The League's League-EL
July 12, 2022
Drop Boxes Prohibited and Voters Must Personally Deliver Ballots

In a 4-3 decision, the Wisconsin Supreme Court held that documents issued by Wisconsin Elections Commission staff regarding use of drop boxes for absentee ballots and delivery of absentee ballots was invalid because (1) ballot drop boxes are illegal under Wisconsin statutes and (2) an absentee ballot must be returned by mail or the voter must personally deliver it to the municipal clerk at the clerk's office or a designated alternate site. The Court’s decision did not address whether the documents constituted unpromulgated administrative rules or whether state law permits a voter’s agent to place an absentee ballot in the mail on the voter’s behalf. Teigen v. Wisconsin Elections Commission, 2022 WI 64.

The Court accepted this case on a petition to bypass the Wisconsin court of appeals. The League filed an amicus brief raising concerns regarding questions left unanswered by the circuit court’s decision and highlighting various federal statutes requiring assistance for disabled voters that might be violated by strict adherence to the circuit court’s decision.

New Test for Attorney’s Fees Under Wis. Stat. § 19.37(1)

In Friends of Frame Park v. City of Waukesha, 2022 WI 57, the Wisconsin Supreme Court issued a plurality opinion with a one-paragraph majority opinion that changed the test for when a public records requester “prevails in whole or substantial part” as part of a mandamus action under Wis. Stat. § 19.37(1) and is entitled to attorney’s fees. Under the new test, a requester does not “prevail” unless they have obtained a “judicially sanctioned change in the parties’ legal relationship.” The remainder of the 90-page opinion, including a dissent, is not binding law.

Friends of Frame Park (“FFP”) requested various public records relating to the city of Waukesha's plans to bring amateur baseball to Waukesha. The city provided all requested records except for a draft contract between the city and a baseball entertainment company. The city informed FFP that it was withholding the draft contract until the common council could review the draft at its next meeting to protect the city’s negotiating and bargaining position. About two months later (on the day before the council meeting), FFP filed a mandamus action for production of the draft contract, attorney's fees, and other expenses. The city filed a motion for summary judgment, which the circuit court granted. FFP appealed, and the Wisconsin Court of Appeals reversed, granting summary judgment instead to FFP. The Wisconsin Supreme Court then granted the city’s petition for review.

Justice Hagedorn authored the lead opinion, including the one-paragraph majority opinion. The two questions before the court were (1) whether Friends was entitled to attorney’s fees and (2) whether the city properly withheld the draft contract until after the council meeting. In response to the first question, the majority held that to “prevail in whole or in substantial part” means that a party must obtain a judicially sanctioned change in the parties’ legal relationship. In other words, for a party to be able to seek attorney’s fees under Wisconsin’s public records law, they must be awarded some relief by the court. This is a shift away from the previously used causal-nexus test, which asked whether there was a sufficiently close nexus between the mandamus action and the voluntary release of the document. Because there was no judicially sanctioned change in the parties’ legal relationship, FFP was not entitled to attorney’s fees. In answering the second question, Justice Hagedorn determined the city did properly withhold the draft contract. However, no other justices joined that portion of his opinion.

The dissent disagreed with the shift away from the causation-based test, arguing it was consistent with the plain meaning of Wis. Stat. § 19.37(2)(a).

Local Health Officers Can Issue Orders Enforceable by Civil Citation

In a 4-3 decision, the Wisconsin Supreme Court held as follows: (1) Wisconsin Stat. § 252.03 authorizes local health officers to issue public health orders to prevent, suppress, and control communicable diseases; (2) state law does not preempt a county ordinance making such public health orders enforceable by a civil citation; and (3) local health officer authority to issue public health orders pursuant to Wis. Stat. § 252.03 and a county ordinance making public health orders enforceable by a civil citation do not violate Wisconsin’s constitutional separation of powers. Becker v. Dane County, 2022 WI 63. The Supreme Court accepted this case directly from the circuit court, bypassing the court of appeals. The Court affirmed the circuit court's judgment and order and remanded to the circuit court for further proceedings.

The orders in question were in response to COVID and were issued by Madison and Dane County’s joint public health department’s local health officer pursuant to Wis. Stat. § 252.03(1)-(2). Section 252.03(1)-(2) directs a local health officer to promptly take all measures necessary to prevent, suppress and control communicable diseases," "do what is reasonable and necessary for the prevention and suppression of disease," and "forbid public gatherings when deemed necessary to control outbreaks or epidemics." The orders implemented measures affecting many aspects of daily life where people come in proximity with others. These included requiring face coverings, limiting or forbidding gatherings, requiring sanitation protocols for particular facilities, limiting or forbidding certain sport activities, limiting businesses' allowable indoor capacity, and requiring physical distancing between individuals. Dane County residents impacted by these orders and a performance arts dance studio that was the subject of an enforcement action challenged the local health officer’s authority to issue orders. Significantly, Plaintiffs did not challenge the legality of any particular measure taken in the orders but challenged the ability of the local health officer to issue orders as well as the county ordinance making it a violation to refuse to obey an order of the local public health officer “entered to prevent, suppress or control communicable disease pursuant to Wis. Stat s. 252.03." An ordinance violation could result in a civil forfeiture of between $50 and $200 "for each day that a violation exists." 

This decision preserves local health officer authority to respond quickly to communicable diseases appearing in the community and local government authority to enforce such orders by citation. The League and the City of Milwaukee filed a joint amicus brief in this case supporting the health department.

SCOTUS Holds School Employee’s Suspension for Private Prayers Burdened Employee’s First Amendment Rights and Did Not Implicate Establishment Clause.

In Kennedy v. Bremerton Sch. Dist., No. 21–418, slip. op. (Sup. Ct. Jun. 27, 2022), a school employee sued the school district under 42 U.S.C. § 1983 alleging his rights under the First Amendment's Free Speech and Free Exercise Clauses were violated when he lost his job as a high school football coach for persisting in kneeling midfield after games to offer a quiet personal prayer. The district court granted summary judgment to the school district, and the employee appealed. The 9th Circuit Court of Appeals affirmed. After granting certiorari review, the U.S. Supreme Court reversed. The U.S. Supreme Court held that the school district burdened the employee's rights under the Free Exercise Clause by suspending him for his decision to persist in praying quietly at midfield; the employee engaged in private speech, not government speech attributable to the school district, when he uttered prayers quietly at midfield without his players; the school district's burdening of the employee's rights under the First Amendment’s Free Exercise and Free Speech Clauses could not be justified on the ground the coach’s suspension was essential to avoid an Establishment Clause violation; and the employee's private religious exercise was not impermissible government coercion of students to pray.

Kennedy, a public high school football coach had a 7-year tradition of praying at the 50-yard line after each game. Gradually, students asked to join him in prayer, and at times most of the team joined him. He also offered religious motivational messages when there was a large enough group. Upon learning this information, the School District asked Kennedy to stop the sermon-like, post-game messages and only engage in non-demonstrative religious practices. The district feared that if a public employee engaged in these activities, it might violate the establishment clause. Kennedy complied with the district’s demands, but expressed that due to his sincerely-held religious beliefs he felt compelled to offer a personal, kneeling post-game prayer at midfield while the students were participating in post-game activities. At three separate games, Kennedy continued the practice of praying at the 50-yard line, but did so kneeling, quiet, and without any students. In response, the district put Kennedy on paid administrative leave for his “public and demonstrative religious conduct while still on duty as an assistant coach.” In addition, for the first time in his career, Kennedy received poor scores on his performance review with a recommendation not to rehire after which Kennedy did not return.

The majority opinion focused on the prayer practice that sparked the disciplinary action (the three games). In those prayers, no students were involved, the prayers were quiet, and Kennedy prayed during a time when he was not engaged in his responsibilities as an assistant coach. Additionally, throughout the 7-year tradition of praying at midfield, Kennedy never once compelled participation or denied it. Importantly, the majority stated that the Court had long since abandoned Lemon as the appropriate standard for these claims. Instead, the courts should account for the history and tradition of these practices, as well as recognize the complementary nature of the establishment and free exercise clauses. Neither clause automatically trumps the other. As such, perceived risk of constitutional liability is insufficient to justify actual violations of an individual’s free exercise rights.

The dissent took issue with the majority’s narrow view of only the three personal prayers highlighted in the disciplinary action. Instead, they believed that the Court should look at the entire context -- the gradual progression from personal private prayer to what were essentially sermons on the field. This context showed that the practice was overt in that kneeling was the same symbol used in the 7-year tradition, and coercive in that there was a gradual pressure to join as evinced by the growing number of participants.
No Judicial Review of Public Records Disclosure Pre-Release Except as Authorized by Public Records Law

The Wisconsin Supreme Court held that trade associations had no right to judicial review of a decision to release records under the Wisconsin’s Public Records law prior to release, even if by declaratory judgment, because the public records law does not provide for such review, Wis. Stat. § 19.356 clearly and unambiguously abrogated any common-law right for such review, and the Declaratory Judgment Act did not provide for such review. Wisconsin Manufacturers & Commerce v. Evers, 2022 WI 38.

The Milwaukee Journal Sentinel made a public records request for a list of businesses who had at least two employees test positive for Covid-19 or that had close case contacts investigated by contact tracers, as well as the number of tests and contacts. The Wisconsin Department of Health Services (DHS) had compiled this information during the pandemic and decided to grant the request. As a courtesy, DHS informed the Wisconsin Manufacturers and Commerce (WMC) and two other trade associations that it would release the information. In response, WMC filed for declaratory and injunctive relief to stop the release. The circuit court granted a temporary injunction and denied DHS’s motion to dismiss. The court of appeals reversed the circuit court and remanded the case back to the circuit court. WMC appealed and the Wisconsin Supreme Court affirmed the court of appeals’ decision.

Focusing on the plain language of Wis. Stat. § 19.356, the Court held that the legislature clearly and unambiguously abrogated the common law rights granted in earlier cases (Woznicki v. Erickson, 202 Wis. 2d 178, 549 N.W.2d 699 (1996) and Milwaukee Teachers’ Education Association v. Milwaukee Board of School Directors, 227 Wis. 2d 779, 596 N.W.2d 403 (1999)) and that, except for a few narrow exceptions, there is no underlying right of pre-release judicial review. Since there was no right, WMC did not state a claim upon which relief could be granted. The Court granted DHS’s motion to dismiss.

Three justices dissented, focusing on the policy implications of releasing medical information through public records requests and taking issue with the procedural posture of the case, arguing it was improper to grant interlocutory appeal at such an early stage of the case especially since there was a pending motion to amend the pleadings.

Officer’s Intent to Collect BAC Information from Warrantless Blood Draw of Unconscious Drunk Driving Suspect Irrelevant if Blood Draw Would Have Occurred Anyways.

The Wisconsin Court of Appeals recently affirmed a circuit court decision which concluded that under the particular circumstances of the case, a warrantless blood test measuring an unconscious driver’s blood alcohol content (BAC) was not exceptional and did not violate the 4th amendment. State v. Mitchell, 2022 WL 2155942 (publication recommended). This decision follows remand from the U.S. Supreme Court which decided in Mitchell v. Wisconsin, 139 S. Ct. 2525, 2539 (2019), that when police have probable cause to believe someone committed a drunk-driving offense, and the driver’s unconsciousness or stupor requires them to be taken to a hospital or similar facility before police have a reasonable opportunity to administer a standard evidentiary breath test, police may almost always order a warrantless blood test measuring the driver’s BAC without offending the 4th amendment. The U.S. Supreme Court remanded to the circuit court to find whether Mitchell’s case met an exception to this rule if he could prove (1) that the blood would not be drawn if police weren’t seeking BAC info, and (2) that police could not have reasonably judged that a warrant application would interfere with other pressing needs or duties.

On remand, Mitchell argued one thing—the officer’s subjective intent was to get BAC info, not seek medical attention for Mitchell. The circuit court found that Mitchell did not meet the burden of proof, because a police officer’s intent is irrelevant. Mitchell appealed, and the court of appeals affirmed. Since Mitchell could not show the first prong had been met, the court found no need to address the second prong.

During Search Incident to Arrest, Officer May Search Arrestee's Person and Area Within Their Immediate Control, Including Closed Containers.

In State v. Meisenhelder, 2022 WL 2156189 (publication recommended), the Court of Appeals discussed the search incident to arrest exception to the 4th amendment. After Walmart loss prevention officers caught Meisenhelder stealing and placing items in her purse, Meisenhelder was detained in their office, but not handcuffed. When police arrived on scene, they searched Meisenhelder’s purse with her consent. In their search they found a shotgun shell sized canister, opened it, and found meth. After being informed of her Miranda rights, Meisenhelder stated she believed it was meth in the canister. Meisenhelder was charged with retail theft, possession of meth, and possession of drug paraphernalia. Meisenhelder moved to suppress the evidence within the canister and all admissions thereafter. Meisenhelder argued that the search of the canister violated her 4th amendment rights, because it was too small to contain a weapon or other stolen items. The circuit court denied her motion because it was a search incident to arrest.

The court of appeals reiterated that during a search incident to arrest an officer may search the arrestee's person and the area within their immediate control, including closed containers. This is because an arrest significantly diminishes the suspect’s privacy interests. Although Meisenhelder was detained, she was not handcuffed, and the purse was within her reach throughout the interaction. As such, the search-incident-to-arrest exception permitted the police to search Meisenhelder’s person, her purse, and the container.

Under Primary Jurisdiction Doctrine Courts, Not Administrative Agencies, Should Decide Pure Questions of Law

The Wisconsin Supreme Court recently held that a circuit court erroneously exercised its discretion when it declined to decide whether a Wisconsin Department of Revenue (DOR) letter interpreting a 2017 tax exemption as not applying to manufacturers constituted an unpromulgated rule and deferred to the Tax Appeals Commission to decide that question. The Court noted that under the Primary Jurisdiction doctrine, which governs whether a court or agency should first decide an issue when both may address it, a circuit court may wait for an agency's determination if the issue before it turns primarily on factual or technical questions within the agency's expertise. But if the question is primarily one of law outside the agency's specialized competence, the circuit court should decide the question. Because whether DOR’s letter constituted an unpromulgated rule was a pure question of law outside the Tax Appeals Commission’s expertise, the circuit court should have assumed jurisdiction and decided the issue. Wisconsin Property Tax Consultants, Inc. v. Wisconsin Dep’t of Revenue, 2022 WI 51.

The Court explained that its 2018 decision in Tetra Tech EC, Inc. v. DOR, 2018 WI 75 represented a shift in its approach to reviewing administrative agencies’ legal interpretations and ended its practice of deferring to administrative agencies’ conclusions of law in many circumstances. The Court noted that the legislature subsequently codified this approach in Wis. Stat. § 227.57(11), directing that when reviewing “an agency action or decision, the court shall accord no deference to the agency's interpretation of law.” The Court stated, “Although the analysis will depend on the specifics of each case, courts generally should decide pure questions of law when they are presented, particularly when those questions lie outside an agency's area of expertise.” 2022 WI 51, ¶ 9.

Curt Witynski Weighs in on Short-Term Rentals

Deputy Executive Director Curt Witynski was featured in the May 18th issue of the State Bar of Wisconsin’s newsletter, Inside Track, in an article titled “Short-Term Rentals: As a Vacation Hub, Wisconsin Navigates the Laws of Leisure.

Wisconsin DOR Warns Retailers Video Gaming Machines Are Unlawful Gambling Machines

The Wisconsin Department of Revenue recently alerted retailers that the “operation of video gambling machines at a business that does not have a “Class B” or Class “B” license allowing customers to drink alcohol beverages on the premises is a serious violation of Wisconsin law” and that any video gambling machines on business premises should be immediately removed.

DOR’s warning follows the Wisconsin Supreme Court’s decision denying review of a Wisconsin Court of Appeals decision that held video gaming machines with a “preview feature” allowing patrons to determine the outcome of any particular game in advance were nonetheless “gambling machines” as defined by Wis. Stat. § 945.01(3)(a). Patrons wagered credits to play the games, they could redeem accumulated credits for cash, the preview feature did not need to be used to play the machines, and the preview feature did not negate the fact that when players did not use it, game results were determined completely by chance. JD Prime Games Kiosk, LLC v. Wisconsin Dep't of Revenue, 2022 WI App 6.

The games in question were distributed to convenience stores and DOR’s letter may result in retailers inquiring about obtaining a Class B beer or liquor license since the letter seems to imply that the presence of video gambling machines on premises with such a license is not a serious violation. Although it is true that state law provides reduced penalties for “Class B” premises with five or fewer video gambling machines, it’s important to know that the presence of video gambling machines is still unlawful. For more information see the League's Intoxicating Liquors FAQ 16.

This newsletter will be posted to the League's Legal News page.