Opinion Round-up, Wisconsin Supreme Court June 27-July 1

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Wisconsin’s high court ruled on five matters this week, affirming two and reversing three. On the docket were prominent cases involving gubernatorial appointees and the Mayfair Mall shooting.

Affirmed

2021AP1673 Joshua L. Kaul v. Frederick Prehn

The justices ruled 4-3 that gubernatorial appointees can hold their positions indefinitely until the state Senate confirms their successors. The decision means by not voting the Senate can ensure Republican appointees can hold their spots under a Democratic governor, giving the party at least partial control over executive branch functions.

The case centers on Fred Prehn, a Wausau dentist appointed to the DNR board in 2015 by former Gov. Scott Walker. Gov. Tony Evers appointed Sandra Naas to replace him but Prehn refused to step aside. He argued that the state Supreme Court ruled in 1964 that gubernatorial appointees don’t have to resign until the Senate confirms their successors. Attorney General Josh Kaul sued in August to force Prehn off the board. Dane County Circuit Judge Valerie Bailey-Rihn sided with Prehn in September and dismissed the case. Kaul asked the state Supreme Court to take the case directly without waiting for an appellate ruling.

Justice Rebecca Dallet called the ruling “absurd” in a dissent.

Todd Richmond of Associated Press contributed this story.

2021AP419 State v. X.S.

On a 4-3 decision, the Supreme Court ruled a boy accused of shooting and wounding eight people at a Mayfair Mall in Wauwatosa on Nov. 20, 2020, should be tried in adult court. The court affirmed a court of appeals decision that said a Milwaukee County Children’s Court judge was wrong in denying prosecutors’ request to waive X.S., who was 15 at the time of the shooting, to adult court. Judge Brittany Grayson’s circuit court ruling followed testimony from a doctor that indicated X.S.’s risk to reoffend was moderate and could be reduced with treatment in the juvenile justice system

The Court of Appeals District I reversed that ruling, the Supreme Court affirming and remanding with cause this week.

Chief Justice Annette Ziegler joined in the majority opinion by justices Pat Roggensack, Rebecca Bradley and Jill Karofsky. Justice Brian Hagedorn dissented, joined by justices Ann Walsh Bradley and Rebecca Dallet.

Associated Press contributed to this story.

Reversed

2019AP299 & 2019AP534 Friends of the Black River Forest v. DNR

The Court ruled 4-3 that the Friends of the Black River Forest, a conservation group, couldn’t challenge the Department of Natural Resources policy board’s 2014 decision to sell state park land for the construction of a high-end golf course along the shores of Lake Michigan. The DNR’s decision hands Kohler Company five acres of Kohler-Andrae State Park and a two-acre easement for a “world-class” golf course in Sheboygan County north of Milwaukee and about 10 miles from Kohler’s headquarters.

Friends of the Black River Forest challenged the land swap, alleging that it would deprive group members and the public of the use of public park land, reduce habitat for a range of animals and plants, and lead to increased noise and traffic around the park.

The case was first heard in Dane County Circuit Court, Judge Stephen Ehlke dismissing the common law certiorari action filed by Friends of the Black River Forest, indicating that Sheboygan County was the proper jurisdiction for the case. Sheboygan County Circuit Court Judge L. Edward Stengel found that the petitioners lacked standing. The Court of Appeals, District I ruled in favor of the petitioners, reversing both circuit court dismissals, finding that the swap started a sequence of events that could lead to harm.

Justice Rebecca Bradley delivered the majority opinion that reversed the court of appeals decision, joined by justices Annette Ziegler, Patience Roggensack and Brian Hagedorn. Justices Jill Karofsky, Rebecca Dallet and Ann Bradley dissented.

Harm Venhuizen of Associated Press contributed to this story.

2020AP485 Wisconsin Property Tax Consultants, Inc. v. DOR

The Supreme Court majority reversed both an Ozaukee County Circuit Court and Court of Appeals District II decision to dismiss Wisconsin Property Tax Consultants’ and Wisconsin Manufacturers and Commerce’s declaratory judgment action against the Wisconsin Department of Revenue.

The petitioner’s filed a declaratory judgment action against the DOR seeking an interpretation of Wis. Stat. § 70.111(27), a new personal-property tax exemption for “machinery, tools and patterns.” In early 2018, Wisconsin Manufacturers and Commerce sent a letter to the DOR laying out a hypothetical fact situation to understand the interpretation of § 70.111(27). The DOR’s interpretation did not align with Wisconsin Property Tax Consultants. The action filed in Ozaukee County Circuit Court alleged that DOR’s interpretation is in violation of statutory rulemaking procedures, conflicts with state law and violates “uniformity, due process, equal protection, and the prohibition against government taking of private property without just compensation” under both the U.S. and Wisconsin Constitutions.

Judge Sandy Williams dismissed the case, stating under the primary jurisdiction doctrine, the circuit court would not assume jurisdiction over the matter and deferred to the Wisconsin Tax Appeals Commission for expert review.  The court of appeals affirmed Williams’ ruling, noting that the legislature determined the Tax Appeals Commission the final authority on such matters.

With Justice Brian Hagedorn delivering the majority opinion, the Supreme Court reversed the lower courts’ rulings, remanding the circuit court for further proceedings. The majority ruled that the circuit court improperly relied on the primary jurisdiction doctrine, arguing that the declaratory judgement action “presents a pure question of law.”

“It is a question that does not draw upon the Tax Appeals Commission’s expertise in tax matters; it goes to the authority and process by which an agency must adopt and administer the law,” said Hagedorn in the released opinion.

Justices Ann Bradley, Rebecca Dallet and Jill Karofsky joined. Justice Annette Ziegler filed a concurring opinion. Justice Pat Roggensack also filed a concurring opinion with Justice Rebecca Bradley joining.

2019AP2065-CR State v. Richard Michael Arrington

In the case of a Sixth Amendment right to counsel, the Supreme Court reversed the Court of Appeals District III ruling that Richard Arrington’s trial counsel was ineffective in its representation by failing to move to suppress a confidential informant’s recording and testimony.

A jury found Arrington guilty of first-degree intentional homicide and felon in possession of a firearm, sentencing him to life in prison for the conviction of first-degree homicide and a concurrent sentence of three years with three years of extended supervision for the possession of a firearm conviction. Following Arrington’s initial arrest, Brown County detectives gave a small digital recorder to Jason Miller, another inmate in the county jail to secretly record conversations with inmates. Miller recorded his conversations with Arrington in which Arrington discussed the pending charges against him. Prosecutors used the recordings at trial with Miller testifying to corroborate. Arrington’s trial counsel did not move to suppress the secretly recorded statements and never objected to Miller’s testimony.

After his sentencing, Arrington filed postconviction motion with new counsel, alleging the State had violated his right to counsel by using Miller’s recording of statements Arrington made after he had been charged and represented by counsel. The circuit court denied the motion, Arrington appealing with the court of appeals who ultimately reversed the circuit court hearing and ordered a new trial. Judge Timothy Hinkfuss of Brown County Circuit Court presided over the trial hearing.

Justice Pat Roggensack delivered the majority opinion that Arrington’s Sixth Amendment right to counsel had not been violated and his trial counsel was not ineffective when it did not move to suppress the testimony. The high court stated that Miller was not acting as a state agent when he recorded the conversations. Justices Annette Ziegler Rebecca Bradley and Brian Hagedorn joined.

Justice Rebecca Dallet filed a concurring opinion, stating this was “a textbook example of a Sixth Amendment violation.”  Justices Ann Walsh Bradley and Jill Karofsky joined.

“The majority misapplies that law, concluding that Arrington’s right to counsel was somehow not violated when a jailhouse informant, using a recording device provided by the police, interrogated Arrington and recorded him making incriminating statements,” said Dallet.

However, Dallet explained that even though the trial counsel was deficient, the jury still would have found Arrington guilty with or without the suppression of the evidence and testimony in question. A total of forty-two witnesses testified, Dallet’s opinion was that even though the violation of the recordings occurred, she agreed with the majority to reverse the court of appeals decision.