|
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. Case: Rabiebna v. Higher Educational Aids Board Majority: Justice Annette Kingsland Ziegler (20 pages), joined in full by Justices Rebecca Grassl Bradley, Brian K. Hagedorn, and Janet C. Protasiewicz, and joined as to four paragraphs by Chief Justice Jill J. Karofsky, Rebecca Frank Dallet, and Susan M. Crawford Concurrences: Karofsky (11 pages), joined by Crawford; Dallet (8 pages), joined by Karofsky and Crawford  Ziegler Upshot We conclude that . . . the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we affirm the court of appeals’ decision that the statute is unconstitutional and conclude that HEAB (Wisconsin's Higher Educational Aids Board) is enjoined from operating the Grant Program. Background The Grant Program is a financial need program that provides grants to particular race-, national origin-, ancestry-, or alienage-based groups of students. HEAB administers the Grant Program. In 1985, Wisconsin’s legislature enacted WIS. STAT. § 39.44 to provide taxpayer-funded grants through the Grant Program for “Black American,” “American Indian,” and “Hispanic” undergraduate students enrolled in Wisconsin private, nonprofit universities and colleges. In 1987, the legislature expanded the Grant Program to a student “admitted to the United States after December 31, 1975, and who either is a former citizen of Laos, Vietnam or Cambodia or whose ancestor was or is a citizen of Laos, Vietnam or Cambodia,” and to students attending Wisconsin’s technical colleges. . . . Additionally, grant eligibility requires the student to also be: a citizen or permanent resident of the United States; a Wisconsin resident; and “enrolled as a sophomore, junior or senior on at least a half-time basis in a technical . . . or a private [college] in Wisconsin eligible to participate in the grant program.” A student’s “grant award shall not exceed $2,500 per academic year,” and students are eligible for a grant for up to eight semesters. Students who are not Black American, Hispanic, American Indian, Laotian, Cambodian, or Vietnamese are categorically ineligible for any grant under the Grant Program. The Taxpayers object to their tax dollars being spent in a racially discriminatory manner. The Taxpayers sought a declaratory judgment that the Grant Program violates the Equal Protection Clause of the United States Constitution and Article I, Section 1 of the Wisconsin Constitution because students belonging to the preferred racial, national origin, ancestry, or alienage groups are eligible for the grants, while students of other racial, national origin, ancestry, or alienage groups are not. The parties filed cross-motions for summary judgment, addressing standing as well as the constitutionality of the Grant Program. *** The circuit court determined that the Taxpayers have standing to challenge the Grant Program, but upheld it as constitutional under Grutter v. Bollinger (a U.S. Supreme Court case), because HEAB “has a compelling interest in attaining in [sic] a diverse student body,” and “[t]he Grant Program promotes the diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate.” . . . *** While the case was pending in the court of appeals, the United States Supreme Court issued SFFA (Students for Fair Admissions, Inc. v. President & Fellows of Harvard College). In SFFA, the Supreme Court struck down two universities’ practice of using race-based classifications to make college-admission determinations, concluding that the practice violated the United States Constitution’s Equal Protection Clause. . . . Bound by the Court’s ruling in SFFA, the court of appeals held that the Grant Program violated the Equal Protection Clause’s core principles and struck down the Grant Program as unconstitutional. Applying SFFA, the court of appeals held that diversity is no longer a compelling interest in higher education and concluded that the Grant Program is materially indistinguishable from the race-based admissions programs invalidated in SFFA. The court of appeals reversed the circuit court and enjoined HEAB from administering the program. Guts We hold that the Taxpayers have standing. In Wisconsin, taxpayers may challenge the illegal expenditures of public funds. In taxpayer actions, the complaining taxpayers must allege that the “taxpayers as a class have sustained, or will sustain, some pecuniary loss.” Because “a taxpayer [has] a financial interest in public funds . . . akin to that of a stockholder in a private corporation,” “[a]ny illegal expenditure of public funds directly affects taxpayers and causes them to sustain a pecuniary loss.” “This is because it results either in the governmental unit having less money to spend for legitimate governmental objectives, or in the levy of additional taxes to make up for the loss resulting from the expenditure.” The fact that the loss to any one, individual taxpayer may be minimal does not defeat standing. *** The following paragraphs were not joined by Karofsky, Justices Dallet and Crawford but remain the majority opinion: At the heart of the Equal Protection Clause is the principle that race-, national origin-, ancestry-, or alienage-based discrimination is unconstitutional except in the most extraordinary instances where such a remedy is required. That requires all individuals to be treated equally without regard to one’s race, ancestry, origin, or ethnicity. Under the Equal Protection Clause, the government must treat each citizen as an individual—not as one member of a class. The Constitution requires that every person “must be treated based on his or her experiences as an individual—not on the basis of race.” Consequently, “no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” *** Statutes discriminating upon race . . . require the government to satisfy strict scrutiny’s two-step analysis. First, the racial classification must be used to “further compelling governmental interests.” Second, it must be “narrowly tailored,” i.e., “necessary,” to achieve that interest. If the statute fails at either step, then the statute fails strict scrutiny. *** We hold that HEAB has failed to demonstrate that the legislature’s goals of increasing diversity and equalizing educational opportunities for certain students are compelling in this instance. In the circuit court, HEAB argued that “the reason for the Grant Program, from its genesis, is to retain a diverse population of lawfully admitted students, who otherwise fail to remain in their programs at disproportionally high rates.” In HEAB’s view, “[t]he Grant Program serves the compelling interest of promoting the diversity of student bodies by helping minority students with financial need remain enrolled in school and graduate.” Under Grutter v. Bollinger, HEAB posited that the first “prong of strict scrutiny is met, as the [United States] Supreme Court has repeatedly held diversity in higher education is a compelling interest.” *** Here, HEAB’s first asserted interest—promoting the diversity of student bodies by helping minority students with financial needs remain enrolled in school and graduate—fails. At the statute's inception, the legislature sought to promote diversity in higher education by retaining a diverse population who fail to remain in the state’s higher educational programs at disproportionally high rates. Certainly, objectives rooted in diversity might seem compelling. But the SFFA Court concluded that the objectives identified by the universities as flowing from a diverse student body were “not sufficiently coherent” to constitute a compelling government interest. Here, HEAB has not even identified any objectives or benefits it hopes to promote or achieve through diverse student bodies at private and technical colleges. Thus, it is left to argue that diversity is a compelling interest in and of itself, a position that lacks support under current law. And, HEAB has failed to demonstrate how its second asserted interest—equalizing education opportunities for certain students by offering them financial aid—was compelling when the statute was enacted. Ensuring that all public educational opportunities are offered to all students is vital to a free and fair nation. The schoolhouse doors should be open to all. But before the government may impose a race-, national origin-, ancestry-, or alienage-based remedy, it must demonstrate through previous government-sanctioned discrimination, regulatory discrimination, legislatively demonstrated statistical findings, or otherwise that the problem it seeks to remedy actually existed when the statute was passed. None of HEAB’s data is from the time of the statute’s enactment. Its support stems from data produced decades later. HEAB’s data shows that between 2015 and 2016, 80% of students who received financial aid from the Grant Program either completed or were continuing toward completing their degree or certificate. Similarly, recipients’ graduation or retention rates were 85% in 2016 to 2017, 77% in 2017 to 2018, and 80% in 2018 to 2019. For Wisconsin technical colleges, HEAB asserts that “grant recipients graduated at more than double the rate of students who did not receive a grant, 69% to 29%.” Between 2019 and 2020, “85% of grant recipients reported that, without it, they either would not have been able to attend school, or would have faced difficulties in doing so.” *** Regardless of whether a compelling interest might exist, the Grant Program still fails because the statute is not narrowly tailored. Strict scrutiny’s second step requires the court to analyze whether the means chosen are narrowly tailored to achieve the legislature’s ends. Those “means . . . must be specifically and narrowly framed to accomplish that purpose.” *** According to HEAB, the Grant Program is narrowly tailored because “[i]t identifies specific groups with college attrition rates far above those of White and Asian students and creates very small, need-based scholarships to address that problem.” It provides statistics and experts’ opinions in support of its position that “a mere focus on socioeconomic status and using need as a basis would not provide the results that the schools currently obtain through the use of the [Grant] Program.” But HEAB’s argument fails to meet a narrow tailoring analysis, as it failed to “consider[] workable race-neutral alternatives.” And HEAB’s Grant Program is not narrowly tailored to achieve either of HEAB’s asserted interests. When the government is seeking to further a diversity interest in the higher-education context, the government may not use race as a dispositive factor. Instead, the government’s program may use race as one factor of many, but must “remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application.” Because the Grant Program’s statute uses race as the dispositive factor for either of HEAB’s asserted interests, neither survives. Under the Grant Program, race is not but one factor in a “highly individualized, holistic review”; race is the only factor. Either a student is, or is not, a member of the preferred racial group. Whether such financial benefits to an asserted interest in diversity or an equalization of education opportunities, making race the dispositive factor—and not one factor in a holistic review of each individual student—is fatal to HEAB’s case. The importance of this individualized consideration in the context of a race-conscious higher education program is paramount.   Karofsky Karofsky Concurrence In the wake of the Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified as part of the Reconstruction effort. The Fourteenth Amendment granted citizenship to formerly enslaved people, ensured the due process of law, and applied equal protection of the law to state governments. The Fourteenth Amendment embodies the aspirations of a country seeking to heal after being torn apart by the evils of slavery and the Civil War. Rather than turn a blind-eye to the scourge of racism and slavery, the Fourteenth Amendment’s Equal Protection Clause faces it head-on by demanding change and requiring equal protection of the laws for all people. Inherent in its language is a recognition of the wrongs of prejudice, discrimination, and injustice. The Fourteenth Amendment represents a nation striving to be a more perfect union. From the time it was ratified, forces worked to undermine the Fourteenth Amendment, and those forces succeeded in creating a racist retrenchment that has continued to the present. Today, 150 years after its ratification, some of our highest institutions continue to disregard the foundational promise of equality and continue to pull our nation backwards. Why have we not learned from our past? Why are we not willing to recognize the harms this country has caused to those who are marginalized, disempowered, or disenfranchised? Why, instead of wielding the Equal Protection Clause as a sword against racism, do we employ it to shield against the promise of equality for all? The answer appears to be because we have failed to fully recognize how societal and governmental practices have long continued to enforce a preference for White Americans and to burden Black Americans and those of other disadvantaged races or backgrounds. A recent example of that failed recognition is Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. In SFFA the U.S. Supreme Court ruled that race-based affirmative action programs in college admissions violated the Equal Protection Clause. The Court reasoned that under the Equal Protection Clause all government action must be color blind because “[e]liminating racial discrimination means eliminating all of it.” The Court explained that, “[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.” In concluding, the Court observed that universities have for too long “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin. Our constitutional history does not tolerate that choice.” In short, the Court ruled that it is racist to remedy racism. Karofsky then discusses the dissenting opinions by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson in SFFA, which, she wrote, "handily exposed the fault lines in the majority's opinion." *** I fully recognize and acknowledge that I am bound by the precedent set forth in SFFA and other cases decided by the U.S. Supreme Court when interpreting the Fourteenth Amendment. As such, I concur in the mandate of the majority of this court. Under SFFA, the statute cannot survive strict scrutiny. However, I also choose to write separately. I do so because I find it impossible to ignore the truths that Justice Jackson identifies. Those truths apply to real people here in Wisconsin. *** Educational disparities in Wisconsin are not limited to grades K through 12 and have continued after high school. Petitioners point to documented racial disparities for college-aged students. In the 1980s, Wisconsin documented significant disparities in both enrollment and retention rates between minority students (particularly Black, Hispanic, and Native American students) and White students at four-year public colleges. These problems combined meant that in 1983, degrees conferred upon minority students represented only 2.4% of all degrees awarded. Today, significant retention problems still exist for Black, Hispanic, and Native American students. At two-year institutions, about half of all Asian and White students complete a degree within six years, as compared to only about a quarter of Black students and a third of Hispanic students. Overall, Black students still have 43 percent lower odds of attaining an associate’s or bachelor’s degree as compared to White students after accounting for other factors. Clearly many students of color in Wisconsin leave high school and enter college with distinct disadvantages. That disparity is not about statistics or mere correlation. Rather, that disparity is about a reality where past state-sponsored racism continues to affect educational opportunities, and systemic racism continues to rob non-White people of equal educational opportunities. And as difficult and uncomfortable as that may be for some to acknowledge, it is the truth, and it cannot and should not be ignored. As Justice Jackson explains, requiring the state to “ignore the initial race-linked opportunity gaps . . . will delay the day that every American has an equal opportunity to thrive, regardless of race.” *** Evidence shows the program has been successful in increasing retention rates. HEAB reported that in recent years, between 77% and 85% of grant recipients either continued in school or completed their degree or certificate. For technical colleges specifically, receipt of a grant at least doubled graduation rates for students who received a grant and tripled graduation rates for Black students who received a grant (from 21.4% graduation rates for Black students who did not receive a grant to 64.4% for those who did). According to HEAB, 85% of grant recipients self-reported that without the grant they would have either dropped out of school or had significant difficulties in remaining. Despite this documented success, the grant program’s explicit reliance on race is fatal to its constitutionality for the reasons explained in Justice Dallet’s concurring opinion. A suggested alternative means of maintaining a grant program to improve retention would be to target individuals who are economically disadvantaged, since there is also a statistical correlation between economic disadvantage and low retention rates. While this alternative aligns with the Supreme Court’s ruling in SFFA, it falls short because it does not acknowledge the racial inequality underlying the problem. At bottom, if we truly want to return to the promise of the Fourteenth Amendment, we must first acknowledge inequalities based on race. Then, we must be willing to accept that the “fault and responsibility to remedy” these inequalities lies “with the government and society that perpetuated” them.  Dallet Dallet Concurrence
The state claims that there are disproportionately high dropout rates among Black, Native American, Hispanic, and certain Southeast Asian students at Wisconsin’s private and technical colleges. In an effort to help those students remain in school and graduate, the legislature adopted the statute at issue which provides them with need-based grants. Since eligibility for the grants is limited to students only of certain races, national origin, or alienage, the program is subject to strict scrutiny under the Fourteenth Amendment’s Equal Protection Clause. Plaintiffs, a group of taxpayers argue that the program cannot survive that scrutiny because it is not narrowly tailored to further a compelling state interest. I conclude that the Higher Educational Aids Board, the state agency responsible for administering the program, has not met its burden of establishing that the statute is supported by a compelling state interest, and thus that the program is unconstitutional. That is because the record does not support the Board’s assertions that there is a real-world problem with dropout rates among the eligible students at Wisconsin’s private and technical colleges, or that race, national origin, and alienage cannot be separated from that underlying problem. I write separately to explain this narrow and dispositive conclusion, and because the majority opinion’s efforts to subdivide the Board’s asserted interest into component parts and reject them piecemeal are unnecessary. Dallet discusses the lack of case law on what makes an asserted state interest "compelling." The Supreme Court has devoted more attention to the compelling-interest prong, however, in race-based Equal Protection challenges. To date, the Court has recognized two compelling interests that can justify narrowly tailored race-conscious laws or governmental policies: (1) preventing race riots in prisons, and (2) remedying identifiable past instances of discrimination. Importantly, the Court’s recognition of these interests as compelling in race-based Equal Protection challenges rested on the underlying factual record, and specifically whether that record established both that there was a real-world problem the race-conscious law or policy sought to address, and that race could not be separated from that underlying problem. In other words, the reason a state had a compelling interest in a race-based prison housing policy was in part because it demonstrated that existing racial tensions posed serious safety risks. Relatedly, the existence of a compelling state interest in adopting a race-based remedy for past discrimination depended on a showing of specifically identifiable instances of racial discrimination against individuals. And in both of these situations, race could not be separated from the underlying problem; race was the reason behind the imminent risk of violence in prisons and the prior discrimination against specific individuals. Likewise, the Court has also repeatedly rejected asserted state interests as not compelling when the state lacked evidence of the underlying problem it sought to address, or failed to show that race (or alienage) could not be separated from that problem. For example, the Court concluded that a generalized interest in remedying “past societal discrimination” was not compelling because it was based on “sheer speculation,” and could not “in any realistic sense be tied to any injury suffered by anyone.” Similarly, in rejecting a Texas law prohibiting non-citizens from serving as notaries public, the Court concluded the state’s asserted interests in ensuring familiarity with state law and notaries’ availability for testimony in later proceedings were not compelling. The reason why, the Court explained, was that Texas had no evidence that non-citizens could not familiarize themselves with state law or that “the unavailability of notaries’ testimony presents a real, as [o]pposed to a merely speculative, problem to the State.” The upshot of these cases is that in order for an asserted state interest to be compelling enough to support a race-based (or alienage- or national-origin-based) law or policy, it must be grounded on more than just speculation or unfounded empirical assumptions. Instead, a state has a such a compelling interest only if it establishes, at a minimum, that there is a real-world problem and that race (or alienage, or national origin) cannot be separated from that problem. *** When the legislature first adopted the grant program . . . it did so based on two reports: (1) a 1984 report by a joint committee created by the Superintendent of Public Instruction and University of Wisconsin System President “to study cooperative ways of eliminating or reducing causes leading to under-enrollment of minority students and to study factors affecting retention in post-secondary education;” and (2) a subsequent study conducted by the legislature itself. These reports focused only on data from the University of Wisconsin System, however, and included no information about retention rates for students enrolled in private colleges. Indeed, when discussing the prospect of creating a grant program for certain minority students enrolled in private colleges, the legislature’s report acknowledged that “no evaluation of need [for such a grant program] has been made.” Further, while the legislature’s report included data about enrollment rates of various student populations, it contained no information about retention rates and acknowledged that “[n]o data is available which indicates the need levels of the target population.” Thus, while these sources may have something to say about enrollment or retention at Wisconsin’s public universities, they do not show that students in the eligible groups were dropping out of Wisconsin’s private colleges at disproportionately high rates. *** Data collected in the decades since the statute was adopted fails to fill these gaps, or demonstrate the existence of disproportionate attrition rates among Black, Native American, Hispanic, and certain Southeast Asian students at Wisconsin’s private and technical colleges. To be sure, annual reports prepared by the Board demonstrate that the program is effective in the sense that students who receive grants are far more likely to graduate from college than those who are eligible for grants but don’t get them. But those reports do not include data on retention rates for all students at Wisconsin’s private and technical colleges, or for all such students with financial need. Without that baseline information, these reports provide no support for the Board’s claim that attrition rates are disproportionately higher among the groups eligible to receive grants under the statute. To summarize, when the statute was first adopted in 1985, and when it was expanded in 1987, the legislature had no basis on which to conclude that the eligible students were, in fact, dropping out of Wisconsin’s private and technical colleges at disproportionate rates, let alone that they were doing so for financial reasons. Although data from the decades since supports the conclusion that the program reduces attrition rates among students who receive the grants, that data also provides no basis for concluding that Black, Hispanic, Native American, and certain Southeast Asian students are dropping out of Wisconsin’s private and technical colleges at disproportionate rates. In short, there is no evidence in the record establishing a problem with retention at Wisconsin’s private and technical colleges, or that race cannot be separated from that problem because the eligible Black, Native American, Hispanic, and Southeast Asian students are the ones who are dropping out of those schools at disproportionately high rates. Without that evidence, the Board cannot meet its burden of establishing that the statute is supported by a compelling interest, and the program must therefore be struck down as unconstitutional. This conclusion is dispositive. Whether the interest underlying the statute is framed generally as reducing disproportionate dropout rates, or broken down into separate interests like equalizing educational opportunity and promoting diversity through improving student retention, the result is the same. Without empirical support in the record for the existence of the underlying problem and the fact that race cannot be separated from that problem, the Board cannot establish the existence of a compelling state interest, no matter how that interest is framed. For this reason, the majority opinion’s efforts to subdivide the Board’s asserted interest into component parts and reject them piecemeal are unnecessary. All that needs to be said is that the Board failed to meet its burden of establishing a compelling state interest in this case. *** Nevertheless, there is still some room for optimism. If the Supreme Court considers it self-evident that the government has a compelling interest in, for example, preserving “public confidence in judicial integrity,” or “protecting the integrity of the Medal of Honor,” then it certainly ought to conclude that states have a compelling interest in ensuring that all of their students—regardless of race, national origin, alienage, or anything else—stay in school and complete their education. Indeed, as the Court put it in Brown v. Board of Education of Topeka, “it is doubtful that any child may reasonably be expected to succeed in life if he [or she] is denied the opportunity of an education.” The state’s interest in ensuring equal access to educational opportunity is no less meaningful when the barriers to obtaining a degree today may be financial, rather than legal or social. Despite Plaintiffs’ counsel’s assertions at oral argument to the contrary, the Supreme Court has never said that two and only two compelling interests—preventing race riots and remedying past instances of discrimination against specific individuals—could ever justify race-conscious government policies. Thus, while the Board here failed to demonstrate a compelling interest in adopting this statute to address disproportionately high attrition rates among Black, Hispanic, Native American, and certain Southeast Asian students at Wisconsin’s private and technical colleges, the result may be different for other laws with greater factual support. Accordingly, I respectfully concur.
0 Comments
 Entrance to the Wisconsin Supreme Court hearing room at the Wisconsin Capitol in Madison. Photograph by Alexandria Staubach. Ziegler By Alexandria Staubach
The Wisconsin Supreme Court has revoked the licenses of three attorneys this year, and in each case Justice Annette Kingsland Ziegler wrote an identical short concurrence highlighting that when the high court revokes a license, it may not have the effect the public thinks. “I write separately to point out that in Wisconsin the ‘revocation’ of an attorney’s law license is not truly revocation because the attorney may petition for reinstatement after a period of five years,” said Ziegler in each concurrence. “I believe that when it comes to lawyer discipline, courts should say what they mean and mean what they say,” she wrote. The concurrences were joined by Chief Justice Jill Karofsky and Justices Rebecca Grassl Bradley, Brian Hagedorn, and Janet Protasiewicz—thus, a majority of the court. The attorney conduct in question ranged from sexual advances made toward two incarcerated clients, to the sexual assault of a client’s ex-partner in a courthouse, to a repeated pattern of converting client funds into personal funds totaling $671,545 over years. Revocation is the most extreme sanction imposed by the high court. Supreme Court Rule 22.29(2) governs petitions for reinstatement after license suspension or revocation. It provides that an attorney whose license has been revoked can petition for reinstatement after five years. The Court has heard petitions for changes to the rule, most recently in 2019. Then, the Office of Lawyer Regulation petitioned the Supreme Court to permit permanent attorney license revocation. The court denied the petition. Ziegler dissented at that time, joined by Grassl Bradley and Hagedorn, saying there may be cases warranting permanent revocation of an attorney’s license. “For me, the purpose of a permanent revocation is far more about protection of the public, including the public's trust and confidence in the legal system, than it is about punishing the lawyer,” wrote Ziegler then. While it is true a petition for reinstatement can always be denied by the court, Ziegler argued the mechanism wastes the time and resources of everyone involved. “The option of permanent revocation as one of a number of permissible sanctions for lawyer misconduct would enhance the public's confidence in the disciplinary system,” she wrote then. Grassl Bradley’s term ends in less than two months. But the inclusion of Karofsky, Hagedorn and Protasiewicz in Ziegler’s recent dissents suggests that a similar rule petition to create a permanent revocation penalty could succeed with the current court. Ziegler is set to retire at the end of July 2027, after serving 20 years on the court. She has said she will not run for reelection this coming April. By Alexandria Staubach James Grandberry’s criminal case has been filled with delays. Nearly one year ago, Grandberry filed a motion for interlocutory appeal to District III of the Wisconsin Court of Appeals, challenging the decision of the Brown County Circuit Court to not dismiss his case. The appeal comes nearly two years after Grandberry’s initial arrest and concerns the 468 days he sat in jail waiting for a preliminary hearing before counsel could be appointed. During that period, the trial court made several findings of good cause for delays due to the lack of counsel for Grandberry. During that period, Grandberry filed two motions to dismiss on his own, the first coming more than 200 days into his incarceration. The trial court denied the motions. Exacerbating matters, Grandberry sat without knowing the contents of the criminal complaint against him. The complaint, which was filed under seal, outlined a large-scale drug-dealing operation, in which Grandberry was allegedly a central player. At least four of Grandberry’s alleged coconspirators fully resolved their criminal cases before Grandberry ever saw the complaint or had counsel appointed, according to the appeal. An interlocutory appeal happens before a case is litigated all the way through to judgment. It allows parties to contest trial court decisions before proceeding further in the case. For Grandberry, the questions on appeal are whether his case should have been dismissed and whether he should have been released at some point rather than held in custody, and how to incentivize courts to prevent these situations moving forward. “Delays in finding appointed counsel are not unique to this case; indeed, it’s a tragic reality played out in hundreds of cases across the State,” wrote Grandberry’s appellate attorney, Joseph Bugni, in the appellate brief. He called on the higher court to clarify what should happen when appointment of counsel is delayed. Wisconsin law ordinarily requires an in-custody defendant to receive a preliminary hearing within 10 days. The Wisconsin Supreme Court wrote in a 1993 case that the preliminary hearing procedure is designed to prevent, among other things, oppressive or malicious prosecution, public expense of a trial, and a defendant’s humiliation and anxiety from a public prosecution, while uncovering whether substantial grounds exist for prosecution. In 2021, in State v. Lee, the District III Court of Appeals identified a multi-factor test to determine whether good cause exists to hold an individual in custody to continue a preliminary hearing when an attorney cannot be located to represent them. Lee sat unrepresented for a comparatively paltry 110 days. “The failure to hold a preliminary hearing within the prescribed time results in a loss of personal jurisdiction,” the Court of Appeals wrote in Lee. The court held that such cases can be dismissed without prejudice. Grandberry asks the appellate court to view what happened to him as more than a failure of procedure—instead as a matter of constitutional law. He asks the appellate court to render a decision acknowledging that constitutional rights are violated when individuals are indefinitely detained without appointment of counsel. Case law demonstrates the “indisputable fact that the denial of timely appointed counsel prevents a criminal defendant from exercising his rights and defending his liberty,” Bugni wrote. These types of constitutional violations warrant two rules from the Court of Appeals, according to Grandberry: one to release defendants on bond if counsel cannot be appointed for preliminary hearing within seven days, and another providing, in situations like Grandberry’s, a hearing to determine whether delay in appointment of counsel has prejudiced the defendant. If so, then the case should be dismissed with prejudice. Bugni asked the court to “make clear that when the delay prejudices the defendant, that the response is not: we can do better.” He identified the incredible delay in appointing counsel for Grandberry, “4,460% over what the legislature had demanded,” which he argued clearly prejudiced Grandberry. Bugni wrote that on behalf of Grandberry, “and every person sitting in jail, endlessly waiting for what the Constitution promises them,” the case should be remanded not just for dismissal but with a prophylactic rule that will give Lee teeth. “Here and across Wisconsin, the inaction in protecting Grandberry’s and countless other defendants’ rights has been tolerated because the delay has not been met with consequences to the State,” wrote Bugni. Bugni told WJI by email that he and his firm are “very pleased to help Mr. Grandberry in this important case. No one should have to wait for an attorney.” The Lee factors for whether to hold a person in custody pending a preliminary hearing or to dismiss the case include: • The reason the State Public Defender has not yet identified counsel, be it the complexity of the case or the extent of SPD’s efforts, • How long SPD estimates it may take to find a lawyer for the case, • Whether other means of appointing counsel have been explored, such as appointment of counsel by the court directly, • The cost to the community of continued incarceration, • Prejudice to the defendant, • Any special circumstances of the defendant, and • Whether continued delay will undermine the purpose of a preliminary hearing. Lee did not include the constitutional due process argument Grandberry makes. The state agrees that Grandberry’s case should be dismissed pursuant to Lee. “The circuit court’s on-the-record good cause findings did not comply with Lee’s stringent requirements,” wrote Assistant Attorney General Nicholas DeSantis in the state’s reply brief. But DeSantis disagreed that the Court of Appeals should go any further regarding dismissal with prejudice. “Grandberry is asking this Court to rewrite statutes and legislate from the bench,” wrote DeSantis. The National Association of Criminal Defense Lawyers, Wisconsin Association of Criminal Defense Lawyers, the SPD’s office, and a jailhouse attorney, Logan N. Green, have all filed amicus (friend-of-the-court) briefs or comments to the court on the case. “Heaping these consequences on an accused and blithely waiting weeks, months, or years before affording accused individuals their right to counsel and due process is patently unfair in a society where guilt is not presumed,” wrote Green. He wrote that “courts must stop acquiescing to these violations of the Constitution and taking an ostrich defense. It is time to uphold the constitution like they swore an oath to do—and stop suspending it.” Whether or not the Court of Appeals agrees with Grandberry, the appeal effectively demonstrates the slow and frustrating churn of time for those awaiting appointment of counsel, and indifference to the purpose of a preliminary hearing. “When a defendant is stuck in custody, without a lawyer, and without access to even the allegations . . . the denial of counsel through delay violates the very process Grandberry was due,” Bugni wrote. In conclusion, Bugni wrote that Lee was intended as a “wake up call: a clear warning against rote unexamined good cause findings for putting off the preliminary hearing and perpetuating an endless cycle of delay.” “The lower court missed the memo,” he wrote. Grandberry remains in custody during the appeal. The timeline of Grandberry's case as set out in his brief:   By Erik Reinthaler, WJI Intern
A Dane County judge heard arguments in early June in a case that could expand absentee voting options for thousands of Wisconsin voters with print disabilities. At the heart of the dispute is whether voters who cannot independently read or mark a paper ballot must reveal their choices to another person to vote absentee. Disability Rights Wisconsin, the League of Women Voters of Wisconsin, and four Wisconsin voters brought the case against the Wisconsin Elections Commission. The case, assigned to Dane County Circuit Judge Everett D. Mitchell, could reshape how Wisconsin administers absentee voting for voters with print disabilities. At the hearing, the plaintiffs argued that Wisconsin's current absentee voting system denies them the same independence enjoyed by other absentee voters. Most absentee voters may cast a ballot from home privately and independently. But voters with print disabilities often must rely on another person to read, mark, or return a paper ballot. "We're here today because plaintiffs and the print-disabled voters of Wisconsin cannot vote on the same terms as all other Wisconsinites," Scott Thompson of Law Forward told the court. "That is discrimination." Thompson discussed plaintiffs Stacy Ellingen, who has cerebral palsy and cannot mark a ballot on her own; Tyler Engel, whose spinal muscular atrophy prevents him from independently completing a paper ballot because of weakness in his hands; and Michael Christopher and Donald Natzke, both legally blind, who rely on others to assist them with absentee voting. "The point really is not whether they can or cannot vote at all," Thompson said. "It's about whether they're having the same opportunities and benefits of the service provided." Other Wisconsin voters take for granted that they can cast a ballot without disclosing their choices to another person. He described the ability to vote from home without disclosing ballot choices to another person as being "at the heart of American democracy." He also pointed to Wisconsin's constitutional guarantee of a secret ballot. Thompson argued that the ADA requires public entities to provide people with disabilities meaningful access to the benefits of a public program. He said that means voters with print disabilities should access Wisconsin's at-home absentee voting system on the same terms as voters without disabilities. WEC rejected that characterization, saying that plaintiffs’ case comes down to preference rather than access. Assistant Attorney General Rachel Bachhuber pointed to multiple avenues for disabled voters to cast ballots. Absentee voting with assistance, in-person absentee voting, and Election Day voting all provide meaningful access to Wisconsin's voting system, she argued. While plaintiffs seek a private and independent method of voting absentee from home, the ADA does not entitle voters to their preferred accommodation, Bachhuber argued. Bachhuber said state law already provides meaningful access to voting and that the accommodation sought by plaintiffs would require Wisconsin to build an entirely new voting system. Although Wisconsin provides electronic ballot delivery to certain military and overseas voters, electronic ballot delivery differs from electronic ballot return, she said. The latter would require creation of a new service rather than an expansion of an existing one and would raise cybersecurity concerns. Plaintiffs dismissed those concerns as speculative, arguing that election officials had identified no evidence that electronic absentee voting systems had been used to alter election outcomes. They maintained that accessible electronic voting technologies already exist and could be implemented without fundamentally altering Wisconsin's election system. Bachhuber, though, argued that internet ballot return introduces vulnerabilities that do not exist in Wisconsin's current paper-based absentee voting system and that election officials "should not have to wait for a compromised election to take concerns seriously." She said that implementing a secure system would require substantial development, testing, training, and ongoing maintenance and could cost millions of dollars. Thompson repeatedly cited estimates suggesting that approximately 110,000 Wisconsin voters may have print disabilities and could benefit from the requested accommodation. Bachhuber questioned the reliability and significance of those estimates and argued that even a limited electronic voting system would introduce cybersecurity risks and administrative burdens extending beyond the voters who would ultimately use it. The hearing concerned motions for summary judgment filed by both sides in the case. At the end of the hearing, counsel agreed to remove upcoming trial dates from the calendar while Judge Mitchell considers the pending motions. Mitchell indicated that he expects to issue a decision in August. Note: If this case sounds familiar, you may have heard about prior proceedings in the matter. Mitchell in 2024 issued a temporary injunction, ordering WEC to provide electronically delivered, accessible ballots for print-disabled voters who requested them. However, his decision was reversed by District II of the Wisconsin Court of Appeals in 2025. The appellate court sent the case back to Mitchell for further proceedings.  Entrance to the Wisconsin Supreme Court. Photograph by Margo Kirchner. By Alexandria Staubach Wisconsin Supreme Court Chief Justice Jill Karofsky last week made good on a November 2025 promise to hold a public hearing regarding judicial recusal rules. The hearing on June 4 addressed a rule change petition filed by five retired judges regarding recusals related to campaign donations. Sarah B. O’Brien, John W. Markson, Richard G. Niess, J. David Rice, and Richard J. Sankovitz filed the petition in January. Karofsky opened the public hearing by quoting comments submitted by Wisconsin Justice Initiative Action in support of the rule change. Karofsky said these WJI Action comments “put it well”: When people trust the judicial system, they are more likely to accept court decisions and maintain confidence in the rule of law. If the public believes our judges and justices are fair, impartial, and free from influence by money or politics, they are more likely to follow the law, serve on juries, and engage with the legal process in good faith. Without that confidence, compliance weakens and the authority of the law is diminished. At an open conference immediately following the hearing, the court determined that a new rule, if any, will take shape after further study. The Supreme Court indicated it would create a committee to examine the issue. A written order setting up the committee is expected in the near future. The hot bench during the three-hour hearing raised multifaceted questions about the nature of judicial campaigns in Wisconsin. Two questions drove the hearing: what judges or justices can say about their values when campaigning and whether significant campaign contributions are grounds for recusal. Justice Rebecca Grassl Bradley voiced heavy skepticism and asked petitioners’ representative Niess whether he thought “it’s impacted the reputation of the court to have justices that freely express how they feel about issues that they know are going to come before the court.” Niess said that on the question of campaign speech, “for better or worse the judges in this state are elected and the electorate needs to be fully informed about what the past positions of candidates have been on all issues.” “The problem that we are trying to resolve, in part, is the public perception that the court can be for sale. It isn’t a universal perception, but it is a broad-based perception. Part of the problem is that there is very little discussion by this court when it chooses not to recuse,” he argued. Since Citizens United, the U.S. Supreme Court decision that characterized corporate campaign spending as free speech, both statements and spending have been considered to raise constitutional questions. In their written memorandum supporting the petition, the retired judges indicated that the proposed amendments mainly “flip the implied presumption to favor recusal where the source or amount of any campaign contribution or independent communication raises an objectively reasonable question about a judge's ability to preside on a case impartially.” The proposed changes would also clarify “that statements of a judge or judicial candidate, other than those that expressly commit the speaker to rule on a case or issue in a particular manner, are not grounds for recusal,” they said. “It might make sense what you’re saying if someone is going to rule as a judge consistent with what their values are, perhaps that should be something they say to the public,” said Justice Annette Ziegler at the hearing. “But if someone is not a judge that is going to rule based on their personal values and instead just look at the law and figure out what the law says and reach a conclusion based solely on the law and the facts in that case, then your personal opinion is absolutely irrelevant to the determination you make as a judge.” Niess disagreed. “If the law is clear the law has to be followed irrespective of the personal beliefs of the judge,” he said in response. But he noted that “there are so many areas where the law is not clear and you are attempting to clarify it, and whether or not you think it is appropriate to bring your values to bear, they are going to somehow inform your view on the intricacies between these various issues that are not resolved by the current law.” “The personal beliefs (of a judge) are relevant to the electors to the people of the state of Wisconsin to decide who they want on their court,” he said. Karofsky seemed to agree with Niess on the point. “We have all looked at the law and wished it said something different than it says, but I took an oath to uphold the constitution of the United States and the state and the statutes,” said Karofsky. “I think you the voters deserve to know who I am as a person and I will make a commitment to continue to follow the rule of law when I put on a black robe and sit behind the bench,” she said. Justice Brian Hagedorn wrestled with the Niess over the petition’s objective. “A lot of this feels like PR coverage to me that doesn’t really do anything,” said Hagedorn. “I’m trying to figure out what problem you’re trying to solve that isn’t being resolved, who should have recused that’s not recusing.” “These things were not problems historically,” said Hagedorn, talking about deep conflicts of interest without recusal in the early days of the U.S. Supreme Court. Because the proposed rule change would restrain discretion around campaign contribution recusals, Hagedorn asked what kind of climate the state is encouraging regarding campaigns. “What kind of legal culture do we want in Wisconsin?” he asked. “Do you think we should be concerned at all about greenlighting what’s become of our elections?” While much of the hearing focused on what judicial candidates say on the campaign trail, Justice Rebecca Dallet was quick to point out that campaign spending has long signaled political alignment and personal values. “Doesn’t money communicate values?” she asked. “How are we opening up some flood gate or greenlighting?” “If you’re taking money from the Republican party, that communicates something, or the NRA,” she said. Current campaign-related recusal rules were drafted by Wisconsin Manufacturers and Commerce in conjunction with the Wisconsin Realtors Association. They were adopted with little change by a conservative Supreme Court in 2010, according to the memorandum filed by the petitioners in support of the rule change. WMC is historically a significant donor to conservative candidates. The current rules “foster a presumption against recusal based solely on the source or the amount, however large,” they wrote. Since 2010, “the amount of money contributed to Supreme Court elections, and even to some circuit court elections, has exploded,” they wrote. While record breaking spending occurred in 2007 and 2008, spending has continued to rise in the wake of the rule change. Wisconsin’s 2023 Supreme Court election between Justice Janet Protasiewicz and former Justice Daniel Kelly broke national records as the most expensive race in U.S. judicial election history, with $51 million in spending by the campaigns and third parties. The 2024 Supreme Court race between now-Justice Susan Crawford and Judge Brad Schimel broke the record again, with more than $100 million in spending by the campaigns and third parties. “It is not a stretch to conclude some cause-and-effect relationship,” wrote the retired judges in their memo. WJI Action, an advocacy ally of Wisconsin Justice Initiative, submitted written comments in support of the petition. As indicated by the quotation Karofsky read, WJI Action focused on the need for transparency by the judiciary to maintain public trust. WJI Action board member Jill Kastner spoke at the hearing in support of the petition, emphasizing those reasons. "Because this really does impact my practice, it (public lack of faith in the judiciary) can make it more challenging to convince my clients to utilize the justice system as opposed to taking matters into their own hands,” said Kastner. She suggested urgency in strengthening recusal rules. Kastner said she was "not under the false notion” that this proposed rule change would end public perception that judges are bought and paid for. “But an assumption in favor of recusal and greater transparency—that parties are allowed to put forth their evidence and reasoning for recusal—would result in a greater sense of transparency and trust," she said. Several other groups wrote in support of the intent of the petition but worried that the specific changes proposed had the potential to dampen political speech by attorneys and judges, failed to account for political action before any new rule took effect, and could leave courts shorthanded. Supreme Court justices, for instance, do not have substitutes who can step in for them if they recuse. While those commenters generally expressed support for reform, most asked the court not to adopt the rule change petition in its current form. “The proposed rule may swing the pendulum too far,” Law Forward in its written comments to the court. Attorney Rachel Snyder spoke at the hearing on behalf of Law Forward. She called the hearing an "excellent first step" but cautioned against creating a rule that would chill First Amendment speech. Law Forward was also concerned about whether the rule would be retroactive, punishing lawyers and judges for past conduct if changes are made. Attorney Danielle Schroder spoke on behalf of Wisconsin Association for Justice. She urged cautious change. Professor Robert Yablon, co-director of the University of Wisconsin Law School’s State Democracy Research Initiative, suggested at the hearing that the court find "palatable" means to "dispel mistrust when jurists are deciding on their own recusals." He also spoke on more technical concerns with the proposed rule change. Protasiewicz asked him how substitutions should work under a judicial structure in which judges are elected. Yablon suggested the high court in particular might identify a few judges from the lower courts at the start of each session who could be randomly tapped to substitute at the high court if recusal is necessary. With Yablon, Hagedorn returned to questions on whether the recusal rules were in fact creating a presumption that jurists are "not to be trusted." Yablon suggested that a general "slippage of trust that people have generally in institutions" was to blame, having "less to do with the recusal regime and more to do with the influx of money." At the open conference following the hearing, Bradley disagreed with the court’s formation of a study committee. “I oppose the creation of this committee because I think it will ultimately waste the time of all of the members,” she said. “If the committee proposes anything that represents true reform in the recusal arena, the court as currently constituted will never adopt anything that will interfere with the successful formula for electoral success, which is to telegraph how you will rule on cases and receive up to $10 million dollars from a party and then sit on that party’s cases,” she said. WJI Action's comments on the rule petition are found below. By Erik Reinthaler, WJI Intern and Alexandria Staubach A federal judge recently dismissed the U.S. Department of Justice’s lawsuit to force Wisconsin election officials to produce the state’s unredacted voter registration list.  Peterson In a narrow and technical ruling on May 21, Western District of Wisconsin Chief Judge James D. Peterson found that the unredacted list is not subject to disclosure under the Civil Rights Act of 1960. The judge did not address issues of voter privacy.
“While the judge didn’t rule on the privacy issues, the privacy issues that were voiced had a lot of merit as well,” said Law Forward’s Doug Poland on a call with Wisconsin Justice Initiative. “One of the results dismissing it is that the privacy issues won’t be placed in jeopardy.” Ryan Cox, legal director of the ACLU of Wisconsin, said in a press release that Peterson “affirmed what we already know to be true: confidential voter data is protected under the law, and the DOJ can’t just unlawfully order WEC to hand over that information for political purposes.” (WEC is the Wisconsin Elections Commission.) The lawsuit was one in a series of actions the federal government filed against 30 states and Washington, D.C., seeking production of statewide voter registration lists. Wisconsin joins eight other states in which the lawsuits have been dismissed, according to the Brennan Center for Justice, cited in footnote 2 of Peterson’s opinion. In four states, voter lists are either publicly available or the government had been instructed how to obtain them. Many Republican-led states (Texas, Florida and Indiana among others) have committed to or provided complete voter lists voluntarily. The federal government sued WEC and its members after election officials refused to provide an unredacted version of the state’s voter registration list containing driver’s license numbers and Social Security numbers. WEC cited Wisconsin privacy laws in declining the request. According to the complaint, the DOJ contacted Wisconsin election officials in June 2025, referencing complaints it received about Wisconsin’s compliance with federal law governing election administration and voter registration systems. The DOJ requested both a copy of Wisconsin’s voter registration list and information regarding list maintenance procedures. WEC directed the federal government to a publicly available portal containing a redacted version of the voter list and answered questions regarding maintenance procedures, but would not turn over the unredacted list. Peterson’s ruling allows Wisconsin election officials to continue withholding unredacted voter registration data containing sensitive personal information. In court, the DOJ argued that Title III of the Civil Rights Act of 1960 entitled the attorney general to inspect the records. Peterson held that Title III applies to records election officials receive from outside sources, rather than records created and maintained internally by the state. Title III requires election officials to retain only records that “come into [their] possession,” Peterson said. He relied heavily on two recent decisions from federal judges in Michigan and Arizona. Those judges similarly held that voter registration lists are not records covered by Title III. Peterson noted that Title III’s examples of covered records—such as voter applications and poll tax records—are documents submitted by voters rather than internally maintained state databases. Peterson said that Congress primarily sought to preserve records submitted by voters in order to prevent the discriminatory destruction of voter registration applications during the civil rights era. He also described voter registration lists as “living documents” continuously updated under federal law. Two federal acts require states to regularly add eligible voters and remove ineligible voters from their databases. Under the federal government’s interpretation, Peterson observed, election officials could potentially face liability under Title III for “altering” records even though federal law simultaneously requires them to modify registration lists. The DOJ may still appeal Peterson's dismissal of the case. By Alexandria Staubach The Milwaukee Fire and Police Commission’s recent report on 2025 Milwaukee police vehicle pursuits confirms that chases, crashes, and fatalities all increased from 2024 numbers. FPC Executive Director Leon Todd presented the annual vehicle pursuit report at a meeting in late May. Total pursuits by the Milwaukee Police Department, up from 957 in 2024 to 970 in 2025, were described as “a slight increase” by Todd. The number of police pursuits culminating in a dangerous outcome rose. In 2024, 304 police pursuits ended in a crash. In 2025, that number was 321. Nine of those 321 crashes resulted in a fatality, six of which were to a third party (neither the officer nor the suspect), according to the report. No police chase fatalities occurred in 2024, and only one resulted in a fatality in 2023. Reckless driving persists as the primary impetus for vehicle pursuit, composing 76% of all chases, up from 62% in 2024. Speed adds fuel to already dangerous situations, with 70% of all pursuits in 2025 involving police vehicles traveling greater than 75 mph, the report says. “These pursuits are much faster, much more dangerous,” said Todd at the hearing. Police pursuits are controlled by MPD’s Standard Operating Procedure 660. In 2010, public outcry over pursuits ending in injury resulted in a restricted policy. Those restrictions brought pursuit numbers to an all-time low of just 50 pursuits in 2012. Revision of the SOP in 2017 expanded the categories of permitted vehicle pursuits, according to the report. Amendments in 2019 provided additional oversight requirements under limited circumstances and required the tracking of instances where police did not initiate a pursuit, a statistic that is down 17% over the prior year. In 2022, the FPC adopted changes that clarified a pursuit was permissible for instances of reckless driving, again expanding the SOP’s reach.  Graph included in the FPC's 2025 Vehicle Pursuits Report, showing volume of vehicle pursuits over time. This latest report comes almost a year after MPD implemented a rule change that prohibited pursuits in response to suspected drug dealing, intended to rein in some of the 2017 expansions to the policy. Last year, MPD Chief of Staff Heather Hough said, “We continuously look at this to hone in because there is a risk to the community every time we engage in a pursuit” and “we have seen very tragic endings.” Only 18 or 1.86% of the 970 police pursuits in 2025 were related to drug offenses, whereas 31 or 3.2% of pursuits in 2024 were related to drug offenses. In September 2025, the FPC took more than an hour of testimony from the community after a police pursuit ended in a fatal crash the day before. “As it stands, SOP 660 does not benefit this community,” said Milwaukee Alliance Against Racist and Political Repression representative Kayla Patterson at the time. “The last few months highlight gross incompetence” and a “general shameful agenda prioritizing property over lives,” Patterson said. She cautioned that “if the turnout in the room is any indication, the community is getting restless.” No such community showing occurred at the May meeting, and Todd’s summary of the report’s key findings went without comment from the commissioners and MPD. Additional modification to SOP 660 occurred in February, clarifying that vehicles traveling at a reckless speed alone do not warrant pursuit. Instead, a vehicle must also be engaged in collisions with other vehicles or objects, forcing other vehicles to take evasive action to avoid collision, or failing to stop at controlled intersections without slowing or stopping. “This new restriction on vehicle pursuits can be evaluated for its effects in the 2026 Vehicle Pursuit Report,” the report says. |
Donate
Help WJI advocate for justice in Wisconsin
|
RSS Feed