Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: State of Wisconsin v. Oscar C. Thomas
 
Majority/Lead Opinion: Justice Patience D. Roggensack announced the mandate of the court and delivered a partial majority opinion (34 pages) that was joined by Chief Justice Annette K. Ziegler and joined in part by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca F. Dallet, Brian Hagedorn, and Jill J. Karofsky.

Concurrence: Dallet (10 pages), which reflects the majority opinion of the court on the issue of confrontation; joined by Walsh Bradley, Grassl Bradley, and Karofsky.

Concurrence: Hagedorn (2 pages).

The state switched its argument during litigation, according to Roggensack's and Hagedorn's writings. The state first argued that a DNA report was used by the prosecution to impeach Thomas's defense expert. Later it argued the report was used during cross-examination and closing argument to show the truth of the matter it concerned. 

For people most interested in the confrontation issue, WJI recommends reading Dallet's concurrence first, as it is the majority opinion of the court and her writing is clear.

The upshot

(Joined by Walsh Bradley, Grassl Bradley, Dallet, Karofsky, and Ziegler)
We accepted two issues for review. First, whether Thomas's confession of sexual assault was corroborated by a significant fact, and we conclude it was. This opinion is the majority opinion for the discussion of corroboration. Second, whether the cross-examination of Thomas's expert witness by use of a Wisconsin Crime Lab report ("the Report") that was not in evidence and whose author did not testify violated Thomas's confrontation right. Four justices conclude the Report's contents were used for their truth during cross-examination, thereby violating Thomas's right of confrontation. Justice Dallet's concurrence is the decision of the court for the confrontation issue. Six justices conclude Hemphill (v. New York) precludes admission of evidence to correct an allegedly misleading impression created by the defendant, and seven justices conclude that any error related to the Report was harmless. Accordingly, we affirm the court of appeals. 

Background

Thomas was arrested in 2006 for strangling to death his wife, Joyce Oliver-Thomas. He was charged with first-degree intentional homicide, first-degree sexual assault, and false imprisonment. (Roggensack says in a footnote that the couple was divorced, but reconciled without remarrying. The decision refers to them as married, though this was not technically true at the time of Oliver-Thomas's death.) A jury convicted Thomas on all counts. 

Thomas's first appeal failed in state courts, but he filed a federal habeas petition and the Seventh Circuit Court of Appeals granted him a new trial. In 2018, a jury again convicted him on all counts, and Kenosha County Circuit Judge Bruce E. Schroeder sentenced him to life in prison. Thomas appealed again and lost in the state court of appeals.

(Joined by Ziegler)
.... Specifically, the court of appeals concluded there was sufficient corroborating evidence of the sexual assault confession, and denial of the postconviction motion was appropriate. The court of appeals also concluded the Report's DNA evidence was "inadmissible hearsay," causing a Confrontation Clause violation when it was used erroneously during trial and during the State's closing argument. However, the court of appeals concluded that the error was harmless.

In its briefing to us, the State did not argue that the Report could be used for the truth of its contents. Rather, it set the issue up as: "[W]hen Thomas's expert gave testimony directly contradicting the lab report on which he relied, it was an implied waiver of Thomas's right to confront the author of the lab report." However, Dr. Williams did not say he "relied" on the Report, but rather, that he "reviewed" the Report along with hundreds of other pages of material relative to this case. Nevertheless, the State veered from the argument it raised consistently below that the prosecutor used the Report to impeach Thomas's defense expert. Instead, at oral argument the State argued that we should analyze the Report based on the contention that its contents were properly used during cross-examination and during closing argument for the truth of the matters asserted therein. 

The guts

Thomas gave contradictory statements to the police, which involved him smoking crack before Oliver-Thomas's death. In one, Thomas said he and Oliver-Thomas, after she complained repeatedly of chest pain during the day, fell off the bed while they had sex. Thomas left the building for a time afterwards and found his wife on the floor when he returned. In another, Thomas said Oliver-Thomas at first asked him to stop with his sexual advances, but then consented to sex. In this version, too, they fell to the floor. Thomas said he had his left arm up around his wife's neck while they had sex. The two got back into bed, but fell out again. Thomas said he again had his arm around her neck. He left the apartment and returned to find Oliver-Thomas lying face down on the floor. Thomas said he tried to lift her, but lost his grip twice and Oliver-Thomas's face hit the bed or floor each time.

Corroboration
(Joined by Ziegler, Walsh Bradley, Grassl Bradley, Dallet, Hagedorn, and Karofsky)
While the State does not, and need not, offer corroborating evidence of every element of the crime of sexual assault, the State has offered corroborating evidence for a "significant fact" of Thomas's statements given to police. Thomas's downstairs neighbor testified she heard an argument between a man and woman, and the woman screamed, "Stop, stop, I love you, I love you." The neighbor also testified she heard something big hit the floor, the sound of furniture moving, and silence. She then heard the apartment door open, and a person she identified as Thomas walked out. 

                                                                                                    ***
 
Confrontation
(Joined by Ziegler only)
The Confrontation Clause of the Sixth Amendment of the United States Constitution prevents the admission of testimonial hearsay when the declarant is absent from trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. ...

                                                                                                    ***

Thomas called just one witness at trial – Dr. Williams, a medical examiner. On direct examination, Dr. Williams testified that "in allegations of violence resulting in death," he looks for "an exchange of trauma, an exchange of evidence" between the victim and accused. When asked specifically, Dr. Williams replied that he did not see signs of a struggle or of defensive wounds. In his opinion, abrasions on Ms. Oliver-Thomas's face could have resulted from emergency CPR or from engaging in face-down sex on the floor, consistent with Thomas's statements. 

On cross-examination, the state challenged Dr. Williams's characterization that there were no signs of an exchange of trauma.... Documents submitted prior to trial indicate Dr. Williams reviewed the Report, among other things, in preparing his testimony. Thomas urges us to conclude that the details elicited on cross-examination of Dr. Williams violated his confrontation right. 

                                                                                                   ***

[T]he State's use of the Report to impeach Dr. Williams on cross-examination did not violate Thomas's confrontation right. The State challenged Dr. Williams's conclusion that there was "no exchange of evidence" by referencing the report that Dr. Williams had reviewed, which showed DNA exchanges under the fingernails of Thomas and Ms. Oliver-Thomas. Stated otherwise, by drawing attention to the "exchange" of DNA between Thomas and Ms. Oliver-Thomas, the State attempted to undermine Dr. Williams's opinion that Ms. Oliver-Thomas's cause of death could have been accidental. The degree to which the State succeeded in limiting the usefulness of Dr. Williams's testimony was then considered by the jury together with all of the evidence in deciding Thomas's guilt. Although we recognize Thomas could have asked for limiting instructions that the jury not consider the Report's contents for their truth because testimony about the contents of the Report was not admitted for substantive purposes, he made no such request. We conclude the State's questioning on cross-examination relevant to the Report ​did not violate Thomas's right to confront the Report's author when used to impeach Dr. Williams's opinion. 

                                                                                                  ***

.... [T]he State views the Report at issue in Thomas's conviction as belonging to a "narrow category of evidence that a defense expert relied on and gave factually inaccurate testimony about." ... [I]n the State's view, Thomas elicited testimony that "flatly contradicted" the Report. Because "he made 'a tactical choice' to put the [R]eport in play," he "waived his confrontation right as to that [R]eport."

                                                                                           ***

.... However, if the State wanted to use the Report for its truth, the State was required to introduce and authenticate the Report and then subject its author to cross-examination by Thomas in accordance with the Sixth Amendment. ... The information the State elicited from Dr. Williams on cross-examination for impeachment purposes did not transform the Report into admissible hearsay. ...

                                                                                           ***

We conclude the State's reliance on hearsay evidence that was used to impeach Thomas's expert's opinion was improper during closing arguments because the Report then was used for the truth of the statements therein.  As stated earlier, the facts or data upon which an expert bases her opinion may be introduced ... but only for the limited purpose of assisting the factfinder in determining an expert's credibility. Evidence brought in for that purpose does not transform into admissible hearsay for subsequent use at trial.

Furthermore, after defense counsel objected, the prosecutor incorrectly assured the judge that, "[T]he evidence supports this theory, Your Honor. We have testimony of the scratches on her face. ... Her DNA is found under his fingernails." It was therefore erroneous to permit the prosecutor's statement in closing argument because the DNA evidence in the Report was not properly admitted as evidence for its substantive content. 

                                                                                           ***

Harmless error​
The harmless error query does not reduce to a mere quantum of evidence, but instead, whether absent the hearsay/Report it is clear beyond a reasonable doubt that a rational jury would have found Thomas guilty. Here, we conclude that the State offered sufficient evidence for a rational jury to determine Thomas sexually assaulted and intentionally took the life of his wife. All of the observations of physical injury to Ms. Oliver-Thomas are consistent with the jury's conclusion that Thomas's interactions with her were not consensual and were intentional. Accordingly, we conclude that the state has met its burden to show that the error was harmless.​

Concurrence

Confrontation
I conclude that the State violated Thomas's Sixth Amendment rights. The State sought the DNA evidence described in the Crime Lab report for its truth at trial. That much is clear from the prosecutor's closing argument to the jury. And the State confirmed that the DNA evidence was offered for its truth throughout briefing and during oral argument in this court. For that reason, the DNA evidence in the Crime Lab report was testimonial hearsay; it was an out of court statement, prepared "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," and offered by someone other than the declarant for the truth of the matters asserted. Because the author of that report was not available for cross-examination, admitting testimony about it therefore violated the Confrontation Clause. Nevertheless, because that Confrontation Clause violation was harmless, I conclude that Thomas's convictions should stand. 

Thomas's forensic expert, the sole defense witness at trial, testified on direct examination that he did not see any defensive wounds or "signs of a struggle" on the victim. This was important because Thomas argued that he killed the victim accidentally. During cross-examination, the State asked Thomas's expert if he reviewed reports from the Wisconsin Crime Lab in reaching his conclusions. This was the first time the Crime Lab report and the DNA evidence contained in it came up at trial, and defense counsel objected to any questioning about the contents of the report. The circuit court overruled the objection, however, and allowed the State to ask Thomas's expert about the report because he reviewed it before reaching his opinion. The prosecutor then asked the expert about the report's finding that Thomas's DNA was under the victim's fingernails at the time of the autopsy. After looking at the report, Thomas's expert said "[y]es, this appears to be an analysis that shows that the DNA found under the fingerprints [sic] was obviously a mixture. You are going to have [the victim's] DNA, but also evidence of DNA from Oscar Thomas." He also confirmed that the victim's DNA was found under Thomas's fingernails. Thomas's expert dismissed those conclusions, however, explaining that Thomas and the victim were married, and "[a] finding of the DNA, they could be scratching each other's back. I mean, there is no evidence of trauma on him to support the fact that she was struggling." The report was never admitted into evidence. 

The State's actions would have been permissible if, as the majority/lead opinion hypothesizes, it was done only to impeach Thomas's expert during cross-examination. But the record, and the State's briefing and presentation at oral argument, all establish that the evidence was offered for the truth of matters contained in the report – that the victim's DNA was under Thomas's fingernails and Thomas's DNA was under her fingernails. That was why, when the circuit court told the prosecutor to confine his closing arguments to the evidence, he responded – in front of the jury – that "[w]e have testimony of the scratches on [the victim's] face. We have testimony that it could have been caused by DNA. Her DNA is found under his fingernails." The only "testimony" about DNA was Thomas's expert's answers about the Crime Lab report's findings during cross-examination. And if there was any remaining question about the purpose of eliciting that testimony, it was answered in briefing and at oral argument in this court, where the State consistently asserted that Thomas impliedly waived his right to confront the author of the Crime Lab report when his expert's testimony contradicted the report's contents. 

Nevertheless, the majority/lead opinion insists that the State used the evidence during cross-examination not for its truth, but only to impeach Thomas's expert's credibility. That is correct, in the majority/lead opinion's view, since the State's briefing "did not argue that the report could be used for the truth of its contents."  But the majority/lead opinion misunderstands the State's position. Its argument that Thomas impliedly waived his confrontation right only matters if the report was used for its truth. After all, the Confrontation Clause only prohibits the introduction of testimonial hearsay, and hearsay is, by definition, an out of court statement that is "offered in evidence to prove the truth of the matter asserted." Thus, the State's consistent position before us is that it did not violate the Confrontation Clause when it sought to establish the truth of the Crime Lab report's findings through Thomas's expert's testimony on cross-examination. 

The problem with that position is that the Confrontation Clause "prohibits the introduction of testimonial statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'" Crime lab reports are testimonial statements because they are "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."  And for that reason, the conclusions reached by such reports may be admitted for their truth at trial only if the person who prepared the report is subject to cross-examination. 

That wasn't the case at Thomas's trial. Instead, through its questioning of Thomas's expert, the State was able to elicit DNA evidence from the Crime Lab report without affording Thomas the opportunity to confront the analyst who prepared that report – a straightforward Confrontation Clause violation. 

The State tries to sidestep that violation by arguing that Thomas impliedly waived his right to confront the analyst who prepared the Crime Lab report when his expert witness "relied on" the DNA evidence in that report and then "gave factually inaccurate testimony about" it. This argument is based on the direct testimony of Thomas's expert that he did not see any defensive wounds or "signs of a struggle" on the victim. The State claims that was inaccurate because the DNA evidence showed that Thomas's DNA was under the victim's fingernails (and her DNA under his). And for that reason, the State did not violate the Sixth Amendment by establishing the facts contained in the report through cross-examining Thomas's expert. 

This argument, however, mirrors an evidentiary rule the United States Supreme Court recently held was unconstitutional in Hemphill v. New York. That rule allowed evidence that would otherwise violate the Confrontation Clause to be admitted when the defendant "opened the door;" that is, when the defendant created "a misleading impression that requires correction with additional materials from the other side."  The Court rejected that rule because the Sixth Amendment's text "'does not suggest any open-ended exceptions from the confrontation requirement to be developed by courts.'" ...

                                                                                                         ***

.... Yet that is what the State asks us to conclude: that the DNA evidence contained in the Crime Lab report "was reasonably necessary to correct [the] misleading impression" created by Thomas's expert's testimony that he did not see any defensive wounds or "signs of a struggle" on the victim. But adopting the State's position would defy Hemphill – something we cannot do. Accordingly, Thomas did not impliedly waive his Confrontation Clause right, and admitting testimony about the contents of the Crime Lab report without affording him the opportunity to confront its author violated the Sixth Amendment. 

Nevertheless, the error was harmless, Dallet said.

Here, it is clear beyond a reasonable doubt that the admission of the DNA evidence did not contribute to the guilty verdict. To be sure, the DNA evidence was used as support for the State's theory that Thomas intended to kill the victim and, conversely, to rebut Thomas's theory that the death was accidental. And admittedly, the DNA evidence was somewhat useful in that regard as it bolstered the State's narrative that Thomas scratched the victim's face with his free hand while choking her to death. But the evidence wasn't necessary to support that theory since the State's case was already strong without it. The jury heard testimony from the medical examiner about injuries to the victim's face, neck, tongue, and lips, all of which were consistent with Thomas violently and intentionally strangling the victim. Additionally, the jury also heard from Thomas's neighbor, who awoke to a loud argument in the middle of the night and a woman screaming "[s]top, stop, I love you, I love you." She then heard a loud noise, furniture moving, and silence. 

Concurrence

.... I agree with my colleagues that any alleged Confrontation Clause violation was harmless. But I do not join their analysis of the Confrontation Clause issues for two reasons. 

​First, it is unclear how to analyze and categorize the State's use of the report. In response to Thomas's postconviction motion and his appeal, the State argued the DNA evidence was used for impeachment purposes. However, in briefing and at argument before us, the State asserts, and Thomas agrees, that the DNA evidence was admitted for its truth during cross-examination. Justice Roggensack's opinion concludes that the DNA evidence was properly used to impeach the defense expert – relying on the parties' prior arguments. By contrast, Justice Dallet's opinion relies on the State's current representation, despite the fact that is not how this issue was litigated or represented below. This is unusual, to say the least, and forms a questionable foundation upon which to opine on these matters.

Second, the confrontation issues in this case are novel and factually complicated. They center on how to treat a report not admitted into evidence that is nonetheless reviewed by a testifying defense expert. May the contents of such a report be explored on cross-examination by the State? To what end? The United States Supreme Court, whose decisions we are principally applying in this area of law, has not addressed this question. With little guidance from the Supreme Court in this still emerging area of law, and because this case is sufficiently resolved on harmless error, I would not wade into these uncharted waters at this time. 

​Rather than forge our own path on the State's use of the evidence, or analyze a novel area of federal constitutional law where the United States Supreme Court has left much unaddressed, I would simply conclude the Confrontation Clause errors Thomas alleges, if they are errors at all, were harmless. Thomas is not entitled to a new trial and his convictions should be affirmed. I respectfully concur.

​Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. Underlined text indicates emphasis added by the justices, not WJI.

Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. 

And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. 

The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission

Concurrence: Justice Brian Hagedorn (35 pages)

Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky

Majority/Lead Opinion: Justice Rebecca Grassl Bradley (52 pages),  joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler; joined in part by Hagedorn

Concurrence: Roggensack (14 pages)

Concurrence: Grassl Bradley (17 pages), joined by Roggensack and Ziegler

​Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.

Concurrence

​The principal issue in this case involves the lawfulness of ballot drop boxes. This case is not about the risk of fraudulent votes being cast or inspiring confidence in elections. This is not about ensuring everyone who wants to vote can, nor should we be concerned with making absentee voting more convenient and secure. Those are policy concerns, and where the law does not speak, they are the business of the other branches, not the judicial branch. This case is about applying the law as written; that's it. To find out what the law is, we read it and give the words of the statutes the meaning they had when they were written. 

                                                                                   ***

A careful study of the text, including its history, along with the supporting statutory context, reveals that unstaffed drop boxes for absentee ballot return are not permitted. Rather, this statute specifies return of absentee ballots through two and only two means: mailing by the voter to the municipal clerk, or personal delivery by the voter to the municipal clerk. And personal delivery to the clerk contemplates a person-to-person exchange between the voter and the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. The two (Wisconsin Elections Commission) memos advising otherwise therefore conflict with the law and are properly void. 

                                                                                   ***

Before diving into the law, I offer two observations. First, the election law statutes we are asked to consider are by no means a model of clarity. Many of the controlling provisions were originally enacted over 100 years ago and have been layered over with numerous amendments since. Reasonable minds might read them differently. Significant questions remain despite our decision in this case, especially as absentee voting has become increasingly common. Although our adjudication of this case will provide some assistance, the public is better served by clear statutes than by clear judicial opinions interpreting unclear statutes. The legislature and governor may wish to consider resolving some of the open questions these statutes present. 

Second, some citizens will cheer this result; others will lament. But the people of Wisconsin must remember that judicial decision-making and politics are different under our constitutional order. Our obligation is to follow the law, which may mean the policy result is undesirable or unpopular. Even so, we must follow the law anyway. To the extent the citizens of Wisconsin wish the law were different, the main remedy is to vote and persuade elected officials to enact different laws. This is the hard work of democracy.

                                                                                   ***
Standing

​Standing is the foundational principle that those who seek to invoke the court's power to remedy a wrong must face a harm which can be remedied by the exercise of judicial power. Some of my colleagues have begun to describe standing in far looser terms. It is a really nice thing to have in a case, they seem to say, but not important at the end of the day. I disagree. We have said standing is not jurisdictional in the same sense as in federal courts and that its parameters are a matter of sound judicial policy. But as Justice Prosser put it, "Judicial policy is not, and has not been, carte blanche for the courts of Wisconsin to weigh in on issues whenever the respective members of the bench find it desirable."

                                                                                   ***

Teigen argues that Wis. Stat. § 5.06 gives voters like him a statutory right to have local election officials in the area where he lives comply with election laws. ...

Teigen has a legal right protected by Wis. Stat. § 5.06 to have local election officials in his area comply with the law. The only question, then, is whether the memos at least threaten to interfere with or impair Teigen's right to have local election officials comply with the law. I conclude they do. 

The two memos challenged in this case provide local election officials advice on absentee ballot return – advice Teigen contends is unlawful. Regardless of whether the memos are themselves binding on local election officials (a question explored further below), they no doubt carry persuasive force with those administering elections. Many local election officials will follow advice offered by WEC, even when that advice is not legally binding. Indeed, the record in this case reveals that many local election officials employed drop boxes consistent with WEC's advice after the memos issued. If that advice is contrary to law, it stands to reason that many local election officials, including those in Teigen's area, are likely to rely on and implement erroneous advice. Applying the plain terms of Wis. Stat. § 227.40(1), the memos Teigen challenges at the very least threaten to interfere with or impair his right to have local election officials comply with the law. ... In this case, the question is whether WEC issued an allegedly unlawful rule or guidance document that makes it likely local election officials will not follow election laws. And on that question, Teigen has sufficiently alleged standing. ...

                                                                                   ***

Yet the majority/lead opinion suggests it creates broad voter standing against any election official or WEC by any elector for nearly any purported violation of any election law. Without tethering the analysis to an on-point text, this analysis is unpersuasive and does not garner the support of four members of this court.

Hagedorn writes that Teigen did not have to file a complaint with WEC before going to court.  

In addition, Wis. Stat. § 227.40(1) expressly opens the courthouse doors to those challenging administrative rules or guidance documents: "A declaratory judgment may be rendered whether or not the plaintiff has first requested the agency to pass upon the validity of the rule or guidance document in question." This seems to carve out a particular kind of legal claim – a challenge to rules and guidance documents – and relieves the petitioner of pleading one's case with the agency first. Applying this as written, and in the absence of other contrary arguments, I conclude Teigen was not required to take his case to WEC before seeking judicial relief. ... 

Drop boxes and ballots

In the two memos at issue here, WEC advised clerks that absentee voters could cast their ballots via staffed or unstaffed drop boxes, that drop boxes may be placed at (the) clerk's office or elsewhere, and that individuals other than the voter may deliver the voter's absentee ballot to the clerk. These three positions are inconsistent with Wisconsin's election statutes. The law requires that to return an absentee ballot in person, voters must personally deliver their ballot to the clerk or the clerk's authorized representative at either the clerk's office or a designated alternate site. Because WEC's memos conflict with these statutory directives, they are invalid.

                                                                                   ***

Wisconsin Stat. § 6.87(4)(b)1 was originally enacted as part of Wisconsin's earliest comprehensive absentee voting law in 1915. Regarding return of a ballot, the law provided: "Said envelope shall be mailed by such voter, by registered mail, postage prepaid, to the officer issuing the ballot, or if more convenient it may be delivered in ​person." This wording, plainly read, suggests both the mailing and the delivery must be done by the voter, and directed to the ballot-issuing officer. 

Note: We are breaking our own rules again. WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in four: First the lead decision, then the dissent, and then, in two separate posts due to length, the three concurrences. Here's the first one. Why? Because this package of writings is significant and gives insight into how SCOW's seven justices think. 

And instead of allowing each writing justice 10 paragraphs, we are allowing up to 20. We've also removed citations from the opinion for ease of reading, but have linked to important cases and laws cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized. 

The case: Richard Teigen and Richard Thom v. Wisconsin Elections Commission

Dissent: Justice Ann Walsh Bradley (18 pages), joined by Justices Rebecca F. Dallet and Jill J. Karofsky

Majority/Lead Opinion: Justice Rebecca Grassl Bradley (52 pages),  joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler; joined in part by Justice Brian Hagedorn

Concurrence: Roggensack (14 pages)

Concurrence: Grassl Bradley (17 pages), joined by Roggensack and Ziegler

Concurrence: Hagedorn (35 pages)

Intervenor defendant-appellants included the Democratic Senatorial Campaign Committee, Disability Rights Wisconsin, Wisconsin Faith Voices for Justice, and the League of Women Voters of Wisconsin.​

Dissent
​
While Grassl Bradley, in her lead opinion, refers to Teigen and Thom as "Wisconsin voters," Walsh Bradley refers to them together simply as "Teigen." Walsh Bradley explains in a footnote: "The majority/lead opinion refers to Teigen and Thom as the "Wisconsin voters" throughout its opinion. This could be misleading to the reader. True enough, Teigen and Thom are voters who live in Wisconsin. But the use of the term could lead the reader to believe that the plaintiffs here represent a wider swath of people than they actually do. Thus, I refer to the two plaintiffs collectively as 'Teigen. ' "

Although it pays lip service to the import of the right to vote, the majority/lead opinion has the practical effect of making it more difficult to exercise it. Such a result, although lamentable, is not a surprise from this court. It has seemingly taken the opportunity to make it harder to vote or to inject confusion into the process whenever it has been presented with the opportunity.

A ballot drop box is a simple and perfectly legal solution to make voting easier, especially in the midst of a global pandemic.

But it is apparently a bridge too far for a majority of this court, which once again rejects a practice that would expand voter participation.

The majority/lead opinion's analysis is flawed in three main ways. It expands the doctrine of standing beyond recognition, is premised on a faulty statutory interpretation, and without justification fans the flames of electoral doubt that threaten our democracy. 

                                                                               ***
Standing

Teigen has suffered an "injury in fact" to his constitutional right to vote, the majority/lead opinion says, merely because he alleges that election law was not followed. In accepting Teigen's standing to bring this suit, it further states: "the failure to follow election laws is a fact which forces everyone . . . to question the legitimacy of election results."

The majority/lead opinion says that Teigen's "rights and privileges as [a] registered voter[]" give him standing to bring this action challenging the statewide administration of elections. Taken to its logical conclusion, the majority/lead opinion indicates that any registered voter would seemingly have standing to challenge any election law. The impact of such a broad conception of voter standing is breathtaking and especially acute at a time of increasing, unfounded challenges to election results and election administrators.

                                                                               ***
Statutory interpretation

The majority/lead opinion's interpretation of Wis. Stat. § 6.87(4)(b)1. ignores an important distinction. Section 6.87(4)(b)1. uses the phrase "municipal clerk." It does not say "municipal clerk's office." 

This is important because elsewhere the Wisconsin Statutes are replete with references to the "office of the municipal clerk," the "office of the clerk," or the "clerk's office." Not only is such an "office" referenced, but it is specified as a place where a delivery or an action takes place. ... 

We also know that a "municipal clerk" under the statutes is distinct from the "office of the municipal clerk," because "municipal clerk" is specifically defined as "the city clerk, town clerk, village clerk and the executive director of the city election commission and their authorized representatives." In other words, the "municipal clerk" is a person, and the "office of the municipal clerk" is a location. ...

If the legislature wanted to require return of a ballot to the clerk's office, it certainly could have done so, as it did in the litany of provisions using such language. ...

Can delivery to a drop box constitute delivery "to the municipal clerk?" Absolutely. A drop box is set up by the municipal clerk, maintained by the municipal clerk, and emptied by the municipal clerk. This is true even if the drop box is located somewhere other than within the municipal clerk's office. As stated, the "municipal clerk" in the statutes is a person, and the "office of the municipal clerk" is a location. Applying this principle, there is nothing in the statute that even hints that unstaffed drop boxes are impermissible. Rather, a drop box, which the clerk or the clerk's designee sets up, maintains, and empties, is simply another way to deliver a ballot "to the municipal clerk." The majority/lead opinion's attempt to avoid the statute's plain language fails.

                                                                               ***

On its face, Wis. Stat. § 6.855 (governing alternate absentee ballot sites) sets forth that alternate voting sites "must be a location not only where voters may return absentee ballots, but also a location where voters 'may request and vote absentee ballots.'" Thus, as the majority/lead opinion acknowledges, "[b]allot drop boxes are not alternate absentee ballot sites under (the statute) because a voter can only return the voter's absentee ballot to a drop box, while an alternate site must also allow voters to request and vote absentee at the site." 

The majority/lead opinion reads into (the law) an implication beyond the statute's language. Although the majority/lead opinion correctly acknowledges that (the statute) does not describe drop boxes, it seeks support for its result in the assertion that "[t]he legislature enacted a detailed statutory construct for alternate sites" while at the same time "the details of the drop box scheme are found nowhere in the statutes." This argument falls flat for the same reason the majority/lead opinion's statutory analysis of Stat. § 6.87(4)(b)1 fails: the legislature did not include a detailed scheme for drop boxes in the statutes because it did not need to do so. As analyzed above, (state law) already authorizes them. 

                                                                               ***

State law allows local election officials some discretion on how elections in their communities should be run, Walsh Bradley writes.

Threshold issues

The Democratic Senatorial Campaign Committee challenged the plaintiffs' standing in the case. Only Roggensack and Ziegler joined in Grassl Bradley's reasoning in rejecting the challenge, meaning that her lead opinion does not constitute a binding precedent on the question.

DSCC argues the Wisconsin voters lack standing, asserting they "have not demonstrated 'a personal stake in the outcome of the controversy' separate and apart from the public at large, nor have they shown they have 'suffered or [are] threatened with an injury to an interest that is legally protectable.' " ​We reject this argument because the Wisconsin voters do have a "stake in the outcome" and are "affected by the issues in controversy." 
                                                                                ***

If the right to vote is to have any meaning at all, elections must be conducted according to law. Throughout history, tyrants have claimed electoral victory via elections conducted in violation of governing law. For example, Saddam Hussein was reportedly elected in 2002 by a unanimous vote of all eligible voters in Iraq (11,445,638 people). Examples of such corruption are replete in history. In the 21st century, North Korean leader Kim Jong-un was elected in 2014 with 100% of the vote while his father, Kim Jong-il, previously won 99.9% of the vote. Former President of Cuba, Raul Castro, won 99.4% of the vote in 2008 while Syrian President Bashar al-Assad was elected with 97.6% of the vote in 2007. Even if citizens of such nations are allowed to check a box on a ballot, they possess only a hollow right.* Their rulers derive their power from force and fraud, not the people's consent. By contrast, in Wisconsin elected officials "deriv[e] their just powers from the consent of the governed." 

​The right to vote presupposes the rule of law governs elections. If elections are conducted outside of the law, the people have not conferred their consent on the government. Such elections are unlawful and their results are illegitimate. ...

The Wisconsin voters' injury in fact is substantially more concrete than the "remote" injuries we have recognized as sufficient in the past. The record indicates hundreds of ballot drop boxes have been set up in past elections, prompted by the memos, and thousands of votes have been cast via this unlawful method, thereby directly harming the Wisconsin voters. The illegality of these drop boxes weakens the people's faith that the election produced an outcome reflective of their will. The Wisconsin voters, and all lawful voters, are injured when the institution charged with administering Wisconsin elections does not follow the law, leaving the results in question. 

                                                                                ***

Justice Brian Hagedorn disagrees with our standing analysis, proffering an alternative basis for standing divined from searching the penumbra of Wis. Stat. § 5.06. Although § 5.06 appears nowhere in the complaint and sets forth specific procedures that were never invoked, Justice Hagedorn concludes it nevertheless confers standing on the Wisconsin voters. It can't.

Grassl Bradley, joined by Roggensack and Ziegler, also finds that the two voters did not first have to file their complaint with WEC and that the agency abandoned any sovereign immunity defense.

Although WEC asserted in its answer that sovereign immunity barred "some" of the Wisconsin voters' claims, it did not say which ones. No reasonable judge could view WEC's briefing and answers at oral argument as maintaining a sovereign immunity defense. WEC's attorney even said at oral argument that WEC takes "no position" on the matter. 

*In a footnote, Grassl Bradley writes, "Justice Hagedorn seems to disagree, indicating the right to vote encompasses nothing more than the mere ability to cast a ballot. He fails to recognize that a lawful vote loses its operative effect if the election is not conducted in accordance with the rule of law."

The guts

(Joined by Hagedorn, Roggensack and Ziegler)

WEC's staff may have been trying to make voting as easy as possible during the pandemic, but whatever their motivations, WEC must follow Wisconsin statutes. Good intentions never override the law.

                                                                                ***

Nothing in the statutory language detailing the procedures by which absentee ballots may be cast mentions drop boxes or anything like them. ​

Wisconsin Stat. § 6.87(4)(b)1. provides, in relevant part, that absentee ballots "shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots." The prepositional phrase "to the municipal clerk" is key and must be given effect. ... An inanimate object, such as a ballot drop box, cannot be the municipal clerk. At a minimum, accordingly, dropping a ballot into an unattended drop box is not delivery "to the municipal clerk[.]"

State law allows establishment of alternate absentee ballot sites, Grassl Bradley writes.

Ballot drop boxes are not alternate absentee ballot sites because a voter can only return the voter's absentee ballot to a drop box, while an alternate site must also allow voters to request and vote absentee at the site. If a drop box were an alternate ballot site, by the plain language of the statute, "no function related to voting and return of absentee ballots that is to be conducted at the alternate site may be conducted in the office of the municipal clerk or board of election commissioners." 

Existing outside the statutory parameters for voting, drop boxes are a novel creation of executive branch officials, not the legislature. The legislature enacted a detailed statutory construct for alternate sites. In contrast, the details of the drop box scheme are found nowhere in the statutes, but only in memos prepared by WEC staff, who did not cite any statutes whatsoever to support their invention.

Wisconsin Stat. § 6.855 identifies the sites at which in person absentee voting may be accomplished—either "the office of the municipal clerk" or "an alternate site" but not both. "An alternate site" serves as a replacement for "the office of the municipal clerk" rather than an additional site for absentee voting. Wisconsin Stat. § 6.87(4)(b)1. requires the elector to mail the absentee ballot or deliver it in person, "to the municipal clerk," which is defined to include "authorized representatives." This subparagraph contemplates only two ways to vote absentee: by mail and at "the office of the municipal clerk" or "an alternate site" as statutorily described. No third option exists.

                                                                                ***

The defendants contend "to the municipal clerk" encompasses unstaffed drop boxes maintained by the municipal clerk. A hyper-literal interpretation of this prepositional phrase, taken out of context, would permit voters to mail or personally deliver absentee ballots to the personal residence of the municipal clerk or even hand the municipal clerk absentee ballots at the grocery store. "Municipal clerk," however, denotes a public office, held by a public official acting in an official capacity when performing statutory duties such as accepting ballots. The statutes do not authorize the municipal clerk to perform any official duties related to the acceptance of ballots at any location beyond those statutorily prescribed.

The upshot

When ascertaining if a records requester is entitled to attorney's fees as a part of a mandamus action under the state's public records law, a party must "prevail[] in whole or in substantial part," which means the party must obtain a judicially sanctioned change in the parties' legal relationship. With respect to the mandamus action before us, the City properly applied the balancing test when it decided to temporarily withhold access to the draft contract in response to Friends' open records request. Accordingly, regardless of whether Friends may pursue fees after voluntary delivery of the requested record, Friends cannot prevail in its mandamus action and is not entitled to attorney's fees.

Background

Friends of Frame Park, a citizens' group, in October 2017 requested information about the city's plan to bring baseball to Waukesha and to Frame Park. The city rejected a request for a copy of the proposed contract with Big Top Baseball, saying it was still in negotiation and the city wanted to protect its bargaining position. The city said it would release the proposed contract after the Common Council took action on it.

The contract was on the Common Council agenda for Dec. 19, 2017. Friends sued on the day before the meeting for release of the records.

The following evening, the City's Common Council met. It is unclear from the meeting minutes whether, or to what extent, the draft contract was discussed. The minutes note the following with respect to Frame Park: "Citizen speakers registering comments against baseball at Frame Park"; the "City Administrator's Report" included a "Northwoods Baseball League Update"; and an "item for next Common Council Meeting under New Business" was to, "Create an ADHOC Committee for the purpose to address Frame Park and Frame Park issues." 

The city released the requested records on Dec. 20, even though the council had not voted on the contract.

Consistent with its explanation initially denying release, the City explained the documents "are being released now because there is no longer any need to protect the City's negotiating and bargaining position."

Friends then amended its complaint, asking the circuit court to hold that the City improperly withheld the draft contract. In advance of trial, the City filed a motion for summary judgment which the circuit court granted; Friends did not move for summary judgment. ...

Friends appealed, and the Court of Appeals reversed the lower court decision. The city appealed to SCOW.

The guts
​
Four justices agree that to "prevail[] in whole or in substantial part" means the party must obtain a judicially sanctioned change in the parties' legal relationship. Accordingly, a majority of the court adopts this principle. 

This conclusion arguably raises other statutory questions. Prior court of appeals cases have held that a requester could still pursue attorney's fees even if the records have been voluntarily turned over. This conclusion rested on its causation-based theory, however. The concurrence argues that under the proper statutory test we announce today, a mandamus action becomes moot after voluntary compliance, and record requesters have no separate authority to pursue attorney's fees. We save this issue for another day. Even if record requesters can pursue attorney's fees following release of the requested records, an award of fees would not be appropriate here. This is so because in temporarily withholding the draft contract, the City complied with the public records law. Applying the balancing test, the City pointed to the strong public interest in nondisclosure – namely, protecting the City's negotiating and bargaining position and safeguarding the Common Council's prerogative in contract approval. These considerations outweigh the strong public policy in favor of disclosure. Furthermore, the City recognized the balance of interests would shift after the Common Council meeting, and it properly disclosed the draft contract at that time. Therefore, the City did not violate the public records law. And thus, the requester did not and could not prevail in whole or substantial part in this action. Therefore, no judicially sanctioned change in the parties' relationship is appropriate and the requester is not entitled to any attorney's fees. 
                                                                             
                                                                                  ***
Section 19.37 of the state statutes provides that the record requester may be entitled to various damages and fees as a result of the mandamus action. Relevant to this case, the statute contains the following fee-shifting provision: "Except as provided in this paragraph, the court shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requestor if the requester prevails in whole or in substantial part in any action filed under sub. (1) relating to access to a record or part of a record. ..."  Besides attorney's fees, the law also specifies that the circuit court shall award actual damages if "the authority acted in a willful or intentional manner" and may award punitive damages if the authority "arbitrarily and capriciously denied or delayed response to a request or charged excessive fees."

The fee-shifting provision was comparable to one contained in the federal Freedom of Information Act, Hagedorn said.  A federal appeals court ruled that damages could be awarded if records were released prior to the conclusion of a FOIA case if bringing the case caused the records to be released. In 2001, however, the U.S. Supreme Court rejected that reasoning.

It expressly rejected ... the causation-based interpretation, concluding instead that "the term 'prevailing party' " refers to "one who has been awarded some relief by the court." Congress eventually adopted a law restoring the causation provision. The Wisconsin Legislature has not specifically embraced causation-based awards, Hagedorn said.

When the legislature uses a legal term of art with a broadly accepted meaning – as it has here with "prevails" ... we generally assume the legislature meant the same thing. If the idea that a party could prevail in a lawsuit in the absence of court action was unknown in Wisconsin when this statute was adopted, we should not read that interpretation into the statute now given the absence of any evidence that it was understood to have that meaning when enacted.

A causation or catalyst theory is not a comfortable fit with statutory text that allows recovery of attorney's fees "if the requester prevails in whole or in substantial part in any action."  The better course is to follow the United States Supreme Court's lead and return to a textually-rooted understanding of when a party prevails in a lawsuit. Absent a judicially sanctioned change in the parties' legal relationship, attorney's fees are not recoverable. ...

Without a causation-based theory governing the meaning of prevailing party under the statute, however, it is unclear whether voluntary compliance following the filing of a lawsuit could still allow a requester to pursue fees. We reserve this question for another day. Even if attorney's fees may be awarded after the voluntary production of records, the City here did not violate the law, as explained below. Friends therefore would not be entitled to any judicial relief – that is, it would not prevail in whole or substantial part – even if fees are available in this context. Accordingly, Friends is not entitled to attorney's fees either way.

                                                                                  ***

Invoking the language in Wis. Stat. § 19.85(1)(e) (exemptions to open meetings requirements) the City explained that "the contract [was] still in negotiation with Big Top." Withholding disclosure was important to "protect the City's negotiation and bargaining position" and "the City's ability to negotiate the best deal for the taxpayers." Disclosure "would substantially diminish the City's ability to negotiate different terms the Council may desire for the benefit [of] the City" and "compromise[]" "the City's negotiating and bargaining position." The City further explained that the "draft contract is subject to review, revision, and approval of the Common Council before it can be finalized, and the Common Council [has] not yet had an opportunity to review and discuss the draft contract." The City indicated it would disclose the draft contract after the Common Council had taken action.

The circuit court correctly concluded the reasons set forth in the City's letter supported temporarily withholding the draft contract. Without question, the public interest in matters of municipal spending and development is significant. There is good reason for the public to know how government spends public money. This ensures citizen involvement and accountability for public funds. However, contract negotiation often requires a different calculus. Wisconsin ... law identifies the public interest in protecting a government's "competitive or bargaining" position in adversarial negotiation. It is not uncommon for the state or local municipalities to negotiate certain contracts in private, especially in competitive business environments. ...

Under these circumstances, the City's interest in withholding the draft contract to protect its bargaining position until the Common Council had the opportunity to consider the contract outweighed the public's interest in immediate release. The City properly applied the balancing test and did not violate the public records law by temporarily withholding the draft contract, nor did it delay release of the contract unreasonably. Accordingly, regardless of whether the issue of attorney's fees is moot, Friends is not entitled to attorney's fees because it did not prevail in whole or in substantial part on the merits of its mandamus action.

Concurrence

The court of appeals has repeatedly failed to give the legal term of art in statute its accepted legal meaning. In at least six cases, the court of appeals has instead endorsed the now-defunct "catalyst theory," under which a party may be deemed to have prevailed – even in the absence of favorable relief from a court – if the lawsuit achieved at least some of the party's desired results by causing a voluntary change in the defendant's conduct.

In this case, the court of appeals erred in applying ... precedents, embracing a purposivist and consequentialist approach to statutory interpretation, in derogation of the textualist approach Wisconsin courts are bound to follow.  

I write separately because the majority/lead opinion does not acknowledge this case is moot, obviating any need to address the merits. All records were given to the requester before the circuit court ever rendered a decision. ... In this case, the act requested had already been performed, so neither the circuit court nor the court of appeals nor this court needed to address the merits of Friends' public records claim. Because this case is moot, we need not consider whether Friends is entitled to relief. Without favorable relief, Friends cannot recover attorney fees. Because the majority/lead opinion reaches the merits of this case without any explanation of what possible favorable relief could be granted, I respectfully concur.

After the public records statute damages section was enacted in 1982, the court of appeals adopted the catalyst theory, which conflicts with the longstanding meaning of what it means to prevail in a court case. A "fair reading" of a statute requires adherence to the statute's text as it was understood at the time of the statute's enactment. 

The upshot
​
The Fourth Amendment to the United States Constitution provides in relevant part: "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation . . . ." After Valiant M. Green was arrested for operating while intoxicated (OWI), law enforcement obtained a warrant to draw his blood.  Green now argues the facts supporting that warrant were insufficient to find probable cause. We disagree.

Background

Here, the circuit court issued a search warrant to draw Green's blood based on the affidavit of Kenosha Police Officer Mark Poffenberger. The affidavit took the form of a pre-printed document with blank spaces and check-boxes that Officer Poffenberger completed. It stated that around 1:19 p.m. on May 25, 2014, Green "drove or operated a motor vehicle at driveway of [Green's home address]" — the underlined portion being part of the preprinted form, and the remainder Officer Poffenberger's handwritten addition. Several checked boxes provided additional facts. First, Green was arrested for the offense of "Driving or Operating a Motor Vehicle While Impaired as a Second or Subsequent Offense, contrary to chapter 346 Wis.Stats." Second, Green "was observed to drive/operate the vehicle by" both "a police officer" and "a citizen witness," whose name was written in by Officer Poffenberger. A third checked box was labeled "basis for the stop of the arrestee's vehicle was," and Officer Poffenberger supplied "citizen statement" by hand.

The affidavit also described Green's statements and the officer's observations. According to Officer Poffenberger's handwritten note, Green "admitted to drinking alcohol at the house." And Officer Poffenberger checked several boxes noting that when he made contact with Green, he observed a strong odor of intoxicants, red/pink and glassy eyes, an uncooperative attitude, slurred speech, and an unsteady balance. Finally, Officer Poffenberger checked boxes indicating that Green refused to perform field sobriety tests, refused to submit to a preliminary breath test, and was "read the 'Informing the Accused' Statement . . . and has refused to submit to the chemical test requested by the police officer."
​
After the warrant issued, medical staff drew Green's blood. It revealed a blood alcohol level of 0.214 g/100 mL, an amount well above the legal limit. The State charged Green with fourth offense OWI, fourth offense operating with a prohibited alcohol concentration (PAC), and resisting an officer. Green moved to suppress the results of the blood draw on the grounds that the warrant was deficient. The circuit court denied the motion. It concluded that even if the court erroneously issued the warrant (the court thought it had), the error did not merit suppression. At trial, the jury found Green guilty of OWI and PAC. The circuit court granted the State's motion to dismiss the OWI count and entered judgment against Green on the PAC count. The court of appeals summarily affirmed, holding the circuit court properly issued the warrant in the first place. We granted Green's petition for review.

The guts

When we examine whether a warrant issued with probable cause, we review the record that was before the warrant-issuing judge. Specifically, we look at the affidavits supporting the warrant application and all reasonable inferences that may be drawn from the facts presented. However, our review is not independent; we defer to the warrant-issuing judge's determination "unless the defendant establishes that the facts are clearly insufficient to support a probable cause finding." Probable cause exists where, after examining all the facts and inferences drawn from the affidavits, "there is a fair probability that contraband or evidence of a crime will be found in a particular place."
​
                                                                                     ***

Before us, Green continues to argue the warrant was issued without probable cause. He focuses not on the indicia of intoxication, but the location where he operated his vehicle. Green's main argument is that the handwritten word "driveway" on the form alleges only that he drove within the confines of his driveway. This matters because the statute criminalizing OWI and PAC offenses — Wis. Stat. § 346.63(1)(a), (1)(b) — does "not apply to private parking areas at . . . single-family residences." Rather, the laws apply "upon highways" and "premises held out to the public for use of their motor vehicles." Green's driveway is not a highway nor is it a (sic) held out to the public for motor vehicle use. Thus, because Green would not have committed an OWI or PAC by operating his vehicle on his driveway, Green contends the affidavit alleged only noncriminal activity and fell short of showing probable cause that any criminal activity occurred.

Green's argument fails, however, because reasonable inferences from the affidavit support finding probable cause that Green drove on a public road. And that's all that is needed. "Probable cause is not a technical, legalistic concept but a flexible, common-sense measure of the plausibility of particular conclusions about human behavior." So when we examine a warrant application, the "test is not whether the inference drawn is the only reasonable inference." Rather, the "test is whether the inference drawn is a reasonable one." This warrant passes the test.

Following the pre-printed word "at" is space for a location, which Officer Poffenberger identified as the driveway of Green's residential address. It is reasonable to read the officer's addition of the phrase "driveway of [residential address]" to refer to a specific location on the road, much like an intersection would provide a similarly specific location. The affidavit does not say Green's driving occurred merely in his driveway, but at his driveway — a location that can reasonably be read to refer to a position on the road adjacent to his driveway. Other portions of the affidavit are consistent with this reading. The affidavit points to two witnesses who observed Green "drive/operate the vehicle": a police officer and a named citizen witness. And the stop was occasioned by a citizen statement; someone besides the officer saw something that occasioned a call to the police. Viewing the entire affidavit together, a judge could reasonably infer that Green operated his vehicle on the road while intoxicated, not solely in his driveway. This "is not the only inference that can be drawn, but it is certainly a reasonable one."
​
Examining the totality of the facts laid out in the affidavit, we conclude Green has not met his burden to show the affidavit was clearly insufficient to support a finding of probable cause. Accordingly, Green's challenge to the warrant and motion to suppress the evidence obtained thereby fails.

The dissent

Confronted with the absence of probable cause here, the majority contrives to manufacture its presence. The affidavit in support of the warrant said that Green drove his car while intoxicated "at his driveway." But this isn't a crime. The law requires that one drive on a highway, and Green's private driveway obviously does not meet that requirement.
​
In retrospect, even the warrant-issuing judge in this case acknowledged that the facts alleged in the affidavit in support of the search warrant did not amount to probable cause. He recognized that "I did make an error in not frankly asking the officer" for "more data."

                                                                                   ***

​First, the majority errs by drawing several inferences from an affidavit that does not allege a crime has actually been committed. Wisconsin's OWI laws apply only to highways and "premises held out to the public for use of their motor vehicles." Such laws explicitly do not apply to "private parking areas" at single- family residences.

​                                                                                 ***

Despite the fact that the OWI statutes apply only on highways and not private roads or driveways, the majority insists that the handwritten "driveway" could "refer to a specific location on the road, much like an intersection would provide a similarly specific location." But the affidavit did not say "at the intersection" or "on the road adjacent to the driveway." The majority would have us believe that "at the driveway" does not mean what it says. How can it be reasonable to infer that a crime has been committed when the only reasonable inference that can be drawn from the affidavit is that Green was operating a vehicle at his own driveway?

The upshot

We conclude that because the State's significant pretrial interests in bringing a defendant who meets each one of the factors set out in Sell v. United States to competency for trial and providing timely justice to victims outweigh upholding a defendant's liberty interest in refusing involuntary medication at the pretrial stage of criminal proceedings . . . (the) automatic stay of involuntary medication orders pending appeal does not apply to pretrial proceedings. ​

Background

On December 27, 2019, the State filed a criminal complaint charging Green with first-degree intentional homicide with use of a dangerous weapon. Pretrial, defense counsel raised reason to doubt Green's competency to proceed. The circuit court ordered a competency examination, which was completed by Dr. Craig Schoenecker and filed with the court. At the competency hearing, Dr. Schoenecker testified that Green was not competent but could be restored to competency through anti-psychotic-type medication within the 12-month statutory timeframe. ...

After the hearing, the circuit court found Green incompetent. Accordingly, the court entered an order of commitment for treatment with the involuntary administration of medication. Following this determination, Green appealed and filed an emergency motion for stay of the involuntary medication order pending appeal, which was automatically granted by the circuit court pursuant to our decision in (State v) Scott. 

The State responded with motions to lift the automatic stay and to toll (pause) the statutory time period to bring a defendant to competence, both of which were granted by the circuit court. Green appealed. He moved for relief pending appeal, which included reinstatement of the temporary stay. The court of appeals reversed the circuit court's involuntary medication order and its order lifting the automatic stay of involuntary medication. In addition, the court of appeals determined that the circuit court lacked authority to toll the statutory time period to bring Green to competency. We granted the State's petition for review. 

Upon granting review, the parties submitted briefs addressing the circuit court's ability to toll the limits on the maximum length of commitment for competency restoration. However, following oral argument, additional briefing was ordered to answer whether the automatic stay required by Scott applied to pretrial proceedings. We determine: (1) whether Scott's automatic stay applies to pretrial competency proceedings and (2) whether Wis. Stat. § 971.14(5)(a)1. permits tolling the 12-month limitation provided to restore a defendant to competency. ​

The guts
​
If a defendant is found to be incompetent, a court may allow the government to confine and involuntarily medicate the defendant if certain criteria are met. 

In Scott, the court ruled that involuntary medication orders are subject to an automatic stay pending appeal to preserve the defendant's 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs.'

In Sell, the Supreme Court set forth criteria for determining when the government may be allowed to involuntarily medicate a defendant for the purpose of making the defendant competent to stand trial.  In short summation, a court must find that: (1) there are important government interests at stake, including bringing a defendant to trial for a serious crime; (2) involuntary medication will significantly further those state interests; (3) involuntary medication is substantially likely to render the defendant competent to stand trial; and (4) administration of the drugs is in the patient's best medical interest in light of his medical condition. However, postconviction circumstances that call for governmental involuntary medication are "rare."

As with (a prior defendant's) concern in a postconviction context, significant, competing interests underlie our consideration of the involuntary administration of medication in a pretrial context. The defendant holds the same substantial liberty interest in refusing involuntary medication, regardless of the stage of proceedings. Once a defendant is subject to involuntary medication, irreparable harm could be done. On the other hand, the State has a significant interest in bringing a defendant to trial. The State's power "to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace." Further, unlike postconviction proceedings, in pretrial proceedings, the State has yet to employ a significant portion of the criminal justice process to try to achieve justice and uphold the considerable victim and community interests at stake. For example, victims are guaranteed a right to "justice and due process," as well as a "timely disposition of the case, free from unreasonable delay." Wis. Const. art. I, § 9m(2)(d). The "unreasonable delay" phrase is part of the "Marsy's Law" amendment to the state constitution approved by voters last year. And while treatment to competency is not always necessary for postconviction proceedings, the State is required to bring a defendant to competency before a defendant can be tried. 

The terms of (state law) limit the treatment time for an incompetent defendant to "a period not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less." As soon as a defendant is in custody for treatment, the statutory time during which he or she may be held before trial begins. 

                                                                                   ***
If the State is unsuccessful at restoring competency for trial, the likelihood of which is increased if treatment is prevented by the automatic stay of Scott, a defendant must be discharged from commitment and released unless civil commitment proceedings are commenced. . . .

Since our decision in Scott, the State has been trapped on both ends of the pretrial competency process. On one hand, (statute) permits a defendant to be held for 12 months to be brought to competence. On the other hand, Scott's automatic stay of the involuntary medication order keeps the State from starting the treatment that has been ordered by a court. While the State was given some leeway in the form of a modified Gudenschwager test, this is a high burden, and when employed, can use up the entire 12-month maximum commitment period that is permitted for treatment. And, if the State is not able to satisfy this Gudenschwager test and the time during which treatment can be required expires, the State is without recourse for prosecution. This is an unexpected consequence of the automatic stay that we created in Scott. 

The case: Billie Johnson v. Wisconsin Elections Commission

Concurrence: Justice Rebecca Grassl Bradley (49 pages), joined by Justices Patience D. Roggensack and Annette K. Ziegler

Concurrence: Justice Brian Hagedorn (4 pages)

Dissent: Justice Jill J. Karofsky (39 pages), joined by Justices Ann Walsh Bradley and Rebecca F. Dallet (See part 2)

​Majority opinion: Ziegler (50 pages), joined by Grassl Bradley, Hagedorn, and Roggensack (See part 1)

Grassl Bradley's concurrence

This redistricting cycle proceeded in a manner heavily focused on color, supposedly for remedial purposes, but accomplishing nothing but racial animosity as showcased by the dissent's race-baiting rhetoric and condescension toward people of color. 

The United States Supreme Court rejected Homer Plessy's argument that racial segregation violates the Fourteenth Amendment, to its everlasting shame. Plessy exists in our nation's history as a stain, dishonoring America's quest for equality under the law for all, which began with the founding. At times, the United States has strayed from this sacred principle, often on the basis of sham social science of the day promoting the repugnant notion that people of different races would be better off if the law distinguished between them. Allowing social science to infect constitutional analysis inevitably "result[s] in grave abuses of individual rights and liberty." 
 
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Judges can certainly consider whether a particular government action has had a disparate impact on minorities – our color-blind Constitution does not countenance ignoring incidents of discrimination. Under a color-blind approach, however, this court may not order a remedy that purports to address racial discrimination by discriminating on the basis of race. The Constitution prohibits this court from sorting people on the basis of their race.

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Imposing a race-based redistricting plan, without strong evidence of necessity, endorses the stereotype that people of the same race must think alike and must think differently than people of other races. Governor Evers' plan, adopted by this court on March 3, imposed "distinctions . . . based upon race and color alone," which is "the epitome of that arbitrariness and capriciousness constitutionally impermissive under our system of government."

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The inconclusive pseudo-science presented to this court fell far short of justifying race-based redistricting, as the majority opinion thoroughly explains. It amounted to little more than selectively-cited election data, which appears to have been researched only after-the-fact. That is to say, mapmakers seem to have used racial stereotypes, not legitimate social science, to heuristically draw maps that segregated people based on race. No such "shortcuts" are allowed for proponents of race-based redistricting as a remedy for past discrimination. 

The dissent's ambitious attempt to paint Milwaukee County as the Jim Crow-era South reflects "an effort to cast out Satan by Beelzebub." The dissent would remedy what it perceives as racial disparities by literally "draw[ing] lines between the white and the black" with no apparent recognition that doing so replaces one devil with another. 

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The people have a "right to know" what happened this redistricting cycle. Unfortunately, media coverage on this case, like on so many others, has been skewed by partisan pundits disappointed in the "results." 

One media outlet went so far as to run a subheadline attacking the motives of the nation's highest court: "The justices [of the United States Supreme Court] are concerned that Wisconsin's legislative maps may give too much political power to Black people." Ian Millhiser, Black Voters Suffer Another
Significant Loss in the Supreme Court, Vox (Mar. 23, 2022)  https://www.vox.com/2022/3/23/22993107/supreme-court-wisconsinrace-gerrymander-voting-rights-act-legislature-electionscommission. Worse still, while accusing the justices of indulging an "inflammatory assumption," specifically, "[t]hat legislative maps with fewer Black-majority districts are often preferred to those that give more power to Black voters," the author made an inflammatory assumption of his own, seemingly designed to foster racial tension. See id.; see also Mark Joseph Stern, The Supreme Court's Astonishing, Inexplicable Blow to the Voting Rights Act in Wisconsin, Slate (Mar. 23, 2022), https://slate.com/news-and-politics/2022/03/supreme-court-voting-rights-shredder-wisconsin.html.

Governor Evers' oddly shaped districts are numerous — and many of the odd shapes in his plan are analogous to the PMC's (People's Maps Commission). For example, Governor Evers redrew Senate District 4, currently represented by Sen. Taylor, to extend into Waukesha and Ozaukee Counties. The result was a substantial decrease in BVAP (Black voting-age population). Under his plan, Assembly District 11 would extend to Mequon. In critiquing a similar feature of the PMC's map, Rep. LaKeshia Myers rhetorically asked, "[w]hy? That's going to cross the county line. Doesn't make sense. Doesn't make sense at all. . . . That's not going to stick when it comes to people's interest. That's not going to stick when it comes to thinking you're going to elect people that look like me."  Without any VRA (Voting Rights Act)-grounded justification, Governor Evers violated Article IV, Section 4 the Wisconsin Construction, which requires assembly districts "to be bounded by county, . . . town, or ward lines[.]" ​

Governor Evers' plan also would have harmed the Black community by forcing it to bear the brunt of disruption stemming from redistricting. While demonstrating high overall core retention, Governor Evers concentrated major changes in Milwaukee County, proposing what the Legislature fairly labelled a "most-change Milwaukee" map. According to the Legislature, Governor Evers' plan would have retained merely 72.6% of Milwaukee-area voters in their current district. In accordance with the principles expounded in our November 30 opinion, this court rightly rejects a "most-change Milwaukee," as the Legislature did with a bipartisan vote months ago. "State authorities" should not "localize the burdens of race reassignment" on a particular community. It leaves "the impression of unfairness" when a discrete and insular minority "disproportionately bears the adverse consequences of a race-assignment policy."