The Wisconsin Supreme Court was busy in February—what to know

By Alexandria Staubach
 
The Wisconsin Supreme Court in mid-February heard oral arguments in four cases and issued numerous orders, including denial of a petition to skip the Wisconsin Court of Appeals regarding Dane County Circuit Judge Jacob Frost’s decision invalidating part of the public union collective bargaining law known as Act 10.
 
The Court heard arguments in two civil cases and two criminal cases. Here’s the recap.
 
State v. Luis A. Ramirez

The Supreme Court’s many former prosecutors grilled counsel for Luis Ramirez about what constitutes a permissible delay on the part of the state and court system. Jennifer Lohr, Ramirez’s attorney, responded that the delay in Ramirez’s case was four times the minimum for presumed prejudice against a defendant. “It is the government’s duty to keep the justice system moving,” Lohr argued.
 
The Court of Appeals found that the state acted with “cavalier disregard” for Ramirez’s constitutional right to a speedy trial.
 
The state offered explanations for its many adjournments. Its counsel, John D. Flynn, argued that Ramirez was incarcerated on another conviction while the case was pending and that he only ever asked for a speedy trial without the assistance of counsel. 
 
The bulk of the court’s questioning centered on the meager circuit court record when it was rescheduling trial dates, but there were also differing views about the duration of delays, even if the delays were explainable.
 
On one hand, Justice Janet Protasiewicz recalled her time as a prosecutor and said that in Ramirez’s case “the facts seem relatively simple” and should not have required much preparation to take to trial.
 
Justice Jill Karofsky, on the other hand, recalled her time on the bench to say “the state did exactly what it should do” and that “for everyone one of the continuances for trial, there is a reason for it.”
 
“What prejudice did your client suffer?” asked Justice Rebecca Grassl Bradley. “He was going to be in prison for a very long time, his liberty interest was not even implicated,” she said.
 
Lohr argued that the sheer duration of delay was sufficient to demonstrate prejudice to Ramirez.
 
Ramirez, who was serving a prison sentence, was charged with battery after allegedly assaulting a correctional officer.
 
Over the following 46 months, Ramirez saw his trial rescheduled several times, for reasons that included a prosecutor’s retirement, a courthouse remodel, scheduling conflicts, and his own pro se motions.
 
“Pro se” representation occurs when a defendant represents himself without counsel.
 
Columbia County Circuit Court Judge W. Andrew Voight had ruled that despite the many delays, Ramirez’s right to a speedy trial was not violated. Voight found that Ramirez’s motions, including for discovery and change of venue, were inconsistent with his expressed desire for a speedy trial.
 
The Court of Appeals overruled Voight’s decision, stating that that while some of the delay was justified, the state acted in “cavalier disregard” for Ramirez’s right to a speedy trial.
 
“What would you have us do with the words ‘cavalierly disregard’?” asked Justice Rebecca Dallet.
 
“Cavalierly disregard them,” joked Karofsky in response.
 
Dallet signaled where the court might land in its opinion, asking Flynn his thoughts on “something that was more like we focus on what the reasons for the delay are and we don’t require, as no case has required, that someone gave reasons for the length of time it took to reschedule the trial.”
 
“I’d be perfectly happy with that,” said Flynn, smiling and then yielding the rest of his time on rebuttal.
 
Scot Van Oudenhoven v. Wisconsin Department of Justice

The Wisconsin Court of Appeals over the summer upheld the denial of Scot Van Oudenhoven’s handgun purchase application based on a previous misdemeanor domestic violence conviction that was expunged under Wisconsin law. Van Oudenhoven then took his case to the Supreme Court.
 
In oral arguments, justices grappled with every aspect of the case. Justices Janet Protasiewicz and Jill Karofsky were passionate in their concern over whether the underlying expungement was valid in the first place, revisiting time and again Van Oudenhoven’s date of birth and date of conviction.
 
Current state law permits expungement of an offense with a penalty of six years or less if it was not a violent felony and the defendant was under age 25, had no prior felony record, and requested expungement at the time of sentencing.
 
At the time of Van Oudenhoven’s conviction in 1994, the age was 21, said Karofsky. She pointed out that she was at that time a prosecutor for crimes of domestic violence.
 
Justices and parties discussed how Van Oudenhoven was older than 21 at the time of conviction and did not request expungement at sentencing.
 
“If it were an illegal expungement, is it void?” asked Karofsky at the outset of oral arguments.
 
Justice Brian Hagedorn grappled with the different meanings of expungement among the 50 states.
 
At issue was whether a federal statute permitting a defendant whose criminal record has been “expunged or set aside” to obtain a handgun, covers defendants who have had their criminal records expunged in Wisconsin.
 
Attorney Brian P. Keenan from the Wisconsin Department of Justice opposed Van Oudenhoven’s petition. He emphasized that under federal law, “all effects” of conviction must be erased.
 
In Wisconsin, expungement only affects the court and public’s record of the crime, he said. “Here it just means that the record has been removed from the court files,” Keenan argued. “The conviction itself has not actually been expunged from anything,” he said.
 
The court grappled with what Congress intended when including expunged crimes in the law providing restoration of firearms rights.
 
Hagedorn cited a variety of sources, including legal website Justia Law and Black’s Law Dictionary, to say that “expungement” means something different in effectively every state. “It makes imminent sense to me,” said Hagedorn, that the Legislature used expungement to mean however a state defines expungement, as the converse effect would be that the law is “absolutely irrelevant.”
 
Justice Rebecca Dallet asked Keenan whether the DOJ’s best argument was whether “the plain text of the statute is that the conviction actually needs to be expunged.” Keenan replied “yes.”
 
There appeared to be no consensus among the justices regarding whether and to what extent “expungement” under Wisconsin law has the same meaning as in the federal statute. 
 
Service Employees International Union Healthcare Wisconsin v. Wisconsin Employment Relations Commission

Oral argument in this case concerned whether the Wisconsin Employment Peace Act applies to the University of Wisconsin Hospitals and Clinics Authority (UWHCA) and gives its employees collective bargaining rights notwithstanding the public union collective bargaining law known as Act 10.
 
UWHCA was originally included under the Peace Act in 1996, but was later removed. In a case brought by UW healthcare workers, the Wisconsin Employment Relations Commission and Dane County Circuit Judge Jacob Frost concluded that the Legislature’s statutory changes in Act 10 reflected a clear intent to exclude UWHCA from the Peace Act, meaning that its employees no longer have collective bargaining rights.
 
The Supreme Court took the case directly, bypassing the Court of Appeals.
 
The justices and parties focused on legislative intent to include or exclude UW healthcare workers when it enacted Act 10, with a new twist: asking the Supreme Court to ignore what the Legislature may have intended at the time of enactment (originalism) and instead focusing on the plain language of the law.
 
UW healthcare workers brought a previous case in federal court and were unsuccessful. This time, they argued that they should never have been covered by Act 10 because they are closer to private employees than public employees.
 
“There is an element of all of this that I must confess feels a little bit like the emperor’s new clothes, where everyone has a firm grasp on reality until a new tailor comes to town and says I’m going make you a garment that only the most sophisticated people can see,” argued attorney James Goldschmidt on behalf of UWHCA, which opposed the employees’ petition.
 
Hagedorn was vocal during oral arguments and from the start asserted that the employees’ interpretation of law was “contrary to what all our cases say, at least in the last 20 years.”
 
Justice Rebecca Grassl Bradley also voiced opposition, saying “what your argument is asking this court to do, is back track off at least two decades of recent precedent.”
 
Justices Rebecca Dallet and Ann Walsh Bradley were more open to the argument, but even Walsh Bradley told the employees’ counsel that the “legislative history is so strong here that if applied here your clients lose.”
 
State v. Carl Lee McAdory

WJI has been following this case since the summer of 2023. The case finally made it to a hearing in the Supreme Court.
 
In Carl Lee McAdory’s case, a Rock County Circuit Court judge disregarded an appeals court order for a new trial and instead sentenced McAdory on a charge that had previously been dismissed.
 
Prior coverage is here and here.
 
McAdory was charged with eighth-offense operating under the influence (OWI) and eighth-offense operating with a restricted controlled substance (RCS). Blood testing showed he had cocaine and marijuana in his system when arrested. A jury found him guilty on both counts.
 
OWI requires a showing that drugs in McAdory's system impaired his driving. RCS law makes it illegal to drive with any detectable drug in the blood, whether or not it affects the person's driving ability.
 
Because Wisconsin law says McAdory could only be sentenced on one of the counts arising from the same conduct, the prosecutor moved to dismiss the RCS charge. The court sentenced McAdory on the OWI count.
 
Typically, when a court dismisses a count, it cannot be retried or revived. And in McAdory’s case there was no argument that the circuit court’s dismissal was without prejudice—a legal mechanism which would permit the count’s resurrection.
 
McAdory appealed his OWI conviction. The Court of Appeals held that the state repeatedly misled the jury about what the state had to prove for conviction on the OWI charge. The appeals court remanded with an order for a new trial.
 
However, McAdory did not get a new trial on remand.
 
Instead, the prosecution asked Judge Karl Hanson to revive the dismissed RCS count and sentence McAdory on that charge, which Hanson did.
 
During oral arguments in the Supreme Court, the justices and the state’s attorney wrestled with whether McAdory and other defendants could receive a windfall for what was characterized by the state as a mistake.
 
The state could have asked the circuit court to dismiss the more difficult to prove OWI charge and for a sentence on the RCS charge. That could have avoided grounds for appeal, as McAdory’s appeal hinged on the state’s failure to prove the drugs his system in fact impaired his driving.
 
The state is asking the court to “rescue it from strategic decision-making gone awry,” argued McAdory’s attorney, Olivia Garman.
 
“While the parties disagree on just about everything in this case, there’s one thing we can agree on, that the procedural history that got us here should never happen again,” argued John W. Kellis on behalf of the state in asking the court for guidance in a muddy area of law.
 
Justices Ann Walsh Bradley and Brian Hagedorn floated the idea of crafting an opinion that would instruct the lower court to dismiss one count, consistent with the statute, but without prejudice, which the law is currently silent about.
 
Justice Rebecca Grassl Bradly suggested entering convictions on both counts but sentencing on only one.