II. Otherwise, the court’s order has put the panel in a constitutional dilemma because the panel lacks any authority to revisit our decisions. *** I dissent without considering the merits of the case. In fact, it is impossible to know what the panel will be doing. The order ignores the many concerns that I raise, the questions to be answered by the panel, the factors to be weighed, the arguments that will be set forth, or any standards that might apply. Given Johnson I and its progeny, it is difficult to know what, if anything, this panel can or should do, and our court provides zero guidance. To me, the only constitutionally permissible action we should take is to dismiss this charade. Once again, a majority of this court engages in partisan judicial activism—this time to reshape congressional maps. This is no isolated incident; it is a pattern. As Justice Rebecca Grassl Bradley recently observed: “Political forces continue to use this court to obtain what the democratic process denies them. The Wisconsin Constitution plainly prohibits a circuit court—empaneled by this court or not—from adjudicating a challenge to a final judgment of the supreme court. The majority nevertheless entertains yet another kick at the redistricting cat. “ We have heard the substance of this case before. The plaintiffs have merely returned for a second bite at the apple armed with a fresh legal theory. Even though they have cited no authority in support of their extraordinary legal theory, this court accepts their approach wholesale without demonstrating any legal analysis, critical reasoning, or attempt to reconcile this unprecedented proceeding with constitutional constraints. Not one word from the majority addressing laches. Instead, the court places this three-judge panel in the impossible position of considering “apportionment” without any authority to reconsider or overturn our precedent. *** (Original version:) Worse yet, the plaintiffs’ theory disobeys the United States Constitution’s Elections Clause which vests redistricting responsibility exclusively in “the Legislature thereof.” As the United States Supreme Court recently reaffirmed, the role of state courts in congressional redistricting is “exceedingly limited.” Moore v. Harper, 600 U.S. 1, 34 (2023). This lawsuit invites the very judicial meddling that the Constitution prohibits. We see other states invoking fairly interesting procedures to address congressional maps. We do not see other state supreme courts allowing their lower courts to re-evaluate court-established congressional maps. While it may be more expedient for those in political favor to continue to turn to our court for map drawing, redrawing, and redrawing, or any of a host of “hot” political issues, that is not what the Constitution demands. And, these are federal congressional maps, but the majority does not give any weight to important federal constitutional concerns. The judiciary is to be the least dangerous branch of government. Not today, at least in Wisconsin. (Replacement paragraph:) Worse yet, the plaintiffs’ theory disobeys the United States Constitution’s Elections Clause which vests redistricting responsibility exclusively in “the Legislature thereof.” As the United States Supreme Court recently reaffirmed, the role of state courts in congressional redistricting is exceedingly limited. See Moore v. Harper, 600 U.S. 1, 36 (2023) (“[S]tate courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.”). This lawsuit invites the very judicial meddling that the Constitution prohibits. We see other states invoking fairly interesting procedures to address congressional maps. We do not see other state supreme courts allowing their lower courts to re-evaluate court-established congressional maps. While it may be more expedient for those in political favor to continue to turn to our court for map drawing, redrawing, and redrawing, or any of a host of “hot” political issues, that is not what the Constitution demands. And, these are federal congressional maps, but the majority does not give any weight to important federal constitutional concerns. The judiciary is to be the least dangerous branch of government. Not today, at least in Wisconsin. *** (T)he majority appoints circuit court judges to do something, but provides no guidance. This panel cannot constitutionally reconsider the court’s legal conclusions regarding apportionment or the congressional maps. Allowing the abuse of WIS. STAT. § 801.50(4m) in this way runs headlong into constitutional constraints. Before we even begin to consider ordering a panel to apportion under this statute, we must start with the constitution. The majority instead starts with a facial application of the statute, completely ignoring constitutional implications of having a panel act on a matter that has been definitively decided by our court. *** Compounding the constitutional violations is the opaque process by which my colleagues selected the three-judge panel. There has been no disclosure of criteria, no explanation of procedure, and no transparency whatsoever. Not that these judges bear any fault in their selection, but there are over 260 circuit judges in our state, and we have no information on how or why these six judges were picked. The secrecy surrounding the selection process invites doubt. The public will never know what guided these choices; neither do I. *** Today is not a good day for Wisconsin’s judicial system. Our court has undermined its own constitutional authority in furtherance of affording the Democratic Party even more partisan political advantage than it already has with Governor Evers’ congressional maps in place. My colleagues ought not complain when our precedent is not taken seriously or followed. By entertaining this legal fiction, the majority jeopardizes the credibility of the judiciary and invites violation of foundational constitutional principles. Redistricting and reapportionment authority belongs to the legislature—not the judiciary. It occurs after a census. Because of the impasse after the last census, our court was the final word regarding apportionment and selecting the congressional maps. A circuit court panel simply cannot overturn or revise Johnson I and II.  Bradley Bradley dissent
The plaintiffs frame this court’s sole role in the proceedings as fulfilling a ministerial duty imposed by statute. The majority agrees. The members of this court, however, swore an oath to uphold the Wisconsin Constitution, which prohibits lower courts from reconsidering decisions of this supreme court. The Wisconsin Constitution is superior to the Wisconsin Statutes, and is dispositive. The circuit court nevertheless gave notice to this court of the WBLD and Bothfeld Complaints . . . . In response, the majority pretends this is a fresh challenge to an apportionment—rather than a collateral attack on a judgment of this court—and . . . appoints a hand-picked three-judge panel to consider plaintiffs’ challenge to this court’s adoption of Governor Tony Evers’ proposed congressional map in Johnson. None of this comports with the constitution. The Wisconsin Constitution denies the legislature any authority to empower a lower court to review the constitutionality of a final judgment of this court. The legislature itself, as amicus curiae in these matters, rejects the majority’s contrary interpretation, recognizing that the court’s constitutional superintending and appellate authority over all Wisconsin courts precludes the circuit court from adjudicating plaintiffs’ claims. The constitution itself relieves this court of any ostensible obligation to appoint a three-judge panel to perform that which the constitution forbids. Nonetheless, the majority—without even mentioning the constitution—simplistically cites the statute and says it must obey what it perceives to be a legislative command. Impermissibly interpreting statutory law to override the constitution, the majority punts to a panel of lower court judges a decision they are constitutionally unauthorized to make. In an unprecedented ruling, the majority holds that (a state statute) imposes a mandatory duty upon this court to appoint a three-judge circuit court panel for any “action to challenge the apportionment of any congressional or state legislative district” . . . . The majority says: “Because [the Bothfeld and WBLD] complaints constitute ‘actions to challenge the apportionment of a congressional or state legislative district’ within the meaning of § 801.50(4m), this court is required to appoint a three-judge panel and to select a venue for the action . . . .” (cleaned up) (emphasis added). The majority errs—gravely. Setting aside the purely political shenanigans underlying these particular cases, toppling Wisconsin’s judicial hierarchy undermines Wisconsin’s constitutional structure, damages this court’s legitimacy, and deprives the People of Wisconsin of the stability the rule of law provides. In addition to ignoring the constitution, the majority makes no mention whatsoever of the redistricting actions resolved by this court, which Justice Annette Kingsland Ziegler recounts in her dissent. After the 2020 Census revealed malapportionment, the Wisconsin Legislature drew new maps, but Governor Evers vetoed them. This political impasse prompted an original action, which this court granted to remedy the unconstitutional malapportionment produced by population shifts. Thereafter, both the United States Supreme Court and this court denied multiple challenges to the constitutionality of the congressional map. This is no ordinary case in which a party brings an apportionment challenge in the first instance in circuit court; this supposedly supreme court has already spoken, and circuit court judges have no authority to revisit this court’s decision, even if the legislature purportedly gave it. The majority’s interpretation of (pertinent statute statutes) permits a panel of Wisconsin circuit court judges to reopen a final judgment of the supreme court to reconsider the constitutionality of the Johnson II congressional map adopted by this court to remedy malapportionment. The hierarchy of appellate jurisdiction under the Wisconsin Constitution is plain, and the majority’s holding is glaringly unconstitutional. The legislature cannot empower a circuit court to review a final judgment of the Wisconsin Supreme Court, nor can the legislature require this court to appoint a circuit court panel to do so. The majority tacitly approves an impermissible collateral attack—in a lower court—on a decision of this court, but the Wisconsin Constitution prohibits such a maneuver. *** Under the Wisconsin Constitution, this court’s superintending authority is plenary and without limitation or exception. “Under the Wisconsin Constitution, [the administration of the courts is] expressly vested in this court; our authority to supervise and administer the Wisconsin court system is not created or circumscribed by the legislature.” The legislature cannot limit, invade, or strip this court’s constitutional authority. No statute can invade this court’s constitutionally-conferred appellate jurisdiction either. Under (the state constitution) “[t]he supreme court has appellate jurisdiction over all courts . . . .” While plaintiffs concede (the pertinent state statutes) leave this court’s “superintending and administrative authority” under (the constitution) intact, plaintiffs posit it would be extraordinary for the court to exercise it in this case. Hardly. Allowing a panel of circuit court judges to adjudicate a challenge to a supreme court decision impermissibly gives lower court judges appellate jurisdiction over the state’s highest court. That is extraordinary. (The constitution) gives circuit courts “such appellate jurisdiction in the circuit as the legislature may prescribe by law.” The supreme court is, of course, beyond the realm of any circuit. *** This court has accepted procedural statutes like (those in this case), but under the original understanding of the Wisconsin Constitution, this court retains its ultimate authority over court procedure. Assertion of that authority is particularly imperative if a statute appears to elevate a circuit court to a position of appellate review over the supreme court—a constitutional impossibility. Legislative interference with the authority constitutionally conferred on the judiciary has long been recognized to violate the Wisconsin Constitution. . . . “A collateral attack on a supreme court judgment” like these “would ordinarily be dismissed upon arrival.” (Citation to her own dissent in a prior case.) Political forces continue to use this court to obtain what the democratic process denies them. The Wisconsin Constitution plainly prohibits a circuit court—empaneled by this court or not—from adjudicating a challenge to a final judgment of the supreme court. The majority nevertheless entertains yet another kick at the redistricting cat. Unlike Schrödinger’s cat, this one most assuredly has been dead for years. I dissent. The SCOW docket: No hearsay exception in revocation proceedings for victim's out-of-court statement8/12/2025 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 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 are also italicized. Case: State ex rel. Wisconsin Department of Corrections, Division of Community Corrections v. Hayes  Walsh Bradley Majority: Justice Ann Walsh Bradley (14 pages), joined by Chief Justice Jill J. Karofsky and Justices Rebecca Dallet, Brian Hagedorn, and Janet C. Protasiewicz Concurrence: Justice Annette Ziegler (2 pages) Dissent: Justice Rebecca Grassl Bradley (6 pages) Upshot The Supreme Court upheld an administrative decision not to revoke probation based on the agency administrator's determination that the Department of Corrections failed to show good cause to overcome the probationer's due process right to confront an adverse witness, and that without the witness' hearsay statement the evidence was insufficient. We conclude that under the certiorari standard of review, the administrator’s decision must be upheld because it is supported by substantial evidence and was made according to law. Background In February of 2019, Keyo Sellers was convicted of a drug offense and later placed on probation. DOC sought to revoke his probation in March of 2022 based on five alleged violations of the conditions of probation. Specifically, DOC alleged that Sellers: (1) entered K.A.B.’s home without her consent, (2) sexually assaulted K.A.B., (3) took $30 from K.A.B. without her consent, (4) subsequently trespassed on K.A.B.’s property by walking onto her porch and looking through the windows without her consent, and (5) provided false information to his probation agent. Sellers stipulated to the fifth alleged violation, and a revocation hearing on the remaining four allegations proceeded before an ALJ. Notably, . . . DOC did not present K.A.B. as a witness. Instead, DOC attempted to admit her testimony by other means, including a written statement provided by K.A.B. and the testimony of a police officer who interviewed her. Sellers’s probation agent explained the decision not to subpoena K.A.B. as follows: “[S]he told the police and she’s told me she can’t 100% ID her assailant,” so the agent “didn’t feel it was necessary to have her come in and provide testimony and go through the trauma of her assault to only say that she believes that Mr. Sellers could be the assailant, but she doesn’t know 100%.” DOC presented live testimony from three witnesses at the revocation hearing: the police officer who investigated K.A.B.’s report of sexual assault and burglary, an analyst from the state crime laboratory, and Sellers’s probation agent. The officer testified regarding his interaction with K.A.B. and relayed what she had reported to law enforcement. He stated that K.A.B. had installed security cameras after the attack, which “almost a week to the day of the original assault” recorded a man “on her front porch prowling and peering into her front living room window.” Further, the officer testified that facial recognition software had been used on that security camera footage, leading him to Sellers after the software indicated a match. Several physical features of the person in the security video matched Sellers. Although K.A.B. could not identify Sellers with certainty, the officer interviewed Sellers’s ex-wife, who according to the officer’s testimony was “absolutely sure” that the man in the video was Sellers. The crime lab analyst testified that she completed DNA testing on evidence collected from the scene and from a sexual assault examination of K.A.B. She testified that the sample collected was “consistent” with Sellers’s profile, but admitted on cross-examination that the profile would also occur in “approximately one in every 278 African American individuals.” Based on census data, this means that the profile would match 389 people in the City of Milwaukee. Finally, Sellers’s probation agent testified that . . . she viewed the security camera footage and was 99 percent sure that the man in the video was Sellers “based on his appearance, based on his walk, and based on the fact that I’ve supervised him, you know, for almost 18 months.” Sellers did not testify at the revocation hearing but provided a written statement that is in the record. He stated that he has “never been on [K.A.B.’s] property or in the property,” he is not the person in the video and he “did not sexually assault anyone.” The ALJ revoked Sellers’ probation, concluding that the first four allegations had been established by a preponderance of the evidence, and determined that incarceration was appropriate. Sellers appealed the ALJ’s decision to Administrator Brian Hayes. Hayes described K.A.B.’s account of the events as “critical to the DOC’s allegations,” found that reliance on K.A.B.’s “hearsay account" violated Sellers’ constitutional right to due process, and that without K.A.B.’s hearsay statements there was insufficient evidence on the four charges. Hayes found that for the stipulated violation of providing false information to the probation agent, revocation and confinement were not appropriate. The DOC sought certiorari review in circuit court. That court reversed Hayes' decision, but Hayes successfully appealed to the Court of Appeals. The DOC then took the case to the Supreme Court, which heard oral arguments in March. Guts Our review is limited to (1) whether the administrator kept within his jurisdiction; (2) whether the decision was according to law; (3) whether the administrator’s action was arbitrary, oppressive or unreasonable and represented his will and not his judgment; and (4) whether the evidence was such that the administrator might reasonably make the order or determination in question. *** In regard to DOC's argument that evidence other than K.A.B.'s hearsay statement supported revocation under the fourth prong above, DOC asserts that the administrator ignored crucial non-hearsay evidence showing that Sellers committed the rule violations in question. Specifically, DOC contends that the administrator ignored two key pieces of evidence: (1) the DNA evidence and (2) the security camera footage. We are not persuaded by DOC’s argument. In essence, DOC asks us to weigh the evidence differently than did the administrator, which would contravene our established standard of review. Reasonable minds could arrive at the conclusion that the DNA evidence was far from airtight and did not weigh heavily (or at all) in DOC’s favor. DOC asks us to adopt the position of the ALJ, who weighed this evidence more heavily. Yet, the ALJ made a logical leap when she found that a DNA profile “consistent with Mr. Sellers” and almost 400 other men in Milwaukee meant that “Mr. Sellers’ DNA” was in fact “on K.A.B.” Reasonable minds could weigh this evidence less heavily, as the administrator did. Next, we turn to the security camera footage. Even assuming that the man in the video was Sellers, it was not unreasonable to conclude that the footage on its own did not establish every element of the alleged violations or tie the person in the footage to the earlier offenses. Indeed, as the court of appeals determined, it was reasonable to conclude that K.A.B.’s testimony “was necessary for DOC to prove all the elements of the alleged probation violations (e.g., non-consent, and that the person on the porch was also the person who sexually assaulted K.A.B.).” It is DOC who has the burden to prove an alleged probation violation by a preponderance of the evidence. There is a reasonable view of the evidence under which DOC has not met that burden and could not meet that burden without K.A.B.’s hearsay statements. In other words, given the evidence before him, the administrator’s determination was reasonable. Even if there is evidence supporting a contrary determination, we must affirm the administrator’s decision if substantial evidence supports the decision. *** The Court next turned to DOC's argument that good cause existed to overcome Sellers’ due process right to confront adverse witnesses and allow the hearsay testimony under the second or third prongs of the standard of review noted above. It is well-established that revocation of probation implicates a probationer’s protected liberty interest. Although a probationer is entitled to due process of law before probation may be revoked, a probationer is not entitled to the full panoply of legal rights accorded to those subject to criminal process. Among the “minimum requirements of due process” that must be afforded to probationers is “the right to confront and cross- examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation). Such a procedure serves to “protect the defendant against revocation of probation in a constitutionally unfair manner.” *** In the present case, we have no information in the record regarding any barriers to obtaining K.A.B.’s live testimony. The record reflects that the probation agent was concerned about retraumatizing her: “I didn’t feel it was necessary to have her come in and provide testimony and go through the trauma of her assault to only say that she believes that Mr. Sellers could be the assailant, but she doesn’t know 100%.” While retraumatization is certainly a serious concern, there is no indication in the record that K.A.B. herself was concerned about retraumatization or whether the agent even discussed this with her. With no specific information in the record, to accept DOC’s argument would establish a per se “retraumatization” exception to hearsay that could be asserted in every case. This would be a sea change in the law and we decline to adopt it here. There is likewise no testimony in this record from any source regarding any other “difficulty” or “expense” that K.A.B.’s testimony would have entailed. Absent any testimony on these factors that is specific to this victim, it was reasonable for the administrator to conclude, as he did, that “there was no basis to find that there was any ‘difficulty, expense, or other barriers to obtaining live testimony’ of K.A.B., which is fatal to this particular good cause test.” Because the administrator properly applied the balancing test, his determination was made according to law. *** DOC makes no detailed argument here that K.A.B.’s statement is accompanied by sufficient indicia of reliability so as to be admissible under the residual exception in the rules of evidence. In briefing, it contends that K.A.B.’s statements have “circumstantial guarantees of trustworthiness” based on corroboration by the non-hearsay evidence referenced above. But as explained, the non-hearsay evidence is not particularly strong. Given this, and given the rarity with which the residual exception is intended to be used, we cannot say that rejecting the residual exception here was an erroneous exercise of discretion. Because the administrator did not erroneously exercise his discretion in excluding the hearsay testimony, we determine that his decision that good cause was not present was made according to law.  Ziegler Concurrence I agree with the majority that the administrator’s decision in this case is supported by substantial evidence. The standard we must apply on certiorari review is whether the administrator’s decision is invalid, not whether we like it or agree with it. Although the dissent’s arguments that the administrator’s decision is not supported by substantial evidence are not without some force, the standard we must apply requires that we review the evidence to determine whether the administrator could reasonably make the decision he made. To be clear, the administrator likely could have made the opposite determination, and if the administrator had done so, we likely would have held that there is substantial evidence supporting that decision. I am unwilling, however, to join the majority’s conclusion that the second issue in this case—whether the administrator erred by excluding hearsay testimony—is simply a question of whether the administrator acted “according to law.” It may also be appropriate, given the petitioner’s arguments, to review the issue under the third certiorari prong, which asks “whether [the administrator’s] action was arbitrary, oppressive, or unreasonable and represented [his] will and not [his] judgment.” Accordingly, I concur, but I do not join the majority opinion.  Grassl Bradley Dissent
Administrative Law Judge Martha Carlson presided over the revocation hearing and determined that DOC established each of the allegations by a preponderance of the evidence. Among other evidence, she relied on the DNA match and the lack of any “credible explanation for why Mr. Sellers’ DNA would be on K.A.B. but for the assault.” She also relied on the video footage showing Sellers on the victim’s porch days after the sexual assault. Sellers appealed. In a brief letter, Brian Hayes, the Administrator of the Division of Hearings and Appeals, reversed the ALJ’s decision, citing the inadmissibility of the victim’s hearsay statements. The administrator did not consider whether non-hearsay evidence supported the alleged probation violations. One year later, the circuit court reversed the administrator’s decision, concluding “[n]on-consent . . . can be proven circumstantially based on the totality of the evidence” and the testimony of the probation agent, the crime lab analyst, and the police officer collectively established the alleged probation violations. Another year later, the court of appeals reversed the circuit court’s decision, deferring to the administrator’s conclusion that the victim’s testimony was necessary to prove the probation violations. Three months later, a jury found Sellers guilty of second-degree sexual assault with the use of force and burglary. The majority recites the correct standard of review but errs in applying it. The majority deems the administrator’s determination “reasonable” and supported by substantial evidence. It isn’t. Only by ignoring non-hearsay evidence supporting revocation could the administrator reasonably decide not to revoke Sellers’ probation. Even without the victim’s testimony, no reasonable person would decline to revoke Sellers’ probation given the overwhelming evidence to support his multiple violations of the law. The non-hearsay evidence supporting DOC’s first two allegations—Sellers entering K.A.B.’s home without her consent and sexually assaulting her—is enough to reverse the administrator’s decision. The evidence supporting allegation four—prowling on her property a week later and looking in her windows—refutes Sellers’ claim that he had never been to the victim’s residence. Nevertheless, the administrator maintains that Sellers’ false statement “remains the only non-hearsay account of what Sellers was actually doing.” K.A.B.’s hearsay testimony, however, is not necessary to put two and two together. *** The full picture of what happened should be crystal clear to a reasonable factfinder, even without the victim’s testimony. Law enforcement went to K.A.B.’s house in the early morning hours of September 15, 2021. After a SANE exam, DNA evidence of another person was recovered from K.A.B.’s body. Within days, surveillance cameras were installed at K.A.B.’s home. Law enforcement returned to K.A.B.’s house a week later on September 22, 2021. Surveillance footage was recovered showing a man outside the home shortly after midnight. At least two individuals familiar with Sellers identified him in the video footage. Law enforcement used facial recognition software to compare a still shot from the video recording with pictures of Sellers, which yielded similarity ratings of 98.2%, 92.7%, and 85.5%. These non-hearsay facts are more than enough to justify revocation of Sellers’ probation. Based on the non-hearsay evidence alone, confinement was necessary to protect the public from further criminal activity by him. The administrator erred in ignoring all of it and in concluding DOC failed to support its request for revocation. The administrator seemed to render a decision under the misapprehension that direct evidence was necessary to support DOC’s allegations against Sellers, declaring that “K.A.B.’s account of the events is critical to DOC’s allegations.” Under fundamental and longstanding law governing the admission of evidence in a criminal case, the administrator was plainly wrong. Decades ago, this court explained that circumstantial evidence commonly supports a conviction, and may be more convincing than direct evidence; this is particularly true when the victim, like K.A.B., cannot positively identify the perpetrator . . . . *** Uncontroverted, non-hearsay evidence places Sellers on K.A.B.’s porch one week after she was sexually assaulted, but the majority posits it is somehow reasonable to pin the assault on one of “almost 400 other men in Milwaukee [with a DNA profile consistent with Mr. Sellers]” instead of Sellers. The majority peddles incredible conjectures in its mission to declare the administrator’s determination reasonable, but in reaching for reasons to defend an insupportable decision, the majority teeters toward absurdity. While it is possible a different person sexually assaulted K.A.B., all of the evidence points to the same man who was caught on camera peeping into her home a week later. A reasonable person would reject the possibility of another person matching Sellers’ DNA profile assaulting K.A.B. the week before Sellers trespassed on her property. No reasonable factfinder could conclude DOC failed to show by a preponderance of the evidence that Sellers trespassed on K.A.B.’s property. Video evidence corroborated by multiple individuals familiar with Sellers’ appearance and posture identified him in the video. Considering his presence at the victim’s home a week after the sexual assault puts the evidence of the assault in its proper context. No reasonable factfinder could conclude DOC failed to prove Sellers invaded the victim’s home, sexually assaulted her, and one week later trespassed on her property. The administrator’s decision to the contrary was not supported by substantial evidence. The majority errs in upholding it. Why the court granted DOC’s petition for review is unclear. The petition did not raise any novel issues of law. In addressing the issues, the majority contributes nothing to the jurisprudence governing revocation proceedings. Instead, the majority conducts the same flawed analysis as the court of appeals, relies upon the same well-established cases the court of appeals applied, and reaches the same conclusion by also deferring to the administrator’s legally deficient decision. The court of appeals issued an unpublished, non-precedential, per curiam opinion. There was no point in taking this case only to repeat the errant work of the court of appeals. In the end, nothing about this case warranted this court’s review. The court should have dismissed the petition as improvidently granted. By issuing a decision, the majority casts a façade of importance over its analysis, despite the opinion signifying nothing. I dissent. 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 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 are also italicized. Case: State v. Stetzer Dallet Majority: Justice Rebecca Dallet (17 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Brian Hagedorn, and Janet Protasiewicz Concurrence: Justice Annette Ziegler (2 pages) Dissent: Chief Justice Jill Karofsky (15 pages) Upshot When a defendant commits an ongoing, otherwise-criminal act, like operating a motor vehicle with a prohibited alcohol concentration (PAC), the elements of the coercion defense (a complete defense to the charge) must be met for the entire duration of that act. Further, a defendant’s personal history can be relevant to the reasonableness of her belief that committing a crime was the only means of preventing imminent death or great bodily harm. Taking these determinations into account, the imminent danger situation that caused defendant Joan Stetzer to drive with a PAC dissipated, ending the defense and resulting in her conviction. Background Joan Stetzer was physically, emotionally and sexually abused by her husband, Bill Behlmer, for many years. He admitted that he physically and verbally abused her. To get away from the abuse, Stetzer sometimes went to their lake house, about 15 minutes from their primary home, because it had interior chain locks on the doors that prevented even someone with a key from entering. During the early hours one morning, after an argument about Behlmer's sexual affairs, Behlmer became violent, screamed at Stetzer, and pushed her down the stairs. Behlmer threatened to call the police, and taunted Stetzer that the police would arrest her instead of him, which had happened in the past. He accidentally dialed 911 but quickly hung up. Around the same time, Stetzer went outside. When the police called back, Behlmer told them that she was likely driving to the lake house and that she may be intoxicated. When Stetzer reentered the house, he ran at her with a closed fist, telling her to “get the hell out.” Stetzer testified that Behlmer had a look on his face that she had never seen before. He then ran after Stetzer into the garage carrying a large metal pot, “whipped” the pot at her, and continued to chase her outside and around her car. Stetzer managed to get inside her car and lock the doors. Behlmer pounded on the windows of the car and yelled “I’m going to take you out you fucking bitch.” Stetzer testified that she was frightened that he would break the windows of the car. Despite drinking a number of glasses of wine earlier that evening, Stetzer fled in her car, testifying that she did not believe she had another alternative. At first, Stetzer said she was “just trying to escape,” without a particular destination in mind, but she soon decided to drive to the lake house. About halfway there, Stetzer passed Officer Kimberley Kuehl in a police car pulled over on the side of the road. Officer Kuehl had learned of Behlmer’s report that Stetzer was likely driving to the lake house and that she may be intoxicated, and had positioned herself along Stetzer’s expected route. Stetzer acknowledged at trial that she saw the police car. When asked why she did not stop, Stetzer testified, “I thought about it. I thought should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested." After observing Stetzer weaving and veering in her lane, Kuehl initiated a traffic stop. Stetzer admitted that she had been drinking. She told Officer Kuehl that her husband had thrown her down the stairs and that she was going to the lake house “to get out of there.” Officer Kuehl testified that Stetzer appeared to be afraid of her husband and that she was crying. During the stop, Stetzer exhibited signs of impairment, and a subsequent blood draw showed that her blood alcohol concentration was over the legal limit of 0.08. She was arrested and charged with operating a motor vehicle with a PAC as second offense. At her bench trial, Stetzer stipulated that her blood alcohol concentration exceeded the legal limit, but she argued that the coercion defense absolved her of the offense. She argued that the defense allowed her to a motor vehicle with a PAC because the physical attack and threats by Behlmer caused her reasonably to believe that driving to the lake house was the only means of preventing imminent death or great bodily harm. Trial evidence included testimony from Stetzer, Behlmer, and an expert on domestic violence, Dr. Darald Hanusa. Hanusa, a psychotherapist and clinical social worker specializing in domestic violence, testified that on the night in question, Stetzer was presented with a “classic dilemma” for a person experiencing domestic violence: “[d]oes she stay with the possibility of being injured or does she take a risk to drive a car to flee to safety?” Dr. Hanusa also explained that fear is a primary factor in the decisions of domestic violence victims and that victims often do not call the police. He further opined that because Stetzer had an “adverse relationship with the police department,” the police would be “the last people she’s going to call for help.” The circuit court concluded that the elements of the coercion defense were initially met when Stetzer initially decided to drive away from her home. However, the state proved beyond a reasonable doubt that by the time she was pulled over, Stetzer had other means of safety available, so the elements of the defense no longer existed. The judge pointed out that once Stetzer left the driveway she had more options than driving to the lake house. The court of appeals affirmed. Guts Stetzer argued that as long as the elements for the coercion defense were met at the beginning of the offense when she began to operate her vehicle, the defense applied. We start with the text of . . . the statutes defining the coercion defense. . . . The pertinent statute identifies when an individual’s conduct occurs under circumstances of coercion, providing, in relevant part, that “[a] threat by a person . . . which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor . . . and which causes him or her so to act is a defense to a prosecution for any crime based on that act . . . .” The “circumstances of coercion” referenced in the statute are therefore present only when the three elements . . . are met: (1) there is a threat by another person; (2) the threat causes the defendant reasonably to believe that an otherwise-criminal act is the only means of preventing imminent death or great bodily harm; and (3) the threat causes the defendant to engage in the act. *** Requiring the elements of the coercion defense to be met throughout the duration of an ongoing act is consistent with how we have interpreted the closely related defenses of self-defense and defense of others. Like coercion, these other defenses permit an individual to engage in otherwise-criminal conduct (use of force against another) under certain narrow circumstances without facing liability—namely, when the individual reasonably believes that the force is necessary to prevent unlawful interference with the individual’s person or with a third person. Significantly, we have concluded that these related defenses are available only when a defendant or a third person is actually under threat. Even more to the point, we have held that when the otherwise-criminal act is ongoing, like possessing a firearm as a felon or carrying a concealed weapon, a defendant arguing self-defense must not have continued the act any longer than reasonably necessary. Our interpretation of the coercion defense also finds support in how other jurisdictions have interpreted similar defenses. The Supreme Court of Alaska, for example, held that defendants asserting the necessity defense for continuing offenses, like drunk driving, must show some evidence that they stopped violating the law as soon as the necessity ended. And New Jersey courts have noted that in a drunk-driving prosecution, “the distance a driver traveled might be relevant to the defense of necessity if the driver had escaped the harm and continued to drive.” Other courts have come to the same conclusion outside the specific context of drunk driving. And still others have held that coercion or similar defenses apply only as long as the elements of the defense continue to be met. Stetzer’s interpretation, by contrast, lacks a meaningful limiting principle and would dramatically expand the scope of the defense. Accepting Stetzer’s argument that the elements of the coercion defense need to be met only at the beginning of an ongoing, otherwise-criminal act would mean that an individual who is coerced in the first instance is free to ignore clearly safe alternatives to continued criminal conduct, or may continue engaging in such conduct even long after the threat has dissipated. In other words, the coercion defense could apply even if the act is no longer “occur[ing] under circumstances of coercion,” as required by the relevant statutes. We decline to adopt this expansive interpretation and therefore hold that the elements of the coercion defense must continuously be met throughout the duration of an ongoing, otherwise-criminal act. With respect to the second issue before us, Stetzer argues that the circuit court failed to consider her personal history of domestic violence and interactions with the police when determining whether she reasonably believed that operating a motor vehicle with a PAC was the only means of preventing imminent death or great bodily harm. In response, the State asserts that a defendant’s personal history is always irrelevant to what she reasonably believed. We disagree with the State’s categorical claim that personal-history evidence is always irrelevant to the reasonableness of a defendant’s belief. . . . *** Importantly for our purposes, we have repeatedly held that “[t]he personal characteristics and histories of the parties are relevant to” the reasonableness of the defendant’s belief. Regarding self-defense, for example, we held that the defendant’s testimony that he was the victim of an armed robbery at his sister’s residence could support a finding that he reasonably believed he was under an imminent threat when he heard kicking at the door of that same residence. And regarding defense of others, we similarly held that evidence that the defendant knew the victim abused his sister and could be violent could support a finding that the defendant reasonably believed his actions were necessary to protect his sister. We conclude that evidence of a defendant’s personal history can be similarly relevant in the context of coercion. Like self-defense and defense of others, the coercion defense focuses on what the defendant “reasonably believes” about both the threat and the act necessary to prevent it. Determining whether the defendant “reasonably . . . believe[d] that . . . her act . . . [wa]s the only means of preventing imminent death or great bodily harm,” therefore, must be determined from the standpoint of the defendant, and the operative question is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. And if personal history can be relevant to this analysis for self-defense and defense of others, it must similarly be relevant for the defense of coercion. The State suggests that the personal history of the defendant is irrelevant because considering it would transform “reasonableness” into a subjective standard. We disagree. Whether evidence of a defendant’s personal history is admitted or not, the underlying legal question remains the same: what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. In answering that question, the defendant’s past experiences, like her present ones, may be probative of what a reasonable person in the defendant’s position would have believed under the circumstances. The standard remains objective, however, because a mere subjective belief on the defendant’s part is insufficient to support the coercion defense. The factfinder must still determine if the defendant’s belief was objectively reasonable. Accordingly, we hold that, just as in the contexts of self-defense and defense of others, the defendant’s personal history can be relevant to the reasonableness of her belief that her actions were the only means of preventing imminent death of great bodily harm. *** Here, the circuit court’s conclusion that coercion had been disproven centered on two key factual findings: Stetzer knew she passed a police car and Stetzer was in a city she knows well. Those findings are amply supported by the evidence, and indeed are not disputed. Stetzer herself acknowledged that she saw the police car and that she thought about stopping, testifying that she thought “should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested.” On the basis of the findings that Stetzer knew she passed a police car and was in a city she knew, a reasonable factfinder could conclude, as the circuit court did, that beyond a reasonable doubt Stetzer knew there were other means of preventing imminent death or great bodily harm, and that the coercion defense was therefore disproven. Stetzer nevertheless argues that the circuit court’s verdict is not supported by sufficient evidence because she did not trust the police and feared they would arrest her, and that it was therefore reasonable for her to believe that continuing to drive past the police car was the only means of preventing imminent death or great bodily harm. But a reasonable factfinder could conclude, her distrust of police and fear of arrest notwithstanding, that Stetzer could not reasonably believe that she would still be under a threat of imminent death or great bodily harm by Behlmer while in the police’s presence. Moreover, a reasonable factfinder could have relied, as the circuit court did, on Stetzer’s knowledge of the area. In particular, the record indicates that on the way to the lake house, Stetzer passed a hotel that she knew was open. A reasonable factfinder considering this record could have reached the same conclusion as the circuit court: that the coercion defense had been disproven. Ziegler Concurrence I cannot, however, join part of the majority opinion, . . . because the majority unnecessarily reaches out to address whether personal history may be relevant to determining the reasonableness of a defendant’s belief that her act was the only means of preventing imminent death or great bodily harm. The court does not need to address this issue to resolve this case. As the majority opinion itself concludes, there is sufficient evidence to support the circuit court’s guilty verdict even if Stetzer’s personal history is considered. Said otherwise, whether or not Stetzer’s personal history is considered has no bearing on the outcome of this case. “‘Issues that are not dispositive need not be addressed.’” Further, the majority’s analysis regarding the relevance of a defendant’s personal history appears to suggest that the psychological effects prior acts of abuse may have on a defendant may be relevant personal history. We have not received meaningful briefing or argument on that issue from the parties, and courts are divided on whether such evidence is relevant to determining the objective component of the coercion defense. Accordingly, we should not opine, explicitly or implicitly, on that issue in this case.  Karofsky Dissent
“I’m going to take you out, you fucking bitch!” Threats, violence, abuse, manipulation, and coercion were all tactics Bill Behlmer employed to exert power and control over his wife, Dr. Joan Stetzer. In the early hours of May 24, 2017, Behlmer yelled the above threat as Stetzer cowered in her truck, wearing only pajamas. She was trying to escape Behlmer’s rage after he engaged in several acts of domestic abuse, including throwing Stetzer down a flight of stairs. Behlmer also threatened Stetzer by calling 911 and promising, “They [the police] [a]re going to get you just like the last time.” At 2:00 a.m., Stetzer fled in her vehicle without her phone, a change of clothes, a wallet, shoes, or even a plan. Just as Behlmer predicted, she was pulled over by the police a few miles from her house. Stetzer, not Behlmer, was arrested. She was later charged with disorderly conduct as an act of domestic violence; operating a motor vehicle with a prohibited alcohol content; and operating a motor vehicle while intoxicated. *** To secure a conviction, the State had to prove beyond a reasonable doubt that Stetzer did not reasonably believe that continuing to drive was her only means of protection from the threat of imminent death or great bodily harm. When assessing both reasonableness and imminence, the circuit court applied the wrong legal standard and consequently erred in concluding that the State met its burden. The majority’s insistence that the circuit court correctly applied the pertinent statute does not square with a proper interpretation of the statute and a thorough review of the evidence introduced at trial. *** The police stopped Stetzer and she tried multiple times to explain to them how Behlmer had attacked her. The officers disregarded her report. Stetzer described her perspective: “I felt like I was a victim . . . of domestic abuse and violence that night, and I felt like I was being treated as a criminal. I was dismissed. [The officers] didn’t even want to hear about what happened.” One officer insisted “you’re lying about the whole thing, you’re just a liar.” The same officer called her “narcissistic,” and another officer “didn’t seem to care.” In the course of being questioned, Stetzer penned a one-page account of what had transpired. In her words, “I was trying to explain that, [number one], this had happened tonight and, [number two], he had gotten away with it before.” The police ignored Stetzer’s account of Behlmer’s violence and abuse. They conducted only the most perfunctory of investigations into Behlmer’s actions. Behlmer even hired an attorney, in anticipation of legal consequences, and was surprised that the police never questioned him again. Instead the police arrested Stetzer for operating a motor vehicle while intoxicated. She was later charged with disorderly conduct as an act of domestic violence, . . . operating a motor vehicle with a prohibited alcohol content, as a second offense, . . . and operating a motor vehicle while intoxicated, also as a second offense . . . . Karofsky says reasonableness and imminence are central to the case and must be assessed within the context of domestic abuse. *** Personal history is particularly salient when assessing the behavior of domestic abuse victims. Hanusa framed it this way: “The question for victims of domestic violence isn’t how a reasonable person reacts in this situation. The question is given trauma that the victim of domestic violence has received, how would a reasonable domestic violence survivor respond. That’s the important question.” The violence can have widespread effects. “As with victims of terrorism or those held hostage, a battered woman’s perception of her situation and reality in general is changed and substantially altered. When this occurs, her capacity to evaluate options is diminished substantially.” For a reasonable victim of domestic violence, “[i]n situations of stress and trauma, there tends to be a narrowing or focusing on parts of the experience that the brain is appraising as really essential to survival and coping.” A domestic violence victim in survival mode will experience an “ignoring or non-processing of peripheral details.” *** Understanding the distinction between imminent and immediate is especially important when assessing the culpability of a domestic violence victim who engages in unlawful conduct to protect herself from the threat of imminent death or great bodily harm. “Imminent” does not mean that the threat or harm is occurring this moment. Rather, “imminent” means that the threat or harm is impending. “[T]he use of the word ‘immediate’ . . . obliterates the nature of the buildup of terror and fear which had been systematically created over a long period of time. ‘Imminent’ describes the situation more accurately.” Conflating the two standards leads courts to improperly blame domestic violence victims for failing to exercise proper judgment. Said differently, “the relevant question . . . concerns the relationship as a whole,” not just the most recent incident of abuse. *** The police were hardly a means of safety for a reasonable person in Stetzer’s position. Behlmer himself admitted that he had manipulated the police against Stetzer in the past. And that very night he taunted her with the threat that the police would come and “get you just like last time.” Stetzer testified that if she contacted the police, they might return her to Behlmer. Stetzer learned from past experiences that the police do not believe her reports of domestic abuse. Why would the police believe her now? Why would the police keep her safe this time? The circuit court failed to consider whether a reasonable person with Stetzer’s past experiences would believe that contacting the police would have interrupted the imminent threat. Had it done so, it would have identified reasonable doubt. *** Mystifyingly, the circuit court made no mention of the years-long history of abuse that informed Stetzer’s decision-making that night. Nor did it account for Hanusa’s testimony that a domestic violence victim, having endured years of abuse, might behave in a state of fight-or-flight, which readily explains why Stetzer would flee. Stetzer had been a victim of Behlmer’s physical abuse for years, and Behlmer’s abuse that night had ricocheted between verbal (calling her names and threatening her), to psychological (calling 911 to get her arrested), to physical (throwing her down stairs, throwing a heavy pot at her, and pounding on the truck windows). Given the history of abuse and the events that preceded her driving, Stetzer was understandably still terrified of Behlmer once she started driving. And her fear did not diminish upon pulling out of the driveway. She thought the headlights behind her were Behlmer chasing her down as he had done in the past. Stetzer had no reason to believe Behlmer was no longer a threat to her. Stetzer, and any reasonable person in her circumstances, would believe that fleeing from Behlmer was her only means of safety. The presence of a police car did not alleviate the threat Behlmer posed—his aggression continued to be dangerously impending. In other words, a reasonable doubt remained as to whether the State proved that the threat was no longer imminent. To summarize, the majority misses the mark by adopting the circuit court’s incorrect conclusion that the State met its burden. The State’s entire case, and the circuit court’s conclusion, depended on two facts: the presence of an officer and Stetzer’s familiarity with the area. Yet a diligent examination of the record—including those two facts—reveals that the State failed to disprove Stetzer’s coercion defense. The circuit court did not apply the correct legal principles in evaluating the State’s case. Undoubtedly, Behlmer’s history of abuse, and his manipulation of law enforcement, coupled with his threat to use the police to “get” Stetzer, would cause a reasonable person in Stetzer’s circumstances to believe that seeking help from the police could catapult Stetzer back to Behlmer’s violence and abuse. And being in a familiar place would be cold comfort to anyone in Stetzer’s circumstances, given that the place was just as familiar to Behlmer, and he had followed her in the past. It was reasonable for Stetzer to believe that Behlmer’s escalating physical abuse remained dangerously impending. At minimum, a reasonable doubt remained as to whether the State showed that Behlmer was no longer coercing Stetzer. The majority adopts the circuit court’s legal error, effectively eliminating the coercion defense for a victim it was written to protect. 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 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 are also italicized. Case: State v. McAdory Dallet Majority: Justice Rebecca Frank Dallet (13 pages), joined by Chief Justice Ann Walsh Bradley and justices Jill Karofsky, Brian Hagedorn, and Janet Protasiewicz Concurrence: Justice Annette Ziegler (30 pages), joined by Justice Rebecca Grassl Bradley Upshot Under a Wisconsin statute directing a single sentence even when a defendant is found guilty of multiple impaired-driving offenses stemming from the same incident, if the conviction on one offense is reversed the court may reinstate a guilty verdict on an alternate offense. Background After a traffic stop in January 2016, Carl Lee McAdory was charged with eighth-offense operating a motor vehicle while under the influence of a controlled substance (OWI) and operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood (RCS). A jury found him guilty of both offenses. Pursuant to a state statute, an individual may be charged and found guilty in a single case with any combination of three impaired driving charges, but can be sentenced on only one charge. Prior to sentencing the State moved (without objection) to dismiss the RCS charge and guilty verdict as “duplicative” under the statute. That statute provides that if a person is found guilty of more than one enumerated offense of OWI, RCS or operating a motor vehicle with a prohibited alcohol concentration (PAC), “there shall be a single conviction for purposes of sentencing . . . . " The circuit court granted the motion, and sentenced McAdory on the OWI charge and verdict alone. On appeal, the court of appeals overturned the OWI conviction on grounds unrelated to the RCS charge and guilty verdict. Accordingly the court of appeals’ opinion stated that it “reverse[d] and remand[ed] for a new trial on” the OWI offense. . . . The State did not seek to retry McAdory on remand. Instead, it asked the circuit court to reinstate the previously dismissed RCS charge and guilty verdict, enter a judgment of conviction, and dismiss the OWI charge. The circuit court agreed and proceeded to sentencing on the RCS charge and guilty verdict alone, granting McAdory sentence credit for the time he had already served on the invalidated OWI conviction. McAdory unsuccessfully challenged the circuit court’s reinstatement of the RCS charge and guilty verdict in post-conviction proceedings and in the court of appeals. Guts The statute at issue is silent about two things: (1) what the circuit court must do procedurally after a person is convicted of more than one of the enumerated offenses, and (2) what the circuit court may do on remand if a conviction for one or more of those enumerated offenses is overturned on appeal. The first gap . . . has long been filled by the court of appeals’ decision in Town of Menasha v. Bastian, which explains that if a defendant is convicted of more than one of the . . . offenses (OWI, RCS, and PAC) in a single case, “the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed.” That is what happened in McAdory’s case when, after the jury returned guilty verdicts on both the OWI and RCS charges, the circuit court dismissed the RCS charge and guilty verdict on the State’s motion prior to sentencing, and sentenced McAdory on the OWI conviction alone. The court decided not to address whether the court of appeals' Bastian and the court's own opinion in State v. Bohacheff (addressing similar statutory language) should be overturned, finding them irrelevant in McAdory's case, which involved only the second gap in the statute. . . . . In essence, McAdory argues that because the statute does not expressly authorize what the circuit court did, it must prohibit it. But that argument asks us to read too much into the statutory silence, since nothing in the statute prohibits what the circuit court did either. Accepting McAdory’s argument would mean that whenever a statute identifies an end goal like “a single conviction for purposes of sentencing and for purposes of counting convictions . . . ,” but does not specify how courts should reach that goal, every means of implementing the statute is prohibited. That argument cannot be right if for no other reason than it would prevent courts from implementing such statutes entirely. We conclude that the statute implicitly authorized the circuit court to reinstate the previously dismissed RCS charge and guilty verdict. That authorization flows from the text and structure of the statute itself, which establishes a procedure whereby multiple offenses from a single incident can be charged and tried in a single proceeding resulting in a single conviction for purposes of sentencing and counting convictions. What the circuit court did—first by dismissing the RCS charge and guilty verdict and later by reinstating it—implemented that statutory structure in a way that gave effect to its central premise, namely that guilty verdicts for the enumerated offenses are fundamentally interchangeable for purposes of the statute. Moreover, there is no suggestion that the RCS charge and guilty verdict itself was somehow invalid, or legally insufficient in a way that would otherwise make reinstating it improper. In short, the circuit court’s approach did not violate any provision of this statute or any other statute, and ensured that a statute designed to result in “a single conviction for purposes of sentencing and for purposes of counting convictions” was not transformed into one that results in no conviction at all. The court rejected McAdory's arguments that the state had somehow forfeited its right to seek reinstatement of the RCS charge and that the trial court violated the court of appeals' mandate by not holding a new trial. Finally, we are unpersuaded by McAdory’s arguments that reinstating the RCS charge and guilty verdict violated his right to be free from double jeopardy. The Fifth Amendment provides that “[n]o person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . ." The Wisconsin Constitution provides that “no person for the same offense may be put twice in jeopardy of punishment . . . .” Neither party develops any argument that the Wisconsin Constitution offers distinct double jeopardy protections from those guaranteed by the United States Constitution. As such, we analyze these claims together. The United States Supreme Court has described the Double Jeopardy Clause as containing three distinct protections: (1) “against a second prosecution for the same offense after acquittal;” (2) “against a second prosecution for the same offense after conviction,” and (3) “against multiple punishments for the same offense.” Although McAdory’s briefing is far from clear, we understand him to be focused solely on the latter two protections, the ones against second prosecutions for the same offense after conviction and against multiple punishments for the same offense. First, he appears to contend that he was prosecuted a second time for RCS after conviction because reinstating the previously dismissed charge and guilty verdict violated his expectation “that he would not be further prosecuted or punished for [that] offense.” Second, he asserts that he was threatened with a second prosecution for the OWI offense after conviction when, after reinstating the RCS charge and guilty verdict, the circuit court raised the possibility of a second trial on the OWI charge. Although the State stated that it did not intend to retry McAdory on that charge, and the circuit court dismissed it as a result, McAdory nonetheless contends that this sequence of events violates the Double Jeopardy Clause. And third, he maintains that he received multiple punishments because “swap[ping]” the RCS charge and guilty verdict for the OWI conviction may have prevented him from receiving sentence credit for the time he served. The problem with McAdory’s first argument is that he was not prosecuted twice for RCS. Instead, the circuit court reinstated the jury’s guilty verdict on the RCS charge from his first and only prosecution for that charge stemming from the January 2016 traffic stop. As many other courts have concluded, “[t]he Double Jeopardy Clause does not bar reinstatement of a conviction on a charge for which a jury returned a guilty verdict.” It is therefore irrelevant that once the RCS charge and guilty verdict were dismissed, McAdory “expect[ed]” that he would never be punished for it. Although the Double Jeopardy Clause certainly protects the defendants’ interest in finality, it does so only through its specific prohibitions, like the one on successive prosecutions after conviction. Because reinstating the RCS charge and guilty verdict did not result in a second prosecution for RCS after conviction, it did not violate the Double Jeopardy Clause. McAdory’s second and third arguments also miss the mark. McAdory was not prosecuted or tried twice for the OWI offense after the RCS charge and guilty verdict were reinstated. Rather, the OWI charge was dismissed at the State’s request, and he was never prosecuted or tried for it again. Moreover, even if a new trial had occurred, the Double Jeopardy Clause still would not have been violated since that second trial would have occurred as a result of the relief he sought in his appeal. As for multiplicity, McAdory’s argument is underdeveloped at best and is contrary to the facts, which—as McAdory’s counsel conceded at oral argument—demonstrate that he did in fact receive sentence credit for the time he served on the OWI conviction. Accordingly, we need not address this argument further.  Ziegler Concurrence
Like the majority, I would affirm the court of appeals. But I come to this conclusion for reasons quite different than those advanced by the majority. Unlike the majority, which employs a thoroughly purposivist analysis, I would address what the pertinent statute actually means and overrule this court’s decision in State v. Bohacheff, and the court of appeals’ decision in Town of Menasha v. Bastian. Rather than providing a detailed critique of the majority opinion, I set forth the opinion I believe should have been written by this court. One point must be made regarding the majority, however. The majority argues that this court cannot, or at least should not, overrule this court’s decision in Bohacheff because no party before this court asked us to overrule that decision. The majority’s argument rings hollow. First, the majority’s supposed commitment to the party presentation principle goes only so far. The argument the majority ultimately embraces in this case—that the statute implicitly authorized the circuit court to reinstate the dismissed charge and guilty verdict—is not advanced by either party. Both McAdory and the State expressly reject such an argument. Second, virtually every justice in the majority has voted to overrule a decision of this court even though no party asked the court to do so. In fact, one of the justices in the majority (Hagedorn) argued this very term that this court should have overruled at least four precedents of this court despite the fact no party requested this court to do so. *** Ziegler then sets for the full opinion she believes should have issued from the court, including the factual and procedural background and sections addressing McAdory's arguments regarding points with which she agrees with the majority. The following paragraphs are from her proposed version of the opinion regarding her point of difference. . . . The State and circuit court were following this court’s decision in State v. Bohacheff, and the court of appeals’ decision in Town of Menasha v. Bastian. Together, the two cases stand for the proposition that when a defendant is tried and found guilty for multiple offenses under the applicable statute that arise out of the same incident or occurrence, the circuit court must dismiss all but one of the charges and guilty verdicts. That is, even though there may be multiple guilty verdicts, there may be only one conviction. *** Bohacheff’s statutory analysis is unsound in principle. Bohacheff is accordingly overruled. Bastian’s dismiss-extra-counts rule is premised on Bohacheff’s faulty analysis and cannot be squared with the text of the statute. Consequently, Bastian must be overruled as well. . . . A fair reading of the statute allows the state to charge a defendant with an OWI offense . . . , an RCS offense . . . , and a PAC offense . . . , or “any combination” of those offenses, “for acts arising out of the same incident or occurrence.” Now, if the defendant is found guilty of more than one of the charges, the court enters judgment of conviction on each guilty verdict, as it is instructed to do . . .. There is to be a single conviction for two specific, enumerated purposes: sentencing and counting convictions . . . . This follows directly from the plain text of the statute. “If the person is found guilty of any combination. . . for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions . . . . Bohacheff’s holding that there shall be a single conviction “for all purposes,” is at war with the statute's clear text. The statute enumerates two purposes for which there will be a single conviction, sentencing and counting convictions . . . . The legislature, therefore, expressly identified the circumstances when there shall be only one conviction. This means that in other circumstances there shall be more than one conviction. This is a classic application of the canon of statutory interpretation expressio unius est exclusio alterius, “‘[t]he expression of one thing implies the exclusion of others.’” *** Bastian’s dismiss-extra-counts rule adds words to the statute not found in its text. Nowhere . . . does the statute indicate that a circuit court must dismiss all but one guilty verdict if a jury finds a defendant guilty of more than one count. “‘One of the maxims of statutory construction is that courts should not add words to a statute to give it a certain meaning.’” Additionally, Bastian’s mandatory dismiss-extra-counts rule sits uneasily with another statute, which prescribes the procedure for dismissing (impaired driving) charges . . . . To dismiss a charge, the state must file an application with the circuit court that states the reasons for the proposed dismissal. It is after the application is filed that a circuit court may dismiss the charge, but “only if the court finds that the proposed . . . dismissal is consistent with the public’s interest in deterring” violations of the impaired driving laws. Accordingly, Bastian is overruled. *** Because of Bohacheff and Bastian, the State requested the circuit court to dismiss the RCS charge and guilty verdict, and the circuit court did so. That is, the dismissal was not due to any defect in the charge or guilty verdict, but simply due to the misinterpretation of the statute's text in Bohacheff and Bastian, which today we overrule. Under these circumstances, we find no error in the circuit court’s decision to reinstate the RCS charge and guilty verdict after McAdory’s initial appeal . . . . 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 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 are also italicized. The Case: Kaul v. Wisconsin State Legislature  Hagedorn Majority: Justice Brian Hagedorn (18 pages) for a unanimous court. Upshot This is a constitutional challenge to a law that prohibits the Department of Justice (DOJ) from settling most civil cases unless and until it receives the approval of the Joint Finance Committee (JFC). . . . *** As this court has explained over a series of cases, the Legislature’s constitutional responsibilities consist in making the law. Enforcing the law is a task vested in the executive branch. The general principle we announced in Service Employees International Union, Local 1 v. Vos, (SEIU) remains. While the Legislature can by law empower DOJ to represent the state in litigation and prescribe the limits and ends of that power, it generally cannot give itself the power to control litigation the statutes empower DOJ to undertake. Unlike in SEIU, the Legislature has not identified any constitutional role for itself in these two categories of cases. We hold that settling these two categories of cases is within the core powers of the executive branch, and the statutory requirement to obtain JFC’s approval prior to settling these cases violates the Wisconsin Constitution’s separation of powers. We reverse the decision of the court of appeals holding otherwise. Background The Department of Justice represents the state of Wisconsin in legal matters. It is responsible for prosecuting or defending all criminal and civil cases where the state, a state agency, or a state employee is involved, or where the state or the people of Wisconsin may have an interest. This includes civil actions DOJ prosecutes to enforce state laws and those DOJ pursues at the direction of an executive agency regarding programs it administers. DOJ possesses this power by statute, having no inherent authority to prosecute cases on its own. Until 2017, DOJ could settle any civil suit it pursued without legislative approval. But in 2018, after a new Governor and Attorney General were elected, but before they assumed office, the Legislature amended the statute governing DOJ’s ability to settle cases . . . , which now provides: "Any civil action prosecuted by the department by direction of any officer, department, board, or commission, or any civil action prosecuted by the department on the initiative of the attorney general, or at the request of any individual may be compromised or discontinued with the approval of an intervenor under s. 803.09(2m) or, if there is no intervenor, by submission of a proposed plan to the joint committee on finance for the approval of the committee. The compromise or discontinuance may occur only if the joint committee on finance approves the proposed plan." Thus, DOJ can no longer settle civil cases unless and until a legislative committee approves DOJ’s settlement plan. Shortly after the statute was amended, labor unions and individual taxpayers argued the statute was facially unconstitutional. In that case, we held that this provision was not unconstitutional in all its applications. We left open, however, the possibility that individual applications of the law or categories of applications might violate the constitution. And that is the kind of challenge we have here. About a year after SEIU, Attorney General Josh Kaul, DOJ, Governor Evers, and the Secretary of the Department of Administration filed this case in Dane County Circuit Court (for ease, we will refer to the plaintiffs collectively as “DOJ”). Having lost the facial challenge in SEIU, DOJ argued that the settlement statute was unconstitutional as to two categories of civil cases. Specifically, DOJ challenged the statute’s constitutionality as applied to civil enforcement actions and actions state agencies request DOJ to pursue. Settlement of these cases, DOJ argued, constitutes core executive power into which the legislative branch cannot interfere. The circuit court agreed with DOJ and granted its motions for summary judgment as to both categories. The court of appeals reversed. It concluded that the power to settle these types of cases is a shared power and legislative sign off on settlements was not an undue burden on executive powers. DOJ then petitioned this court for review, which we granted. WJI covered the District 2 Court of Appeals decision here in December 2024. Guts The quintessential core power belonging to the executive branch is the power to “take care that the laws be faithfully executed.” At the time of Wisconsin’s founding, to “execute” meant to “make effectual or operative” and “to carry into effect.” We have explained that this means once the Legislature has passed a law embodying its policy choices, it is the province of the executive branch to determine what the law requires and how to faithfully apply it. Part of that faithful application includes following any instructions for executing the law the Legislature prescribes by statute, and exercising discretion when the Legislature does not, so as to carry into effect the Legislature’s policy choices. Thus, it is within the Legislature’s domain to decide what the law shall be and to confer authority and discretion on the executive branch, which then must execute it “under and in pursuance of the law.” As one of three constitutional administrative officers, the Attorney General and the Department of Justice through which he acts are members of the executive branch of government. The constitution states that the Attorney General’s powers and duties “shall be prescribed by law.” In SEIU, the Legislature argued that because the Attorney General only possessed powers prescribed by statute, the settlement statute was constitutional because the Attorney General has no inherent constitutional authority to execute the law himself. Thus, the Legislature argued that any power the Attorney General exercised was subject to legislative modification and, therefore, could not violate the separation of powers. We disagreed. We explained that the Attorney General exercises executive authority when carrying out his statutory duties. And while the Legislature could give powers to the Attorney General or take them away, that did not mean the Legislature could, consistent with the constitution, grant to itself executive power in the first instance. Said another way, just because the Legislature establishes the scope of the Attorney General’s litigation powers does not mean that it can assume the execution of those powers itself. *** The Attorney General and DOJ are tasked with executing numerous statutes detailing when and how they are to bring litigation. Civil enforcement actions, the first category DOJ raises here, are civil actions prosecuted by the Attorney General to enforce state laws. Such actions include laws enforcing environmental, consumer protection, financial regulation, and medical assistance programs. State agencies typically refer these cases to DOJ for prosecution, but DOJ may also pursue some on its own initiative. In these actions, DOJ represents the state acting as the plaintiff, and any relief—civil forfeiture, injunctive relief, recovery costs of enforcement, or restitution—is obtained on behalf of the state. In the second category of cases, the Attorney General and DOJ are statutorily tasked with prosecuting certain cases at the request of “the head of any department of the state government.” These includes pursuing breach of contract cases for contracts “in which the state is interested,” and “all actions, civil or criminal, relating to any matter connected” with any state department. Examples include civil actions to enforce contracts executive agencies enter into or to pursue compensation in tort for damages to state property. Like those in the first category, these are cases where the state acts as plaintiff and where it will not be required to pay money to a defendant in a settlement. Some of the statutes authorizing these suits give the Attorney General broader discretion about when and how to take action, while others circumscribe that discretion by providing specific guidelines about prosecution and recoveries. But in either event, it falls within the power of the Attorney General to effectuate the Legislature’s statutorily enacted policy decisions with regard to these suits. Thus, DOJ’s litigation in these categories of cases is, rather straightforwardly, the execution of laws enacted by the Legislature. We said as much in SEIU, calling litigation on behalf of the state “predominately an executive function.” The Legislature agrees that litigation is at least in part an executive power, arguing at most that the power is shared with the Legislature rather than exclusively executive. And the idea that bringing lawsuits to execute or enforce the law constitutes executive power is uncontroversial. The United States Supreme Court has said that lawsuits are “the ultimate remedy for a breach of the law,” and, as such, it is constitutionally the executive branch’s role, not the Legislature’s, to pursue that remedy so as to faithfully enforce the law. Other state high courts have likewise found the power for a government agency to bring civil suits to be quintessential executive power for similar reasons. Just as the pursuit of these claims is unequivocally an executive function, so is the settlement of them. When the Legislature gives authority to the Attorney General to pursue these claims, it necessarily confers discretion on how to pursue the claims to completion, through settlement or otherwise. As we have said, “[i]n executing the law, the executive branch must make decisions about how to enforce and effectuate the laws.” In the context of the Attorney General’s authority to pursue certain claims, this means he is given the discretion to decide how to best execute the Legislature’s statutory mandates and policy choices, including whether those ends are best served through a settlement. *** Having established that the executive has the constitutional authority to settle lawsuits in these types of cases, the key question before us is whether the Legislature also possesses this constitutional authority in at least some suits within the two categories. The Legislature offers several arguments that it does, none of which succeed. *** The court rejects the Legislature's argument that it has an institutional interest in revenue generated from settlement agreements in the two categories of cases at issue. The Legislature likewise argues that it has an institutional interest in settlements within these categories of cases because they could implicate public policy, in particular where the Attorney General could require as a term of a settlement that funds be paid to certain agencies or organizations that the Legislature may disagree with. *** Executive action within the scope of statutory authority and employing the discretion inherent in execution of the law will often have a public policy impact. It is the Legislature that has given this authority and discretion in the first place, including any limitations on how settlements are to be spent. When the Attorney General, therefore, decides where settlement proceeds are to be directed, he is acting within the scope of the authority the Legislature gave him. If the Legislature is dissatisfied with the discretion it left to the Attorney General, it may amend the laws accordingly. In fact, the Legislature has done so with respect to some of the suits within the two categories in this case, instructing that any funds recovered go into the general treasury. However, the Legislature may not step into the shoes of the executive branch or otherwise control executive decisions made within the statutory authority simply because exercising that authority has policy implications. It is the “text of the statutes” by which the Legislature announces its policy decisions and how they may be achieved. *** The Legislature may prescribe the scope of the Attorney General’s authority and discretion in the categories of civil suits challenged today. But to do so, it must pass a statute. It cannot assume for itself the power to execute a law it wrote. The challenged statute permits exactly this. The settlement approval process allows a committee of the Legislature to control how the executive exercises its lawfully given statutory authority. While that may be permissible in the realm of shared powers, it is impermissible in the realm of core powers. As the Legislature has failed to demonstrate that these types of cases implicate an institutional interest granting the Legislature a seat at the table, the powers at issue are core executive powers. Accordingly, there is no constitutional justification for requiring JFC sign-off on settlement agreements within these categories of cases. The statute as applied to these cases violates the Wisconsin Constitution’s separation of powers. 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 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 are also italicized.  Karofsky The case: LeMieux v. Evers Majority: Justice Jill Karofsky (12 pages), joined by Justice Ann Walsh Bradley, Rebecca Dallet (except for five paragraphs), and Janet Protasiewicz Concurrence: Dallet (4 pages) Dissent: Justice Brian Hagedorn (20 pages), joined by Chief Justice Annete Ziegler and Justice Rebecca Grassl Bradley Upshot We uphold the 2023 partial vetoes, and in doing so we are acutely aware that a 400-year modification is both significant and attention-grabbing. However, our constitution does not limit the governor's partial veto power based on how much or how little the partial vetoes change policy, even when that change is considerable. As our precedent recognizes, the governor's constitutionally-vested, quasi-legislative role defeats "any separation of powers-type argument thta the governor cannot affirmatively legislate by the use of the partial veto power." Indeed, the governor's reliance on his partial veto authority to potentially increase taxes without legislative approval is neither new nor unique in our partial veto jurisprudence. Background The Wisconsin Constitution provides that every two years the legislature is to pass a biennial budget. This budget establishes the level of revenue to be derived from taxes and other sources, as well as authorized expenditures. The process begins with the governor presenting the legislature with an executive budget bill. The executive budget bill then proceeds through the legislature’s multi-step review and report process involving the joint committee on finance and legislative fiscal bureau. The legislature then submits its bill to the governor. Before signing the bill into law, the governor may partially veto parts of the bill. Subsequently, the legislature may vote to override the governor’s partial vetoes by a supermajority. This process was followed for the 2023–25 biennial budget. First, the governor presented his 2023–25 executive biennial budget bill, which included three educational revenue limit increases . . . . Next the legislature reviewed the governor’s proposed budget bill and made modifications. Senate Bill 70 provided for a $325 per pupil revenue limit increase for both 2023–24 and 2024–25, without a subsequent inflationary index. Then the governor exercised his partial veto power, deleting portions of 2023 Senate Bill 70. As related to this matter, the governor deleted entire words and some numbers . . . The result . . . authorized a $325 per pupil revenue limit increase from 2023–2425, extending the provision by 400 additional years. . . . The senate subsequently voted to override the partial vetoes, but the assembly declined to vote on the override. Consequently, the effort to override the governor’s vetoes failed. The law went into effect and this original action followed. Per Hagedorn, the plaintiffs are two taxpayers. Guts In challenging the 2023 partial vetoes, petitioners do not ask us to overrule our precedent. Petitioners agree that the partial vetoes at issue satisfy the principles we have applied in our previous cases. Instead, petitioners bring two novel challenges. First, they contend that the 2023 partial vetoes violate the state constitution because the governor did not veto the bill “in part” when he extended a duration of time, as 402 years is not part of two years. Second, petitioners maintain that the 2023 partial vetoes violate the constitution because that provision prohibits the governor from striking digits to create new numbers. *** Over the past 90 years, our precedent has established four principles that we have applied to “deletion vetoes,” the traditional partial veto in which the governor strikes text: Deletion veto principles 1. The governor’s deletion vetoes are constitutional as long as the remaining text of the bill constitutes a “complete, entire, and workable law.” 2. The governor may exercise deletion vetoes only on parts of bills containing appropriations within their four corners. 3. The governor’s deletion vetoes may not result in a law that is “totally new, unrelated or non-germane” to the original bill. 4. The governor may strike “words, letters, or numbers.” But “the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.” Nor may the governor “create a new sentence by combining parts of 2 or more sentences of the enrolled bill.” Separate from deletion vetoes, there is one scenario in which the governor may exercise “write-in” vetoes by striking certain text and then writing in different text: Write-in veto principle The governor may strike an appropriation amount and write in a smaller appropriation amount. *** Karofsky writes that Evers' partial veto at issue in this case complies with the four deletion veto principles. The following three paragraphs were not joined by Dallet. Having addressed all four deletion veto principles, we turn to petitioners' request to apply the . . . write-in veto principle here. Petitioners ask that we invalidate the 2023 partial vetoes because under a prior case, the 402-duration created by these partial vetoes is not "less than" and thus not "part" of the legislatively-approved two-year duration. Even though 402 years are clearly more than two, the prior case does not apply here. In a prior case we evaluated the unprecedented scenario in which the governor decreased an appropriation amount from $350,000 to $250,000 by deleting “350,000” and writing in “250,000.” We determined that this write-in partial veto was constitutional under the very narrow facts presented in that case. . . . We concluded that because the write-in veto was only to an appropriation amount, and $250,000 is less than $350,000, $250,000 was part of $350,000 for purposes of the constitution. *** Here, we are tasked with evaluating a change in years, not appropriation amounts, which plainly falls outside a prior case’s holding and analytical principles. Petitioners fail to reckon with that case’s explicit boundary and do not attempt to equate appropriations with durations. As significantly, petitioners do not ask that we overrule or revisit our precedent. Therefore, we do not extend the write-in veto principle to the 2023 partial vetoes. *** Joined again by Dallet. Turning to whether the governor impermissibly deleted digits, the plain meaning of “word” does not include numbers written out using digits, and the plain meaning of “letters” does not include digits. By way of example, all agree with petitioners that the number “ten” is a word written with letters. However, when we write the number “10” using digits, we have used no letters. Simply put, letters and digits are not interchangeable for purposes of the pertinent constitutional provision. This has not demonstrably changed since 1990 when this provision passed. *** The bottom line is that the partial vetoes were within the bounds of the constitution. But the legislature is not without recourse. It has multiple options at its disposal, including: Future budget bills: Unlike an appropriation amount typically spent during the biennium in which the funds were appropriated, the 2023 partial vetoes affect revenue limits 400 years into the future. Accordingly, the legislature may address those partial vetoes during the 2025–27 biennial budget process, or in a subsequent biennial budget. Constitutional amendment: The legislature has the power to introduce a constitutional amendment. In the past 35 years, the people of Wisconsin have twice amended the constitution to limit the governor’s partial veto power. . . . Legislative drafting: Legislators may draft bills separate from appropriation bills to avoid the governor’s partial veto. And, legislators may anticipate the governor’s use of her or his power when crafting appropriation bills. Dallet Concurring I agree with the majority/lead opinion’s conclusion that the partial vetoes at issue in this case do not violate . . . the Wisconsin Constitution. I write separately, however, because I have a different understanding of Petitioners’ argument that those partial vetoes are unconstitutional . . . and why that argument should be rejected. Accordingly, I join all but five paragraphs of the majority opinion. The constitution authorizes the governor to approve appropriation bills “in whole or in part . . . .” Petitioners argue that the partial vetoes at issue here exceeded the governor’s authority . . . because he did not approve “part” of the original bill. They cite to two prior cases for the assertion that the ordinary meaning of “part,” at least when applied to numbers, is “something less than a whole.” They claim that applying that definition in this case requires us to determine whether, as a matter of “substance rather than form,” the governor’s partial vetoes approved “something less than [the] whole” of what the legislature passed. And because the substantive effect of those vetoes was to increase the two-year duration the legislature passed to a 402-year duration it never contemplated, the governor’s partial vetoes did not approve something less than the whole of what the legislature passed. Petitioners’ argument has some support in the reasoning of a prior case. Indeed, one reason we cited for upholding the veto at issue in that case—crossing out a $350,000 appropriation and writing in $250,000—was that the result of the veto was substantively “part” of what the legislature originally passed. As we said then, $250,000 is “part” of $350,000 because it is “something less than” $350,000. That case’s use of this reasoning, Petitioners contend, demonstrates that there is a threshold requirement, imposed on all partial vetoes by the constitution, that the result of the veto must be substantively “part” of the original bill. Petitioners’ substantive-part analysis should be rejected, however, because it cannot be squared with the rest of our cases interpreting the constitution, none of which Petitioners ask us to overturn. We have long held that the only test . . . for whether a veto approved “part” of a bill is simply whether the veto results in a complete and workable law. Thus while Petitioners argue that their substantive-part analysis is separate from, and in addition to, the “complete and workable law” requirement, our case law in fact holds that if the veto results in a “complete and workable law,” then the veto approved the original bill “in part.” But even more importantly, our cases have repeatedly emphasized that a partial veto may affirmatively change the policy of the original bill. As we said in a 1976 case, “the constitutional requisites . . . fully anticipate that the governor’s action may alter the policy as written in the bill sent to the governor by the legislature.” In other words, the governor may, through a partial veto, change the bill’s substance. To date, the only limitation we have placed on the governor’s ability change the substance of a bill via partial veto is that a partial veto may not “result in the creation of totally new, unrelated or non-germane provisions.” While this limitation does require the substance of the post-veto text to be related in some way to the substance of the pre- veto text, it does not require the post-veto substance to be “part” of the pre-veto substance. *** In sum, I reject Petitioners’ argument that the constitution requires the result of a partial veto to be substantively “part” of what the legislature originally passed because it is incompatible with our long- standing approach to the constitutionality of partial vetoes . . . . And perhaps for the same reasons, even the dissent does not adopt Petitioners’ position. Instead, the dissent argues that we should revisit all of our case law under these provisions of the constitution, at least since 1935. Although I am open to revisiting our . . . jurisprudence, this case is not a “clear opportunity” to do so. Petitioners do not ask us to overturn any of our prior decisions, let alone reimagine completely our approach . . . . Accordingly, because upholding the partial vetoes in this case is consistent with our precedent, I respectfully concur. Hagedorn Dissent
How does a bill become a law? According to the majority, one option looks like this: The legislature passes a bill in both houses and sends it to the governor. The governor then takes the collection of letters, numbers, and punctuation marks he receives from the legislature, crosses out whatever he pleases, and—presto!—out comes a new law never considered or passed by the legislature at all. And there you have it—a governor who can propose and enact law all on his own. This fantastical state of affairs did not appear all at once. The people of Wisconsin gave the governor the power to partially veto appropriation bills 95 years ago. But as governors pushed the boundaries over the last half-century, this court largely responded by throwing up its hands. And now, what the constitution calls the power to “approve[] in whole or in part” has transformed into the monarchical authority of one person to create brand new laws from scratch. Instead of reading what the bills actually say, and construing the partial veto power accordingly, this court treats bills presented to the governor as simply a set of alphanumeric ingredients from which the governor can cook up whatever he pleases. One might scoff at the silliness of it all, but this is no laughing matter. The decision today cannot be justified under any reasonable reading of the Wisconsin Constitution; the majority does not suggest otherwise. Yet when presented with a clear opportunity in this case to reboot our mangled jurisprudence, the majority responds by blessing this constitutional monstrosity, all the while pretending its hands are tied. The cases the majority relies on make a mockery of our constitutional order. This is a mess of this court’s making, and it is long past time for us to fix it. *** Our founders were intentional about placing the legislative power in the hands of the legislature. They designed the Wisconsin legislature to be the institution most animated by, representative of, and responsive to the people. This representative design was meant to “unit[e] a disparate group of people into one society” by providing a collective “mechanism for bringing together, negotiating, and resolving the different interests.” Following the pattern of the federal constitution, the Wisconsin legislature is the institution “by which the body of the people can act; the only way in which their opinions can be known and collected; the only means by which their wills can be united, and their strength exerted.” In other words, by vesting the power to legislate in the legislature, the Wisconsin Constitution situates the power to make laws in “the collective wisdom of the people and their representatives.” *** The veto power is an aberration from and exception to the default constitutional structure. A veto gives the governor a powerful voice in whether a legislative proposal becomes law. This function is not naturally within the power to execute the law. Rather, it serves as a limit on the legislature’s vested power to make law. Alexander Hamilton similarly described the president’s veto in Federalist No. 73 as a “qualified negative” meant to check legislative power. The delegates to the Wisconsin Constitutional Convention of 1846 were clear that “the governor’s powers should be limited and the primary lawmaking power should reside with the legislature,” while acknowledging a narrow exception for the gubernatorial veto. In that way, the “veto is simply one of the instances in which our framers broke off a small piece of power that naturally belongs in one branch and put it in another.” But this quasi-legislative power to veto is still at root the power to influence legislation by subtraction, not addition. All laws—policy proposals that have been formed into legal commands and instructions in a bill—must come from the legislature. And while the governor may reject bills presented to him, he may not affirmatively design them on his own. This is Wisconsin’s constitutional design. *** Hagedorn then discusses how the supreme court strayed in prior caselaw. So how should the court handle the 402-year “veto”? By doing what the majority suggests, but never does: “’focus on the constitutional text, reading it reasonably, in context, and with a view of the provision’s place within the constitutional structure.’” Once we do so, it is clear that the Governor’s “veto” in this case is not a veto at all, but merely gubernatorial lawmaking that is repugnant to our constitutional structure. As we have explained, a “veto” is a power of negation. It allows the governor to do nothing more than to reject laws that the legislature has proposed. The fundamental nature of a veto does not change just because the governor can veto “part” rather than all of an appropriation bill. The partial veto simply means that the governor can now reject policy proposals contained within an appropriation bill instead of being forced to reject it in its entirety. As a power to “reject,” it may assuredly change aspects of the legislature’s collection of policy prescriptions; the legislature may get most of its proposals, but not all of them, enacted into law. But what the partial veto clause does not do is establish a second lawmaking branch of government. The governor has no constitutional power to create new proposals that did not originate with the legislature or go through the constitution’s lawmaking process. An appropriations bill is not merely “a potpourri of individual letters, an alphabet soup if you will,” as the majority assumes. It contains draft statutes reflecting specific policies that have been considered and voted on by the legislature. This is what the constitution commands with all laws. So when the governor rejects part of an appropriations bill, the policy proposals that remain after the governor exercises his partial veto must still have been created and approved by the legislature in the first instance. Once again, we cannot lose sight of the constitution’s structure. The legislative power is vested in the legislature. And the constitutional amendment giving the governor power to partially veto appropriation bills did not change this. Here, when the bill left the legislature’s hands, it permitted school districts to exceed their base tax revenue for two years, the 2023–24 and 2024–25 school years. By striking out numbers, words, commas, and some hyphens, the governor rewrote the bill to say that districts could increase their revenue by those amounts from 2023 through 2425. The legislature never proposed extending the increase through 2425. This simply was not a policy proposal considered and voted on by both houses of the legislature. This is not a policy that was presented to the governor for approval. And contra the majority, we are permitted to read the words in the bill and make sense of them, not just consider the bill an alphabet soup of options. Thus, after the governor exercised his “veto,” there was something in the bill that did not originate from the legislature, was never subject to lawmaking procedures, and was not presented to the governor. This is plainly unconstitutional. It is true that the petitioners here do not explicitly ask us to . . . formally roll back the missteps of our prior cases. But where the governor’s actions are so out of step with the constitutional order, and where we are asked to apply the constitution, “the principle of stare decisis should yield to a result consistent with the plain meaning of the words within the amendment.” Instead of treating the fractured legal framework with another quick fix of judicial epoxy, it is time to raze it to the ground. The SCOW docket: Arrest-record discrimination includes terminations based on municipal charges4/18/2025 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 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 are also italicized. Dallet The Case: Oconomowoc Area School District v. Gregory L. Cota Majority: Justice Rebecca Frank Dallet (15 pages), joined by Justices Ann Walsh Bradley, Brian Hagedorn, Jill Karofsky, and Janet Protasiewicz. Concurrence: Protasiewicz (6 pages) Dissent: Chief Justice Annette Kingsland Ziegler (3 pages) Dissent: Justice Rebecca Grassl Bradley (7 pages), joined by Ziegler Upshot This case raises two questions. First, does the Wisconsin Fair Employment Act’s definition of arrest record—specifically the phrase “any . . . other offense”—include non-criminal offenses, like municipal theft? Second, if so, did the Labor and Industry Review Commission (LIRC) correctly conclude that the Oconomowoc Area School District engaged in arrest-record discrimination when it terminated the Cotas? We answer “yes” to both questions and thus reverse the court of appeals’ contrary decision. Background Gregory and Jeffrey Cota were members of the District’s grounds crew and, as part of their duties, recycled scrap metal for the District. The Cotas, along with coworker Garret Loehrer, brought scrap metal to a local processor, which paid with cash or checks made out to “cash.” The person who received the money from the processor would give it to Gregory, who would then pass it along to his supervisor, Matt Newman. Between 2012 and 2014, the Cotas made multiple complaints about Loehrer’s work performance to supervisors. . . . On one such occasion, Jeffrey Cota asked a supervisor if Loehrer had turned in money from a recent scrap-metal delivery. The money had been turned in, but the supervisor reported the inquiry to Loehrer. In response, Loehrer accused the Cotas of retaining some of the District’s scrap money. Loehrer asserted that, approximately two years prior, he and the Cotas had delivered scrap metal to the processor but had kept the payment and split the money among themselves. The District’s Director of Human Resources, Pam Casey, began a formal investigation into the allegations. Casey interviewed employees and reviewed documents related to the scrap-metal transactions. She determined that $5,683.81 originally paid to Loehrer and the Cotas had not been received by the District. But conflicting accounts given by Loehrer, the Cotas, and other employees prevented Casey from determining who was responsible for the missing funds. . . . Accordingly, Casey recommended turning over the investigation to local police, explaining that “[e]mployment-related disciplinary decisions can be better made following the conclusion of any criminal investigation.” The District took no other investigatory action after turning the matter over to the police. The Town of Oconomowoc Police Department opened its own investigation into the missing funds. . . . Despite investigating for 11 months, however, the police did not discover any new information related to the Cotas. Even so, the Cotas were cited for municipal theft. The investigating detective explained in her report that she based the citations exclusively on Loehrer’s allegation that the Cotas had split scrap money with him on one occasion—the same allegation that had given rise to the District’s investigation. The detective’s report further stated that she was unable to prove any additional allegations against the Cotas. Approximately one year after the Cotas were cited for theft, the assistant city attorney informed the District that he believed he could obtain convictions and that he also believed the case could be settled. The Cotas did not agree to settle. The next day, the District terminated the Cotas’ employment. The District sent the Cotas termination letters, drafted by Casey, stating that the District had “learned” that the Cotas “were, in fact, guilty of theft of funds from the School District” and that they had lied about this during the District’s internal investigation. The municipal citations against the Cotas were ultimately dismissed. The Cotas never pleaded guilty to or were convicted of municipal theft. The Cotas filed claims of arrest-record discrimination with the Department of Workforce Development, Equal Rights Division (DWD). Following an evidentiary hearing, an administrative law judge found that the Cotas failed to establish that the District had unlawfully discriminated against them. The Cotas appealed to LIRC, which reversed, concluding that the District terminated the Cotas’ employment because of their arrest records in violation of the Act. The circuit court affirmed LIRC's decision, but the court of appeals disagreed and reversed. Guts An employer generally may not terminate an employee because of the employee’s arrest record. "Arrest record" is defined as including "information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority." To understand the parties’ arguments, we begin by explaining the distinction between criminal and non-criminal offenses. Under Wisconsin law, offenses punishable by fine, imprisonment, or both are crimes, while offenses punishable only by a forfeiture are non-criminal. Non-criminal offenses range from minor infractions, like failing to use a turn signal, to more serious violations, like a first operating-while-intoxicated (OWI) offense. Additionally, in Wisconsin, all crimes are classified as either felonies or misdemeanors. Some other jurisdictions, however, do not classify crimes in this way. The District argues that the phrase “any . . . other offense” in the arrest record definition refers only to criminal offenses under the laws of jurisdictions that do not classify crimes as either felonies or misdemeanors. Under this interpretation, the Cotas are not protected by the Act, since they were cited for a non-criminal offense. By contrast, the Cotas and LIRC assert that “any . . . other offense” includes both criminal offenses from jurisdictions that do not classify crimes as either felonies or misdemeanors and non-criminal offenses under Wisconsin law. We agree with the Cotas and LIRC. The ordinary meaning of the phrase “any . . . other offense” includes violations of both criminal and non-criminal laws. Indeed, this is how the term “offense” is consistently used throughout our statutes, and nothing in the structure or remaining text of the statute at issue suggests a narrower meaning. Furthermore, interpreting “any . . . other offense” to include non-criminal offenses serves the Act’s express statutory purpose of “protect[ing] by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of . . . arrest record. . . .” Finally, the exceptions to the Act’s general prohibition against arrest-record discrimination provide additional support for our interpretation. *** The District focuses narrowly on the exceptions applicable only to criminal charges, arguing that we should infer from them that the general prohibition on arrest-record discrimination similarly applies only to criminal offenses. But we must read statutes in context, “not in isolation but as part of a whole. . . .” Taken together, these exceptions demonstrate that “any . . . other offense” includes both criminal and non-criminal offenses. . . . *** Because we hold that “any . . . other offense” in the statute at issue includes non-criminal offenses, we turn to the second issue before us: whether LIRC correctly concluded that the District terminated the Cotas because of their arrest records, in violation of the Act. The answer to this question turns on the District’s motivation for terminating the Cotas, which is an issue of fact. *** Substantial evidence supports LIRC’s conclusion that the District was not motivated to act by its internal investigation, despite Casey’s testimony before DWD that she formed a personal belief in the Cotas’ guilt during the investigation. Indeed, Casey’s report summarizing the results of the investigation stated that the District was not able to determine who was responsible due to conflicting allegations, and Casey testified before DWD that those same conflicting allegations prevented her from making final employment decisions at the close of the investigation. When referring the matter to the police for further investigation, the District’s attorney told the investigator that the District could not conclude who was responsible, and Casey testified before DWD that this was a true statement. Finally, Casey also testified that while she was suspicious of the Cotas during the internal investigation, she was not suspicious enough to fire them. Substantial evidence likewise supports LIRC’s conclusion that the District’s decision to terminate the Cotas was motivated by arrest-record information. Before DWD, Casey testified that three new pieces of information came to her attention between the close of her internal investigation—when she was not ready to fire the Cotas—and her decision to fire them nearly two years later. That new information included: (1) that the Cotas were cited for municipal theft, (2) that the assistant city attorney told Casey he believed he could convict the Cotas and (3) that the assistant city attorney told Casey he anticipated reaching a settlement with the Cotas that included restitution. And Casey admitted that these three pieces of information caused her to terminate the Cotas. All three are components of the Cotas’ arrest records. Accordingly, substantial evidence supports LIRC’s conclusion that the District was motivated by arrest-record information when it terminated the Cotas. The District nevertheless argues that it is protected by a legal defense recognized in a prior case because its decision to terminate the Cotas was motivated at least in part by Casey’s belief in the Cotas’ guilt formed during the internal investigation. According to the District, caselaw permits employers to terminate employees because of their arrest records as long as the employer also concludes from an internal investigation that the employee engaged in unacceptable conduct. In other words, the District argues that as long as it did not terminate the Cotas exclusively because of their arrest records, it did not violate the Act. We reject this argument for two reasons. First, the District mischaracterizes the holding of the cited case, in which an employer effectively discharged an employee after the employee admitted, in response to a question posed by the employer, that he had committed an offense. . . . The case holds simply that an employer who does not rely on arrest-record information when making a discharge decision does not discriminate against an employee because of their arrest record. Second, the case does not apply because LIRC found that the District did rely on arrest-record information when making its discharge decision, and we must accept this finding because it is supported by substantial evidence. This remains true even though the District argues that Casey’s testimony about her personal belief in the Cotas’ guilt supports a different conclusion about the District’s motive. LIRC weighed the evidence relevant to the District’s motive and found that the District was motivated by the Cotas’ arrest records. This finding is supported by substantial evidence, and therefore must be accepted.  Protasiewicz Concurrence In today’s decision, the court follows the law where it leads, but we arrive at a strange result. I write separately to call attention to the oddity of this outcome and to recommend that our statutes better accommodate employers who are victims. I agree with the majority that the statute at issue includes non-criminal offenses and that LIRC correctly concluded the District fired the Cotas because of their arrest records. But as a result of today’s decision, the District may not fire employees who it suspects stole from the District. That is no way to treat the victim of an offense. In the Wisconsin Fair Employment Act (“the Act”), the legislature balances a couple of interests. Surely, the legislature seeks to protect employees. To that end, the Act prevents “employment discrimination because of” arrest record or conviction record, among other things. But the legislature also protects employers’ interests in some instances. The legislature created exceptions that allow employers to sometimes take employment action in the context of an employee’s arrest record or conviction. For example, an employer may suspend an employee when the employee is subject to a “pending criminal charge” if “the circumstances of the charge substantially relate to the circumstances of the particular job.” In another example, an employer may fire an employee who “has been convicted” of an offense under “circumstances . . . which substantially relate to the circumstances of the particular job.” This case calls for another exception to protect employers when an employer is a victim. Here, the District was a victim, which makes this case different than many cases of arrest record discrimination. *** . . . We are left with a strange result. The District was the victim of an offense and suspected its employees did it. It could have fired the employees, but instead asked law enforcement to investigate. Because law enforcement investigated, the employees had an arrest record which limited the District’s ability to fire the employees. In the end, under today’s decision, the District may not fire the employees that it believes stole from the District. Our statutes should not hamstring employers who are victims that way. An employer should be allowed to take employment action when it is the victim of an offense and suspects an employee did it, even when it relies on information from law enforcement. Nevertheless, I must follow the law as it stands, and I agree with the majority. The text of the statute at issue includes non-criminal offenses, and LIRC correctly concluded that the District fired the Cotas because of their arrest records. But this case highlights how our statutory scheme breaks down when an employer is the victim of an offense and seeks law enforcement intervention. I urge the legislature to address this unjust situation. Ziegler Ziegler dissent The court’s decision sends a message to employers across the state: If the employer believes one of its employees may have committed a crime—say, stealing from that employer—based upon its own internal investigation, it should quickly fire the employee rather than have its suspicions confirmed by a full investigation by law enforcement. The court’s decision forecloses an employer from firing such an employee even when the employer’s suspicions about the employee’s conduct are confirmed by law enforcement’s investigation. Maybe this case is an example of the “old adage” that “bad facts make bad law,” but the upshot of the court’s decision is directly at odds with the legislatively enacted purpose of the statutes at issue. These statutes were enacted to protect employees from unwarranted termination. But today’s opinion will ensure the opposite: Employers can no longer give their employees the benefit of the doubt, allowing law enforcement to confirm their suspicions, because that could mean the employer will risk liability under the law. Accordingly, I dissent. The Wisconsin Fair Employment Act (the Act) bars employers from engaging in certain forms of employment discrimination. With some exceptions, an employer may not “discriminat[e]” against an individual “on the basis of . . . arrest record[s].” The statute provides that discrimination includes “terminat[ing] from employment . . . any individual . . . because of” an individual’s arrest record. In turn, “arrest record” is statutorily defined as including, but not being limited to, “information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.” *** The legislature affirmatively and expressly declared the purpose and policy of the Act; it is to protect employees from termination under a variety of circumstances, including when an employer wishes to terminate an employee because that employee has an arrest record. . . . The court’s decision contravenes the legislatively stated purpose of the Act. Here, had the employer not given the employees the benefit of the doubt and asked law enforcement to investigate that which the employer had already determined, and instead fired the employees before law enforcement determined the employees should be charged, the employer would not be liable. If the employer fired the employees earlier, no liability would have attached because no arrest records would have existed. Simply stated, waiting to have law enforcement confirm the employer’s suspicions meant that the employer was liable. So, instead of protecting the employment of employees, the Act, as the court interprets and applies it, promotes the premature firing of employees suspected of committing offenses. Stated otherwise, the court renders the Act self-defeating in factual situations like these. *** The wrongful deference the majority gives to LIRC’s factual findings in this case demonstrates the unlikelihood that courts will reverse a finding by LIRC that an employer terminated an employee because of the employee’s arrest record. Here, the facts demonstrate that the employees were terminated because they stole from the employer, not because they had arrest records. But the majority upholds LIRC’s erroneous finding all the same. While the court might be technically correct that merely having an arrest record is insufficient to trigger liability under the Act, under circumstances presented in a case like this one, the mere existence of an arrest record seems to be sufficient for LIRC to find an employer liable. Employers will act accordingly and fire their employees after an internal investigation, even if the investigation is inconclusive, before law enforcement gets involved. Employers cannot risk the possibility that LIRC will make the inference—which after today’s opinion will be all too easy to make—that the employer fired its employee because of the employee’s arrest record, not the employer’s prior internal investigation. No doubt, the court’s decision is a victory for Gregory and Jeffrey Cota. But the decision may ultimately prove to be a defeat for employees across Wisconsin. The stated purpose of the Act is to protect employees from unwarranted termination. Here, the employees were terminated because they stole from their employer. Yet, according to the majority, the employer’s hands were tied when it came to terminating them. Had the employer terminated the two employees sooner, there would be no arrest records and the employer would face no liability. The outcome of this case turns the stated purpose of the Act upside down— pushing employers to terminate employees as quickly as possible to avoid the risk of liability under the Act. The legislature did not intend the statute to operate in this manner.  Grassl Bradley Grassl Bradley dissent
The majority mistakes a conclusion of law for a finding of fact. Whether an employer unlawfully terminated an employee based on his arrest record is a conclusion of law, as LIRC’s Order properly denominated it. . . . Whether the facts found by an agency “fulfill a particular legal standard is a question of law, not a question of fact.” By misapprehending a question of law for one of fact, the majority sidesteps its responsibility to declare the law and effectively endorses LIRC’s misinterpretation of the governing statute to shield employees from any adverse employment consequences for their malfeasance. Even if the issue of whether the District fired the Cotas based on their arrest records presented a factual question, no reasonable person would conclude the District fired the Cotas for any reason other than the fact the Cotas stole from their employer. It is preposterous to suggest the District fired the Cotas based on their status as persons with arrest records. Nothing in the law compels this court to reward the offenders and punish the victim. Only the majority’s tacit approval of LIRC’s crabbed reading of statutory law produces this farce. The Wisconsin Fair Employment Act (“the Act”) prohibits employers from discriminating against individuals “on the basis of” their “arrest record,” among other bases such as race or sex. Termination of employment constitutes a discriminatory action the law prohibits if taken “on the basis of” an arrest record. LIRC concluded the District terminated the Cotas on the basis of their arrest records because the District waited to fire them until law enforcement created arrest records validating the District’s conclusions. This hyper-literal construction of the Act contradicts the statute’s textually manifest purpose and assigns the law an unsound meaning. *** Even under the majority’s misguided framework of examining the record for substantial evidence supporting LIRC’s decision, there is no evidence the District unlawfully discriminated against the Cotas. No evidence, much less substantial evidence, suggests the District fired the Cotas “solely because of” their arrest records. Nothing in the record suggests the District fired the Cotas because of the “particular class to which” the Cotas belong: individuals with arrest records. Everything in the record points to the District firing the Cotas for the obvious reason that the Cotas stole from the District. *** In this case, the arrest records came about only after Casey believed the Cotas stole from the District and then referred the matter to law enforcement. After completing her investigation, Casey concluded “there can be no question that some employment action (and perhaps criminal action) is necessary here, in view of the evidence that this investigation has produced.” Only then did the District refer the matter to law enforcement. Casey later testified “the independent police investigation . . . resulting in the issuance of the municipal theft citations, further corroborated in my mind the fact that these individuals were not forthright and had lied during our investigation and had taken proceeds from the sale of scrap metal.” The record confirms the Cotas’ arrest records merely corroborated conclusions the employer had already drawn. *** Nothing in the Act compels LIRC to penalize an employer for waiting to terminate an employee until law enforcement corroborates the employer’s conclusion that an employee stole from the employer. The Act prohibits an employer from terminating an employee “on the basis of” his arrest record, but an employer can certainly terminate an employee because he stole from the employer. The court of appeals confirmed that interpretation in a prior case and LIRC has applied it repeatedly. In this case, LIRC adopted a new, narrow, and strict construction of the Act, ignored its context and textually expressed purpose, and rejected decades of cases interpreting the law correctly. The majority refuses to apply the obvious meaning of “on the basis of” and instead improperly defers to LIRC’s legal conclusion, mischaracterizing it as an issue of fact. While the court may be bound by LIRC’s findings of fact, it is supposed to independently interpret the law. Although the court could correct LIRC’s error of law and apply the Act’s actual meaning to the facts as found by LIRC—the most efficient disposition of this litigation—at a minimum the court should remand the matter to LIRC to decide the case under the correct interpretation of the law. Instead, the majority carelessly embraces LIRC’s misunderstanding of a statute that prohibits categorical discrimination against individuals merely because they have an arrest record. Nothing in the text of the law protects employees accused of committing crimes against their employers. The majority’s improper deference to LIRC’s misinterpretation of the Act will perversely incentivize employers to fire employees without investigating accusations or suspicions against them, lest law enforcement’s later involvement trigger the indemnity the majority confers on employees suspected of misconduct. Nothing in the law necessitates this ludicrous situation, which is of the majority’s own making. I dissent. 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 necessary nature. We’ve also removed headings, citations, and footnotes from the opinion for ease of reading but have linked to important cases cited or information about them. Emphasis by the court is underlined. Italics indicate WJI insertions except for case names, which are also italicized. Protasiewicz The case: Wisconsin Voter Alliance v. Secord Majority: Justice Janet Protasiewicz (11 pages in a new slip opinion format), joined by Justices Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Brian Hagedorn Concurrence: Hagedorn (8 pages) Dissent: Justice Rebecca Grassl Bradley (2 pages), joined by Chief Justice Annette Kingsland Ziegler Upshot The Wisconsin Voter Alliance filed identical petitions for writ of mandamus against the registers in probate for 13 circuit courts around Wisconsin demanding access to Notice of Voting Eligibility forms ("NVE forms") under Wisconsin's public records law. In the first case to reach the court of appeals, District IV issued a unanimous, published opinion holding that public records law and WIS. STAT. § 54.75 exempt NVE forms from disclosure, so the Alliance is not entitled to them. Shortly after, District II issued a split opinion in this case. The majority reached the opposite conclusion, holding that public records law and § 54.75 do not exempt NVE forms from disclosure, so the Alliance is entitled to them with possible redactions. *** While this appeal raises an important issue regarding public records law, we do not reach it due to District II’s patent violation of the precedential case of Cook v. Cook. . . . When the court of appeals disagrees with a prior published court of appeals opinion, it has two and only two options. It may certify the appeal to this court and explain why it believes the prior opinion is wrong. Or it may decide the appeal, adhering to the prior opinion, and explain why it believes the prior opinion is wrong. The Supreme Court reversed and remanded the case to District II with instructions to follow the Cook case. Background This appeal concerns the petition for writ of mandamus that the Alliance filed against Kristina Secord, the register in probate for the Walworth County Circuit Court. The petition asserts that when a court finds an individual incompetent to vote, the clerk of court completes an NVE form indicating the individual’s name, address, finding of incompetency to vote, and other personal information. The clerk sends the completed NVE form to the Wisconsin Elections Commission (“WEC”), which maintains a public database of registered voters in Wisconsin called WisVote. According to the Alliance, WEC is required to identify individuals who are ineligible to vote due to incompetency on WisVote, in order to prevent them from registering to vote and voting in elections. The Alliance sought access to NVE forms that Secord “sent to the Wisconsin Elections Commission anytime.” At a minimum, the Alliance wanted the names and addresses of the individuals declared incompetent to vote. Citing public records law, the Alliance claimed that it needed this information in order to prove WEC was not always updating WisVote to show individuals found incompetent to vote in Wisconsin elections. Secord moved to dismiss the Alliance’s petition for writ of mandamus . . . . Secord argued that WIS. STAT. § 54.75 exempts NVE forms from disclosure under public records law. Therefore, the Alliance was not entitled to a writ of mandamus compelling disclosure of the NVE forms. The circuit court agreed with Secord and dismissed the Alliance’s petition for failure to state a claim. The Alliance appealed to the court of appeals, District II. By this point, the Juneau County Circuit Court had already dismissed an identical petition for writ of mandamus that the Alliance had filed against Terry Reynolds, the Juneau County register in probate. The Alliance had appealed to the court of appeals, District IV. In Reynolds, District IV held that the Alliance was not entitled to the NVE forms under public records law and § 54.75 and affirmed the Juneau County Circuit Court’s dismissal of the Alliance’s petition. The Alliance did not petition this court for review of Reynolds. District II issued its decision in this case after the Reynolds decision. Guts The parties agree that NVE forms are “court records.” They dispute whether NVE forms are “pertinent to the finding of incompetency” under the first sentence of § 54.75. They also dispute whether the Alliance is entitled to the NVE forms under the second sentence of § 54.75, which authorizes disclosure of limited information to a person who demonstrates a “need” for it. In Reynolds, the Alliance’s initial brief presented this issue to District IV: “Whether [an NVE form] used to communicate to election officials or an agency the circuit court’s determination of a person’s competency to register to vote or to reinstate the right to vote is subject to disclosure under the Public Records Act.” In a unanimous, published opinion, District IV held that NVE forms are exempt from disclosure under the first sentence of § 54.75 because they are court records “pertinent to the finding of incompetency.” They are created during proceedings where a court determines incompetency for purposes of establishing a guardianship, and they contain information drawn directly from this proceeding. *** We turn to District II’s opinion in this appeal. The Alliance’s initial brief in the court of appeals presented the identical issue as in Reynolds. But District II issued a split opinion, including a majority, a concurrence, and a dissent. The majority opinion acknowledged that it was bound by Reynolds “to the extent it is not distinguishable.” Then it distinguished Reynolds. The majority noted that in Reynolds the circuit court granted the motion to dismiss the Alliance’s petition for writ of mandamus without waiting for a response or full briefing. This prevented the Alliance from clarifying its records request and defending its position. By contrast, in this case the circuit court had the benefit of full briefing and argument. The majority also reasoned that while the Alliance seeks “the very same records” in both cases, “that is neither dispositive nor a basis upon which to avoid ruling on an issue previously not decided. The question is whether the issues vary. And they do.” The majority opinion did not address whether NVE forms are “pertinent to the finding of incompetency” under the first sentence of § 54.75. It reserved that analysis for the concurring opinion. Instead, the majority opinion began by performing a public policy balancing test and found that the policy of protecting an incompetent person’s dignity and privacy “is expressly outweighed by the legislature’s mandate that voting ineligibility determinations are to be publicly communicated to the local officials or agencies through WEC (as directed by the Court System) and the public in general.” *** The two judges in the majority also filed a concurring opinion. The concurrence construed the first sentence of § 54.75 and declared: “[W]e disagree with the analysis in [Reynolds] with respect to the definition of the phrase ‘pertinent to the finding of incompetency.’” The concurrence reasoned that circuit court records and forms “leading up to” the finding of incompetency are “pertinent” to the finding of incompetency. But the determination that an individual is ineligible to vote does not “lead up” to the finding of incompetency. It is a “consequence” of that finding. Therefore, NVE forms are not pertinent to the finding of incompetency. As an initial matter, we find the District II majority’s attempt to distinguish Reynolds unpersuasive. In both cases, the Alliance filed identical petitions for writ of mandamus demanding access to NVE forms. In both cases, the registers in probate moved to dismiss the Alliance’s petitions for failure to state claim upon which relief could be granted. In both cases, the circuit courts dismissed the Alliance’s petition because NVE forms are confidential under § 54.75. The Alliance appealed both decisions. In both appeals, the Alliance sought “the very same” records and presented—verbatim—the same issue of law. In both appeals, the register in probate argued that NVE forms are exempt from disclosure under § 54.75. On the facts and the dispositive legal issue, the two appeals are virtually indistinguishable. District II simply disagreed with Reynolds. Cook v. Cook instructs the court of appeals how to proceed when it disagrees with one of its prior published opinions. We explained that while the court of appeals is comprised of four districts that sit in different parts of the state, it is a unitary court, not four separate courts. Officially published opinions of the court of appeals are precedential and have statewide effect. Therefore, only the supreme court may overrule, modify, or withdraw language from a published court of appeals opinion. *** We reject the District II majority’s effort to skirt Cook by drawing fine distinctions between arguments and assuming additional or different facts. If we were to ignore or approve what the District II majority did, we would gut Cook. Like the Alliance, future litigants would feel encouraged to litigate issues “multiple times in the four districts.” Why not? Like the Alliance, if they lose in one district they might win in another. Hagedorn Concurrence The majority holds that the decision of the court of appeals below contravened a prior published decision of the court of appeals, and therefore violated Cook v. Cook. Indeed it did, and I join the court’s opinion. I write separately, however, to address two issues. First, I write to clarify the role of mandamus in public records cases. Both parties, and the court of appeals below, discuss the mandamus requirements in ways that are inconsistent with the law and likely to confuse matters further. Second, I write to discuss the reasoning of Cook v. Cook, and question whether the rules it announces rest on a solid legal foundation and are worth reexamination. First, it is important to clarify the unique way mandamus applies in public records cases such as this. We have described the common law writ of mandamus as an extraordinary legal remedy that may issue only when a party can show: (1) a clear legal right; (2) a positive and plain duty; (3) substantial damages; and (4) no other adequate remedy at law. Both parties in this case and the court of appeals misunderstand how these requirements apply in public records cases, however. Secord suggests, for example, that WVA failed to meet the fourth requirement for mandamus because it could obtain the records another way—such as requesting a court order for the records under Chapter 54. The parties also debate whether the records should be released on the grounds that WVA failed to establish the third mandamus requirement—substantial damages. Secord appeals to the public goods and harms that could result from releasing or protecting the documents. WVA counters that it would not be able to carry out its investigatory purposes without the records, and is therefore harmed. And the court of appeals entertains these arguments and concludes the third mandamus requirement is met because voter integrity and public confidence in our elections support WVA’s claim of substantial damages. This reasoning reflects a mistaken understanding of the law . . . . *** . . . Our cases teach that the only inquiry that matters in public records mandamus actions is whether the requester has a legal right to the records. This step is where a court determines whether the documents are records at all, whether any statutory or common law exceptions apply, and whether the balancing test would preclude release. All of this is appropriately part of whether a requester has a right to the records in the first place. If records have wrongly been withheld, the custodian must turn them over to the harmed requester, and a writ of mandamus ordering the custodian to do so is the prescribed remedy. The second issue concerns the basis for the decision in the majority opinion. In 1997, 20 years after the court of appeals was created, we considered “whether the court of appeals has the power to overrule, modify or withdraw language from a previously published decision of the court of appeals.” We answered that it did not. But the reasoning offered was sparse, and rested predominantly on pragmatic and policy concerns. *** . . . It is true that this court has a primary role in clarifying the law in Wisconsin. And it is true that error correction is a primary role of the court of appeals. But throughout its history, the court of appeals has decided high profile cases of first impression. And it was right to do so. Both the court of appeals and this court have an important role to play in clarifying the law. That’s why the published decisions of both courts have statewide precedential effect. Thus, while most of the cases the court of appeals handles fall in the category of error correction, and most of our cases involve issues of statewide importance, this fact does not implicate the power of a court to overrule itself. The Cook court’s reliance on the different roles between the court of appeals and this court does not provide a sound basis for its conclusions. *** In the end, while the rules Cook establishes may be a permissible and reasonable exercise of our constitutional authority, it is not a decision commanded by the constitution itself. Over the years, it has had the regrettable effect of expanding the power of this court, and minimizing that of the court of appeals. I encourage my colleagues in the bench and bar to consider whether alternatives might better serve the people of Wisconsin.  Grassl Bradley Dissent
The parties presented two issues to this court: Whether the court of appeals violated Cook v. Cook, by contradicting its own precedent, and whether Notice of Voting Eligibility forms (“NVE forms”)—used to notify election officials that a court has deemed an individual incompetent to vote—are “pertinent to the finding of incompetency” under WIS. STAT. § 54.75 and thereby statutorily exempt from Wisconsin’s public records laws. One of those issues presents an opportunity for this court to analyze and resolve weighty matters of privacy, open access to public information, and election integrity. The other allows us to wag a finger in admonishment at the court below. Although both parties urged the court to resolve the substantive issue, the majority dodges it and chooses to scold the court of appeals instead. The majority could have summarily reversed in a per curiam opinion but instead forced the parties to bear the cost of fully litigating the case before us. Principles of judicial economy and fundamental fairness demand we decide the substantive issue instead of skirting it on a technicality. Judicial economy is a prudential consideration that promotes the effective use of judicial resources to avoid duplicative or unnecessary litigation and fulfills this court’s duty to clarify the law. Even if the resolution of one issue disposes of a case, “to further judicial economy and guide trial courts and litigants, we may consider additional issues which have been fully briefed and are likely to recur . . . in the interest of conserving judicial resources and clarifying an important point of law.” This principle also embodies a concern for the resources litigants must spend to resolve their disputes. Nothing compels this court to disregard these considerations and favor Cook instead. When previously confronted with conflicting court of appeals precedent, this court has chosen to decide the merits of the case while also reminding the court of appeals of Cook’s edict. The majority claims Cook commands reversal because actually deciding this case would somehow “thwart the ‘principles of predictability, certainty and finality relied upon by litigants, counsel and the circuit courts.'” While those are indeed important principles, a new majority of this court did not hesitate to thwart them repeatedly last term. Setting aside the new majority’s newfound regard for the principles of predictability, certainty, and finality, none of them preclude us from deciding the merits of this case. A reversal premised on Cook, if warranted, should have been done summarily and promptly after the petition for certiorari was filed. Instead, by order of this court, both parties filed a complete set of briefs fully addressing the merits of the substantive issue in this case. The court accepted amicus briefs from three separate non-parties, each of whom explored various substantive legal issues. At oral argument, both parties agreed a decision on the merits was appropriate notwithstanding Cook. Nevertheless after ordering both parties to expend considerable time and resources and bear the substantial costs of appellate litigation—the majority deprives not only the parties but the people of Wisconsin of a decision on the merits. Perhaps the majority agrees with District IV and disagrees with District II. Then say so. By dodging the core issue, the majority not only burdens the litigants with its own inefficiency, it also leaves unresolved issues of great importance to voters, election officials, and people from whom courts have removed the right to vote due to incompetency. Because the time for resolving this matter under Cook has long since passed, I respectfully dissent. The SCOW docket: Police extended a traffic stop beyond the time allowed for caretaker concerns11/18/2024 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 necessary nature. We’ve also removed headings, 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 are also italicized.  Hagedorn The case: State of Wisconsin v. Michael Gene Wiskowski Majority: Justice Brian Hagedorn (16 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz Concurrence: Hagedorn (24 pages), joined in part by Grassl Bradley and Protasiewicz Concurrence: Protasiewicz (8 pages), joined by Walsh Bradley Dissent: Chief Justice Annette Ziegler (14 pages) The upshot We conclude that Officer Simon's seizure of Wiskowski violated Wiskowski's rights under the Fourth Amendment. Officer Simon did not possess reasonable suspicion to conduct the stop. And even assuming Officer Simon initially engaged in bona fide community caretaker activity when he stopped Wiskowski, he unlawfully prolonged the stop and began an investigation without reasonable suspicion. We therefore reverse the court of appeals decision and remand to the circuit court with instructions to vacate the judgment of conviction and grant the motion to suppress. The facts Michael Wiskowski fell asleep (at 1:00 p.m.) in a McDonald's drive-thru lane behind the wheel of his truck. An employee knocked on his window to wake him up and called the police. Officer Devin Simon was about a minute away when he received a call from dispatch regarding the incident. He headed to the scene and watched a truck matching dispatch's description pull out of the drive-thru and make a proper turn. Officer Simon then pulled Wiskowski over. Wiskowski explained that he was tired because he had just finished a 24-hour shift. Although Officer Simon did not notice any signs of impairment or criminality, he felt something was off, and prolonged the stop to determine whether he had grounds to investigate further. Officer Simon ultimately ordered Wiskowski out of his truck, at which point Wiskowski manifested signs of intoxication, leading to an arrest and charges. Wiskowski moved to suppress the evidence discovered during the stop. The circuit court denied the motion, concluding that the stop and further investigation were justified as a permissible "community caretaking function." The court of appeals agreed .... *** Wiskowski eventually pled no contest to one count of operating a motor vehicle under the influence as a fourth offense. He appealed the judgement of conviction, arguing that the circuit court erred in denying his motion to suppress. The court of appeals affirmed on the same community caretaking grounds. Wiskowski then petitioned this court for review. Wiskowski argued to the Wisconsin Supreme Court that the traffic stop was unlawful under the Fourth Amendment, which prohibits unreasonable searches and seizures. The state argued two grounds in response: that the stop was a permissible investigatory stop supported by reasonable suspicion and that the stop consisted of permissible community caretaker activity. The state had not raised the reasonable suspicion argument in the court of appeals. The guts One type of intrusion deemed reasonable under the Fourth Amendment is an investigatory stop. This temporary infringement on personal liberty must be supported by reasonable suspicion—that is, in view of the whole picture, whether a reasonable police officer would reasonably suspect that criminal activity is afoot. While reasonable suspicion doesn't demand much, it does demand more than a hunch. And that is all we see here. It is true that falling asleep in a drive-thru during the day could be a sign someone is impaired. It is also black-letter law that officers need not rule out the possibility of innocent behavior to initiate a traffic stop. But by itself, without any additional indicators of impairment, we conclude this is too speculative to amount to reasonable suspicion. By the time Officer Simon arrived, Wiskowski was driving normally out of the drive-thru and onto the road. Officer Simon did not observe nor were there any reports of erratic driving. Wiskowski did not commit any traffic violations, and there were no other clues suggesting he was operating his vehicle while intoxicated. Other than falling asleep, no one reported any other kind of problematic behavior or indications of impairment during his visit to McDonald's. Midday drowsiness standing alone, without any other indicators of impairment, is simply not enough. Reasonable suspicion may be a low bar, but it's not that low. The State's contention that Officer Simon's traffic stop was supported by reasonable suspicion fails. The State also argues that Officer Simon's seizure of Wiskowski during the traffic stop was justified as a permissible community caretaker activity. The line of community caretaker cases is rooted in the recognition that law enforcement work is multifaceted. Officers wear multiple hats. Sometimes they are acting to enforce the law by investigating and stopping illegal activity. Other times they act to protect property or help "a member of the public who is in need of assistance." This is what we have called the community caretaking function. These diverse strains of law enforcement action sometimes blend together. An officer might aid someone in need and at the same time have a hunch something illegal occurred or observe evidence that gives rise to a criminal investigation. Yet when analyzing the permissibility of a seizure in the community caretaking context, we have emphasized that officers act as community caretakers when, viewed objectively, they engage in activities "totally divorced from the detection, investigation, or acquisition of evidence" of a crime. Hagedorn then discussed United States Supreme Court caselaw that created a three-step analysis. The first step, that a seizure occurred, was undisputed. Step two asks as an initial matter whether the officer was engaging in a bona fide community caretaking function. This means we examine whether this was an objective effort to assist a member of the public in need that was "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Even if the answer is yes, however, that is not enough on its own to determine whether the seizure was lawful. The third step goes further. Tracking the Fourth Amendment's command, courts must balance the various interests to determine whether the exercise of that community caretaking activity was reasonable. We ultimately determine that, assuming without deciding Officer Simon had a bona fide community caretaking justification when he stopped Wiskowski, the continuation of the stop was unreasonable under the facts of this case. So we focus our analysis there. *** In this case, key to our analysis is whether and when it is reasonable to extend a seizure undertaken for community caretaking purposes once an officer resolves the reason for the stop. The general rule across jurisdictions—and we agree—is that a seizure should not be extended beyond its initial justification absent some other justification that emerges, like reasonable suspicion. *** Applying (United States Supreme Court) principles to this case, we conclude that even if the original stop was a bona fide community caretaking activity, Officer Simon unreasonably extended the stop beyond its original justification. Officer Simon initially stopped Wiskowski to perform a welfare check and ensure he was safe to drive. But after their first conversation, nothing reinforced continued concern on that basis. In Officer Simon's telling, Wiskowski was "acting normal." Officer Simon asked Wiskowski about falling asleep in the drive-thru and received a reasonable explanation. Wiskowski did not show signs of sleepiness during their interaction. And Officer Simon did not see signs of a medical emergency. At that point, the public interest or exigency that may have existed was resolved; Officer Simon had no community caretaking justification to prolong the stop. Yet Officer Simon did prolong the stop. He held Wiskowski there as he endeavored to determine whether he had enough to justify a criminal investigation. Wiskowski was clearly not free to leave, despite the welfare-based justification for the initial stop failing to reveal further concern. Under the facts of this case, Wiskowski was in no additional need of assistance. This means Officer Simon had no community caretaking justification to extend the stop, and should have allowed Wiskowski to leave. It is true that when the community caretaking concern dissipated, Officer Simon could have continued Wiskowski's detainment if facts emerged during their initial conversation that gave rise to reasonable suspicion. Indeed, Officer Simon's focus turned to criminal investigation as he probed for a reason to pull Wiskowski out of his car. But Officer Simon did not smell alcohol on Wiskowski and did not observe any other evidence of possible impairment. Having nothing more than a thought that "something was kind of going on that maybe [he] wasn't seeing in the car"—i.e., a "hunch"—Officer Simon detained Wiskowski well beyond the stop's justification. If Officer Simon, armed solely with a report that a driver fell asleep in a drive-thru, did not have reasonable suspicion when he stopped Wiskowski, reasonable suspicion certainly did not materialize following an initial encounter revealing no new evidence of impaired driving. Hagedorn concurrence Hagedorn first discussed the rules regarding raising arguments not raised in the appeals court, then turned to the community caretaker doctrine. Our cases addressing this doctrine do not derive from an independent analysis of the Wisconsin Constitution's text or history. Rather, we rely on United States Supreme Court precedent. To that end, our cases point back to a United States Supreme Court case, Cady v. Dombrowski, as the origin of this doctrine. Just a few terms ago, however, the Supreme Court held that the Fourth Amendment does not grant officers a broad community caretaking license to search homes. The Court further cast at least some doubt about whether the community caretaker doctrine is a standalone category through which police conduct should be analyzed. If that's true, the doctrines our cases use to address this kind of law enforcement action may be due for a reassessment. My aim in this writing is to start the conversation by briefly telling the story of how the community caretaker doctrine came to be, surveying where it stands now, and raising questions that this and other courts may need to address in future cases. *** Our cases—and those in other states—paint a clear picture. After four decades, the community caretaker functions of police recognized in Cady expanded from its original application to automobile inventory searches into a broad doctrine. Courts utilized this framework to permit all kinds of noncriminal searches and seizures, both on the road and in the home. These doctrinal developments marched forward in the lower courts with little to no direction from the United States Supreme Court. That changed in 2021. *** In a brief, unanimous opinion (in the Caniglia v. Strom case), the Court reiterated that officers are sometimes permitted to enter the home and its curtilage without a warrant, such as when rendering emergency aid. The First Circuit's community caretaking rule, however, went beyond anything the Court had recognized. Cady involved the search of an impounded vehicle, not a home. And the Cady court "expressly contrasted its treatment of a vehicle already under police control with a search of a car 'parked adjacent to the dwelling place of the owner.'" This distinction between vehicles and homes placed Cady's use of the phrase "community caretaking" into its proper context. The Court had used the phrase to explain why frequent traffic accidents and disabled vehicles often require the police to perform noncriminal "community caretaking functions," such as aiding motorists. This recognition that officers perform a variety of noncriminal tasks as part of their duties was exactly that—"a recognition that these tasks exist, and not an open-ended license to perform them anywhere." ... *** So where does that leave us now? First, Caniglia appears to mean that Wisconsin cases permitting home entries under community caretaking are no longer good law—at least insofar as they rely on community caretaking to justify the intrusion. It remains to be seen whether other doctrines might lead to the same outcome. More generally, Caniglia also suggests that the Supreme Court is uncomfortable with community caretaking as a broad category authorizing warrantless searches and seizures. However, it seems equally clear that the Court is not abandoning the proposition that some searches and seizures by law enforcement conducted to aid citizens, protect property, and ensure safety are permissible under the Fourth Amendment. Therefore, we may soon need to address whether to formally abandon community caretaking as a separate, freestanding doctrine through which warrantless searches and seizures should be evaluated. If we do so, courts may need to wrestle with whether functions we might now categorize as "community caretaking" may be better understood or evaluated under other doctrines, such as emergency aid or exigent circumstances . . . . In addition, it's possible some of the more expansive understandings of community caretaking in Wisconsin and elsewhere may need to be circumscribed. This is especially true where the need for the search or seizure is less urgent or could be accomplished through other means. Given this newfound uncertainty, both this court and the court of appeals must work to ensure our decisions have a firm foundation in United States Supreme Court precedent. While this case does not ask us to resolve these questions, I write here to highlight them so the discussion can begin.  Protasiewicz Protasiewicz concurrence I concur with the majority opinion. I write separately to address confusion in the law regarding a respondent's ability to argue alternative grounds for affirming the court of appeals in its response brief. The State seems confused because it erroneously cited (one section of a rule) regarding petitions for cross-review to justify waiting until its response brief to argue reasonable suspicion. And this court has sown confusion by, in some cases, ignoring (a second section of the rule) and improperly holding respondents to rules that govern only petitioners. The court should clarify the law on these matters. Protasiewicz then discussed the text of the rule provisions. While the rules governing a respondent’s presentation of issues for this court’s review seem clear enough, the court and the State in this case have stumbled over them. *** Discussion of caselaw regarding the rules and two cases in particular that Protasiewicz said merit clarification by the Supreme Court. . . . I agree with the State that a response brief may raise alternative grounds for sustaining the court of appeals result. The State may do so even if the alternative ground was not raised in the lower courts. Like it or not, that is "well-established law in Wisconsin." But the respondent proceeds at its own risk. This court is not required to address arguments presented for the first time in a respondent's brief.  Ziegler The dissent
Wiskowski was arrested and charged with operating a motor vehicle under the influence of an intoxicant and with a prohibited alcohol concentration that was nearly 10 times over his legal limit. In the middle of the day, Wiskowski placed his order at a McDonald's drive-through and then did not appear at the window to pick it up. He evidently fell asleep at some point between ordering and the pick-up window. Understandably, the McDonald's employee who found him slumped over the steering wheel was concerned and called the police. Law enforcement responded within a minute or so and ultimately determined that Wiskowski, who had been convicted three prior times for drunk driving, was again drunk driving. Well over his legal limit, he was charged a fourth time. The entirety of the interaction with law enforcement at this traffic stop was just over eight minutes. Most likely, the average traffic stop is longer than this eight minute inquiry. But the majority concludes that the evidence against Wiskowski must be suppressed because the officer inquired a bit too long. Apparently, after Wiskowski explained that he fell asleep because he was tired, the police were no longer community caretakers and had to let him drive on. The majority does not say how long is too long, but they know it when they see it. The majority opinion addresses traditional community caretaker and extension of stop principles. The majority opinion also opines that the officer could not have had reasonable suspicion to believe Wiskowski was drunk driving. Under the totality of the circumstances, the officer's conduct was reasonable. I dissent, because, among other things, this case does not develop the law and is at most error correction. Our court should not accept review merely to correct error. *** The majority opinion does not engage in law development. It restates established principles to a fact specific situation. The current law is (1) that officers can engage in community caretaking; (2) that a traffic stop cannot be unnecessarily extended; and that an officer must have reasonable suspicion to stop a vehicle. The majority applies well-established law to the specific facts of this case. While the United States Supreme Court recently considered the community caretaker warrant exception in Caniglia, the majority does not rest its opinion on that case. Notably, the majority does not adopt that analysis, nor does it in any way alter the community caretaker exception to the warrant requirement. Perhaps it does not because the facts of Caniglia, which involved entry into a home, differ from those here—a vehicle stop. Indeed, while Caniglia may have further refined the community caretaker doctrine and some of my colleagues may wish to further consider the community caretaker doctrine in Wisconsin, the majority opinion merely applies previously accepted doctrine regarding an extended stop. *** Under the facts of this case, law enforcement responded to a named informant's call about a driver asleep behind the wheel of his vehicle, in a McDonald's drive-through, in the middle of the day. Law enforcement arrived shortly thereafter on scene and observed a vehicle matching the named informant's description, exiting the drive-through. The driver, who according to the named informant had been sleeping a moment prior, was now operating his vehicle out of the parking lot and back into traffic. Law enforcement was not required to "rule out the possibility of innocent behavior" or make "other innocent inferences" to explain this unusual behavior. Rather, the officer based his decision to initiate a traffic stop on the "totality of the circumstances" present at the time. Reasonable suspicion demands no more. The majority seems to make much of the fact that the officer testified that he did not initially smell the odor of intoxicants and somehow the stop lasted a bit too long. The majority rests its community caretaker conclusion on the officer asking and requiring too much of Wiskowski in his exchange with him, extending the stop beyond what is necessary for the community caretaker function. The majority sheds little light on what rule law enforcement should follow in the future other than the Wiskowski stop was a bit too long. In other words, this case is very fact-dependent. If the officer testified that he stopped the vehicle for a traffic violation, such as Wiskowski not using a turn signal, the majority analysis would likely be different. Officers also can base a vehicular stop upon a call from an informant, whether unknown, or as in this case, known. If just a bit earlier in this stop the officer smelled intoxicants or witnessed slurred speech or stumbling, the majority likely would not reach the same conclusion. Here, the majority says, this information came to the officer too late even though it was within minutes. The majority essentially manufactures a two-part stop out of what is one continuous inquiry. This officer did not unreasonably extend this stop. The officer's observations occurred within a fairly short time period and his inquiry was reasonable under the circumstances. After all, the touchstone of the Fourth Amendment is reasonableness. *** The circumstances surrounding the stop do not demonstrate that the officer used a high degree of overt authority or force, nor was there an extensive intrusion into a private space. In fact, the average speeding or traffic stop would likely take about the same amount of time—perhaps more. In short, the officer had reasonable suspicion to stop Wiskowski, the officer was acting as a bona fide community caretaker, and the traffic stop was not unreasonably extended. Unfortunately, our court's review of this fact-specific case fails to provide a clear rule for law enforcement. No law is developed. Long established law about reasonable suspicion is misapplied, even though its application to the case at issue should militate against suppression of the evidence. Under the totality of the circumstances, the officer's conduct was reasonable. |
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