The case: Billie Johnson v. Wisconsin Elections Commission

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

Concurrence: Justice Brian Hagedorn (4 pages)

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

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

Grassl Bradley's concurrence

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

The United States Supreme Court rejected Homer Plessy's argument that racial segregation violates the Fourteenth Amendment, to its everlasting shame. Plessy exists in our nation's history as a stain, dishonoring America's quest for equality under the law for all, which began with the founding. At times, the United States has strayed from this sacred principle, often on the basis of sham social science of the day promoting the repugnant notion that people of different races would be better off if the law distinguished between them. Allowing social science to infect constitutional analysis inevitably "result[s] in grave abuses of individual rights and liberty." 
 
                                                                                  ***

Judges can certainly consider whether a particular government action has had a disparate impact on minorities – our color-blind Constitution does not countenance ignoring incidents of discrimination. Under a color-blind approach, however, this court may not order a remedy that purports to address racial discrimination by discriminating on the basis of race. The Constitution prohibits this court from sorting people on the basis of their race.

                                                                                  ***

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

                                                                                  ***

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

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

                                                                                  ***

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

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

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

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

 Note: Hey, this one is a little different! WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in three: First we shortcutted the decision, then the dissent, and next the concurrences. Why? Because this package of writings, and the strange U.S. Supreme Court decision that led to it, are extremely important to the state and country. Besides that, the SCOW decisions are unusually long – 142 pages, all in, not counting the cover sheets.

And instead of allowing each writing justice 10 paragraphs, we are giving each 15. Other than that, the rules remain the same. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: Billie Johnson v. Wisconsin Elections Commission

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

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

Concurrence: Justice Brian Hagedorn (4 pages)

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

Karofsky begins her dissent with a bit of background on the "odyssey" that led to SCOW's original decision to select redistricting maps submitted by Gov. Tony Evers. That decision was appealed to the U.S. Supreme Court, which overturned it and sent it back to SCOW, which then selected maps submitted by the Legislature.

We are careening over the waterfall because the Legislature's maps fare no better than the Governor's under the U.S. Supreme Court's rationale. If, according to the U.S. Supreme Court, the Governor's addition of a Milwaukee-area majority-minority district evinces a disqualifying consideration of race, then the Legislature's removal of a Milwaukee-area majority-minority district reveals an equally suspect, if not more egregious, sign of race-based line drawing. In addition, if a further-developed record is required to definitively determine whether the Governor's seventh majority Black district is required then a further-developed record is also required to definitively determine that the Legislature's removal of a majority-minority district does not violate federal law. The Court indicated that in a case like this where the court sits as the map-drawer in the first instance, the court, rather than the parties, are responsible for showing that the number of majority-minority districts required by the VRA (Voting Rights Act) constitutes the narrowly tailored remedy allowed under the Fourteenth Amendment's Equal Protection Clause. In choosing the Legislature's maps the majority repeats this court's reversible mistake by again failing to implement fact-finding procedures conducive to addressing the relevant issues under both the VRA and the Equal Protection Clause.
                                                                            ***
Karofsky briefly traces Milwaukee's history of segregation and discrimination.

The VRA's application in redistricting is designed to remedy precisely these kinds of historical wrongs – those that create current barriers to democratic participation. Instead of allowing the past unconstitutional practices of redlining and racially restrictive covenanting to continue limiting Black people's opportunity to participate in our democracy, the VRA establishes that it is a sufficiently compelling government interest to draw districts that counteract the historical racial ​gerrymander.

We must, of course, also consider the Fourteenth Amendment's Equal Protection Clause. And in doing so, it is impossible to ignore the 180-degree turn from that clause's purpose to how it has been wielded in this case. Ratified in 1868 after the Civil War, the Fourteenth Amendment demands that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Since Brown v. Board of Education, the Equal Protection Clause has been invoked to desegregate this country, protect the voting rights of its citizens, and fight discrimination in its many forms.

More recently, the Equal Protection Clause has been turned on its head and used, not to fight against the constant pull of our collective historical failing toward the promise of a better future, but to bar our government's ability to remedy past mistakes. The majority opinion perfectly captures this reversal by relying on cases pontificating that "[r]acial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions," and that "[r]ace-based assignments . . . embody stereotypes that treat individuals as the product of their race[.]"  This argument is nothing short of gaslighting, seemingly denying Milwaukee's history of purposeful racial segregation. It was unrelenting overt racial discrimination that balkanized Milwaukee into "competing racial factions" and reduced Black individuals to a "product of their race." The fault and responsibility to remedy this systemic segregation lies not with Milwaukee's residents but instead with the government and the society that perpetuated racial redlining and restrictive covenants. Those practices shaped Milwaukee and that history of discrimination cannot be undone by force of will alone. 

The Milwaukee area perfectly demonstrates why the VRA's race-conscious remedy is often needed. Segregation of minority communities does not happen accidentally. If this country were anywhere close to living up to the "goal of a political system in which race no longer matters," then maybe we could apply the promise of Equal Protection in a race-blind manner. But the overwhelming evidence shows that we have not lived up to that goal. As such, a race-blind and effects-blind application of the Equal Protection Clause has become a sword against progress wielded by majority groups who fear giving away too much of their accumulated power. I fervently hope it will regain its place as a shield against harmful discriminatory action.

                                                                            ***

Prior to the U.S. Supreme Court's decision, an Equal Protection analysis began with whether "race was the predominant factor motivating the [map-drawer]'s decision to place a significant number of voters within or without a particular district. That entails demonstrating that the [map-drawer] 'subordinated' other factors –compactness, respect for political subdivisions, partisan advantage, what have you – to 'racial considerations.'" Yet, the Court's opinion did not first analyze whether race was the "predominant factor" motivating this court's districting decisions. Instead, it appeared that the Court took this court's limited analysis regarding the VRA, meant only to ensure the least-change map did not violate that law, as evidence that race – not least change – predominated our choice of maps. Our March 3 opinion never professed as much. 

While the U.S. Supreme Court's opinion said it was unclear whether this court viewed itself or the Governor as the map-drawer, we plainly stated that the court itself was the map-drawer. ("As a map-drawer, we understand our duty is to determine whether there are 'good reasons' to believe the VRA requires a seven-district configuration.")

                                                                            ***​

Despite our clear declaration that "least change" predominated our choice of maps, and despite the purported purpose of "least change" as a neutral criterion to shed ourselves of the political baggage that would be inherent in party-drawn maps, the Court nonetheless transposed the Governor's motivations onto this court. We are left to conclude that the motivations of the party submitting the map are the relevant motivations we must analyze going forward. This court can no longer hide behind a "least change" gloss to ignore a party's ulterior motives. 

The U.S. Supreme Court left us with other unanswered questions:

• Is the court required to fully address a VRA challenge when selecting a purportedly race-neutral map or have we been given carte blanche to ignore federal law?
• Which race-neutral configuration was the court to use when analyzing the Governor’s maps given the myriad potential "race-neutral" district configurations in Milwaukee?
• How do we proceed if the process we adopted prevented the parties from sufficiently testing the evidence necessary for a VRA determination?
• Could this court simply explain ourselves further to satisfy the Court's newly voiced standard?

The majority opinion attempts to shift the blame by noting that the parties stipulated through their joint discovery plan that they did not anticipate discovery "beyond the exchange of maps, expert disclosures, and any documents or data that a party intends to rely upon or an expert has relied upon." But we had the authority, indeed the responsibility, to direct further discovery or examination of expert witnesses. This court's initial reliance on the joint discovery plan was guided by the court's "least change" directive, which failed to account for the full and definitive Equal Protection or VRA inquiry the U.S. Supreme Court now demands. This persistent imprudence in developing a record has now led us to a legally untenable outcome at odds with the Court's directive. The Equal Protection and VRA claims usually litigated after the implementation of a remedial map must now be fully adjudicated as part of this decision – an impossible task on this record.

                                                                            ***
The Legislature's maps fail for two reasons: first, we are not to act as a gubernatorial veto override body; and second, the Legislature's maps show evidence of racially motivated packing and cracking that could violate both the Equal Protection Clause and the VRA. ​​

The Legislature's maps derive from a failed political process. In Wisconsin, the redistricting process follows the same process as the enactment of any law. Both houses of the legislature must pass a bill containing new maps, which is then presented to the governor who may approve or veto the bill, the latter of which the legislature may override with a supermajority vote. Here, the Legislature, having failed to override the gubernatorial veto, submitted the very same proposal to us. By now implementing that failed bill, this court judicially overrides the Governor's veto, thus nullifying the will of the Wisconsin voters who elected that governor into office. But our constitution provides only one avenue to override such a veto; no judicial override textually exists. Nor, historically, has this court ever exercised such a supreme power. By judicially enacting the very bill that failed the political process, a bare majority of this court, rather than a supermajority of the legislature, has taken the unprecedented step of removing the process of lawmaking from its constitutional confines and overriding a governor's veto ourselves. ​

In addition to being derived from a failed political process, the Legislature's maps show signs of violating the Equal Protection Clause. If, as the U.S. Supreme Court explained, the Governor's addition of a majority-minority district sufficed to show that race predominated its proposal, then equally, if not more, suspect is the Legislature's removal of a majority-minority district. Despite the majority opinion's assertions, the Legislature's maps do not appear to be race-neutral and calling the claim "indisputable" does not make it so. The Legislature's claim that it drew its maps without considering race, quite frankly, flies in the face of its transfiguration of Milwaukee's six current districts with a Black voting age population (BVAP) majority. In Milwaukee, the BVAP increased 5.5 percent while the White voting age population decreased 9.5 percent over the last decade. Those demographic changes make the Legislature's draw down of BVAP percentage in five out of six VRA districts – one by over 12 percent – with the remaining VRA district packed at 73.3 percent BVAP highly suspicious.

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Self-serving professions of race-neutrality should also be ignored because the Legislature offered no alternative reasons for making decisions regarding Milwaukee's districts. The Legislature's "least change" pretext fails when it openly admits its Milwaukee-area changes substantially differed from its treatment of the rest of the state. Nor can the Legislature justify its unique redrawing of Milwaukee districts on a desire to keep municipalities whole; it split at least one relevant village, Brown Deer, by dividing its Black population between two districts. Respecting "communities of interest" also fails to justify the Legislature's actions because no party submitted evidence establishing such communities. That leaves the more nefarious partisan advantage reasoning – a reliable pretext for racial motivations. But a neutral judicial body cannot adopt a map on such a justification, especially now that the party's motives are imputed onto the court. The Legislature also has not, and could not, claim such a justification as this court barred consideration of partisanship in our redistricting process. As such, no judicially acceptable justification for the Legislature's Milwaukee-area redistricting decisions exists.

                                                                            ***

This has been a profoundly disheartening odyssey. The unavoidable political nature of remedial redistricting plagued us every step of the way. Too rarely did this process present true questions of law – this court's only area of expertise. At every change in the tide, this court seemed to choose what it hoped to be a short-cut to streamline our voyage, only to find ourselves lost and unable to do our work as a non-partisan court of law. But the redistricting process is likely to stalemate and come before this court again in the future. And when it does, I hope that we have learned our lesson. I hope that we will permit a politically insulated federal court to manage the task. Federal courts are better able to conduct extensive factfinding through trial-style litigation, a task for which we proved ill equipped. ​

The upshot

Upon review of the record, we conclude that insufficient evidence is presented to justify drawing state legislative districts on the basis of race. The maps proposed by the Governor, Senator Janet Bewley, Black Leaders Organizing for Communities ("BLOC"), and Citizen Mathematicians and Scientists ("CMS") are racially motivated and, under the Equal Protection Clause, they fail strict scrutiny.

By contrast, the maps proposed by the Wisconsin Legislature are race neutral. The Legislature's maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature's maps exhibit minimal changes to the existing maps, in accordance with the least change approach we adopted in Johnson v. Wis. Elections Comm'n. Therefore, we adopt the state senate and assembly maps proposed by the Legislature for the State of Wisconsin. ​

Background

In 2011, the Wisconsin Legislature passed and the Governor signed state legislative and congressional maps after the 2010 census. Over the subsequent ten years, the population of Wisconsin changed; people moved away from some areas and people moved into others. These changes were recognized in the 2020 census, which identified a population increase in the state from 5,686,986 to 5,893,718. 

The Petitioners filed this original action in August 2021 to remedy alleged malapportionment in Wisconsin's state legislative and congressional maps. In September 2021, this court accepted the case, and in October 2021, the court directed the parties to file briefs addressing what factors the court should consider when selecting new maps. ...

On November 30, 2021, the court issued a decision explaining the framework by which the court would select maps. The court identified that under the Equal Protection Clause of the United States Constitution, "a State [must] make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as practicable...."  

The court explained that, in addition to satisfying all Equal Protection Clause requirements, the court must consider compliance with Section 2 of the Voting Rights Act ("VRA"). ...

In its November 30 decision, the court adopted the "least change approach," whereby the court would select maps that "comport with relevant legal requirements" while "reflect[ing] the least change necessary." The court rejected the suggestion that the court consider partisan fairness and proportional representation of political parties when selecting maps.

                                                                                       *** 

On March 3, 2022, the court issued a decision adopting the Governor's state legislative and congressional maps. The court reasoned that the Governor's maps included the least alterations to preexisting maps. In addition, the court said that the Governor's maps complied with the Equal Protection Clause, the VRA, and the Wisconsin Constitution. 

After the court issued its March 3 decision, the Petitioners and the Legislature sought certiorari review by the United States Supreme Court, asserting that the court's adoption of the Governor's state legislative maps constituted a racial gerrymander in violation of the Equal Protection Clause. ...

On March 23, 2022, the United States Supreme Court reversed the court's decision to select the Governor's state legislative maps. The Supreme Court confirmed that, under the Equal Protection Clause, a state government cannot draw district maps on the basis of race unless the state satisfies strict scrutiny. However, the state must possess this evidence before it creates maps based on racial classifications. 

In the case before this court, the Supreme Court reasoned that, based on the filings and presentations made by the Governor, the Governor had failed to present a strong evidentiary basis for believing the VRA mandated the district lines he drew. Specifically, the Supreme Court identified that the Governor's primary explanation for his racially drawn maps was the fact that it was cartographically possible to draw them.  According to the Supreme Court, "[s]trict scrutiny requires much more." Based on the record, the Governor's maps failed to satisfy this legal standard. ...

The Supreme Court remanded the case to us for further proceedings. The Court explained that we could "choose from among...other submissions." Alternatively, the court could "take additional evidence if [we] prefer[ed] to reconsider the Governor's maps." It instructed, however, that "[a]ny new analysis...must comply with our equal protection jurisprudence."

                                                                                       *** 
​
The Supreme Court has demanded that three specific preconditions be met before it can conclude that the creation of additional majority-minority districts may be necessary: "(1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority vote[s] sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." These three requirements are called the "Gingles preconditions." ...

The VRA requires an "intensely local appraisal" which "pars[es] . . . data at the district level" and evidences a lack of minority electoral opportunity, such that a race-based remedy is needed. ...The inquiry is emphatically not to create "the maximum number of majority-minority districts," regardless of the on-the-ground characteristics of the minority communities under consideration. ...

The guts

​Here, examining the available record, we conclude that there is not a "strong basis in evidence" that the VRA requires the use of race to draw majority-black legislative districts. Specifically, there is insufficient evidence to demonstrate that here, black voters have their choice of candidate blocked by a cohesive and oppositional voting bloc. 

The Governor failed to present evidence that a race-based remedy was necessary under the VRA, but nonetheless drew districts on the basis of race to create seven majority-black districts. The Supreme Court recognized that the Governor "provided almost no other evidence or analysis supporting his claim that the VRA required the seven majority-black districts that he drew."  The Supreme Court further noted that the Governor's "main explanation for drawing the seventh majority-black district was that there is now a sufficiently large and compact population of black residents to fill it apparently embracing just the sort of uncritical majority-minority district maximization that we have expressly rejected."  This is clearly in violation of the Equal Protection Clause, as a race-based remedy cannot precede proof of a VRA violation. ...

The Governor's maps were racially motivated and are thus subject to strict scrutiny. ...

He produced no evidence of electoral history and no district-specific evidence demonstrating that the black communities he moved among districts would be denied the opportunity to effectively participate in democracy absent his proposed district lines. ...

(Ziegler outlined reasons for rejecting maps submitted by Bewley, BLOC, and CMS. All, she said, failed to meet VRA requirements.)

In contrast to the maps proposed by the Governor, Senator Bewley, BLOC, and CMS, the Legislature's proposed maps are indisputably race neutral. No party argued and no evidence was provided demonstrating that the Legislature's maps were, in fact, not race neutral. The Legislature affirmed multiple times that the maps proposed by the Governor and BLOC to create exactly 51% BVAP (Black voting-age population) districts were a "racial gerrymander," and by contrast, the Legislature utilized "race-neutral criteria" to draw districts in the Milwaukee area, as it did for all other citizens regardless of race in the remainder of the state. Unlike the other parties, the Legislature never asserted that the Gingles preconditions required the drawing of majority-black districts. To the contrary, the Legislature's expert stated correctly that "the electoral patterns detailed by [BLOC] raise serious doubts about whether the Gingles threshold standard is currently met." 

                                                                                       *** ​

Only those maps that purposefully discriminate between individuals are subject to strict scrutiny. Maps come under strict scrutiny "not just when they contain express racial classifications, but also when, though race neutral on their face, they are motivated by a racial purpose or object." The standard to demonstrate racial motivations through circumstantial evidence alone is high and rarely met. The map must be "so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to segregate[e] ... voters on the basis of race."

                                                                                       *** 

No such evidence of discriminatory intent has been provided, and, with the presumption of good faith in mind, we cannot conclude that the Legislature's maps are so highly irregular that they are "unexplainable on grounds other than race." Unlike the Governor and BLOC, who carefully calibrated BVAP in their districts, the BVAP in the Legislature's districts varies depending on the unique geography and community characteristics of those districts. BVAP in the Legislature's districts varies from 45.8% to 71.5%. In so doing, the Legislature's maps perform very well in race-neutral criteria. Out of the plans proposed, the Legislature's maps have low population deviation and have a low number of local government splits, including in the Milwaukee-area districts. In addition, the Legislature's maps include few incumbency pairings, and they move few voters into new senate districts with different election cycles. Those characteristics are seen in the Milwaukee-area districts, as they are throughout the state. Further, the districts with high BVAP are compact and do not have "highly irregular" features common to racial gerrymanders. ... When drawing districts, race-neutral considerations drove the Legislature's decisions; racial targets did not. ...

No party challenged or presented evidence which would support a claim that any of the districts in the Legislature's maps were racially motivated. In addition, no evidence was presented in the record that could overcome the presumption of good faith or show that any district lines in the Legislature's maps, including those districts with high BVAP, were "unexplainable on grounds other than race."

The Governor and BLOC argue that the Legislature's maps violate the VRA by having one assembly district at 45.8% BVAP and another at 71.5% BVAP. However, neither the Governor nor BLOC cite authority standing for the position that, using race-neutral redistricting criteria, having low or high percentages of black voters in a given district on its own violates the VRA. ...

The Governor and BLOC also argue that the Legislature's 10th assembly district, which has 45.8% BVAP, does not provide effective democratic opportunity for black voters. Thus, the Governor and BLOC aver that the Legislature's maps include only five effective black assembly districts. However, assembly district 10 does not create a VRA violation because the Gingles preconditions are not satisfied – namely, the record does not demonstrate that black voters are usually denied their preferred candidate. In fact, the evidence demonstrates otherwise. ...

The Governor and BLOC point to BLOC's analysis on a single election result, the 2018 Democratic Gubernatorial Primary, to demonstrate that the 10th assembly district violates the VRA. We are unaware of a single case that has found the existence of a strong evidentiary record, applied the VRA, and satisfied strict scrutiny through consideration of a single result from an exogenous election in a party primary. ...

Even so, under BLOC's own statistics, the black preferred candidate won in the Legislature's 10th assembly district by a comfortable margin. According to BLOC, the black preferred candidate, Mahlon Mitchell, won a plurality of the vote and beat the next strongest candidate, the Governor, 39% to 29%. This indicates that the Legislature's 10th assembly district supports black preferred candidates, not that white coalitions stymie black electoral opportunity in violation of the VRA. ...

[T]he Legislature provides its own analysis on the 10th assembly district that contradicts BLOC's conclusions. The Legislature did not rely on one election, but instead considered the 2018 Democratic Lieutenant Gubernatorial Primary in addition to the 2018 Democratic Gubernatorial Primary. Not only did the Legislature find that the 10th assembly district selected the black-preferred candidate in the gubernatorial primary (as did BLOC), the Legislature also found that the 10th assembly district supported the black-preferred candidate in the lieutenant gubernatorial primary by a wide margin. Given this evidence, the Legislature concluded that this district would not usually exhibit white coalition voting blocking black-preferred candidates. In addition, CMS analyzed the Legislature's 10th assembly district by considering whether "the outcome in most general elections favors the Black candidate of choice" and whether "Mandela Barnes and Mahlon Mitchell [the black candidates of choice in the 2018 Democratic lieutenant gubernatorial and gubernatorial races] perform strongly in their respective 2018 Democratic primary elections." CMS concluded that the Legislature's 10th assembly district was "perfectly effective" for black voters. On this record, we cannot agree with the Governor and BLOC that the Legislature's race-neutral proposal would violate the VRA. ...

                                                                                       *** 

​Because the maps submitted by the Governor, Senator Bewley, BLOC, and CMS are eliminated for being racially motivated, we concentrate our review on the Legislature's maps. In maximum population deviation, the Legislature's maps perform exceptionally well. The Legislature's maps recognize the sizable population shifts, keep Wisconsin citizens in their existing districts and also achieve population equality across districts. The Legislature's maximum population deviation is .57% for the Senate and .76% for the Assembly. This is in line with deviations accepted by federal courts. 

                                                                                       *** 

The Legislature's maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature's maps exhibit minimal changes to the existing maps. Therefore, we adopt the state senate and assembly maps of the Legislature for the State of Wisconsin. 

Next: The dissent. Karofsky takes on the SCOW majority and the U.S. Supreme Court.

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. Daniel J. Van Linn

​Majority opinion: Justice Rebecca F. Dallet (14 pages), joined by Chief Justice Annette K. Ziegler and Justices Patience Roggensack, Rebecca Grassl Bradley, Brian Hagedorn, and Jill J. Karofsky

Dissent: Justice Ann Walsh Bradley (11 pages)

The upshot

After crashing his car, Daniel Van Linn was taken to the hospital, where two blood tests were performed: the first one by the hospital for diagnostic and treatment purposes; a later one at the direction of a sheriff's deputy for investigative purposes. Both blood tests revealed that Van Linn's blood-alcohol concentration (BAC) was over the legal limit. The circuit court suppressed the results of the deputy's blood test, concluding that the deputy's blood draw violated the Fourth Amendment because the deputy did not have a warrant. The State then subpoenaed the hospital for Van Linn's medical records, which included the hospital's diagnostic blood-test results. Van Linn argues that those results should be suppressed under the Fourth Amendment's exclusionary rule because the State subpoenaed the hospital only after it learned from the deputy's unlawful blood draw that Van Linn's BAC was over the legal limit. The issue is whether hospital's blood-test results are nevertheless admissible under the independent-source doctrine, an exception to the exclusionary rule. We hold that they are, and therefore affirm the court of appeals.

Background

Around 2:00 a.m. one Sunday morning, the Oconto County Sheriff's Office responded to a call about a car accident on a rural road in the Town of Mountain. When a deputy arrived, he found Van Linn's car crashed into the back of a cabin. The subsequent investigation revealed that Van Linn was driving to his cabin when he thought he saw an oncoming car in his lane and swerved to avoid it. He veered off the road and into a ditch, where he hit a tree. He then drove back onto the road, crossing both lanes of traffic before continuing into a ditch on the other side of the road, over a hill, and through a field, eventually crashing into the back of someone's cabin.

Ambulance personnel found Van Linn lying on the ground across the street. He had a bump and some blood on his forehead and his hands were bleeding. Van Linn claimed to know nothing about the accident and denied that he was driving. The deputy noted a "moderate odor of alcohol" coming from Van Linn, and Van Linn told the deputy that he had drank "two beers" earlier that evening. The deputy learned that because Van Linn had four prior OWI (operating while intoxicated) convictions, he was subject to a BAC limit of 0.02 and his driving privileges were revoked.

Van Linn was taken to the hospital. At 3:55 a.m., hospital personnel performed a "diagnostic workup," which included drawing Van Linn's blood. The results of that blood test revealed that Van Linn's BAC was 0.226. Not long after, the deputy arrived at the hospital and, based on his investigation at the accident scene, arrested Van Linn for his fifth OWI. At the time of Van Linn's arrest, the deputy was unaware of the hospital's blood draw and its results.

Following his arrest, Van Linn admitted that he had in fact been driving and that he was the one who called the police to report the crash. The deputy asked Van Linn to consent to a blood draw, which Van Linn refused. Nevertheless, at his lieutenant's direction and without a warrant, the deputy had Van Linn's blood drawn at approximately 4:15 a.m., about twenty minutes after the hospital had taken Van Linn's blood. A test of this second sample showed that Van Linn's BAC was 0.205.

In the circuit court, Van Linn moved to suppress the results of the deputy's blood draw because the deputy did not have a warrant and no exceptions to the warrant requirement applied. The State argued that the deputy did not need a warrant because the natural dissipation of alcohol in Van Linn's bloodstream was an exigent circumstance. The circuit court granted Van Linn's motion, suppressing the results of the deputy's warrantless blood draw on the grounds that no exigent circumstances justified the deputy's failure to get a warrant.

Three months later, the State asked the circuit court to issue a subpoena to the hospital for Van Linn's medical records, which included the results of the hospital's diagnostic blood test. The State submitted an accompanying affidavit asserting there was probable cause for the subpoena because the deputy smelled alcohol on Van Linn at the scene, Van Linn had a reduced BAC restriction, and Van Linn admitted he had been drinking before the accident. The affidavit referenced the deputy's blood draw and noted that testing of the sample showed that Van Linn's BAC was over the legal limit.

The subpoena issued notwithstanding Van Linn’s objection, and the hospital produced its records from testing Van Linn's blood. Van Linn moved to suppress the hospital's blood-test results, but the circuit court denied the motion. Van Linn then appealed. The court of appeals affirmed, finding that the hospital's blood test was an independent source of evidence of Van Linn's BAC.

The guts

The Fourth Amendment protects against "unreasonable searches and seizures." When the State obtains evidence in violation of the Fourth Amendment, that evidence typically must be suppressed under the exclusionary rule. The exclusionary rule can apply to both evidence discovered during an unlawful search or seizure and evidence discovered only because of what the police learned from the unlawful activity, also referred to as "fruit of the poisonous tree." Not all Fourth Amendment violations, however, justify applying the exclusionary rule. Rather, the rule applies when excluding the unlawfully obtained evidence will "meaningfully deter" police misconduct such that interfering with the criminal justice system's truth-seeking objective is justified. Whenever the exclusionary rule applies, the scope of the remedy is limited to preventing the State from "profit[ing] from its illegal activity" without placing the State "in a worse position than it would otherwise have occupied" absent its illegal conduct. It follows that excluding illegally obtained evidence "does not mean that the facts thus obtained become sacred and inaccessible," provided the State's knowledge of them is gained from a source unrelated to the State's illegal conduct.

That idea is the foundation of the independent-source doctrine. The doctrine is an exception to the exclusionary rule in that it allows for the admissibility of evidence or information tainted by an illegal evidence-gathering activity when the State otherwise acquires the same information—or "rediscover[s]" it—by lawful means "in a fashion untainted" by that illegal activity. Subsequent lawful means, such as a subpoena, are "untainted" when the State can show that the illegal conduct neither "affected" the circuit court's decision to approve its subpoena request nor "prompted" the State's decision to seek a subpoena in the first place. The former question turns on "whether the [subpoena's supporting affidavit] contain[s] sufficient evidence of probable cause without the references to the tainted evidence." Van Linn concedes that although the supporting affidavit referenced his BAC as discovered by the deputy's unlawful blood draw, the affidavit establishes probable cause for the subpoena without that reference. Our analysis therefore focuses on the latter question of whether the State's decision to seek the subpoena was prompted by what it learned from the deputy's unlawful blood draw.

Van Linn argues that the State's decision to subpoena his medical records was "motivated specifically" by the knowledge it gained from the deputy's unlawful blood draw—that his BAC was over the legal limit. According to Van Linn, if the deputy had not unlawfully drawn Van Linn's blood, the State would not have known that the hospital's blood test would show he had a prohibited BAC and, therefore, "would have had no reason to seek a subpoena" for his medical records.

Murray (v. United States), however, demonstrates that the independent- source doctrine can apply even though the State knew the hospital's blood test would show an unlawful BAC. . . . Murray teaches that the independent-source doctrine applies when the State has a separate reason to seek the challenged evidence apart from the knowledge it gains from an unlawful search.

Here, the State had ample reasons to subpoena Van Linn's medical records for evidence of OWI, apart from what it learned from the deputy's unlawful blood draw. At the accident scene, the deputy found Van Linn's car crashed into the back of a cabin. His investigation revealed that Van Linn had veered off the road and into a ditch, where he hit a tree. The deputy smelled an "intoxicant" on Van Linn, and Van Linn admitted to having had "a couple of beers." While Van Linn was en route to the hospital, the deputy also learned that Van Linn had a reduced BAC restriction of 0.02. Moreover, the deputy arrested Van Linn for OWI prior to conducting the unlawful blood draw. . . . (T)he testing results of the deputy's unlawful blood draw "only served to confirm [the State's] prior suspicions": that Van Linn's BAC was over the legal limit. Stated differently, the State's decision to subpoena Van Linn's medical records was not prompted by what it learned from the deputy's unlawful blood draw.

Granted, the State did not subpoena Van Linn's medical records until after the circuit court suppressed the deputy's unlawful blood draw. Van Linn argues that the State's subpoena is therefore the "direct result" of the deputy's unlawful conduct because, but for that conduct, there would have been nothing for the circuit court to suppress. And but for the circuit court's suppression decision, the State would not have subpoenaed the hospital. We hold that, despite the timing of the State's subpoena request, suppression is not justified for two reasons.

First, in the exclusionary-rule context, the U.S. Supreme Court has rejected the strict but-for causality Van Linn presses here. The "more apt question" for whether the exclusionary rule applies is: did the State "exploit[]" the deputy's unlawful conduct? In this case, the State did not exploit the deputy's illegal conduct because, as explained above, the State had reasonable grounds to suspect Van Linn of OWI prior to anyone drawing his blood. Additionally, the blood-test evidence contained in Van Linn's medical records is "untainted" by the deputy's unlawful conduct because the hospital drew Van Linn's blood for its own diagnostic and treatment purposes, not at the direction of law enforcement.

Second, suppressing the hospital's blood-test results would not further the purpose of the exclusionary rule, which is to deter police misconduct. The circuit court's suppression of the deputy's warrantless blood draw remedied the police misconduct in this case. Suppressing the hospital's diagnostic blood test, however, would have no further deterrent effect because it involved no police conduct at all, let alone misconduct. Moreover, suppressing the hospital's blood test runs counter to the exclusionary rule because it would put the State in a worse position than it occupied absent the deputy's unlawful conduct.

​***

The case: Daniel J. Hennessy, Jr. v. Wells Fargo Bank, N.A.​

Majority opinion: Justice Annette K. Ziegler (30 pages), for a unanimous court.

Concurrence: Justice Rebecca F. Dallet (6 pages), joined by Justices Brian Hagedorn and Jill J. Karofsky.

The Upshot
​
In Wisconsin, a foreign country's law must be proven before a circuit court as a question of fact. We reaffirm this principle and decline the Hennessys' invitation to consider foreign law de novo. Upon a review of the record, the court cannot conclude that the circuit court's interpretation of Mexican law was clearly erroneous. Further, the circuit court did not erroneously exercise its discretion by choosing to recognize the Mexican judgment in Wisconsin. Thus, the court of appeals is affirmed, and Wells Fargo's judgment against the Hennessys was properly domesticated. 

Background

The Hennessys (Daniel and Jane) took out a loan of $7.5 million owed to Wells Fargo to build a condominium in San Jose del Cabo, Mexico. As part of the transaction, the parties signed three separate agreements. They executed a construction loan agreement, a promissory note, and an addendum to the note. These documents are governed by Wisconsin law and are written in English. In addition, the parties entered into a trust agreement. The trust held the property underlying the transaction as collateral in case of the Hennessys' default. Mexican law governs the trust agreement, which is written in Spanish. 

The agreements are closely interlinked and reference each other. For instance, the loan agreement stated that the security is "granted . . . under the Guaranteed Trust Agreement." The trust agreement, for its part, stated that the Hennessys must "comply with all obligations [they] assumed under the Loan Documents," and, in the case of default, the Hennessys were obligated to "immediately pay any and all amounts [they] owe[] under the Loan Documents." 

The Hennessys defaulted under the agreements, and in May 2012, Wells Fargo initiated a foreclosure action in Mexico....

In March 2014, the Mexican district court issued a judgment in favor of Wells Fargo ("the Mexican judgment"), and both parties appealed the decision. In October 2014, an appellate court, the Third Unitary Court of Mexico ("the Mexican appellate court"), affirmed in part the Mexican district court's decision and awarded a judgment in favor of Wells Fargo. The Mexican appellate court amended the judgment issued by the district court.

The appellate court said the Hennessys owed $7.5 million, plus interest and costs. Wells Fargo subsequently pursued an action in Milwaukee County Circuit Court to allow enforcement of the Mexican court decision.

[T]he circuit court issued a written decision holding that the Mexican judgment was valid and could be enforced against the Hennessys personally. The circuit court reasoned that the Mexican judgment mandated that the Hennessys either pay the amounts owed to Wells Fargo or surrender the property as collateral. Under Mexican law, if the Hennessys failed to pay Wells Fargo, the bank could recover any deficiency remaining after the collateral was sold, and, by seeking a deficiency, Wells Fargo was enforcing the Mexican judgment.  The court later ruled that Wells Fargo was entitled to recognition of the Mexican judgment.

The Hennessys also lost in the Court of Appeals.

The guts

The Hennessys ask this court to alter its current standard for reviewing questions of a foreign country's law. In addition, the Hennessys seek reversal of the circuit court and court of appeals based upon their interpretations of the Mexican judgment and on international comity (the recognition one country gives to another country's laws and judgments.) We will first address the Hennessys' arguments on the proper standard of review.

For centuries, the common law established that, unlike the laws of the domestic jurisdiction, a foreign country's laws must be pleaded and proven as facts....

Even though Wisconsin's standard of review has been long established, the standard has been reaffirmed by this court on numerous occasions, and Wisconsin's statutory notice provisions on foreign law have not been changed, the Hennessys ask that the court resolve issues of foreign countries' laws as questions of law. (A question of law involves the interpretation of principles that might be relevant in other cases; a question of fact requires interpretation of circumstances of the particular case.) Whether we treat this issue solely as a matter of stare decisis, statutory interpretation, or both, we decline to do so.... 

As was true in centuries past, applying a wholly independent standard of review to a foreign country's jurisprudence can create substantial difficulties for courts, and having a question of fact standard can relieve the pressure placed on the judicial system. The standard places the burden on the parties to present what evidence and expert testimony they believe are relevant on the issue of foreign law, and limits appellate review to clearly erroneous interpretations. The process may serve to facilitate efficient and effective resolution of foreign law disputes. These disputes may otherwise consume court resources without consequent development of Wisconsin law.

Nonetheless, the Hennessys cite policy rationales in support of their position. They argue that recrafting issues of a foreign country's laws as questions of law would allow courts to exercise independent judgment, and it would give courts the opportunity to fully analyze the substance of foreign law....

The Hennessys fail to cite a single case where litigants, under the question of fact standard, were inhibited from presenting to the court a full and accurate body of a foreign country's law. Although the Hennessys disagree with the circuit court's findings in this case, there is no indication that the record was incomplete or somehow inadequate....

                                                                                   ***

The Hennessys argue that the circuit court incorrectly interpreted Mexican law to allow recovery against them personally under the Mexican judgment. In addition, the Hennessys claim that the circuit court misapplied the doctrine of comity. Wells Fargo disputes both these assertions. It argues that the circuit court accurately interpreted Mexican law and properly applied its discretion to domesticate the Mexican judgment. We will address the two issues in turn....

[W]e affirm the circuit court's interpretation of Mexican law. The circuit court properly determined that the Mexican judgment allowed Wells Fargo to collect a money judgment from the Hennessys personally and seek any deficiency after foreclosure on the property is complete....

The Hennessys argue that the circuit court should not have domesticated the Mexican judgment because it was insufficiently specific as to the amounts the Hennessys owed. They argue that the judgment does not contain a "sum certain" and leaves open additional calculations of deficiencies, interest, fees, and expenses owed to Wells Fargo. Thus, according to the Hennessys, the Mexican judgment is not final....

Upon a review of the record, this court cannot conclude that the circuit court erroneously exercised its discretion in domesticating the Mexican judgment. The circuit court accurately examined the facts, recognized the applicability of the comity doctrine, "us[ed] a demonstrative rational process" in applying the doctrine, and came to a reasonable conclusion. We affirm the circuit court's judgment in favor of Wells Fargo.  

I join the majority opinion but write separately only because I would focus on Wis. Stat. § 902.02(5), which requires Wisconsin courts to treat foreign countries' laws as questions of fact that must be proven to the circuit court. Therefore, I respectfully concur....

Because Wis. Stat. § 902.02(5) requires foreign countries' laws be treated as questions of fact, any change to that standard must come through legislation....

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: Danelle Duncan v. Asset Recovery Specialists, Inc.​
​
Majority: Justice Rebecca F. Dallet (24 pages),  joined by Justices Ann Walsh Bradley and Brian Hagedorn and joined in large part by Justice Jill J. Karofsky.

Concurrence: Karofsky (12 pages).

Dissent: Justice Patience D. Roggensack (16 pages), joined by Justices Rebecca Grassl Bradley and Annette K. Ziegler.

The Upshot

We...hold that "dwelling used by the customer as a residence" includes a garage attached to the residential building in which the customer lives....We hold that claims of unconscionability are available only in "actions or other proceedings brought by a creditor to enforce rights arising from consumer credit transactions" and that a non-judicial repossession like the one Defendants performed in this case is not such an action or other proceeding. As a result, Duncan's unconscionability claim must be dismissed. 

Background

Danelle Duncan left her car in her parking spot in the garage on the ground floor of her apartment building. When she returned a short time later, the car was gone. She later learned that Defendants – Asset Recovery Specialists, Inc.; Wells Fargo Bank, N.A.; and Greg Strandlie –had entered the garage without her consent and repossessed the car. 

Duncan alleges that Defendants violated the Wisconsin Consumer Act by "[e]ntering a dwelling used by the customer as a residence except at the voluntary request of a customer" during the repossession. 

Duncan bought her car from a dealership and financed the purchase with a loan. The loan, which created a security interest in the car, was later assigned to Wells Fargo Bank. After Duncan defaulted on the loan, the Wisconsin Consumer Act provided the bank with two ways to take possession of the car. It could either obtain a judgment for return of the car by filing a replevin action or follow the statutory process for a nonjudicial repossession. Wells Fargo pursued the latter option and hired Asset Recovery Specialists, owned by Greg Strandlie, to repossess Duncan's car. 

At that time, Duncan lived in a multi-story, multiunit apartment building. The ground floor of the building is made up entirely of parking for residents and includes at least 56 parking spaces. Duncan leased a parking space in the garage under an agreement separate from her apartment lease. To access the residential floors and apartments from the garage, or to enter the garage on foot from the outside, residents must use keys. To drive into the garage, residents must use a garage door opener.

When Strandlie and one of his employees arrived to repossess Duncan's car, however, they found the garage door open. They went in, located Duncan's car, and towed it away. Neither Strandlie nor the employee interacted with Duncan at the time. A maintenance worker was in the garage at the time of the repossession and did not object. 

Duncan filed this case in circuit court alleging, among other things, that Defendants violated Wis. Stat. § 425.206(2)(b) when they entered the parking garage to repossess her car and that Defendants' conduct during and after the repossession was unconscionable in violation of Wis. Stat. § 425.107(1).

The guts

To determine whether the repossession was proper, we must therefore answer a single question: Did Defendants enter "a dwelling used by [Duncan] as a residence" when they repossessed her car from the first-floor parking garage of her apartment building?....

Although "dwelling" is undefined in the Wisconsin Consumer Act, it is a common word and the parties generally agree on its ordinary, dictionary definition. "Dwelling" typically refers to "a building or other shelter in which people live." In other words, a dwelling is a building in which at least one person lives. 

That definition is consistent with the use of "dwelling" elsewhere in the statutes at the time the Wisconsin Consumer Act was adopted in 1971. The word "dwelling" appears twice in the Act and was defined in a subsequent administrative rule.

That rule specifies that..."dwelling" includes "any garage, shed, barn or other building on the premises whether attached or unattached...." 

Based on that definition, Duncan's "dwelling" includes the parking garage, because it is located in the building in which she lives. The remaining question then is whether the phrase "used by the customer as a residence" nevertheless excludes the garage. 

Despite the parties' general agreement on the common meaning of "dwelling," they offer competing readings of the phrase "used by the customer as a residence." Defendants assert that a "residence" is the place where a person "actually lives." They conclude that "used by the customer as a residence" limits "dwelling" to only the parts of the building that are also "integral parts" of a residence; for example, the areas in which a person might sleep, eat, cook, or shower. Because Duncan did not sleep, eat, cook, or shower in the garage, Defendants claim that they could lawfully enter the garage because it was not used by Duncan as a residence. In contrast, Duncan suggests that "used by the customer as a residence" simply distinguishes her particular dwelling from all other dwellings. She therefore acknowledges that Defendants would not have violated (the law) if they had repossessed her car from the parking garage of a different apartment building, or while it was parked in a friend's open garage. 

We agree with Duncan's interpretation and conclude that "used by the customer as a residence" distinguishes the customer's dwelling from all other dwellings....

                                                                                   ***

We turn next to Duncan's claim of unconscionability pursuant to Wis. Stat. § 425.107(1). We begin with the language of the statute: "With respect to a consumer credit transaction, if the court as a matter of law finds that any aspect of the transaction, any conduct directed against the customer by a party to the transaction, or any result of the transaction is unconscionable, the court shall, in addition to the remedy and penalty authorized in sub. (5), either refuse to enforce the transaction against the customer, or so limit the application of any unconscionable aspect or conduct to avoid any unconscionable result." The statute enumerates a number of different factors the court may consider pertinent to determining whether a transaction, conduct directed against the customer, or the result of the transaction are unconscionable... [U]pon a finding of unconscionability a customer may recover statutory and actual damages.... 

We agree with the federal courts that the law bars a customer from bringing a claim of unconscionability...except in response to "actions or other proceedings brought by a creditor."...

​[W]e conclude that a nonjudicial repossession...is not one of the "actions or other proceedings brought by a creditor" contemplated....

Concurrence:

I agree that Defendants violated Wis. Stat. § 425.206(2)(b) by entering Duncan's "dwelling" and concur in the court's ultimate mandate. I disagree, however, with the conclusion that a customer can never raise unconscionability as a defense to a non-judicial repossession. Because the applicable statutes plainly permit an unconscionability defense, I respectfully concur. 

                                                 ***

The unconscionability defense codified in Wis. Stat. § 425.107 entitles a customer to additional relief "if the court as a matter of law finds that any aspect of the transaction, any conduct directed against the customer by a party to the transaction, or any result of the transaction is unconscionable." I agree with my colleagues that this defense is subject to the scope provision (by law), and as such is only available in response "to actions or other proceedings brought by a creditor to enforce rights arising from consumer credit transactions" (emphasis added). I further agree that a non-judicial repossession is not an "action." We diverge, however, on whether a non-judicial repossession constitutes a "proceeding." ​

"Proceeding" is neither specially defined nor technical and therefore carries its "common, ordinary, and accepted meaning."...

The Oxford English Dictionary's leading "Law" definition for "proceeding" broadly includes "[a] legal action or process."  That breadth is mirrored in another dictionary's "proceeding" definition: "A course of action; a procedure." (American Heritage Dictionary) These broad dictionary definitions match comprehensive judicial definitions of "proceeding." Several courts have recited the Words and Phrases definition that "proceeding" is "a very comprehensive term" generally meaning "a prescribed course of action for enforcing a legal right."

                                                                                   ***

Taken together, the dictionary and judicial definitions of "proceeding" as well as that word's usage in common parlance converge on one, comprehensive common, ordinary, and accepted meaning: a legally prescribed process for enforcing a legal right. 

​                                                                                   ***

Applying the common, ordinary, and accepted meaning of "proceeding," I conclude that "other proceedings" includes a non-judicial repossession. A non-judicial repossession is a legally prescribed process for enforcing a legal right. The statute prescribes the initiating notice, the 15-day wait period, and the prohibitions against both "breach[ing] of the peace" and entering "a dwelling used by the customer as a residence." It matters not that the legislature made a policy decision to cut out the expense and time of litigation. Nothing in that policy choice indicates a simultaneous desire to foreclose a customer in Duncan's position from even requesting judicial scrutiny of unconscionable creditor conduct. Quite the opposite. The legislature directs us to "liberally construe[] and appl[y]" the entire Act to "protect customers against . . . unconscionable practices by merchants." Put simply, the statutorily prescribed non-judicial repossession process to enforce a creditor's right to collateral plainly constitutes an "other proceeding[] brought by a creditor to enforce rights arising from [a] consumer credit transaction[]" under (the law.) 

Before concluding that Duncan can bring her unconscionability claim here, I address one last wrinkle. At common law, unconscionability claims arose defensively. That is precisely the posture Duncan is in here, albeit not in the traditional sense. Duncan raises unconscionability as a defense to Defendants enforcing their right to repossess her car. Had that repossession commenced via a replevin action, Defendants would have filed a complaint and Duncan would raise unconscionability in her answer or some post-judgment filing if the unconscionable conduct occurred during or after the repossession. But a non-judicial repossession dispenses with these traditional pleadings. Therefore, Duncan can raise unconscionability only in her own complaint....

I conclude that Duncan could raise an unconscionability defense to Defendants' non-judicial repossession. Here, however, her allegations do not as a matter of law rise to the level of unconscionable. Therefore, I concur in the court's ultimate mandate and join all but (five paragraphs) of the majority/lead opinion.

Dissent

The majority opinion follows the errant lead of the court of appeals. Instead of interpreting "dwelling" within the structure of the statute in which it appears, e.g., "used by the customer as a residence," and instead of relying on Danelle Duncan's own statements that she never lived or resided in the apartment building's garage, the majority opinion ignores a plain-meaning analysis of (the law). Rather, it patches together a hodgepodge of theories in order to affirm the court of appeals. Because I conclude that the plain meaning of (the law) does not apply to the apartment building's garage, which Duncan shared with many others and has said in two court proceedings that she has never lived or resided in, I would reverse the court of appeals and affirm the summary judgment granted by the circuit court. Therefore, I respectfully dissent from the majority opinion. 

After her car was repossessed, Duncan sued the towing company, its owner, and the Wells Fargo.

As part of its proceedings, the district court found there "are no living quarters, places to sleep, cook, eat, watch television, use a restroom or bathe or shower in the garage area, [and that] Duncan admits that she has never lived or resided in the garage." The court made various other findings relative to her federal claim and then granted the defendants' motion for summary judgment in part. It dismissed her federal claim and any portion of her state claims against Wells Fargo that was based on alleged unlawful retention of Duncan's personal property.

Duncan sued in circuit court and lost. She appealed and won.

​                                                                                   ***

Although, "dwelling" is not defined in regard to portions of statutes that set out provisions that relate to Wisconsin consumer transactions, I note that findings of the earlier trial courts who considered this dispute provide the factual context in which we interpret "dwelling," as that term appears in § 425.206(2)(b). 

For example, the circuit court found that the apartment building's garage contained spaces for more than 50 cars, with no tenant having a right to exclude others, which the circuit court also found was in contrast to single-family homes where there is a right to exclusive control over the garage. Duncan agreed that she did not have the right to exclude others from the apartment building's garage. Therefore, she could not bring suit for criminal trespass to dwellings or for trespass to land  which she tried to do before filing in federal district court. 

It is undisputed that Duncan does not sleep in the garage. The district court found that there "are no living quarters, places to sleep, cook, eat, watch television, use a restroom or bathe or shower in the garage area, [and that] Duncan admits that she has never lived or resided in the garage....

[I]n order to fit within the structure of (the law) the apartment building's garage must be the place where Duncan actually lives – where she resides. She has admitted that she never lived or resided in the apartment building's garage, and the district court and the circuit court both so found. Instead, she rented a parking space in a garage shared by other residents and maintained by a third-party apartment owner. Therefore, based on the plain meaning of the statute that the legislature enacted, and undisputed material facts, I conclude that the apartment building's garage where Duncan parked her car is not a "dwelling" within the meaning of § 425.206(2)(b). 

​                                                                                   ***

The court of appeals' decision avoids a plain-meaning interpretation of (the statute) to seek a different result than a plain-meaning interpretation will permit. The majority opinion's use of (administrative code) is less direct than that of the court of appeals, but nevertheless it employs (administrative code) to support its analysis. Furthermore, the majority opinion's hodgepodge of definitions totally ignores the structure of § 425.206(2)(b) which limits "dwelling" according to how the customer uses that space. Again, it appears the majority opinion did so...to obtain a result that the plain meaning of the words the legislature enacted will not permit. 

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: City of Waukesha v. City of Waukesha Board of Review
​
Majority: Ann Walsh Bradley (19 pages) for a unanimous court.

Background

The Salem United Methodist Church (the Church) owns a piece of property located within the City. In 2017, the property was assessed at a value of $51,900, but the following year the assessment was raised to $642,200. The reassessment was triggered by the Church putting the property up for sale. Ultimately, the Church received an offer of $1,000,000 for a portion of the property.

Taking exception to the increase in the assessed value of its property, the Church filed an objection. It submitted that the value of the property should be properly assessed at $108,655. The Church argued that the City's valuation was based on speculative future use and that it did not properly account for the undeveloped nature of the land. 

At a hearing held before the Board, both the taxpayer and the City appeared as parties. The City argued in favor of the City assessor's valuation. After taking testimony from the assessor and a representative of the Church, the Board accepted the Church's valuation, but rounded up slightly to arrive at a value of $108,700. 

The City appealed the Board's determination by seeking certiorari review in the circuit court...It argued that the Board acted contrary to law because it failed to uphold the presumption of correctness that attaches to an assessor's valuation, that the Board's determination was not supported by sufficient credible evidence, and that the Board's decision was arbitrary and unreasonable.

[T]he Board moved to quash the writ. As relevant here, it asserted that the City lacks the authority to appeal a decision of its own Board of Review by certiorari. In other words, it argued that § 70.47 affords only taxpayers, and not municipalities, the ability to seek certiorari review of a board decision. 

The judge denied the Board of Review's motion. Turning to the merits of the City's claims, the circuit court agreed with the City that the Church did not present sufficient evidence to overcome the presumption of correctness. It thus granted the writ of certiorari and remanded to the Board for further proceedings.

The Court of Appeals reversed the Circuit Court, ruling that the city did not have a right to challenge the board's findings. The city appealed to the Supreme Court.

The guts

Wisconsin Stat. § 70.47(13) addresses certiorari review of board decisions. This subsection provides in relevant part: "Except as provided in s. 70.85, appeal from the determination of the board of review shall be by an action for certiorari commenced within 90 days after the taxpayer receives the notice." 

The language of subsec. (13) thus guides the reader to subsec. (12), which sets forth:

"Prior to final adjournment, the board of review shall provide the objector, or the appropriate party, notice by personal delivery or by mail, return receipt required, of the amount of the assessment as finalized by the board and an explanation of appeal rights and procedures. Upon delivering or mailing the notice under this subsection, the clerk of the board of review shall prepare an affidavit specifying the date when that notice was delivered or mailed."

The Board argues, and the court of appeals agreed, that the above language gives the taxpayer exclusively, and not the City, the authority to seek certiorari review of a Board decision. Specifically, the Board asserts that the trigger for filing a certiorari action contained in Wis. Stat. § 70.47(13) is the receipt of notice by the taxpayer. In contrast, § 70.47(13) does not, according to the Board, include any trigger for the City to file a certiorari action or even any requirement that the City receive notice of a Board decision. 

On the other hand, the City contends that (the statute) addresses only when certiorari review may be sought, not who may seek it. In other words, the City asserts that nothing in Wis. Stat. §70.47(13) grants any right to appeal whatsoever, and that instead it only ensures that the taxpayer is aware of a right to appeal and fixes the timing of the notice that must be sent. 

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However, a close reading of (the law) reveals that the City's argument does not hold water. Again, subsec. (13) sets forth that the deadline for filing a certiorari action is triggered by the taxpayer's receipt of the notice....But (the statute) does not provide an avenue for the City to be informed of when a taxpayer receives the notice. 

As stated, if the mail option is utilized, then the board clerk's affidavit indicates only when the notice was mailed, not when it was delivered or received by the taxpayer. However, the date a notice is mailed is most likely not the same as the date the notice is received. The City could guess as to what its ultimate filing deadline would be, estimating the length of time the mail would take to arrive and surmising when someone would be available to sign for the "return receipt required" mail. There is no statutory mechanism for calculating an exact date. 

Additionally, subsec. (12) contains no requirement that the board clerk provide a copy of the affidavit to the City. Although in practice the City may receive it from the board clerk, there is no statutory language to support the proposition that it is required to be provided with the affidavit. 

The fact that there is no certain statutory deadline provided for the City to file a certiorari action indicates that the City does not have such a right. Elsewhere in the statutes, where a party has a right to file an appeal to the circuit court or court of appeals, the legislature has provided a clear deadline for doing so.

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Additionally, were the City to prevail in this appeal and accordingly raise the assessed value of the Church property above the value as determined by the Board, there is no statutory remedy to which the City can readily point. When the court inquired about the apparent lack of a remedy at oral argument, the City acknowledged that it did not know what the remedy should be if it were to win.

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. ​Italics indicate WJI insertions.

The case: Andrea Townsend v. ChartSwap, LLC

Majority/Lead Opinion: Justice Patience Roggensack (18 pages) joined in full by Chief Justice Annette K. Ziegler and Justices Rebecca Grassl Bradley and Brian Hagedorn and joined for the most part (except for five paragraphs) by Justices Ann Walsh Bradley, Rebecca F. Dallet, and Jill Karofsky.

Concurrence: Justice Dallet (2 pages) joined by Justices A.W. Bradley and Karofsky.


The upshot

The statutory cap limiting fees health care providers charge for furnishing copies of medical records does not apply to third-party suppliers of medical records.

Background
​
On August 2, 2016, Andrea Townsend ("Townsend") was injured in a car crash. Townsend retained a law firm for her personal injuries, and the firm, with her written consent, sought certified health care records and billings from Milwaukee Radiologists, which was involved in her care.

Following her attorney's request, ChartSwap replied on behalf of Milwaukee Radiologists and provided a one page certified health care record to Townsend, for which it charged $35.87. Townsend's attorneys paid the bill. Townsend then asserted claims against ChartSwap for negligent or intentional violation of the fee structure dictated for health care providers in Wis. Stat. § 146.83(3f)(b) and a claim for unjust enrichment. Townsend also alleged that ChartSwap had collected fees as the agent for and on behalf of Milwaukee Radiologists.

In circuit court, ChartSwap moved to dismiss the complaint, arguing that the statute applies only to "health care providers" and that ChartSwap was not liable even if it was Milwaukee Radiologists’ agent.

The circuit court granted the motion to dismiss, pointing to the plain language of the statute to determine that the fee restrictions applied only to health care providers and not to ChartSwap, whether or not it was an agent of Milwaukee Radiologists.

The court of appeals reversed, holding that as an agent of Milwaukee Radiologists ChartSwap was subject to the fee restrictions. The court of appeals said that the intent of the legislature to protect patients from excessive fees for access to information from their health care providers would be undermined if the fee restrictions did not apply to ChartSwap.

The guts

The "purpose of statutory interpretation is to determine what the statute means so that it may be given its full, proper, and intended effect." Statutory interpretation begins with the language of the statute. If the meaning of the words are plain and unambiguous, a court's inquiry ends and there is no need to consult extrinsic sources of interpretation, such as legislative history. Statutory language is given its "common, ordinary, and accepted meaning, except that technical or specially-defined words or phrases are given their technical or special definitional meaning."

***

Turning to the statute at issue, it provides that when fulfilling a request by a person for medical records, a health care provider may charge no more than the total of all of the following that apply: “1. For paper copies: $1 per page for the first 25 pages; 75 cents per page for pages 26 to 50; 50 cents per page for pages 51 to 100; and 30 cents per page for pages 101 and above. . . . 6. Actual shipping costs and any applicable taxes.” By the terms of the statute itself, these restrictions apply only to health care providers, a term which is defined in an adjacent statutory provision. Here, neither the parties nor the court of appeals contend that ChartSwap is a health care provider, as defined . . . .

Instead, in order to hold ChartSwap liable, despite not being defined as a health care provider, the court of appeals cited a third statutory section, which imposes "liability upon 'any person . . . who violates” the fee-restriction statute. The court of appeals reasoned that, rather than focusing on a definition of "health care provider," the context and structure of the statute, as well as the legislature's decision to impose liability on "any person," should control whether ChartSwap is liable for charging more than the fee-restriction statute permits.

***

[I]t is not absurd for the legislature to make policy decisions regarding the applicability of statutes to different constituents. At some point, there will be a cutoff. This is a policy choice that legislatures frequently make, and policy choices are left to legislative discretion.

***
[I]t bears repeating that statutory interpretation begins with the language of the statute. If the meaning of the words are plain and unambiguous, the court's inquiry ends, and there is no need to consult extrinsic sources of interpretation, such as legislative history.

***

Even after acknowledging that ChartSwap is not a health care provider under the statutory definition, the court of appeals reasoned that the "intent of the legislature was to ensure that patients have access to medical records in the custody and control of health care providers without being charged more than the reasonable costs of copying and mailing them." The court of appeals reliance on its perception of legislative intent when construing a statute is misplaced . . . .

***

[O]nce the court of appeals acknowledged that ChartSwap was not a statutorily-defined health care provider . . . the court of appeals' inquiry in regard to ChartSwap should have stopped. . . .

***

Townsend seeks to hold ChartSwap liable because of the fees it charged for health care records that were generated by Milwaukee Radiologists, a health care provider. However, an agent is subject to "liability to a third party harmed by the agent's conduct only when the agent's conduct breaches a duty that the agent [itself] owes to the third party." Stated otherwise, in order for an agent to be held liable for a statutory violation committed while acting on behalf of a principal, that same conduct also would need to violate the statute if done in the agent's personal capacity. However, no breach of an independent duty of ChartSwap to Townsend is alleged to have occurred. Rather, a breach of Milwaukee Radiologists' statutory duty to Townsend is alleged.

***

We conclude that, under a plain meaning interpretation of the fee restriction statute, ChartSwap is not a health care provider; and, therefore, it is not subject to the fee restrictions . . . which regulate health care providers. Additionally, we conclude that neither common law principles of agency nor the plain meaning of an agency statute supports the conclusion that an agent is personally liable for charging more for health care records than the statute permits its principal to charge. Accordingly, we reverse the decision of the court of appeals.

​​The concurrence

In the majority opinion Justice Roggensack referred to a method of statutory construction that involves comparing specific language to general language. She said that “[i]f the court of appeals had employed the general/specific canon of statutory construction, it could have assisted its interpretations” of the pertinent statutes.
​

Although the substantive canons of statutory interpretation may sometimes be helpful in determining what the legislature meant to say, here they only confuse the analysis. The statutes at issue are straightforward, and understanding them requires no outside interpretive help. I agree with the majority opinion that the fee-restriction statute, by its plain meaning, does not apply to ChartSwap. As the majority opinion acknowledges, that should end the analysis. Instead, it muddies the waters by attempting to apply an inapposite canon of construction. I therefore respectfully concur.

The case: Kathy Schwab v. Paul Schwab
​
Majority: Justice Rebecca F. Dallet (12 pages),  joined by Justices Ann Walsh Bradley, Jill J. Karofsky, and Patience D. Roggensack.

Dissent: Justice Annette K. Ziegler (11 pages), joined by Justices Rebecca Grassl Bradley and Brian Hagedorn.

Dissent: Grassl Bradley (8 pages)

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....

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