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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 Commutations Advisory Committee, which will be headed by Chief Legal Counsel Mel Barnes as chair. Barnes also oversees the Pardon Advisory Board. Cindy O’Donnell will serve as vice chair of the Commutations Advisory Committee. 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 commutation 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 Commutations 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. Ross “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.
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 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.  By Alexandria Staubach A recent Wisconsin Policy Forum report highlights problems in Wisconsin’s criminal justice system ranging from the state’s continued place as a national leader in the disproportionate incarceration of people of color to expected increases in costs associated with the state’s prison population. The April report, entitled Cross Examination: A comprehensive view of Wisconsin's criminal justice system, shows persistent troubling trends and hopes to be a “baseline assessment of Wisconsin’s criminal justice landscape.” Much in the report will not surprise readers current with Wisconsin’s criminal justice system, but the report's statistics show the context and alarming depth of some issues. For instance, Black residents composed 5.9% of Wisconsin’s population in 2024 but accounted for nearly a quarter of all criminal complaint case filings. Black residents are concentrated in Milwaukee, with 52.9% of the state’s Black population even residing in a single Milwaukee zip code. And 18.6% of Wisconsinites had a substance use disorder in 2022-2023, ranking the state 15th nationally. WJI evaluated the report with one question in mind: if case filings are down, arrests are down, and the volume of people on community supervision is down, how does Wisconsin continue to incarcerate more people year over year? While the report does not answer this question directly, it shows changes in the state’s prion population that may be key. Overall crime has decreased, but the number of people incarcerated on long sentences for violent crime has increased, incarcerations for intoxicated driving have grown significantly, and charging of at least one felony offense has increased in frequency. The report says “these trends have contributed to Wisconsin’s prison and community supervision rates remaining high even as overall crime rates fell between 2019 and 2023.” Who Wisconsin is incarcerating has evolved over time. Report data showed a “greater than expected” increase in incidents of arrest for older adults and a decline for youth. The numbers suggest the increase in arrests for older adults is driven predominately by charges for those arrested for driving under the influence. Adults aged 50 and above accounted for 20.4% of intoxicated driving arrests, an outsized share of their otherwise much lower offense rate. Only 4.7% of total arrests are for individuals aged 60 and older, but total arrests for that age group increased by 24.8% from 2019, with a 56.4% increase for drug or substance abuse related offenses.  Graph from the Wisconsin Policy Forum 2026 "Cross Examination" report, showing the increase in incarceration rate for older adults in Wisconsin since 2010. The report suggests that while Black Wisconsinites experience a large proportion of arrests, “it is possible that the deployment of law enforcement personnel to particular municipalities or neighborhoods of certain racial or ethic groups makes it so that crime committed by the individuals who live there is more easily detected.” Given Milwaukee’s relatively low clearance rates (27.9% for the Milwaukee Police Department versus 53.7% for all other agencies in Wisconsin), and that most of the state’s Black residents live there, raising clearance rates in the city might also affect the demographics of those arrested in the state. The report notes that MPD’s management of a larger population and its greater share of more violent crimes make a direct comparison of its clearance rate unproductive. Statewide, white individuals represented 81.4% of all arrests for driving under the influence, 63.9% of all theft offenses, and 66.2% of all drug/narcotic offenses. In Milwaukee, drug crimes (2.8%), fraud (1.8%), theft (1.7%), and driving under the influence (1.7%) accounted for a smaller proportion of arrests than statewide. Case filings, like arrests and crime more broadly, are down statewide. Declines in filings are also more pronounced in some demographics than others. In 2005, 102,679 cases were filed against white individuals. That decreased 40.9% to 60,695 in 2024. Meanwhile, case filings against Black individuals fell, but by a smaller margin: from 35,616 cases in 2005 to 25,682 in 2024 (a 27.9% drop). U.S. census data shows that Black individuals have made up roughly 5.6% of the state’s total population during this same time frame. The report attributes much of the decline in case filings to a drop in misdemeanor charges but highlights an increase in felony filings. The cases in which the most serious offense was bail jumping or escape saw significant growth from 2014 to 2024.  Graph from the Wisconsin Policy Forum April 2026 "Cross Examination" report, showing changes in felony and misdemeanor case filings by type. Prison admissions are up for new sentences, but down for revocations of those on release. Prison admissions due to revocations (without a new sentence) still compose more than a quarter of all prison admissions but remain below levels seen prior to the pandemic, when Wisconsin’s prison population peaked. The report says this decline may be influenced by the Department of Corrections’ “Evidence-Based Response to Violations program,” though many remain skeptical of its efficacy. Admissions for revocations involving new charges, however, peaked in 2023. Prison admissions for intoxicated driving offenses increased dramatically, from 386 in 2000 to 1,314 in 2023. The community supervision population shrank moderately after 2019, but significant differences for demographic groups exist as shown in the chart below.  Graph from the Wisconsin Policy Forum's 2026 "Cross Examination" report, showing the rate of community supervision in 2023 for various demographic groups. By Alexandria Staubach There’s some consensus among lawyers that ethics rules already cover the responsible use of generative artificial intelligence in court submissions, but a recent petition to the Wisconsin Supreme Court is asking for more. The rule change petition seeks to mandate explicit disclosure to the court and disclosure by the court when generative AI is used in the preparation of everything from court filings to opinions. The petition was filed by frequent pro se (self-represented) litigant Jay Stone. Stone’s petition “has a lot of the hallmarks of a ChatGPT document itself,” attorney Stacie Rosenzweig recently remarked to Wisconsin Justice Initiative. Rosenzweig, a partner at the law firm Halling & Cayo, specializes in legal ethics and professional responsibility. She said by email that while it would be unusual for Stone’s petition to be adopted by the Supreme Court as is, the petition “could spur some further discussion or an invitation from the Court for comments.” Rosenzweig discussed “a bit of debate” in ethics circles about the necessity of additional guidance. According to personal injury attorney Ann Jacobs, Wisconsin’s code of legal ethics should be sufficient to cover the landscape regarding AI use. Jacobs recently gave a continuing legal education presentation on the topic. She told WJI that rules regarding confidentiality, candor, and competence are sufficient to protect against the dangers of generative AI. The trouble, though, she said, is that those rules are not always followed. For example, earlier this year Kenosha County District Attorney Xavier Solis found himself in hot water after failing to disclose the use of AI in a brief he submitted to a court. The brief included hallucinated (made-up or fake) citations and ultimately resulted in sanctions. In late 2025, a misattributed citation by Wisconsin Supreme Court Justice Annette K. Ziegler in a dissent regarding congressional redistricting had some speculating about the use of AI. “It looks and quacks like an AI generated error,” said Jacobs. And there are now a handful of databases tracking legal decisions in which generative AI produced hallucinated content. One demonstrates that internationally, United States judges and arbitrators are by far the most frequent offenders in this area, with 871 offenses. Canada (139 offenses) and Australia (73 offenses) are next in line. The most prolific of the watchdog projects is run by Damien Charlotin, a senior research fellow at HEC Paris, a top-ranking European business school. Another newer and less robust Charlotin database tracks legal cases in which generative AI was used as evidence to argue or prove a point. But the use of AI itself isn’t the issue. Instead, the problem is the technology’s propensity for inaccuracy. Courts across the United States have sanctioned, fined, and otherwise provided extreme consequences for attorney misuse of generative AI, primarily viewing them as ethics violations. In Wisconsin, Supreme Court Rule 20:1.1 governs attorney competence about technology: “(A) lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology,” the rule says. Other rules regarding client confidentiality and candor to the court supplement that rule. For example, using AI may involve an attorney providing sensitive client information to an unsecure system. That implicates a client’s confidentiality and triggers a lawyer’s obligation to communicate with the client, Jacobs said. Rule 20:3.3 requires candor to the tribunal. “You cannot have read a fake case, which means your work has not been thorough,” said Jacobs. In July 2024, the American Bar Association issued a formal opinion on attorney use of generative AI. It cited existing ethical obligations “such as those relating to confidentiality, communication with a client, meritorious claims and contentions, candor toward the tribunal, supervisory responsibilities regarding others in the law office using the technology and those outside the law office providing (generative AI) services and charging reasonable fees.” But what’s happening in practice is nevertheless evolving, shaped by local rules and sanctions when things go awry. Kenosha County (where petitioner Stone lives) and Waukesha County have local rules requiring disclosure to the court regarding AI use.* Complicating the issue is little specific instruction for litigants who represent themselves—which generative AI may encourage more people to do. Some, like Stone, believe that upfront disclosure of generative AI use should be a requirement moving forward. No stranger to litigation, Stone has a handful of what he calls “election integrity” cases pending in the Court of Appeals and lower courts. He used AI in many of them. “It’s a tremendous tool,” Stone said on a call with WJI. “But it can be very harmful.” Throughout his litigation, Stone observed there was no AI disclosure requirement for pro se litigants. Holding pro se litigants to the same standards and expectations of attorneys is based on caselaw. He feels disclosure is the right way to go. “I believe in full transparency,” he said. The current rule change petition would require a self-represented litigant who uses a generative AI tool in preparing any filing or other written work product submitted to a state tribunal to independently review and verify the accuracy of all statements of fact and law and the authenticity of all citations before filing. The pro se litigant would have to disclose such use in the same manner as an attorney. The proposed rule emphasizes that existing ethical duties of competence, confidentiality, candor, and supervisory responsibility apply fully to the use of AI tools, Stone wrote in the petition. For Rosenzweig, a rule applicable to pro se litigants makes more sense as a rule of civil procedure. “Perhaps disclosure rules, more generally, and applied across the board, are a good stopgap,” Rosenzweig said. “(T)hey’ll remind people—lay and lawyer—of their obligations.” But we may have already entered a world where most people use AI without even knowing it. “I think eventually we won’t need disclosure,” said Rosenzweig. “Either AI will fizzle as a fad, or will be integrated into so much that affirmative disclosures would be as useless as disclosing whether you used Google or a cloud server.” The Supreme Court has not yet taken any action on Stone's petition, known as petition 26-02. *Correction: The initial version of this story indicated that Kenosha and Waukesha counties were the only circuit court jurisdictions with a local rule about AI use. Following publication, WJI learned that Portage County, too, has a rule requiring disclosure of AI use (Portage County Circuit Court Rule 2.15). If you know of other Wisconsin circuit courts with AI disclosure rules, please let us know.  Suggested disclosure from Stone's rule change petition. City of Milwaukee commission to study lack of enforcement of housing voucher antidiscrimination laws4/1/2026  By Alexandria Staubach
A Milwaukee County ordinance makes discrimination against housing voucher holders illegal, but enforcement is essentially nonexistent. A City of Milwaukee agency is now looking at the issue. In 2018, then-Milwaukee County Supervisor Marina Dimitrijevic sponsored and helped pass the county ordinance that made discrimination against housing voucher holders illegal. But the county failed to develop a serious enforcement mechanism and has never litigated a complaint, says Stefanie Ebbens, senior administrator of the Inclusive Communities Program at Metropolitan Milwaukee Fair Housing Council. FHC is a local nonprofit that operates a full-service fair housing program. Private landlords are not required to opt into the subsidized housing voucher (known as section 8) program, but if they do, they cannot then discriminate against those who use them. Discrimination against voucher holders isn’t just illegal at the local level. Wisconsin’s fair housing law also prohibits landlords from discriminating based on a person’s “lawful source of income,” which includes vouchers with monetary value. Nevertheless, in a decision from the Seventh Circuit Court of Appeals, which includes Wisconsin, the judges questioned whether federal rent vouchers fit within the meaning of "lawful source of income." The City of Milwaukee’s Equal Rights Commission is now taking a closer look at the county ordinance and others around the state that are designed to protect individuals who have managed to obtain a subsidized housing (known as section 8) voucher to help cover the cost of rent. At a commission meeting in February, Ebbens told the commission about the frustration she and her clients experience when trying to secure housing. She said Milwaukee landlords have become “more bold because they know no one is coming after them.” FHC’s Megan Wanke presented problematic trends and discrimination in the acceptance of vouchers in Milwaukee. Maps in the presentation showed a disproportionate concentration of households using federally subsidized vouchers in Milwaukee’s highest poverty areas, which remain consistent with historical racial segregation and Milwaukee’s long history of redlining. The problem is a mismatch of available properties and people receiving housing vouchers. FHC shared data from a Center on Budget and Policy Priorities think tank study conducted between 2017 and 2021, which showed that while only 20% of the city’s voucher affordable properties are located high-poverty census tracts, 32% of voucher holders reside in them. Meanwhile 34% of the city’s voucher affordable housing properties are in low-poverty census tracts, and only 17% of the city’s voucher holders live there. FHC recently conducted its own testing investigation, which showed that 45% of major property owners in Milwaukee prohibit or restrict the use of section 8 vouchers, some with policies that are exclusive to Milwaukee. Wanke told the commission that about three-fourths of those property owners refuse to accept vouchers at all, while the others disqualify voucher holders with targeted restrictions that effectively cut them out of the market. One company in fact accepts voucher renters, just not in Milwaukee. Wanke shared that the investigation involved more than 7,000 residential units. Wanke said the difference in where voucher holders are concentrated cannot be explained by housing stock or average cost of rent, and it has “despicable racial discrimination implications.” Section 8 vouchers belong to a rental assistance program managed by the U.S. Department of Housing and Urban Development. They are supposed to ensure that low-income families, seniors with fixed incomes, and disabled individuals have access to private-market housing. Participants pay roughly 30% of their income toward rent and utilities. A local public housing agency pays the remainder directly to landlords. The public housing agencies act as a conduit for the federal funding and ensure that rent makes it directly into landlords’ hands. The agencies have broad discretion in running their programs, which impose strict income requirements. The waitlist to receive benefits is often years long. In Milwaukee, the program is administered by the Housing Authority. Its waitlist is so long that it is currently closed. Participants are subject to criminal background checks that can be disqualifying. The local program must “accurately distinguish between criminal conduct that indicates a demonstrable risk to resident safety and property and criminal conduct that does not,” according to the Milwaukee Housing Authority’s Admissions and Continued Occupancy Policy. Despite these protections, many still have trouble finding landlords willing to take their vouchers. Members of the public who testified at the commission’s meeting shared stories of landlords “ghosting” them at showings or failing to return calls. One woman, Katravia Lee, shared her struggles in attempting to find a landlord willing to accept her voucher in time for her to use it, after she had waited years to receive the voucher at all. Lee also expressed frustration at paying as much as $75 to fill out an application, just to have a landlord decline her without providing a reason. According to Wanke, the pressure to find housing reduces a renter’s desire to file a complaint to enforce the antidiscrimination laws. Complaints would take months to resolve, which they don’t have. Also, many who feel or know they have been wrongfully discriminated against also do not want to risk being seen as problematic. And despite the 2018 enactment of the county ordinance, there is no clear path to file a complaint with the county, Ebbens told the city commission. Milwaukee County's corporation counsel could not be reached for comment on this issue. The issue is not as pronounced in Madison. Wanke and Ebbens said that Madison has a more comprehensive and structured administrative process under a city antidiscrimination ordinance. Commission Chair Tony Snell Rodriguez assured community speakers that the commission would take action, ordering a comparative analysis of the Wisconsin county and municipal fair housing law from the city’s Legislative Reference Bureau and creating a subcommittee to evaluate whether the commission can enact more robust protections. Note: Author Alexandria Staubach serves on Milwaukee's Equal Rights Commission.  By Alexandria Staubach
A Brown County man recently won the right to withdraw his guilty plea after the Court of Appeals held that drug task force investigators used impermissible coercion to gain entry to his home. “This case is a classic example of law enforcement tactics that deeply undermine individual rights and ultimately undercut the state’s interest in investigating and prosecuting crimes,” said defense attorney and Wisconsin Justice Initiative President Craig Johnson. The District 3 per curiam (nonprecedential) opinion issued from the three-judge panel of Presiding Judge Lisa K. Stark and Judges Thomas M. Hruz and Gregory B. Gill. Cris Monge-Davila entered a no-contest plea to a drug-related charge after the trial judge denied his motion to suppress evidence found in a search of his apartment. Whether the search was lawful hinged on whether Monge-Davila willingly allowed officers into his home. In the trial court, the state maintained that Monge-Davila consented to officers’ search or his home. Monge-Davila argued he never gave it. Brown County Circuit Court Judge Marc C. Hammer concluded after a suppression hearing that Monge-Davila consented, as he was heard on body-camera footage saying, “I don’t have nothing, but okay.” Monge-Davila “weighed the options and wanted to minimize the possibility of additional problems,” Hammer said in his ruling. The Court of Appeals disagreed. Looking at the evidence and facts of Monge-Davila’s interaction with officers, the appeals court rejected the state’s characterization of the encounter as “undramatic.” The appellate court said it “view(ed) the interaction as being rather disagreeable and coercive.” In July 2022, members of the Brown County drug task force were executing a warrant at the apartment across the hall from Monge-Davila’s. During that operation, Monge-Davila exited his apartment to find “several armed officers wearing tactical vests, one of whom immediately began asking if he had drugs in his apartment,” wrote the court. Body-camera video presented at the trial court suppression hearing and reviewed by the Court of Appeals showed several officers looking inside Monge-Davila's apartment before he closed the door behind him. The body-cam footage showed at least two officers had Monge-Davila physically cornered at all times. They frisked him and took his phone. One officer grabbed Monge-Davila by the arm, preventing him from leaving. According to the opinion, more than seven officers were present in the hallway when an officer asked Monge-Davila, “Is there some fucking weed coming out of your apartment? I thought I smelled something.” Monge-Davila replied, “No.“ Officers suggested they could get a warrant but would not be forgiving if they had to “go the extra mile.” The appeals court found that any consent given by Monge-Davila was not voluntary. “'Consent to search must be unequivocal and specific, and it must be freely and voluntarily given,'” the court wrote, citing case law. “'Consent is not freely and voluntarily given if it is the result of a mere acquiescence to a claim of lawful authority.'” “Throughout the interaction, Monge-Davila repeatedly expressed to the officers that he did not understand what was going on and that he did not have drugs in his apartment,” wrote the court. He had also rejected officers’ prior requests to come inside his apartment. “The officers made a show of force and otherwise engaged in coercive actions,” the court said. “These circumstances would demonstrate to any reasonable person that the interaction would not end until Monge-Davila provided his consent,” the court wrote. The appeals court remanded the case with directions to the trial court to allow Monge-Davila to withdraw his plea and grant the motion to suppress. “A case like this reinforces the importance of a trial judge’s role in deterring unconstitutional conduct by police through vigorous enforcement of the exclusionary rule,” said Johnson. The decision is available here. By Alexandria Staubach District 4 of the Wisconsin Court of Appeals ruled recently that in a preliminary hearing in a criminal case there is no requirement that any witness have firsthand knowledge of facts of the alleged crime; instead, a mere reading of the criminal complaint may suffice to bind a defendant over for trial if the complaint is thorough and detailed enough. While the court said it would be “difficult to establish generally applicable rules," it rubber-stamped a prosecution in Rock County where the totality of evidence presented by the state was an investigator's reading aloud of the probable cause section of a criminal complaint. Preliminary hearings exist in felony cases to determine whether probable cause exists that an offense was committed on a given day and that the accused is the person who did it. If a judge finds probable cause after the hearing, the case is “bound over” for trial or plea negotiations. If not, the case is dismissed. Preliminary hearings are not mini-trials. Credibility of witnesses is not at issue, and the state is given significant benefit of the doubt. A defendant’s ability to confront witnesses or undermine the state’s case at a preliminary hearing is very limited under Wisconsin law but includes the ability to call defense witnesses. A 2011 statute expanded the field of admissible evidence at a preliminary hearing to include hearsay evidence. Hearsay statements are made outside of court, sometimes second or third hand, and offered for the truth of what is asserted. Hearsay is generally deemed unreliable in court proceedings because the person whose version of events is presented is not in court and not subject to cross examination. In a case challenging the constitutionality of admitting hearsay evidence in preliminary hearings, the Wisconsin Supreme Court in 2014 declined to impose restrictions regarding the use of hearsay at such hearings. The high court found that circuit courts are evidentiary gatekeepers obligated to consider the reliability of the prosecution's hearsay evidence on a case-by-case basis to assess whether the state makes a plausible showing of probable cause.  Blanchard This week’s District 4 Court of Appeals decision went farther by concluding that under state statutes hearsay alone can be sufficient. Presiding Judge Brian Blanchard wrote for the three-judge panel, joined by Judges JoAnne Kloppenburg and Rachel Graham.
Latres Christopher Robinson had been charged with several misdemeanors and felonies allegedly occurring on two separate dates. In the circuit court during Robinson’s preliminary hearing, a Rock County District Attorney’s Office investigator, with no independent knowledge of the facts underlying the allegations, was called as the state’s sole witness and permitted to read the probable cause section of the criminal complaint as evidence for the court. That section of the criminal complaint was detailed and purported to summarize information in police reports. The investigator identified Robinson but was asked no further questions by the prosecution. The defense asked five questions, all of which demonstrated that the investigator had no knowledge of the facts of the case other than what he had read from the complaint. At the end of the hearing, the defense moved to dismiss the case. As described by the Court of Appeals, the trial court concluded that the investigator’s recitation did “not provide sufficiently reliable evidence” because “the evidence consistently involved three levels of hearsay, sometimes four.” The judge found “the preliminary examination was defective because the prosecution presented only one witness who merely parroted the complaint.” Nevertheless, the trial court denied the motion to dismiss “on the ground that the preliminary examination defects constituted harmless error.” The Court of Appeals found that the multiple levels of hearsay were not problematic. The “assessment of reliability of hearsay in this context does not turn on a mechanical tallying of levels of hearsay,” Blanchard wrote. Instead, “the assessment of reliability at a preliminary examination turns on a consideration of the same rationales that render certain types of hearsay statements admissible,” he wrote. “This is because the legislature decided to enact an unqualified elimination of the general rule barring hearsay in this context,” and “because defendants are protected by the obligation of a court to assess whether the evidence presented at a preliminary examination, including hearsay evidence, is sufficiently reliable, as part of the court’s overall determination of whether the State has made a plausible showing of probable cause.” Blanchard said the court was not creating a general rule that hearsay statements quoting law enforcement agents are necessarily reliable, but that in Robinson's case the statements were thorough and "convey(ed), at least on their face, timely accounts by people with first-hand information, given with what could be appropriate motivations to provide accurate information to police." Robinson argued that permitting the state to proceed in this manner deprived defendants of any “realistic ability to challenge the plausibility of the State’s case.” He called allowing the prosecution to merely read the complaint at the preliminary hearing “a mere façade of justice,” especially when six law enforcement officers were named in the complaint and could have testified. Blanchard wrote that “there is no basis for such a requirement in current statutory language.” Criminal defense attorneys are concerned. "This case unfortunately takes us one more step down the road toward the complete legal irrelevance of the preliminary hearing in felony prosecutions in Wisconsin," defense attorney Craig Johnson told Wisconsin Justice Initiative after seeing the decision. "Preliminary hearings have historically served an important gatekeeping function by stopping weak cases from proceeding and sparing those who were falsely accused from further burdens. They were an important early test of probable cause and the strengths of the state's case," he said. "Now they are more like empty shells that provide almost no due process protections." You can read the full opinion here. Note that Johnson is WJI's board president. By Alexandria Staubach As Wisconsin prepares for a Supreme Court election between two appellate judges, examining judicial track records is helpful for understanding a candidate's potential impact on the high-court bench. Past rulings can provide insight on how the candidates approach the cases before them, reason and interpret law to get to their decisions, and explain those decisions to lower courts and the public. Court of Appeals Judges Maria Lazar and Chris Taylor vie for an open seat on the Supreme Court. The election is April 7. Voters may be familiar with some of the high-profile roles each judge held before their appellate court positions. Taylor served as the public policy director for Planned Parenthood for a decade, held a seat in the Wisconsin Legislature, then became a Dane County Circuit Court judge. Lazar worked in private practice for business clients, had a high-profile position in then-Gov. Scott Walker’s Department of Justice, and then was a Waukesha County Circuit Court judge. Voters are likely less familiar with the candidates’ tenures on the Court of the Appeals. The work of the Court of the Appeals is inherently blander than the candidates’ lawyer or trial judge work, but it is likely much more representative of what they will encounter on the high court. With 16 judges employed across four districts, the Court of Appeals resolves appeals covering every area of the law. Lazar sits in District 2 (comprising the counties surrounding Milwaukee County) and Taylor sits in District 4 (comprising Dane County and the southwest portion of the state). On average, a District 2 judge would resolve 185 cases in a year and a District 4 judge 132. Unlike the Wisconsin Supreme Court, the appeals court rarely hears oral arguments, however. Sparked by an audience question at a recent presentation by WJI about the election, WJI has examined a variety of appellate opinions authored by the two candidates and is providing a selection of them for voter information. District 2 (Lazar) is the busier of the two jurisdictions and sometimes lands high-profile cases, such as those involving the Legislature or Wisconsin Department of Justice. District 4 (Taylor) is the next busiest appellate court and includes most appeals from Dane County Circuit Court. For each judge we’ve included three opinions on which she was the lead author: one criminal case, one family law case, and one civil case. All but one are published cases. We could not find a recent published opinion by Lazar directly related to criminal law so have provided an unpublished opinion she authored. Generally, published opinions are considered precedent and can be cited as controlling law for later cases, while unpublished authored opinions may be cited only for persuasive purposes. Later this week, the Wisconsin Supreme Court will hear oral argument over another opinion Lazar authored regarding the use of state settlement funds. Below we quote short excerpts from each case and link to the full opinions for those who want to review more of the candidates’ reasoning and writing. We have removed citations for ease of reading. Italics are WJI’s additions. The candidates are presented alphabetically by last name.  Court of Appeals opinions by Judge Maria Lazar Wildwood Estate LLC v. Village of Summit — Civil An individual’s “right to maintain control over his [or her] home, and to be free from governmental interference, is a private interest of historic and continuing importance.” The “valuable rights” associated with this interest include “the right of sale, the right of occupancy, the right to unrestricted use and enjoyment, and the right to receive rents.” It is for this reason that municipalities may not pass zoning ordinances under the “guise of the police power” without following the procedural steps designed to protect citizens’ rights. Because the Ordinance changes the allowed uses of property and includes multiple indicia of traditional zoning ordinances, the circuit court correctly concluded that it was a zoning ordinance. And, as the circuit court noted, the Village’s passage of the Ordinance sidestepped the proper process to enact a zoning ordinance. We conclude that the Village did violate Wildwood’s procedural due process rights. Danielson v. Danielson – Family law The ultimate question is whether social security benefits expected for one spouse fall within the factors a trial court should consider in achieving an equitable marital property division. Clearly, the court is to consider the “contribution of each party to the marriage” and the salaries the spouses earned. The trial court should also look to the “economic circumstances of each party, including pension benefits,” even if it determines not to divide them between the spouses. Moreover, we conclude that social security benefits are “substantial assets not subject to division by the court” and count as “other factors [that] the court may in each individual case determine to be relevant.” Our supreme court has “repeatedly stated that ‘the aim of all statutory construction is to discern the intent of the legislature,’ and that a ‘cardinal rule in interpreting statutes’ is to favor a construction which will fulfill the purpose of the statute over a construction which defeats the manifest object of the act.” State v. Baker – Criminal The State charged (Ashley Rae) Baker with one count of carrying a concealed weapon without a license. Baker filed a motion to suppress the evidence, asserting that (Officer Michael) Moore did not have a legal basis to search her purse without a warrant. At the hearing on Baker’s motion, Moore was the sole witness. He testified to the facts above and stated that his search of the purse was based on the “totality of everything,” including his observation of Baker coming out of a house known for drug activity and the marijuana found in the vehicle. He expressed a concern for “the potential for any concealment of other items,” saying that “any time that someone gives us a breadcrumb” it could be “to deter finding the loaf of bread.” He further noted that he believed Baker may have had paraphernalia or drugs on her person or with her, because (in addition to the shake found throughout the vehicle) the marijuana found in the center console area “would have … been essentially under her left elbow” while she was in the front passenger seat. …. …. Baker was seen leaving a house known for active drug activity after a ten-minute visit and was riding in a car that had marijuana and drug paraphernalia throughout, including approximately one half gram of marijuana and a marijuana grinder between her and the driver—“essentially under her left elbow.” We agree with the circuit court’s assessment that this evidence is sufficient to establish a “nexus between the defendant and the drugs in the car.” This is not a case of guilt by association—which could be said if, for example, the only marijuana found prior to the search of Baker’s purse had been the marijuana blunt in her companion’s pocket—but rather a case where Moore’s belief that Baker was committing the crime of possessing marijuana was reasonable under the totality of the circumstances.  Court of Appeals opinions by Judge Chris Taylor
Hubbard v. Neuman – Civil We reject Dr. (Carol) Neuman’s argument that it “would lead to absurd and unworkable results” if a physician who does not perform the procedure at issue has a duty to inform the patient about the availability, benefits, and risks of reasonable alternate treatment options. According to Dr. Neuman, this would result in discouraging “the intra-disciplinary communication and cooperation that is critically important to effective patient care.” For instance, Dr. Neuman asserts that, if this duty is not limited to the physician actually performing the surgery or procedure, then all family practitioners or primary care providers who ever refer a patient to a specialist could be liable if the referring physician fails to disclose the risks associated with the care or treatment provided by the specialist. As explained above, the allegations in the complaint, and the reasonable inferences, assert that Dr. Neuman was (Melissa) Hubbard’s treating OB/GYN, had expertise as an OB/GYN in the treatment options for pelvic endometriosis, diagnosed Hubbard’s pelvic endometriosis, was actively involved in the planning and preparations for the removal of Hubbard’s ovaries during the February 2018 surgery, initially planned to perform the removal of Hubbard’s fallopian tubes, ovaries, and uterus during that surgery, and recommended that Dr. McGauley remove Hubbard’s ovaries. Recognizing that Hubbard has alleged sufficient facts to support a claim that Dr. Neuman had a duty to inform Hubbard in this situation protects Hubbard’s ability “to intelligently exercise [her] right to consent or to refuse the treatment or procedure proposed.” J.J.D. v. M.W. – Family law To protect the rights of a parent in a TPR (termination of parental rights) case, if the parent seeks to admit to grounds supporting the termination, “[t]he circuit court must engage the parent in a colloquy to ensure that the plea is knowing, voluntary, and intelligent.” “This colloquy is governed by the requirements of WIS. STAT. § 48.422(7) and notions of due process.” …. Our supreme court has identified additional colloquy requirements to protect a person’s parental rights. A circuit court must ensure that the parent is “informed of the statutory standard the court will apply at the second stage” of the TPR proceedings; that is, that the child’s best interest will govern. The court must also ensure that the parent understands potential outcomes of the second stage, though it is not required to “‘inform parents in detail of all potential outcomes.’” Rather, the court must determine that the parent understands that a termination of parental rights or dismissal of the TPR petition are two possibilities. State v. Anderson – Criminal The caution with which we are instructed to approach juvenile confessions is with good reason. As the United States Supreme Court has recognized, “children ‘generally are less mature and responsible than adults,’” “lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” and “are more vulnerable or susceptible to … outside pressures.” As our supreme court has recognized, children are “more likely to want to please and believe police officers because they are authority figures” and “are incapable of fully realizing the consequences of their decisions.” Accordingly, the same police pressure that may not be coercive for an adult suspect may be coercive for a juvenile suspect.  The Wisconsin State Capitol. Photograph by Margo Kirchner. By Alexandria Staubach
We continue our summary of justice-related bills and those with significant potential to impact the rights of marginalized populations in Wisconsin. Consistent with part 1 of this post, these are bills passed in the final weeks of the last substantive legislative of this term. Limited legislation will be produced until January 2027. At the end you’ll find bills that have passed in the Assembly and could still be taken up by the Senate when it convenes for a “limited-business” session in March. Six new laws create crimes or increase penalties for criminal conduct despite a failure (thus far) to pass legislation that could help ease the burden on an already stretched criminal justice system, even as Wisconsin creeps closer to record-breaking incarceration and overcrowding in its prisons. As of Feb. 20, the Wisconsin DOC in-custody population was 23,461, while prison population data shows that the system is designed to house 17,822 individuals. Nearly every adult institution continues to operate above capacity. Of specific note, Waupun Correctional Institution, a facility that has been the subject of federal investigation and several indictments over employee conduct and prisoner deaths since June 2023, is operating above capacity. It was previously the only maximum security institution operating below capacity but crossed that threshold in late January 2026, adding 46 new individuals to its population in the last 24 days. The summaries below come directly from descriptions of the bills written by the Legislative Reference Bureaus. Italics are additions by Wisconsin Justice Initiative, except as to SB 431. New crimes and increased penalties AB 677 Creating a crime of grooming a child for sexual activity Under current law, child enticement is a Class D felony. Child enticement is the act of causing or attempting to cause a child to go into any vehicle, building, room, or secluded place for various sexual purposes, including sexual contact or sexual intercourse; prostitution; to expose a person’s genitals, pubic area, or intimate parts to the child or to cause the child to expose his or her genitals, pubic area, or intimate parts; or to record the child engaging in sexually explicit conduct. This bill creates a crime of grooming a child for sexual activity. Under this bill, no person may engage in a course of conduct, pattern of behavior, or series of acts with the intention to condition, seduce, solicit, lure, or entice a child for the purpose of engaging in sexual intercourse or sexual contact or for the purpose of producing, distributing, or possessing depictions of the child engaged in sexually explicit conduct. The bill provides examples of a course of conduct, pattern of behavior, or series of acts that could constitute grooming, including verbal comments, suggestions, or conversations of a sexual nature directed toward a child; inappropriate or sexualized physical contact; written, electronic, or digital communications to seduce, solicit, lure, or entice a child; and isolating a child. A person who is convicted of the crime of grooming a child for sexual activity is guilty of a Class G felony, except that, if the person is in a position of trust or authority over the child, the classification increases to a Class F felony; if the child has a disability known to the person, the classification increases to a Class E felony; and if the violation involves two or more children, the classification increases to a Class D felony. Additionally, the person is subject to consequences for committing a child sex offense such as the requirement to register with the Department of Corrections as a sex offender. The crime does not apply to a person who is 18 or under if it involves a child who is not more than four years younger than the person unless the violation involves force, coercion, or abuse of a position of trust or authority over the child. SB 431 Expansion of permitted discrimination based on arrest record under the Fair Employment Act This bill changes the circumstances under which an employer or licensing agency may consider pending charges against an individual under the fair employment law when making employment or licensing determinations. Under the current fair employment law, it is generally an unlawful act of employment discrimination for an employer or a licensing agency to refuse to hire, employ, admit, or license any individual; to bar or terminate an individual from employment; or to discriminate against any individual in promotion, in compensation, or in terms, conditions, or privileges of employment or labor organization membership because of the individual’s arrest record. “Arrest record” is generally defined as information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted, or tried for any felony, misdemeanor, or other offense. In Oconomowoc Area School District v. Cota, 2025 WI 11, the Wisconsin Supreme Court ruled that the phrase “other offense” encompasses noncriminal offenses and that, therefore, the prohibition against arrest record discrimination extends to pending charges other than criminal charges. However, under certain exceptions to the foregoing prohibition, it is not employment discrimination because of arrest record to refuse to employ or license, or to suspend from employment or licensing, an individual because the individual is subject to a pending charge if the circumstances of the charge substantially relate to the circumstances of the particular job or the licensed activity. The bill eliminates the requirement, in the exceptions to the prohibition on arrest record discrimination, that the pending charge be a criminal charge. SB 610 Increasing the maximum penalty for certain controlled substance offenses if the violation occurs near a homeless shelter Current law prohibits a person from delivering or distributing, or possessing with the intent to deliver or distribute, cocaine, cocaine base, fentanyl, a fentanyl analog, heroin, phencyclidine, lysergic acid diethylamide, psilocin, psilocybin, amphetamine, methamphetamine, methcathinone, or any form of tetrahydrocannabinols. The penalty for violating the prohibition varies by substance and amount, but current law increases the maximum term of imprisonment for violating the prohibition by five years if the violation takes place on or in, or within 1,000 feet of, a park, a jail, a multiunit public housing project, a public swimming pool, a youth or community center, a school or a school bus, or the premises of a treatment facility that provides alcohol and other drug abuse treatment. This bill adds that the maximum term of imprisonment may be increased by five years if the violation takes place on the premises of a homeless shelter or within 1,000 feet of the premises of a homeless shelter. Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report. AB 109 Increased penalties for crimes against adults at risk This bill allows a term of imprisonment that is imposed for a criminal conviction to be increased in length if the crime victim was an adult at risk. Under the bill, a maximum term of imprisonment of one year or less may be increased to two years; a maximum term of imprisonment of one to 10 years may be increased by up to four years; and a maximum term of imprisonment of more than 10 years may be increased by up to six years. Under the bill, the term of imprisonment may be lengthened irrespective of whether the defendant knew that the crime victim was an adult at risk. The bill also increases the severity of crimes for sexual assault of an at-risk adult, permits asset seizure and freezing of a defendant charged with financial exploitation of an “elder person,” and matches the set of penalties that apply to physical abuse of an elder person to those for an adult at risk. AB 89 Retail theft aggregation and providing a penalty Under current law, the penalty for the crime of property theft varies by the value of the property taken. The penalty ranges from a Class A misdemeanor if the value of the property is not more than $2,500 to a Class F felony if the value of the property exceeds $100,000. Similarly, the penalty for the crime of retail theft varies by the value of the merchandise or service that is taken. The penalty ranges from a Class A misdemeanor if the value is not more than $500 to a Class G felony if the value exceeds $10,000. This bill specifies that, if, in a six-month period, a defendant commits more than one violation of property theft or more than one violation of retail theft, the value of items taken at each violation may be aggregated and the crimes may be prosecuted as one property theft crime or one retail theft crime. The penalty for the crime would be determined by the aggregated value of the items taken. SB 533 Intentionally disarming a correctional officer Under current law, a person is guilty of a Class H felony if they intentionally disarm a peace officer by taking from the officer a dangerous weapon or an item such as a tear gas bomb, hand grenade, projectile, shell, or pepper spray. This bill expands the crime so that it applies to intentionally disarming a correctional officer or juvenile correctional officer as well as a peace officer and includes items that the correctional officer requires for their duties, such as keys or radios. Voting and other issues AB 385 Campaign contributions by foreign nationals For campaign finance purposes, this bill prohibits a political committee, conduit, or political party from accepting any contribution made with a credit card via the Internet unless the contributor provides the credit card verification value or code and the billing address associated with the card is located in the United States. However, if the contribution is made by a U.S. citizen living outside of the United States, and the credit card billing address is not a location in the United States, the individual must provide the mailing address of the location in the United States that the individual uses for voter registration purposes. AB 223 Requirements for persons circulating nomination papers Under current law, any person may circulate nomination papers for a candidate if the person is eligible to vote in Wisconsin or is a U.S. citizen aged 18 or older who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state. A person is eligible to vote in Wisconsin if he or she is a U.S. citizen aged 18 or older who has resided in an election district in this state for at least 28 consecutive days. Under this bill, a person must be eligible to vote in Wisconsin in order to circulate nomination papers for a candidate. However, under the bill, nomination papers and petitions for the candidacy of candidates for the offices of president and vice president of the United States may continue to be circulated by any person eligible to vote in Wisconsin or by any U.S. citizen aged 18 or older who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state. Similarly, under current law, any person who is eligible to vote in Wisconsin or who is a U.S. citizen aged 18 or older and who, if he or she were a Wisconsin resident, would not be disqualified from voting in the state may circulate a recall petition. Under the bill, a person must be eligible to vote in Wisconsin in order to circulate a recall petition and have the signatures on the petition be counted toward a recall. SB 652 Eliminating race-based higher education program requirements This bill changes certain race-based programs or requirements in higher education. In general, the bill modifies these programs and requirements so they apply to disadvantaged students rather than minority students. Under the bill, the term “disadvantaged,” with respect to a student, means having experienced any unfavorable economic, familial, geographic, physical, or other personal hardship. The term may be further defined by rule but may not include the consideration of 1) a student’s race, ethnicity, national origin, gender, sexual orientation, or religion or 2) a student’s identity as a member of a group without regard to individual qualities. Impacted programs include: Minnority Teacher Loan Program, Minority Undergraduate Grants, Minority Student Enrollment at Medical College of Wisconsin and Marquette University School of Dentistry, Minority and Disadvantaged Student Programs, Lawton Grants, Minority Student and Participation and Retention Plan, Minority Student Participation and Retention Grants, Incentive Grants. Bills passed by the Assembly that the Senate could take up at their limited-business session AB 514 Criminal justice system expansion Under current law, Kenosha County has eight circuit court branches, Brown County has eight circuit court branches, and Menominee and Shawano Counties have two circuit court branches. This bill adds four circuit court branches: one in Brown County beginning August 1, 2027, one in Menominee and Shawano Counties beginning August 1, 2027, one in Brown County beginning August 1, 2028, and one in Kenosha County beginning August 1, 2028. This bill provides position authority for many court and criminal justice system employees in the 2027-29 biennium…. The bill requires the director of state courts, the district attorneys, and the public defender board to include a request for funding for the positions authorized under this bill in their 2027-29 biennial budget requests. This bill also requires the director of state courts, the public defender board, and the district attorneys to submit to the legislature by December 31, 2032 a report that analyzes the workload and assesses the personnel needs for their operations. You can read more about this bill here. AB 640 Supreme Court of Wisconsin maximum age Article VII, section 24 (2), of the Wisconsin Constitution authorizes the legislature to set an age, of not less than 70 years, beyond which a supreme court justice or judge of any court of record may not serve, unless the person is appointed on a temporary basis as a reserve judge. Under this bill, no person may be elected or appointed, other than as a temporary reserve judge, to serve as a supreme court justice or judge of a court of record if the date of election or appointment occurs on or after the date the person attains the age of 75 years. AB 856 Modifications to OWI provisions based on Supreme Court of Wisconsin rulings This bill modifies numerous provisions relating to operating a motor vehicle while intoxicated (OWI) to reflect holdings of the supreme courts of the United States and Wisconsin. Under current law, no person may operate a motor vehicle while under the influence of an intoxicant, with a detectable amount of a restricted controlled substance in their blood, or with a prohibited alcohol concentration. Under current law, any person who operates a motor vehicle on public highways in this state is deemed to have given consent to one or more tests of their breath, blood, or urine, for the purpose of determining the presence or quantity in their blood or breath, of alcohol, controlled substances, controlled substance analogs, or other drugs (commonly known as “implied consent”). Under current law, if a person is involved in a motor vehicle accident that causes substantial bodily harm, great bodily harm, or death and a law enforcement officer detects the presence of alcohol, controlled substances, controlled substance analogs, or other drugs, the person may be requested to provide one or more samples of their blood, breath, or urine for testing. If the person refuses, their operating privilege must be revoked. In State v. Blackman, 2017 WI 77, 377 Wis. 2d 339, 898 N.W.2d 774, the Wisconsin Supreme Court held that probable cause of an OWI violation is a prerequisite to revocation of an operating license for a refusal. The bill modifies provisions consistent with this holding. Under current law, a person who would be requested to provide samples for testing but who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent and one or more samples may be collected (commonly known as the “incapacitated driver provision”). In State v. Prado, 2021 WI 64, 397 Wis. 2d 719, 960 N.W.2d 869, the Wisconsin Supreme Court held that the incapacitated driver provision is unconstitutional. The bill repeals provisions consistent with this holding. Under current law, there are separate but analogous implied consent and incapacitated driver provisions applicable to all-terrain vehicles (ATVs), utility terrain vehicles (UTVs), boats, and snowmobiles. Pursuant to Prado, these provisions are repealed. In addition, if a person refuses to submit to a test of their breath, blood, or urine related to their operation of an ATV, UTV, boat, or snowmobile, they are subject to a criminal penalty. In Birchfield v. North Dakota, 579 U.S. 438, 136 S. Ct. 2160, the U.S. Supreme Court held that it is unconstitutional to criminalize a refusal to submit to a blood test incident to arrest for an OWI violation. The bill modifies relevant provisions to reflect this holding. The bill also modifies the text of the “informing the accused” form, which a law enforcement officer must read to a person from whom a test sample is requested, in part to reflect changes made by the bill. Bills that have likely failed SB 147 Interpreter action by telephonic or live audio visual means Under current law, in any civil or criminal proceeding other than a trial, a court may permit an interpreter to act by telephone or live audiovisual means. This bill removes the exclusion for trials, so that an interpreter may act by telephone or live audiovisual means in any civil or criminal proceeding. SB 194 Attorney fees and costs when an authority voluntarily or unilaterally releases a contested record after an action has been filed in court Currently, if a person requests access to a public record and the agency or officer in state or local government having custody of the record, known as an “authority” under the public records law, withholds or delays granting access to the record or a part of the record, the requester may bring a mandamus action asking a court to order release of the record or part of the record. Current law requires the court to award reasonable attorney fees, damages of not less than $100, and other actual costs to the requester if the requester prevails in whole or in substantial part in any such action. The Wisconsin Supreme Court decided in 2022 that a requester prevails in whole or in substantial part only if the requester obtains a judicially sanctioned change in the parties’ legal relationship, for example, a court order requiring disclosure of a record. See, Friends of Frame Park, U.A. v. City of Waukesha, 2022 WI 57. Under the supreme court’s decision, a requester generally is not entitled to attorney fees and costs if the authority voluntarily or unilaterally without a court order provides contested records after the requester files an action in court. This bill supersedes the supreme court’s decision in Friends of Frame Park. Under the bill, a requester has prevailed in whole or in substantial part if the requester has obtained relief through any of the following means: 1. A judicial order or an enforceable written agreement or consent decree. 2. The authority’s voluntary or unilateral release of a record if the court determines that the filing of the mandamus action was a substantial factor contributing to that voluntary or unilateral release. This standard is substantially the same as the standard that applies for a requester to obtain attorney fees and costs under the federal Freedom of Information Act.
The Wisconsin Senate chamber (left) and Assembly chamber (right). Photographs by Margo Kirchner. By Alexandria Staubach
Even though 2026 recently started, the Legislature’s 2025-2026 session has for the most part come to an end. While a “limited-business” floor period is scheduled for April, and special sessions may be called, most of the work on legislation has finished and won’t pick back up in earnest until January 2027. A mixed bag of bills is headed to Gov. Tony Evers for signature, with culture-war issues continuing to pepper the Legislature’s business. Among them is a suite of five bills aimed at regulating transgender individuals, whose total state population is around 1.2%. A hard-fought win for advocates seeking postpartum Medicaid coverage occurred this session, after the popular bill struggled to get a vote for years. The Legislature passed three constitutional amendment referendums that will appear on November ballots. They appear in this post, but WJI will also provide more in-depth discussion on them in the fall. Competing visions for the continued funding of WisconsinEye, the state’s version of C-SPAN, ended in a stalemate between the Assembly and the Senate. WisconsinEye is a nonprofit entity separate from government. It has been experiencing financial difficulties and was offline at the end of 2025 and earlier this year after running out of operating funds. Earlier this month, the Assembly unanimously passed a bill to fund WisconsinEye by creating a $10 million endowment. But instead of taking up the Assembly’s bill, the Senate passed an alternative bill requiring the Department of Administration to seek bids for a new public affairs network in Wisconsin. The failure to pass either bill in both chambers means the network and its valuable archive could go dark again in March. Three other bills WJI has been tracking remain in limbo. One would expand court capacity, one could provide continuity of care for incarcerated persons approaching release, and a final one would provide an age cap on members of the high court. All hurriedly passed in the Assembly on the last days of the general session but failed to get a vote in the Senate before the floor period ended. In this first of two posts on the legislative wrap-up, we’ve included the constitutional referendums and bills impacting the courts. Part two will include other bills we’ve monitored, from new and modified criminal statutes to new requirements for circulation of candidate nomination papers. All summaries below are quotes from the analysis provided by the Legislative Reference Bureau unless italicized. Italics are WJI’s additions. The titles are WJI’s summaries of the often lengthy and sometimes misleading titles provided by the bills' authors. The constitutional amendment referendums go from the Legislature to the people, rather than the governor, for approval. Except for the constitutional amendments, the following are headed to the governor’s desk for signature or veto. For a refresher on the lifecycle of a bill, you can find that here. The general progression of a successful bill is: introduction → referral to committee → passage by committee → vote by full chamber → transfer to the other chamber to repeat the prior three steps → to the governor for signature. Constitutional referendums for the November ballot SJR 116: Concerning the governor’s partial veto power This constitutional amendment provides that the governor, in exercising his or her partial veto power over an appropriation bill, may not create or increase or authorize the creation or increase of any tax or fee. Currently, in exercising the partial veto power, the governor is limited only in that he or she may not create a new word by rejecting individual letters in the words of the enrolled bill and may not create a new sentence by combining parts of two or more sentences of the enrolled bill. In Bartlett v. Evers, 2020 WI 68, the Wisconsin Supreme Court further restricted the governor’s partial veto power, but there was no agreement by the court on the reasons for the new restrictions. The new restriction on the governor’s partial veto power contained in the amendment is in addition to the current restrictions in the constitution. AJR 10: Freedom to gather in places of worship during a state of emergency This constitutional amendment provides that the state or a political subdivision of the state may not order the closure of or forbid gatherings in places of worship in response to a state of emergency at the national, state, or local level, including an emergency related to public health. AJR 102: Prohibiting governmental entity discrimination (anti-DEI law) This proposed constitutional amendment prohibits governmental entities in the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, public contracting, or public administration. Bills about the courts AB 225: Venue determinations Under current law, with certain exceptions, venue in civil actions or special proceedings must be in either the county where the claim arose, the county where the real or tangible personal property, or some part thereof, which is the subject of the claim is situated, the county where a defendant resides or does substantial business, or, if none of the foregoing apply, in any county designated by the plaintiff. This bill provides that, for the purposes of determining whether a county is a proper venue based on where a defendant resides or does substantial business, a court may not consider the participation of a party joined to the civil action or special proceeding because their joinder is needed for just and complete adjudication, as provided under current law, or a party joined to the civil action or special proceeding whose joinder is permissive, as provided under current law. Further, this bill provides that, for the purposes of determining where a business entity resides or does substantial business, a business entity shall be deemed to reside in the place of incorporation or organization and shall be deemed to do substantial business only in the county of its principal place of business. AB 443: Increasing the maximum fee for court costs collectible in a municipal court action Under current law, with certain exceptions, the municipal judge in a municipal court action must collect a fee of not less than $15 nor more than $38 on each separate matter. The fee is to be imposed whether there is a default of appearance, there is a plea of guilty or no contest, on issuance of a warrant or summons, or the action is tried as a contested matter. Current law requires that the municipal treasurer pay monthly $5 from each fee received to the secretary of administration for deposit in the general fund and retain the balance for the use of the municipality. The bill increases the maximum fee on each separate matter from $38 to $48. SB 448: The use of videoconferencing technology in certain civil actions Under current law, a circuit court generally may allow the use of videoconferencing technology during pretrial, trial or fact-finding, or post-trial proceedings, subject to certain technical standards and criteria. However, current law provides that a defendant in a criminal case (defendant) or a respondent in certain civil actions that could result in loss of liberty or fundamental rights with respect to the respondent’s children (respondent) is entitled to be physically present in the courtroom during his or her trial and at his or her sentencing or other dispositional hearing. Currently, if a defendant or respondent objects to the use of videoconferencing technology regarding a proceeding that the defendant or respondent has a right to attend in person, the court must sustain the objection. If a defendant or respondent objects to the use of videoconferencing technology regarding any other proceeding, current law allows the court to exercise its discretion in determining the objection. This bill establishes a new exception to provide that, for objections by a respondent relating to the testimony of an expert witness by videoconference technology in matters relating to certain admissions, placements, or commitments, including for involuntary commitment and protective placement proceedings, even if a respondent is entitled to attend the proceeding in person, the court may exercise its discretion in determining the objection. SB 459: Admissibility of expert witness testimony This bill updates the current statutory rule of evidence relating to testimony by experts to conform with recent changes made to Federal Rule of Evidence (FRE) 702 intended to clarify the court’s gatekeeping role with respect to expert testimony. Current law parallels FRE 702 prior to its amendment, allowing the testimony of an expert witness if the witness’s scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact at issue in the case, but limiting the testimony of an expert witness to testimony that is based on sufficient facts or data, that is the product of reliable principles and methods, and that is based on the witness applying those principles and methods reliably to the facts of the case. Similar to the changes made to FRE 702, the bill confirms that the proponent of the testimony is required to demonstrate to the court that it is more likely than not that the witness’s testimony is based upon sufficient facts or data, that it is the product of reliable principles and methods, and, finally, that the witness’s opinion reflects a reliable application of those principles and methods to the facts of the case. |
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