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By Alexandria Staubach
Milwaukee Municipal Court continues to dodge its obligation to record hearings by proposing an insufficient new policy in response to a court order. Milwaukee County Circuit Judge David Borowski rejected the municipal court’s proffered new policy but clarified some of the municipal court’s responsibilities. Borowski held in December 2024 that the municipal court and its judges had consistently failed to comply with statutorily imposed recording requirements for hearings on motions to reopen as well as hearings addressing a defendant’s ability to pay. Such hearings must be recorded so an appellate court can review them. Borowski placed the municipal court under his supervision and ordered the municipal court to comply within 90 days. He reserved the right to hold hearings every three to six months to monitor compliance. Over the years, Milwaukee Municipal Court developed several different categories of hearings and limited recordings to only what it called “indigency hearings,” even though judges regularly took up a defendant’s ability to pay in other hearings as well. Borowski found in December that names of court proceedings are an invention of Milwaukee Municipal Court and the court could not avoid recording requirements through its naming system. He ordered the municipal court to “fully implement” policies and procedures to electronically record every hearing in which “(1) a decision is made as to a motion to reopen a case (regardless of whether said motion is made orally or in writing, regardless of the label or category assigned to said hearing, and regardless of the ultimate result of the hearing) and (2) a determination is made as to the defendant’s ability to pay a judgment due to poverty (regardless of the ultimate result of the hearing).” In March 2025, Milwaukee Municipal Court submitted to Borowski a plan that purported to bring it into compliance but failed to address key components of his December order. The policy Milwaukee Municipal Court submitted again only applied to “indigency hearings.” Further, it shifted the burden of recording from the municipal court to the court’s bailiffs and said the municipal court would no longer grant “motions to reopen based on pleadings alone but rather schedule a hearing,” as a result of Borowski’s decision. Milwaukee Municipal Court sought clarification from Borowski because it thought his December decision was “reasonably susceptible to more than one interpretation,” asking Borowski to point out the “specific circumstances requiring a hearing in open court” that would trigger the recording requirement. Last week, Borowski found that the proposed policy Milwaukee Municipal Court presented “lacks sufficient clarity to ensure compliance with the Court’s Decision and Order.” He directed the municipal court to develop a new policy that “must explicitly require electronic recording of ALL of the following”:
The new order forbids the municipal court from placing the obligation of recording on bailiffs. “Court staff may be responsible for turning on the recorder, but the policy and procedure must clarify that any recording must be made at the direction of the judge,” Borowski wrote. Milwaukee Municipal Court has 14 days to develop a new policy, Borowski said. Borowski noted that nothing in his December order requires Milwaukee Municipal Court to hold a hearing on a written motion or when a judge would otherwise dispose of a matter by written order. “Judge Borowski’s April 21, 2025 order is very clear guidance to any municipal court that is still unsure which hearings must be electronically recorded,” said Susan Lund, attorney for the plaintiff who brought the case challenging Milwaukee Municipal Court’s recording procedures.
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By Alexandria Staubach
Gov. Tony Evers has pardoned more individuals than any other governor in recent history. He has granted a total of 1,436 pardons, which exceeds the total of the next closest official, Gov. Julis P. Heil (1939-1943), by nearly 500. Evers issued 300 pardons in 2024 alone. Evers’ predecessor, former Gov. Scott Walker, granted zero pardons in his eight-year term and even disbanded the pardon board. Although Evers revived the pardon advisory board, the board is not exactly giving clemency away. For some perspective, in 2018 as many as 1.4 million Wisconsinites had criminal records that may hinder gainful employment, according to the Wisconsin Policy Forum. The pardon advisory board conducts hearings quarterly by Zoom. The board currently has eight members, including Evers’ chief legal counsel, Mel Barnes, who serves as board chair; Attorney General Josh Kaul’s appointee, Judge Jeffrey Kremers; and Cindy O’Donnell. Kremers served as a Milwaukee County Circuit Court judge for 26 years, with seven years as chief judge. O’Donnell served as deputy secretary of the Department of Corrections under Govs. Tommy Thompson, Scott McCallum, and James Doyle. Other board members include Anthony Cooper, Sr., head of an organization working to address violent crime, who served time in prison and was pardoned by Evers in 2021; Rev. Jerry Hancock, a former public defender who now works in prison ministry; Nadya Pérez-Reyes, a former public defender now serving as deputy secretary of the Wisconsin Department of Children and Families; Myrna Warrington, director of vocational rehabilitation on the Menominee reservation; and former City of Madison Police Chief Noble Wray. However, at last week’s board hearing Barnes was joined by only Kremers and O’Donnell. The hearing covered 26 pardon petitions. One individual seeking a pardon, Tommy Kirk, Jr., who was originally fifth in line for his hearing, sat through three hours of proceedings because Kremers recused himself from hearing Kirk’s case. Without Kremers, the board lacked a sufficient number of members to hear Kirk. The board kept Kirk on the line waiting for another member to appear, but no one else showed up. Kirk eventually had to return to work. Before leaving, he made his case without a sufficient number of board members present to vote on his pardon application. For many petitioners this was their first application, but some had applications denied previously. A majority of board members must vote in favor of a petitioner for a recommendation to go the governor. Anyone who committed a felony in Wisconsin more than five years ago, has completed all confinement and supervision, has no pending criminal cases in any jurisdiction, and is not currently required to register as a sex offender is eligible for a pardon. But while the technical requirements to receive a pardon are minimal, the governor also requires those seeking a pardon to fill out an 11-page application, which asks about all law enforcement contact, ever, and requires applicants to rehash their crimes “in detail” and explain why the pardon should be granted. Applicants must also pay to obtain certified copies of all court records and authorize the state to do a background check. Letters of recommendation from people who can attest to an individual’s changed ways are given heavy weight. Comments and questions from board members at last week’s hearing suggest that significantly more than mere eligibility is expected, and that near model behavior is required. “For me, pardon is an extraordinary measure,” said O’Donnell to more than one petitioner. Benjamin Zimmer described in detail at the hearing how he purchased one ounce of marijuana at house party in 2012. Zimmer described having to quit nursing school but completing his probation and 100 hours of community service on time and a lack of further encounters with law enforcement in the 13 years since. He listed a host of subsequent accomplishments, from owning his own contracting business to becoming a leading volunteer in his community. According to a letter described by O’Donnell at the hearing, Zimmer even had the support of the judge who originally sentenced him. Nevertheless, Zimmer has been denied previously. Zimmer wasn’t the only individual seeking a pardon for old marijuana crimes. Christopher Teed also described buying one ounce of marijuana at a house party when he was 17—a crime followed by probation revocation and two years in prison. The SCOW docket: Arrest-record discrimination includes terminations based on municipal charges4/18/2025 Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.  Dallet The Case: Oconomowoc Area School District v. Gregory L. Cota Majority: Justice Rebecca Frank Dallet (15 pages), joined by Justices Ann Walsh Bradley, Brian Hagedorn, Jill Karofsky, and Janet Protasiewicz. Concurrence: Protasiewicz (6 pages) Dissent: Chief Justice Annette Kingsland Ziegler (3 pages) Dissent: Justice Rebecca Grassl Bradley (7 pages), joined by Ziegler Upshot This case raises two questions. First, does the Wisconsin Fair Employment Act’s definition of arrest record—specifically the phrase “any . . . other offense”—include non-criminal offenses, like municipal theft? Second, if so, did the Labor and Industry Review Commission (LIRC) correctly conclude that the Oconomowoc Area School District engaged in arrest-record discrimination when it terminated the Cotas? We answer “yes” to both questions and thus reverse the court of appeals’ contrary decision. Background Gregory and Jeffrey Cota were members of the District’s grounds crew and, as part of their duties, recycled scrap metal for the District. The Cotas, along with coworker Garret Loehrer, brought scrap metal to a local processor, which paid with cash or checks made out to “cash.” The person who received the money from the processor would give it to Gregory, who would then pass it along to his supervisor, Matt Newman. Between 2012 and 2014, the Cotas made multiple complaints about Loehrer’s work performance to supervisors. . . . On one such occasion, Jeffrey Cota asked a supervisor if Loehrer had turned in money from a recent scrap-metal delivery. The money had been turned in, but the supervisor reported the inquiry to Loehrer. In response, Loehrer accused the Cotas of retaining some of the District’s scrap money. Loehrer asserted that, approximately two years prior, he and the Cotas had delivered scrap metal to the processor but had kept the payment and split the money among themselves. The District’s Director of Human Resources, Pam Casey, began a formal investigation into the allegations. Casey interviewed employees and reviewed documents related to the scrap-metal transactions. She determined that $5,683.81 originally paid to Loehrer and the Cotas had not been received by the District. But conflicting accounts given by Loehrer, the Cotas, and other employees prevented Casey from determining who was responsible for the missing funds. . . . Accordingly, Casey recommended turning over the investigation to local police, explaining that “[e]mployment-related disciplinary decisions can be better made following the conclusion of any criminal investigation.” The District took no other investigatory action after turning the matter over to the police. The Town of Oconomowoc Police Department opened its own investigation into the missing funds. . . . Despite investigating for 11 months, however, the police did not discover any new information related to the Cotas. Even so, the Cotas were cited for municipal theft. The investigating detective explained in her report that she based the citations exclusively on Loehrer’s allegation that the Cotas had split scrap money with him on one occasion—the same allegation that had given rise to the District’s investigation. The detective’s report further stated that she was unable to prove any additional allegations against the Cotas. Approximately one year after the Cotas were cited for theft, the assistant city attorney informed the District that he believed he could obtain convictions and that he also believed the case could be settled. The Cotas did not agree to settle. The next day, the District terminated the Cotas’ employment. The District sent the Cotas termination letters, drafted by Casey, stating that the District had “learned” that the Cotas “were, in fact, guilty of theft of funds from the School District” and that they had lied about this during the District’s internal investigation. The municipal citations against the Cotas were ultimately dismissed. The Cotas never pleaded guilty to or were convicted of municipal theft. The Cotas filed claims of arrest-record discrimination with the Department of Workforce Development, Equal Rights Division (DWD). Following an evidentiary hearing, an administrative law judge found that the Cotas failed to establish that the District had unlawfully discriminated against them. The Cotas appealed to LIRC, which reversed, concluding that the District terminated the Cotas’ employment because of their arrest records in violation of the Act. The circuit court affirmed LIRC's decision, but the court of appeals disagreed and reversed. Guts An employer generally may not terminate an employee because of the employee’s arrest record. "Arrest record" is defined as including "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 pursuant to any law enforcement or military authority." To understand the parties’ arguments, we begin by explaining the distinction between criminal and non-criminal offenses. Under Wisconsin law, offenses punishable by fine, imprisonment, or both are crimes, while offenses punishable only by a forfeiture are non-criminal. Non-criminal offenses range from minor infractions, like failing to use a turn signal, to more serious violations, like a first operating-while-intoxicated (OWI) offense. Additionally, in Wisconsin, all crimes are classified as either felonies or misdemeanors. Some other jurisdictions, however, do not classify crimes in this way. The District argues that the phrase “any . . . other offense” in the arrest record definition refers only to criminal offenses under the laws of jurisdictions that do not classify crimes as either felonies or misdemeanors. Under this interpretation, the Cotas are not protected by the Act, since they were cited for a non-criminal offense. By contrast, the Cotas and LIRC assert that “any . . . other offense” includes both criminal offenses from jurisdictions that do not classify crimes as either felonies or misdemeanors and non-criminal offenses under Wisconsin law. We agree with the Cotas and LIRC. The ordinary meaning of the phrase “any . . . other offense” includes violations of both criminal and non-criminal laws. Indeed, this is how the term “offense” is consistently used throughout our statutes, and nothing in the structure or remaining text of the statute at issue suggests a narrower meaning. Furthermore, interpreting “any . . . other offense” to include non-criminal offenses serves the Act’s express statutory purpose of “protect[ing] by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of . . . arrest record. . . .” Finally, the exceptions to the Act’s general prohibition against arrest-record discrimination provide additional support for our interpretation. *** The District focuses narrowly on the exceptions applicable only to criminal charges, arguing that we should infer from them that the general prohibition on arrest-record discrimination similarly applies only to criminal offenses. But we must read statutes in context, “not in isolation but as part of a whole. . . .” Taken together, these exceptions demonstrate that “any . . . other offense” includes both criminal and non-criminal offenses. . . . *** Because we hold that “any . . . other offense” in the statute at issue includes non-criminal offenses, we turn to the second issue before us: whether LIRC correctly concluded that the District terminated the Cotas because of their arrest records, in violation of the Act. The answer to this question turns on the District’s motivation for terminating the Cotas, which is an issue of fact. *** Substantial evidence supports LIRC’s conclusion that the District was not motivated to act by its internal investigation, despite Casey’s testimony before DWD that she formed a personal belief in the Cotas’ guilt during the investigation. Indeed, Casey’s report summarizing the results of the investigation stated that the District was not able to determine who was responsible due to conflicting allegations, and Casey testified before DWD that those same conflicting allegations prevented her from making final employment decisions at the close of the investigation. When referring the matter to the police for further investigation, the District’s attorney told the investigator that the District could not conclude who was responsible, and Casey testified before DWD that this was a true statement. Finally, Casey also testified that while she was suspicious of the Cotas during the internal investigation, she was not suspicious enough to fire them. Substantial evidence likewise supports LIRC’s conclusion that the District’s decision to terminate the Cotas was motivated by arrest-record information. Before DWD, Casey testified that three new pieces of information came to her attention between the close of her internal investigation—when she was not ready to fire the Cotas—and her decision to fire them nearly two years later. That new information included: (1) that the Cotas were cited for municipal theft, (2) that the assistant city attorney told Casey he believed he could convict the Cotas and (3) that the assistant city attorney told Casey he anticipated reaching a settlement with the Cotas that included restitution. And Casey admitted that these three pieces of information caused her to terminate the Cotas. All three are components of the Cotas’ arrest records. Accordingly, substantial evidence supports LIRC’s conclusion that the District was motivated by arrest-record information when it terminated the Cotas. The District nevertheless argues that it is protected by a legal defense recognized in a prior case because its decision to terminate the Cotas was motivated at least in part by Casey’s belief in the Cotas’ guilt formed during the internal investigation. According to the District, caselaw permits employers to terminate employees because of their arrest records as long as the employer also concludes from an internal investigation that the employee engaged in unacceptable conduct. In other words, the District argues that as long as it did not terminate the Cotas exclusively because of their arrest records, it did not violate the Act. We reject this argument for two reasons. First, the District mischaracterizes the holding of the cited case, in which an employer effectively discharged an employee after the employee admitted, in response to a question posed by the employer, that he had committed an offense. . . . The case holds simply that an employer who does not rely on arrest-record information when making a discharge decision does not discriminate against an employee because of their arrest record. Second, the case does not apply because LIRC found that the District did rely on arrest-record information when making its discharge decision, and we must accept this finding because it is supported by substantial evidence. This remains true even though the District argues that Casey’s testimony about her personal belief in the Cotas’ guilt supports a different conclusion about the District’s motive. LIRC weighed the evidence relevant to the District’s motive and found that the District was motivated by the Cotas’ arrest records. This finding is supported by substantial evidence, and therefore must be accepted.  Protasiewicz Concurrence In today’s decision, the court follows the law where it leads, but we arrive at a strange result. I write separately to call attention to the oddity of this outcome and to recommend that our statutes better accommodate employers who are victims. I agree with the majority that the statute at issue includes non-criminal offenses and that LIRC correctly concluded the District fired the Cotas because of their arrest records. But as a result of today’s decision, the District may not fire employees who it suspects stole from the District. That is no way to treat the victim of an offense. In the Wisconsin Fair Employment Act (“the Act”), the legislature balances a couple of interests. Surely, the legislature seeks to protect employees. To that end, the Act prevents “employment discrimination because of” arrest record or conviction record, among other things. But the legislature also protects employers’ interests in some instances. The legislature created exceptions that allow employers to sometimes take employment action in the context of an employee’s arrest record or conviction. For example, an employer may suspend an employee when the employee is subject to a “pending criminal charge” if “the circumstances of the charge substantially relate to the circumstances of the particular job.” In another example, an employer may fire an employee who “has been convicted” of an offense under “circumstances . . . which substantially relate to the circumstances of the particular job.” This case calls for another exception to protect employers when an employer is a victim. Here, the District was a victim, which makes this case different than many cases of arrest record discrimination. *** . . . We are left with a strange result. The District was the victim of an offense and suspected its employees did it. It could have fired the employees, but instead asked law enforcement to investigate. Because law enforcement investigated, the employees had an arrest record which limited the District’s ability to fire the employees. In the end, under today’s decision, the District may not fire the employees that it believes stole from the District. Our statutes should not hamstring employers who are victims that way. An employer should be allowed to take employment action when it is the victim of an offense and suspects an employee did it, even when it relies on information from law enforcement. Nevertheless, I must follow the law as it stands, and I agree with the majority. The text of the statute at issue includes non-criminal offenses, and LIRC correctly concluded that the District fired the Cotas because of their arrest records. But this case highlights how our statutory scheme breaks down when an employer is the victim of an offense and seeks law enforcement intervention. I urge the legislature to address this unjust situation.  Ziegler Ziegler dissent The court’s decision sends a message to employers across the state: If the employer believes one of its employees may have committed a crime—say, stealing from that employer—based upon its own internal investigation, it should quickly fire the employee rather than have its suspicions confirmed by a full investigation by law enforcement. The court’s decision forecloses an employer from firing such an employee even when the employer’s suspicions about the employee’s conduct are confirmed by law enforcement’s investigation. Maybe this case is an example of the “old adage” that “bad facts make bad law,” but the upshot of the court’s decision is directly at odds with the legislatively enacted purpose of the statutes at issue. These statutes were enacted to protect employees from unwarranted termination. But today’s opinion will ensure the opposite: Employers can no longer give their employees the benefit of the doubt, allowing law enforcement to confirm their suspicions, because that could mean the employer will risk liability under the law. Accordingly, I dissent. The Wisconsin Fair Employment Act (the Act) bars employers from engaging in certain forms of employment discrimination. With some exceptions, an employer may not “discriminat[e]” against an individual “on the basis of . . . arrest record[s].” The statute provides that discrimination includes “terminat[ing] from employment . . . any individual . . . because of” an individual’s arrest record. In turn, “arrest record” is statutorily defined as including, but not being limited to, “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 pursuant to any law enforcement or military authority.” *** The legislature affirmatively and expressly declared the purpose and policy of the Act; it is to protect employees from termination under a variety of circumstances, including when an employer wishes to terminate an employee because that employee has an arrest record. . . . The court’s decision contravenes the legislatively stated purpose of the Act. Here, had the employer not given the employees the benefit of the doubt and asked law enforcement to investigate that which the employer had already determined, and instead fired the employees before law enforcement determined the employees should be charged, the employer would not be liable. If the employer fired the employees earlier, no liability would have attached because no arrest records would have existed. Simply stated, waiting to have law enforcement confirm the employer’s suspicions meant that the employer was liable. So, instead of protecting the employment of employees, the Act, as the court interprets and applies it, promotes the premature firing of employees suspected of committing offenses. Stated otherwise, the court renders the Act self-defeating in factual situations like these. *** The wrongful deference the majority gives to LIRC’s factual findings in this case demonstrates the unlikelihood that courts will reverse a finding by LIRC that an employer terminated an employee because of the employee’s arrest record. Here, the facts demonstrate that the employees were terminated because they stole from the employer, not because they had arrest records. But the majority upholds LIRC’s erroneous finding all the same. While the court might be technically correct that merely having an arrest record is insufficient to trigger liability under the Act, under circumstances presented in a case like this one, the mere existence of an arrest record seems to be sufficient for LIRC to find an employer liable. Employers will act accordingly and fire their employees after an internal investigation, even if the investigation is inconclusive, before law enforcement gets involved. Employers cannot risk the possibility that LIRC will make the inference—which after today’s opinion will be all too easy to make—that the employer fired its employee because of the employee’s arrest record, not the employer’s prior internal investigation. No doubt, the court’s decision is a victory for Gregory and Jeffrey Cota. But the decision may ultimately prove to be a defeat for employees across Wisconsin. The stated purpose of the Act is to protect employees from unwarranted termination. Here, the employees were terminated because they stole from their employer. Yet, according to the majority, the employer’s hands were tied when it came to terminating them. Had the employer terminated the two employees sooner, there would be no arrest records and the employer would face no liability. The outcome of this case turns the stated purpose of the Act upside down— pushing employers to terminate employees as quickly as possible to avoid the risk of liability under the Act. The legislature did not intend the statute to operate in this manner.  Grassl Bradley Grassl Bradley dissent
The majority mistakes a conclusion of law for a finding of fact. Whether an employer unlawfully terminated an employee based on his arrest record is a conclusion of law, as LIRC’s Order properly denominated it. . . . Whether the facts found by an agency “fulfill a particular legal standard is a question of law, not a question of fact.” By misapprehending a question of law for one of fact, the majority sidesteps its responsibility to declare the law and effectively endorses LIRC’s misinterpretation of the governing statute to shield employees from any adverse employment consequences for their malfeasance. Even if the issue of whether the District fired the Cotas based on their arrest records presented a factual question, no reasonable person would conclude the District fired the Cotas for any reason other than the fact the Cotas stole from their employer. It is preposterous to suggest the District fired the Cotas based on their status as persons with arrest records. Nothing in the law compels this court to reward the offenders and punish the victim. Only the majority’s tacit approval of LIRC’s crabbed reading of statutory law produces this farce. The Wisconsin Fair Employment Act (“the Act”) prohibits employers from discriminating against individuals “on the basis of” their “arrest record,” among other bases such as race or sex. Termination of employment constitutes a discriminatory action the law prohibits if taken “on the basis of” an arrest record. LIRC concluded the District terminated the Cotas on the basis of their arrest records because the District waited to fire them until law enforcement created arrest records validating the District’s conclusions. This hyper-literal construction of the Act contradicts the statute’s textually manifest purpose and assigns the law an unsound meaning. *** Even under the majority’s misguided framework of examining the record for substantial evidence supporting LIRC’s decision, there is no evidence the District unlawfully discriminated against the Cotas. No evidence, much less substantial evidence, suggests the District fired the Cotas “solely because of” their arrest records. Nothing in the record suggests the District fired the Cotas because of the “particular class to which” the Cotas belong: individuals with arrest records. Everything in the record points to the District firing the Cotas for the obvious reason that the Cotas stole from the District. *** In this case, the arrest records came about only after Casey believed the Cotas stole from the District and then referred the matter to law enforcement. After completing her investigation, Casey concluded “there can be no question that some employment action (and perhaps criminal action) is necessary here, in view of the evidence that this investigation has produced.” Only then did the District refer the matter to law enforcement. Casey later testified “the independent police investigation . . . resulting in the issuance of the municipal theft citations, further corroborated in my mind the fact that these individuals were not forthright and had lied during our investigation and had taken proceeds from the sale of scrap metal.” The record confirms the Cotas’ arrest records merely corroborated conclusions the employer had already drawn. *** Nothing in the Act compels LIRC to penalize an employer for waiting to terminate an employee until law enforcement corroborates the employer’s conclusion that an employee stole from the employer. The Act prohibits an employer from terminating an employee “on the basis of” his arrest record, but an employer can certainly terminate an employee because he stole from the employer. The court of appeals confirmed that interpretation in a prior case and LIRC has applied it repeatedly. In this case, LIRC adopted a new, narrow, and strict construction of the Act, ignored its context and textually expressed purpose, and rejected decades of cases interpreting the law correctly. The majority refuses to apply the obvious meaning of “on the basis of” and instead improperly defers to LIRC’s legal conclusion, mischaracterizing it as an issue of fact. While the court may be bound by LIRC’s findings of fact, it is supposed to independently interpret the law. Although the court could correct LIRC’s error of law and apply the Act’s actual meaning to the facts as found by LIRC—the most efficient disposition of this litigation—at a minimum the court should remand the matter to LIRC to decide the case under the correct interpretation of the law. Instead, the majority carelessly embraces LIRC’s misunderstanding of a statute that prohibits categorical discrimination against individuals merely because they have an arrest record. Nothing in the text of the law protects employees accused of committing crimes against their employers. The majority’s improper deference to LIRC’s misinterpretation of the Act will perversely incentivize employers to fire employees without investigating accusations or suspicions against them, lest law enforcement’s later involvement trigger the indemnity the majority confers on employees suspected of misconduct. Nothing in the law necessitates this ludicrous situation, which is of the majority’s own making. I dissent.
The Assembly (left) and Senate (right) chambers at the Wisconsin State Capitol. Photographs by Margo Kirchner. By Alexandria Staubach
With three months of the legislative session in the rearview mirror, several bills concerning the criminal justice system have moved through committees and to a vote in either the Senate or Assembly. The rough progression of a successful bill is: introduction → referral to committee → passage by committee → vote by full chamber → transfer to the other chamber to go through the prior three steps there, too → to the governor for signature. Fora refresher on the life cycle of a bill, see here. The bills below are those that WJI is actively tracking and which have made noteworthy progress, not including the bill that would require the Department of Corrections to recommend revocation for individuals charged with new offenses. WJI recently covered that legislation in more depth, here. All summaries are quotations taken directly from the analysis by the Legislative Reference Bureau. Titles and the status description are in WJI's words. A * before the bill number means the bill is substantially similar to one introduced in a previous session that failed to pass or the governor vetoed. “AB” means Assembly Bill, while “SB” means Senate Bill. AB26/SB5 Battery to juror or witness to trial Summary: Under current law, the crime of battery is defined as intentionally causing another person bodily harm and is a Class A misdemeanor. Under current law, if the battery is a special circumstance battery—for example, the battery is committed against an individual because of the individual's status as a law enforcement officer, witness in a trial, or juror—the penalty is increased to a Class H felony. Under this bill, a threat or battery against a juror or a threat or battery against a family member of a juror is a Class H felony. Status: Passed in the Senate (28 yes, 4 no); referred to committee in the Assembly, where public hearing took place April 9. *AB29/SB6 Impoundment of vehicles used in certain traffic offenses Summary: Under this bill, in addition to the penalties available under current law for the following offenses, the vehicle used in the offense may be immediately impounded and remain impounded for 90 days or, for a violation occurring on a highway under the jurisdiction of a political subdivision, a shorter period established by the political subdivision: 1. Operating a vehicle without a license, with certain exceptions, or with a revoked operating privilege. 2. Speeding at a rate higher than 25 miles per hour above the speed limit. 3. Fleeing from a law enforcement officer. 4. Racing on a highway. Status: Neither the Assembly nor Senate has put the bill to a vote, but the bill has made its way through the committee process in both chambers and is eligible for a vote in either. *AB34/SB25 Court-issued criminal prosecutions Summary: Under current law, a district attorney has the discretion as to whether or not to issue a complaint to charge a person with a crime. Current law also provides that, if a district attorney refuses to issue a complaint against a person, a judge may conduct a hearing to determine if there is probable cause to believe that the person committed a crime and, if so, issue a complaint. Under this bill, when there is an officer-involved death, which is a death that results directly from an action or an omission of a law enforcement officer, and the district attorney determined there was no basis to prosecute the officer, a court may not issue a complaint against the involved officer unless there is new or unused evidence presented. Status: Passed in the Senate (19 yes, 13 no); referred to committee in the Assembly. *AB4/SB30 Mandatory civics education Summary: Beginning in the 2027-28 school year, this bill requires school boards, independent charter schools, and private schools participating in a parental choice program to include in their respective curricula instruction in civics that includes specific topics and pupil development goals. Status: Passed in the Assembly (52 yes, 46 no); referred to committee in the Senate. AB24/SB57 Sheriff assistance with immigration activity Summary: This bill requires sheriffs to request proof of legal presence status from individuals held in a county jail for an offense punishable as a felony. The bill also requires sheriffs to comply with detainers and administrative warrants received from the federal department of homeland security regarding individuals held in the county jail for a criminal offense. Under the bill, sheriffs must annually certify to the Department of Revenue that they have complied with each of these requirements. If a sheriff fails to provide such a certification, DOR must reduce the county’s shared revenue payments for the next year by 15 percent. The bill also requires sheriffs to maintain a record of the number of individuals from whom proof of legal presence is requested who are verified as unlawfully present in this state and a list of the types of crimes for which those individuals were confined in the jail. The information must be provided to the Department of Justice upon request, and DOJ must compile the information and submit a report to the legislature. Status: Passed in the Assembly (51 yes, 43 no); referred to committee in the Senate. AB78/SB65 Impoundment of vehicles used in certain reckless driving offenses Summary: Under current law, a political subdivision may enact an ordinance authorizing law enforcement officers to impound vehicles used in reckless driving offenses if the person cited for reckless driving is the owner of the vehicle and the person has a prior reckless driving conviction for which a forfeiture was imposed that has not been fully paid. Under this bill, such an ordinance may authorize the impoundment of any vehicle used in a reckless driving offense regardless of ownership of the vehicle or prior record of the operator. The bill also provides that a local ordinance may authorize impounding such a vehicle until outstanding fines and forfeitures owed by the vehicle’s owner are fully paid. Also under the bill, upon impounding a vehicle under such an ordinance, the law enforcement officer must attempt to determine if the vehicle has been reported as stolen, and if so, the officer or the impounding political subdivision must attempt to contact the owner. If the vehicle is reported as stolen, the vehicle must be released to the owner without the payment of a fee or charge. Status: Passed in the Assembly, vote count unavailable; referred to committee in Senate. AB73/SB80 Statutory recognition of specialized dockets for treatment courts and commercial litigation Summary: The bill recognizes in statute treatment courts, which are defined in the bill to include adult drug treatment court, juvenile drug treatment court, operating while intoxicated treatment court, mental health treatment court, family dependency treatment court, veterans treatment court, hybrid treatment court, and tribal healing to wellness court. The bill also statutorily recognizes a specialized docket for commercial cases (which portion of the bill was introduced last session as well). Status: The bill has been referred to committee in both chambers; the committees in both the Assembly and Senate have held public hearings. *AB66/SB76 Prohibition on dismissing or amending certain criminal charges and deferred prosecution agreements Summary: Under this bill, a prosecutor must get the court’s approval to dismiss or amend a charge if the charge is for any of the following: 1) a crime of domestic abuse or a violation of a domestic violence temporary restraining order or injunction; 2) theft of an automobile; 3) a crime of abuse of an individual at risk or a violation of an individual-at-risk TRO or injunction; 4) first-degree, second-degree, or third-degree sexual assault; 5) a crime against a child; 6) illegal possession of a firearm if the person has been convicted of, adjudicated delinquent for, or found not guilty by reason of mental disease or defect of, committing, soliciting, conspiring, or attempting to commit a violent felony, as defined under current law; or 7) reckless driving that results in great bodily harm. The court may approve the dismissal or amendment of such a charge only if the court finds the action is consistent with the public’s interest in deterring the commission of these crimes and with the legislature’s intent, expressed in this bill, to vigorously prosecute individuals who commit these crimes. If the court approves any dismissal or amendment in a year, the court must submit an annual report to the legislature detailing each approval. Status: Passed in the Assembly (53 yes, 44 no); referred to committee in the Senate. A similar bill was passed by the Legislature last session and vetoed by Gov. Tony Evers. AB65/SB77 Entering certain places with intent to commit battery Summary: Under current law, it is a Class F felony to enter a dwelling or certain other places with intent to steal or commit a felony therein. Under this bill, it is also a Class F felony to enter one of those places with intent to commit battery that is misdemeanor battery rather than felony battery. Under current law, the penalty for a Class F felony is a fine not to exceed $25,000 or imprisonment not to exceed 12 years and six months, or both. Under this bill, it is also a Class F felony, or a Class E felony if certain additional circumstances apply, to intentionally enter a dwelling or certain other places without consent with intent to commit any battery. Status: The bill has been referred to committee in both chambers; the committees in both the Assembly and Senate have held public hearings. *AB87/SB95 Requiring payment of restitution for restoration of the vote Summary: Under current law, a person convicted of treason, felony, or bribery may not vote unless the person’s right to vote is restored through a pardon or through completion of the term of imprisonment, including parole or extended supervision, or probation for the crime that led to the disqualification. Under the bill, in addition to completing his or her term of imprisonment or probation for the crime, a person must have paid all fines, costs, fees, surcharges, and restitution, and have completed any court-ordered community service, imposed in connection with the crime. Additionally, under this bill, if the defendant is sentenced or placed on probation for human trafficking, the court must require restitution be paid immediately and, if the defendant fails to pay immediately, the court must issue an execution against the defendant’s property. Status: Passed in the Assembly (53 yes, 43 no); the Senate committee recently held a public hearing. AB75/SB115 Collection and reporting of certain criminal case data Summary: This bill requires state DOJ to collect from the director of state courts all of the following information for each criminal case: 1) the county in which the case was filed; 2) the name of the prosecuting attorney assigned to the case; 3) the name of the court official assigned to the case; 4) the criminal charge filed; 5) the charging recommendation from the referring law enforcement agency, if applicable; 6) for each case, whether the court released the defendant without bail, upon the execution of an unsecured appearance bond, upon the execution of an appearance bond with sufficient solvent sureties, or upon the deposit of cash in lieu of sureties, or denied release, and the name of the court official who made the decision; 7) for each case for which a court required the execution of an appearance bond with sufficient solvent sureties, the monetary amount of the bond and the name of the court official who made the decision; 8) for each case for which a court required the deposit of cash in lieu of sureties, the monetary amount of cash required and the name of the court official who made the decision; 9) any other conditions of release imposed on the defendant and the name of the court official who made the decision; 10) whether any plea bargain was offered in the case; 11) whether a deferred prosecution agreement was offered in the case; 12) whether any charge relating to the case was dismissed; and 13) whether the case resulted in a conviction Status: Passed in the Assembly (53 yes, 43 no); the Senate committee held a public hearing.
By Margo Kirchner Twelve judges will change assignments in Milwaukee County Circuit Court effective Aug. 1, 2025. Chief Judge Carl Ashley announced new assignments on March 31. Because of the court’s size, its 47 judges are separated into divisions to handle one type of case. Divisions include criminal felony, criminal misdemeanor, children, family, and civil, with specialties within some of the divisions. The court’s guidelines about rotations indicate that judicial rotations are based on a judge’s length of service in the present division and various judges’ requests, among other things. Judges who have served more than six years normally spend about four years in a division. Newer judges normally serve two to three years in a division and then are moved so they experience more areas of law. Assignments to small claims court are generally just one year unless the judge volunteers to remain. However, the chief judge makes the final assignment decisions based on the needs of the court as a whole and considerations such as a judge’s seniority, background, and expertise, plus stakeholder feedback. Assignments to problem-solving courts, such as drug-treatment court, take into account a judge’s additional specialized knowledge and training. Problem-solving courts include collaborative work and use of various interventions to treat defendants while still holding them accountable. Here are the announced 2025 rotations: 
By Alexandria Staubach
The Wisconsin Legislature last week moved forward on increasingly punitive measures that increase the likelihood of incarceration, ignoring community calls for systems and programs that decrease recidivism and address root causes of crime. Senate Bill 93/Assembly Bill 85 predominated at the Senate Committee on Judiciary and Public Safety’s 4½-hour public hearing on April 1. The committee has not yet voted on the bill. If it passes out of committee, it would then go to the full Senate, possibly in the next floor session period, which runs April 15-25. The bill has already passed in the Assembly If enacted, the bill would require the Wisconsin Department of Corrections to recommend revocation of probation or parole when an individual is charged with (not convicted of) a new crime. Law enforcement groups unanimously supported the bill at the hearing, while groups with ties to reentry services and justice reform unanimously opposed it. Committee member Sen. Dora Drake (D-Milwaukee) expressed concern over the potential costs of the legislation after one of the bill’s lead sponsors, Rep. Brent Jacobson (R-Mosinee), highlighted a fiscal planning estimate by the Wisconsin Department of Administration that as many as 47% of individuals currently on supervision could be subject to revocation if the law is enacted. The fiscal estimate anticipates that the legislation could eventually increase the prison population by 4,600 people, requiring $245.7 million in additional spending by the DOC. “It's an admission in itself that we have an issue,” said Jacobson. He said that while “impossible” to quantify, recidivism also has comparable community costs. While the DOC did not provide oral testimony at the hearing, it opposes the legislation, which it views as removing its discretion. Cost wasn’t the only hot topic. Deep frustration with repeat offenders squared off with the real-life ramifications for everyone on supervision. “It takes an act of Congress to get somebody revoked in our state,” said Dodge County Sheriff Dale Schmidt. He has heard from those on supervision that “probation and parole is a joke because I can do whatever I want on it,” he said. On the opposing side, Marianne Olson, operations director of Ex-incarcerated Persons Organizing, said, “I live in a world where not everyone gets along, and even being in the wrong place at the wrong time can lead to charges.” Olson is currently serving more than 20 years of supervision after being sentences for nonviolent offenses. She said that “revocation should never be based on mere allegations,” and that studies show “supportive interventions, not harsh penalties, promote lasting public safety.” When a person is revoked from community supervision, they serve the remainder of their sentence incarcerated – even if probation was ordered in the first instance. Speakers also shared concerns about revoking individuals without due process. Hearings on revocations are presided over by an administrative law judge, and due process protections are relaxed. “There is a concern for me” said Drake. “If someone is innocent until proven guilty, they should be treated as such.” “Senate Bill 93 does not just abandon the values of rehabilitation and reintegration,” but “it erodes due process,” said Sean Wilson, senior director of organizing and partnerships at Dream.org. “We cannot continue to double down on harmful polies that have pushed our correction system to a breaking point,” said Amanda Merkwae, ACLU of Wisconsin’s advocacy director. She shared statistics indicating that Wisconsin exceeds the national average regarding incarceration rates and revocations are a driving force behind that incarceration. Merkwae said revocations for rule violations and new charges “accounted for 60% of the total 8,155 new prison admissions in 2024” and that the overwhelming majority of cases recommended for revocation hearings result in incarceration. Shannon Ross, whose recent work includes helping usher in a bill creating what he calls a “one stop for reentry services,” shared his personal anxiety on supervision. Ross, successful founder of the reentry focused nonprofit The Community, which employs seven people, said he has 11½ years of supervision left on his own sentence. “At any given moment an allegation can send me back to prison,” and “it doesn’t matter the things I’ve done.” “People who have been out for so long in Wisconsin, the way we’ve structured our system, don’t have the same ability to stay in society and avoid going back in,” Ross said. “This is like writing business law without talking to business owners,” said Ross. His testimony was followed by others with real-life supervision stories. Department of Corrections battles with Division of Hearings and Appeals in Supreme Court argument4/2/2025  By Alexandria Staubach
A Wisconsin Department of Corrections lawsuit that could change evidentiary requirements in probation revocation hearings landed in the Supreme Court for oral arguments in late March. Whether and to what extent probationers maintain minimal rights to confrontation is at stake. The case concerns the overturning by the Division of Hearings and Appeals (DHA) of an administrative law judge’s decision to revoke Keyo Sellers’ probation. Attorney Clayton Kawski represented the DOC at oral arguments before the Supreme Court. Attorney Elizabeth Pierson appeared on behalf of the DHA at the hearing. Attorney Daniel Drigot appeared on behalf of Sellers. The DHA is a quasi-judicial, independent entity within the Department of Administration that oversees a panel of administrative law judges, including those who preside over probation revocation hearings. In the DHA’s opinion, the judge had revoked Sellers’ probation on scant, inadmissible evidence. In June 2019, Sellers was placed on probation for a drug conviction. Almost three years later, the DOC initiated revocation proceedings after Sellers was charged with sexual assault and other violations. According to the allegations described in court filings, Sellers, while masked, sexually assaulted an unnamed victim, stole $30 from her, and returned to her home a week later as shown on home security footage. The victim could not identify him definitively, but both his probation officer and ex-wife identified him in the home security footage and made out-of-court statements. Sellers denied the sexual assault and trespass on the victim’s property. At the probation revocation proceedings, the ALJ considered Y-STR DNA evidence. Y-STR DNA evidence is inherently less specific that usual DNA evidence, as it compares DNA location on the Y chromosome exclusively. DNA collected from the victim after the sexual assault indicated that one out of 278 African American males would have a consistent profile, meaning that in Milwaukee, based on census data, 389 African American males would match the profile. According to Kawski, the DOC declined to call the victim to testify at the revocation proceeding, and did not even ask her to testify, out of concern that testifying would “re-traumatize” her and because she could not definitively identify Sellers as her assailant. The ALJ presiding over the hearing believed that the Y-STR DNA evidence coupled with the out-of-court, “hearsay” statements of the probation officer and ex-wife were sufficient to find it more likely than not that Sellers committed the crimes and therefore revoked Sellers' probation. Sellers appealed the ALJ’s decision to DHA, which found that without testimony from the victim, the only credible evidence of nonconsent to the trespass and sexual assault was inadmissible hearsay, which deprived Sellers of his constitutional right to confrontation. The DHA believed that the DOC’s decision not to call the victim as a witness was not due to any “difficulty, expense, or other barrier to obtaining live testimony,” as required under the legal standard of “good cause” for not calling her. The good-cause standard protects an individual’s limited right to confrontation in probation revocation cases. The revocation proceedings before the administrative law judge occurred separately from proceedings on the merits of the charges in court. Ultimately, Sellers was convicted at trial and sentenced to more than 30 years in prison. “So why are we here?” asked Justice Jill Karofsky about the appeal on the revocation matter. “He owes the state more time,” said Kawski. He added that the case in front of the Supreme Court was the only thing maintaining the DOC’s supervision of Sellers on the old drug case. Kawski also argued that the Supreme Court had not opined about the standard governing evidence at probation revocation hearings in more than a decade. “Without relying on the hearsay evidence of the victim, which (the administrative law judge) couldn’t do without violating Mr. Sellers’ constitutional rights, the rest of the allegations did not prove DOC’s allegations,” Pierson argued in response. “To show good cause . . . they have to show that there is a difficulty, expense, or other barrier and then that gets balanced against the constitutional rights of the accused,” said Pierson. Oral arguments focused heavily on the sufficiency of the evidence and whether the DOC had good cause for not calling the victim to testify at the revocation hearing. Chief Justice Ziegler and Justices Rebecca Dallet, Janet Protasiewicz and Jill Karofsky are all former prosecutors. Dallet and Karofsky said the “unfamiliar” DNA evidence probably cut against DOC. “You’re putting a lot of weight in the reliability of the proffered evidence,” Karofsky said to Kawski. However, she also remarked that avoiding re-traumatization of the victim “feels like that fits the exception” for good cause. Kawski repeatedly insisted on the sufficiency of the DNA evidence and said “the more reliable the evidence is, the less is necessary for the state to show.” Pierson said the DHA relied on the fact that the victim was never even asked to testify. “There was nothing to suggest that she was asked and declined,” Pierson said. “We need something more than DOC’s word,” she said. Pierson insisted that however the court applies the standard governing good cause, “it cannot be that low.” Drigot insisted at oral argument that the DOC was asking the court to create an exception for out-of-court statement use at probation revocation hearings that does not currently exist. A finding that good cause excused the DOC from calling or even asking the victim to testify would be “an opinion on whether that’s what the law should be, but not the rule right now,” said Drigot. The justices gave no hints on where they will land, though Justice Brian Hagedorn said he was “not convinced we need to change (the standard) in any way.”  By Margo Kirchner
Just nine judicial races across Wisconsin were contested in yesterday's elections. Susan Crawford’s win in the Wisconsin Supreme Court race, of course, made headlines in Wisconsin and nationally. But what happened in the other eight races, all in circuit court? Here are the results based on still-unofficial reports from the respective counties. The Marinette County and Racine County outcomes were quite close. Jefferson County Branch 1: Incumbent Will Gruber beat challenger John Jack Chavez almost 2-to-1 in the vote count. Jefferson County Branch 2: Incumbent Theresa Beck held off challenger Jennifer Weber, with only about 1,100 votes separating them. La Crosse County: Joe Veenstra edged out Eric Sanford for an open seat on the bench, with about 1,500 votes separating them. Marinette County: Incumbent Peggy Miller held off challenger DeShea Morrow, winning by just 138 votes out of almost 14,000 votes cast in that race. Racine County: Challenger Jamie McClendon beat incumbent Jon Frederickson by just 55 votes out of more than 60,000 votes cast in that race. St. Croix County: Brian T. Smestad prevailed over Heather M. Amos for an open seat, with a difference of about 2,750 votes. Waukesha County Branch 4: Challenger David Maas won against incumbent Bridget Schoenborn, 51.4% to 48.1%, with about 5,500 votes separating them. Waukesha County Branch 6: Zach Wittchow prevailed over former judge Fred Strampe, 57.9% to 41.7%, for the open seat currently held by Brad Schimel. |
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