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.
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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 Alexandria Staubach Let’s talk about the other judicial races. While the Supreme Court race has garnered national attention and millions in spending, next week’s ballots also include 53 other judicial candidates. WJI’s blog is archived back to late 2015, and we’ve previously published information on most candidates. Whether it’s coverage of their written opinions, appointment applications to Gov. Evers and former Gov. Walker, or in the case of Lena Taylor coverage of their record in the Wisconsin Legislature, we’ve written something on everyone you’ll find below. Information about judicial candidates can be hard to find and old good information is better than no information. Even if you’ve got an uncontested race on your ticket, WJI encourages you to find your candidates below and check out our previous coverage of them! And of course we’ve written about Supreme Court candidates Susan Crawford and Brad Schimel, too. Look for their names in the categories to the right. COURT OF APPEALS District 2 Mark Gundrum https://www.wjiinc.org/blog/gundrum-derided-settlement-to-end-inmate-abuse https://www.wjiinc.org/blog/walking-faster-is-hot-pursuit-appeals-judge-says https://www.wjiinc.org/blog/judge-gundrum-oks-language-state-rep-gundrum-proposed https://www.wjiinc.org/blog/appeals-court-strikes-down-seizure-overreach https://www.wjiinc.org/blog/state-appeals-court-strikes-down-wisconsin-diversity-aid-grant-program https://www.wjiinc.org/blog/illegal-questioning-taint-disappears-in-minutes-court-says https://www.wjiinc.org/blog/appeals-court-expands-allowable-owi-car-searches https://www.wjiinc.org/blog/racine-firm-improperly-discriminated-because-of-a-criminal-conviction-appeals-panel-rules https://www.wjiinc.org/blog/court-of-appeals-reverses-brad-schimel-in-open-meetings-case https://www.wjiinc.org/blog/its-ok-to-lie-to-trick-cognitively-challenged-man-to-get-a-confession-appeals-court-rules https://www.wjiinc.org/blog/15-year-old-waived-to-adult-court-forburglary https://www.wjiinc.org/blog/man-can-be-charged-as-adult-with-crimes-he-committed-at-9 https://www.wjiinc.org/blog/once-again-most-judicial-races-lack-competitors https://www.wjiinc.org/blog/appeals-court-chides-kenosha-da-excludes-a-dozen-witnesses District 3 Lisa K Stark https://www.wjiinc.org/blog/wow-there-are-limits-to-4th-amendment-loopholes https://www.wjiinc.org/blog/the-february-court-of-appeals-roundup https://www.wjiinc.org/blog/the-appeals-court-in-january-final-roundup https://www.wjiinc.org/blog/community-caretaker-search-claim-slapped-down-by-appeals-court https://www.wjiinc.org/blog/mowing-grass-does-not-require-diggers-hotline-call-appeals-panel-rules https://www.wjiinc.org/blog/post-polygraph-interview-invalidates-confession-appeals-court-rules https://www.wjiinc.org/blog/supreme-court-gets-juvenile-lifers-cases https://www.wjiinc.org/blog/juror-totally-clueless-was-not-confused-appeals-court https://www.wjiinc.org/blog/the-scales-of-justice-an-appeals-court-fish-story https://www.wjiinc.org/blog/court-of-appeals-reads-law-narrowly-denying-confidential-name-change-for-transgender-man https://www.wjiinc.org/blog/appeals-court-declines-to-adopt-new-exception-in-dog-sniff-case https://www.wjiinc.org/blog/police-improperly-prolonged-traffic-stop-to-investigate-for-drugs-appeals-court-rules https://www.wjiinc.org/blog/judge-showed-improper-bias-appeals-panel-says District 4 Jennifer Nashold https://www.wjiinc.org/blog/breach-of-plea-agreement-ineffective-assistance https://www.wjiinc.org/blog/appeals-court-uphold-surcharges-for-crimes-not-charged https://www.wjiinc.org/blog/probation-violations-end-criminal-record-expungement-chances-appeals-court-rules https://www.wjiinc.org/blog/once-again-most-judicial-races-lack-competitors https://www.wjiinc.org/blog/state-court-of-appeals-punts-on-marsys-law https://www.wjiinc.org/blog/appeals-panel-rules-cars-marijuana-or-cdb-smell-did-not-justify-search-of-driver https://www.wjiinc.org/blog/wisconsin-court-of-appeals-oks-resurrection-of-dismissed-conviction-in-impaired-driving-case https://www.wjiinc.org/blog/juneau-county-must-honor-nonprosecution-agreement-of-former-prosecutor-appeals-court-rules CONTESTED CIRCUIT COURT RACES Jefferson County Branch 1 Will Gruber (incumbent) https://www.wjiinc.org/blog/court-of-appeals-upholds-suppression-of-evidence-based-on-improper-seizure https://www.wjiinc.org/blog/meet-the-candidates-for-jefferson-county-circuit-court-branch-1 John Jack Chavez https://www.wjiinc.org/blog/meet-the-candidates-for-jefferson-county-circuit-court-branch-1 Jefferson County Branch 2 Theresa Beck https://www.wjiinc.org/blog/evers-judges-theresa-a-beck https://www.wjiinc.org/blog/what-happened-to-the-jefferson-county-judicial-primary Jennifer L. Weber https://www.wjiinc.org/blog/what-happened-to-the-jefferson-county-judicial-primary La Crosse County Joe Veenstra https://www.wjiinc.org/blog/meet-the-candidates-for-la-crosse-county-circuit-court5900469 Eric Sanford https://www.wjiinc.org/blog/meet-the-candidates-for-la-crosse-county-circuit-court5900469 Marinette County Peggy Miller (incumbent) https://www.wjiinc.org/blog/evers-judges-peggy-l-miller https://www.wjiinc.org/blog/meet-the-candidates-for-marinette-county-circuit-court DeShea Morrow https://www.wjiinc.org/blog/meet-the-candidates-for-marinette-county-circuit-court Racine County Jon Frederickson (incumbent) https://www.wjiinc.org/blog/walkers-judges-jon-e-fredrickson https://www.wjiinc.org/blog/meet-the-candidates-for-racine-county-circuit-court3633505 Jamie McClendon https://www.wjiinc.org/blog/meet-the-candidates-for-racine-county-circuit-court3633505 Waukesha County Branch 4 Bridget Schoenborn (incumbent) https://www.wjiinc.org/blog/evers-judges-bridget-j-schoenborn https://www.wjiinc.org/blog/meet-the-candidates-for-waukesha-county-circuit-court-branch-4 David Maas https://www.wjiinc.org/blog/walkers-judges-brad-d-schimel https://www.wjiinc.org/blog/meet-the-candidates-for-waukesha-county-circuit-court-branch-4 Waukesha County Branch 6 Zach Wittchow https://www.wjiinc.org/blog/meet-the-candidates-for-waukesha-county-circuit-court-branch-6 Fred Strampe https://www.wjiinc.org/blog/evers-judges-fred-strampe https://www.wjiinc.org/blog/meet-the-candidates-for-waukesha-county-circuit-court-branch-6 UNCONTESTED CIRCUIT COURT RACES Brown County Tammy Jo Hock https://www.wjiinc.org/blog/court-of-appeals-reads-law-narrowly-denying-confidential-name-change-for-transgender-man Samantha Wagner https://www.wjiinc.org/blog/evers-judges-samantha-s-wagner Crawford County Lukas Steiner https://www.wjiinc.org/blog/evers-judges-lukas-l-steiner Dane County Payal Khandhar https://www.wjiinc.org/blog/evers-judges-payal-khandhar Rhonda L. Lanford https://www.wjiinc.org/blog/case-challenging-recent-constitutional-amendments-continues https://www.wjiinc.org/blog/wjis-daily-reads-for-feb-3-2022 https://www.wjiinc.org/blog/eau-claires-gabler-most-reversed-judge-in-2016 https://www.wjiinc.org/blog/lawsuit-challenging-cash-bail-amendments-gets-hearing-in-dane-county-circuit-court https://www.wjiinc.org/blog/36-judges-call-for-defense-lawyer-pay-hikes https://www.wjiinc.org/blog/wjis-daily-reads-for-april-13-2022 https://www.wjiinc.org/blog/wjis-daily-reads-for-july-18-2022 Eau Claire County Douglas Hoffer https://www.wjiinc.org/blog/evers-judges-douglas-j-hoffer Green County Jane Bucher https://www.wjiinc.org/blog/evers-judges-jane-e-bucher La Crosse County Ramona A. Gonzalez https://www.wjiinc.org/blog/the-february-court-of-appeals-roundup https://www.wjiinc.org/blog/wjis-daily-reads-for-june-1-2022 https://www.wjiinc.org/blog/judges-ask-state-supreme-court-to-limit-juvenile-shackling Lafayette County Jenna Gill https://www.wjiinc.org/blog/evers-judges-jenna-gill https://www.wjiinc.org/blog/breach-of-plea-agreement-ineffective-assistance Milwaukee County John Remington https://www.wjiinc.org/blog/evers-judges-john-r-remington https://www.wjiinc.org/blog/a-significant-number-of-new-judges-in-milwaukee-county David Swanson https://www.wjiinc.org/blog/ceasar-stinsons-widow-estate-win-open-records-appeal William Pocan https://www.wjiinc.org/blog/no-unemployment-benefits-for-worker-who-made-homophobic-remarks-appeals-court-rules https://www.wjiinc.org/blog/a-significant-number-of-new-judges-in-milwaukee-county https://www.wjiinc.org/blog/chief-judge-triggiano-reports-on-the-state-of-milwaukee-county-circuit-court Laura A. Crivello https://www.wjiinc.org/blog/walkers-judges-laura-a-crivello https://www.wjiinc.org/blog/wjis-alexandria-staubach-reports-for-jury-duty https://www.wjiinc.org/blog/state-supreme-court-accepting-comments-on-juvenile-shackling-petition https://www.wjiinc.org/blog/judges-ask-state-supreme-court-to-limit-juvenile-shackling https://www.wjiinc.org/blog/wji-other-organizations-back-rule-to-limit-juvenile-shackling-in-court https://www.wjiinc.org/blog/defendant-wins-a-habeas-hearing-seventh-circuit-blasts-state-courts-attorney-generals-office Danielle Shelton https://www.wjiinc.org/blog/milwaukee-win-gives-danielle-shelton-huge-boost-in-milwaukee-county-circuit-court-branch-40-win https://www.wjiinc.org/blog/milwaukee-county-judicial-candidates-jones-and-shelton-discuss-their-judicial-philosophies https://www.wjiinc.org/blog/milwaukee-county-sheriffs-video-policy-unreasonable-appeals-court-says https://www.wjiinc.org/blog/milwaukee-county-judicial-candidates-jones-shelton-on-best-supreme-court-decisions Lena Taylor https://www.wjiinc.org/blog/evers-judges-lena-c-taylor https://www.wjiinc.org/blog/video-january-2023-salon-with-candidates-for-milwaukee-municipal-court https://www.wjiinc.org/blog/majority-in-mba-lawyer-poll-say-kelly-taylor-not-qualified https://www.wjiinc.org/blog/lawmakers-seek-funding-for-a-42-million-juvenile-prison https://www.wjiinc.org/blog/bill-limiting-prosecutor-discretion-heads-to-governor-for-signature https://www.wjiinc.org/blog/lawmakers-disagree-on-scope-and-effect-of-revocation-bill https://www.wjiinc.org/blog/slavery-lives-on-in-wisconsin Ozaukee County Adam Gerol https://www.wjiinc.org/blog/evers-judges-adam-y-gerol Racine County Scott Craig https://www.wjiinc.org/blog/evers-judges-scott-p-craig Rock County Karl R. Hanson https://www.wjiinc.org/blog/walkers-judges-karl-r-hanson https://www.wjiinc.org/blog/judge-ignores-court-of-appeals-sentences-on-dismissed-charge https://www.wjiinc.org/blog/wisconsin-court-of-appeals-oks-resurrection-of-dismissed-conviction-in-impaired-driving-case
By Alexandria Staubach
The Supreme Court recently voted 4-3 to increase an annual assessment on Wisconsin attorneys that funds civil legal services for those who cannot pay. A $50 public interest legal services assessment has been on the books since 2005 as part of annual fees for Wisconsin attorneys. The assessment will increase to $75 for two years then to $100. Retied Milwaukee County Circuit Court Judge Richard Sankovitz spoke on behalf of the petitioners, eight legal service providers or supporters, at a March 13 hearing on the request for the increase. He stressed that a steady stream of revenue to those providing free or reduce cost civil legal services is essential to continuity of service. The reliability of the funds from the attorney assessment is one of its essential features, especially in a landscape where groups otherwise rely on discretionary grants that vary from year to year, he said. At least 3,000 people are aided by the funds from the assessment each year, Sankovitz said. He described how the funding provides direct legal services for individuals on matters ranging from access medical care coverage to temporary restraining orders for domestic violence victims. There was near unanimous agreement in the Supreme Court hearing room that the Legislature should be doing more to support legal services for those who cannot afford attorneys. But the Legislature has appropriated funds only once in the assessment’s 20-year history, Sankovitz said. At the recent hearing, as in 2005, some justices questioned whether such a fee is constitutional. At oral arguments, Justice Brian Hagedorn said he was “sympathetic to the idea that this is an unconstitutional tax.” “What limits are there on our power to raise funds?” he asked. Hagedorn also expressed concerns that some of the nonprofits that receive funds provided from the assessment may have ideological stances that attorneys disagree with. Are we not “asking attorneys to subsidize work they may not agree with?” he asked. “There is no stopping point,” said Justice Rebecca Grassl Bradley. She said she was sympathetic to the cause because her family could not afford needed civil legal services when she was young. But “we went without,” she said. At the justices’ open conference following oral arguments, Justice Janet Protasiewicz moved to adopt the measure. The assessment will address “a pressing need,” she said. A court majority then determined that in the absence of Legislative funding it was appropriate to continue the assessment and approve the increase. Justice Ann Walsh Bradley was the only current justice on the bench when the rule was originally adopted in 2005. She said she was voting for the measure because the bench and bar have “an ethical obligation” to ensure “the quality of legal representation.” While Chief Justice Annette Zeigler ultimately voted against the petition, she said “on a personal level I can’t say I am disappointed that these services will continue to be funded.” Wisconsin Justice Initiative submitted written support of the petition to increase the assessment, and WJI Board member James Gramling spoke on behalf of WJI at the hearing on the petition. Gramling said “the pro bono efforts that are made by members of the State Bar are huge, but they are not enough to address the need.” In its letter, WJI highlighted that legal representation “assists the court by streamlining proceedings, providing otherwise pro se litigants with explanations of procedures and law, reducing the need for law clerks and judges to conduct research, and getting to the heart of a case and to judgment more quickly.” Many other organizations and individuals shared WJI’s support for the petition in writing or at the hearing. Waukesha Circuit Court Judge William Domina, who had testified against the introduction of the assessment in 2005, appeared at the hearing now in support. He said that in his 40 years as a Wisconsin attorney and 15 years on the bench he has observed both “an increase in demand” and an “increase in the self-represented.” Domina urged the court to consider “that costs have increased over time and ours will as well.” In written submissions on the petition for the fee increase, only one writer, an attorney, opposed the measure, while 33 supported it. Another entity, the State Bar of Wisconsin, submitted a response that did not take a “binary position” entirely for or against the petition. Instead, the State Bar presented the results of a survey of its 18,000 members. The survey, to which roughly 17% of Wisconsin attorneys responded, showed that 65% opposed the increase. “(A)s an organization representing Members with divided opinions on this subject,” though, the State Bar also presented in its written submission some of the arguments its members expressed for and against. State Bar President Ryan Billings appeared at the hearing on the petition as well and highlighted the views of State Bar members opposing the petition. He said that funding civil legal services was the right to thing to do but that it was a “question of what is the appropriate mechanism.” Billings, and the court’s more conservative justices, thought funding for civil legal services was the responsibility of the Legislature. By Alexandria Staubach The Wisconsin Court of Appeals recently found that a state statute and corresponding grant program for immigrants and students of color are unconstitutional. The Higher Educational Aid Board Minority and Undergraduate Retention Program offers grants from $25 to $2500 per year to Black, Native American, and Hispanic students plus immigrants from Laos, Cambodia, and Vietnam admitted to the United States after 1975.  Gundrum Presiding Judge Mark Gundrum wrote the lengthy opinion, joined by Judges Shelly A. Grogan and Maria S. Lazar in District 2. The decision upheld the ruling of former Jefferson County Circuit Court Judge William F. Hue.
In finding the program unlawful, the appeals court relied almost exclusively on a 2023 U.S. Supreme Court decision (Students for Fair Admissions v. Harvard) holding that race-based affirmative action college admissions programs violate the equal protection clause. Gundrum spent 10 of the 53 pages of the opinion reiterating the high court’s decision. “With the grant program, the legislature did not simply enact another financial aid program for all financially needy students; rather, it specifically and intentionally targeted students who were members of certain racial, national origin, ancestry and alienage groups,” Gundrum said. The program has been in existence since 1985. The Higher Educational Aid Board said the program was designed to keep the diverse recipients from dropping out because of financial hardship—a national phenomenon that persists today. The appeals court rejected the argument that addressing such an issue could be a “compelling state interest” as required by the legal standard for race-based laws. When asked at oral argument whether the board had “'any case law support that says improving retention and graduation rates for certain minority groups but not others is a compelling state interest,'” the board’s counsel said they hoped “'this court issues the first opinion.'” “That is a big ask,” wrote Gundrum. The appeals court found that the board “failed to show that improving retention/graduation rates of students in the preferred racial, national origin, ancestry and alienage groups at Wisconsin private and technical colleges or mitigating the disparity in those rates between students in the preferred groups and students in nonpreferred groups constitutes a compelling government interest.” Gundrum quoted the U.S. Supreme Court, adding his own emphasis, saying that “’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.”
Mosaics with symbols of legislation, justice, and government from the interior of the Capitol dome in Madison, Wisconsin. Photographs by Margo Kirchner By Alexandria Staubach
The Assembly’s Committee on the Judiciary held a public hearing this week on five bills, all of which seek to make the criminal legal system more punitive. In a perplexing move, legislators again introduced a bill that limits prosecutorial discretion in dismissing and amending charges for certain offenses and offering deferred prosecutions for a list of crimes. The new bill is AB-66. A similar bill made its way through the Legislature late last session but Gov. Tony Evers vetoed it. Multiple law enforcement association representatives appeared at Tuesday’s hearing to testify in favor of the bill. Considerable frustration was directed at dismissals, specifically in Milwaukee. Alexander Ayala, president of Milwaukee’s police association union said, “if it’s not put nicely, in a nice case, with all the evidence and everything, they just get dismissed,” regarding cases that include charges for felon in possession of a weapon. The charge is used as a “bargaining chip,” said Ayala, who shared concerns about rearresting the same individuals on multiple occasions. “If a case isn’t gift wrapped and perfectly presented, some people aren’t willing to put in a little extra effort,” said James Olson, testifying in support of the measure for the Wisconsin Chiefs of Police Association. When asked why he thought so many gun cases were being dismissed, Olson first said he wouldn’t speculate, but then said he has heard “prosecutorial discretion or everybody deserves another chance.” The proposed new law would not be limited to cases involving possession of a weapon after felony conviction. Even misdemeanor acts of domestic abuse and violations of temporary restraining orders would be implicated. Including those misdemeanor cases in the bill causes concern for Christian Gossett, a 23-year veteran prosecutor in Winnebago County. Gossett testified that domestic violence victims often recant their testimony. He worried that having to tell a judge and the defense all the problems with their case in open court, as the proposed new law would require, would not help anyone. “If you’re coaching a football team and you had to go tell the coach on the other team what you’re going to do, you will lose all the time,” said Gossett. “This is not manageable for prosecutors.” He highlighted the diversion work being done in his office’s domestic violence unit, which he said has a recidivism rate of just 3.9% at three years postconviction. By contrast he said traditionally 60-65% of individuals convicted of a domestic violence crime who go through the system will reoffend in 5 years. Gossett was the only person to testify in person against the bill. ACLU of Wisconsin’s executive director of advocacy, Amanda Merkwae, submitted written testimony opposing the bill. “There are a multitude of reasons why a charge may be dismissed or amended by a prosecutor, including the innocence of an individual charged with a crime, insufficient evidence for a charge to stand, or constitutional concerns with police action,” wrote Merkwae. She cautioned that “AB-66 will exacerbate the downstream social and economic harms of overcriminalization to individuals, families, and communities.” The committee also heard testimony on AB-85 at Tuesday’s hearing. That bill would require the Department of Corrections to recommend revoking a person’s probation, parole, or extended supervision for merely being charged with (not convicted of) a new crime. Revocations already make up the majority of new incarcerations in Wisconsin. In 2024, 60% of new prison admissions were for revocation, according to records published by the DOC. There were more than 8,000 revocation incarcerations in 2024 alone. Under the current scheme, an administrative law judge decides whether an individual charged with a new offense gets revoked following charges for a new offense, but revocation must first be recommended by the DOC. “It may come as a surprise, but a convicted criminal on community supervision is not immediately revoked if they’re charged with another crime,” said Rep. Brent Jacobson (R-Mosinee), the lead sponsor of both bills. In his testimony to the committee, Jacobson said 6,280 individuals who were charged with new offenses were not revoked in 2019. Without defining the cost, Jacobson argued that the price of this recidivism is high if we consider case load costs across law enforcement and the resources of the courts. However, Jacobson failed to recognize that the average cost to incarcerate an individual now exceeds $65,000 at Waupun Correctional Institution (a maximum-security facility) and $46,000 at Fox Lake Correctional Institution (a medium-security facility), per the DOC’s 2024 end-of-year reports. “A person who has been charged with a crime while on release has violated that promise of good behavior” said the bill’s cosponsor, Sen. Rob Hutton (R-Brookfield). Olson reiterated Hutton’s point, saying “I don’t know how many chances we need to keep giving people.” Sean Wilson of Dream.org spoke in opposition to the bill. “Discretion is essential to justice,” he said, adding that the legislation undermines the presumption of innocence and would “exacerbate inequalities.” Wilson cited the need for wrap-around services to promote success in reentry instead of another mechanism to ensnare people in the justice system. “The Department of Corrections already recommends revocation in the majority of cases,” Wilson said. “To add another layer where you’re mandating what they’re already doing doesn’t make sense.” Wilson called the bill a “waste of paper.” The committee also discussed:
 Lubar Center Director Derek Mosley interviews Dane County Circuit Court Judge Susan Crawford at Marquette University Law School on Feb. 28, 2025. Photograph by Alexandria Staubach. By Alexandria Staubach
Dane County Circuit Court Judge Susan Crawford would not hint at what her position on pending cases would be if elected to the Wisconsin Supreme Court, but she wasn’t shy about a body of professional work that demonstrates her values. Crawford told a packed house at Marquette University Law School on Friday that during her tenure as a civil litigator she represented the League of Women Voters, physicians at Planned Parenthood Wisconsin, and educators fighting Act 10, the law that largely gutted collective bargaining for public employees in the state. Crawford also highlighted her work as an administrator in Wisconsin’s Department of Natural Resources in Gov. Jim Doyle’s administration. She said those fights on behalf of her civil clients led her to the judiciary in 2018. She often found success in circuit court, but then the Supreme Court “would ask questions that were not based on the law” and that “really (got) into political questions.” Crawford’s remarks occurred during a “Get to Know You” forum moderated by Derek Mosley, director of the law school’s Lubar Center for Public Policy Research and Civic Education. A recording of the forum can be found here. Crawford called out her opponent, Waukesha County Circuit Court Judge Brad Schimel, when saying she thinks “it’s really important to adhere to the judicial code and not comment on pending cases.” She accused Schimel of openly saying “there’s nothing wrong with” Wisconsin’s 1849 law on abortion. She said she has “really refrained” from taking any stance on pending litigation and skirted an audience question asking her position on the decline of diversity, equity, and inclusion at the federal level and the potential for litigation in that area. “It’s going to be up to the parties and the lawyers to decide if there is a state court role to play,” she said, calling the courts “reactive not proactive.” Crawford described her judicial philosophy as “pragmatism,” which she said allows her to “apply the laws to protect the people of the state.” Schimel claimed originalism as his judicial philosophy at a Lubar Center forum last week. Originalism is the view that a constitution or law should be interpreted by today’s jurists in a way they think the writers of the document intended; they act like historians to give the words their perceived original meaning. Three other Supreme Court justices claim originalism, meaning that Schimel's election to the court would make it the majority view. Crawford said that to her, “originalism is a starting point for analysis,” but asking “why was this law enacted” and considering its application over time informs her views. This “gives you a much deeper understanding,” said Crawford. Crawford’s civil litigation experience is coupled with a long career working in various roles for Doyle, when he was attorney general and then governor. “I always said, ‘yes sir, I will take up this new challenge,” said Crawford about her time working for Doyle. Notwithstanding that government work, Crawford told the audience that she was “not running on a partisan agenda.” No matter the issue, she promised the crowd, she will evaluate any evidence, listen to argument, perform her own legal research, and consult with her colleagues prior to rendering every decision if she’s elected. A prospective colleague, Justice Rebecca Dallet, listened from the front row. Th audience asked Crawford about donations from George Soros and J.B Pritzker, the former donating $1 million and the latter donating $500,000 to the state Democratic Party, which passed the money along to Crawford’s campaign. Crawford largely dodged the question about contributions to her own campaign but took the opportunity to say Schimel was taking Elon Musk’s money with obvious strings attached. “Elon Musk is entering the race” and “openly saying he wants Schimel on the court to advance Trump’s agenda,” said Crawford. “I never thought I would be fighting with the world’s richest man for justice in Wisconsin,” she laughed. An audience member questioned Crawford about an accusation that her election could result in a decision that would generate two U.S. House seats, based on Crawford’s appearance at a donor event earlier this year. Crawford said she did attend a video call for the group Focus on Democracy but that she never discussed congressional maps nor took any questions related to them. About congressional maps, “I have never taken a position publicly or privately and don’t know what my position would be,” she said.  By Alexandria Staubach
The Wisconsin Supreme Court in mid-February heard oral arguments in four cases and issued numerous orders, including denial of a petition to skip the Wisconsin Court of Appeals regarding Dane County Circuit Judge Jacob Frost’s decision invalidating part of the public union collective bargaining law known as Act 10. The Court heard arguments in two civil cases and two criminal cases. Here’s the recap. State v. Luis A. Ramirez The Supreme Court’s many former prosecutors grilled counsel for Luis Ramirez about what constitutes a permissible delay on the part of the state and court system. Jennifer Lohr, Ramirez’s attorney, responded that the delay in Ramirez’s case was four times the minimum for presumed prejudice against a defendant. “It is the government’s duty to keep the justice system moving,” Lohr argued. The Court of Appeals found that the state acted with “cavalier disregard” for Ramirez’s constitutional right to a speedy trial. The state offered explanations for its many adjournments. Its counsel, John D. Flynn, argued that Ramirez was incarcerated on another conviction while the case was pending and that he only ever asked for a speedy trial without the assistance of counsel. The bulk of the court’s questioning centered on the meager circuit court record when it was rescheduling trial dates, but there were also differing views about the duration of delays, even if the delays were explainable. On one hand, Justice Janet Protasiewicz recalled her time as a prosecutor and said that in Ramirez’s case “the facts seem relatively simple” and should not have required much preparation to take to trial. Justice Jill Karofsky, on the other hand, recalled her time on the bench to say “the state did exactly what it should do” and that “for everyone one of the continuances for trial, there is a reason for it.” “What prejudice did your client suffer?” asked Justice Rebecca Grassl Bradley. “He was going to be in prison for a very long time, his liberty interest was not even implicated,” she said. Lohr argued that the sheer duration of delay was sufficient to demonstrate prejudice to Ramirez. Ramirez, who was serving a prison sentence, was charged with battery after allegedly assaulting a correctional officer. Over the following 46 months, Ramirez saw his trial rescheduled several times, for reasons that included a prosecutor’s retirement, a courthouse remodel, scheduling conflicts, and his own pro se motions. “Pro se” representation occurs when a defendant represents himself without counsel. Columbia County Circuit Court Judge W. Andrew Voight had ruled that despite the many delays, Ramirez’s right to a speedy trial was not violated. Voight found that Ramirez’s motions, including for discovery and change of venue, were inconsistent with his expressed desire for a speedy trial. The Court of Appeals overruled Voight’s decision, stating that that while some of the delay was justified, the state acted in “cavalier disregard” for Ramirez’s right to a speedy trial. “What would you have us do with the words ‘cavalierly disregard’?” asked Justice Rebecca Dallet. “Cavalierly disregard them,” joked Karofsky in response. Dallet signaled where the court might land in its opinion, asking Flynn his thoughts on “something that was more like we focus on what the reasons for the delay are and we don’t require, as no case has required, that someone gave reasons for the length of time it took to reschedule the trial.” “I’d be perfectly happy with that,” said Flynn, smiling and then yielding the rest of his time on rebuttal. Scot Van Oudenhoven v. Wisconsin Department of Justice The Wisconsin Court of Appeals over the summer upheld the denial of Scot Van Oudenhoven’s handgun purchase application based on a previous misdemeanor domestic violence conviction that was expunged under Wisconsin law. Van Oudenhoven then took his case to the Supreme Court. In oral arguments, justices grappled with every aspect of the case. Justices Janet Protasiewicz and Jill Karofsky were passionate in their concern over whether the underlying expungement was valid in the first place, revisiting time and again Van Oudenhoven’s date of birth and date of conviction. Current state law permits expungement of an offense with a penalty of six years or less if it was not a violent felony and the defendant was under age 25, had no prior felony record, and requested expungement at the time of sentencing. At the time of Van Oudenhoven’s conviction in 1994, the age was 21, said Karofsky. She pointed out that she was at that time a prosecutor for crimes of domestic violence. Justices and parties discussed how Van Oudenhoven was older than 21 at the time of conviction and did not request expungement at sentencing. “If it were an illegal expungement, is it void?” asked Karofsky at the outset of oral arguments. Justice Brian Hagedorn grappled with the different meanings of expungement among the 50 states. At issue was whether a federal statute permitting a defendant whose criminal record has been “expunged or set aside” to obtain a handgun, covers defendants who have had their criminal records expunged in Wisconsin. Attorney Brian P. Keenan from the Wisconsin Department of Justice opposed Van Oudenhoven’s petition. He emphasized that under federal law, “all effects” of conviction must be erased. In Wisconsin, expungement only affects the court and public’s record of the crime, he said. “Here it just means that the record has been removed from the court files,” Keenan argued. “The conviction itself has not actually been expunged from anything,” he said. The court grappled with what Congress intended when including expunged crimes in the law providing restoration of firearms rights. Hagedorn cited a variety of sources, including legal website Justia Law and Black’s Law Dictionary, to say that “expungement” means something different in effectively every state. “It makes imminent sense to me,” said Hagedorn, that the Legislature used expungement to mean however a state defines expungement, as the converse effect would be that the law is “absolutely irrelevant.” Justice Rebecca Dallet asked Keenan whether the DOJ’s best argument was whether “the plain text of the statute is that the conviction actually needs to be expunged.” Keenan replied “yes.” There appeared to be no consensus among the justices regarding whether and to what extent “expungement” under Wisconsin law has the same meaning as in the federal statute. Service Employees International Union Healthcare Wisconsin v. Wisconsin Employment Relations Commission Oral argument in this case concerned whether the Wisconsin Employment Peace Act applies to the University of Wisconsin Hospitals and Clinics Authority (UWHCA) and gives its employees collective bargaining rights notwithstanding the public union collective bargaining law known as Act 10. UWHCA was originally included under the Peace Act in 1996, but was later removed. In a case brought by UW healthcare workers, the Wisconsin Employment Relations Commission and Dane County Circuit Judge Jacob Frost concluded that the Legislature’s statutory changes in Act 10 reflected a clear intent to exclude UWHCA from the Peace Act, meaning that its employees no longer have collective bargaining rights. The Supreme Court took the case directly, bypassing the Court of Appeals. The justices and parties focused on legislative intent to include or exclude UW healthcare workers when it enacted Act 10, with a new twist: asking the Supreme Court to ignore what the Legislature may have intended at the time of enactment (originalism) and instead focusing on the plain language of the law. UW healthcare workers brought a previous case in federal court and were unsuccessful. This time, they argued that they should never have been covered by Act 10 because they are closer to private employees than public employees. “There is an element of all of this that I must confess feels a little bit like the emperor’s new clothes, where everyone has a firm grasp on reality until a new tailor comes to town and says I’m going make you a garment that only the most sophisticated people can see,” argued attorney James Goldschmidt on behalf of UWHCA, which opposed the employees’ petition. Hagedorn was vocal during oral arguments and from the start asserted that the employees’ interpretation of law was “contrary to what all our cases say, at least in the last 20 years.” Justice Rebecca Grassl Bradley also voiced opposition, saying “what your argument is asking this court to do, is back track off at least two decades of recent precedent.” Justices Rebecca Dallet and Ann Walsh Bradley were more open to the argument, but even Walsh Bradley told the employees’ counsel that the “legislative history is so strong here that if applied here your clients lose.” State v. Carl Lee McAdory WJI has been following this case since the summer of 2023. The case finally made it to a hearing in the Supreme Court. In Carl Lee McAdory’s case, a Rock County Circuit Court judge disregarded an appeals court order for a new trial and instead sentenced McAdory on a charge that had previously been dismissed. Prior coverage is here and here. McAdory was charged with eighth-offense operating under the influence (OWI) and eighth-offense operating with a restricted controlled substance (RCS). Blood testing showed he had cocaine and marijuana in his system when arrested. A jury found him guilty on both counts. OWI requires a showing that drugs in McAdory's system impaired his driving. RCS law makes it illegal to drive with any detectable drug in the blood, whether or not it affects the person's driving ability. Because Wisconsin law says McAdory could only be sentenced on one of the counts arising from the same conduct, the prosecutor moved to dismiss the RCS charge. The court sentenced McAdory on the OWI count. Typically, when a court dismisses a count, it cannot be retried or revived. And in McAdory’s case there was no argument that the circuit court’s dismissal was without prejudice—a legal mechanism which would permit the count’s resurrection. McAdory appealed his OWI conviction. The Court of Appeals held that the state repeatedly misled the jury about what the state had to prove for conviction on the OWI charge. The appeals court remanded with an order for a new trial. However, McAdory did not get a new trial on remand. Instead, the prosecution asked Judge Karl Hanson to revive the dismissed RCS count and sentence McAdory on that charge, which Hanson did. During oral arguments in the Supreme Court, the justices and the state’s attorney wrestled with whether McAdory and other defendants could receive a windfall for what was characterized by the state as a mistake. The state could have asked the circuit court to dismiss the more difficult to prove OWI charge and for a sentence on the RCS charge. That could have avoided grounds for appeal, as McAdory’s appeal hinged on the state’s failure to prove the drugs his system in fact impaired his driving. The state is asking the court to “rescue it from strategic decision-making gone awry,” argued McAdory’s attorney, Olivia Garman. “While the parties disagree on just about everything in this case, there’s one thing we can agree on, that the procedural history that got us here should never happen again,” argued John W. Kellis on behalf of the state in asking the court for guidance in a muddy area of law. Justices Ann Walsh Bradley and Brian Hagedorn floated the idea of crafting an opinion that would instruct the lower court to dismiss one count, consistent with the statute, but without prejudice, which the law is currently silent about. Justice Rebecca Grassl Bradly suggested entering convictions on both counts but sentencing on only one. By Alexandria Staubach and Margo Kirchner Gov. Tony Evers has appointed significantly more women and people of color as judges than his predecessor did, shifting the makeup of Wisconsin’s judiciary. Of Evers’ 66 judicial appointments through 2024, 25 (38%) are persons of color and 36 (55%) are women. Among the appointments are Black, Indigenous, Latin, and Asian individuals. Evers’ appointments seem to show a concerted effort to provide litigants with state judges who are more representative of the state’s overall demographics than was previously the case. To achieve a more diverse bench, Evers in 2019 created a diverse Judicial Selection Advisory Committee, responsible for interviewing and recommending candidates for him to consider when he fills vacancies. Evers placed individuals from different backgrounds on the selection committee. Committee member Craig Mastantuono recently told WJI that Evers joined the committee at its first meeting and told them that judicial appointments were not to be rewards for donors or the politically connected. “I really think that says something about this governor,” he said. “It was very important to the governor to achieve a higher level of competency and diversity in the courts," Mastantuono said. The committee comprises 15 attorneys from different heritages, practice areas, and locations around the state. Mastantuono is first-generation Mexican on his mother’s side, a former officer of the Wisconsin Hispanic Lawyers’ Association, and a criminal defense attorney in Milwaukee. He has been on the committee during both of Evers’ terms. Other former and current committee members have come from a variety of racial and ethnic backgrounds. As for practice areas, current members include a retired circuit court judge, a deputy corporation counsel, a district attorney, a retired public defender, a University of Wisconsin Law School professor, an in-house corporate attorney, and law firm attorneys. They hail from New Richmond, Wausau, Neenah, Appleton, and Trempealeau and Portage counties, as well as the Milwaukee and Madison areas. Evers was “smart to access (a variety) of communities and put them at the table to recruit and recommend applicants,” Mastantuono said. Mastantuono noted that when the committee considers applicants, diversity involves not only gender, race, and ethnicity, but also practice area. Appointees are not predominantly prosecutors and large firm attorneys; they include public defenders and legal aid providers, among others. Attorneys gain “insight from sitting next to someone who struggles to pay the rent,” he said, and they can take that empathy with them to the bench as judges. “It’s a complete myth that there’s a trade-off between competence and diversity,” he said. “We’ve raised the competency and quality of the bench while achieving diversity.” Prior to the Evers Administration, Wisconsin had one of the least diverse or representative benches in the nation. A report by the American Constitution Society in 2016 gave Wisconsin an “F” grade, ranking the state 44th in the nation for judicial diversity. Among the report’s findings on Wisconsin’s judiciary, it found that white men were 41% of the state’s population but held 76% of judicial seats, while women of color were 9% of the population but held only 1% of judicial seats. The Walker Administration demonstrated a strong preference for conservative white men. A document provided by Evers’ office in response to WJI’s request for records created by the Walker Administration shows that of the 93 judges Walker appointed from 2011 to early 2019 only one was a person of color (Black) and just 23 were women.
Among the 69 white men Walker appointed were Brian Hagedorn to the Court of the Appeals in 2015, Daniel Kelly to the Supreme Court in 2016, and Brad Schimel to Waukesha County Circuit Court in 2018 (following his loss as the Republican candidate for attorney general that year).
Walker also appointed James Troupis to Dane County Circuit Court in 2015 and Vincent Biskupic to Outagamie County Circuit Court in 2014. Prior to his judicial appointment, Troupis had worked on the 2011 Republican redistricting maps and Act 10 public union bargaining legislation. In recent years, Troupis represented Donald Trump before the Wisconsin Supreme Court in an attempt to have the 2020 presidential election result overturned and was involved in the false Trump elector scheme. A decade prior to his judicial appointment, Biskupic was a district attorney embroiled in controversy over alleged deals for defendants who made donations to crime prevention and victim advocacy groups. Biskupic's brother was an attorney for the Walker campaign. Judges appointed by a Wisconsin governor run for election in the next available April election cycle. Nationally, the debate about diversity initiatives rages on. But President Joe Biden’s diversification of the federal bench—more than 60% of his appointees were women, with 37% being women of color—should be a lasting legacy. |
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