Please ensure Javascript is enabled for purposes of website accessibility

Tag: Brian Hagedorn

Roggensack ‘concerned’ about recent comments about courts, calls for togetherness

Chief Justice Pat Roggensack said she’s “concerned” about comments made about members of the Wisconsin Supreme Court, releasing a statement on Christmas Day decrying online attacks against justices and calling for togetherness.

The justices Rebecca Dallet, Jill Karofsky and Brian Hagedorn came under attack following the high court’s 4-3 ruling rejecting President Donald Trump’s lawsuit to overturn his loss to Joe Biden.

The Wisconsin Examiner reported that Dallet and Karofsky received anti-Semitic and misogynistic comments online. Trump criticized Hagedorn on Twitter, and following the tweets, Hagedorn told WISN 12 News that he and some of the justices were receiving extra police protection.

In her statement, Roggensack said no justice should be threatened or intimidated because of religious beliefs and that threats of violence “have no place in public discourse in a democratic society.”

She called for everyone to come together when possible and treat everyone with respect, even if there is disagreement over particular views.

The full statement reads as follows:

“I am concerned about recent comments aimed at members of the Wisconsin Supreme Court. I acknowledge that all members of the public have the constitutional right to speak in criticism of public servants, which certainly includes all justices on the Wisconsin Supreme Court.  However, no justice should be threatened or intimidated based on his or her religious beliefs.  Wisconsin has a long history of protecting the right to freely worship, as well as the right to freely speak.

“Also, threats of actual or proposed violence have no place in public discourse in a democratic society.

“As we are about to begin a new year, let us all refocus on coming together where possible and treating those with whom we disagree with the respect that each of us would like to receive.”

– Chief Justice Patience Drake Roggensack, Wisconsin Supreme Court

Wisconsin state court judge rules against Trump lawsuit (UPDATE)

President Donald Trump, left, remains on stage as then-Democratic presidential candidate former Vice President Joe Biden, right, walks away on Oct. 22, at Belmont University in Nashville, Tennessee. President Trump's extraordinary effort to overturn Joe Biden's win in Wisconsin returns to the courtroom on Thursday with hearings in federal and state lawsuits seeking to invalidate hundreds of thousands of ballots and give the GOP-controlled Legislature the power to name Trump the winner. (AP Photo/Julio Cortez, file)
President Donald Trump, left, remains on stage as then-Democratic presidential candidate former Vice President Joe Biden, right, walks away on Oct. 22, at Belmont University in Nashville, Tennessee. President Trump’s extraordinary effort to overturn Joe Biden’s win in Wisconsin returns to the courtroom on Thursday with hearings in federal and state lawsuits seeking to invalidate hundreds of thousands of ballots and give the GOP-controlled Legislature the power to name Trump the winner. (AP Photo/Julio Cortez, file)

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — A Wisconsin judge on Friday ruled against President Donald Trump’s lawsuit seeking to overturn Democrat Joe Biden’s win in the state, another in a string of defeats in the president’s extraordinary attempts to undo his loss.

Trump was expected to quickly appeal the ruling from Reserve Judge Stephen Simanek to the conservative-controlled Wisconsin Supreme Court, even though his chances there appear to be slim. Trump also has a federal lawsuit in Wisconsin where the judge could rule as soon as Friday.

Trump has been urging lower court judges to rule quickly in the cases so he can file appeals before the Electoral College meets on Monday and casts Wisconsin’s 10 votes for Biden.

Biden won Wisconsin by about 20,600 votes, a margin of 0.6% that withstood a Trump-requested recount in the state’s two largest counties. Trump asked in the state lawsuit to disqualify more than 221,000 votes in the Democratic strongholds of Dane and Milwaukee counties.

Trump did not challenge any ballots cast in counties he won.

Simanek ruled Friday that the rules and guidelines of the election were followed during the recount. He said there was no evidence to back up Trump’s claims.

“The bottom line here is that the court should do everything to ensure that the will of the voters prevail,” the judge said.

Trump also wanted to disqualify absentee ballots cast early and in-person, saying there wasn’t a proper written request made for the ballots; absentee ballots cast by people who claimed “indefinitely confined” status; absentee ballots collected by poll workers at Madison parks; and absentee ballots where clerks filled in missing information on ballot envelopes.

Trump’s attorney Jim Troupis argued that clerks in Milwaukee and Dane counties were wrong to rely on guidance from the Wisconsin Elections Commission on absentee ballots. He argued that guidance, some of which had been in place for years or was modified in reaction to the coronavirus pandemic to make it easier for indefinitely confined people to cast ballots, contradicted state law.

Biden attorney John Devaney argued Friday that everyone who voted in the presidential election did so “in full compliance of the laws that were in effect at the time of the election.” There is no evidence of fraud or illegal activity, he said. Devaney also said Trump “cynically” targeted ballots cast in Wisconsin’s two most urban, non-white counties for disqualification.

Devaney noted that no one challenged the laws that had been in place prior to this election, including Trump when he won the state in 2016.

Trump and his allies have suffered a string of defeats in Wisconsin and across the country as they’ve put forward lawsuits that rely on unsubstantiated claims of widespread fraud and election abuse. A Trump-appointed federal judge in Wisconsin said Thursday that the president’s lawsuit was “incredible,” “bizarre” and “very odd,” and asking to overturn the results would be “the most remarkable ruling in the history of this court or the federal judiciary.”

U.S. District Judge Brett Ludwig promised to issue his ruling as soon as Friday.

The Wisconsin Supreme Court court previously refused to hear his case before it went through the lower courts. A majority of justices have also openly questioned whether disqualifying the ballots as Trump is seeking would be appropriate.

Also Friday, Republican-controlled committees in the state Legislature held an invite-only public hearing to accept testimony about the election. Republicans asked mainly conservative partisans to speak, including a Milwaukee talk radio host, but not the state’s top elections official or the head of elections in the city or county of Milwaukee.

Voter rolls case hinges on Brian Hagedorn, a conservative justice who at times parts ways with GOP-backed colleagues

Patrick Marley
Milwaukee Journal Sentinel

MADISON – Whether more than 100,000 Wisconsinites remain on the voter rolls likely hinges on Brian Hagedorn, who won a seat on the state Supreme Court last year by appealing to conservatives but who has parted ways at times with other Republican-backed justices.

At an early stage in the lawsuit over voter rolls, Hagedorn was in agreement with liberals on the court on the big issues in the case. But he gave few hints Tuesday on his current thoughts.

GOP-backed justices control the court 4-3, and Hagedorn’s views could tip the case either way.

The initial ruling by Hagedorn and the liberals prevented the court from taking up the case sooner. The justices are now expected to rule after the Nov. 3 presidential election. That would mean those voters could cast ballots this fall without having to re-register to vote.

The case remains important because it will decide how the state in future elections treats voters who may have moved. During Tuesday’s arguments, Hagedorn asked questions about the powers of the state Elections Commission but did not signal what he thinks of the case.

Also Tuesday, the court considered a case that deals with voters who label themselves indefinitely confined. Those voters do not have to provide a photo ID to get an absentee ballot, as other voters must.

The status of those voters has taken on prominence because Wisconsinites are increasingly turning to absentee ballots because of the coronavirus pandemic. Some may be identifying themselves as confined because of the threat of the illness.

Voter list

Last year, the state Elections Commission notified about 232,000 voters that it believed they had moved. The commission planned to remove voters from the rolls in 2021 if they hadn’t confirmed their addresses or revised their voter registrations by listing new addresses by then.

Three suburban Milwaukee men sued with the help of the conservative Wisconsin Institute for Law & Liberty. They contended state law required those on the list to be quickly removed from the voter rolls.

An Ozaukee County judge agreed with them, but an appeals court unanimously ruled state law did not require the commission to take the voters off the rolls.

The lawsuit centers on a state law that says voters should come off the rolls if they have not responded within 30 days to notifications that there is reliable information that they have moved. The appeals court concluded that law applies to local clerks — not the state commission.

Hagedorn didn’t say much Tuesday about what he made of the arguments in the case. In his questions, he paid the most attention to how the Elections Commission in 2017 and 2019 handled lists of voters who were thought to have moved.

“It’s one of the questions that perplexed me in this case, reading through it, is what authority the commission thought it had to do what it did in 2017, what authority it had to recommend to its commissioners even in 2019 that we’ll just remove these (voters) in 12 to 24 months,” he said.

Also at issue in the case are questions over whether the information the state has about voters who may have moved is reliable.

The list was compiled by the Electronic Registration Information Center, a consortium that helps 30 states and Washington, D.C., maintain accurate voter rolls.

It uses change-of-address forms submitted to the U.S. Postal Service and vehicle registrations in Wisconsin and other states that belong to the coalition. But it doesn’t use commercial data that also track addresses, and officials have acknowledged the system they use sometimes wrongly flags people as having moved.

In some cases, people are incorrectly labeled as moving when they have registered a vehicle at a business address or relative’s home. Officials have said they believe the list is largely accurate but they do not know precisely how many errors are on it.

Since the voters were first contacted, the size of the list has shrunk to about 129,000. That’s because some on the list have revised their registrations or confirmed they had not moved.

Wisconsin allows voters to register at the polls. Anyone taken off the rolls can get reinstated by providing proof of residence.

Those who brought the lawsuit tried last year to get the Supreme Court to take the case before the Madison-based District 4 Court of Appeals issued a decision.

The high court in January deadlocked on whether to put the case on a fast track. Hagedorn and two justices backed by Democrats were on one side and three justices backed by Republicans on the other.

The conservative justice Daniel Kelly did not participate in that decision because he was on the ballot in April. He was defeated by the liberal Jill Karofsky, who took part in Tuesday’s arguments.

With no majority vote on whether to fast track the case, it remained with the appeals court. The appeals court then ruled the voters should remain on the rolls and the Supreme Court agreed this summer to review that decision.

If the Supreme Court sides with those trying to take people off the rolls, the justices will have to decide whether to hold Democrats on the Elections Commission in contempt of court.

After Ozaukee County Circuit Judge Paul Malloy ruled against the bipartisan commission, the Democrats prevented the removal of voters from the rolls. Malloy found the Democrats in contempt, but the appeals court later invalidated his contempt finding.

Hagedorn, who joined the court in 2019, typically sides with the conservatives but has broken with them at times.

This month he sided with the liberals in a 4-3 ruling that kept the Green Party’s presidential ticket off the ballot this fall. Republicans wanted the liberal ticket on the ballot because they thought it could take away some support for Biden.

In May, Hagedorn joined the liberals in dissent in saying the conservative majority was wrong to strike down the stay-at-home order Democratic Gov. Tony Evers’ administration had issued to fight the spread of COVID-19.

In that dissent, Hagedorn contended the conservatives were doing what they often accuse liberal justices of doing — trumping up specious arguments to get the outcomes they want.

“We are a court of law. We are not here to do freewheeling constitutional theory. We are not here to step in and referee every intractable political stalemate,” he wrote.

“We are not here to decide every interesting legal question. It is no doubt our duty to say what the law is, but we do so by deciding cases brought by specific parties raising specific arguments and seeking specific relief.”

Indefinitely confined voters

The justices also heard arguments Tuesday in a case that emerged after Dane County Clerk Scott McDonell posted a notice online ahead of the April election telling voters that they could get absentee ballots without providing an ID by designating themselves indefinitely confined if they were staying in their home because of the pandemic.

The state Republican Party sued and the justices in March ordered McDonell to make sure advice he gave to the public on the issue was in line with guidance from the state Elections Commission.

For the April election, more than 200,000 voters called themselves indefinitely confined and did not have to provide an ID.

Eric McLeod, an attorney for the Republicans, said the court should issue a decision before the presidential election so there are no questions about who qualifies as confined. If the election is close, some absentee ballots by confined voters may be challenged, he said.

“We could see all sorts of challenges made that could throw the election into crisis,” he said.

The issue has also cropped up in a federal lawsuit over how Wisconsin will conduct this fall’s election. As part of a broader decision on several election issues last week, U.S. District Judge William Conley told the state Elections Commission it must alert voters on government websites that to be considered indefinitely confined one does not have to have a ” permanent or total inability to travel outside of the residence.”

Tuesday’s arguments before the state Supreme Court were conducted virtually because of the pandemic. The justices each appeared from their chambers and Democratic Attorney General Josh Kaul and other lawyers appeared from their own offices.

Email Patrick Marley at [email protected]. Follow him on Twitter at @patrickdmarley.

Wisconsin justices weigh removal of 130K from voter rolls (UPDATE)

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — The Wisconsin Supreme Court weighed Tuesday whether to go along with conservatives who argue that 130,000 voters should be removed from the rolls in the hotly contested presidential battleground state, while the Democratic attorney general defended not purging them.

The Wisconsin case is one of several lawsuits across the country, many in battleground states, that seek to purge voters from registration rolls. It is being closely watched because President Donald Trump won the swing state by fewer than 23,000 votes in 2016. However, the lawsuit was unlikely to be resolved by the state Supreme Court before the Nov. 3 election just five weeks away.

Justices on the court controlled 4-3 by conservatives gave little indication during the hour-long oral arguments how they were leaning.

The Wisconsin case hinges on whether voters who were identified as potentially having moved should be removed from the voter registration database. The Wisconsin Institute for Law and Liberty, a conservative law firm, argued that the state elections commission broke the law when it did not remove voters from the rolls who did not respond within 30 days to a mailing last year indicating they had been identified as someone who potentially moved.

The commission wanted to wait until after the presidential election before removing anyone because of inaccuracies found while previously attempting to identify voters who may have moved.

Because voters who moved were concentrated in more Democratic areas of the state, liberals argued that the lawsuit was meant to lower turnout on their side. Republicans countered that it was about reducing the likelihood of voter fraud and making sure that people who moved are not able to vote from their previous addresses.

A circuit court judge ruled last year that the voters must be removed immediately, but a state appeals court overturned that in February.

Many of the questions from justices on Tuesday revolved around whether it was the duty of the state elections commission, or local election clerks, to remove voters from the rolls. Justice Brian Hagedorn, part of the court’s conservative majority who has sometimes sided with liberals, questioned whether the state elections commission had the legal authority to remove anyone from the registration list.

Wisconsin Attorney General Josh Kaul maintained that the elections commission was under no duty to treat as reliable the information it received about voters who may have moved. Kaul said the commission’s only responsibility under the multi-state Electronic Registration Information Center agreement was to notify flagged voters that they may need to update their address.

Rick Esenberg, attorney for the conservative group that brought the lawsuit, argued that state law clearly gives the elections commission the responsibility to maintain the voter list. When presented with the information about those who had moved, the commission had a duty to remove those who did not respond to the mailing, Esenberg said.

No voters have been deactivated while the yearlong legal fight continues. Even if a voter has their registration deactivated, they can register again later or on Election Day when they show up at the polls. Absentee voting is underway in Wisconsin with more than 238,00 ballots returned already.

The lawsuit is just one of several voting-related challenges across the country, many of them in battleground states.

On Sunday, a federal appeals court temporarily put on hold a ruling that would expand the time that absentee ballots can be counted in Wisconsin. And on Monday, a judge in Georgia dismissed a similar voter purge lawsuit filed by two voters in Fulton County, which includes Atlanta. The lawsuit sought to force election officials to hold hearings that could have resulted in 14,000 voters being removed from the county’s voter rolls before the November general election.

In Pennsylvania, a federal lawsuit filed by the conservative group Judicial Watch alleges that up to 800,000 registered voters should be classified as “inactive” and removed. That case is on hold until after the election. Judicial Watch also sued in North Carolina, saying not enough has been done to periodically remove inactive or permanently moved voters in that state.

And in Michigan, a Republican activist sued in federal court to remove ineligible voters from 16 counties with “abnormally high” registration levels. The state recently sought to dismiss the lawsuit, saying the plaintiff had no standing to sue and, even if he did, federal law prohibits the systemic removal of ineligible voters within 90 days of the election. That case is pending.

Removals or proposed removals, especially this close to an election, can be confusing and intimidating for voters and frequently aren’t based on reliable information, said John Powers, an attorney with the Lawyers’ Committee for Civil Rights, which has been fighting those efforts.

“You’re scaring people and kicking eligible voters off the rolls, all of which undermines confidence in elections at time when that’s the last thing we need,” he said.

Court says judge’s Facebook friendship gave rise to conflict

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — A divided Wisconsin Supreme Court ruled Tuesday that a judge’s decision to become Facebook friends with a woman whose child-custody case he was hearing gave rise to at least the appearance of bias, upholding a lower court’s order that the case be re-heard by another judge.

The ruling was the first of its kind in Wisconsin and the latest in a series of examples across the country where a judge’s actions on social-media call into question their ability to fairly consider cases before them. States have taken a variety of approaches toward dealing with the intersection of judicial conduct and social media, as some laid down strict rules against it and others being more liberal.

In Tuesday’s ruling, the court determined that “the extreme facts of this case rebut the presumption of judicial impartiality,” a due-process violation. Justice Annette Ziegler also used the case to “strongly urge” Wisconsin judges to “weigh the advantages and disadvantages of using electronic social media like Facebook.”

“I am concerned that no matter how cautious and attentive the judge may be, a judge who uses electronic social media may expose both the judge and the judiciary as a whole to an appearance of bias or impropriety,” she wrote as part of the 4-3 majority.

But Justice Brian Hagedorn, in a dissent, said even though the case involves social media, “an area comparatively unexplored in judicial ethics circles,” the facts are rather ordinary and the judge’s actions did not violate the due-process rights of the father as he fought for custody rights. There’s not enough evidence to show whether the Facebook friendship unfairly influenced the judge, Hagedorn said.

“Judges are people too,” Hagedorn wrote. “The very concept of an impartial judiciary depends upon the belief that judges can manage through their biases, news feeds, political supporters, former co-workers, and neighbors to render decisions without fear or favor to any party.”

The case began in 2016 when Angela Carroll filed a motion in Barron County to adjust a custody arrangement she had reached with her son’s father, Timothy Miller. She argued Miller had abused her, an accusation Miller denied.

Three days after Carroll and Miller submitted their final written arguments in 2017, the judge handling the case, Barron County Circuit Judge Michael Bitney, accepted a Facebook friend request from Carroll.

Carroll proceeded to “like” 16 of the judge’s posts, “loved” two of them and commented on two of them. The bulk of Carroll’s response to Bitney’s posts were “likes” to prayers and Bible verses that he posted. None of the posts was directly related to the pending custody case.

However, she also shared or liked several third-party posts that were related to domestic violence, a question that was contested at the hearing, the court ruling said.

The judge never disclosed the Facebook friendship. He also did not like or comment on any of Carroll’s posts and didn’t reply to her comments. He didn’t deny reading them, however.

The Supreme Court ruled that gave Carroll access to the judge that Miller did not enjoy.

“Carroll was effectively signaling to Judge Bitney that they were like-minded and, for that reason, she was trustworthy,” Justice Rebecca Dallet wrote for the majority.

A month later Bitney ruled that Miller had abused Carroll, gave her sole custody and physical placement of their son and ordered a review of Miller’s child-support obligations.

The boy’s guardian ad litem, who is appointed by the court to advocate for a child’s best interests, later discovered that the judge had friended Carroll on Facebook and informed Miller. He then asked the judge to reconsider his ruling.

The judge said he was impartial, noting that he had simply accepted her friendship but did not “like” or comment on any of her posts. He also said that he had already decided on his ruling prior to accepting her Facebook friend request.

No “reasonable person … would seriously call into question the court’s objectivity or impartiality,” the judge said.

A state appeals court later ruled in Miller’s favor, saying the judge’s actions created a substantial risk of bias resulting in the appearance of partiality. It ordered that the custody case proceed with a different judge and the Wisconsin Supreme Court on Tuesday agreed, sending the case back to lower courts for a different judge to rule on the custody dispute.

Court rules phone charging kiosks are illegal gambling

MADISON, Wis. (AP) — A unanimous Wisconsin Supreme Court on Friday ruled that cellphone-charging kiosks that allow users to win or lose money by playing a video game are illegal gambling machines.

The court upheld rulings from Milwaukee County Circuit Court and the state appeals court that also determined the kiosks, known as “Pow’r Up” machines, to be illegal.

Quick Charge Kiosk, owned by Jeremy Hahn, operates the kiosks in convenience stores and gas stations throughout the state. The kiosk gives the customer credits to play a video game while their phone is charging. Customers can redeem a ticket, if they win, at the store where the kiosk is located.

Soon after the kiosks debuted, the Wisconsin attorney general said in 2015 that they were illegal gambling machines and several were seized. Quick Charge sued, arguing that the machines were allowed under state law. They argued, in part, that they don’t constitute gambling machines because a free play option is available.

“Free play option or not, Quick Charge’s argument does not overcome the reality that its kiosks can be used as gambling machines,” Wisconsin Supreme Court Justice Brian Hagedorn wrote. “Simply because a kiosk has uses other than illegal gambling does not negate that reality.”

Wisconsin conservatives feel ‘snookered’ by court justice

By SCOTT BAUER
Associated Press

MADISON, Wis. (AP) — The euphoria that Wisconsin Republicans felt after winning yet another major political battle in the state Supreme Court this week is being dampened by a scathing dissent written by one of the conservative justices, raising doubts about how solid the conservative majority actually is.

Democrats praised Justice Brian Hagedorn for siding with liberals against revoking the Democratic governor’s stay-at-home order on Wednesday. Republicans vented their anger on Twitter.

“Conservatives have been snookered,” former state Rep. Adam Jarchow tweeted within minutes of the court’s ruling Wednesday, in reference to Hagedorn. “We will never learn.”

Jarchow, who tweeted that he went to a bar hours after the ruling, said Hagedorn was on “the wrong side of history.”

Asked to respond, Hagedorn did not back down.

“During my campaign, I said that my job is to say what the law is, not what I think the law should be. I meant what I said,” Hagedorn told the AP in a text message. “To the best of my ability, I will apply the law as written, without fear or favor, in every case before me.”

Hagedorn was well known to conservatives for his work as former Gov. Scott Walker’s legal counsel. Walker’s former campaign manager was the strategist for Hagedorn’s run for the Supreme Court last year. Hagedorn won widespread support from Republicans, along with more than $1 million in outside spending from conservative groups, and captured a narrow half-point victory. With his win, conservatives saw their majority on the court increase to 5-2.

But Hagedorn could become a swing vote on the court in August, when a conservative justice is replaced by a liberal, dropping the conservative majority to 4-3.

Hagedorn has delivered for Republicans before. He met their expectations when he sided with conservative justices on a major defeat for Democrats last month, granting the GOP-controlled Legislature’s request to stop Gov. Tony Evers from postponing the April presidential primary election.

But in January, he joined with the court’s two liberal justices to prevent an expedited ruling in a case brought by conservatives that could result in purging as many as 200,000 voters from the rolls. The liberals sided with Hagedorn again this week, joining his dissenting opinion saying that the Legislature had no standing to bring the case seeking to overturn Evers’ “safer at home” order.

“The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature,” Hagedorn wrote. “Today’s decision may or may not be good policy, but it is not grounded in the law.”

Hagedorn’s position drew scorn from conservative justices in the majority, including Justice Dan Kelly, who was defeated last month and will leave the court in August. Kelly wrote that Hagedorn had delivered an “insult” to the majority with his dissent.

“We swore to uphold the Wisconsin Constitution,” Kelly wrote. “He’s free to join in anytime he wishes.”

Walker, in an interview Friday, said Hagedorn’s opinion supporting powers of the executive branch may have been influenced by his time serving in the governor’s office. Walker, who called the majority ruling “rock solid,” said he had no concerns about Hagedorn’s conservative bona fides.

“Everything I’ve seen in the past is he’s going to be consistently conservative,” Walker said. “Not politically. He’s going to consistently be in the camp of believing the Constitution is the ultimate guide.”

Attorney Lester Pines, a Democrat who frequently argues before the court, said Hagedorn is proving to be an independent thinker who is not tied to a rigid conservative ideology like other justices. And that’s bad news for Republicans, he said.

“They want judges who will decide cases based on a fixed ideological bias,” Pines said. “That’s what they thought they were getting and apparently they didn’t get it. If they’re complaining about that, that says a lot.”

Hagedorn ran on the promise, made by many conservative judicial candidates, to not legislate from the bench and strictly interpret the laws as they were written. All four of the justices who overturned the power of Evers’ health secretary to issue the health emergency also campaigned against what they called judicial activism.

Hagedorn’s dissent shows that he is staying true to his word not to legislate from the bench, Pines said.

“We are a court of law,” Hagedorn wrote. “We are not here to do freewheeling constitutional theory. We are not here to step in and referee every intractable political stalemate. In striking down most of (the order), this court has strayed from its charge and turned this case into something quite different than the case brought to us.”

“He may very well be that kind of impartial, conservative justice we would want on a court,” Pines said. “I hope that it develops that way.”

Summary: Justices file 7 opinions in stay-at-home order ruling

The Wisconsin Supreme Court justices filed seven separate opinions in their decision on Wednesday striking down the state’s extended stay-at-home order.

A 4-3 ruling issued on Wednesday essentially reopened the state immediately, though several local governments have already enacted their own health restrictions to help slow the spread of the coronavirus. Schools statewide also remain closed.

The high court’s majority ruled that Department of Health Services Secretary Andrea Palm overstepped her authority by extending the statewide stay-at-home order for another month. The majority opinion declared Emergency Order 28 unlawful, invalid and unenforceable.

The 161-page document with the decision includes seven opinions — the majority opinion, three concurring opinions and three dissenting opinions.

Photo of justices in the Majority in Legislature v. Palm

Majority Opinion

In the majority opinion, Chief Justice Patience Roggensack wrote the case was about Palm’s asserting power as an unelected official. She said the majority concluded the emergency order is a rule under the controlling precedent of the state Supreme Court, and therefore, is subject to statutory emergency-rulemaking procedures established by the Legislature.

“Accordingly, the rulemaking procedures of Wis. Stat. § 227.24 were required to be followed during the promulgation of Order 28,” Roggensack wrote. “Because they were not, Emergency Order 28 is unenforceable.”

Discussion around Wisconsin Stat. § 227.01(13) (rulemaking)

  • “We conclude that Order 28 is a ‘general order of general application.’ The order regulates all persons in Wisconsin at the time it was issued and it regulates all who will come into Wisconsin in the future. If we were to read the definition of ‘Rule’ as Palm suggests, one person, Palm, an unelected official, could create law applicable to all people during the course of COVID-19 and subject people to imprisonment when they disobeyed her order. “
  • “In addition, we employ the constitutional-doubt principle. That is, we disfavor statutory interpretations that unnecessarily raise serious constitutional questions about the statute under consideration. Clark v. Martinez, 543 U.S. 371, 380-81 (2005). Palm points to statutes that she asserts give her broad authority to impose regulation; but it does not follow she can impose regulation without going through a process to give the people faith in the justness of the regulation. However, under Palm’s theory, she can ‘implement all emergency measures necessary to control communicable diseases,’ Wis. Stat. § 252.02(6), even at the expense of fundamental liberties, without rulemaking. That interpretation is constitutionally suspect.”

Discussion around Wisconsin Stat. ch. 252 (communicable diseases)

  • “If Wis. Stat. § 252.02(6) were the sole factual foundation for criminal charges, no criminal prosecution could result because § 252.02(6) does not have the specificity required for fair notice of the conduct required or prohibited. Stated otherwise, it has no definable standards for required or prohibited conduct.”
  • “We do not define the precise scope of DHS authority under Wis. Stat. § 252.02(3), (4) and (6) because clearly Order 28 went too far. We cannot expansively read statutes with imprecise terminology that purport to delegate lawmaking authority to an administrative agency.”

Regarding the Legislature’s request to issue a stay of a temporary injunction for six days

  • “Although a very unusual request … We perceive this request as being grounded in a concern for an orderly transition from Order 28 to a lawful rule.”
  • “However, more than two weeks have passed since we began our consideration of this case. Therefore, we trust that the Legislature and Palm have placed the interests of the people of Wisconsin first and have been working together in good faith to establish a lawful rule that addresses COVID-19 and its devastating effects on Wisconsin.”

Photo of justices who authored concurring opinions in Legislature v. Palm

Concurring opinions

Chief Justice Roggensack

Roggensack filed a concurring opinion addressing the Legislature’s stay for the requested injunction. She said there was a legal basis upon which to consider the “extraordinary request.”

“I too am appreciative of the concerns raised by COVID-19 and the possibility of throwing the state into chaos,” Roggensack wrote. “Accordingly, although our declaration of rights is effective immediately, I would stay future actions to enforce our decision until May 20, 2020.”

However, she said she trusted the parties would put the interests of Wisconsinites first and work together quickly to establish a rule in response to COVID-19.

Justice R. Bradley

Justice Rebecca Bradley discussed what she viewed as constitutional violations in her concurring opinion. She brought up the discussion of Korematsu v. United States during oral arguments, and she said the point was not to compare the situations of Japanese-Americans forced into internment camps during World Ward II with those faced by people ordered to stay at home because of the coronavirus.

“We mention cases like Korematsu in order to test the limits of government authority, to remind the state that urging courts to approve the exercise of extraordinary power during times of emergency may lead to extraordinary abuses of its citizens,” Bradley wrote.

She said the court was aware that many Wisconsinites support Safer at Home, but she said it was making a decision based on the law, not popular opinion.

“In Wisconsin, as in the rest of America, the Constitution is our king——not the governor, not the legislature, not the judiciary, and not a cabinet secretary,” Bradley wrote. “Fear never overrides the Constitution. Not even in times of public emergencies, not even in a pandemic.”

Justice Kelly

Justice Dan Kelly said he wrote separately to describe why, under Wisconsin’s constitutional form of government, the Legislature couldn’t have given Palm the authority to issue the order.

He said the order contains or assumes “some shockingly profound policy decisions.” According to Kelly, the order asserts there has been a public policy decision to vest executive power in the secretary.

“If her authority is that boundless, there is no method by which we can determine what power she might assert next,” Kelly wrote. “Can she also dictate what we do in our own homes? Can she tell us how many hours we can spend outdoors in our own yards? Can she forbid us from buying certain products? Compel us to buy others?”

Photos of justices who wrote dissenting opinions in Legislature v. Palm

Dissenting opinions

Justice Dallet

In her dissent, Justice Rebecca Dallet said the majority failed to examine the plain language of  Wis. Stat. § 252.02. She said the legislature gave the DHS secretary the explicit authority to issue the order.

“The majority’s attempts to circumvent the statute’s plain meaning in order to reach its desired outcome are legally suspect and, frankly, unpersuasive,” Dallet wrote. “This reading of Wis. Stat. § 252.02 is even more illogical because it hamstrings DHS to a time-consuming, lengthy rulemaking scheme inconsistent with the authorization for DHS to immediately and summarily” to guard against the introduction of communicable disease as well as to control and suppress it.

Counsel for the Legislature said the rulemaking process could take 12 days in this case.

“This decision will undoubtedly go down as one of the most blatant examples of judicial activism in this court’s history,” Dallet wrote. “And it will be Wisconsinites who pay the price.”

Justice A.W. Bradley

Justice Ann Walsh Bradley said she wrote a separate dissent to discuss the “confusion” resulting from Roggensack’s majority and concurring opinions about the issue of the stay.

“These positions taken in the majority opinion and the concurrence are fundamentally contradictory,” Walsh Bradley wrote. “If you are confused, you are not alone.”

Roggensack provided a fourth vote to form a majority to deny the requested stay, but Walsh Bradley said if Roggensack actually wanted the stay, as she said in the concurring opinion, she would have been the fourth vote to form a majority in support.

“It is illogical to vote to deny a stay, while at the same time lamenting that because of the way you voted, there is no stay,” Walsh Bradley wrote.

Justice Hagedorn

Justice Brian Hagedorn said he would have upheld the order based on the legal issues presented in the case. He said the court’s task was to decide the specific arguments of the case, not decide the constitutional limits on executive power or whether the order infringed on constitutional rights.

He said the order was temporary and meant in response to the outbreak of a disease, meaning it didn’t meet the definition of a rule under Wis. Stat. § 227.01(13). The Legislature never argued one of its laws was unconstitutional, Hagedorn said, although the majority seemed to make that argument.

“The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature,” Hagedorn wrote. “Today’s decision may or may not be good policy, but it is not grounded in the law.”

Walsh Bradley and Dallet joined in paragraphs 198-258 of his dissent.

Critiques of opinions

The justices included a number of critiques of the logic and arguments in each other’s opinions, including:

“Spurning more than two centuries of fundamental constitutional law as well as the Wisconsin Constitution’s guarantee of liberty, Justice Brian Hagedorn shockingly proclaims ‘the judiciary must never cast aside our laws or the constitution itself in the name of liberty.’ Setting aside the self-contradictory nature of that statement, Justice Hagedorn’s 53-page opinion contains no constitutional analysis whatsoever, affirmatively rejects the constitution, and subjugates liberty. The Wisconsin Constitution IS the law——and it reigns supreme over any statute.” R. Bradley wrote.

“In a thinly-veiled attempt at garnering a sensationalized headline, Justice Rebecca Dallet repeatedly employs fear tactics in lieu of the law in order to dramatize her perceptions of the consequences of the majority’s opinion,” R. Bradley wrote.

“The whole of (Hagedorn’s) statutory analysis is faulty because he has not discerned that the Order implicitly created, or assumed to exist, a host of public policy decisions. Under Justice Hagedorn’s rationale, an executive branch agency is free to make ad hoc policy decisions, so long as they are temporary and acted upon immediately. Nothing in our legal canon supports such an odd proposition,” Kelly wrote.

“A majority of this court falls hook, line, and sinker for the Legislature’s tactic to rewrite a duly enacted statute through litigation rather than legislation,” Dallet wrote.

“Some members of the majority try to get around this by asserting that Order 28 violates the nondelegation doctrine under a legal test raised and developed sua sponte without the benefit of adversarial briefing. Even assuming this new legal framework is correct and should be adopted, the rationale offered does not support the suggested conclusion,” Hagedorn wrote.

In response, Kelly wrote, “I have no need to ‘get around’ this observation because in this court we don’t let the tail wag the dog. Justice Hagedorn is concerned about remedies when what we are concerned about is enforcing a structural limitation on the branches’ powers. It would be irresponsible of us not to consider constitutional limitations when we declare what the law is.”

‘Broad sweep of power’ or within public interest? How justices argued provisions in the state election order

Wisconsin is the only state in the U.S. with an April election proceeding as planned, the result of an order the state Supreme Court issued on Monday.

The court’s ruling countermanded an executive order that Gov. Tony Evers had issued earlier in the day in an attempt at postponing in-person voting for two months. Hours later, the state Supreme Court sided with Republicans who said Evers didn’t have the authority to reschedule the race on his own. Conservative justices on the U.S. Supreme Court quickly followed with a ruling blocking Democratic efforts to extend absentee voting.

The state Supreme Court ordered the election to proceed 4-2. Chief Justice Pat Roggensack and Justices Rebecca Bradley, Brian Hagedorn and Annette Ziegler made up the majority.

The high court assessed several general constitutional provisions and one statute that Evers cited in support of his order: the Preamble; art. IV, § 11; art. V, § 1; and art. V, § 4 of the state Constitution; and Wisconsin Stat. § 323.12(4)(b).

The majority found none of the provisions could authorize Evers to issue the directives in his executive order, with the sole exception of one requiring the Legislature to convene in special session on April 7. The order noted that Article V, Section 4 references danger from contagious disease, but “specifies that this circumstance gives the Governor the power to convene the Legislature at another ‘suitable place.'”

Wis. Stat. § 323.12(4)(b) grants the governor the authority to “issue such orders as he or she deems necessary for the security of persons and property.” The majority said the provision must be read in the light of the entire statute, and the justices concluded nothing in subsection 4 grants him the power to suspend or rewrite statutory provisions governing mandatory election dates, procedures and terms of elected office.

“(T)he logical inference with respect to paragraph (4)(b) is that the Legislature has not granted him the authority to suspend or rewrite statutes in the name of public safety,” the majority wrote.

The court issued temporary injunctive relief, writing the petitioners were likely to succeed on their claims that the executive order was unlawful.

“The only remedy for this is a temporary injunction, and the failure to enjoin this action would irrevocably allow the Governor to invade the province of the Legislature by unilaterally suspending and rewriting laws without authority,” the majority wrote.

Justices Ann Walsh Bradley and Rebecca Dallet dissented, calling the majority’s orders “misguided” with “scant rationale.”

“The majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic,” Bradley wrote.

Bradley said the plain language of Wis. Stat. § 323.12(4)(b) includes COVID-19 as a danger to the security of persons.

“Paying no heed to the warnings or the science, the majority circumvents the law, while disenfranchising voters and putting at risk the health and safety of our fellow Wisconsinites,” Bradley wrote.

The majority said the dissent’s arguments were about whether the policy choice to hold the election is “good or bad, or otherwise in the public interest,” rather than the issue presented to the court — whether the governor has authority to suspend or rewrite state election laws.

“Even if the Governor’s policy judgments reflected in the order are well-founded, and even if we agreed with those policy judgments, none of the authorities cited in the order support this broad sweep of power,” the majority wrote.

Justice Dan Kelly did not participate.

Wisconsin court: Bid to recover smuggled car can continue

By TODD RICHMOND
Associated Press

MADISON, Wis. (AP) — An attempt to recover a rare car that thieves smuggled from Milwaukee to Europe more than a decade ago can continue, the Wisconsin Supreme Court ruled Tuesday.

According to court documents and Milwaukee Journal Sentinel newspaper reports, the millionaire Roy Leiske’s 1938 Talbot Lago, a rare French sports car, was stolen from a Milwaukee factory where he’d been restoring it in March 2001.

The vehicle was one of only about 16 of its kind produced. Justice Brian Hagedorn, writing for the majority in the ruling, said the car “is considered by some one of the most beautiful and innovative cars in the world.”

Leiske died in 2005 and bequeathed the car to his cousin, Richard Mueller, who in turn sold a percentage of it to Joseph Ford III, a classic-car seller from Florida. Together they tried to find the car without success.

In 2015, Rick Workman, the founder of an Illinois dental company, bought the car from Christopher Gardner, an American living in Switzerland. The asking price? $7.6 million, of which $6.8 million went directly to Gardner.

Gardner shipped the car from Switzerland to Chicago. Workman’s holding company — TL90108 LLC, named for the car’s serial number — tried to register it in Illinois, triggering a hit on a stolen vehicle report.

A federal grand jury in Milwaukee indicted Gardner this past May on four counts of wire fraud and one count of transporting a stolen car in foreign commerce.

According to the indictment, Gardner stole the Talbot Lago from the Milwaukee factory, stored it until mid-2005 and forged documents showing he was the legal owner. In 2006 he shipped the car to Switzerland and restored it in France before selling it to Workman, falsely representing to Workman that he was the legal owner.

Workman’s attorney, Larry Heftman, told the Journal Sentinel in June that Workman bought the car in good faith.

Mueller and Ford demanded TL90108 return the car to them and sued the company in 2017 when the company refused to hand it over.

Then-Milwaukee County Circuit Judge Rebecca Dallet, now a Wisconsin Supreme Court justice, dismissed the case, finding a six-year statute of limitations on such action had expired in 2007 and the clock hadn’t restarted when the company acquired the car.

A state appeals court reversed Dallet. The company subsequently asked the state Supreme Court to reinstate her ruling.

The court upheld the appellate ruling, finding unanimously that Mueller and Ford aren’t time-barred from trying to recover the car because the clock started when TL90108 acquired it in 2015. Therefore their lawsuit was filed within the six-year window, the court found.

Dallet didn’t participate in the Supreme Court ruling.

Heftman didn’t immediately return a voicemail on Tuesday. Mueller’s attorney, Matthew Fisher, also didn’t immediately return a message. Online court records didn’t list an attorney for Gardner.

Ford is representing himself in the case.

“I’m really pleased with the decision,” he said. “Very pleased it was unanimous and look forward to taking the next step.”

‘Really?’: Supreme Court justices disagree on invoking laches in homicide appeal

The Wisconsin Supreme Court disagreed on invoking laches in an appeal case that concerns a defendant’s rights in a 2007 homicide conviction. Last week, a 4-3 majority upheld imposing laches in the case, prompting the response “Really?” in one of the arguments.

Joshua Wren was convicted of reckless homicide in 2007 at the age of 16. A Milwaukee County judge sentenced him to 21 years of initial confinement and nine years of extended supervision, longer than recommended. Court documents say Wren’s attorney, Nikola Kostich, had then told him “not to worry” about the longer sentence because he’d file an appeal.

A decade later, Wren filed a writ of habeas corpus seeking the reinstatement of his direct appeal rights and alleging Kostich had failed to file a notice of intent to pursue postconviction relief as promised. Wren said he and his family tried to speak to Kostich on various occasions to no avail. His petition referenced Kostich’s disciplinary history to substantiate his claims. During the 2017 case, the state pleaded laches, saying Kostich died in 2014 and no case files remained. A court of appeals decided to impose laches and denied the petition.

Wren appealed to the state Supreme Court, arguing the adoption of laches was ill-considered. The appeal challenged whether the state had established that there had been unreasonable delay and prejudice in the proceedings. Chief Justice Pat Roggensack and justices Brian Hagedorn, Annette Ziegler and Dan Kelly upheld the Court of Appeals decision.

In the majority opinion, Hagedorn said unreasonable delay in laches is determined by taking into account what litigants might have known had they exercised reasonable diligence, not what they actually knew. Hagedorn said Wren knew as early as 2010 that Kostich never filed an appeal, but Wren never mentioned it in any of the four pro se motions he filed over the next several years.

“The not-so-silent argument being made is that Wren is less capable than others and should be held to a lower standard,” Hagedorn wrote. “Nothing prevented Wren from contacting another attorney. Nothing prevented Wren from researching available options to ensure he took advantage of every possible legal argument he could make.”

To which Justice Ann Walsh Bradley responded, “Really?”

In the dissenting opinion, she wrote that the majority’s decision had endorsed a significant failure in the justice system. She said Wren’s delay wasn’t unreasonable and the application of laches wasn’t fair.

“While the majority places the delay at Wren’s feet, it glosses over the underlying reason that an appeal was never filed — that Wren was abandoned by his counsel and thus completely denied the right to counsel on direct appeal in violation of the Sixth Amendment” Bradley wrote. “It is the rare member of the public who even knows of the existence of a writ of habeas corpus, let alone what it means and how and when to file such a writ.”

Justices Rebecca Bradley and Rebecca Dallet joined the dissent.

Supreme Court rejects new trial in 1996 double homicide, clarifies transcript procedure

In a 4-3 decision announced Tuesday, the Wisconsin Supreme Court rejected the possibility of having a new trial in a decade-old double homicide case — a request made because of missing transcripts. In upholding an appellate court’s previous decision, the majority concluded the defendant could not prevail without make a facially valid claim of arguably prejudicial error, no matter if all or part of a transcript is on hand.

The high court reviewed State v. Pope, which resulted in a double-homicide conviction in 1996. The same day that Robert Pope, Jr. was convicted, he and his lawyer, Michael Backes, said they intended to pursue postconviction relief. But Pope didn’t take any action until 14 months after his filing deadline had expired.

In the Supreme Court opinion issued Tuesday, Justice Annette Ziegler wrote, “The procedural history of his case is lengthy. But it is Pope’s inaction for 14 months from July 1996 to September 1997 that partially controls the outcome in this case — both then in September 1997, and now in 2019.”

Pope said he had instructed Backes to take action right away, but Backes never did. Many filings and a decade later, the court of appeals, in October 2016, ordered Pope’s direct appeal rights be reinstated. Pope made a postconviction motion for a new trial and made a vain attempt to obtain his trial transcripts. As it turned out, court reporters no longer had notes from his trial. As a result, a circuit court concluded in 2017 that a new trial was needed.

The Court of Appeals later reversed that decision and reinstated Pope’s conviction, concluding he wasn’t entitled to a new trial since he had failed to meet his burden to assert a facially valid claim of error. Under State v. Perry and State v. DeLeon, known as the Perry/DeLeon procedure, a defendant may be entitled to a new trial if a transcript is shown to be incomplete, but the defendant must first make a facially valid claim of arguably prejudicial error.

The Supreme Court majority, made up of Chief Justice Patience Roggensack and Justices Annette Ziegler, Dan Kelly and Brian Hagedorn, decided the Perry/DeLeon procedure applies whether all or just part of a transcript is unavailable. In the majority opinion released Tuesday, Ziegler wrote the court’s conclusion is consistent with Perry, DeLeon, federal law and general appellate procedure.

“If we were to presume prejudice when the entire transcript is unavailable, there would be nothing to stop criminal defendants from sitting on their hands for ten years, and then claiming that they told trial counsel to file a notice of intent,” Ziegler wrote. “Under Pope’s proposed rule, criminal defendants would automatically be entitled to a new trial after ten years regardless of their sentence because their transcripts would be unavailable if not previously requested.”

Justices Rebecca Bradley, Ann Walsh Bradley and Rebecca Dallet dissented. Rebecca Bradley’s opinion contended Pope’s Sixth Amendment rights were violated when Backes didn’t file a notice of appeal and sought an acknowledgement by the court that his rights had been violated.

“Compounding the calamity of errors that deprived Pope of his direct appeal, the majority casts aside constitutional and statutory rights, misapplies cases, and wrongfully blames Pope for his attorney’s errors,” Rebecca Bradley wrote. “The people of Wisconsin should be troubled by any conviction or imprisonment that stands at the expense of fundamental constitutional rights.”

She also discussed the majority’s interpretation of the Perry/DeLeon procedure, writing “The majority flouts the law by imposing the consequences of the lost
transcripts on Pope despite the fault plainly lying elsewhere.”