Sample opinions from this year's Wisconsin Supreme Court candidates

By Alexandria Staubach
 
As Wisconsin prepares for a Supreme Court election between two appellate judges, examining judicial track records is helpful for understanding a candidate's potential impact on the high-court bench.
 
Past rulings can provide insight on how the candidates approach the cases before them, reason and interpret law to get to their decisions, and explain those decisions to lower courts and the public.
 
Court of Appeals Judges Maria Lazar and Chris Taylor vie for an open seat on the Supreme Court. The election is April 7.
 
Voters may be familiar with some of the high-profile roles each judge held before their appellate court positions. Taylor served as the public policy director for Planned Parenthood for a decade, held a seat in the Wisconsin Legislature, then became a Dane County Circuit Court judge. Lazar worked in private practice for business clients, had a high-profile position in then-Gov. Scott Walker’s Department of Justice, and then was a Waukesha County Circuit Court judge.
 
Voters are likely less familiar with the candidates’ tenures on the Court of the Appeals.
 
The work of the Court of the Appeals is inherently blander than the candidates’ lawyer or trial judge work, but it is likely much more representative of what they will encounter on the high court.
 
With 16 judges employed across four districts, the Court of Appeals resolves appeals covering every area of the law. Lazar sits in District 2 (comprising the counties surrounding Milwaukee County) and Taylor sits in District 4 (comprising Dane County and the southwest portion of the state).  On average, a District 2 judge would resolve 185 cases in a year and a District 4 judge 132.
 
Unlike the Wisconsin Supreme Court, the appeals court rarely hears oral arguments, however.

Sparked by an audience question at a recent presentation by WJI about the election, WJI has examined a variety of appellate opinions authored by the two candidates and is providing a selection of them for voter information.
 
District 2 (Lazar) is the busier of the two jurisdictions and sometimes lands high-profile cases, such as those involving the Legislature or Wisconsin Department of Justice. District 4 (Taylor) is the next busiest appellate court and includes most appeals from Dane County Circuit Court.
 
For each judge we’ve included three opinions on which she was the lead author: one criminal case, one family law case, and one civil case. All but one are published cases. We could not find a recent published opinion by Lazar directly related to criminal law so have provided an unpublished opinion she authored.
 
Generally, published opinions are considered precedent and can be cited as controlling law for later cases, while unpublished authored opinions may be cited only for persuasive purposes.
 
Later this week, the Wisconsin Supreme Court will hear oral argument over another opinion Lazar authored regarding the use of state settlement funds.
 
Below we quote short excerpts from each case and link to the full opinions for those who want to review more of the candidates’ reasoning and writing. We have removed citations for ease of reading. Italics are WJI’s additions. The candidates are presented alphabetically by last name.

Court of Appeals opinions by Judge Maria Lazar
 
Wildwood Estate LLC v. Village of Summit — Civil
An individual’s “right to maintain control over his [or her] home, and to be free from governmental interference, is a private interest of historic and continuing importance.” The “valuable rights” associated with this interest include “the right of sale, the right of occupancy, the right to unrestricted use and enjoyment, and the right to receive rents.”
 
It is for this reason that municipalities may not pass zoning ordinances under the “guise of the police power” without following the procedural steps designed to protect citizens’ rights. Because the Ordinance changes the allowed uses of property and includes multiple indicia of traditional zoning ordinances, the circuit court correctly concluded that it was a zoning ordinance. And, as the circuit court noted, the Village’s passage of the Ordinance sidestepped the proper process to enact a zoning ordinance. We conclude that the Village did violate Wildwood’s procedural due process rights.
 
Danielson v. Danielson  – Family law
The ultimate question is whether social security benefits expected for one spouse fall within the factors a trial court should consider in achieving an equitable marital property division. Clearly, the court is to consider the “contribution of each party to the marriage” and the salaries the spouses earned. The trial court should also look to the “economic circumstances of each party, including pension benefits,” even if it determines not to divide them between the spouses.
 
Moreover, we conclude that social security benefits are “substantial assets not subject to division by the court” and count as “other factors [that] the court may in each individual case determine to be relevant.” Our supreme court has “repeatedly stated that ‘the aim of all statutory construction is to discern the intent of the legislature,’ and that a ‘cardinal rule in interpreting statutes’ is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act.”
 
State v. Baker – Criminal
The State charged (Ashley Rae) Baker with one count of carrying a concealed weapon without a license. Baker filed a motion to suppress the evidence, asserting that (Officer Michael) Moore did not have a legal basis to search her purse without a warrant. At the hearing on Baker’s motion, Moore was the sole witness. He testified to the facts above and stated that his search of the purse was based on the “totality of everything,” including his observation of Baker coming out of a house known for drug activity and the marijuana found in the vehicle. He expressed a concern for “the potential for any concealment of other items,” saying that “any time that someone gives us a breadcrumb” it could be “to deter finding the loaf of bread.” He further noted that he believed Baker may have had paraphernalia or drugs on her person or with her, because (in addition to the shake found throughout the vehicle) the marijuana found in the center console area “would have … been essentially under her left elbow” while she was in the front passenger seat.
 
….
 
…. Baker was seen leaving a house known for active drug activity after a ten-minute visit and was riding in a car that had marijuana and drug paraphernalia throughout, including approximately one half gram of marijuana and a marijuana grinder between her and the driver—“essentially under her left elbow.” We agree with the circuit court’s assessment that this evidence is sufficient to establish a “nexus between the defendant and the drugs in the car.” This is not a case of guilt by association—which could be said if, for example, the only marijuana found prior to the search of Baker’s purse had been the marijuana blunt in her companion’s pocket—but rather a case where Moore’s belief that Baker was committing the crime of possessing marijuana was reasonable under the totality of the circumstances. 

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Court of Appeals opinions by Judge Chris Taylor
 
Hubbard v. Neuman – Civil
We reject Dr. (Carol) Neuman’s argument that it “would lead to absurd and unworkable results” if a physician who does not perform the procedure at issue has a duty to inform the patient about the availability, benefits, and risks of reasonable alternate treatment options. According to Dr. Neuman, this would result in discouraging “the intra-disciplinary communication and cooperation that is critically important to effective patient care.” For instance, Dr. Neuman asserts that, if this duty is not limited to the physician actually performing the surgery or procedure, then all family practitioners or primary care providers who ever refer a patient to a specialist could be liable if the referring physician fails to disclose the risks associated with the care or treatment provided by the specialist.
 
As explained above, the allegations in the complaint, and the reasonable inferences, assert that Dr. Neuman was (Melissa) Hubbard’s treating OB/GYN, had expertise as an OB/GYN in the treatment options for pelvic endometriosis, diagnosed Hubbard’s pelvic endometriosis, was actively involved in the planning and preparations for the removal of Hubbard’s ovaries during the February 2018 surgery, initially planned to perform the removal of Hubbard’s fallopian tubes, ovaries, and uterus during that surgery, and recommended that Dr. McGauley remove Hubbard’s ovaries. Recognizing that Hubbard has alleged sufficient facts to support a claim that Dr. Neuman had a duty to inform Hubbard in this situation protects Hubbard’s ability “to intelligently exercise [her] right to consent or to refuse the treatment or procedure proposed.”
 
J.J.D. v. M.W. – Family law
To protect the rights of a parent in a TPR (termination of parental rights) case, if the parent seeks to admit to grounds supporting the termination, “[t]he circuit court must engage the parent in a colloquy to ensure that the plea is knowing, voluntary, and intelligent.” “This colloquy is governed by the requirements of WIS. STAT. § 48.422(7) and notions of due process.”
 
….
 
Our supreme court has identified additional colloquy requirements to protect a person’s parental rights. A circuit court must ensure that the parent is “informed of the statutory standard the court will apply at the second stage” of the TPR proceedings; that is, that the child’s best interest will govern. The court must also ensure that the parent understands potential outcomes of the second stage, though it is not required to “‘inform parents in detail of all potential outcomes.’” Rather, the court must determine that the parent understands that a termination of parental rights or dismissal of the TPR petition are two possibilities. 
 
State v. Anderson – Criminal
The caution with which we are instructed to approach juvenile confessions is with good reason. As the United States Supreme Court has recognized, “children ‘generally are less mature and responsible than adults,’” “lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” and “are more vulnerable or susceptible to … outside pressures.” As our supreme court has recognized, children are “more likely to want to please and believe police officers because they are authority figures” and “are incapable of fully realizing the consequences of their decisions.” Accordingly, the same police pressure that may not be coercive for an adult suspect may be coercive for a juvenile suspect.

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