¶47 The majority exhibits an unbridled exercise of power. What I mean by that phrase is that the majority ignores the normal restraints of an appellate court such as following precedent and letting the parties frame and argue the issues. Instead, it unnecessarily reaches out to overrule a prior decision that even the State acknowledges "was never raised" previously and "is not part of this case." Why does the majority do this? Because it can.That majority: Roggensack, Prosser, Ziegler, and Gableman.— Ann Walsh Bradley
¶78 The majority doesn't stop with overruling Mikkelson, but rather proceeds to decide that a warrantless entry into a person's home should be evaluated on the basis of whether the law enforcement officers are dealing with an offense that is "a jailable or nonjailable offense."*Those are excerpts from concurring — not dissenting — opinions.
¶79 I sincerely doubt that a law enforcement officer will easily be able to determine, perhaps in the middle of the night, and certainly without the knowledge of what offense the prosecuting authority will ultimately decide to charge, whether the offense involved "is a jailable or nonjailable offense."— N. Patrick Crooks
That is, both Justice Bradley and Justice Crooks (together with Chief Justice Abrahamson, who joined both concurring opinions) could have easily reached the same result in favor of the government as the "conservatives" did without overruling State v. Mikkelson, a 2002 decision of a Wisconsin court of appeals, a decision that both parties agreed had no bearing on the question they were in court to resolve: the correct formulation of a circuit judge's instruction to a jury.
If the majority's reaching out to overrule someone is not a blinding examplar of so-called "judicial activism," then I don't know what is.
State v. Ferguson, 2009 WI 50.
* a.k.a. "policymaking." Of note also is the fact that the offense in question in this case, disorderly conduct, while a "jailable" misdemeanor according to State law, is sometimes charged under a municipal ordinance, where the penalty is simply a fine, despite the language of the State statute and the ordinance being identical.