The dissent

While the standards for establishing municipal liability under § 1983 are rigorous, "they are not insurmountable." In order to establish liability and survive summary judgment on her claim against Dunn County, Slabey must bring sufficient evidence for a jury to reasonably find that Dunn County (1) had an official policy, custom, or decision, (2) that demonstrated the requisite level of culpability, and (3) caused her injury. . . .

First, Slabey must identify an official Dunn County policy or custom that caused her injury. The Supreme Court has recognized that a decision by an official with final policy-making authority meets this requirement—that is, municipal liability attaches when "a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question." Inaction, as well as action, may serve as the basis for municipal liability, depending on the circumstances.

Second, Slabey must establish Dunn County's culpability, which under Monell means that she must provide sufficient evidence for a jury to find that the county's actions demonstrated a "deliberate indifference" to the "known or obvious" consequence that a constitutional violation would occur. While a pattern of constitutional violations is "ordinarily necessary" to establish the requisite notice that an official course of conduct is inadequate, the risk of a constitutional violation may be so obvious that the municipality's actions could demonstrate deliberate indifference to that risk. The Supreme Court in City of Canton v. Harris provided the following example of deliberate indifference: if city policymakers, having armed their police officers with firearms, fail to train those officers on the constitutional limitations on deadly force, that failure could be characterized as deliberate indifference. . . . And in J.K.J. v. Polk County the Seventh Circuit provided another, one relevant to this case: the failure to institute more robust policies to prevent the sexual assault of female inmates in the face of a guard's escalating behavior can demonstrate deliberate indifference to the known or obvious risk of sexual assault.

Third, Slabey must establish sufficient evidence for a jury to find that Dunn County's actions caused her injury. That is, the official actions must be the "moving force" behind the constitutional violation. . . .

Slabey established sufficient evidence for a jury to find for her on each of these three requirements by: (1) identifying a course of action by a final policy-maker—namely, the Sheriff's choice to return Boigenzahn to his standard shift with no additional supervision; (2) alleging sufficient evidence for a jury to conclude that the risk of sexual assault was so predictable that the Sheriff's course of action constituted deliberate indifference; and (3) alleging sufficient evidence to show that the Sheriff's course of action caused the sexual assault. Her § 1983 claim against Dunn County should therefore survive summary judgment. . . .

. . . . As Slabey points out, and Dunn County does not dispute, the Sheriff was the final policy-maker for staffing and disciplinary decisions at the Dunn County Jail. And he, as that final policy-maker, deliberately chose to adopt a particular course of action—to retain Boigenzahn and send him back to guard female inmates alone, on the lightest-staffed shift, with no additional supervision, investigation, or follow up. The Sheriff had "various alternatives" to his course of action. One of those alternatives was to terminate Boigenzahn. Termination was not just an option, but (as the Sheriff acknowledged), the typical disciplinary response for violations of the fraternization policy. Another alternative was to adjust Boigenzahn's schedule to accommodate increased supervision and monitoring of his behavior. The Sheriff considered these alternatives, but instead chose the one course of action that would allow Boigenzahn to spend significant time alone and unmonitored with female inmates.

                                                                                                              ***

Slabey also met the culpability requirement because she presented enough evidence for a jury to reasonably find that the Sheriff's official course of action was taken with deliberate indifference to the known or obvious risk that a sexual assault would occur. Whether the risks were known or obvious and whether the Sheriff acted with deliberate indifference are questions of fact. . . . (A) jury, assessing the facts of this case, could reasonably conclude that: (1) Boigenzahn’s prior behavior created a known or obvious risk that he would sexually assault an inmate and (2) the Sheriff's decision to send Boigenzahn back to guard female inmates reflected deliberate indifference to that risk.

                                                                                                               ***

. . . . (E)vidence of an obvious risk of sexual assault can support both a finding of "deliberate indifference" and "an inference of causation—that the municipality's indifference led directly to the very consequence that was so predictable." If a jury could reasonably conclude that the risk of sexual assault was obvious enough that the failure to take action constituted deliberate indifference, it may take "but a small inferential step" for a jury to find that the failure to take action caused the injury. Causation, like culpability, is a fact question for a jury—"finding causation is not a mechanical exercise like working a math problem and getting an answer, but instead requires jurors to view evidence in its totality, draw on their life experiences and common sense, and then reach reasonable conclusions about the effects of particular action and inaction" (emphasis in original). Here, Slabey established enough evidence for a jury to do so.

                                                                                                             ***

Based on the evidence Slabey provided, a jury could find that Dunn County Sheriff's Department officials ignored the clear warning signs that Boigenzahn had already engaged in inappropriate and escalating behavior with female inmates and then created the circumstances that allowed Boigenzahn to sexually assault Slabey. The Sheriff's deliberate course of action enabled Boigenzahn to escape detection for 45 minutes as he was working alone, unsupervised, and unmonitored in the Huber dorm on the night he sexually assaulted Slabey. Slabey provided sufficient evidence for a jury to reasonably find that the Sheriff's course of action both demonstrated deliberate indifference and was the causal "moving force" behind the sexual assault. Slabey's § 1983 claim against Dunn County should therefore survive summary judgment.

When municipalities take inmates into custody, they assume a responsibility to protect them from sexual assault. But this responsibility means little if the justice system is unwilling to hold municipalities accountable when they fail to protect their inmates. When municipalities are not held to account, measures like PREA, enacted to eliminate sexual assault in jails and prisons, are reduced to little more than a perfunctory policy for correctional staff to sign, then freely disregard. Dunn County threw a match into the tinderbox when it sent Boigenzahn back to guard female inmates. The majority's failure to hold Dunn County accountable is akin to standing idly by as the fire burns. ​

The guts

A circuit court may issue a temporary injunction if four criteria are fulfilled: (1) the movant is likely to suffer irreparable harm if an injunction is not issued, (2) the movant has no other adequate remedy at law, (3) an injunction is necessary to preserve the status quo, and (4) the movant has a reasonable probability of success on the merits. ...

We begin by observing the limited nature of our review and emphasize that this case is not about the efficacy of ivermectin as a treatment for COVID-19. Rather, it is about whether the circuit court erroneously exercised its discretion by issuing the subject temporary injunction.

Gahl raises three arguments in this court in an attempt to demonstrate that the court of appeals erred and that in fact the circuit court had the authority to issue a temporary injunction. First, he contends that the power of attorney statute, Wis. Stat. § 155.30(1), provides authority to issue the subject injunction. Second, Gahl asserts that the circuit court has inherent authority to issue such an injunction. Finally, he advances that the circuit court may issue the injunction in question under a theory of implied contract between Zingsheim and Aurora. Aurora disputes each of these bases.

We need not address in depth any of Gahl's arguments because we do not know on what basis the circuit court issued the injunction. The circuit court cited no law in either its written order or its oral ruling, as Gahl conceded at oral argument before this court. This in itself constitutes an erroneous exercise of discretion. 

                                                                                                         ***

A circuit court erroneously exercises its discretion in the context of a temporary injunction when it "fails to consider and make a record of the factors relevant to its determination." Further, whether the party seeking an injunction has a reasonable probability of success on the merits in part turns on whether the moving party has stated a claim entitling it to relief.

Although the circuit court acknowledged the four factors that must be fulfilled in order for a temporary injunction to be granted, it did not engage in any analysis of those factors. We base our determination here on its lack of analysis of Gahl's reasonable probability of success on the merits. Indeed, from a review of the circuit court's order, we do not know upon what legal basis it premised its authority to issue the injunction in the first instance. In other words, we do not know what viable legal claim the circuit court thought Gahl had presented. Without identifying the legal basis it accepted, the circuit court cannot support the conclusion that Gahl has demonstrated a reasonable probability of success on the merits. ...

In exercising its discretion, there are no "magic words" the circuit court must utter or any precise level of specificity that is required. But the record must make clear that the circuit court examined the relevant facts, applied a proper standard of law, and, using a demonstrated rational process, reached a conclusion that a reasonable judge could reach. 

The circuit court heard legal argument and at one point stated that is (sic) "has a significant respect for an individual's right to choose their treatment." However, such a stray reference does not equate to a legal analysis of the probability of success on the merits of Gahl's legal claim. The circuit court did not tie such "respect" to any legal analysis or indicate how it could serve as a basis for the declaratory and injunctive relief Gahl sought.

​We therefore conclude that the circuit court erroneously exercised its discretion by issuing an injunction without referencing any basis demonstrating that Gahl had a reasonable probability of success on the merits of some type of legal claim. ​

The upshot

​Citation Partners, LLC owns an aircraft which it leases to third parties, the Lessees. As part of the total amount the Lessees pay to lease the aircraft, Citation Partners charges per-flight-hour rates for aircraft repairs and engine maintenance. Those rates correspond to the amount Citation Partners spends on aircraft repairs and engine maintenance. Citation Partners argues that this portion of the lease payment is tax exempt because it is a sale of aircraft parts or maintenance. We disagree. The per-flight-hour charges for aircraft repairs and engine maintenance are taxable because they are part of the total amount of consideration the Lessees pay to lease Citation Partners' aircraft. We therefore affirm the court of appeals' decision. 

Background

​Citation Partners owns an aircraft that it leases to the Lessees. The Lessees signed a contract called the Aircraft Dry Lease, defining the responsibilities they and Citation Partners have with regard to the lease of the aircraft. The Dry Lease requires the Lessees to notify Citation Partners if the aircraft needs repairs or maintenance. If so, Citation Partners is responsible for scheduling and paying for all repairs or maintenance. It does not perform any of the repairs or maintenance itself. ​

In addition to the Dry Lease, the Lessees entered into a Side Agreement with Citation Partners that sets forth the financial terms for the lease of the aircraft. The Side Agreement includes costs-per-flight-hour that Citation Partners charges the Lessees for aircraft repairs and engine maintenance. Those charges are substantially similar to the amount Citation Partners spends when it purchases aircraft repairs and engine maintenance directly from vendors. 

In 2013, the Legislature passed Wisconsin Act 185, which expanded an existing sales tax exemption to include the sale of aircraft parts or maintenance. After the Act took effect, Citation Partners stopped collecting sales tax on the amounts it charged Lessees for aircraft repairs and engine maintenance. In 2017, the Wisconsin Department of Revenue notified Citation Partners that unpaid sales taxes were due on those amounts. 

Citation Partners appealed and won in Dodge County Circuit Court before Circuit Judge Martin J. De Vries, but the Court of Appeals reversed that decision, meaning Citation Partners was on the hook for the taxes again.

The guts
​
State statutes together state that the total amount of consideration paid for a lease – the "sales price" – is taxable, with no deduction for the lessor's costs.

                                                                                                         ***

The sum of those (per-hour flight) costs – including for aircraft repair and engine maintenance – is thus "the total amount of consideration . . . for which [the aircraft is] . . . leased" and is therefore taxable. If there were any doubt remaining as to whether Citation Partners' costs for aircraft repairs and engine maintenance can be deducted from the sales price, § 77.51(15b)(a) confirms that the "total amount of consideration" must be calculated "without any deduction" for Citation Partners' costs. 

Citation Partners argues that the payments are not taxable because they are not consideration at all. That is because, in its view, Citation Partners simply hands the money the Lessees pay for repairs and maintenance over to the vendors that provide those services. But consideration is "any act of the plaintiff from which the defendant . . . derives a benefit or advantage." And Citation Partners clearly benefits from these payments by passing along to its Lessees the costs of maintaining its aircraft. For that reason, these payments are – by definition – consideration. Additionally, accepting Citation Partners' argument that it receives no consideration from the Lessees' payments for aircraft repairs and engine maintenance simply because that payment corresponds to anticipated repair costs would render part of (the statute) meaningless. After all, if Citation Partners is right, it is not clear what (the law) means when it says that the "sales price" – the "total amount of consideration" – is calculated "without any deduction" for Citation Partners' costs. 

Citation Partners claims that the costs-per-flight-hour that it receives for aircraft parts and engine maintenance are nevertheless tax exempt. It points to two statutory exemptions related to aircraft: Wis. Stat. § 77.54(5)(a)3., which exempts the sale of "parts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10., which exempts the sale of "repair, service, . . . and maintenance of any aircraft or aircraft parts." Citation Partners argues that since the plain language of both exemptions covers the costs of aircraft repairs and engine maintenance, then "the reimbursement payments that Citation Partners receives from the Lessees are exempt from sales tax."  

We disagree because neither of these statutory exemptions applies to the payments Citation Partners receives from the Lessees. Simply put, Citation Partners does not sell its Lessees "parts used to modify or repair aircraft," or "repair, service, . . . and maintenance of any aircraft." It leases its aircraft to the Lessees. And as explained previously, the statutes already make clear that the total amount of consideration paid on an aircraft lease is taxable without any deduction for the Lessor's costs. When Citation Partners (or the Lessees for that matter) buy aircraft repairs or engine maintenance directly, those transactions are tax-exempt. But when Citation Partners passes those costs along to its customers as part of the total amount of consideration in a lease, that transaction is taxable. 

                                                                                                         ***

Citation Partners tries to circumvent the plain language of the statutes by arguing that it is the Lessees' agent when it purchases aircraft repairs and engine maintenance. And for that reason, the per-flight-hour reimbursements for aircraft repairs and engine maintenance are akin to the Lessees purchasing those repairs and maintenance directly.

An agency relationship is a "fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control." ...

Citation Partners relies on the lease documents as "provid[ing] the framework for the agency relationship." It points out that the Dry Lease makes the Lessees responsible for "inspect[ing] the Aircraft" and notifying Citation Partners if "any repair or maintenance should be completed." Additionally, the Dry Lease contains an indemnification provision under which the Lessees are "ultimately responsible for all obligations, expenses and disbursements asserted against Citation Partners arising out of the operation of the Aircraft."  

Rather than prove an agency relationship exists, the lease documents reveal the opposite. The Dry Lease states that Citation Partners – not the Lessees – "shall schedule and pay for all repairs and maintenance." And that decision is not "directed" by the Lessees just because they must notify Citation Partners of necessary maintenance upon inspection of the aircraft. Rather, the Lessees' inspection obligation is limited to confirming that the aircraft is flightworthy before using it. Likewise, under the Dry Lease, the Lessees have only limited authority to purchase repairs and maintenance up to $5,000, and are reimbursed by Citation Partners if they do so. Additionally, although the parties entered into a new Side Agreement in 2015 which states that the Lessees are "responsible for fixed and indirect operating expenses and charges attributable to the operation and maintenance of the Aircraft," including "[s]cheduled and unscheduled maintenance," nothing in that Agreement or the Dry Lease suggests that the Lessees control Citation Partners' aircraft-maintenance activities. 

                                                                                                         ***
​
​Wisconsin imposes a five percent sales tax on the sale or lease of tangible personal property like Citation Partners' aircraft. The tax applies to the total "sales price" of the lease unless there is an applicable exemption. Two such exemptions exist for the sale of aircraft parts and maintenance, but neither apply to the Lessees' payments to Citation Partners for aircraft repairs and engine maintenance. Accordingly, we hold that the total amount of consideration the Lessees pay to lease Citation Partners' aircraft is taxable, and affirm the court of appeals' decision.

Dissent 

The majority opinion never interprets §§ 77.52(2)(a)10. or 77.54(5)(a)3, (see Dallet's opinion above for her reasoning rejecting the application of these exemptions) which address aircraft repairs and aircraft parts. It skips over the plain meaning of those two statutes, and instead, it interprets Wis. Stat. §§ 77.51(15b)(a) and 77.52(1)(a), neither of which contains the word, "aircraft," nor does either statute mention aircraft parts or aircraft maintenance. ...

The plain meaning of those statutes grants Citation Partners the sales tax exemption it seeks. Because the majority opinion chooses to follow the error-strewn path of the Tax Appeals Commission (TAC), which contravenes the clear statutory direction to exempt the sales price of aircraft parts and aircraft maintenance from state sales taxes, I respectfully dissent. 

                                                                                                         ***
​
Section 77.52(2)(a)10. is broadly stated. The statute applies to "any aircraft or aircraft parts." (Emphasis added.) There is no statutory limitation on the statute's use that refers to whether the "selling, licensing, performing or furnishing" of aircraft parts or services are set out in a written agreement or performed without a written agreement. There is no limitation on whether the person responsible for that financial obligation pays the vendor directly or pays another who has paid the vendor on that person's behalf. 

                                                                                                         ***

In this matter, we are concerned about how TAC's factual findings affected its decision not to apply Wis. Stat. §§ 77.52(2)(a)10. and 77.54(5)(a)3. to the transaction under review here. As explained below, I conclude that the TAC's material factual findings that underlie its legal conclusion are not supported by substantial evidence, and therefore, TAC's decision must be set aside.

                                                                                                         ***

(U)nder the Side Agreement, the lessees are obligated to pay for repairs and maintenance of the aircraft. Therefore, Citation Partners is being reimbursed under the Side Agreement for obligations of the lessees that it paid on their behalves. 

In addition to its misreading of record exhibits, the TAC ignores the Stipulation of Facts that the parties jointly submitted. That stipulation in paragraph 3 states, "the Side Agreements and invoices to lessees expressly provided for dollar for dollar reimbursement by each of the lessees of the Aircraft of both engine maintenance cost and Aircraft maintenance cost." Notwithstanding that factual stipulation the TAC says, "That starting point, reimbursement, presupposes that each Lessee was obligated to pay for repair and maintenance such that the Lessor, in effect, paid the expenses on behalf of the Lessees. That is not what happens under these Agreements." However, reimbursement from the lessees for expenses that Citation Partners paid for the lessees is exactly what the parties represented in the Factual Stipulation that they provided to TAC, as well as under other record exhibits.

Accordingly, TAC's material factual findings are not supported by substantial evidence, and they must be set aside based on documents in the record and the Stipulation of Facts that the parties provided to the TAC. 

TAC's legal conclusions are grounded in its erroneous factual findings. As with the majority opinion, the TAC does not interpret the statutes that are at issue here. Instead, it interprets Wis. Stat. § 77.51(15b)(a), which does not mention aircraft maintenance, aircraft parts or aircraft in any regard. Nevertheless, TAC concludes that "expenditures for those repairs and maintenance parts and services are not separately exempt when incorporated into the lease payments of a subsequent lease of the entire Aircraft."

Rather, it is Wis. Stat. § 77.54(5)(a)3. that creates an "exemption" for the "sales price" of "[p]arts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10. that sets sales of "repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection and maintenance of any aircraft or aircraft parts" outside the scope of state sales taxes. Nothing in either statute changes those exemptions when an aircraft is leased. Stated otherwise, there is nothing in either statute that limits its use when obligations to pay for aircraft maintenance and parts are incurred pursuant to written documents rather than directly to the vendors.

                                                                                                         ***

Rather, it is Wis. Stat. § 77.54(5)(a)3. that creates an "exemption" for the "sales price" of "[p]arts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10. that sets sales of "repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection and maintenance of any aircraft or aircraft parts" outside the scope of state sales taxes. Nothing in either statute changes those exemptions when an aircraft is leased. Stated otherwise, there is nothing in either statute that limits its use when obligations to pay for aircraft maintenance and parts are incurred pursuant to written documents rather than directly to the vendors.

The case: Marilyn Casanova v. Michael S. Polsky, Esq. 
Majority: Justice Rebecca Grassl Bradley (26 pages), for a unanimous court.

The upshot
After the Atrium, a senior-living facility, defaulted on debt service payments to a group of bondholders, the facility filed a petition for receivership. The court-appointed receiver sold the Atrium's assets, generating more than $4 million in proceeds. According to the receiver, the Atrium owed the bondholders more than $6 million, secured by a valid mortgage lien on the Atrium's estate. Many of the Atrium's residents claimed they were entitled to the proceeds of the sale because, under their residency agreements, they were owed reimbursement of the entrance fees they paid to the Atrium. The circuit court concluded the bondholders' mortgage lien was superior to the residents' entrance fee claims. The court of appeals reversed, applying M&I First National Bank v. Episcopal Homes Management, Inc.​ to deem the residents' claims superior to the bondholders' lien.

Before this court, the residents concede the bondholders possess a valid, perfected mortgage lien on the Atrium's estate, but the residents argue (1) the bondholders contracted away the superiority of their mortgage lien, and (2) Episcopal Homes grants entrance fee claims superiority. We disagree and hold: (1) Under Wis. Stat. § 128.17, the bondholders' mortgage lien is superior to the residents' contract claims; (2) the bondholders did not contract away the superiority of their lien; and (3) Episcopal Homes does not apply to the proceeds from the sale of real property with a properly perfected mortgage lien. We therefore reverse the decision of the court of appeals. 

Background

The Atrium of Racine, Inc. was a nonprofit corporation that owned and operated a 76-unit senior-living facility. In 2002, the Atrium sought to build an assisted-living home called Bay Pointe. To finance the project, the Atrium contracted with the Elderly Housing Authority of the City of Racine (the Authority) to issue bonds. ... 

The bonds to finance construction eventually were held by Bank One Trust Company, a trustee for a group of about 800 investors. Various contracts were signed by different parties. 

.... As required by securities regulations, the bond underwriter prepared an Official Statement summarizing the material terms and conditions of the bond issuance as well as the risks of investing. Because the Official Statement is not a contract, it was not signed by any party, nor was it incorporated by reference into any contract. 

Bank One purchased $8,050,000 in Atrium bonds from the Authority under the Trust Indenture, which assigned to Bank One (as Bondholders' Trustee) the Authority's Mortgage lien on the Atrium's estate. ... No party disputes the bondholders possess a properly perfected mortgage lien on the Atrium's estate. 

                                                                                          Residency agreements
Before moving into the Atrium, each resident signed a residency agreement requiring the resident to pay an entrance fee ranging from $40,000 to $238,000. Collectively, Atrium residents had paid over $7.5 million in entrance fees at the time this suit started. Upon moving out of the Atrium, each resident's entrance fee would be partly refundable when a new resident moved into the Atrium and paid an entrance fee. ... Once a new fee was paid, the Atrium used that money to refund the entrance fee paid by the former resident. Entrance fees were deposited in the Atrium's general operating account –  commingled with the funds for day-to-day expenses – rather than a segregated account.

                                                                                                    Receivership
This suit arose when the Atrium defaulted on its debt service payments to the bondholders. ...

                                                                                                           ***

The receiver notified the Atrium's creditors and other interested parties of his appointment and requested they file their verified claims with the circuit court. Residents individually filed proofs of claim for refund of entrance fees collectively totaling more than $7 million. ...

The bondholders filed their own proof of claim for $6,264,620.65. The receiver noted the bonds were "secured by first position properly perfected security interests and mortgages" and determined the Atrium owed the bondholders' trust more than $6,097,000. As for cash in the Atrium's estate, the receiver found only two accounts, neither holding funds sufficient to continue operating the Atrium – or to pay the debt owed to the bondholders. The first account was a "general operating account" containing $80,795.11; the second was a "Resident Trust Account" containing less than $3,000. According to counsel for the receiver, the Resident Trust Account "did not have entrance fees deposited" into it. Instead, it held "some minimal amount of funds that [were] paid by the residents for various services at the debtor's facilities[.]" 

The receiver eventually sold the Atrium for $5.5 million, with the money to go to the bondholders. 

The residents lost in circuit court, appealed, and the appeals panel reversed the circuit court. The bondholders and the receiver then turned to the Supreme Court.

The guts

Relying on provisions of the Financing Documents and the Official Statement, the residents assert the bondholders contracted away the superiority of their Mortgage lien. Certain provisions, they argue, subordinated the bondholders' Mortgage lien to the contractually required repayment of the residents' entrance fees. We disagree.

                                                                                                           ***

​Section 706.11(1) provides that when "[a]ny mortgage executed to a state or national bank" "has been duly recorded, it shall have priority over all liens upon the mortgaged premises and the buildings and improvements thereon . . . filed after the recording of such mortgage" with exceptions only for certain categories of liens under which the residents' entrance fee claims undisputedly do not fall. 

                                                                                                           ***

The residents argue the bondholders consented in the Financing Documents and the Official Statement to the subordination of their Mortgage. Although "[i]t is true that a subordination can be incorporated" into any contract the Official Statement is not a contract and the Financing Documents do not contain any provision subordinating the bondholders' Mortgage. 

                                                                                                           ***

The residents contended that the bondholders waived primacy in financing documents, including the Official Statement. 

Because the Official Statement is not a contract, it is incapable of containing a subordination agreement. It is not an agreement at all, in whole or in part. The residents contend the Official Statement must be "controlling" because there is no other explanation for why it exists. To the contrary, it exists because the government says it must. The residents accurately argue the Official Statement serves as a notice to investors of investment risks and "what claims might be superior to theirs," but nothing in the Official Statement actually subordinates the bondholders' Mortgage.

                                                                                                           ***

Other provisions on which the residents rely likewise merely acknowledge superior claims might exist. ... The key word in these provisions is "may." Like "subject to," this word does not subordinate the Mortgage. It most naturally conveys only "a possibility."  In effect, these provisions merely convey there is a possibility Permitted Liens could be superior to the Mortgage lien. Possibilities are not realities; the residents never attempted to create liens on the Atrium's real property, and these provisions do not subordinate the bondholders' secured lien to the residents' unsecured claims for entrance fees. 

                                                                                                           ***

The residents next rely on Episcopal Homes – a court of appeals decision not binding on this court. ...

                                                                                                          ***

In Episcopal Homes, the circuit court granted summary judgment in favor of the DeKoven development residents and imposed a constructive trust against the entrance fee account. The court of appeals affirmed, concluding DeKoven had contracted with each resident as landlord and tenant; accordingly, the court deemed the rental agreements leases. Based on the language of the rental agreements, the court concluded the entrance fees were effectively security deposits under Wisconsin Administrative Code governed by the public policy espoused in the administrative code. Because Wisconsin Administrative Code prohibits using standard forms to place additional conditions on the return of security deposits, the court determined any subordinating provisions in the rental agreements were unenforceable.

The appeals court agreed.

Episcopal Homes is inapplicable to the facts of this case. In Episcopal Homes, the court of appeals exercised equitable powers against a segregated account containing funds traceable to the residents' payment of entrance fees. In contrast, the residents of the Atrium seek to usurp a first priority lien on the proceeds from the sale of real property. Whatever equitable powers courts may possess, nothing in law or equity authorizes courts to disrupt the statutorily prescribed priority of secured lenders. 

                                                                                                           ***

The residents' argument for extending Episcopal Homes beyond a segregated account of entrance fees not in receivership to reach the materially distinct proceeds from the sale of real property subject to a perfected mortgage lien asks this court to disregard the plain language of chapter 128. We have no legal authority to do so. 

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

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

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

Concurrence: Hagedorn (2 pages).

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

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

The upshot

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

Background

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

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

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

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

The guts

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

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

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

                                                                                                    ***

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

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

                                                                                                   ***

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

                                                                                                  ***

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

                                                                                           ***

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

                                                                                           ***

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

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

                                                                                           ***

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

Concurrence

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

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

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

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

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

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

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

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

                                                                                                         ***

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

Nevertheless, the error was harmless, Dallet said.

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

Concurrence

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

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

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

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

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

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

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

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

Concurrence: Justice Brian Hagedorn (35 pages)

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

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

Concurrence: Roggensack (14 pages)

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

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

Concurrence

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

                                                                                   ***

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

                                                                                   ***

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

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

                                                                                   ***
Standing

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

                                                                                   ***

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

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

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

                                                                                   ***

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

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

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

Drop boxes and ballots

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

                                                                                   ***

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