 Entry to the Wisconsin Supreme Court in the Capitol in Madison. Photograph by Margo Kirchner. By Alexandria Staubach
The Wisconsin Supreme Court opens its session with oral arguments next week, including a case concerning the constitutionality of Wisconsin’s reverse waiver statute. “Reverse waiver” is used to describe a case that begins in adult court but is later transferred to juvenile court. Under the pertinent statute, adult circuit courts exercise original jurisdiction over various homicide charges for any child alleged to have committed the crime “on or after the juvenile’s 10th birthday.” That jurisdiction can only be transferred to juvenile court through the reverse waiver process. Noah Mann-Tate was charged with intentional first-degree homicide, a Class A felony (the most serious), for shooting his mother in November 2022. He was 10 years old at the time. Charges were brought in early 2023 after Mann-Tate made conflicting statements to police about what happened, including an admission that he was angry with his mother, stole and hid the key to her gun safe the night before, accessed a gun, and shot her in the morning. Milwaukee County Circuit Court Judge Jane Carroll denied Mann-Tate’s motion for reverse waiver. She said that “the most compelling reason to keep Mann-Tate in the juvenile system was his age” and that a 10-year-old did not belong in the adult court system. However, she found she was required to consider only the factors listed in the statute, which do not include age. The reverse waiver statute defines three factors that must be considered by the adult court when considering transfer: whether the juvenile can receive adequate treatment in the adult criminal justice system, the seriousness of the offense, and the effect on general deterrence. The burden is on the child to establish that statutory requirements for reverse waiver are met. In Mann-Tate’s appeal from Carroll’s decision, Wisconsin Court of Appeals District 1 found Wisconsin’s reverse-waiver law unconstitutional. Judge Sara Geenen wrote the decision for the appeals court panel. Geenen wrote that a decade after Wisconsin enacted its reverse waiver statute, the U.S. Supreme Court “fundamentally altered the way in which juveniles are treated in the criminal justice system.” Based on the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment, the high court distinguished juveniles for the purposes of sentencing. The Court of Appeals found that the distinction is not limited to Eighth Amendment issues. It said that additional factors discussed by the U.S. Supreme Court should be considered during reverse waiver proceedings. Those factors include the child’s chronological age related to maturity and impulsiveness, the child’s ability to appreciate risk and consequences, family and home life and the circumstances of the crime, impact on family, peer pressure, the effect of age on the child’s ability to navigate the criminal justice process, and the possibility of rehabilitation. Mann-Tate argued, and the Court of Appeals agreed, that the statutory factors set out in Wisconsin law are “unconstitutionally incomplete” because they fail to include the “unique attributes of youth” as identified and required by the U.S. Supreme Court. Geenen noted that the circuit court could not find whether adult court treatment services were sufficient because although Mann-Tate had “below-normal-intelligence,” there was no medical diagnosis in the record, despite the child telling officers that he has five imaginary people who talk to him. Because Mann-Tate’s mental health needs were unknown, he could not prove that the adult system could not provide adequate treatment. The state asked the Wisconsin Supreme Court to review the case, leading to next week’s argument date. Of note, Bryan Stevenson, the acclaimed attorney and executive director of Equal Justice Initiative (a human rights organization in Montgomery, Alabama), has entered an appearance on Mann-Tate’s behalf for purposes of the Supreme Court proceedings.
0 Comments
WJI advocates for progressive change in Wisconsin’s justice system. Some of those changes can only come from legislation and who is positioned to make law. Being so, we are also committed to Wisconsin voter engagement. Whether different or supplemental electoral systems may serve voters' interests is an open question. Some believe other systems may enhance voter turnout, de-escalate the political climate encouraging more citizen participation, and give the electorate more say as to who makes it on the ballot. This piece is the first in a short series that covers other electoral systems and their current status in Wisconsin.
By Alexandria Staubach Thirty-nine percent of Wisconsin early voters cast their ballot for governor in this month’s primary election before the final field of candidates was set, according to Marquette University research and policy fellow, John Johnson. And, according to the Associated Press, 68,343 or 8.3% of the total vote count went to candidates that had dropped out - Mandela Barnes, Sarah Rodriguez, Missy Hughes. According to Johnson’s analysis, Milwaukee’s early voters wasted their votes at a much higher rate. 17.7% of the Milwaukee noncandidate votes came from early voting as opposed to 1.6% on election day. In most places it’s impossible to tell who early voters voted for. While the votes are cast in advance of election day, the ballots are not touched until the polls close. Most of the time, these early votes or absentee ballots (they’re the same thing) are transferred to the voter’s ward to be counted along with the votes cast on election day. However in some larger municipalities, including Milwaukee, many absentee ballots are sent to a single central processing location, and those numbers are not subsumed into a ward’s total count. But wasted votes are not the only criticism of this month's chaotic primary election. Milwaukee County Executive David Crowley won the nomination by just 3,800 votes, with just 39.8% of the statewide total compared to Rep. Franchesca Hong’s 38.3% share. Neither candidate touched the majority threshold. Some have suggested that Rank Choice Voting could fix these issues, and the last two state legislative sessions have seen efforts to bring RCV to Wisconsin voters. Real headway was made in the 2023-2024 legislative session when a bipartisan bill for “Final Five” voting was initiated in the Senate and made its way through public hearing. Final Five voting, currently used in Alaska, is a popular model pioneered by Milwaukee native Katherine Gehl. Gehl, who authored a paper on the failure of competition in the U.S. political system, published by the Harvard Business School in 2017, also founded the Institute for Political Innovation which advances Final Five voting nationally. According to Gehl, Final Five is the combination of two electoral innovations. Top-five primaries, and RCV. The combination, according to Gehl, "ensures that we always elect the candidate with the broadest appeal to the most number of voters." Ultimately the bill died in committee and never received a vote but would have brought Final Five voting to Wisconsin for U.S. senator and U.S. representative races. At the time, Sen. Jesse L. James (R-Thorpe), said “change is hard,” but “our current system is not working.” And Sen. Jeff Smith (D-Eau Claire) said the proposal “has the ability to reduce partisanship, encourage cooperation, and puts the power back in the hands of the majority of population.” The bill had ten Democrat co-sponsors and eleven Republican co-sponsors. As the bipartisan effort floundered, a group of Republicans introduced a bill that would ban RCV statewide by constitutional amendment. Then Sen. Duey Stroebel (R-Saukville) said, “there’s little evidence to suggest that adopting an alternative voting method would bring about transformative changes to our political environment,” and that banning RCV would “protect our time-tested election system from such experimentation.” Their amendment never made it out of committee. In the most recent legislative session, a group of Democratic senators introduced a bill that would allow municipalities to use rank choice voting at their discretion, but it too failed. So what is RCV? Last year, the American Bar Association’s Task Force for American Democracy published an in-depth analysis of the electoral system, and while it is not the formal position of the ABA, the work nevertheless concluded RCV “may help improve US democracy.” U.S. elections are run a few different ways. Broadly, there’s the “majority system” in which a candidate must obtain more than 50% of the vote in order to win, sometimes culminating in a runoff if no candidate gets the majority vote. The “top-two … or three or four” system lists all candidates irrespective of party affiliation on a single ballot and a predetermined number of those with the most votes go on to the general election. Finally, “plurality systems” are those in which the majority winner takes all regardless of vote share. This is what we use in Wisconsin. Plurality systems are the most common system in the U.S., but the majority system is well established, especially in the Southern States, where it’s been adopted everywhere except Florida. RCV ranks candidates in order of preference. If a single candidate has a majority (50% +1) they simply win. If no candidate has the majority, the candidate with the fewest votes is eliminated and the count starts again. Voters who ranked the eliminated candidate first have their votes transferred to whomever they ranked second and so on. It’s gained considerable traction in the U.S. over the last decade. While examples like the primary race for New York City mayor, in which Zohran Mamdani made history as the first Democratic Socialist elected to that office, make headlines, this isn't the system's maiden voyage in U.S. elections. Between 1915 and 1940, two dozen municipalities across six states adopted RCV, but it fell into disfavor and repeal efforts largely erased the practice between 1940 and 1950, according to the RCV Resource Center. “Politicians displaced by RCV, a lack of organizations amongst groups that benefited from RCV, and a political climate that turned against the parties elected through the proportional representation of RCV,” largely lead to its demise, says the RVC Resource Center. But RCV isn’t a single thing. It, like “top-two,” can be implemented in several ways. In New York City’s mayoral race, RCV was used in the party primary to decide which Democratic candidate went on to the general election. Whereas Los Angeles recently used RCV to hold a nonpartisan “top-two” primary. That ballot included all candidates regardless of party affiliation. If any had won a simple majority, they would have been mayor. However, there was no simple majority winner so the top two candidates – who are both Democrats – will now face each other during November’s general election. According to the ABA, a significant criticism of RCV includes that it is too complex for voters to understand and use successfully. This was also a complaint listed by legislators seeking to ban it in Wisconsin. But the ABA’s analysis found comparable rates of understanding of election rules in a study between voters in RCV cities and those matched in non-RCV cities. The ABA analysis additionally examined whether RCV changes campaign behavior and noted that it has “potential to encourage more civil campaigning by motivating candidates to seek broader support, thus reducing polarization.” “In sum,” says the analysis, “RCV is an improvement over plurality voting with clear benefits in terms of representation, campaign quality, mobilization, and turn out.” The research, demonstrates RCV “encourages greater consensus building as well as more civil political campaigns,” according to the analysis. Below you can find the Wisconsin legislators who have backed or attempted to block RCV. Their contact information is linked for your convenience, if you'd like to voice support or concern. Supported Final Five Sen. Jesse L. James (R-Thorpe) Sen. Jeff Smith (D-Eau Claire) Sen. Robert L. Cowles (R-Green Bay) Sen. Mark Spreitzer (D-Beloit) Rep. Ron Tusler (R-Harrison) Former Rep. Daniel Riemer (D-Milwaukee) Rep. Tony Kurtz (R-Womewoc) Rep. Deb Andraca (D-Whitefish Bay) Former Rep. Bob Donovan (R-Greenfield) Rep. Steve Doyle (D-Onalaska) Sen. Dora Drake (D-Milwaukee) Rep. Alex Joers (D-Middleton) Former Rep. Scott L. Johnson (R-Jefferson) Rep. Joel Kitchens (R-Sturgeon Bay) Rep. Jeffrey Mursau (R-Crivitz) Rep. Todd Novak (R-Dodgeville) Former Rep. Katrina Shankland Rep. David Steffen (R-Howard) Rep. Lisa Subeck (D-Madison) Rep. Shannon Zimmerman (R-River Falls) Former Rep. Jimmy Anderson (D-Fitchburg) Rep. Ryan Clancy (D-Milwaukee) Rep. Jodi Emerson (D-Eau Claire) Rep. Darrin Madison (D-Milwaukee) Rep. Clinton Anderson (D-Beloit) Supported Ban on RCV Former Sen. Duey Stroebel (R-Saukville) Sen. Steve Nass (R-Whitewater) Former Sen. Joan Ballweg (R-Markesan) Sen. Cory Tomczyk (R-Mosinee) Sen. Van Wanggaard (R-Racine) Former Rep. Ty Bodden (R-Hilbert) Rep. Chanz Green (R-Mason) Rep. Joy Goeben (R-Hobart) Rep. Scott Allen (R-Waukesha) Rep. Elijah R. Behnke (R-Town of Chase) Former Rep. Janel Brandtjen Rep. Barbara Dittrich (R-Oconomowoc) Former Rep. James Edming (R-Glen Flora) Rep. Rick Gundrum (R-Slinger) Rep. Nate Gustafson (R-Omro) Former Rep. Gae Magnafici Rep. Paul Melotik (R-Grafton) Rep. David Murphy (R-Hortonville) Former Rep. Nik Rettinger (R-Mukwonago) Rep. Paul Tittl (R-Manitowoc) Rep. Nancy VanderMeer (R-Tomah) Rep. Calvin T. Callahan (R-Tomahawk) Former Rep. Michael Schraa (R-Oshkosh) Former Rep. Donna Rozar Rep. Robert Brooks (R-Saukville) Rep. Dave Maxey (R-New Berlin) Former Rep. Peter Schmidt (R-Bonduel) Former Rep. Ellen Schutt (R-Clinton) Rep. David Armstrong (R-Rice Lake) Rep. Jerry L. O’Connor (R-Fond Du Lac) Supported local discretion for RCV Sen. Chris Larson (D-Milwaukee) Sen. Kristin Dassler-Alfheim (D-Appleton) Sen. LaTonya Johnson (D-Milwaukee) Sen. Mark Spreitzer (D-Beloit) Rep. Amaad Rivera-Wagner (D-Green Bay) Rep. Lee Snodgrass (D-Appleton) Rep. Deb Andraca (D-Whitefish Bay) Rep. Margaret Arney (D-Wauwatosa) Rep. Ryan Clancy (D-Milwaukee) Rep. Ben DeSmidt (D-Kenosha) Rep. Jodi Emerson (D-Eau Claire) Rep. Tara Johnson (D-Town of Shelby) Rep. Darrin Madison (D-Milwaukee) Rep. Vincent Miresse (D-Stevens Point) Rep. Christian Phelps (D-Eau Claire) Rep. Ann Roe (D-Janesville) Rep. Christine Sinicki (D-Milwaukee) Rep. Angela Stroud (D-Ashland) Rep. Shelia Stubbs (D-Madison) Rep. Lisa Subeck (D-Madison) Rep. Jenna Jacobson (D-Oregon) Milwaukee mayor asks residents to weigh in on budget cuts as MPD's share of expenditures swells7/28/2026  By Alexandria Staubach Milwaukee is again facing a nearly $100 million gap between what it wants to fund and the cash it will have in the coming year. Despite the shortfall, the Milwaukee Police Department’s budget is likely to significantly increase. Proposed areas for cuts include election operations and civic engagement, library hours, sanitation and street maintenance. Milwaukee Mayor Cavalier Johnson is seeking input from city residents as his office works to close the $96 million gap. The city has posted a survey asking residents to make difficult decisions about where spending should be cut and what services should be protected. Fire and police could see cuts, but trimming in those areas is not always legal. Any cuts to policing or fire and emergency medical response must come from unsworn staff and equipment purchases under state law. Under the Wisconsin Legislature’s 2023 shared-revenue legislation, known as Act 12, Milwaukee’s police and fire departments must maintain their 2023 numbers and grow both forces by 2034. While Milwaukee’s whole budget is closer to $2 billion, only $685 million of that amount is subject to some discretion according to a video released by the mayor in support of the survey. “That’s what funds our roads, libraries, health services, public works, fire and police,” says Johnson. Johnson says other portions are self-supporting, restricted, or allocated for specific debt and pension obligations. For 2026, nearly half the discretionary amount went to MPD, with an allocation totaling more than $310 million, just shy of the department’s $313 million request. While the 2027 budget won’t be finalized until October, MPD and all other city departments made their respective requests in May. MPD is now asking for an unprecedented $345,822,092. Some of that increase is nonnegotiable, and not just because the force can’t shrink. Last year, the Milwaukee Common Council voted 10-1 on a new contract with the officers’ unions—the Milwaukee Police Association and Milwaukee Police Supervisors Association. Long-stalled negotiations meant the Milwaukee Police Association’s four-year deal was retroactive and will again expire in December. The supervisors’ agreement, covering Milwaukee Police Chief Jeffrey Norman and other top brass, expires in December 2027. Alders Marina Dimitrijevic, Milele Coggs, JoCasta Zamarripa, and Sharlen Moore abstained from the contract vote. At a Nov. 25, 2025, Common Council meeting, the abstaining alders warned of potential budget constraints, as the contract effectively gave a 15% pay increase across the board, with some top brass receiving a more than 25% bump in pay. A Legislative Reference Bureau memo estimated the new contract would cost the city $51 million in additional pay and pension costs alone and did not account for the 5% increase in sworn officers required by Act 12, who have not been hired yet. The new contract also put Norman among the highest-paid city employees. His salary exceeds that of the mayor, municipal judges, and city attorney. Past budgets show that Norman’s pay has grown significantly since 2023, when his salary was $147,336. That number jumped to $151,785 in 2024, and $182,927 in 2025. Under the new contract, Norman was paid $243,000 in 2026, and he will receive $250,290 in 2027. The budget for the mayor’s salary in 2026 is $169,437.  Screenshot of Milwaukee Mayor Cavalier Johnson's short video about the 2027 budget gap and survey. Click on photo to go to the video and survey.  Milwaukee Municipal Court entrance in January 2023. Photograph by Margo Kirchner. 1By Alexandria Staubach
Nearly a year after Milwaukee County Circuit Court Judge David Borowski found Milwaukee Municipal Court in contempt for failing to record indigency hearings as ordered, the municipal court has agreed to record all hearings for seven years. The agreement is part of the settlement of a lawsuit brought by a client of Legal Action of Wisconsin, alleging that the municipal court failed to comply with statutory obligations to record certain hearings. Milwaukee County Circuit Court Judge Paul R. Van Grunsven approved the settlement agreement last month. In December 2024, Borowski had ordered the municipal court to record certain proceedings, including hearings regarding poverty or motions to reopen, as required by law. When the municipal court failed to comply, Borowski found the municipal court in contempt, saying the lower court had made “insufficient attempts” to comply with his December 2024 order to record indigency hearings. Legal Action Attorney Susan Lund provided evidence that between May 5–19, 2025, the municipal court had held 54 hearings in which indigency was relevant, but recorded less than half. Borowski called the lower court’s failure to comply “egregious” and threatened it with a $1,000-per-day fine for any further failure to comply. He also ordered the municipal court to pay all reasonable fees for Legal Action in its fight to enforce compliance. Legal Action claimed $73,225 in attorneys’ fees in a subsequent motion. Milwaukee Municipal Court disputed the court’s rulings along the way, including filing an appeal of Borowski’s contempt finding. The settlement agreement was signed by City Attorney Evan Goyke and Legal Action’s Lund. In the agreement, the municipal court agreed to drop its appeal of the contempt finding and Legal Action agreed to supervise the municipal court’s compliance with recording laws moving forward. The settlement agreement gives little discretion to the municipal court: It must record all hearings, whether required by law or not, for at least seven years—though the recording is called “voluntary.” The court can terminate the agreement before then only if the Legislature updates relevant statutes. After seven years the court can apply for termination with court approval. Per the agreement, the city will pay Legal Action $4,999.99 for attorney’s fees. The parties also agreed that 60 days prior to any termination motion the municipal court must make itself available to “meet and confer” with Legal Action for the nonprofit law firm to determine whether it would join in the termination motion. Any notice to Legal Action of a termination motion “shall demonstrate” how the municipal court “will ensure substantial compliance” with statutory requirements. If termination is ultimately pursued, the agreement sets the standard for a circuit court judge to determine whether the municipal court has demonstrated adequate compliance mechanisms exist to ensure substantial compliance with statutory recording requirements. If not, “the Circuit Court shall deny the motion.” The agreement includes a provision for Legal Action to review three weeks’ worth of municipal court recordings in the first six months after termination and for the circuit court, on the request of Legal Action, to hold a hearing to review whether the municipal court has maintained substantial compliance. Should records demonstrate at that time that the municipal court failed to record more than 10% of the hearings as required by law, the municipal court “shall be ordered to resume its agreement to voluntarily record all hearings,” for at least another year and pay Legal Action reasonable attorney fees. The municipal court would then have to wait another year before filing a new motion to terminate the agreement. Meanwhile, during the seven years of the settlement agreement, if Legal Action of Wisconsin believes the municipal court is in violation and notifies the court of an issue, the municipal court would get 60 days to either dispute the violation charge or cure.  Alexandria Staubach By Alexandria Staubach WJI received a report in late June from controversial nonprofit Enough is Enough about reckless driving cases in Milwaukee County Circuit Court, highlighting significant differences in judges’ sentencing patterns. The court watch group, which was the subject of an open letter to the Milwaukee County judiciary last year, advocates against reckless driving and for “stronger measures to protect our communities,” according to its website. “ENE” was founded after the death of Erin Morgensen, who was killed as a bystander to a crash involving the police and a fleeing suspect. While ENE’s court watch program and the reports it produces are objectively laudable citizen efforts to provide oversight and affect a chronic public safety issue in Milwaukee, the group has an agenda, and they have a perspective that is evolving with experience. ENE wrote in an earlier report that it wanted to see a reduction in the number of cases with sentences less than the state’s recommendation. “No probation for repeat felons” or defendants who commit new crimes while awaiting adjudication, it says in the latest report. Metrics tracked by the group include the tendency of judges to offer more lenient sentences than those recommended by the prosecutor and the number of relevant cases the group observed in each courtroom. The report then rates the judges on their tendency to impose less or more lenient sentences than what an assistant district attorney recommends in a given courtroom. ADAs, like judciary, are not monoliths. They have past experiences, sometimes with defendants or judges, which inform their recommendations. They have varying degrees of personal experience with certain types of crimes. And they have a lot of discretion. I know this, having lived this, practicing as an ADA in Colorado before coming to Wisconsin. Measuring judges against compliance with ADA recommendations isn’t exactly an independent variable. It’s always possible the ADA recommendation isn’t the right thing. That said, an imperfect measure isn’t a meaningless measure, and some things in the report are worth considering, especially because we can’t escape the fact that the criminal justice system’s backbone is individual discretion. ADA discretion in charging and prosecuting crimes, offering pleas, and recommending sentences butts up against a defense attorney’s obligation to obtain the best possible outcome for their client, irrespective of guilt. But all of that is pinned against the judiciary’s ultimate discretion in sentencing. In Wisconsin, a trial judge is free to impose any legal sentence, whether the parties have come to terms in a plea deal or the defendant is convicted at trial. While that power is common, it’s not universal across states. Every defendant’s and victim’s experience is shaped by these forces and everyone practicing in the criminal justice space knows them to be true, but rarely do we take the time to quantify judges’ sentencing discretion, to measure it in action, or think about what it means for the people affected. I think ENE accidentally did. In ENE’s most recent reporting period from November 2025 through April 2026, the group observed 10 judges handling cases involving reckless driving. Judges Jorge Fragoso and Jack Dávila had the highest volume of observed cases. While a small majority (six of 10) of the observed judges imposed more lenient sentences than recommended by the ADA, Fragoso, who handled 55 cases, did so 56% of the time and Dávila, who handled 49 cases, did so 76% of the time. In ENE’s recent report it seems like the group’s takeaway is that Dávila was the second most lenient sentencer, after Judge Katie Kegel, who saw just eight relevant cases but imposed a more lenient sentence than the ADA’s recommendation 88% of the time. Kegel, it should be noted, also runs the High Intensity Drug Trafficking Area and Gun Court. According to a defense attorney WJI contacted, she is less likely to see ENE-tracked charges without another charge present in the case, while Dávila deals with general crimes. In the same reporting period, Judges William Sosnay (10 cases) and Rebecca Keifer (17 cases) operated at the opposite end of the spectrum, never imposing a sentence more lenient than what was requested by the ADA, according to ENE. The value, morality, or correctness of the more or less lenient sentencing practices isn’t really the issue to me. It’s the effect the disparity in sentencing has on a case—the sense that everyone around the judge is playing the odds, in part predicated on what type of sentence they think the defendant may get. I’ve seen, and WJI has reported on, other ENE reports. It’s easy to gloss over what seems like a significant disparity and even easier to label the judges as merely more lenient or harsh, especially if you’re not convinced incarceration affects crime or is the ultimate deterrent. But it caught my attention this time, because I experienced these inconsistencies during the same reporting period. What always seemed like a simple fact of practice—that some judges are more lenient, that some ADA’s are harsher, that some defense attorneys are less reasonable—feels different when it is happening to you. In June of 2025, my husband was biking to work when he was hit by a vehicle driver who ran a red light and then fled the scene. The perpetrator’s reckless driving caused great bodily harm and by all accounts should have taken my husband’s life, though he miraculously survived. In May, the case against the perpetrator was dismissed without prejudice after the Milwaukee Police Department failed to locate and the district attorney’s office failed to personally serve a subpoena on a witness deemed essential for trial. Another witness seemed to suddenly lose their memory the weekend before they were set to take the stand. But before we knew these witnesses wouldn’t appear for trial, and before we knew the ADA would make the choice to dismiss the case without them, we were asked as victims to consider plea offers that were probationary in nature—some more harsh from the ADA, some more lenient from the defense attorney. This wasn’t because anyone thought mowing down someone on a bike and fleeing the scene merited such a plea. It wasn’t because the ADA questioned the defendant’s guilt. And it wasn’t just because the case was imperfect. We were told it was because of the judge’s sentencing record. The judge’s reputation is consistent with the ENE data. The judge was known to impose probation even in aggravated situations, so even if a trial resulted in conviction, we were warned not to expect incarceration. It’s impossible to say whether I would have advocated for incarceration. In an ideal world, all my family would really like is to keep the defendant from ever driving again. But that’s not a sentence the court can impose, and it’s also not the point. The sense that incarceration was totally off the table didn’t just seem to affect the plea; it seemed to affect the defense attorney’s expectations regardless of his client’s guilt or innocence. It seemed to affect the value of taking the case to trial. And it definitely impacted our perception of the criminal justice system in Milwaukee. The idea that practices from courtroom to courtroom, and indeed outcomes for similar misconduct, depend so much on what judge you randomly pull is tiresome in an already emotionally exhausting system. It makes one question the credibility of a system that purports to strive for impartiality and what we’re told is equal access to justice. We were never naive about the possible outcomes (including dismissal). It took a lot to even have the case investigated. I always anticipated the impact of ADA discretion on the case, and I understand that defense attorneys have an obligation to zealously protect their clients, but I honestly didn’t foresee the impact of judicial discretion in sentencing. Frankly, there was less of it in the jurisdiction where I practiced. I feel like we’ve accepted that balance in an elected judiciary includes some judges who sentence severely and some judges who don’t. But unlike in the Legislature, where a 50/50 split results in inaction for everyone, or a conservative majority results in conservative policies for everyone, a split across courts means that what you can expect from a sentence as a defendant, defense attorney, prosecutor or victim depends more on judicial disposition and less on individual conduct or the law. Overall, according to ENE’s report, sentences are tending more toward ADA recommendations since ENE began its court watch program in June 2024, with judges adopting more lenient sentences 52% of the time as compared to 72% of the time. While I don’t think ADA recommendations are a particularly telling metric, and we really don’t know how more or less lenient the sentencing is, I do know the lack of consistency across courtrooms is a tough pill to swallow when it’s happening. There’s a litany of criticisms that can be levied against the criminal justice system. And my sense, whether you agree with how things are currently structured or not, is that our courtrooms really are full of people trying very hard to do the right thing. Nevertheless, for a victim (and I assume for a defendant as well), the reality of disparate outcomes feels like a game. Who can get what from whom, with less focus on what’s right for the community, you, and whatever justice really means. In its report, ENE “recognizes the challenging responsibility judges face in balancing the unique facts of each case, the circumstances of the defendant, and the interests of justice.” The group acknowledges sentencing efforts by judges like “including educational sentencing components such as victim-impact essays and attendance at vehicular homicide hearings, which help offenders better understand the real-world consequences of reckless driving.” I recognize these challenges, too, and I recognize that we elect our judges (though many are appointed first) for their discretion, but I do wonder if we’ve lost some of the plot. To be clear, I think judicial discretion is a good thing. I think sentences tailored to individual defendants are a good thing. But if sentencing need only be “consistent and proportionate” within the confines of an individual courtroom, it may be worth questioning what those words really mean.
 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:    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 Alexandria Staubach
Gov. Tony Evers signed an executive order last month restoring a formal commutations process for the first time since Wisconsin enacted its Truth in Sentencing law in 1999, but the order’s effect is presently unclear. Critics of Evers’ order have been vocal, with Wisconsin Right Now claiming the order has “ended truth-in-sentencing in Wisconsin as we know it.” Sen. Van Wanggaard (R-Racine) said in an interview that Evers’ “goal is to reduce the prison population by just letting people out of prison; that’s not what prison was designed for." A commutation reduces a criminal sentence, substituting a milder punishment for what was originally imposed. Commutations generally apply to people in custody. The conviction remains on one’s record, but the person may be released after a shortened term. The governor issues formal commutations, but in Wisconsin a parole board historically also had the power to shorten sentences. Truth in Sentencing for the most part eliminated parole in Wisconsin. In 1999, it was one of just 14 states that wholly abolished early release by discretion of a parole board. Before then, incarcerated individuals had the opportunity to petition a parole board for early release after completing a portion of their sentence, in proportion to the severity of the crime. Parole boards considered how incarcerated time was spent, the wishes of any victim, and the effect on the community. Legally, a governor’s power to commute sentences was not affected by Truth in Sentencing. The power remains in the Wisconsin Constitution. But since Truth in Sentencing was adopted, its use dropped. Republican Gov. Tommy Thompson was the last to commute a sentence, issuing seven commutations. He left office in early 2001. Regardless of political affiliation, no governor has issued any commutations since. Evers’ executive order created a Commutation Advisory Board, which will be headed by Mel Barnes, the governor's chief legal counsel. Barnes also oversees the Pardon Advisory Board. Cindy O’Donnell will serve as vice chair of the Commutation Advisory Board. She previously served as deputy secretary of the Department of Corrections under Thompson, Gov. Scott McCallum, and Gov. Jim Doyle. O’Donnell serves on the Pardon Advisory Board as well. So, will the floodgates open? According to some, fears of a commutation flood are likely overblown. The executive order reinstating commutations may last only until Evers leaves office in early January 2027, as a new governor can order something different. What exactly can be done between the Advisory Board’s first meeting in June and the end of Evers’ tenure remains to be seen. Natalie Lewandowski, director of Milwaukee Justice Center’s Pardon and Expungement Clinic, told Wisconsin Justice Initiative that the executive order is “exciting in theory.” But she noted several unknowns and the tight timeline before Evers leaves office. MJC, through a network of volunteer attorneys, helps people prepare and file pardon and expungement applications. A pardon forgives an offense and excuses a person from criminal punishment. It often involves restoring civil rights as well. In practice, it typically applies to those who have served their sentences and some amount of time has passed afterward. Evers, for instance, requires an individual to have completed their sentence at least five years ago for pardon eligibility. While MJC is a listed resource in the governor’s executive order for those seeking commutation, the center has not worked with the prison population and does not currently have the infrastructure or budget to communicate with people who are incarcerated. Lewandowski said pardon applications typically take two years to process. How many applications the Commutation Advisory Board will be able to evaluate by the end of the year is a big question. “I think there are still a ton of unknowns," she said. While Evers has issued more pardons than any of his predecessors, they are still difficult to obtain. And because of the five-year post-sentence-completion requirement, pardons do not directly reduce the prison population. At a pardon hearing last year, O’Donnell called pardons an “extraordinary measure” on more than one occasion, before seeming to question whether an individual who bought one ounce of marijuana 13 years previously, had had enough time pass between his conviction and his application, notwithstanding that the man had the support of the judge who initially sentenced him. WJI has previously sought how many applications the Pardon Advisory Board receives versus how many pardons are granted but was informed the board does not keep such records. Under the executive order, to qualify for a commutation one must have completed at least half the imposed sentence or at least 20 years of a life sentence, cannot be serving a term for a sex offense or be required to register as a sex offender (currently or upon release), cannot have any unresolved criminal charges in any jurisdiction, and must be free of incidents of violent misconduct within the last five years of the current term of incarceration. Notice must be made to the circuit court that imposed the sentence, the office of the district attorney that prosecuted the individual’s case, and any victim registered with the Office of Victim Services and Programs. Those persons can all provide feedback to the Commutations Advisory Board. The board must consider the application, victim impact, public safety and the interest of justice, the applicant’s prison conduct report, and personal growth including education, rehabilitative programs, treatment, and work history. The Community’s Shannon Ross has advocated for the resurrection of commutations with others over the years. He is working with the Justice Forward Coalition, a group of formerly incarcerated members working in community to improve the state’s criminal justice policy through strategic advocacy. “None of us knew it was coming when it did,” said Ross on a call with WJI about the executive order. “We need to demonstrate success,” said Ross about both the applications and those who may have their sentences commuted. Justice Forward Coalition is working to fill gaps in the network of those who have helped with pardons and expungement. The group released a commutations guide for those who are currently incarcerated and is mobilizing volunteers to help review applications before they are formally submitted.  By Alexandria Staubach
The Wisconsin Court of Appeals yesterday affirmed the conviction of Kimberly Zapata, the former deputy director of the City of Milwaukee Election Commission, who unsuccessfully urged the court to overturn her convictions for voter fraud and public-office misconduct, arguing she was a whistleblower. A unanimous jury convicted Zapata in March 2024. The charges included one count of felony misconduct in public office and three misdemeanor counts of making a false statement to obtain or vote an absentee ballot. Milwaukee Circuit Court Judge Kori Ashley sentenced Zapata to nine months in jail, stayed in favor of 12 months of probation and 120 hours of community service. The opinion, written by Judge Sara Geenen and joined by Chief Judge Joseph Donald and Presiding Judge Pedro Colón, outlines Zapata’s scheme. Frustrated by the ease with which individuals could obtain absentee military ballots, Zapata requested three, one each for a fictitious Holly Jones, Holly Adams, and Holly Brandtjen. She assigned each a random home address in Milwaukee, Shorewood, and Menomonee Falls. She picked municipalities where she thought the clerks would not notice fraud. Then, using “WisVote”—a secure, employee-access, statewide voter registration database—Zapata retrieved the home address of “a state legislator because the legislator was the most vocal election fraud politician that she knew.” She had the absentee ballots mailed to the legislator. Clerks in all three municipalities mailed absentee ballots to the legislator’s address. Zapata presented a two-fold argument to the Court of Appeals. First, she contended that her conduct was not “for the purpose of obtaining” an absentee ballot because she intended that the absentee ballots be acquired by someone else. Second, she argued there was insufficient evidence to convict her of misconduct in public office because she was acting as a concerned private citizen demonstrating a loophole. Regarding whether Zapata generated the false ballots “for the purpose of obtaining” absentee ballots, Zapata argued that “obtaining” an absentee ballot meant physical possession. But the court agreed with the state that “obtaining” included constructive possession. “(B)y requesting the ballots, Zapata set off a series of actions she knew the ballots would be subjected to," Geenen wrote. While Zapata argued for a more rigid definition of “obtaining,” which is not defined by the statute, she “knew that by requesting the ballots, the ballots would be generated under the fake names that she provided” and “that the ballots, once generated per her request, would be sent to the address that she provided,” Geenen said. “Zapata controlled both the names under which the ballots would be generated and the destination to which those ballots would be sent.” Whether Zapata acted in her official capacity required “a material connection between the public official’s duties and powers and the forbidden act,” Geenen wrote. The court found such a connection. Zapata used her work laptop to request the ballots, her employee credentials to access the WisVote administrative website, and her administrative knowledge to target specific municipalities for sending ballots. All weighed against Zapata’s argument that she acted as a private citizen. “In our view, the State established a material connection between Zapata’s election fraud and the powers and duties inherent to her public office,” wrote Geenen. The court’s decision comes several weeks after another individual, Harry Wait, was convicted of fraud and identify theft after requesting ballots on behalf of Assembly Speaker Robin Vos and Racine Mayor Cory Mason in the same election cycle. Wait also purportedly sought to illuminate vulnerabilities in the voting system. |
Donate
Help WJI advocate for justice in Wisconsin
|
RSS Feed
