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‘A SETBACK FOR TRANSPARENCY’: Wisconsin Supreme Court reverses decades of legal precedent to weaken open-records law

The Wisconsin Supreme Court in the State Capitol Building in Madison. (Photo by Adam Fagen.)

By PETER CAMERON
The Badger Project

The Wisconsin State Supreme Court issued a ruling earlier this month that open government advocates say deals “a body blow to the state’s traditions of open government” and encourages public agencies to work in greater secrecy.

In a decision earlier this month, the high court weakened the ability of public records requesters to recoup attorney fees from government agencies who deny their requests, reversing decades of legal precedent.

The ruling, handed down in Friends of Frame Park v. City of Waukesha on July 6, requires a requester who has filed suit seeking records to first obtain a favorable court ruling on the merits of that request before recovering attorney fees from the government agency that refused the request.

It’s a seemingly small shift, but a significant one.

The position breaks the longstanding practice of Wisconsin courts directing government agencies to pay a requester’s court fees if the agency releases the records before a court decision and the lawsuit was determined to be the cause of the release.

Wisconsin’s Open Records Law states “Except as otherwise provided by law, any requester has a right to inspect any record.”

Government agencies can deny public records requests according to specific exemptions in state law. But if a government agency denies a request and the requester sues in court for those records, the court can order the agency pay the requester’s attorney fees if the court rules those records were held illegally, according to state law.

At issue in the Friends of Frame Park case is the word “prevails” in a section of the Open Records Law. That paragraph says a court “shall award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any action” to obtain public records.

Wisconsin Supreme Court Justice Brian Hagedorn

In his opinion for the four-judge conservative majority on the seven-judge state Supreme Court, Justice Brian Hagedorn wrote that the word “prevails” means a records requester must get a court to rule in their favor to have attorney fees awarded.

Previously, Wisconsin courts had interpreted the word “prevails” to mean the requester had shown that their litigation had prompted the government agency’s release of records.

In a concurring opinion, the three other conservative justices contended that any release of public records automatically invalidates requester claims for attorney fees. Hagedorn and his decisive fourth vote would not go that far.

“We save this issue for another day,” he wrote.

Even without the harsher decision, David Cuillier, president of the National Freedom of Information Coalition and director of the University of Arizona School of Journalism, called the ruling “a setback for transparency in Wisconsin, no doubt.”

“It opens the door for agencies to game the system — keep records secret, wait for someone to sue, if that happens at all, and if someone does sue, just hand over the records before the court rules to avoid paying the requester’s legal fees,” he continued. “Delay, delay, delay.”

The Wisconsin Freedom of Information Council, which called the ruling “a body blow to the state’s traditions of open government,” added that the conservative majority on the state Supreme Court “has created new opportunities for authorities to deprive the public of access to public information.

“The Open Records Law states that state and local authorities in Wisconsin must provide requested records “as soon as practicable and without delay,” the council said in a formal statement after the July 6th ruling. “The new standard created by this decision is “whenever you feel like it, even after you have been sued for not complying.”

In dissenting from the majority opinion, the court’s three liberal justices said the ruling promotes more secrecy in government.

David Cuillier, president of the National Freedom of Information Coalition

“By reinterpreting the law to reward government actors for strategically freezing out the public’s

access to records, today’s decision will chill the public’s right to an open government,” Justice Jill Karofsky wrote.

Compared with other states, Wisconsin previously had a fairly strong Open Records Law, Cuillier said.

“Unfortunately, most states have weak fee recovery provisions in their laws, and this puts Wisconsin in that same bucket now,” he said. “That’s too bad because preliminary research indicates that strong mandatory fee-shifting provisions are correlated with more transparent government agencies. Government officials are more likely to follow the law if there are financial repercussions at stake. It’s human nature. So now Wisconsin officials can more easily hide from the people they serve. That’s a shame.”

Transparency advocates are brainstorming ways in the courts and legislature to minimize the damage of the ruling, said Tom Kamenick, president and founder of the Wisconsin Transparency Project, a law firm focused on the state’s Open Records and Open Meetings laws.

“There is no question the Supreme Court made it significantly more difficult to obtain attorney fees,” Kamenick said. “That will make it harder to file lawsuits, which in turn incentivizes custodians to break the law knowing they are unlikely to face consequences for doing so.”

Kamenick represents The Badger Project in a pending open records case against the Wausau Police Department.

The Wisconsin Freedom of Information Council and Kamenick called on the legislature to clarify the state’s Open Records Law to return it to the previous standard.

State legislators in Wisconsin already have exempted themselves from the requirement that all government employees retain their records. Some state legislators regularly delete their emails at the end of the day.

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.

This article first appeared on The Badger Project and is republished here under a Creative Commons license.

Wisconsin court says parents suing school can’t be anonymous

By SCOTT BAUER and TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — A divided Wisconsin Supreme Court ruled Friday that parents suing the Madison School District over its gender-identity policies must disclose their names to opposing attorneys but not necessarily reveal them to the district or the public.

The 4-3 ruling comes after a Dane County Circuit Court judge in 2020 temporarily suspended parts of the district’s guidance on gender identity. A group of unnamed parents and a conservative law firm sued to overturn that guidance.

The case centers on a policy the district adopted in 2018 that calls for district personnel to call students by their preferred names and pronouns and not disclose students’ gender identities to anyone, including their parents. Some parents sued in 2020, alleging the policy violates their right to parent their children as they see fit and their right to religious freedom.

The Wisconsin Institute for Law & Liberty, a conservative law firm, is representing the parents. The firm’s attorneys asked Dane County Circuit Judge Frank Remington to allow them to proceed without revealing the parents’ names out of fear they would be subject to retaliation and harassment.

Remington ordered the firm to give the names to him and school district attorneys under seal. The firm refused, arguing that the district’s attorneys could leak the names and that their identities aren’t relevant. The firm has insisted that the parents are indeed Madison school district residents and, as such, have standing to sue.

The Supreme Court upheld Remington’s order and remanded the case back to him to continue deliberations on the merits.

Hagedorn breaks ranks with conservatives

Justice Brian Hagedorn, a conservative who often acts as a swing vote, sided with the court’s three liberal justices in upholding the order.

He wrote for the majority that court proceedings are presumed to be open to the public. The parents essentially want the justices to “reformulate” state law on anonymous litigation but nothing suggests the district attorneys would violate Remington’s seal order.

“While we protect certain vulnerable legal participants, such as children and crime victims, the business of courts is public business, and as such is presumed to remain open and available to the public,” he wrote. “In this case, the circuit court’s decision to withhold the parents’ identities from the public and the District, but not the District’s attorneys, was well within its discretion.”

Luke Berg, a deputy counsel for the Wisconsin Institute for Law & Liberty, called the ruling a disappointing loss and chided the majority for not ruling on the merits of the policy. He said the firm would talk to the parents and that it would be up to them to decide whether to continue to participate in the lawsuit.

“We do not consider this case done. Not by a long shot,” Berg said.

Court: Local health officers can issue unilateral orders

By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — Local health officers can unilaterally issue orders to slow diseases, the state Supreme Court ruled Friday in a decision upholding contentious orders limiting indoor gatherings and mandating masks that Dane County officials handed down during the height of the COVID-19 pandemic.

The 4-3 decision affirms that state law grants local health officers the ability to do what they deem necessary to stop communicable diseases without oversight from governing bodies such as city councils and county boards.

The liberal-leaning Justice Jill Karofsky wrote for the majority that Wisconsin law clearly authorizes public health officers to issue such orders and has since the state was a territory. She added that if local elected officials don’t like the orders they can remove the health officer, creating a strong safeguard for the people.

“Today’s ruling is a win for every resident of our community,” Dane County Executive Joe Parisi said. “This ruling ensures that our public health department will have the ability to keep our community safe — and that decision making will remain science-based.”

The ruling marks the culmination of a lawsuit two parents filed in Dane County in 2020 during the height of the COVID-19 pandemic. They challenged orders from Public Health Madison and Dane County Director Janel Heinrich issued barring indoor gatherings, closing schools and mandating masks in all indoor spaces open to the public. A Madison gym and a dance studio in Oregon, Wisconsin, later joined the lawsuit.

Heinrich cited a section of state law that allows local health officers to “take all measures necessary to prevent, suppress and control communicable diseases” and a county ordinance stating that disobeying her orders is illegal.

The parents argued that multiple sections of state law hold that local legislative bodies, not health officers, must adopt restrictions like the ones Heinrich implemented.

Friday’s decision was a departure of sorts for the conservative-controlled Supreme Court. Since the pandemic began in the United States in March 2019, the court has struck down orders from Democratic Gov. Tony Evers that required state residents to stay at home, wear masks and limit the size of gatherings.

Justice Brian Hagedorn, a conservative who often acts as a swing vote, sided with Evers in support of the stay-at-home order but joined with his fellow conservatives against the mask mandate and gathering limits. He switched sides again Friday, siding with liberals Karofsky, Rebecca Dallet and Ann Walsh Bradley in upholding local health officials’ authority.

The Wisconsin Institute for Law and Liberty, a conservative law firm, represented the parents in the case. The firm’s deputy counsel, Luke Berg, said he was disappointed that the court “refused to bolster critical safeguards and accountability for unelected health officers.”

Heinrich’s orders drew intense criticism. She told the Wisconsin State Journal that people called her and her staff evil Nazis in emails. Protesters even gathered outside her home.

Conservative-leaning Justice Rebecca Bradley wrote in dissent that Henrich has acted like a dictator, entitling a section of her opinion “Heinrich’s Tyranny.”

“There are no more fitting words to describe the arrogation of power Heinrich wields,” Rebecca Bradley wrote.

Karofsky addressed Rebecca Bradley’s choice of words, calling them a “poor substitute for legal argument.”

“While the direct and implied contentions that a local health official is a tyrant, an autocrat, a dictator, and a despot are fantastical, they do real damage to the public’s perception of this court’s work,” Karofsky wrote. “We must aspire to be better models of respectful dialogue to preserve the public’s confidence on which this court’s legitimacy relies.”

Wisconsin court rules against transgender sex offender

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court’s conservative majority said Thursday that a transgender woman cannot change her name because she is on the state’s sex offender registry and the law does not allow people on the registry to change their names.

The court’s 4-3 decision upholds the rulings of two lower courts, which rejected the woman’s requests to change her name and avoid registering as a sex offender.

The woman, identified in court documents only as Ella, was required to register as a sex offender after being convicted of sexually assaulting a disabled 14-year-old boy when she was 15. She is now 22. She entered the criminal justice system identifying as male and was ordered to register as a sex offender for 15 years. State law prohibits registered sex offenders from changing their names or using aliases not listed in the sex offender registry.

Attorneys: Not allowing sex offender to change name violates Constitution

Ella’s attorneys argued that not allowing her to change her name or avoid registering as a sex offender violated the First and Eighth Amendments as constituting both a violation of her free speech and cruel and unusual punishment.

The Supreme Court rejected both of those arguments.

“Consistent with well established precedent, we hold Ella’s placement on the sex offender registry is not a ‘punishment’ under the Eighth Amendment,” Justice Rebecca Bradley wrote for the majority. “Even if it were, sex offender registration is neither cruel nor unusual. We further hold Ella’s right to free speech does not encompass the power to compel the State to facilitate a change of her legal name. ”

Rebecca Bradley was joined in the majority by Chief Justice Annette Ziegler and Justices Patience Roggensack and Brian Hagedorn. Justice Ann Walsh Bradley wrote the dissenting opinion and was joined by Justices Rebecca Dallet and Jill Karofsky.

The dissenting justices agreed that Ella’s arguments alleging an Eighth Amendment violation of cruel and unusual punishment fail. But they said she should be allowed to petition a court to legally change her name based on First Amendment rights.

“Requiring Ella to maintain a name that is inconsistent with her gender identity and forcing her to out herself every time she presents official documents exposes her to discrimination and abuse,” Bradley wrote for the minority.
Cary Bloodworth, the public defender who represented Ella, has not returned a message seeking comment.

Wisconsin court’s open records ruling decried as gutting law

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court’s conservative majority on Wednesday issued a ruling limiting when people who sue over open records requests can recover attorney’s fees, a decision that the court’s liberals and advocates for open government decried as gutting the law.

The court ruled 4-3 that if an entity decides to release records after being sued, the requester can be awarded attorney’s fees only if a court issues a ruling. Previously, the requester could recover attorney’s fees if the lawsuit was determined to be a reason for the release of the records.

“Today is a dark day for transparency in Wisconsin,” said Tom Kamenick, president of the Wisconsin Transparency Project, in a statement.

The court’s three liberals said the ruling will frustrate the goal of the 40-year-old open records law, which is to shine light on the work of state government. They said it will give government entities an incentive to delay releasing records to people who may not be able to afford to continue a legal fight.

“By reinterpreting the law to reward government actors for strategically freezing out the public’s access to records, today’s decision will chill the public’s right to an open government,” Justice Jill Karofsky wrote. She was joined by Justices Ann Walsh Bradley and Rebecca Dallet.

The majority opinion was written by Justice Brian Hagedorn. He was joined by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Bradley. It came in a case related to an open records request filed with the city of Waukesha by a group concerned about plans to build and operate a baseball stadium in a city park.

The group, Friends of Frame Park, sued in 2017 after its request for a copy of the draft contract for the stadium’s construction was denied. Two days later, the city fulfilled the request. It argued that the lawsuit was thus moot.

Court finds legal fees should depend on judges’ orders

The Supreme Court, in determining what legal fees should be awarded, said the test to be used should be based on whether there is a court order.

The Wisconsin Freedom of Information Council, which advocates for the open records and open meetings laws, called the ruling “a body blow to the state’s traditions of open government” and said it gives authorities new opportunities to deny access to public information.

“It undermines the provision in the open records law that allows litigants to recover actual costs and attorney’s fees in cases in which access to records is wrongfully denied,” the council said.

The dissenting justices said the ruling will make it cost-prohibitive for many to bring open records lawsuits.

“Absent robust fee shifting, the promise of our public records laws is rendered a dead letter for all but the select few with means, leading to fewer record requests, more delays in the release of information, and, ultimately, a less informed electorate,” Karofsky wrote for the minority.

Both the Wisconsin Freedom of Information Council and Kamenick, who leads the Wisconsin Transparency Project, called on the Legislature to clarify the law so that attorney’s fees could be awarded as they have been before Wednesday’s ruling.

Wisconsin Supreme Court says COVID records can be released

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — A divided Wisconsin Supreme Court on Tuesday said the state health department can release data on coronavirus outbreak cases, information sought two years ago near the beginning of the pandemic.

The court ruled 4-3 against Wisconsin Manufacturers & Commerce, the state’s largest business lobbying group, which had wanted to block release of the records requested in June 2020 by the Milwaukee Journal Sentinel and other news outlets.

The state health department in the early months of the pandemic in 2020 had planned to release the names of more than 1,000 businesses with more than 25 employees where at least two workers have tested positive for COVID-19.

Wisconsin Manufacturers & Commerce, along with the Muskego Area Chamber of Commerce and the New Berlin Chamber of Commerce, sued to block the release of the records, saying it would “irreparably harm” the reputations of their members. It argued that the information being sought is derived from diagnostic test results and the records of contact tracers, and that such information constitutes private medical records that can’t be released without the consent of each individual.

Attorneys for the state argued that the information contained aggregate numbers only, not personal information, and could be released.

A Waukesha County circuit judge sided with the business group and blocked release of the records. A state appeals court in 2021 reversed the lower court’s ruling and ordered the case dismissed, saying WMC failed to show a justifiable reason for concealing the records.

WMC appealed to the state Supreme Court, which upheld the lower court’s ruling.

A spokesman for the business lobbying group did not immediately return a message seeking comment Tuesday.

The ruling was written by Justice Rebecca Dallet, who was joined in the majority by two other liberal justices and conservative Justice Brian Hagedorn, who is often a swing vote. The other three conservative justices dissented.

The court concluded that WMC did not have a right to ask a court to block the release of the records before they were made public under an open records request from the Milwaukee Journal Sentinel. The state Supreme Court ruled that “WMC’s position would undo the legislature’s choice to preclude pre-release judicial review in most circumstances.”

But Chief Justice Annette Ziegler, writing for the minority, said the law allows for such challenges and the court’s ruling will open the door to the release of personal medical information to the public. She warned that the release of confidential patient files would cause “irreparable” damage.

The ruling “closes the courthouse doors to anyone who may wish to challenge the release of personal medical information,” Ziegler wrote. “This is egregious error.”

Bill Lueders, president of the Wisconsin Freedom of Information Council, said the dissenting justices were trying “to stir up unfounded fears about the disclosure of personal medical information.” The only information being released is the name of businesses and number of employees with confirmed infections, he said in a written statement.

“To try to frighten people into believing that their most personal medical information is now open for all to see seems irresponsible,” Lueders said.

Top Wisconsin court affirms GOP’s preferred approach to maps

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — A divided Wisconsin Supreme Court on Tuesday sided with Republicans in a redistricting dispute, ruling that it saw no need to make significant changes to the maps that have helped the GOP win majorities in the state Legislature and congressional delegation.

The 4-3 ruling rejected Democrats arguments that the current maps are heavily skewed to favor Republicans and dilute Democratic voting power.

Republican majorities in the Legislature grew after the map it drew was adopted in 2011, even as Democrats won election to statewide office. The court’s ruling makes it all but certain those GOP majorities will stay in place for the next decade.

The conservative Wisconsin Institute for Law and Liberty brought the lawsuit and argued that the fairest and most neutral way to resolve redistricting was to take a

“least change” approach and adjust only for population changes. Democrats and their allies have argued that the new maps should be drawn from scratch.

But the Supreme Court’s conservative majority said changes to the current maps should be limited to population shifts made apparent by the once-a-decade census.

It also said it will not take into account the partisan makeup of the districts, rejecting the Democratic argument that not considering that will only entrench the current GOP majorities.

“We adopt the least-change approach to remedying any constitutional or statutory infirmities in the existing maps because the constitution precludes the judiciary from interfering with the lawful policy choices of the legislature,” the court said.

In explaining why the court wouldn’t consider the partisan makeup of districts, Justice Rebecca Bradley wrote for the majority that those are “political questions, not legal ones.”

“Such claims have no basis in the constitution or any other law and therefore must be resolved through the political process and not by the judiciary,” Bradley wrote.
Sachin Chheda, director of the Fair Elections Project, said the majority of the court “has once again demonstrated its loyalty is to the Republican Party, not the laws of Wisconsin.”

“Whatever comes from this corrupt nonsense, if it’s not fair to our state, it shouldn’t be accepted by federal courts, and most importantly, it won’t be accepted by the people of Wisconsin,” Chheda said.

States are tasked with redrawing boundary lines every decade after each census. Republicans controlled the Legislature and governor’s office in 2011, the last time it was done. Democratic Gov. Tony Evers vetoed the Republican maps this year, putting the battle in court. Evers called the maps “gerrymandering 2.0.”

There is also a federal lawsuit pending brought by Democrats, but that court has said it will defer for now to the state lawsuit. It’s not clear if the federal court would take up redistricting after the state Supreme Court has completed the case.

Democrats pushed for the federal courts to enact new maps, just as they have done in recent decades when the Legislature and governor couldn’t agree. The state Supreme Court last handled redistricting in 1964.

Justices Bradley, Brian Hagedorn, Patience Roggensack and Annette Ziegler ruled for the majority. Liberal justices Rebecca Dallet, Ann Walsh Bradley and Jill Karofsky dissented.

In the dissent, Dallet noted that federal courts have historically resolved redistricting issues. The Supreme Court’s ruling that minimal changes be made to the current GOP-drawn maps “all but guarantees” that it will not be neutral and nonpartisan when taking on redistricting, Dallet wrote.

“Adopting a least-change approach is an inherently political choice,” Dallet wrote. “Try as it might, the majority is fooling no one by proclaiming its decision is neutral and apolitical.”

After split reasoning on certified question, private-school busing lawsuit to return to 7th Circuit

A lawsuit over busing requirements for private, religious schools in Wisconsin will return to the Seventh Circuit Court of Appeals.

On Friday, the Wisconsin Supreme Court answered a certified question in St. Augustine School v. Carolyn Stanford Taylor, a case that’s gone up to the U.S. Supreme Court and back in the past five years.

In the latest chapter of the case, the Seventh Circuit asked the state Supreme Court how to determine whether two or more schools are private schools affiliated with the same religious denomination for purposes of Wis. Stat. 121.51. The statute says the attendance areas of private schools affiliated to the same religious denomination shall not overlap.

The state Supreme Court’s 81-page document analyzing the question included the majority opinion authored by Justice Ann Walsh Bradley, concurrences from Justices Brian Hagedorn and Pat Roggensack, and one dissenting opinion written by Justice Rebecca Bradley.

Majority: Superintendent may consider school’s self-identification, not only corporate documents

The majority — Justices Ann Walsh Bradley, Rebecca Dallet, Brian Hagedorn and Jill Karofsky — concluded that the state superintendent is not limited to consideration of a school’s corporate documents exclusively when determining whether schools are affiliated with the same religious denomination. The majority opinion said the superintendent may also consider 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.

“(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,” Bradley wrote.

The opinion said the certified question’s wording implied that corporate documents are neutral criteria, while a school’s self-identification on its website and other state filings are not. However, Bradley said simply accepting a school’s profession of affiliation or its filings with the state constitutes a neutral undertaking.

The case was remanded to the Seventh Circuit for further proceedings.

Hagedorn: ‘Affiliated with’ means mutual organizational relationship

Hagedorn agreed with the majority’s conclusion, but he wrote a separate concurrence to examine what a religious denomination is under state statute and what it means for a school and a religious denomination to be affiliated with one another.

His opinion said statutory context reveals that a religious denomination is a kind of religious organization. In that context, Hagedorn said a mutual organizational relationship must be in place in order for a private school to be affiliated with a religious denomination.

“Both the private school and the religious denomination must agree to be affiliated with each other,” Hagedorn wrote. “This statutory inquiry is organizational, not theological.”

Roggensack: Concur, but majority ‘overlooked’ dispositive issue

In her concurring opinion, Justice Pat Roggensack agreed with Hagedorn’s definition of “affiliated with” requiring a mutual organizational relationship. She said the court’s previous interpretations of “affiliate” and “affiliated with” require express or implied mutual agreement to connection between the parties.

“Accordingly, the Seventh Circuit Court of Appeals should consider those facts presented to it that bear on whether St. Augustine and the Archdiocese of
Milwaukee have mutually agreed that their organizations are affiliated with each other,” Roggensack wrote.

Roggensack said she did not join the majority’s opinion because it overlooked the dispositive issue of mutuality and instead focused on a “variety of factual inquiries that will not assist the Seventh Circuit Court of Appeals move forward in its decisional process.”

Bradley, Ziegler: Majority ‘repeats error’ from previous case

Justice Rebecca Bradley also took issue with the majority’s decision. In her dissent, she said the majority’s answer to the certified question “unconstitutionally entangles state authorities in the religious affairs of private schools.”

The majority should have overruled State ex rel. Vanko v. Kahl, according to Bradley. The 1971 decision construed 121.51 to apply to any two private schools affiliated or operated by a single sponsoring group, such as the same religious denomination. Bradley said it wasn’t important that the parties in St. Augustine didn’t ask the court to overrule Vanko. Rather, the court should have taken an opportunity to correct an “egregious example of legislating from the bench.”

“Repeating its error from 50 years ago, this court once again neglects its duty to strike an unconstitutional statute,” Bradley wrote.

Chief Justice Annette Ziegler joined in Bradley’s dissent.

Editorial: Court’s ruling narrower than many think

This week’s ruling from the Wisconsin Supreme Court was considerably narrower than what a lot of people seem to think. There’s a critical point that people are missing: the ruling wasn’t on whether a mask mandate is legal in and of itself. That question remains open.

Justice Brian Hagedorn wrote the majority opinion in the 4-3 ruling. He quickly drew a distinction between the need for a mask mandate and the legal requirements for it, writing that the question “is not whether the Governor acted wisely; it is whether he acted lawfully.”

In other words, the mandate was not found to be an intrinsic violation of the state’s laws. The extension of it, which took place without legislative involvement, was.

Under Wisconsin law, states of emergency can endure 60 days by order of the governor. A joint resolution by the legislature can extend it. Evers contended that the shifting nature of the pandemic justified his extensions. The court found otherwise. Again, we turn to Hagedorn’s finding: “The statute contemplates that the power to end and to refuse to extend a state of emergency resides with the legislature even when the underlying occurrence creating the emergency remains a threat.”

Hagedorn wrote the dispute between those who wanted the governor to have “sufficient power to fight COVID-19” against those concerned about expanding executive powers was not, in and of itself, relevant to the court’s analysis, again sidestepping the question of the original mandate.

A majority on the court found that both plain language and historic records supported the conclusion that Evers’ extensions overstepped his limitations. They did not question Evers’ initial declaration of a state of emergency. “But when later relying on the same enabling condition,” Hagedorn wrote, “the governor is subject to the time limits explicitly prescribed by statute.”

The decision wasn’t unanimous. Justice Rebecca Bradley wrote a concurring opinion, reaching the same fundamental conclusion using different reasoning. Chief Justice Patience Roggensack joined that concurrence. And Justice Ann Walsh Bradley wrote the dissent which was joined by the court’s remaining two members. The dissenting justices argued the majority opinion “overrules over a century of precedent” on standing and obscured “the consequences of its decision.”

“Ultimately,” she wrote, in the midst of public emergencies such as a global pandemic, it hampers the ability of governors to safeguard the health and lives of the people of Wisconsin.”

It’s fair to ask at this point why we’re spending this much time and space on the kind of surface analysis that any pre-law student could probably do while sleeping.

It’s because there are people locally who are claiming the court’s ruling means the local mask ordinance is also invalid. As we stated at the beginning, the mask mandate itself wasn’t the court’s focus. It couldn’t be. That wasn’t the question raised.

The issue before the court was the legality of an extension by the governor’s fiat. In short, the Wisconsin Supreme Court ruled on a question of calendars. It has not ruled on mask mandates writ large.

And that means the local mandate remains intact for the time being.

People can, and obviously do, argue that local mask mandates are overreach by local authorities. Others argue they’re reasonable steps in the face of a major health crisis. But with regard to this week’s ruling, neither really has much ammunition. The court’s findings didn’t address that issue.

We have urged people to wear masks over the past several months, and we continue to do so. And we will do so regardless of whether there’s a mandate in place. The best evidence scientists and doctors have is that a mask can help protect both the wearer and those in the area.

Wisconsin’s COVID rates have risen over the past several weeks. Vaccinations continue, but we’re still only now reaching a third of the adult population having at least the first shot. Less than 20 percent of the state has had a full vaccination series, a level far below that needed to put an end to the pandemic.

We’re getting there. But this isn’t the time to let up. And we don’t want confusion over the state supreme court’s ruling to lead people to make what can be a very big mistake.

– Eau Claire Leader-Telegram

Wisconsin Supreme Court strikes down governor’s mask mandate (UPDATE)

By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court struck down Democratic Gov. Tony Evers’ statewide mask mandate on Wednesday, stripping the governor of one of his last remaining tools to curb the spread of the coronavirus as the state stands on the precipice of another surge in infections.

The conservative-leaning court ruled 4-3 that Evers violated state law by unilaterally issuing multiple emergency orders to extend the mandate for months. It found that Evers needed legislative approval to issue more orders after the expiration of the initial 60-day mandate he issued in August (see infographic below).

“The question in this case is not whether the governor acted wisely; it is whether he acted lawfully. We conclude he did not,” Justice Brian Hagedorn wrote for the majority.

The decision marks another legal defeat for Evers. The state Supreme Court in May struck down his stay-at-home order, finding that his health secretary lacked the authority to issue such an order. A state appeals court blocked Evers’ attempts to limit capacity in bars, restaurants and other indoor places in October.

Wednesday’s decision comes as COVID-19 cases have been rising in the state. The seven-day daily case average has jumped from fewer than 400 in mid-March to 470 as of Wednesday. State Department of Health Services Secretary Julie Willems Van Dijk said the state is seeing “warning signs” that another surge in infections is about to begin.

Local mask mandates remain in place. The city of Milwaukee and Dane County, which is home to the state capital of Madison, both have issued such mandates. But invalidating the statewide order leaves Evers with few options to slow the virus’ spread on a broad scale.

Evers said in a statement that he’s trying to keep Wisconsin residents safe and that he used science to guide his decisions. He promised to keep working to get people vaccinated and urged people to continue to wear masks.

Justice Ann Walsh Bradley, a member of the court’s three-justice liberal minority, lamented in a dissenting opinion that the ruling hampers the ability of Wisconsin governors to protect lives.

“This is no run-of-the-mill case,” she wrote. “We are in the midst of a worldwide pandemic that so far has claimed the lives of over a half million people in this country. And with the stakes so high, the majority not only arrives at erroneous conclusions, but it also obscures the consequence of its decision. Unfortunately, the ultimate consequence of the majority’s decision is that it places yet another roadblock to an effective governmental response to COVID-19.”

Republican lawmakers applauded the ruling. Senate Majority Leader Devin LeMahieu said Evers abused his power and that the court’s decision affirms the separation of powers between the legislative and executive branches. Assembly Speaker Robin Vos said people and businesses should be free to make their own decisions about what’s best for them “and don’t need state government telling them how to live their lives.”

Evers argued that he could issue multiple health emergencies because of the changing nature of the pandemic. The mask order first took effect in August and Evers extended it four times since then, most recently on Feb. 4 immediately after Republican legislators repealed it.

Research has found that mask mandates and limits on group activities such as indoor dining can help slow the spread of the coronavirus. Nearly 60 organizations opposed a repeal of Wisconsin’s mask mandate, including groups representing hospitals, doctors, nurses, EMTs, school administrators, businesses, children, unions, Milwaukee schools, American Indian tribes, pharmacists, firefighters, local health departments, senior citizens, churches and dentists.

Hagedorn joined with the liberal justices in supporting Evers’ stay-at-home order in May, when conservatives held a 5-2 majority. His stance then gave Democrats hope that he would cast the deciding vote to uphold the mask mandate. But during oral arguments in the mask case on Nov. 16, Hagedorn questioned Evers’ authority to renew health emergencies beyond the 60-day limit. He said it was an “extraordinary grant of short-term power to the governor” and that “it seems like the Legislature wanted to allow for only a very short period of time.”

The case challenging the mask mandate was brought by Jere Fabick, who gave more than $350,000 to Republican or otherwise conservative candidates in Wisconsin between 1994 and the middle of 2020, according to the Wisconsin Democracy Campaign.

In 2016, Fabick gave $20,000 to conservative Wisconsin Supreme Court Justice Rebecca Bradley. Fabick is a board member and policy advisor for The Heartland Institute, a free-market think tank, and also the president of a multi-state Caterpillar equipment and engine dealer.

Health officials on Wednesday reported 563 new confirmed infections and 10 more deaths, pushing the state’s pandemic totals to 577,195 cases and 6,622 deaths. Meanwhile, about 30 percent of the eligible population has received at least one dose of vaccine.

Starting Monday, Wisconsin vaccine eligibility will be open to anyone age 16 or older.

mask-mandate-ruling

Read the full opinion here.

Associated Press writer Scott Bauer also contributed to this report.

 

Court considers arguments over reasonable suspicion in vehicle search

The Wisconsin Supreme Court is considering whether an appellate court conducted a proper reasonable suspicion analysis in a case centered on a traffic stop that resulted in a gun charge.

The court heard oral arguments in State v. James T. Genous on Wednesday. In 2016, Genous was arrested and charged with one count of being a felon in possession of a gun after a search of his car.

The arresting officer testified that he saw Genous parked in front of a West Allis residence around 3:30 a.m. Genous turned off his car’s headlights, a woman got in the car for about 15 to 20 seconds and then she got out. The officer said he couldn’t see what was going on inside the vehicle and didn’t see the woman carrying anything when she got out. Genous then turned his lights back on and drove away.

The officer said he thought the woman was a known heroin user who had previous interactions with the police, and he believed a drug deal was happening. He followed Genous’ car for three blocks and didn’t observe any traffic violations. He also didn’t come up with anything when he ran the license plates.

The officer stopped Genous and questioned him about the interaction. Two other officers arrived during that time, and one said he noticed a gun in plain view inside the car. No drugs were found, and the officer said Genous was cooperative.

Genous filed a motion to suppress the evidence from the traffic stop, arguing it was obtained as a result of an illegal seizure. He said there was no reasonable suspicion to stop his car because all that the police observed was his interaction with the woman.

The trial court denied the suppression motion, finding that the officers had a reasonable suspicion to stop Genous under the totality of the circumstances. Genous then pleaded guilty to the charge and was sentenced to one year of initial confinement and one year of extended supervision.

Upon appeal, Genous again argued that police lacked reasonable suspicion to believe he was making a drug deal or engaged in other criminal activity. He said none of the facts, individually or cumulatively, was sufficient to constitute a reasonable suspicion that criminal activity was taking place.

The Court of Appeals agreed, finding that the police placed heavy emphasis on Genous’ interaction with the woman and the location of the stop, which was considered a high drug-trafficking area, as the basis for the stop. The court said it was unable to discern the required reasonable suspicion necessary to justify the investigative stop.

Scott E. Rosenow, assistant attorney general, argues that an officer had reasonable suspicion to stop James Genous in 2016.
Scott E. Rosenow, assistant attorney general, argues that an officer had reasonable suspicion to stop James Genous in 2016.

The state asked the Wisconsin Supreme Court to review the case, claiming that the appellate court failed to properly account for various factors in its reasonable suspicion analysis. Scott E. Rosenow, assistant attorney general, said the most important facts pointing to reasonable suspicion were the early morning hours and short duration of the woman’s interaction with Genous, the woman’s reputation as a known heroin user and the neighborhood’s reputation as a high drug-trafficking area.

“Each suspicious fact is a building block, and eventually when you put them all together, you’re building something that whole is greater than a sum of individual parts,” Rosenow said. “If the court does that in this case, I really don’t see how it would not find legal suspicion under these facts.”

Christopher P. August, the assistant state public defender representing Genous, said if the State is using a building a wall as the metaphor, the court needs to assess how well-crafted the structure is by assessing each individual factor before looking at the evidence together.

Christopher P. August, assistant public defender, argues that the court needs to look at individual factors to determine if the officer made the decision to stop Genous on a hunch or a reasonable suspicion.
Christopher P. August, assistant public defender, argues that the court needs to look at individual factors to determine if the officer made the decision to stop James Genous on a hunch or a reasonable suspicion.

Justice Rebecca Bradley said she struggled with August’s approach of looking at each factor in isolation, rather than taking them in totality under the Fourth Amendment.

“That seems to completely reverse what the U.S. Supreme Court has instructed us is the proper approach in Fourth-Amendment analyses,” Bradley said.

August argued that the court needed to look at the factors in context to determine if the officer made the decision to stop Genous on a hunch or a reasonable suspicion.

“The State is trying to bootstrap its weak evidence that was elicited in the trial court with some of these generic assumptions and problematic contextual considerations,” August said.

He suggested that the court set forth rules and guidelines for lower courts when considering the high-crime area criterion. The guidelines should offer objective proof to justify labeling an area as high crime, August said.

Justice Brian Hagedorn said it seemed like August was asking the court to impose evidentiary requirements to govern trial court findings of fact, rather than letting the parties to argue through litigation.

“If, as a justice system, we are serious about addressing disparities and unequal treatment in our justice system, I think that the high-crime area criterion is one target that the court could address,” August said.

In his rebuttal, Rosenow called the debate over labeling an area as high crime a red herring in this case. He said West Allis police labeled it as a high drug-trafficking area, rather than simply high crime.

“That’s important because he stopped Genous on suspicion of drug dealing,” Rosenow said. “There is a linkage between the two the reputation of the area and the activity that the officer observed.”

State Supreme Court disagrees on Second Amendment rights of felon

The Wisconsin Supreme Court split this week on the question of what constitutes a violation of a felon’s Second Amendment rights.

In a decision released on Thursday, the majority of the justices on the court declined to allow a man with a felony to possess a gun simply because he had been convicted of a nonviolent offense, finding the application of the felon-in-possession statute was constitutional in his case.

Justices Rebecca Bradley and Brian Hagedorn took exception to the majority’s reasoning, finding the man in the case had been deprived of his constitutional rights.

The court reviewed State of Wisconsin v. Leevan Roundtree, a case involving a man who was convicted of various felonies in 2003 for failing to pay child support. As a consequence of the conviction, Roundtree was permanently prohibited from possessing a gun.

In 2015, Milwaukee police executed a search warrant at his home and found a revolver and ammunition hidden under his mattress. Roundtree pleaded guilty to a single count of possession of a firearm by a felon and was sentenced to 18 months of initial confinement and 18 months of extended supervision.

Roundtree moved for postconviction relief, but the circuit court denied his motion. The judge concluded that Roundtree had waived his constitutional challenge by entering a guilty plea.

That decision was later affirmed on an appeal but for reasons that were different than those originally cited. The appellate court explained that it was “settled law” that a firearm ban should apply in this case regardless of whatever particular felony the defendant might have committed.

Roundtree then asked the state Supreme Court to review whether the felon-in-possession statute was unconstitutional as applied to him. His as-applied challenge relied on his contention that his felony charges were nonviolent and, therefore, insufficient to curtail his constitutional right to bear arms.

Majority: ‘Reasonable’ to keep felons from guns

The state Supreme Court reviewed the level of scrutiny that should be used to resolve the challenge.

Roundtree argued that the court should use a strict-scrutiny review. The State of Wisconsin, in contrast, argued that intermediate scrutiny was consistent with precedent.

The Supreme Court agreed with the state. In the majority opinion, Justice Ann Walsh Bradley said that conclusion was consistent with that of other courts that have considered the question.

“In contrast, Roundtree points us to no case in which an appellate court has applied strict scrutiny to a Second Amendment challenge to a felon-in-possession statute,” Walsh Bradley wrote. “Absent any such application of strict scrutiny in Wisconsin or elsewhere in this type of case, we decline to break new ground.”

Walsh Bradley particularly questioned Roundtree’s suggestion that failing to pay child support wasn’t as bad as taking someone’s property.

“Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities,” Walsh Bradley wrote. ” … Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree.”

Walsh Bradley noted research cited by the State and data from the Department of Corrections suggesting that nonviolent offenders have a higher recidivism rate than both the general population and violent offenders.

“(E)ven if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here,” Walsh Bradley wrote.

Chief Justice Pat Roggensack and Justices Rebecca Dallet, Jill Karofsky and Annette Ziegler joined in Walsh Bradley’s opinion.

Bradley, Hagedorn find constitutional violation

Justices Rebecca Bradley and Brian Hagedorn dissented, finding that Roundtree’s Second Amendment rights had been violated.

Bradley took exception in particular to the majority’s statement that it’s reasonable to want to keep guns out of felons’ hands.

“It may be ‘reasonable’ to the majority but it surely isn’t constitutional,” Bradley wrote in her dissent.

She said the majority applied the wrong standard of review and deprived Roundtree of his constitutional right to keep and bear arms. Bradley said she believes the case has significance for all Wisconsinites.

“The majority threatens every Wisconsin citizen’s right to keep and bear arms by failing to acknowledge the right as fundamental and accordingly using the wrong level of review,” Bradley wrote.

 

Hagedorn, in his own dissent, agreed that Roundtree’s Second Amendment rights had been violated. He said the state “has come nowhere close” to meeting its burden to demonstrate that the law is constitutional as applied to Roundtree.

He discussed the history of the Second Amendment’s guarantee of the right to keep and bear arms.

“Felon-dispossession laws may be permissible under this historical protection, but only where the State shows the restriction substantially advances the State’s interest in protecting against gun-related violence,” Hagedorn wrote.

In a footnote, Hagedorn said he agreed with the majority of Bradley’s dissent, but he believed something less than strict scrutiny is “more in keeping with the historical record.”

Concurring opinion on waiver of as-applied challenge 

Justice Rebecca Dallet wrote a concurring opinion about whether Roundtree has waived his as-applied challenge to the statute’s constitutionality by pleading guilty. She, along with Walsh Bradley and Karofsky, concluded that he had not.

Dallet said in the U.S. Supreme Court case Class v. United States, the court had applied an exception to the guilty-plea-waiver rule to allow a defendant to challenge the constitutionality of the statute of conviction on appeal. Given the analysis, Dallet said there was no justification for continuing to treat as-applied challenges differently from facial challenges.

“This court should therefore adopt the holding in Class, not only to remain consistent with United States Supreme Court precedent but also to continue to strike the proper balance between efficient judicial administration and the protection of a defendant’s constitutional rights,” Dallet wrote.