Municipal judge says 1923 Supreme Court case bars public use of private beach on Lake Michigan1/28/2026 By Alexandria Staubach A Wisconsin Supreme Court case decided in 1923 controls public access to Lake Michigan’s beaches, says Shorewood Municipal Court Judge (and WJI Executive Director) Margo Kirchner. In a written opinion, Kirchner declined to adopt the argument made by Paul Florsheim, a Shorewood resident and professor at UWM, that the "public trust doctrine" permits walking on beaches between Lake Michigan and lakefront homes. Florsheim, who was ticketed for trespass earlier this year after walking the beach north of Atwater Park, argued that the doctrine permitted public access to the lake’s beaches between the water’s edge and what is known as the ordinary high-water mark, or the area between the water’s edge and the point on the shore where the action of the water leaves a distinct mark. While “the public trust doctrine requires the Wisconsin government to protect the state’s navigable waters for public benefit,” wrote Kirchner, “to the extent discernible, the various activities considered to be navigation or otherwise protected by the Supreme Court for purposes of the public trust doctrine have been solely water-based,” she said. “Navigation,” according to Kirchner’s reading of the relevant case law, does not include walking the beach. According to the opinion, “Florsheim point(ed) to no Wisconsin case holding that an activity occurring out of the water constitutes navigation or other protected activity under the public trust doctrine.” The controlling case Kirchner cited is Doemel v. Jantz. “As a municipal court judge,” wrote Kirchner, “I cannot disregard Doemel, whether rightly or wrongly decided. I must follow it.” You can read the full opinion here.
0 Comments
Wisconsin Supreme Court to livestream oral arguments, and what's coming up on their docket1/27/2026  The Supreme Court hearing room in the Capitol. Photograph by Margo Kirchner. By Alexandria Staubach
The Wisconsin Supreme Court will livestream oral arguments while the state’s version of C-SPAN, WisconsinEye, remains shuttered. “The Wisconsin Supreme Court is committed to maintaining public access to its proceedings. To support transparency, the Court will provide a live stream of oral arguments,” said the court in a press release last week. Audio access has been provided since 1997. That coverage will continue. Arguments scheduled in February will be available through the Wisconsin court system website. The court is scheduled to hear oral arguments in three cases on Feb. 10 and 11. In Outagamie County v. M.J.B., the court will consider whether a psychiatric report filed less than 48 hours before a final hearing for involuntary commitment violated M.J.B.’s rights. The case comes to the high court from the District 3 Court of Appeals. There, a three-judge panel found the 48-hour disclosure requirement to be “central to statutory scheme,” and that a failure to comply “substantially affects the rights of an individual subject to commitment.” Failure of the state to comply with the time requirement deprived the lower court of its competency to proceed, said the Court of Appeals. The court then ordered the state to reverse the commitment and involuntary medication of M.J.B. Arguments in that case will take place at 9:45 a.m. on Feb. 10. Cincinnati Insurance Company v. James Ropicky follows M.J.B. The case concerns whether the insurance company properly denied coverage under its policy’s construction-defect exclusion for damage caused by rain water infiltration. Whether Ropicky established an exception to the exclusion is also at issue. On Feb. 11, at 9:45 a.m., the court will hear oral arguments in Konkanok Rabiebna v. Higher Educational Aids Board. The five plaintiffs, represented by Wisconsin Institute for Law & Liberty, assert that the state’s Minority Undergraduate Retention Program violates the Wisconsin Constitution on the basis of race and national origin. The Legislature established the program in the 1980s. Under state law, minority undergraduate scholarships can be awarded to individuals who are Black American, “American Indian,” “Hispanic,” or “admitted to the United States after December 31, 1975, and . . . either a former citizen of Laos, Vietnam, or Cambodia, or whose ancestor was or is a citizen of Laos, Vietnam, or Cambodia.” According to WILL, the program amounts to discrimination based on race, national origin, and alienage. Jefferson County Circuit Court Judge William F. Hue found that the state program met constitutional requirements, but the District 4 Court of Appeals disagreed. You can read the Supreme Court’s synopsis of each case here and watch oral arguments here.  By Alexandria Staubach
The Wisconsin Elections Commission last week struck Christine Hansen from the spring election for District 2 of the Court of Appeals, leaving Anthony LoCoco as the sole candidate on the ballot. Hansen’s campaign website reports that she does not plan to challenge the WEC’s decision in court and is formally ending her campaign. Now, none of the three Court of Appeals candidates up for election faces a challenger. But voters should still know a bit about them. Judge Joe Donald is up for reelection in District 1, and Judge Rachel Graham is up for reelection in District 4. Both were initially appointed by the governor in 2019, so they are subjects of WJI’s “Evers’ judges” posts available here and here. Because the District 2 race is for an open seat (Judge Lisa Neubauer is retiring), voters may not know much about the remaining candidate. So who is Anthony LoCoco? If the Waukesha resident’s work history is any indication, his election would result in a very conservative-minded court. Although LoCoco’s campaign website says he will “apply the law as written and never legislate from the bench,” he is simultaneously campaigning as a “proven conservative fighter who will keep our communities safe and the bureaucracy out of our lives.” A Harvard Law School graduate, LoCoco served as a clerk for Justice Annette K. Ziegler. Ziegler and Justice Rebecca Grassl Bradley endorse LoCoco for the District 2 seat. After the high-court clerking position, LoCoco became deputy counsel at the conservative Wisconsin Institute for Law & Liberty, which was formed to address what it perceived as political imbalance where “conservatives and libertarians in Wisconsin were severely outnumbered in the legal arena.” WILL’s founder and president, Rick Esenberg, wrote in 2023 that “changes in power mean changes in policy,” and “the so-called progressive left is committed not only to statist control of the economy, but to advancing the social objectives of the misnamed social justice warriors of the left.” While at WILL, LoCoco participated in cases challenging the governor’s veto power (Bartlett v. Evers), demanding that the Wisconsin Department of Natural Resources hold a gray wolf hunt (Hunter Nation v. DNR), and involving Wisconsin’s legislative maps (Johnson v. WEC). LoCoco subsequently was hired by the conservative think tank Institute for Reforming Government, for which former Gov. Scott Walker serves as honorary chair. Most recently, LoCoco has managed his own “boutique appellate law firm,” Wisconsin Appellate Litigation Services. LoCoco, like current District 2 Judges Maria Lazar and Shelly Grogan, is affiliated with the Federalist Society, which has described itself as a “group of conservatives and libertarians dedicated to reforming the current legal order.” According to his law firm website, LoCoco is vice president of the Federalist Society’s Milwaukee chapter. Since a change in the law in 2011, litigants are no longer required to bring actions against the state in Dane County, and appeals of cases against the state in Dane County must be taken to a different appellate district—think Waukesha County in lieu of Dane County, and District 2 in lieu of District 4. Today, cases involving the power struggle between the conservative Legislature and Gov. Evers’ executive branch often are appealed to District 2. By Alexandria Staubach The Wisconsin Court of Appeals shut down a Dunn County man’s argument that new intoxicated-driving charges must be dismissed because they relate back to his exercise of his constitutionally protected right to refuse a warrantless blood draw.  Gill Judge Gregory Gill wrote for the District 3 panel, joined by Presiding Judge Lisa Stark and Judge Thomas Hruz.
Nicholas Sparby-Duncan was charged with failing to install an ignition interlock device (IID) in his vehicle and operating a motor vehicle with a prohibited alcohol concentration (PAC), both as a second offense. Sparby-Duncan was, due to prior actions, required to have an IID in his vehicle and prohibited from driving with a blood alcohol concentration above 0.02. An IID requires a driver to pass a breath test before the vehicle can be operated. Sparby-Duncan's restrictions stemmed from his 2008 refusal to submit to a warrantless blood draw and his 2013 conviction for operating a motor vehicle with a detectable amount of a restricted controlled substance (RSC). Because of the 2008 refusal, the sentencing judge in 2013 ordered Sparby-Duncan to install an IID in his vehicle. By statute, as a result of the IID order, Sparby-Duncan was subject to a maximum blood alcohol concentration of 0.02, rather than 0.08, for operating a motor vehicle. Sparby-Duncan would not have been subject to the IID order in 2013 or the 0.02 PAC level absent his 2008 refusal to submit to a warrantless blood draw. Sparby-Duncan argued to the Court of Appeals that because he had a constitutional right to refuse the blood test in 2008, the second-offense charges were unconstitutional—they would not apply but for his exercise of a constitutional right. The State called the nexus between the prior refusal and the new charges “indirect at best.” Wisconsin law and U.S. Supreme Court law prohibit criminal sanctions for refusal to submit to a warrantless blood draw, but they permit civil penalties. Rejecting Sparby-Duncan’s argument that he faced criminal sanctions because he would not be subject to the IID order or a 0.02 PAC but for his 2008 refusal, the Court of Appeals wrote: “Be that as it may, the State could not have charged Sparby-Duncan with the IID and PAC counts in this case but for his choice—made long after the refusal—to forgo installing the IID and to drive with a blood alcohol concentration above 0.02.” “The State is not seeking to treat Sparby-Duncan’s 2008 refusal as an offense for the purposes of increasing the criminal penalty for a subsequent offense,” the court said. Rather, the state is “seeking to impose criminal penalties on Sparby-Duncan for his violation of the IID order—a civil consequence of his refusal—and his operation of a vehicle with a PAC.” Put another way, the new charges would impose criminal penalties on Sparby-Duncan not for refusing to submit to the blood draw in 2008, but for violating the permissible IID order and blood alcohol concentration limit. By Alexandria Staubach
The year is just two weeks old, but two cases--one with significant implications for the criminal justice system--already have notable court activity. In the Wisconsin Court of Appeals District 3, a defendant in a criminal case filed his opening appellate brief seeking a declaration that a 468-day detention without appointment of counsel or a preliminary hearing violated his due process rights. James Grandberry sat for 14 months without even a copy of the complaint describing the allegations against him. He filed pro se motions to dismiss along the way. Grandberry’s case stems from the state’s first wiretap case aimed at disrupting the distribution of fentanyl. The case was filed under seal. Grandberry was arrested in summer 2024, but counsel was not appointed until September 2025, and his preliminary hearing was delayed until then. For individuals who remain in custody, preliminary hearings are supposed to take place within 10 days. But court commissioners in Brown County found exception to the rule at least seven times over 14 months. Granberry’s attorneys filed an interlocutory appeal—meaning an appeal before judgment in the trial court. The Court of Appeals, in its decision agreeing to hear the case, cited a 2022 Court of Appeals decision in State of Wisconsin v. Nhia Lee. In Lee, the appeals court ruled that a 113-day delay in appointment of counsel violated Lee’s rights, leading to dismissal without prejudice. A dismissal without prejudice allowed prosecutors to refile the charges. The Lee appeal was initially taken to the Supreme Court of Wisconsin, but after oral arguments that court dismissed its review as “improvidently granted.” Justice Rebecca Dallet in Lee noted that the court was minimizing important questions “about the efficacy of Wisconsin's process for appointing counsel for indigent defendants, which protects one of a defendant's most important constitutional rights.” Grandberry’s appeal asks 1) whether “during his exceedingly long stay in jail,” the lower court appropriately considered all of the relevant factors in finding good cause to continue to extend the time to appoint counsel and hold the preliminary hearing, and 2) whether Grandberry’s due process rights were “denied by delay.” In the second case, the ACLU of Wisconsin, the national ACLU’s Voting Rights Project, and the Law Forward law firm join forces seeking to intervene in litigation brought by the federal administration against the Wisconsin Elections Commission for refusing to give the U.S. Department of Justice confidential information about Wisconsin’s registered voters. “It has been widely reported that the United States intends to use this data to build an unauthorized national voter database and to target voters for potential challenges and disenfranchisement, and the United States’ own representations to states tend to confirm those suspicions,” the coalition’s memorandum says. A press release from the ACLU of Wisconsin says Wisconsin is among 21 states, plus the District of Columbia, that the U.S. DOJ has sued to obtain sensitive voter data.  By Margo Kirchner
The Wisconsin Elections Commission has denied ballot access to District 2 Court of Appeals candidate Christine Hansen because her declaration of candidacy form was notarized by her husband. The WEC this afternoon voted 5-1, with Commissioner Mark Thomsen casting the sole “no” vote. The vote invalidated Hansen’s declaration, which is required for being placed on the ballot. The deadline for filing a new one expired on Jan. 6, 2026. Hansen was one of just two candidates running for the open seat created by Judge Lisa Neubauer's retirement. The WEC’s decision leaves Anthony LoCoco unopposed. A Wisconsin statute provides that notarization of a record is “voidable” if made by a spouse or a notary who has a “direct beneficial interest” in the record. Hansen’s attorney, Chris Meuler, argued that the statute says “voidable,” not “automatically void,” and that the WEC could decide not to void the document. He argued that the WEC should look at the totality of the circumstances, including that all of the information required was on the form and that Hansen’s husband, better than anyone, knew the veracity of statements to which Hansen attested. Meuler also argued that until found void, Hansen’s declaration was still in effect and she should be allowed to correct it. The WEC’s vote essentially voided the notarization and did not allow for correction. The WEC excluded Christine Hansen from the ballot for failure to timely file a properly sworn declaration of candidacy as required by law. In explaining his position, Thomsen said that more than 1,400 voters want Hansen to be on the ballot, the challenge to the document was “hypertechnical,” and Hansen’s husband’s notarization of the document did not provide any monetary benefit to either spouse because she still would have to win the election. Commissioner Carrie Riepl noted that nonattorney notaries must take a test, which covers notary requirements. Attorneys can be notaries but do not have to take such a test, commissioners noted. They indicated that Hansen's husband is an attorney. Hansen’s declaration was challenged by Kyle Schroeder, a voter residing in Waukesha County. The WEC approved for the ballot all other candidates who timely filed their declarations of candidacy and nomination signatures.  By Margo Kirchner
Just seven of 30 judicial spots up for election in April are contested. Declarations of candidacy and nomination signatures were due by the end of business on Jan. 6. Contested races include the Wisconsin Supreme Court seat Rebecca Grassl Bradley will vacate at the end of July 2026. Court of Appeals Judges Chris Taylor and Maria S. Lazar timely filed nomination papers with over 3,000 signatures each. Out of three Court of Appeals seats up for election, the only one up for grabs is the open seat from District 2. Judge Lisa Neubauer is retiring. Anthony LoCoco and Christine Hansen face off to replace her. Incumbents Joe Donald (District 1) and Rachel A. Graham (District 4) are not facing challengers. Just five circuit court races offer voters a choice of candidates. Two of those are open seats because the current judge chose not to run. Three involve challengers to recent appointees of Gov. Tony Evers. (Links below lead to WJI’s “Evers’ judges” posts on those appointees.) Just one race, in Dane County, will require a primary. Contested races:
WJI will be sending in-depth questionnaires to candidates in all contested races, asking them about their qualifications and judicial philosophy, cases they think are important, and why they want to be judge. Look for their answers in February and March blog posts. The primary election is Tuesday, Feb. 17, 2026. The spring election is April 7, 2026.  The Wisconsin State Capitol on Sept. 19, 2025. Photograph by Margo Kirchner. By Alexandria Staubach and Margo Kirchner The Wisconsin Assembly's Committee on Corrections on Jan. 7 will hear two bills relating to hygiene products for those in state and county custody. WJI supports and urges passage of both bills. The humane treatment of incarcerated individuals is at the core of Wisconsin Justice Initiative’s mission. Everyone in the government’s custody deserves the ability to care for their bodies, ensuring dignity and promoting the Department of Correction’s administrative rules regarding hygiene. The DOC cannot reasonably require good personal hygiene without providing the basic tools. The bills being heard, AB741 and AB736, move Wisconsin closer to humane treatment of those in custody. AB741 would require the DOC and county jails to provide at least two types of each personal hygiene product on a list in the proposed legislation, including deodorant, antiperspirant, shampoo and conditioner, various soaps and lotions, toothpaste and floss, and shaving cream. The products cannot be sold at more than 125% of the sales price of the product at the highest-grossing retail chain in the state. In addition, at least two varieties of culturally sensitive personal hygiene products such as shampoo, conditioner, and natural hair oil must be provided for different hair types, at no more than 100% of the sales price of the product at the highest-grossing retail chain in the state. The bill also requires the DOC or jail to provide each person in their care with a monthly personal hygiene stipend of $25 to purchase personal hygiene products from the commissary. The bill provides the funding to DOC to cover the stipends. WJI has submitted written testimony in favor of the bill. In November 2024, WJI spoke to an individual at Green Bay Correctional Institution who shared that base pay at GBCI is a mere five cents per hour, someone earning a degree makes 12 cents an hour, and the highest paying positions pay 42 cents an hour. The canteen at a DOC institution is a monopoly. Incarcerated persons cannot price shop. AB 741 first limits the cost of hygiene products to prevent price gouging, yet the merchant still makes its profit. The $25 monthly stipend helps the individual in custody afford those products without spending a week or more of pay. The requirement that facilities provide culturally sensitive products for different physical attributes is important for the people held in DOC care and in jails, many of whom are minority individuals. AB736 would requires the DOC and jails to provide free of charge to anyone in custody with an active menstrual cycle at least three brands of tampons in a variety of absorbencies, three brands of menstrual pads in various absorbencies, and one brand of reusable menstrual cup. The facility would also have to provide a means to sanitize inmate menstrual cups as needed. In WJI's view, AB736 should be regarded as critical legislation for women in the care of the DOC and in jails. As noted above with AB741, hygiene products in prisons are exorbitantly expensive, yet menstrual products are a basic necessity for a woman’s health and dignity. Last year, before DOC renegotiated its canteen contract, a box of tampons cost $2.61 for a pack of eight. That is $0.33 for a single tampon. They came in one size. For those unfamiliar, menstruating women often need at least five tampons per day. That number may double for perimenopausal women, who often experience irregular periods with very heavy blood flow and may need more, larger-flow menstrual products. The Mayo Clinic website recommends changing tampons every four to eight hours. Incarcerated women may spend hours working to afford these products, to hopefully keep blood and discharge from leaking and staining their clothes, which they must also pay to wash. For those who have never experienced a period, imagine working several hours or days to afford toilet paper. Placing feminine hygiene products behind a paywall asks women to choose between safe and hygienic products and homemade alternatives that are unsanitary and may cause infection. If insufficient menstrual products are provided, women may even leave tampons in place for many hours, risking toxic shock syndrome. A carceral system in which women experience restricted access to menstrual products is inhumane. Restricted access to menstrual products undermines a woman’s right to dignity. In November 2025, the Prison Policy Initiative released an analysis of prison rules and sanctions that demonstrates how the carceral system punishes women for menstruating—a physiological process over which they have no control. Rules that govern movement limit access to bathrooms, showers, and laundry services. Rules that govern contraband limit access to tissue paper and its proper disposal or punish women for sharing or trading menstrual products or keeping adequate supplies on hand. PPI identified that in Wisconsin, menstruating women may be disciplined under rules regarding damage to state property (if blood stains affect state-owned items), unauthorized transfer of property or possession of contraband regarding menstrual supplies, poor personal hygiene, and refusal to work or go to school.
As stated by PPI, “(t)here is no ‘safety and security’ interest in denying people the basic sanitary products they need to manage normal bodily functions.” The United Nations Human Rights Council in 2024 underscored that countries have the “responsibility to ensure the full realization of all human rights, including those relating to menstrual hygiene, and must take steps . . . to respond fully to menstrual hygiene and other health care-related needs by all appropriate means, including in particular through the adoption of relevant legislative measures.” A carceral system in which women experience restricted access to menstrual products is inhumane. Restricted access to menstrual products undermines a woman’s right to dignity. WJI has submitted written testimony of the bill. AB741 is sponsored by 19 Democratic Assembly members and four Democratic senators, but no Republicans—yet it has received a hearing in the Republican-controlled committee. AB736 is sponsored by 27 Democratic Assembly members and just one Republican Assembly member, but that Republican, Dean Kaufert (R-Neenah), happens to be the chair of the committee. AB736 is sponsored by nine Democratic senators as well. The Committee on Corrections consists of six Republicans and three Democrats.  The U.S. Supreme Court building on March 28, 2018. Photograph by Margo Kirchner. By Margo Kirchner
In another tone-deaf year-end report, Chief Justice John Roberts ignores his own court’s present-day participation in undermining democracy. Last year, Roberts decried the erosion of adherence to court orders while ignoring how his own court’s poor ethical standards create a lack of public trust in the judiciary. This year, he says Americans can look to the Declaration of Independence and U.S. Constitution with continued confidence. Roberts writes: “As we approach the semiquincentennial of our Nation’s birth, it is worth recalling the words of President Calvin Coolidge spoken a century ago on the occasion of America’s sesquicentennial: ‘Amid all the clash of conflicting interests, amid all the welter of partisan politics, every American can turn for solace and consolation to the Declaration of Independence and the Constitution of the United States with the assurance and confidence that those two great charters of freedom and justice remain firm and unshaken.’” “True then; true now,” Roberts remarked immediately after the quotation. That the Supreme Court under his guidance recently held that Americans can be stopped for their brown skin (now referred to as “Kavanaugh stops”) and that the president of the United States has immunity from assassinating political rivals seems lost on Roberts, or intentionally forgotten. The same can be said for how his court has used its emergency docket to undermine lower judges’ authority and shift power to the executive branch, upsetting long-existing checks and balances on presidential power. In the annual report, dated Dec. 31, 2025, Roberts puts on his historian hat (his 50-year-old Harvard bachelor’s degree was in history) to discuss Thomas Paine’s Common Sense and to school readers on the Declaration of Independence. He is a professor rather than someone who takes to heart the power he and his fellow justices wield in protecting constitutional rights. Roberts notes the Declaration’s preamble statement of self-evident truths, including that "'all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.'” But he then focuses on how these are mere hopes: “The Declaration of Independence was then, and remains today, a statement of national aspirations, not a codification of enforceable legal obligations.” Roberts correctly discusses how the Constitution, not the Declaration, is the charter for the government, and that the 1787 Constitution “fell short of honoring the abstract principles set forth in the 1776 Declaration—most notably, in regard to the Declaration’s promise of liberty and equality.” He then discusses “national accomplishments” over the years—such as the Thirteenth through Fifteenth Amendments, the Nineteenth Amendment, the overruling of Plessy v. Fergusen in Brown v. Board of Education, and the Civil Rights Act of 1964—as part of an “ongoing project to make the ideals set out in the Declaration real for all Americans.” But his conclusion that the Declaration of Independence and Constitution today "'remain firm and unshaken'” is questionable. Using the first person, Roberts includes himself in saying that federal judges must continue to decide cases “according to our oath, doing equal right to the poor and to the rich, and performing all of our duties faithfully and impartially under the Constitution and laws of the United States,” as if it is a forgone conclusion that recent Supreme Court cases have been faithful to the Constitution and treated the rich and poor with equal rights. Two bright spots: First, Roberts tells readers about the 1805 impeachment trial and acquittal of Justice Samuel Chase, pointing out that disagreement with a judge’s decisions is not a valid basis for removal from office. Second, in the best part of Roberts’ message, he thanks all judges, court staff, and judicial branch personnel “for their commitment to public service and their dedication to upholding the rule of law.” Whether intentional or not, he left “justices” out of the sentiment. Lower court judges and staff, indeed, have been carrying the torch of upholding the rule of law. The appendix to the report contains a brief summary of federal court statistics. Supreme Court filings during the October 2024 through June 2025 term were down 9% from the prior term, while the number of cases with oral arguments and signed opinions remained about the same. For the fiscal year ending Sept. 30, 2025, filings in the courts of appeals were up 5%; civil case filings in the district courts were up slightly, 4%, while the number of criminal defendants charged rose 13%; and bankruptcy court filings increased 11%. Of note, federal appeals by pro se litigants (those who represent themselves) made up half of all newly filed appeals; appeals by those in prison accounted for 20% of all newly filed appeals. In the district courts, civil rights filings increased by 15% and made up 15% of all cases filed, while petitions by those in prison accounted for 14% of new cases. Criminal filings for alleged immigration offenses increased 27% and constituted 41% of all criminal case filings (measured by number of defendants). Nonbusiness (mostly consumer) bankruptcy petitions accounted for 96% of the more than 550,000 new bankruptcy case filings nationwide. |
Donate
Help WJI advocate for justice in Wisconsin
|
RSS Feed