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. George Steven Burch
 
Majority/Lead Opinion: Justice Brian Hagedorn (20 pages), joined by Justices Annette K. Ziegler, Patience Roggensack, and Rebecca Grassl Bradley; joined in part by Justices Rebecca F. Dallet and Jill J. Karofsky.

Concurrence: Grassl Bradley (20 pages).

Concurrence in part, dissent in part: Dallet (18 pages), joined by Karofsky and Justice Ann Walsh Bradley (except for a footnote).

Dissent: Justice Ann Walsh Bradley (11 pages).

The upshot

We conclude that even if some constitutional defect attended either the initial download or subsequent accessing of the cell phone data, there was no law enforcement misconduct that would warrant exclusion of that data. Therefore, we conclude the circuit court correctly denied Burch's motion to suppress that data. ​

Background

Nicole VanderHeyden went to a bar with her boyfriend, Douglass Detrie, on May 20, 2016. They got separated and got into an argument via phone call and text messages. VanderHeyden's body was found the next day near a field. Her bloody clothing was found near a freeway ramp, and some of her blood and hair were found outside the house of her neighbor. Detrie was initially a suspect, but became less of one when authorities learned his Fitbit logged only 12 steps during the hours around VanderHeyden's death.

The Brown County Sheriff's Department led the homicide investigation. The Green Bay Police Department, meanwhile, was looking into a stolen vehicle report, a hit-and-run, and a vehicle fire all involving the same auto. George Burch was a suspect and Officer Robert Bourdelais spoke to him on June 8, 2016. Burch denied involvement in the vehicle crimes, but said he was at a bar that night and texted a woman who lived nearby. Bourdelais asked to see the texts and Burch agreed. Bourdelais said he would rather download information from the phone because it was easier than taking pictures and scanning. Burch agreed to allow Bourdelais to do that and Bourdelais promised to immediately return the phone.

Burch signed a consent form. The form read: "I George Stephen Burch . . . voluntarily give Det. Danielski, Officer Bourdelais or any assisting personnel permission to search my . . . Samsung cellphone."

The Police Department's computer specialist downloaded all the data on the phone, made it into a readable format, and put it into long-term storage.

Two months later, Brown County sheriff's detectives matched a DNA sample from VanderHeyden's sock to Burch. The detectives searched records for police contacts with Burch and discovered the Green Bay Police Department's file stemming from the auto crimes investigation. They also obtained Burch's cell phone data that Green Bay police had stored.

The Sheriff's Office detectives reviewed the data downloaded from Burch's phone. They noted that Burch's internet history included 64 viewings of news stories about VanderHeyden's death. And they also discovered Burch had an email address associated with a Google account. In light of this discovery, the Sheriff's Office detectives procured a search warrant to obtain the "Google Dashboard" information from Google corresponding to Burch's email address. The data Google provided contained location information that placed Burch's phone at a bar VanderHeyden visited the night of her death, a location near VanderHeyden's residence, the place where VanderHeyden's body was found, and the on-ramp where VanderHeyden's discarded clothing was discovered.

Burch was charged with VanderHeyden's death.

Before trial, Burch sought to suppress the data obtained from his cell phone for two reasons: (1) the Police Department's extraction of the data exceeded the scope of Burch's consent by obtaining all the phone's data, rather than just the text messages; and (2) the Sheriff's Office unlawfully accessed the data in August 2016. The circuit court denied Burch's motion. It concluded that the conversation between Burch and Officer Bourdelais did not limit the scope of Burch's consent, and that "the sharing of such information, without first obtaining a warrant, is a common and long-understood practice between related departments." 

Burch also moved to exclude evidence related to Detrie's Fitbit device. He argued the State must produce an expert to establish the reliability of the science underlying the Fitbit device's technology and that the State failed to sufficiently authenticate the records. The circuit court disagreed and refused to exclude the Fitbit evidence related to step-counting.

A jury convicted Burch and Brown County Circuit Judge John Zakowski sentenced him to life in prison.

Burch appealed, challenging the denial of his two pre-trial motions.

The guts

Before us, Burch argues the cell phone data was obtained in violation of the Fourth Amendment for three reasons: (1) the Police Department obtained the data without his consent; (2) the Police Department unlawfully retained the data after its investigation into the vehicle-related incidents had ended; and (3) the Sheriff's Office unlawfully accessed the data in the Police Department's records without a warrant. However, for the reasons that follow, regardless of whether the data was unlawfully obtained or accessed, we conclude suppression of the data is not warranted under the exclusionary rule....

The exclusionary rule is a judicially-created, prudential doctrine designed to compel respect for the Fourth Amendment's constitutional guaranty. In recent years, the United States Supreme Court has significantly clarified the purpose and proper application of the exclusionary rule. In Davis, the Supreme Court explained that prior cases suggested that the exclusionary rule "was a self-executing mandate implicit in the Fourth Amendment itself." However, more recent cases have acknowledged that the exclusionary rule is not one of "reflexive" application, but is to be applied only after a "rigorous weighing of its costs and deterrence benefits." Thus, in both Herring and Davis, the Court explained that to "trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system...."

Burch argues that the Sheriff's Office should have obtained a warrant before accessing the Police Department's data. But no case from this court or the federal courts has suggested that accessing evidence previously obtained by a sister law enforcement agency is a new search triggering a renewed warrant requirement. Rather, the Sheriff's Office detectives reasonably relied on Burch's signed consent form and Officer Bourdelais' narrative to conclude that Burch consented to the download of the data. They had no reason to think they were engaging in illegal activity by reviewing interdepartmental files and evidence. Far from it. Reliance on well-documented computer records, like the detectives did here, is something the Supreme Court has characterized as objectively reasonable police conduct. Thus, there was no misconduct that would "render[] the evidence suppressible under the exclusionary rule."

Moreover, even if the Sheriff's Office's actions could be labeled as some kind of misconduct, nothing they did would rise beyond mere negligence....

In addition, the societal cost of excluding the cell phone data would far outweigh any deterrence benefit that exclusion might provide....

                                                                                        ***

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: Clean Wisconsin, Inc. v. Wisconsin Department of Natural Resources

Majority/Lead Opinion: Justice Jill J. Karofsky (25 pages),  joined by Justices Ann Walsh Bradley, Rebecca F. Dallet, and Annette K. Ziegler

Concurrence: Dallet (3 pages), joined by Walsh Bradley and Karofsky

Dissent: Justice Patience Roggensack, joined by Justice Rebecca Grassl Bradley 

Dissent: Grassl Bradley (6 pages)

Justice Brian Hagedorn did not participate.

First, a footnote from Karofsky:

Although the caption of this case is Clean Wisconsin v. DNR, that is a misnomer. Clean Wisconsin and the DNR are now aligned in view, and the Legislature and Kinnard are likewise aligned.

Kinnard Farms Inc. and the state Legislature are intervenors in the case opposing Clean Wisconsin and the five named petitioners: Lynda Cochart, Amy Cochart, Roger DeJardin, Sandra Winnemueller, and Chad Cochart.

The upshot

This case is about whether the Wisconsin Department of Natural Resources (DNR) had the explicit authority to impose an animal unit maximum condition and an offsite groundwater monitoring condition upon a Wisconsin Pollutant Discharge Elimination System (WPDES) permit it reissued to Kinnard Farms, Inc. for its concentrated animal feeding operation (CAFO). The circuit court decided that the DNR had the explicit authority to do so, and the court of appeals certified this appeal to us. 

We conclude that the DNR had the explicit authority to impose both the animal unit maximum and off-site groundwater monitoring conditions upon Kinnard's reissued WPDES permit pursuant to Wis. Stat. §283.31(3)-(5) and related regulations. Accordingly, we affirm the order of the circuit court. 

Background

Kinnard operates a large CAFO in the Town of Lincoln. In 2012, Kinnard wanted to expand its dairy operation by building a second site and adding 3,000 dairy cows. (A CAFO has at least 1,000 animals.) 

The petitioners launched an appeal with the DNR of the WPDES permit the agency granted for the expansion, which was a quarter-mile away from the original facility.

The petitioners alleged that the reissued WPDES permit was inadequate because, among other failings, it did not set a "maximum number of animal units" or "require monitoring to evaluate impacts to groundwater." 

The case was heard by an administrative law judge.

The ALJ conducted a four-day evidentiary hearing during which Town of Lincoln community members who lived and worked near Kinnard's CAFO testified about the contamination of their well water and the impact of that contamination on their businesses, homes, and daily lives. The community members conveyed their belief that Kinnard's CAFO was the source of the well water contamination. The ALJ also heard testimony from a number of experts who established that up to 50% of private wells in the Town of Lincoln were contaminated and that 30% of wells tested positive for E. coli bacteria Additionally, an expert testified about the particular features of the land underlying Kinnard's CAFO which made that land extremely susceptible to groundwater contamination. According to the testimony, pollution could travel over half a mile through groundwater into wells in 24 hours.​

Based on the evidence presented, the ALJ concluded that the "level of groundwater contamination including E. coli bacteria in the area at or near the [second] site is "very unusual." Additionally, the ALJ identified "what could fairly be called a groundwater contamination crisis in areas near the site." The ALJ further found that "[t]he proliferation of contaminated wells represents a massive regulatory failure to protect groundwater in the Town of Lincoln." Of import to this appeal, the ALJ determined that, based on the facts presented, the DNR had "clear regulatory authority" to impose the two conditions disputed in this action upon Kinnard's reissued WPDES permit. 

The ALJ directed the DNR to set a maximum number of animals allowed at the facility and to establish an off-site water monitoring program.

The DNR asked the state Department of Justice in August 2015 to opine on the DNR's authority to impose the ALJ's conditions on Kinnard in light of  §227.10(2m), which limits the regulatory powers of agencies. The DOJ opined that the DNR did not have the authority. The DNR reversed the directives to set the animal maximum and establish a groundwater monitoring program.

The five individual petitioners and Clean Wisconsin contested the decision in two separate court actions, which were consolidated in Dane County Circuit Court, which reversed the DNR's decision to cancel the directives. The DNR and Kinnard appealed, and the Court of Appeals sent the case to the Supreme Court. The court granted the Joint Committee on Legislative Organization permission to intervene.

The upshot

The state Supreme Court was directed by the Seventh Circuit Court of Appeals to answer a specific question:
​
"For purposes of determining whether two or more schools are "private schools affiliated with the same religious denomination" for purposes of Wis. Stat. [§] 121.51, must the state superintendent rely exclusively on neutral criteria such as ownership, control, and articles of incorporation, or may the superintendent also take into account the school's self-identification in sources such as its website or filings with the state." 

The Supreme Court asked the parties whether it should revisit two precedential decisions it relied on in its deliberations....

The cases were State ex rel. Vanko v. Kahl and Holy Trinity Community School, Inc. v. Kahl.  None asked for reconsideration.

                                                                                    ***

We conclude that, in determining whether schools are "affiliated with the same religious denomination" pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings.

Accordingly, we answer the certified question and remand to the United States Court of Appeals for the Seventh Circuit for further proceedings. 

Background

St. Augustine is a private, religious school located within the boundaries of the Friess Lake School District (the School District). On its website, St. Augustine describes itself as "an independent and private traditional Roman Catholic School." 

The Forros and St. Augustine plaintiffs sought from Friess Lake schools transportation for the Forros' children to and from St. Augustine.

In the request, St. Augustine asserted that it is unaffiliated with the Archdiocese of Milwaukee. It stated: "Our governing body is our Board of Directors and we receive no funding from nor communicate with the Diocese on matters of education." As such, St. Augustine distinguished itself from St. Gabriel Catholic School, a diocesan Catholic school also located within the boundaries of the School District.

The School District denied St. Augustine's request. In doing so, it noted that the Forros' address "is within the boundaries already approved for a Catholic School." Because the School District already bused students to St. Gabriel, it determined that it could not approve St. Augustine's request as it would constitute an overlapping attendance area. 

With St. Augustine and the School District at odds, they sought a determination from the Superintendent. As it did before the School District, St. Augustine argued that it is not affiliated with the same religious denomination as St. Gabriel within the meaning of (the law).

In support of this argument, it asserted:

"Neither St. Augustine School, Inc., nor the school operated by the corporation, has ever been affiliated by control, membership, or funding with the Archdiocese of Milwaukee. No representative of the Archdiocese or a parish church of the Archdiocese has ever been a director or officer of St. Augustine School, Inc. No employees of St. Augustine School have ever been hired or compensated by the Archdiocese or a parish church of the Archdiocese. None of the religious instructors at St. Augustine School have ever been employed, assigned, or compensated for their work at St. Augustine School by the Archdiocese or a parish church of the Archdiocese."

Then-Superintendent of Public Instruction Tony Evers denied the transportation request.

He concluded that "St. Augustine School, Inc. is a private, religious school affiliated with the Roman Catholic denomination." Further, he determined that "[t]he District already provides transportation to students attending St. Gabriel School, another private, religious school affiliated with the Roman Catholic denomination, the attendance area of which is co-extensive with the attendance area of the District." As a result, the Superintendent concluded that St. Augustine's attendance area overlaps that of St. Gabriel and thus "the Friess Lake School District is not required to provide transportation to students attending St. Augustine School, Inc."

Evers examined school documents, such as bylaws and papers associated with a school name change and found that they were not useful in determining the school's religious v. non-religious nature or its affiliation with a particular denomination. Evers turned to St. Augustine's own website.

Relying on statements on St. Augustine's website, the Superintendent agreed with the School District that St. Augustine is affiliated with the Roman Catholic denomination. He cited in his decision "two of a number of statements in the website pages from which any reasonable person would conclude the School is a religious school affiliated with the Roman Catholic denomination." The first of these statements sets forth that St. Augustine is "an independent and private traditional Roman Catholic School . . . [that is] an incorporation of dedicated families, who believing that all good things are of God, have joined together to provide the children of our Catholic community with an exceptional classical education." Additionally, the website provides: "[St. Augustine] loves and praises all the traditional practices of the Catholic faith."

St. Augustine sued, alleging its First Amendment free exercise of religion rights were violated. A federal judge sided with Evers; St. Augustine appealed and the Seventh Circuit Court of Appeals affirmed the district court. 

The Seventh Circuit majority saw no free exercise problem with the Superintendent and School District's application of (the law), determining that "[t]he reason why St. Augustine cannot demand services within its desired attendance zone is not because it is a Catholic school; it is because – by its own choice – it professes to be affiliated with a group that already has a school in that zone."

St. Augustine appealed again, this time to the U.S. Supreme Court. That court vacated the Seventh Circuit's decision and remanded to the Seventh Circuit, which then sent its question to the Wisconsin Supreme Court.

The guts

State law includes this definition of a private school attendance area:

[T]he geographic area designated by the governing body of a private school as the area from which its pupils attend and approved by the school board of the district in which the private school is located. If the private school and the school board cannot agree on the attendance area, the state superintendent shall, upon the request of the private school and the board, make a final determination of the attendance area. The attendance areas of private schools affiliated with the same religious denomination shall not overlap unless one school limits its enrollment to pupils of the same sex and the other school limits its enrollment to pupils of the opposite sex or admits pupils of both sexes. 

The natural question that arises from the definition of "attendance area" is what it means for private schools to be "affiliated with the same religious denomination." After all, assuming that schools are co-educational and not single-sex, only one school of each "religious denomination" may receive the transportation benefit in a single attendance area. 

This court first addressed this language in 1971 in State ex rel. Vanko v. Kahl. In Vanko, the court addressed a constitutional challenge to the attendance area statute.

The court acknowledged that there would be a constitutional problem if the statute were interpreted to include "a restriction placed upon children attending religious schools and not placed upon those attending private, secular schools." This problem would arise because "[r]eligious affiliation would be the sole basis of the classification." Accordingly, the court engaged in a saving construction to avoid the constitutional infirmity, interpreting the statute to apply to both religious and nonreligious schools....

In a later case, Holy Trinity Community School, Inc. v. Kahl, the court found that a religious school's corporate charter and bylaws  are generally enough to show that it is independent of, and unaffiliated with, a religious denomination. Further inquiries would impermissibly involve the state in religious affairs.
                                                                                    ***
St. Augustine argues that the manner in which the Superintendent considered such information impermissibly places the Superintendent in the position to decide "what is Catholic" and thus constitutes an excessive entanglement with religion. In contrast, the Superintendent and the School District advance that simply accepting St. Augustine's self-identification does not require any investigation at all or any determination of whether St. Augustine is Catholic – they are simply taking St. Augustine at its word....

Vanko established that "affiliated with the same religious denomination" is "the test of affiliation in a single school system rather than operation by a single agency or set of trustees or religious order within a particular religious denomination." It further establishes that the statute applies to both religious and secular schools "affiliated or operated by a single sponsoring group." 

Holy Trinity is particularly apt in guiding our approach to the certified question. There, the court engaged in a similar exercise of line-drawing to that which we undertake in the instant case. The line the Holy Trinity court drew between the constitutional and the unconstitutional was at the investigation and surveillance of a school's religious practices. With regard to statements made by a school, the court set forth: "We are obliged to accept the professions of the school and to accord them validity without further inquiry."

Just as in Holy Trinity, accepting a school's professions that are published on its public website or set forth in filings with the state does not necessarily require any investigation or surveillance into the practices of the school. It need not require any religious inquiry at all.

As long as the Superintendent considers the school's professions and not its practices, the Superintendent remains on the correct side of the line. In other words, a superintendent attempting to determine that a school is affiliated with a specific religious denomination may rely on any evidence of affiliation between the school and a denomination that does not violate the First Amendment and that does not inquire into the religious beliefs of the school or the denomination....

Vanko highlighted that "affiliated with the same religious denomination" is the test to be used within a school system "rather than operation by a single agency or set of trustees or religious order within a particular religious denomination." 

We thus conclude this methodological inquiry, determining that in examining whether schools are "affiliated with the same religious denomination,", the Superintendent is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings. 

Concurrence:

The Seventh Circuit Court of Appeals poses a methodological question to this court: what evidence may be considered when determining whether private schools are "affiliated with the same religious denomination" under (Wisconsin law)? The parties agree the answer includes both the self-representations of a school as well as corporate documents. In a narrow opinion, the majority reiterates this conclusion, which I agree with and join. However, this answer may not be of much assistance to the Seventh Circuit without the requisite statutory analysis explaining what this information may be used for under the law. Therefore, I write separately to examine what a "religious denomination" is under the statute and what it means for a school and a religious denomination to be "affiliated with" one another....

As the subsequent analysis will show, a religious denomination under the law is not the same thing as a religious faith; rather, statutory context reveals that "religious denomination" is a kind of religious organization. A  school – itself an organizational entity – must be "affiliated with" this type of religious organization. And "affiliated with" in this context involves a mutual organizational relationship. Both the private school and the religious denomination must agree to be affiliated with each other. This statutory inquiry is organizational, not theological. 

Therefore, (the law) prohibits overlapping attendance areas only when multiple schools have a mutual organizational relationship with a single religious denomination. In answer to the Seventh Circuit's certified question, a school's general description of its religious beliefs is unlikely to constitute relevant evidence because a statement of faith, even shared faith, does not demonstrate a mutual organizational relationship with a religious denomination. Affiliation requires more than a shared faith. On the other hand, a school's statement on its website or elsewhere that it is or is not affiliated with a religious denomination is relevant evidence of a mutual organizational relationship. Likewise, corporate documents, by-laws, and other types of organizational documents can also (oftentimes conclusively) demonstrate the presence or lack of a mutual organizational relationship between a school and a religious denomination.

                                                                                    ***
The phrase "religious denomination" appears in more than a dozen statutory sections. Many of these are in Chapter 187, titled "Religious Societies," which governs the state's relationship with religious organizations. These sections describe how religious organizations meet, incorporate, govern themselves, and own or manage property....

The statutory context paints a clear picture. When the legislature uses the phrase "religious denomination," it is referring to an organizational entity. To be sure, a religious denomination need not take a specific corporate form under Wisconsin law. As the majority observes, "'religious denomination' is a broader category than 'corporation.'"  But every single use of the phrase in the Wisconsin statutes demonstrates that a "religious denomination" is an organizational entity, not a synonym for religious faith generally. Thus, when (the law) asks whether two schools are "affiliated with the same religious denomination," the question is not whether both schools share the same creed, but whether they are both affiliated with a particular kind of religious organization – a religious denomination....

It is one thing for a school to self-declare their allegiance to a particular religious faith. It is quite another to affiliate with a particular religious organization without that organization's agreement. If a private school could unilaterally affiliate itself with a religious organization, it would deprive that organization of its liberty to decide with whom and with which organizations it chooses to associate. On this basis alone, the most reasonable reading of "affiliated with"...requires some mutual relationship between the private school and the religious denomination, whereby both agree to be affiliated.
                                                                                    ***
In answer to the certified question, I join the majority's conclusion that statements of affiliation by a school on its website, in filings with the state, or otherwise, along with corporate documents, may be permissible sources of evidence regarding whether two schools are affiliated with a religious denomination. This statutory inquiry, however, is organizational, not theological. A religious denomination under the law is a kind of religious organization, not a religious creed. And a school is affiliated with a religious denomination if there exists a mutual organizational relationship between the private school and the religious denomination. With this understanding, I respectfully concur.

The upshot

The court of appeals certified the following question: "whether a consensual encounter becomes an unconstitutional seizure under the Fourth Amendment when an officer requests and takes an individual's driver's license to the officer's squad car without reasonable suspicion." Accordingly, we review the Circuit Court of Sheboygan County's judgment of conviction of Heather VanBeek for possession of methamphetamine and drug paraphernalia. VanBeek's conviction arose from a search of her vehicle that she contends violated her right to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution. 

On the certified question, we conclude that the answer depends on the totality of circumstances surrounding an encounter. Further, while VanBeek was not seized when Officer (Sung) Oetzel took her driver's license to run a records check, VanBeek was seized when Oetzel returned to her vehicle, withheld her driver's license and continued to question her and her passenger in order to hold her until a drug-sniff dog, i.e., the K9 unit, that he had requested arrived. Finally, we conclude that the seizure was unlawful because, based on the totality of circumstances, Oetzel did not have reasonable suspicion that VanBeek was engaged in criminal activity at the time he seized her. Accordingly, we reverse the circuit court's judgment of conviction and remand with instruction to grant VanBeek's motion to suppress.​

​We conclude that the dearth of significant facts enunciated by the anonymous caller in this case substantially lowers the weight that we place on the call in the totality of circumstances. Unlike [prior U.S. and Wisconsin Supreme Court cases], wherein the respective tipsters were able to provide unique, useful and predictive information to police prior to police interaction, the caller here merely told Sheboygan police that a non-descript truck, occupied by two people, was parked on the street for "an hour" and that someone had approached the vehicle with a backpack and then left without it. Those facts are "minimal facts that any passerby or resident on the street could enunciate." The caller did not allege that the persons in the truck were engaged in criminal activity. Accordingly, as we consider a call about a non-descript truck parked on the street with two occupants, the additional assertion that someone came to the truck with a backpack and left without it does not weigh heavily in our analysis. Apparently, those facts were not significant to Oetzel because he never asked VanBeek or Sitzberger about a third person or a backpack.
                                                                                 ***
Aside from the call, all that Oetzel knew at the time of the seizure was that VanBeek overdosed earlier in the year and that Sitzberger was on supervision. Oetzel did not know the source of drugs that caused VanBeek's overdose, whether from a physician or from an illegal source. There is nothing in the record to connect her overdose in February with criminal activity in November. 

That Sitzberger was on supervision also provides no reason to believe that he was involved in criminal activity with VanBeek. As the Tenth Circuit explained in United States v. Sandoval, a prior conviction for an unknown offense provides no support for reasonable suspicion. If this were not the case, those on supervision subsequent to a conviction could be searched anywhere and anytime that the fact of supervision became known.
                                                                                 ***
Accordingly, based on the totality of circumstances, Oetzel did not have reasonable suspicion when he returned to VanBeek's truck, retained her driver's license and continued to question her; therefore her seizure was unlawful.

The case: Christus Lutheran Church of Appleton v. Wisconsin Department of Transportation

Majority: Justice Jill J. Karofsky (24 pages), joined by Justices Ann Walsh Bradley, Brian  Hagedorn, and Rebecca F. Dallet.

Dissent: Justice Patience D. Roggensack (18 pages), joined by Justices Rebecca Grassl Bradley and Annette K. Ziegler.

The upshot 

​In this case, the Wisconsin Department of Transportation ("DOT") acquired a portion of land owned by Christus Lutheran Church of Appleton ("Christus") through eminent domain. As part of that process, DOT issued a jurisdictional offer to purchase. We are tasked with determining the validity of that offer.

We uphold the circuit court's grant of summary judgment to DOT and conclude that the jurisdictional offer was valid.

Background

Christus is a nonprofit entity that owns and operates a church in Greenville that abuts State Trunk Highway 15. As part of a major project to improve and reconstruct a portion of the highway, DOT sought to acquire 5.87 acres of Christus' property and obtain a temporary limited easement of 0.198 acres.

 DOT stated that the estimated fair market value of the property to be acquired was $133,400, based on a third-party appraisal by Single Source, Inc. DOT provided Christus with an offer in that amount.

DOT's letter also included an itemized table that listed the allocations contained in the appraisal. The letter further informed Christus that if it was not satisfied with the appraisal's valuation of the property to be condemned, Christus was "eligible to obtain an additional appraisal from a qualified appraiser of [its] choice" at DOT's expense within 60 days, by December 5, 2016.

DOT called Christus' representative to encourage the church to obtain a second appraisal, explaining that "this was a complex acquisition and even if the two appraisals were close in value, it would give [Christus] assurance that nothing had been missed."

By the time of the second-appraisal deadline, Christus had not engaged in negotiations, accepted DOT's initial offer, or obtained a second appraisal at DOT's expense....Christus' attorney informed DOT that the church council would not agree to a voluntary sale.

(WisDOT conducted an internal review of the appraisal).

DOT focused on three areas that the initial appraiser considered, but ultimately did not compensate, and "items the original appraisal did not fully address," including: (1) severance damages related to the building's increased proximity to the right of way; (2) the cost to increase the parking lot to replace the loss of 26 parking spaces; and (3) the cost of "moving the retention pond."

By letter dated March 24, 2017, DOT rescinded its initial offer and provided a "final offer" in the amount of $403,200.

Christus commenced an action alleging that DOT violated the statutory requirement that a jurisdictional offer be "based" "upon" the appraisal of the property...The circuit court granted summary judgment to DOT....The court of appeals reversed the circuit court's decision, reasoning that "the jurisdictional offer in this case was not sufficiently based on the appraisal" as required by (state law) because it included a new line item for severance damages, which the initial appraisal did not contain.

The guts

A right-to-take action, which Christus filed, is used "to contest the right of the condemnor to condemn the property described in the jurisdictional offer, for any reason other than that the amount of compensation offered is inadequate."

Christus first asserts that DOT's jurisdictional offer was not "based" "upon" an appraisal, as required by (statute) because the jurisdictional offer contained several new line items, including severance damages, not found in the appraisal. Further, Christus claims that the appraisal failed to satisfy (state law's) "all property" requirement. Christus' arguments fail.

To summarize, just because there is a monetary difference between the initial appraisal and the jurisdictional offer does not mean the jurisdictional offer is not "based" "upon" the appraisal under (state law).

The initial appraisal discussed and considered severance damages, the loss of 26 parking spaces, and the loss of the current pond on the property, despite not allocating compensation for these items. A side-by-side comparison shows that no allocation decreased between the initial appraisal and jurisdictional offer. As the circuit court properly noted, most of the allocations "are relatively close in value," if not "actually identical in both offers." The significant changes between the initial appraisal and the jurisdictional offer, as a result of DOT's internal administrative revision process, included increased allocations for: (1) severance damages because of the proximity of the new right of way; (2) compensation for the cost to replace the 26 lost parking spaces; and (3) compensation to add a retention pond. Adding these new amounts to the initial appraisal valuation does not make the initial appraisal something other than a foundation for the jurisdictional offer. To the contrary, the fact that most of the allocations remained unchanged from the beginning to the end of the process demonstrates that the appraisal served as the foundation for the offer....

According to the court of appeals, because the jurisdictional offer included compensation for severance damages not found in the initial appraisal, the appraisal failed to satisfy (state law).

(The statute) defines "property" as "includ[ing] estates in lands, fixtures and personal property directly connected with lands." Damages are not included in (the) definition of "property" and we do not "read into the statute words the legislature did not see fit to write." Ultimately Christus failed to identify any portion of its property, as defined in chapter 32 (of the statutes), that the initial appraisal excluded, and therefore the offer satisfies (legal requirements).

Finally, we must explicitly reject the new requirement that the court of appeals enunciated in its opinion: "if the DOT, based solely upon its independent review of an appraisal, believes additional statutory items of just compensation warrant inclusion in the jurisdictional offer, it must obtain a new appraisal that substantiates that belief and provides an opinion as to the value of those interests."

Not only does this requirement find no support in the statutory text,  it also raises a multitude of ethical concerns. The only way for condemnors like DOT to "obtain a new appraisal that substantiates [a particular] belief" would be for DOT either to improperly direct or to coerce its in-house appraisers or third-party appraisers into acting in accordance with DOT's instructions rather than making independent assessments. Yet, Wisconsin appraisers must comply with the Uniform Standards of Professional Appraisal Practice ("USPAP").... USPAP ethics rules outline an appraiser's ethical obligation to be independent, impartial, and objective and forbids appraisers from "agree[ing] to perform an assignment that includes the reporting of predetermined opinions and conclusions."...Therefore, any appraiser who provides an estimate or opinion based on DOT's directive would be in violation of her ethical code. 

We uphold the circuit court's grant of summary judgment to DOT and conclude that the jurisdictional offer was valid because it was "based" "upon" an initial appraisal of "all property proposed to be acquired."

The dissent

Christus Lutheran contends that DOT did not make a jurisdictional offer sufficient to satisfy necessary statutory requirements and therefore, it lacks the right to condemn its property. I agree, for a number of reasons.

First, DOT did not provide Christus Lutheran with an appraisal sufficient to comply with the directive of (state law). 

(Second,) Because a jurisdictional offer is required to include severance damages which occurred here and because the jurisdictional offer must be based on a full narrative appraisal, severance damages must be a component of that full narrative appraisal. 

The majority opinion concludes that totally missing severance damages is no problem because DOT is required to pay just compensation for "property," which is different from "damages." The majority opinion asserts that the court of appeals conflated 'property' and 'damages.'" It then relates that the definition of "property" found in (statutes) does not include the word, "damages." 

Before condemnation, Christus Lutheran's church building had a 147.7 foot side yard buffer from the Highway 15 right-of-way. After condemnation, the church building would be only 9 feet from Highway 15's right-of-way. Certainly, having trucks rumble-by only 9 feet from where church services are being conducted removed a significant sound buffer and safety barrier that the land DOT is taking had provided to religious service participants. 

The majority opinion also creates facts to excuse the Single Source appraisal's failure to include any value for severance damages, parking replacement or a retention pond and its gross undervaluation for landscaping and acreage taken. It does so in part by repeatedly misstating facts. For example, the majority opinion says: "Most of the allocations in the final offer were either identical or close to the initial appraisal valuation." "[T]he fact that most of the allocations remained unchanged from the beginning to the end of the process demonstrates that the appraisal served as the foundation for the offer."

The record shows that all totaled, Single Source valued the property taken at $269,800 less than DOT's jurisdictional offer. 

I agree with the court of appeals that the jurisdictional offer was not based upon the appraisal that DOT provided. The jurisdictional offer was based upon DOT's own internal review.

The majority opinion also repeats and repeats that Christus Lutheran was told it had the right to get its own appraisal for which DOT would pay. However, that Christus Lutheran did not obtain an appraisal has nothing to do with whether DOT complied with its statutory obligations. 

(DOT) ignored fundamental statutory obligations necessary to its jurisdiction to condemn Christus Lutheran's property and, therefore, DOT lacks jurisdiction. Jurisdictional errors cannot be overlooked. 

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

​The case: State v. Tavodess Matthews

Majority: Justice Rebecca Dallet (16 pages) for a unanimous court.

The Upshot

Section 801.58(1) entitles a party in a civil case to substitute the assigned circuit court judge if, among other things, that party files a written substitution request before "the hearing of any preliminary contested matters." Matthews filed his substitution request after the circuit court granted his motion to adjourn a scheduled probable cause hearing under Wis. Stat. ch. 980. We hold that Matthews' substitution request was timely because his motion to adjourn is not a "preliminary contested matter" per that phrase's accepted legal meaning and the circuit court heard no other such matter before Matthews filed his request.

Background

This case arises from the early stages of proceedings to commit Matthews as a sexually violent person under Wis. Stat. ch. 980....the circuit court must "hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person...." Matthews' attorneys met with him for the first time on the morning of the probable cause hearing. That same morning, Matthews' attorneys told the State they intended to ask the circuit court to adjourn the hearing because they needed more time to prepare. As a result, the State told its sole witness not to appear. 

At the outset of the probable cause hearing, the circuit court acknowledged that the parties were "not going forward with the hearing." Matthews' counsel requested additional time to prepare, noting that Matthews had no objection to rescheduling the hearing outside of the 10-day window required under (state law). The State objected to the adjournment "for the record," but admitted that it was "in a somewhat difficult position" as it had let go of its witness for the day. Despite its "disappointment," the circuit court agreed to reschedule the hearing so long as Matthews waived his statutory right to a probable cause determination within 10 days of his scheduled release. Matthews did so, and the circuit court rescheduled the hearing...

¶The morning of the rescheduled hearing, Matthews' counsel filed a written request...to substitute the circuit court judge. (The law) provides that a party in a civil action, such as a ch. 980 commitment proceeding, may request to substitute the circuit court judge before "the hearing of any preliminary contested matters" but "not later than 60 days after the summons and complaint are filed." \ Matthews argued that his motion was timely because he filed it only 33 days after the State filed its ch. 980 petition and, since the circuit court had not actually commenced the probable cause hearing, it had not yet heard a "contested matter." The circuit court disagreed, finding Matthews' request untimely because the State's objection to Matthews' motion to adjourn rendered the matter "contested." 

The circuit court also noted that it had made the "substantive decision" to accept Matthews' time-limit waiver, so it was too late for Matthews to request a substitution. Upon review, Chief Judge Maxine A. White of the Milwaukee County Circuit Court agreed with the circuit court's determination, explaining that Matthews' time waiver constituted a preliminary contested matter.

The court of appeals accepted Matthews' interlocutory appeal and affirmed the circuit court's ruling....

The guts

Our focus here is specifically on the phrase "the hearing of any preliminary contested matters," which both parties recognize as the crux of the case....

First, that "preliminary contested matters" has a specific legal meaning, which the legislature explicitly adopted....And second, that there is no "hearing of" a preliminary contested matter until a court actually hears such a matter....

The phrase "preliminary contested matters" has a specific legal meaning referring to pretrial issues that go to the ultimate merits of the case. The roots of this meaning can be traced to the court's interpretation of a mid-nineteenth century change-of-venue statute. That statute provided that when a party requested a change of venue because of the presiding judge's "prejudice," the judge had no discretion to deny the request.

Our survey of the case law revealed that, in the judicial substitution context, a preliminary contested matter is more than just a preliminary issue over which the parties disagree (or, literally, "contest"). Rather, the phrase carries a particular common law meaning referring to a substantive pretrial matter that relates to the "ultimate issues" of the case....

Wisconsin courts have interpreted "preliminary contested matters" consistent with its accepted legal meaning. Pretrial motions that directly implicate the merits of a case, such as a motion to dismiss for failure to state a claim and a motion to compel discovery, are preliminary contested matters....

Conversely, this court, as well as the court of appeals, has held that procedural issues that have no direct effect on the merits of a case are not preliminary contested matters....

The bottom line is that whether a party has timely filed its judicial substitution request turns on what issues a circuit court has already heard. It is irrelevant whether a judge schedules to hear a preliminary contested matter or whether a party actually contests a preliminary issue. Accordingly, we hold that a party's substitution request is timely if it is made before a judge in fact hears a substantive issue that goes to the ultimate merits of the case.

Turning to the facts in this case, we conclude that the circuit court heard no preliminary contested matter prior to Matthews' filing his judicial substitution request. By the time Matthews filed his request on August 29, the circuit court had addressed only his motion to adjourn the August 15 hearing....The circuit court's decision to grant the motion had no effect on the ultimate merits of whether Matthews is a subject for commitment....

We therefore reverse the court of appeals and remand the cause for further proceedings. 

The upshot

Polk Properties, LLC and its sole member, Donald J. Thoma (collectively, "Polk"), seek review of the court of appeals decision, which affirmed the circuit court's order requiring Polk to pay forfeitures for zoning violations, damages for the Village of Slinger's lost property tax revenue, and attorney's fees. Whether these forfeitures, damages, and fees can be sustained depends upon whether Polk abandoned the legal nonconforming use of the property after its zoning classification was changed from agricultural to residential.... 

It is undisputed that the farmer who farmed the land before Polk acquired it continued to cut and remove vegetation on the property after Polk purchased it and after the rezoning. Because the agricultural use continued without cessation, Polk remained in compliance with the applicable zoning code provisions and Polk's use of the property constituted a lawful nonconforming use for which it cannot be penalized. Accordingly, we reverse the decision of the court of appeals and vacate the circuit court's order imposing forfeitures, its monetary judgment for real estate taxes, its order authorizing special assessments, special charges, and fees to be levied against Polk, and its order enjoining Polk from using the property for agricultural purposes. We remand to the circuit court for further proceedings consistent with this decision.

Background

Polk's property comprises 82 acres of rural land located in the Village of Slinger, which the Melius family operated as a farm before Polk purchased the parcel in 2004. Polk worked with the Village of Slinger on his proposed plan to convert the farmland to a residential subdivision known as Pleasant Farm Estates, which would consist of three phases of development over the course of several years. In February 2007, the Village of Slinger approved Polk's planned residential subdivision development. Installation of the infrastructure for the development began in June 2007 and was completed in August 2008. Two of the lots in phase one of the project were sold and residential homes were constructed on those lots. Sales of additional lots stalled, however, due to the 2008 economic recession and the collapse of the real estate market. 

Throughout the entire development project, Ronald Melius continued to farm the property by cutting and removing vegetation from the land. This continuous farming formed the basis for the Village of Slinger's lawsuit against Polk, in which the Village of Slinger sought an injunction from the circuit court ordering Polk to stop the agricultural use of the property. Melius' continued farming of the property is the particular conduct that led the circuit court to conclude Polk violated the residential zoning ordinance as well as the circuit court's order, for which that court found Polk in contempt....Ultimately, the circuit court ordered Polk Properties, LLC to pay to the Village of Slinger $28,760, representing daily zoning violation forfeitures, as well as $48,953.26 in additional real estate taxes covering tax years 2009 to 2013. The circuit court additionally ordered Thoma to pay to the Village of Slinger $28,760, representing daily zoning violation forfeitures as well as $12,017 for additional real estate taxes covering tax years 2009 to 2013.

Polk appealed the circuit court's orders and the court of appeals affirmed. Relying on an opinion from the Rhode Island Supreme Court, the court of appeals decided that Polk had abandoned its legal nonconforming use....

The guts
Polk maintains that the cutting and removing of the vegetation on the property was not abandoned after purchase, but in fact occurred continuously as part of the maintenance of the property. The Village of Slinger agrees that the farming occurred continuously, but argues that specific actions Polk took to convert the property into a residential subdivision constituted abandonment. Specifically, the Village of Slinger pinpoints Polk's request for the zoning change, the Subdivision Development Agreement for Pleasant Farm Estates ("the Development Agreement"), which limited the property to residential use, and the Declaration of Covenants, Conditions and Restrictions of Pleasant Farm Estates ("the Declaration") with residential restrictions executed and recorded by Polk.

The court of appeals agreed that these specific acts by Polk constituted legal abandonment regardless of any farming still taking place on the property. Rather than relying on Wisconsin law, however, the court of appeals rested its determination on a single foreign case at odds with our own jurisprudence. Wisconsin law requires two elements for abandonment of a legal nonconforming use: (1) actual cessation of the nonconforming use and (2) an intent to abandon the nonconforming use. Although Polk's specific acts may signify an intent to abandon the nonconforming use, the undisputed fact that Polk continued farming on the property confirms there was no actual cessation of the nonconforming use.... 

​For nearly a century, Wisconsin has required actual cessation of a legal nonconforming use together with an intent to stop it as prerequisites to abandonment. We have even rejected a "mere suspension" of the nonconforming use in considering whether the actual cessation element had been met. The law requires actual cessation in order to conclude that a property owner has abandoned the legal nonconforming use. The record in this case overwhelmingly demonstrates that Polk did not actually stop farming this property, despite the Village of Slinger's repeated and persistent attempts to end this use.... ​

The Village of Slinger has not presented nor have we located any case suggesting that merely reducing the nonconforming use constitutes actual cessation....

We conclude that Polk did not abandon the lawful nonconforming use of the property because farming occurred continuously on the property before, during, and after the rezoning. Polk never ceased cutting and removing vegetation on the property. Because this nonconforming use continued without cessation, Polk's use of the property constituted a lawful nonconforming use for which it cannot be penalized. Accordingly, we reverse the decision of the court of appeals and vacate the circuit court's order imposing forfeitures, its monetary judgment for real estate taxes, its order authorizing special assessments, special charges, and fees to be levied against Polk, and its order enjoining Polk from using the property for agricultural purposes. We remand to the circuit court for further proceedings consistent with this decision.

Concurrence

While I agree with the majority's conclusion that Polk did not abandon its nonconforming use of the property, I write separately because the majority could be read to be unnecessarily breathing life back into a doctrine that the legislature abrogated over 80 years ago. 

In 1931, we originally adopted the two-part test for abandonment, which required intent to abandon and actual cessation of use....

However, the legislature later abandoned this approach....the legislature changed the statutory language regarding discontinuance to its current form: "[i]f such nonconforming use is discontinued for a period of 12 months, any future use of the building and premises shall conform to the ordinance...."

(T)he doctrine of voluntary abandonment is inapplicable to cases where either the statute or municipal ordinance contains a definite time limit. In the case at bar, both the statute and municipal ordinance contain the language "discontinued for a period of 12 months...." 

Applying the proper test here, it is clear that Polk never ceased agricultural use of the property for a 12-month period. As I described above, both the statute and the ordinance have a 12-month definite time period. Accordingly, to have lost the right to use the property for agricultural purposes, Polk must have ceased using the property for agricultural purposes for a period of 12 months. 

Polk never ceased its agricultural use for a period of 12 months. Indeed, Polk never ceased its agricultural use for a single day....

​While I agree with the majority that Polk did not abandon its nonconforming use, I would make clear that the voluntary abandonment doctrine is inapplicable here. I would rely on the objective test that the legislature set forth in the statute – whether the property owner actually ceased use for the legislatively definite time limit. Because Polk never ceased its agricultural use of the property for even a day, let alone the 12-month time limit, I conclude that Polk did not abandon its nonconforming, agricultural use. As a result, I do not join the majority opinion and instead 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 a WJI insertion.​

The case: Tavern League of Wisconsin v. Andrea Palm

Majority: Justice Patience Roggensack (18 pages), joined by Justices Rebecca Grassl Bradley and Annette Ziegler 

Concurrence: Justice Brian Hagedorn (2 pages)

Dissent: Justice Ann Walsh Bradley (15 pages), ​joined by Justices Rebecca Dallet and Jill Karofsky

The upshot

The Department of Health Services (DHS) Secretary-designee, Andrea Palm, issued Emergency Order 3 on October 6, 2020, as a response to the COVID-19 pandemic. Emergency Order 3 limited the size of indoor public gatherings either to 25 percent of a facility's permitted capacity or, if no general capacity limit was prescribed, to 10 people.

We conclude that Emergency Order 3 meets the definition of a rule, as we recently explained in Wisconsin Legislature v. Palm. Therefore, Emergency Order 3 should have been promulgated according to rulemaking procedures. Because it was not, Emergency Order 3 was not validly enacted and was unenforceable. Accordingly, we affirm the decision of the court of appeals. 

Background

On October 6, 2020, as her second response to COVID-19 cases in Wisconsin, Palm issued Emergency Order 3. Emergency Order 3 limited the number of people who could be present at indoor, public gatherings....

Emergency Order 3 stated in part:

2. Public gatherings limited.

a. Public gatherings are limited to no more than 25% of the total occupancy limits for the room or building, as established by the local municipality.

b. For indoor spaces without an occupancy limit for the room or building that is established by the local municipality, such as a private residence, public gatherings are limited to no more than 10 people.

The order listed entities who were exempt from its public gathering limits: childcare settings, schools and universities, health care and human services operations, Tribal nations, governmental and public infrastructure operations (including food distributors), places of religious worship, political rallies, and other gatherings protected by the First Amendment. Emergency Order 3 was enforceable by civil forfeiture, and it was to be effective until November 6, 2020.

One week after DHS issued Emergency Order 3, the Tavern League of Wisconsin, Inc., the Sawyer County Tavern League, Inc., and the Flambeau Forest Inn, LLC (collectively the "Tavern League plaintiffs") initiated this lawsuit in Sawyer County circuit court. The Tavern League plaintiffs alleged that Emergency Order 3 was "a general order of general application . . . in other words, it is a rule." The Tavern League plaintiffs further alleged that DHS did not undertake proper rulemaking procedures under ch. 227 and as required by our decision in Palm....

The circuit court, the Honorable John M. Yackel originally presiding, granted the Tavern League plaintiffs' motion for an ex parte temporary injunction. Judge Yackel did not provide reasoning for his decision....

(Later) the circuit court, the Honorable James C. Babler now presiding, granted The Mix Up's motion to intervene but vacated Judge Yackel's ex parte order and denied The Mix Up's motion for temporary injunctive relief....

The court of appeals summarily reversed the circuit court....

The guts

The Mix Up urges us to dismiss the review that we granted to DHS because the issues are now moot. The Mix Up argues that, because Emergency Order 3 expired on November 6, 2020, there is not a live controversy....

The Mix Up is correct that the issue in this case is moot; Emergency Order 3 expired on November 6, 2020. However, we conclude that this case satisfies several of our mootness exceptions set forth above, one of which we address below....

Emergency Order 3 impacts every person in Wisconsin, in one way or another, and it is open to all who come into Wisconsin during its operation. It charts a course that the Secretary-designee will repeat with future orders. Accordingly, it is important to confirm, once again, that Emergency Order 3 is beyond the power that the legislature delegated to the Secretary-designee. This satisfies the great public importance mootness exception. Accordingly, we decline to dismiss our review; instead, we turn to the merits....

(In Palm) We...explained that agency action that exhibits all of the following criteria meets the definition of a rule: "'(1) a regulation, standard, statement of policy or general order; (2) of general application; (3) having the effect of law; (4) issued by an agency; (5) to implement, interpret or make specific legislation enforced or administered by such agency.'" 

The court of appeals concluded that Emergency Order 3 was a rule because it was issued by DHS purportedly pursuant to its authority under Wis. Stat. § 252.02(3), it imposed statewide restrictions on public gatherings and it made subjective policy decisions regarding which entities were subject to its mandate and which entities were exempt. Because Emergency Order 3 was not promulgated as a rule the court of appeals concluded that it was invalid and unenforceable. We agree. On its face, Emergency Order 3 meets the definition of a rule and DHS was required to comply with rulemaking procedures in ch. 227. 

DHS contends that Emergency Order 3 was not a rule because it issued Emergency Order 3 under Wis. Stat. § 252.02(3)6 rather than the more general statutory subsections discussed at length in Palm, namely §§ 252.02(4) and (6)....Additionally, DHS argues that § 252.02(3) "confer[s] well-delineated statutory power" and therefore does not require rulemaking to enforce.

This argument reads Palm too narrowly and misses Palm's overarching holding....(W)hether DHS issued Emergency Order 3 under a different statutory subsection than those Palm focused on is of  no import if DHS's action meets the definition of a rule....

Emergency Order 3 is a general order generally applied, and therefore, it meets the facial definition of a rule...explained further in Palm....

Emergency Order 3 satisfied all five criteria that define a rule and, because it was not promulgated through rulemaking procedures, it was not valid or enforceable. 

Concurrence

Some details have changed, but this case arises because Palm issued another order doing exactly what this court said she may not do: limit public gatherings by statewide order without promulgating a rule. Palm hopes to achieve a different outcome this time by seizing on some of the vulnerabilities in last term's decision. To be sure, the court's rationale in Palm was, in some respects, incomplete. My objections to the court's legal analysis were no secret. But creative efforts to engineer a different result from an indistinguishable set of facts would, in my view, be a departure from basic principles of judicial decision-making.

​The reach and nature of stare decisis——a Latin phrase that means "to stand by things decided"——is the subject of much debate.1 But if stare decisis is to have any import at all in our legal system, it surely must apply when a court has told a specific party that certain conduct is unlawful, and that party does the very same thing again under the same circumstances. That is what we have here. No further clarification of our opinion in Palm is needed; its application is plain. We held that Palm's statewide order limiting public gatherings (along with a number of other restrictions) meets the statutory definition of a rule, and must be promulgated as a rule to have legal effect. Respect for this court and its authority compels me to stand by that decision today. 

By Gretchen Schuldt

The Department of Corrections must turn over a database containing information about sex offenders that a defense lawyer contends could show the state has been overstating how likely sex offenders are to commit future sexual violence, the State Supreme Court ruled, 4-3, this week.

Justice Rebecca Dallet's opinion for the majority recounts how far DOC officials went to block lawyers for Anthony Jendusa from getting the information.

Among other things, the Department of Corrections' legal counsel twice advised its staff not to turn over a database containing information about state sex offenders, despite a subpoena and then a court order requiring the agency to do so, Dallet wrote. A DOC psychologist testified he failed for more than a year to open an email that could potentially undercut his evaluation methods. And a DOC research committee said Jendusa could have the information, but then never provided it.

Dallet was joined in her opinion by Justices Ann Walsh Bradley, Brian Hagedorn, and Jill Karofsky. Justice Annette Ziegler dissented, joined by Justices Rebecca Grassl Bradley and Patience Rogensack.

Ziegler said state statute prohibited Jendusa from having access to the database because "neither the State nor Jendusa claimed they would introduce the raw data at trial." 

Jendusa contends the database of Wisconsin offenders is key to demonstrating that Christopher Tyre, a DOC psychologist, used the wrong base from which to calculate the chances of repeated sexual violence.

The lawyers contend that using a base of Wisconsin offenders, rather than Canadian and Danish offenders, in a risk assessment tool used by the state, could significantly reduce the reoffense likelihood scored by his client, Anthony James Jendusa.

In fact, when Tyre finally gave a summary of the data in the email, the "preliminary (Wisconsin) base rate was roughly one-third of the base rate he relied on to predict Jendusa's recidivism risk," Dallet wrote.

(Tyre testified in November 2018 that in addition to his regular DOC job, he had made about $120,000 from the state performing private evaluations for the state in other sex offender commitment cases, Jendusa's appellate lawyer, Assistant State Public Defender Dustin C. Haskell, said in a brief.)

The risk assessments are critical in determining whether sex offenders should remain incarcerated under civil commitments after their prison terms end. A finding that the state has overstated the likelihood of reoffending could have a major impact on civil commitment proceedings for other sex offenders.