 By Alexandria Staubach
A Brown County man recently won the right to withdraw his guilty plea after the Court of Appeals held that drug task force investigators used impermissible coercion to gain entry to his home. “This case is a classic example of law enforcement tactics that deeply undermine individual rights and ultimately undercut the state’s interest in investigating and prosecuting crimes,” said defense attorney and Wisconsin Justice Initiative President Craig Johnson. The District 3 per curiam (nonprecedential) opinion issued from the three-judge panel of Presiding Judge Lisa K. Stark and Judges Thomas M. Hruz and Gregory B. Gill. Cris Monge-Davila entered a no-contest plea to a drug-related charge after the trial judge denied his motion to suppress evidence found in a search of his apartment. Whether the search was lawful hinged on whether Monge-Davila willingly allowed officers into his home. In the trial court, the state maintained that Monge-Davila consented to officers’ search or his home. Monge-Davila argued he never gave it. Brown County Circuit Court Judge Marc C. Hammer concluded after a suppression hearing that Monge-Davila consented, as he was heard on body-camera footage saying, “I don’t have nothing, but okay.” Monge-Davila “weighed the options and wanted to minimize the possibility of additional problems,” Hammer said in his ruling. The Court of Appeals disagreed. Looking at the evidence and facts of Monge-Davila’s interaction with officers, the appeals court rejected the state’s characterization of the encounter as “undramatic.” The appellate court said it “view(ed) the interaction as being rather disagreeable and coercive.” In July 2022, members of the Brown County drug task force were executing a warrant at the apartment across the hall from Monge-Davila’s. During that operation, Monge-Davila exited his apartment to find “several armed officers wearing tactical vests, one of whom immediately began asking if he had drugs in his apartment,” wrote the court. Body-camera video presented at the trial court suppression hearing and reviewed by the Court of Appeals showed several officers looking inside Monge-Davila's apartment before he closed the door behind him. The body-cam footage showed at least two officers had Monge-Davila physically cornered at all times. They frisked him and took his phone. One officer grabbed Monge-Davila by the arm, preventing him from leaving. According to the opinion, more than seven officers were present in the hallway when an officer asked Monge-Davila, “Is there some fucking weed coming out of your apartment? I thought I smelled something.” Monge-Davila replied, “No.“ Officers suggested they could get a warrant but would not be forgiving if they had to “go the extra mile.” The appeals court found that any consent given by Monge-Davila was not voluntary. “'Consent to search must be unequivocal and specific, and it must be freely and voluntarily given,'” the court wrote, citing case law. “'Consent is not freely and voluntarily given if it is the result of a mere acquiescence to a claim of lawful authority.'” “Throughout the interaction, Monge-Davila repeatedly expressed to the officers that he did not understand what was going on and that he did not have drugs in his apartment,” wrote the court. He had also rejected officers’ prior requests to come inside his apartment. “The officers made a show of force and otherwise engaged in coercive actions,” the court said. “These circumstances would demonstrate to any reasonable person that the interaction would not end until Monge-Davila provided his consent,” the court wrote. The appeals court remanded the case with directions to the trial court to allow Monge-Davila to withdraw his plea and grant the motion to suppress. “A case like this reinforces the importance of a trial judge’s role in deterring unconstitutional conduct by police through vigorous enforcement of the exclusionary rule,” said Johnson. The decision is available here.
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By Alexandria Staubach District 4 of the Wisconsin Court of Appeals ruled recently that in a preliminary hearing in a criminal case there is no requirement that any witness have firsthand knowledge of facts of the alleged crime; instead, a mere reading of the criminal complaint may suffice to bind a defendant over for trial if the complaint is thorough and detailed enough. While the court said it would be “difficult to establish generally applicable rules," it rubber-stamped a prosecution in Rock County where the totality of evidence presented by the state was an investigator's reading aloud of the probable cause section of a criminal complaint. Preliminary hearings exist in felony cases to determine whether probable cause exists that an offense was committed on a given day and that the accused is the person who did it. If a judge finds probable cause after the hearing, the case is “bound over” for trial or plea negotiations. If not, the case is dismissed. Preliminary hearings are not mini-trials. Credibility of witnesses is not at issue, and the state is given significant benefit of the doubt. A defendant’s ability to confront witnesses or undermine the state’s case at a preliminary hearing is very limited under Wisconsin law but includes the ability to call defense witnesses. A 2011 statute expanded the field of admissible evidence at a preliminary hearing to include hearsay evidence. Hearsay statements are made outside of court, sometimes second or third hand, and offered for the truth of what is asserted. Hearsay is generally deemed unreliable in court proceedings because the person whose version of events is presented is not in court and not subject to cross examination. In a case challenging the constitutionality of admitting hearsay evidence in preliminary hearings, the Wisconsin Supreme Court in 2014 declined to impose restrictions regarding the use of hearsay at such hearings. The high court found that circuit courts are evidentiary gatekeepers obligated to consider the reliability of the prosecution's hearsay evidence on a case-by-case basis to assess whether the state makes a plausible showing of probable cause.  Blanchard This week’s District 4 Court of Appeals decision went farther by concluding that under state statutes hearsay alone can be sufficient. Presiding Judge Brian Blanchard wrote for the three-judge panel, joined by Judges JoAnne Kloppenburg and Rachel Graham.
Latres Christopher Robinson had been charged with several misdemeanors and felonies allegedly occurring on two separate dates. In the circuit court during Robinson’s preliminary hearing, a Rock County District Attorney’s Office investigator, with no independent knowledge of the facts underlying the allegations, was called as the state’s sole witness and permitted to read the probable cause section of the criminal complaint as evidence for the court. That section of the criminal complaint was detailed and purported to summarize information in police reports. The investigator identified Robinson but was asked no further questions by the prosecution. The defense asked five questions, all of which demonstrated that the investigator had no knowledge of the facts of the case other than what he had read from the complaint. At the end of the hearing, the defense moved to dismiss the case. As described by the Court of Appeals, the trial court concluded that the investigator’s recitation did “not provide sufficiently reliable evidence” because “the evidence consistently involved three levels of hearsay, sometimes four.” The judge found “the preliminary examination was defective because the prosecution presented only one witness who merely parroted the complaint.” Nevertheless, the trial court denied the motion to dismiss “on the ground that the preliminary examination defects constituted harmless error.” The Court of Appeals found that the multiple levels of hearsay were not problematic. The “assessment of reliability of hearsay in this context does not turn on a mechanical tallying of levels of hearsay,” Blanchard wrote. Instead, “the assessment of reliability at a preliminary examination turns on a consideration of the same rationales that render certain types of hearsay statements admissible,” he wrote. “This is because the legislature decided to enact an unqualified elimination of the general rule barring hearsay in this context,” and “because defendants are protected by the obligation of a court to assess whether the evidence presented at a preliminary examination, including hearsay evidence, is sufficiently reliable, as part of the court’s overall determination of whether the State has made a plausible showing of probable cause.” Blanchard said the court was not creating a general rule that hearsay statements quoting law enforcement agents are necessarily reliable, but that in Robinson's case the statements were thorough and "convey(ed), at least on their face, timely accounts by people with first-hand information, given with what could be appropriate motivations to provide accurate information to police." Robinson argued that permitting the state to proceed in this manner deprived defendants of any “realistic ability to challenge the plausibility of the State’s case.” He called allowing the prosecution to merely read the complaint at the preliminary hearing “a mere façade of justice,” especially when six law enforcement officers were named in the complaint and could have testified. Blanchard wrote that “there is no basis for such a requirement in current statutory language.” Criminal defense attorneys are concerned. "This case unfortunately takes us one more step down the road toward the complete legal irrelevance of the preliminary hearing in felony prosecutions in Wisconsin," defense attorney Craig Johnson told Wisconsin Justice Initiative after seeing the decision. "Preliminary hearings have historically served an important gatekeeping function by stopping weak cases from proceeding and sparing those who were falsely accused from further burdens. They were an important early test of probable cause and the strengths of the state's case," he said. "Now they are more like empty shells that provide almost no due process protections." You can read the full opinion here. Note that Johnson is WJI's board president. Candidates Aaron Marcoux and Angeline Winton-Roe vie for the seat on the Washburn County Circuit Court currently held by Winton-Roe. The election is April 7. Marcoux is the Washburn County district attorney, having been appointed by Gov. Tony Evers in 2019 and elected to four-year terms in 2020 and 2024. Before then he was an assistant district attorney, and before that an assistant state public defender. He graduated from the University of Wyoming College of Law in 2010. A copy of his resume/CV is here. Winton-Roe is the incumbent, having been appointed to the seat by Gov. Tony Evers in 2019 and elected to a six-year term in 2020. WJI's "Evers' judges" post about her is here. She previously was the elected Washburn County District Attorney; before that she worked in private practice and then as an assistant district attorney. She graduated from the William Mitchell College of Law (St. Paul, Minnesota) in 2008. A copy of her resume/CV is here. WJI asked each of the candidates to answer a series of questions. The questions are patterned after some of those on the job application the governor uses when he is considering judicial appointments. Answers are printed as submitted, without editing or insertion of “(sic)” for errors. The candidates are presented alphabetically by last name.
In Washington County, incumbent Branch 2 Judge Gordon Leech is challenged by Grant Scaife. The election is April 7. Leech was appointed to Washington County Circuit Court by Gov. Tony Evers in July 2025 and took his seat in August. He previously was a prosecutor in the Fond du Lac County District Attorney's Office. Before that he was in private practice and served as an attorney in the U.S. Marine Corps. He graduated from University of Pittsburgh School of Law in 1990. His resume is here. WJI's "Evers' judges" post about him is here. Scaife is a prosecutor in the Washington County District Attorney's Office. According to his campaign website, he previously was an assistant corporation counsel (meaning that he worked for and represented a county). He graduated from University of Wisconsin Law School in 2016. WJI asked each of the candidates to answer a series of questions. The questions are patterned after some of those on the application the governor uses when he is considering judicial appointments. Leech responded to WJI's questionnaire. Scaife did not. Answers are printed as submitted, without editing or insertion of “(sic)” for errors.  Gordon Leech
Why do you want to continue as a judge? When Judge Muehlbauer announced his retirement, I felt ready for this role based on my 35 years of legal experience and my life experiences. I spoke to each of the sitting and retired judges in the county, and they all supported my decision to apply, which confirmed that I was qualified and ready to assume the responsibilities of this position. Having now held this office for the majority of the past year, I know I enjoy the position and believe I am making fair and impartial decisions in the important matters brought to me in all the various case types we handle like criminal, civil claims, divorces, child support disputes, mental health commitments, probate and other matters. I have been out in the community talking to people about my judicial philosophy, which is committed to keeping politics out of the courtroom, and everyone agrees that is important. I don’t see the same commitment from others. So I believe I have something unique and critical to offer the citizens of the county: judicial independence from political parties and special interests that would like to influence the courts. Describe which U.S. Supreme Court or Wisconsin Supreme Court opinion in the past 25 years you believe had a significant positive or negative impact on the people of Wisconsin and explain why. In 2023, the Supreme Court of Wisconsin decided State v. Johnson. This case has a significant impact on Wisconsin citizens because it appears to add a third plate to the scales of justice for the victims of crime. Prior to the Johnson decision, it was common practice for criminal defendants to have access to a victim’s healthcare records because of a 1993 decision of the court in State v. Shiffra. This practice discouraged prosecution of crimes and inflicted emotional distress on victims. The Johnson decision overruled Shiffra, positively protecting victims from incursions into their privately held healthcare records which helps remove some of the pressures on victims that had discouraged them in the past to prosecute their claims. At the same time, the decision negatively affects the rights of the accused to investigate their accusers in ways traditionally done to examine the truthfulness of the accusations. The Johnson decision is recognized as one of the first cases decided by the Supreme Court of Wisconsin addressing whether victims had a legal status, known as “standing,” to enforce rights granted them under the constitutional amendment and enabling statutes known as Marcy’s Law. The court appeared to recognize that victims may have standing to exert rights under Marcy’s Law, although the court decided the case on other grounds. The Johnson case is significant because the court overturned almost 30 years of precedent, showing that the court was willing to examine whether the earlier opinion was correctly decided, how workable the decision was when put into practice, and the change in degree of respect our society now gives to victims as demonstrated by the enactment of Marcy’s Law. The opinion essentially says that the Supreme Court believes that being old law alone isn’t enough to justify it and signals that victims may have standing to personally enforce the rights granted to them in Marcy’s Law. Describe your judicial philosophy. I follow the rule of law as given by the will of the people through our elected representatives and as interpreted by the higher courts. I recognize it is my duty to refrain from creating law on the bench. I treat parties fairly, without bias or favoritism, and I make decisions based on the law and the facts before me. Describe one or two of the most significant cases in which you were involved as either an attorney or a judicial officer. As a prosecutor, I handled all levels of felony and misdemeanor cases. One of the last cases I handled was the trial of Timonthy Brown for 1st Degree Murder which I tried with DA Eric Toney to a successful verdict. There were many others too, in particular cases which had victims, that I was honored to be trusted with prosecuting. But one of the most significant cases I handled was not a criminal case, but case involving the termination of parental rights of a parent that was absent, or abandoned, a child but was refusing to let the foster parents adopt the child. The child spent years living in the loving home of the foster parents. The father was absent in his life because he either chose to be absent or due to periods of incarceration. The child experienced psychological trauma when the father had what little contact he exercised. Just before the matter was scheduled to go to trial, the attorney in the DA’s office found he had a conflict and could not handle the trial. I volunteered, though I had no prior experience prosecuting this type of matter and was short on time. But it was a very important matter for the foster parents and the child. The trial was a week long and had many contested issues both factually and legally. It was jury trial. Along with my co-counsel in the DA’s office, we secured a verdict and subsequent judgment in favor of the foster parents, clearing the way to adoption. However, the father appealed the decision all the way to the supreme court, and I continued to handle the matter through appeal. I was able to prevail in each level of appeal, and the foster parents were finally able to adopt the child. I am proud to say that I helped this child get into a loving family that provided for him emotionally, spiritually, and financially. He finally found a home where he felt safe, secure and loved by his foster parents, and his greatest wish was for them to adopt him so that he did not need to fear losing them and could finally call them, forever, his parents. Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings. In my more than 35 years of legal experience, I have extensive and diverse experience handling criminal and civil litigation in trial courts, appellate courts, and administrative proceedings. I have handles matters in multiple state courts, federal courts, and military courts. I have also handled matters in federal, state and local administrative courts. I started my career in the U.S. Marine Corps as a Judge Advocate. I was a military prosecutor, and our cases were tried in military courts. I also counseled and defended the Marine Corps in personnel matters that included discrimination and wrongful termination claims held in administrative forums like the Equal Employment Opportunity Commission and Merit Systems Protection Board. After my active duty in the Marine Corps, I entered the civil practice of law, counseling and representing employers and employees in various employment matters in state and federal courts. I also handled commercial litigation between businesses. I later represented people in consumer protection matters, which were litigated in state and federal courts, where I represented victims of financial schemes and prosecuted those that took advantage of them. I returned to criminal law more recently where initially I represented criminal defendants in state courts, which included taking on indigent clients on behalf of the State Public Defenders Office. Just before taking the bench in my current role, I was hired by District Attorney Eric Tony in Fond du Lac as an Assistant District Attorney prosecuting criminal offenses on behalf of the citizens of Wisconsin. Describe an instance when you were challenged and had to exhibit courage in the face of adversity or opposition and how you handled that situation. Most recently, applying for the appointment to the bench and running to retain my position is an instance where I am challenged and face opposition. Although this position is nonpartisan, partisan politics and politicians are attempting to influence the election with political overtones. I believe that partisan politics have no place in the election of a judge at any level and should not influence a judge’s decisions on the bench where the rule of law is to be applied. When applying for this judicial position, I knew that I would likely face opposition just because I was appointed by a governor that is not popular with a significant population in this county. Knowing this would be a significant challenge, I chose to apply anyway because I wanted this position, felt I was well qualified and ready for it, and I didn’t want someone else to fill the position or worse, that it would be vacant for a year. To overcome the opposition based on my appointment, I am talking to everyone of every political persuasion. I am consistently communicating my qualifications and judicial philosophy with the same message regardless of who I talk to. I emphasize my professional and life experiences and my commitment to keep politics out of the courtroom. I am not a member of a political party, I don’t campaign with a political party, and I don’t seek the endorsements of political parties or special interest groups. Do you support requiring a justice or judge to recuse him/herself from cases involving donors of money or other resources to the judge's election? If not, why not? If so, why, and what contribution limits would you set? Whether judges should be required to recuse him or herself from cases involving donors of money or other resources to the judge’s election is a policy decision that is best left to will of the people through elected representatives. In my position as judge of the circuit court, I don’t take positions on political policies. I do think that judges must be mindful of their own biases based on any type of contribution received as a candidate either in the form of money or intangible compensation like supporting endorsements which can be as beneficial as monetary donations. Judges and judicial candidates should not accept any contribution or support that will either compromise his or her ability to be fair and impartial or give the appearance that he or she cannot be fair or impartial. Significant financial donations or endorsements from political parties or special interest groups may be particularly troublesome to judicial integrity. It is a matter of maintaining the public’s confidence in our decisions. Everyone has the right to expect that their judge will apply the law without favor to anyone. Our rules of judicial conduct already prohibit judges, among other things, from being a member of a political party, from campaigning with a political party, and require recusal where a judge has a conflict of interest or circumstances are such that it appears there is a conflict of interest. It is a rule that applies to me as a judge, and as such I fully honor it. If defined limits are placed on campaign contributions or other restrictions, I will also fully honor them as well. What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them? [Define “true justice” as you see fit.] True justice for me as a trial court judge means following the law as written and interpreted by the higher courts and exercising any discretion within those bounds to find a fair and just result given the law and circumstances. It would not be true justice for me to impose as law my own belief of what the law ought to be rather than what it is. Otherwise, people would have no confidence in the courts because each court would have its own version of justice. We can’t keep the integrity of the courts in that manner. If a law is undesireable, the people need to know about it and need to decide to change or eliminate it. The obstacles to achieving true justice is our own limitations in recognizing our own biases and our own limitations on understanding. Political pressures on courts to decide cases consistent with a political agenda are also significant obstacles to any notion of true justice. To overcome these obstacles, we need judges with professional and life experience to guide them and judges committed to keeping politics and other special interests out of the decisions made in the courtroom and out of their campaigns. Provide any other information you feel would be helpful to potential voters deciding for whom to vote. Life experiences are another important factor for voters to consider when electing a judge. When you need advice about an important decision, do you turn to someone who has no or little experience? No, we don’t. We turn to people who have relatable experiences to help us understand our situation and the pros and cons of the possible choices and outcomes. We generally correlate time and experience with wisdom. Having presided in many cases now, including civil, criminal, family and others, I can say that I value every gray hair I earned on my head to find what I believe is the right decision based on the law and within the boundaries of discretion we have as judges when making our decisions. We must strive for what is right under the law and what is right morally within the Judeo-Christian values in our community. I have represented and stood with victims of crime, injured workers, people scammed for someone else’s profit, and for the State as well as defendants in criminal cases. I have lived a full life already having served our country in the Marines during the Gulf War and its aftermath, was married and divorced, happily remarried, raised 3 successful children, am helping my wife raise 3 teenagers, I’ve been a public servant, I’ve worked for businesses, and I’ve owned my own business. I lived in more than four states before moving to Washington County in 2004 to raise my 3 children here. I have remained in Wisconsin and in Washington County most of the years since. These are just some of the experiences I bring with me to the courtroom. These life experiences along with my decades of legal experience give me the confidence to make fair, unbiased and just decisions for Washington County. Book review: "Shielded" is an "engaging and enraging" examination of police immunity from suit3/13/2026  Schuldt If you're reading this blog, you are very likely concerned about justice in Wisconsin, the country, and across the world. But you're probably also pretty busy. How do you choose which books about the justice system to read during your limited free time? In a new series of posts, Wisconsin Justice Initiative founder and former executive director Gretchen Schuldt will help you out. An avid reader, she returns to the blog with book reviews so you can decide what's of interest to you and worth your time. Shielded: How the Police Became Untouchable, by Joanna Schwartz. Viking, 291 pages, 2023. The U.S. Supreme Court first made it possible for individuals to successfully sue over constitutional rights violations. It’s been walking that decision back ever since. The precedent was set in 1971’s Bivens v. Six Unknown Named Agents. The court, in a 6-3 decision, said individuals could sue federal agents for damages related to Fourth Amendment violations. These days, thanks to subsequent court decisions, Bivens is so diminished that justice is unattainable for most people. Schwartz’s book is an engaging and enraging examination of the court’s jurisprudence and other factors responsible for this sorry state of affairs. Take, for example, the court’s decisions creating and expanding “qualified immunity,” a pulled-it-out-of-the-air doctrine that gives legal immunity to government officials, including law enforcement, as long as even the most egregious constitutional violations do not violate “clearly established law.” This new standard applies, the justices said in 1982’s Harlow v Fitzgerald, even if the officials’ actions were not taken in good faith. Schwartz provides a number of examples of the ridiculous ways courts gradually stretched the qualified immunity doctrine to give cover to action a five-year-old child would know is wrong. In one of them, Baxter v. Bracey, an appeals court held that officers were entitled to qualified immunity because there wasn’t an earlier case clearly stating that it was unconstitutional for an officer to set a police dog on a burglary suspect who surrendered and was sitting with his hands up. A prior court had said it was unconstitutional for an officer to release a police dog on a suspect who had surrendered and was lying down, Schwartz writes, but the appeals court said that case did not clearly show that turning a police dog loose on a suspect sitting, hands up, was unconstitutional. The Supreme Court in 2020 declined to hear an appeal of the Bracey decision. Then there’s the outcome of the 1978 Supreme Court decision in Monell v. Department of Social Services holding that municipalities can be sued for civil rights violations only if the conduct was due to the government’s policies, procedures, or customs. The court later said the need for better training, supervision, hiring practices or discipline had to be so obvious that a government’s failure to correct the deficiencies amounted to “deliberate indifference” to citizens’ rights. That led to the court ruling in 2011 in Connick v. Thompson that a prosecutor’s office could not be held liable when a district attorney withheld from a defendant blood work information that could have cleared the man. That led to his wrongful convictions for robbery and murder; he spent 14 years on death row before the information was found and he was exonerated. It turned out that hiding the report wasn’t a one-off. The prosecutor had a history of not turning over important evidence to defendants or their lawyers. But, Justice Clarence Thomas wrote for the 5-4 majority, none of the previous violations “involved failure to disclose blood evidence, a crime lab report, or physical or scientific evidence of any kind.” Schwartz’s takedowns of relevant justice-denying court decisions are convincing, but her analysis goes well beyond that. She tackles, among other things, the difficulty of finding lawyers willing to accept civil rights cases, unrepresentative federal juries, police departments’ failure to discipline rogue and brutal officers, municipal and law enforcement failures to learn from the suits filed against them, the questionable statistics used to justify police immunity, and the political pressure on local judges to not rule in ways that antagonize local political powers. Schwartz’s writing is compelling and accessible. Shielded is for anyone interested in justice and the David v. Goliath issues so often involved in getting it.
By Alexandria Staubach As Wisconsin prepares for a Supreme Court election between two appellate judges, examining judicial track records is helpful for understanding a candidate's potential impact on the high-court bench. Past rulings can provide insight on how the candidates approach the cases before them, reason and interpret law to get to their decisions, and explain those decisions to lower courts and the public. Court of Appeals Judges Maria Lazar and Chris Taylor vie for an open seat on the Supreme Court. The election is April 7. Voters may be familiar with some of the high-profile roles each judge held before their appellate court positions. Taylor served as the public policy director for Planned Parenthood for a decade, held a seat in the Wisconsin Legislature, then became a Dane County Circuit Court judge. Lazar worked in private practice for business clients, had a high-profile position in then-Gov. Scott Walker’s Department of Justice, and then was a Waukesha County Circuit Court judge. Voters are likely less familiar with the candidates’ tenures on the Court of the Appeals. The work of the Court of the Appeals is inherently blander than the candidates’ lawyer or trial judge work, but it is likely much more representative of what they will encounter on the high court. With 16 judges employed across four districts, the Court of Appeals resolves appeals covering every area of the law. Lazar sits in District 2 (comprising the counties surrounding Milwaukee County) and Taylor sits in District 4 (comprising Dane County and the southwest portion of the state). On average, a District 2 judge would resolve 185 cases in a year and a District 4 judge 132. Unlike the Wisconsin Supreme Court, the appeals court rarely hears oral arguments, however. Sparked by an audience question at a recent presentation by WJI about the election, WJI has examined a variety of appellate opinions authored by the two candidates and is providing a selection of them for voter information. District 2 (Lazar) is the busier of the two jurisdictions and sometimes lands high-profile cases, such as those involving the Legislature or Wisconsin Department of Justice. District 4 (Taylor) is the next busiest appellate court and includes most appeals from Dane County Circuit Court. For each judge we’ve included three opinions on which she was the lead author: one criminal case, one family law case, and one civil case. All but one are published cases. We could not find a recent published opinion by Lazar directly related to criminal law so have provided an unpublished opinion she authored. Generally, published opinions are considered precedent and can be cited as controlling law for later cases, while unpublished authored opinions may be cited only for persuasive purposes. Later this week, the Wisconsin Supreme Court will hear oral argument over another opinion Lazar authored regarding the use of state settlement funds. Below we quote short excerpts from each case and link to the full opinions for those who want to review more of the candidates’ reasoning and writing. We have removed citations for ease of reading. Italics are WJI’s additions. The candidates are presented alphabetically by last name.  Court of Appeals opinions by Judge Maria Lazar Wildwood Estate LLC v. Village of Summit — Civil An individual’s “right to maintain control over his [or her] home, and to be free from governmental interference, is a private interest of historic and continuing importance.” The “valuable rights” associated with this interest include “the right of sale, the right of occupancy, the right to unrestricted use and enjoyment, and the right to receive rents.” It is for this reason that municipalities may not pass zoning ordinances under the “guise of the police power” without following the procedural steps designed to protect citizens’ rights. Because the Ordinance changes the allowed uses of property and includes multiple indicia of traditional zoning ordinances, the circuit court correctly concluded that it was a zoning ordinance. And, as the circuit court noted, the Village’s passage of the Ordinance sidestepped the proper process to enact a zoning ordinance. We conclude that the Village did violate Wildwood’s procedural due process rights. Danielson v. Danielson – Family law The ultimate question is whether social security benefits expected for one spouse fall within the factors a trial court should consider in achieving an equitable marital property division. Clearly, the court is to consider the “contribution of each party to the marriage” and the salaries the spouses earned. The trial court should also look to the “economic circumstances of each party, including pension benefits,” even if it determines not to divide them between the spouses. Moreover, we conclude that social security benefits are “substantial assets not subject to division by the court” and count as “other factors [that] the court may in each individual case determine to be relevant.” Our supreme court has “repeatedly stated that ‘the aim of all statutory construction is to discern the intent of the legislature,’ and that a ‘cardinal rule in interpreting statutes’ is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act.” State v. Baker – Criminal The State charged (Ashley Rae) Baker with one count of carrying a concealed weapon without a license. Baker filed a motion to suppress the evidence, asserting that (Officer Michael) Moore did not have a legal basis to search her purse without a warrant. At the hearing on Baker’s motion, Moore was the sole witness. He testified to the facts above and stated that his search of the purse was based on the “totality of everything,” including his observation of Baker coming out of a house known for drug activity and the marijuana found in the vehicle. He expressed a concern for “the potential for any concealment of other items,” saying that “any time that someone gives us a breadcrumb” it could be “to deter finding the loaf of bread.” He further noted that he believed Baker may have had paraphernalia or drugs on her person or with her, because (in addition to the shake found throughout the vehicle) the marijuana found in the center console area “would have … been essentially under her left elbow” while she was in the front passenger seat. …. …. Baker was seen leaving a house known for active drug activity after a ten-minute visit and was riding in a car that had marijuana and drug paraphernalia throughout, including approximately one half gram of marijuana and a marijuana grinder between her and the driver—“essentially under her left elbow.” We agree with the circuit court’s assessment that this evidence is sufficient to establish a “nexus between the defendant and the drugs in the car.” This is not a case of guilt by association—which could be said if, for example, the only marijuana found prior to the search of Baker’s purse had been the marijuana blunt in her companion’s pocket—but rather a case where Moore’s belief that Baker was committing the crime of possessing marijuana was reasonable under the totality of the circumstances.  Court of Appeals opinions by Judge Chris Taylor
Hubbard v. Neuman – Civil We reject Dr. (Carol) Neuman’s argument that it “would lead to absurd and unworkable results” if a physician who does not perform the procedure at issue has a duty to inform the patient about the availability, benefits, and risks of reasonable alternate treatment options. According to Dr. Neuman, this would result in discouraging “the intra-disciplinary communication and cooperation that is critically important to effective patient care.” For instance, Dr. Neuman asserts that, if this duty is not limited to the physician actually performing the surgery or procedure, then all family practitioners or primary care providers who ever refer a patient to a specialist could be liable if the referring physician fails to disclose the risks associated with the care or treatment provided by the specialist. As explained above, the allegations in the complaint, and the reasonable inferences, assert that Dr. Neuman was (Melissa) Hubbard’s treating OB/GYN, had expertise as an OB/GYN in the treatment options for pelvic endometriosis, diagnosed Hubbard’s pelvic endometriosis, was actively involved in the planning and preparations for the removal of Hubbard’s ovaries during the February 2018 surgery, initially planned to perform the removal of Hubbard’s fallopian tubes, ovaries, and uterus during that surgery, and recommended that Dr. McGauley remove Hubbard’s ovaries. Recognizing that Hubbard has alleged sufficient facts to support a claim that Dr. Neuman had a duty to inform Hubbard in this situation protects Hubbard’s ability “to intelligently exercise [her] right to consent or to refuse the treatment or procedure proposed.” J.J.D. v. M.W. – Family law To protect the rights of a parent in a TPR (termination of parental rights) case, if the parent seeks to admit to grounds supporting the termination, “[t]he circuit court must engage the parent in a colloquy to ensure that the plea is knowing, voluntary, and intelligent.” “This colloquy is governed by the requirements of WIS. STAT. § 48.422(7) and notions of due process.” …. Our supreme court has identified additional colloquy requirements to protect a person’s parental rights. A circuit court must ensure that the parent is “informed of the statutory standard the court will apply at the second stage” of the TPR proceedings; that is, that the child’s best interest will govern. The court must also ensure that the parent understands potential outcomes of the second stage, though it is not required to “‘inform parents in detail of all potential outcomes.’” Rather, the court must determine that the parent understands that a termination of parental rights or dismissal of the TPR petition are two possibilities. State v. Anderson – Criminal The caution with which we are instructed to approach juvenile confessions is with good reason. As the United States Supreme Court has recognized, “children ‘generally are less mature and responsible than adults,’” “lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” and “are more vulnerable or susceptible to … outside pressures.” As our supreme court has recognized, children are “more likely to want to please and believe police officers because they are authority figures” and “are incapable of fully realizing the consequences of their decisions.” Accordingly, the same police pressure that may not be coercive for an adult suspect may be coercive for a juvenile suspect. Candidates Huma Ahsan and Ben Jones vie for the Branch 1 seat on the Dane County Circuit Court. The election is April 7. Ahsan is an immigration law attorney and owner of Madison Immigration Law. She graduated from Stetson College of Law (Florida) in 1999. A copy of her resume/CV is here. Jones is the incumbent, having been appointed to the seat by Gov. Tony Evers in 2025. WJI's "Evers' judges" post about him is here. He previously was a staff attorney, then chief legal counsel at the Wisconsin Department of Public Instruction. Jones graduated from the University of Wisconsin Law School in 2012. A copy of his resume/CV is here. WJI asked each of the candidates to answer a series of questions. The questions are patterned after some of those on the job application the governor uses when he is considering judicial appointments. Answers are printed as submitted, without editing or insertion of “(sic)” for errors. The candidates are presented alphabetically by last name.
 The Wisconsin State Capitol. Photograph by Margo Kirchner. By Alexandria Staubach
We continue our summary of justice-related bills and those with significant potential to impact the rights of marginalized populations in Wisconsin. Consistent with part 1 of this post, these are bills passed in the final weeks of the last substantive legislative of this term. Limited legislation will be produced until January 2027. At the end you’ll find bills that have passed in the Assembly and could still be taken up by the Senate when it convenes for a “limited-business” session in March. Six new laws create crimes or increase penalties for criminal conduct despite a failure (thus far) to pass legislation that could help ease the burden on an already stretched criminal justice system, even as Wisconsin creeps closer to record-breaking incarceration and overcrowding in its prisons. As of Feb. 20, the Wisconsin DOC in-custody population was 23,461, while prison population data shows that the system is designed to house 17,822 individuals. Nearly every adult institution continues to operate above capacity. Of specific note, Waupun Correctional Institution, a facility that has been the subject of federal investigation and several indictments over employee conduct and prisoner deaths since June 2023, is operating above capacity. It was previously the only maximum security institution operating below capacity but crossed that threshold in late January 2026, adding 46 new individuals to its population in the last 24 days. The summaries below come directly from descriptions of the bills written by the Legislative Reference Bureaus. Italics are additions by Wisconsin Justice Initiative, except as to SB 431. New crimes and increased penalties AB 677 Creating a crime of grooming a child for sexual activity Under current law, child enticement is a Class D felony. Child enticement is the act of causing or attempting to cause a child to go into any vehicle, building, room, or secluded place for various sexual purposes, including sexual contact or sexual intercourse; prostitution; to expose a person’s genitals, pubic area, or intimate parts to the child or to cause the child to expose his or her genitals, pubic area, or intimate parts; or to record the child engaging in sexually explicit conduct. This bill creates a crime of grooming a child for sexual activity. Under this bill, no person may engage in a course of conduct, pattern of behavior, or series of acts with the intention to condition, seduce, solicit, lure, or entice a child for the purpose of engaging in sexual intercourse or sexual contact or for the purpose of producing, distributing, or possessing depictions of the child engaged in sexually explicit conduct. The bill provides examples of a course of conduct, pattern of behavior, or series of acts that could constitute grooming, including verbal comments, suggestions, or conversations of a sexual nature directed toward a child; inappropriate or sexualized physical contact; written, electronic, or digital communications to seduce, solicit, lure, or entice a child; and isolating a child. A person who is convicted of the crime of grooming a child for sexual activity is guilty of a Class G felony, except that, if the person is in a position of trust or authority over the child, the classification increases to a Class F felony; if the child has a disability known to the person, the classification increases to a Class E felony; and if the violation involves two or more children, the classification increases to a Class D felony. Additionally, the person is subject to consequences for committing a child sex offense such as the requirement to register with the Department of Corrections as a sex offender. The crime does not apply to a person who is 18 or under if it involves a child who is not more than four years younger than the person unless the violation involves force, coercion, or abuse of a position of trust or authority over the child. SB 431 Expansion of permitted discrimination based on arrest record under the Fair Employment Act This bill changes the circumstances under which an employer or licensing agency may consider pending charges against an individual under the fair employment law when making employment or licensing determinations. Under the current fair employment law, it is generally an unlawful act of employment discrimination for an employer or a licensing agency to refuse to hire, employ, admit, or license any individual; to bar or terminate an individual from employment; or to discriminate against any individual in promotion, in compensation, or in terms, conditions, or privileges of employment or labor organization membership because of the individual’s arrest record. “Arrest record” is generally defined as information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted, or tried for any felony, misdemeanor, or other offense. In Oconomowoc Area School District v. Cota, 2025 WI 11, the Wisconsin Supreme Court ruled that the phrase “other offense” encompasses noncriminal offenses and that, therefore, the prohibition against arrest record discrimination extends to pending charges other than criminal charges. However, under certain exceptions to the foregoing prohibition, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, an individual because the individual is subject to a pending charge if the circumstances of the charge substantially relate to the circumstances of the particular job or the licensed activity. The bill eliminates the requirement, in the exceptions to the prohibition on arrest record discrimination, that the pending charge be a criminal charge. SB 610 Increasing the maximum penalty for certain controlled substance offenses if the violation occurs near a homeless shelter Current law prohibits a person from delivering or distributing, or possessing with the intent to deliver or distribute, cocaine, cocaine base, fentanyl, a fentanyl analog, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone, or any form of tetrahydrocannabinols. The penalty for violating the prohibition varies by substance and amount, but current law increases the maximum term of imprisonment for violating the prohibition by five years if the violation takes place on or in, or within 1,000 feet of, a park, a jail, a multiunit public housing project, a public swimming pool, a youth or community center, a school or a school bus, or the premises of a treatment facility that provides alcohol and other drug abuse treatment. This bill adds that the maximum term of imprisonment may be increased by five years if the violation takes place on the premises of a homeless shelter or within 1,000 feet of the premises of a homeless shelter. Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report. AB 109 Increased penalties for crimes against adults at risk This bill allows a term of imprisonment that is imposed for a criminal conviction to be increased in length if the crime victim was an adult at risk. Under the bill, a maximum term of imprisonment of one year or less may be increased to two years; a maximum term of imprisonment of one to 10 years may be increased by up to four years; and a maximum term of imprisonment of more than 10 years may be increased by up to six years. Under the bill, the term of imprisonment may be lengthened irrespective of whether the defendant knew that the crime victim was an adult at risk. The bill also increases the severity of crimes for sexual assault of an at-risk adult, permits asset seizure and freezing of a defendant charged with financial exploitation of an “elder person,” and matches the set of penalties that apply to physical abuse of an elder person to those for an adult at risk. AB 89 Retail theft aggregation and providing a penalty Under current law, the penalty for the crime of property theft varies by the value of the property taken. The penalty ranges from a Class A misdemeanor if the value of the property is not more than $2,500 to a Class F felony if the value of the property exceeds $100,000. Similarly, the penalty for the crime of retail theft varies by the value of the merchandise or service that is taken. The penalty ranges from a Class A misdemeanor if the value is not more than $500 to a Class G felony if the value exceeds $10,000. This bill specifies that, if, in a six-month period, a defendant commits more than one violation of property theft or more than one violation of retail theft, the value of items taken at each violation may be aggregated and the crimes may be prosecuted as one property theft crime or one retail theft crime. The penalty for the crime would be determined by the aggregated value of the items taken. SB 533 Intentionally disarming a correctional officer Under current law, a person is guilty of a Class H felony if they intentionally disarm a peace officer by taking from the officer a dangerous weapon or an item such as a tear gas bomb, hand grenade, projectile, shell, or pepper spray. This bill expands the crime so that it applies to intentionally disarming a correctional officer or juvenile correctional officer as well as a peace officer and includes items that the correctional officer requires for their duties, such as keys or radios. Voting and other issues AB 385 Campaign contributions by foreign nationals For campaign finance purposes, this bill prohibits a political committee, conduit, or political party from accepting any contribution made with a credit card via the Internet unless the contributor provides the credit card verification value or code and the billing address associated with the card is located in the United States. However, if the contribution is made by a U.S. citizen living outside of the United States, and the credit card billing address is not a location in the United States, the individual must provide the mailing address of the location in the United States that the individual uses for voter registration purposes. AB 223 Requirements for persons circulating nomination papers Under current law, any person may circulate nomination papers for a candidate if the person is eligible to vote in Wisconsin or is a U.S. citizen aged 18 or older who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state. A person is eligible to vote in Wisconsin if he or she is a U.S. citizen aged 18 or older who has resided in an election district in this state for at least 28 consecutive days. Under this bill, a person must be eligible to vote in Wisconsin in order to circulate nomination papers for a candidate. However, under the bill, nomination papers and petitions for the candidacy of candidates for the offices of president and vice president of the United States may continue to be circulated by any person eligible to vote in Wisconsin or by any U.S. citizen aged 18 or older who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state. Similarly, under current law, any person who is eligible to vote in Wisconsin or who is a U.S. citizen aged 18 or older and who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state may circulate a recall petition. Under the bill, a person must be eligible to vote in Wisconsin in order to circulate a recall petition and have the signatures on the petition be counted toward a recall. SB 652 Eliminating race-based higher education program requirements This bill changes certain race-based programs or requirements in higher education. In general, the bill modifies these programs and requirements so they apply to disadvantaged students rather than minority students. Under the bill, the term “disadvantaged,” with respect to a student, means having experienced any unfavorable economic, familial, geographic, physical, or other personal hardship. The term may be further defined by rule but may not include the consideration of 1) a student’s race, ethnicity, national origin, gender, sexual orientation, or religion or 2) a student’s identity as a member of a group without regard to individual qualities. Impacted programs include: Minnority Teacher Loan Program, Minority Undergraduate Grants, Minority Student Enrollment at Medical College of Wisconsin and Marquette University School of Dentistry, Minority and Disadvantaged Student Programs, Lawton Grants, Minority Student and Participation and Retention Plan, Minority Student Participation and Retention Grants, Incentive Grants. Bills passed by the Assembly that the Senate could take up at their limited-business session AB 514 Criminal justice system expansion Under current law, Kenosha County has eight circuit court branches, Brown County has eight circuit court branches, and Menominee and Shawano Counties have two circuit court branches. This bill adds four circuit court branches: one in Brown County beginning August 1, 2027, one in Menominee and Shawano Counties beginning August 1, 2027, one in Brown County beginning August 1, 2028, and one in Kenosha County beginning August 1, 2028. This bill provides position authority for many court and criminal justice system employees in the 2027-29 biennium…. The bill requires the director of state courts, the district attorneys, and the public defender board to include a request for funding for the positions authorized under this bill in their 2027-29 biennial budget requests. This bill also requires the director of state courts, the public defender board, and the district attorneys to submit to the legislature by December 31, 2032 a report that analyzes the workload and assesses the personnel needs for their operations. You can read more about this bill here. AB 640 Supreme Court of Wisconsin maximum age Article VII, section 24 (2), of the Wisconsin Constitution authorizes the legislature to set an age, of not less than 70 years, beyond which a supreme court justice or judge of any court of record may not serve, unless the person is appointed on a temporary basis as a reserve judge. Under this bill, no person may be elected or appointed, other than as a temporary reserve judge, to serve as a supreme court justice or judge of a court of record if the date of election or appointment occurs on or after the date the person attains the age of 75 years. AB 856 Modifications to OWI provisions based on Supreme Court of Wisconsin rulings This bill modifies numerous provisions relating to operating a motor vehicle while intoxicated (OWI) to reflect holdings of the supreme courts of the United States and Wisconsin. Under current law, no person may operate a motor vehicle while under the influence of an intoxicant, with a detectable amount of a restricted controlled substance in their blood, or with a prohibited alcohol concentration. Under current law, any person who operates a motor vehicle on public highways in this state is deemed to have given consent to one or more tests of their breath, blood, or urine, for the purpose of determining the presence or quantity in their blood or breath, of alcohol, controlled substances, controlled substance analogs, or other drugs (commonly known as “implied consent”). Under current law, if a person is involved in a motor vehicle accident that causes substantial bodily harm, great bodily harm, or death and a law enforcement officer detects the presence of alcohol, controlled substances, controlled substance analogs, or other drugs, the person may be requested to provide one or more samples of their blood, breath, or urine for testing. If the person refuses, their operating privilege must be revoked. In State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, the Wisconsin Supreme Court held that probable cause of an OWI violation is a prerequisite to revocation of an operating license for a refusal. The bill modifies provisions consistent with this holding. Under current law, a person who would be requested to provide samples for testing but who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent and one or more samples may be collected (commonly known as the “incapacitated driver provision”). In State v. Prado, 2021 WI 64, 397 Wis. 2d 719, 960 N.W.2d 869, the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional. The bill repeals provisions consistent with this holding. Under current law, there are separate but analogous implied consent and incapacitated driver provisions applicable to all-terrain vehicles (ATVs), utility terrain vehicles (UTVs), boats, and snowmobiles. Pursuant to Prado, these provisions are repealed. In addition, if a person refuses to submit to a test of their breath, blood, or urine related to their operation of an ATV, UTV, boat, or snowmobile, they are subject to a criminal penalty. In Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, the U.S. Supreme Court held that it is unconstitutional to criminalize a refusal to submit to a blood test incident to arrest for an OWI violation. The bill modifies relevant provisions to reflect this holding. The bill also modifies the text of the “informing the accused” form, which a law enforcement officer must read to a person from whom a test sample is requested, in part to reflect changes made by the bill. Bills that have likely failed SB 147 Interpreter action by telephonic or live audio visual means Under current law, in any civil or criminal proceeding other than a trial, a court may permit an interpreter to act by telephone or live audiovisual means. This bill removes the exclusion for trials, so that an interpreter may act by telephone or live audiovisual means in any civil or criminal proceeding. SB 194 Attorney fees and costs when an authority voluntarily or unilaterally releases a contested record after an action has been filed in court Currently, if a person requests access to a public record and the agency or officer in state or local government having custody of the record, known as an “authority” under the public records law, withholds or delays granting access to the record or a part of the record, the requester may bring a mandamus action asking a court to order release of the record or part of the record. Current law requires the court to award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any such action. The Wisconsin Supreme Court decided in 2022 that a requester prevails in whole or in substantial part only if the requester obtains a judicially sanctioned change in the parties’ legal relationship, for example, a court order requiring disclosure of a record. See, Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57. Under the supreme court’s decision, a requester generally is not entitled to attorney fees and costs if the authority voluntarily or unilaterally without a court order provides contested records after the requester files an action in court. This bill supersedes the supreme court’s decision in Friends of Frame Park. Under the bill, a requester has prevailed in whole or in substantial part if the requester has obtained relief through any of the following means: 1. A judicial order or an enforceable written agreement or consent decree. 2. The authority’s voluntary or unilateral release of a record if the court determines that the filing of the mandamus action was a substantial factor contributing to that voluntary or unilateral release. This standard is substantially the same as the standard that applies for a requester to obtain attorney fees and costs under the federal Freedom of Information Act. |
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