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. 

                                                                               ***

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.

                                                                               ***

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....

                                                                                        ***

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

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

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

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

Dissent: Grassl Bradley (6 pages)

Justice Brian Hagedorn did not participate.

First, a footnote from Karofsky:

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

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

The upshot

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

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

Background

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

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

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

The case was heard by an administrative law judge.

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

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

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

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

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

The upshot

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

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

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

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

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

Background

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

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

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

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

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

In support of this argument, it asserted:

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

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

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

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

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

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

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

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

The guts

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

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

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

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

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

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

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

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

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

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

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

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

Concurrence:

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

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

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

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

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

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