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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of. Italics indicate WJI insertions. Emphasis in the original is italicized and underlined. Case: Wisconsin State Legislature v. Kaul Majority: Justice Rebecca Frank Dallet (11 pages), joined by Chief Justice Jill J. Karofsky and Justices Janet C. Protasiewicz and Susan M. Crawford Concurrence in part and dissent in part: Justice Brian K. Hagedorn (2 pages) Dissent: Justice Rebecca Grassl Bradley (29 pages), joined by Justice Annette Kingsland Ziegler except as to the first four paragraphs In December 2024, WJI reported on the District 2 Court of Appeals decision in this case (in favor of the Legislature) here.  Dallet Upshot We conclude that the attorney general complies with the pertinent settlement-funds statute when, in accordance with the straightforward language of the statute, he deposits settlement funds into the general fund. That is true even if the attorney general also credits those deposited settlement funds to one or more program appropriations contained within the general fund. Accordingly, we reverse in relevant part the court of appeals’ decision. We further determine that the second issue regarding the program appropriation under a second statute should be dismissed as improvidently granted. In other words, the attorney general, not the Legislature, controls millions of dollars recovered through litigation settlements. Even though settlement revenues are deposited in the general fund, the settlement-funds statute at issue does not preclude crediting the money for the Department of Justice rather than for general purposes controlled by the Legislature. Background The attorney general represents the state in legal matters, including by bringing civil actions to enforce state statutes or otherwise to represent the state’s interests. Sometimes those civil actions end in settlements through which the attorney general recovers money on behalf of the state. Such settlements may include money earmarked for specific purposes like restitution or attorneys’ fees. But they can also include “uncommitted” funds, that is, money that is not designated for a particular purpose by the settlement and is instead left to the attorney general’s discretion. . . . *** . . . . When a state agency receives money on behalf of the state, it must place that money into a “fund” within the state treasury. The budget statutes refer to this act as “depositing.” There are two types of “fund,” namely, the “general fund” and “segregated funds.” The “general fund” consists of “[a]ll moneys in the state treasury not specifically designated in any statute as belonging to any other funds.” The rest of the treasury is made up of “segregated funds,” that is, “revenues which, by law, are deposited into funds other than the general fund and are available for the purposes for which such funds are created.” This case concerns only revenues deposited into the general fund. When money is deposited into the general fund, it must be directed to a specific part of the general fund. The budget statutes refer to this act as “crediting.” . . . “Deposit” refers simply to placing money into the general fund or a segregated fund of the state treasury. “Credit” refers to directing money deposited into the general fund to a specific part of the general fund. The default crediting rule is that money deposited into the general fund “shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.” Money credited to the general purpose revenues of the general fund is “available for appropriation by the legislature.” When the legislature has “otherwise specifically provided by law,” however, deposits are credited elsewhere. *** For many years, attorneys general from both political parties have negotiated settlements through which the state recovered significant sums of “uncommitted” funds—in other words, money that was not specifically designated in the settlement for restitution, attorneys’ fees, or another specific purpose. Those attorneys general, in turn, deposited the uncommitted funds into the general fund and credited them to a program appropriation, specifically the Department of Justice’s . . . program appropriation as “proceeds from services.” Once there, the funds were available for the attorney general to spend on the Department’s programs and activities pursuant to the program appropriation. *** . . . In late 2018, the legislature adopted the current version of the settlement-funds statute, which provides in its entirety that “[t]he attorney general shall deposit all settlement funds into the general fund.” . . . After Attorney General Kaul took office in 2019, the legislature argued that the settlement-funds statute required him to deposit all uncommitted settlement funds into the general fund and credit them to the general purpose revenues of the general fund. After both sides exchanged numerous letters that failed to resolve their dispute, the legislature and an individual plaintiff . . . filed this case in Polk County Circuit Court. The complaint sought a declaration that the settlement-funds statute “requires the Attorney General to ‘deposit all settlement funds into the general fund,’ . . . and does not allow for the depositing of settlement funds into the appropriation account . . . . . . . . The circuit court granted partial summary judgment in the attorney general’s favor, concluding that the settlement-funds statute requires only that settlement funds be deposited into the general fund, and does not require those funds to be credited to the general purpose revenues of the general fund. . . . Accordingly, the circuit court declared that the settlement-funds statute requires only that all settlement funds be deposited into the general fund. Because the attorney general was already doing that, the circuit court concluded he was complying with that statute. Regarding the Legislature’s argument that under a second statute the attorney general could not credit uncommitted funds to a program appropriation as “proceeds from services,” the court found that the case as pled did not encompass the issue. The legislature appealed, and the court of appeals reversed the circuit court’s decision regarding the settlement-funds statute. . . . The court of appeals explained that the settlement-funds statute, together with two other statutes, required that “all settlement funds must be deposited into the general purpose revenue fund.” . . . The court of appeals’ broad holding that the settlement-funds statute required all uncommitted settlement funds to be “deposit[ed]” into the general purpose revenues of the general fund meant that it did not have to reach the legislature’s narrower, alternative contention about the scope and interpretation of the second statute. . . . Nevertheless, when we granted review of the court of appeals’ decision regarding the settlement-funds statute, we asked the parties to address whether “the services rendered by Department of Justice personnel in litigating a civil action on behalf of the State of Wisconsin or an executive branch agency constitute ‘proceeds from services’ under that second statute. The legislature’s primary contention is that the attorney general is violating the settlement-funds statute when he deposits uncommitted settlement funds in the general fund and credits those funds anywhere except the general purpose revenues of the general fund. Assuming we disagree, however, and in response to the court’s order granting review and adding a second issue, the legislature further contends that uncommitted settlement funds may not be credited to the program appropriation . . . because they are not “proceeds from services” as that phrase is used in the second statute. The Guts The settlement-funds statute, entitled “Deposit of settlement funds,” provides in its entirety that “[t]he attorney general shall deposit all settlement funds into the general fund.” This simple, declarative sentence identifies a class of state money (“settlement funds”) and imposes a single, narrow restriction on where that money must be deposited (into the state treasury, specifically “the general fund”). It says nothing whatsoever about where that money may or must be credited after it is deposited. Further, the “general fund,” . . . consists of “[a]ll moneys in the state treasury not specifically designated in any statute as belonging to any other funds.” In other words, everything except money belonging to “segregated funds” falls under the broad umbrella of the “general fund.” That includes not just the general purpose revenues of the general fund, but also program revenues credited to specific program appropriations. Thus, when settlement funds deposited into the general fund are credited to a specific program appropriation, those funds remain within the general fund. For this reason, the attorney general is complying with the settlement-funds statute when he deposits uncommitted settlement funds into the general fund, even if he also credits those funds to a program appropriation. The legislature nonetheless argues that the attorney general violates the settlement-funds statute when he deposits uncommitted settlement funds into the general fund and credits them anywhere except the general purpose revenues of the general fund. But to reach that conclusion, we would have to conflate two distinct terms—“credit” and “deposit”—or read restrictions on where money may be credited into a statute that contains none. Indeed, that is what the court of appeals did when it interpreted the settlement-funds statute as requiring that “[uncommitted] settlement funds must be deposited into the general purpose revenue fund.” As that sentence alone makes clear, the court of appeals conflated the settlement-funds statute requirement that uncommitted settlement funds be “deposit[ed]” into the general fund with a requirement that those funds also be credited to the general purpose revenues of the general fund. In other words, the court of appeals read into the statute a requirement that deposits of uncommitted settlement funds be credited to the general purpose revenues of the general fund. In defending the court of appeals’ decision, the legislature makes a similar argument, namely that we should read crediting restrictions imposed by other statutes into the single depositing restriction imposed by the settlement-funds statute. The problem with these arguments is that “we interpret the statutory language the legislature enacted, and will not read into a statute language that it does not contain or reasonably imply.” As many statutes demonstrate, when the legislature wants to direct both that money is to be deposited into the general fund and that it must be credited somewhere specific, it knows how to do so. But the settlement-funds statute does not even reference crediting, let alone restrict where the attorney general may credit money he deposits within the general fund. Accordingly, like the circuit court, we decline to read into the statute atextual restrictions on where deposits to the general fund may be credited. Therefore, we hold that the attorney general is complying with the settlement-funds statute when he deposits uncommitted settlement funds in the general fund, even if those settlement funds are credited to a specific program appropriation within the general fund. When we granted review in this case, we added a second issue, namely “does the language of a second statute authorize the crediting of civil action proceeds to that appropriation? In other words, do the services rendered by Department of Justice personnel in litigating a civil action on behalf of the State . . . or an executive branch agency constitute ‘proceeds from services’ under the second statute?” After reviewing the record and the briefs of both parties, and after hearing oral arguments, the court is too divided to reach a majority mandate on that issue. Generally, when the court is too divided to reach a majority as to the mandate, we affirm the decision under review. Under these circumstances, however, there is no decision to affirm with respect to the second statute. That is because neither the circuit court nor the court of appeals decided this question we raised, and as the circuit court previously explained, the legislature did not seek a declaratory judgment regarding the proper interpretation of the phrase “proceeds from services” in that statute in its complaint. Given that, we conclude that dismissal of this additional issue as improvidently granted is warranted.   Hagedorn Concurrence in part and dissent in part I agree with the majority that the court of appeals misconstrued the settlement-funds statute. However, I strongly disagree with the court’s failure to decide whether the monies received from settlements in civil cases litigated by the Department of Justice constitute “proceeds from services” under the second statute. The majority declares this an “issue” which we are now dismissing as “improvidently granted.” But we granted review in a case, and the court is not dismissing the case as a whole. Rather, it is declining to decide an issue—one that was briefed, argued, opined on by the court of appeals, and central to the dispute between the parties. Prior to this, I am unaware of this court dismissing an issue as improvidently granted. It is true that this court asked the parties, as a second issue, to address the meaning of the second statute. But we did not do so out of thin air. The court of appeals majority and dissent both opined on whether the attorney general may treat settlement funds as “proceeds from services” under the second statute, reaching different conclusions. We added this issue to ensure it was separately and fully addressed, and to ensure the larger dispute between the parties had a resolution. The court justifies its decision to dismiss an issue as “improvidently granted” on the grounds that the court cannot reach a resolution. However, we are not divided on the meaning of the second statute. In fact, a majority of the court agrees on the proper interpretation of the statute. Our disagreement is simply on how to style the mandate on the second issue, even though—regardless of how we label it—that particular postscript will have no practical effect on the parties in this case. The court’s inability to come together leaves the parties with no clarity about how to conform their actions to the law with respect to the second statute. It is most unfortunate that the court—even while we agree—cannot produce an opinion effectuating our agreement. The parties deserve better, and so does Wisconsin. I respectfully concur in part and dissent in part.  Bradley Dissent
Justice Ziegler did not join these three paragraphs: If an attorney makes a false statement of fact or law, she may be sanctioned for violating the rules of professional conduct for attorneys. Unfortunately, supreme court justices can deceive the People of Wisconsin with impunity. Reaching an opinion favorable to Democratic Attorney General Josh Kaul (who faces a contested election in November), the majority dodges the issue we asked the parties to brief . . . . . . . . The majority . . . acknowledges “[t]he default crediting rule is that money deposited into the general fund ‘shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.’” The majority refuses to apply the law, which favors the Republican-controlled legislature over Democrat Attorney General Josh Kaul. Lady Justice wears a blindfold, not blinders. The majority’s machinations have left insufficient time to convert my previously-drafted opinion into a dissent, so (consistent with precedent established by other members of the court) I reproduce below what the majority opinion should have been. This is not the first time justice has taken a back seat to political interests. The members of the majority extend the Democrats’ almost unbroken winning streak in litigation against the Republican legislature since the progressives took control. (Footnote citing 15 cases.) In Wisconsin as elsewhere, “[d]arkness descends on the Rule of Law.” Justice Ziegler joined all of the following paragraphs: Wisconsin’s money belongs to the People of Wisconsin. The People control the allocation and expenditure of Wisconsin’s revenues through their constitutional representatives in the Wisconsin Legislature. For decades, Wisconsin attorneys general have siphoned tens of millions of dollars belonging to the People from large multistate consumer protection and antitrust settlements, to various budget appropriations controlled by the Department of Justice (DOJ). The Wisconsin Legislature became aware of this practice as early as 2010, and has twice legislated to reassert constitutional control over the People’s revenues. Attorneys general have resisted these efforts, interpreting the legislature’s enactments in a variety of creative ways in order to continue spending the People’s settlement funds. The fight between Attorney General Josh Kaul and the Wisconsin Legislature over those settlement funds culminated in this litigation. Kaul claims before this court that the settlement-funds statute, a statute the legislature enacted to resolve the interbranch dispute over settlement funds, requires the attorney general only to “deposit” “settlement funds” to the “general fund” of the state treasury. That is correct. Kaul additionally claims a longstanding default rule controlling budget allocation in the Wisconsin budget statutes allows him to continue “crediting” those moneys to a DOJ program appropriation. That is incorrect. We affirm the Court of Appeals and hold that the settlement-funds statute requires the attorney general to deposit settlement funds to the “general fund” of the state treasury. A budget allocation statute further requires the attorney general to “credit” settlement funds to the “general purpose revenues of the general fund.” Under the latter, the attorney general may credit settlement funds somewhere other than the “general purpose revenues of the general fund” only if the legislature “otherwise specifically provide[s]” another location. A statute to which the attorney general points does not serve as an appropriation account for settlement funds. Under the law, the attorney general must give the People their money back. *** . . . . The legislature maintains the “settlement funds” collected by the attorney general are general purpose revenues, which the legislature controls through its budgeting and appropriations process. The attorney general considers the settlement funds to be program revenues, which the legislature has already appropriated by law, allowing the DOJ to credit them to a specific program appropriation for the DOJ’s own use. *** Once the attorney general has deposited all settlement funds into the general fund, the question remains where to credit them. The “general fund” contains both “general purpose revenues” and “program revenues.” A statute titled “Receipts and deposits of money,” provides the default rule: “All moneys paid into the treasury shall be credited to the general purpose revenues of the general fund unless otherwise specifically provided by law.” The word “shall” creates a mandate. *** Another referenced statute does not provide an exception to the default rule requiring “settlement funds” to be credited to the general purpose revenues of the general fund. . . . The attorney general must return constitutional control over the People’s revenues to the People.
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By Erik Reinthaler
WJI Intern The Wisconsin Supreme Court issued three decisions at the end of June addressing different aspects of Wisconsin's laws concerning mental health involuntary commitment and treatment. The cases--State v. N.K.B., Outagamie County v. M.J.B., and Waukesha County v. R.D.T.—involved involuntary medication, statutory deadlines in civil commitment proceedings, and appeals from expired recommitment orders. Although the cases arose in different contexts, each turned on the same question: how the statutory framework applies when procedures governing competency proceedings or involuntary commitments are challenged. In State v. N.K.B., the Wisconsin Supreme Court considered whether a circuit court could order involuntary commitment and medication under one set of statutes after a defendant had been committed under another. Wisconsin law establishes separate procedures for restoring a defendant's competency in a criminal case and for civilly committing someone because they are mentally ill and dangerous. The dispute centered on whether those procedures could be used interchangeably. N.K.B. had been found incompetent to stand trial and committed for competency restoration. After initially authorizing medication to restore competency for the criminal case, the circuit court later relied on a different statutory provision to continue ordering medication based on finding N.K.B. to be dangerous. The Supreme Court concluded that Wisconsin law did not authorize that approach. Although both the competency statutes for criminal cases and Wisconsin's civil commitment laws allow involuntary medication in certain circumstances, the court said the sets of statutes address different situations and establish separate procedures. A commitment for competency restoration does not give a court authority to order medication under the dangerousness provisions that apply in civil commitment cases, the high court said. Courts must use the statutory process the Legislature established for the specific type of proceeding before ordering involuntary medication. Outagamie County v. M.J.B. concerned the county’s violation of a statutory deadline and whether such a violation automatically invalidates an involuntary commitment. Wisconsin law generally requires two mental health professionals to evaluate an individual and provide written reports to counsel at least 48 hours before the final civil commitment hearing. In M.J.B.'s case, an examiner completed the required report on time but defense counsel did not receive access to the report before the 48-hour deadline because of the Labor Day weekend. M.J.B. argued that the missed deadline deprived the circuit court of competency to proceed and required the commitment order to be vacated. The Supreme Court acknowledged that the statutory deadline must be followed but rejected the argument that every violation requires reversal. Instead, it found that a commitment order should be vacated only if the delay affected the individual's substantial rights. In M.J.B.’s case, the county did not rely on the late report, the examiner who prepared it did not testify, and the delayed disclosure did not prejudice M.J.B’s ability to challenge the commitment. As a result, the error was harmless, the court said, affirming the commitment order. In Waukesha County v. R.D.T., the Supreme Court addressed whether a person may continue appealing an involuntary recommitment order after it has expired and, if so, whether alleged evidentiary errors in R.D.T.’s case required the order to be vacated. “Recommitment” means a court-ordered extension of an earlier commitment period. The county argued that R.D.T.’s appeal had to be dismissed because the recommitment order had expired. The justices disagreed, explaining that an expired recommitment order may continue to carry significant legal consequences, such as potential liability for the cost of care received during the recommitment and the effect on a future petition to restore firearm rights. Because vacating the order could affect those continuing consequences, the appeal was not moot. R.D.T. also argued that the circuit court improperly admitted hearsay evidence when ordering recommitment. The Supreme Court determined that any error, if it occurred, was harmless. Other, unobjected-to testimony independently supported the finding that R.D.T. met the standard for recommitment. Thus, the court affirmed the recommitment order.  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:   By Erik Reinthaler, WJI Intern
A Dane County judge heard arguments in early June in a case that could expand absentee voting options for thousands of Wisconsin voters with print disabilities. At the heart of the dispute is whether voters who cannot independently read or mark a paper ballot must reveal their choices to another person to vote absentee. Disability Rights Wisconsin, the League of Women Voters of Wisconsin, and four Wisconsin voters brought the case against the Wisconsin Elections Commission. The case, assigned to Dane County Circuit Judge Everett D. Mitchell, could reshape how Wisconsin administers absentee voting for voters with print disabilities. At the hearing, the plaintiffs argued that Wisconsin's current absentee voting system denies them the same independence enjoyed by other absentee voters. Most absentee voters may cast a ballot from home privately and independently. But voters with print disabilities often must rely on another person to read, mark, or return a paper ballot. "We're here today because plaintiffs and the print-disabled voters of Wisconsin cannot vote on the same terms as all other Wisconsinites," Scott Thompson of Law Forward told the court. "That is discrimination." Thompson discussed plaintiffs Stacy Ellingen, who has cerebral palsy and cannot mark a ballot on her own; Tyler Engel, whose spinal muscular atrophy prevents him from independently completing a paper ballot because of weakness in his hands; and Michael Christopher and Donald Natzke, both legally blind, who rely on others to assist them with absentee voting. "The point really is not whether they can or cannot vote at all," Thompson said. "It's about whether they're having the same opportunities and benefits of the service provided." Other Wisconsin voters take for granted that they can cast a ballot without disclosing their choices to another person. He described the ability to vote from home without disclosing ballot choices to another person as being "at the heart of American democracy." He also pointed to Wisconsin's constitutional guarantee of a secret ballot. Thompson argued that the ADA requires public entities to provide people with disabilities meaningful access to the benefits of a public program. He said that means voters with print disabilities should access Wisconsin's at-home absentee voting system on the same terms as voters without disabilities. WEC rejected that characterization, saying that plaintiffs’ case comes down to preference rather than access. Assistant Attorney General Rachel Bachhuber pointed to multiple avenues for disabled voters to cast ballots. Absentee voting with assistance, in-person absentee voting, and Election Day voting all provide meaningful access to Wisconsin's voting system, she argued. While plaintiffs seek a private and independent method of voting absentee from home, the ADA does not entitle voters to their preferred accommodation, Bachhuber argued. Bachhuber said state law already provides meaningful access to voting and that the accommodation sought by plaintiffs would require Wisconsin to build an entirely new voting system. Although Wisconsin provides electronic ballot delivery to certain military and overseas voters, electronic ballot delivery differs from electronic ballot return, she said. The latter would require creation of a new service rather than an expansion of an existing one and would raise cybersecurity concerns. Plaintiffs dismissed those concerns as speculative, arguing that election officials had identified no evidence that electronic absentee voting systems had been used to alter election outcomes. They maintained that accessible electronic voting technologies already exist and could be implemented without fundamentally altering Wisconsin's election system. Bachhuber, though, argued that internet ballot return introduces vulnerabilities that do not exist in Wisconsin's current paper-based absentee voting system and that election officials "should not have to wait for a compromised election to take concerns seriously." She said that implementing a secure system would require substantial development, testing, training, and ongoing maintenance and could cost millions of dollars. Thompson repeatedly cited estimates suggesting that approximately 110,000 Wisconsin voters may have print disabilities and could benefit from the requested accommodation. Bachhuber questioned the reliability and significance of those estimates and argued that even a limited electronic voting system would introduce cybersecurity risks and administrative burdens extending beyond the voters who would ultimately use it. The hearing concerned motions for summary judgment filed by both sides in the case. At the end of the hearing, counsel agreed to remove upcoming trial dates from the calendar while Judge Mitchell considers the pending motions. Mitchell indicated that he expects to issue a decision in August. Note: If this case sounds familiar, you may have heard about prior proceedings in the matter. Mitchell in 2024 issued a temporary injunction, ordering WEC to provide electronically delivered, accessible ballots for print-disabled voters who requested them. However, his decision was reversed by District II of the Wisconsin Court of Appeals in 2025. The appellate court sent the case back to Mitchell for further proceedings.  Entrance to the Wisconsin Supreme Court. Photograph by Margo Kirchner. By Alexandria Staubach Wisconsin Supreme Court Chief Justice Jill Karofsky last week made good on a November 2025 promise to hold a public hearing regarding judicial recusal rules. The hearing on June 4 addressed a rule change petition filed by five retired judges regarding recusals related to campaign donations. Sarah B. O’Brien, John W. Markson, Richard G. Niess, J. David Rice, and Richard J. Sankovitz filed the petition in January. Karofsky opened the public hearing by quoting comments submitted by Wisconsin Justice Initiative Action in support of the rule change. Karofsky said these WJI Action comments “put it well”: When people trust the judicial system, they are more likely to accept court decisions and maintain confidence in the rule of law. If the public believes our judges and justices are fair, impartial, and free from influence by money or politics, they are more likely to follow the law, serve on juries, and engage with the legal process in good faith. Without that confidence, compliance weakens and the authority of the law is diminished. At an open conference immediately following the hearing, the court determined that a new rule, if any, will take shape after further study. The Supreme Court indicated it would create a committee to examine the issue. A written order setting up the committee is expected in the near future. The hot bench during the three-hour hearing raised multifaceted questions about the nature of judicial campaigns in Wisconsin. Two questions drove the hearing: what judges or justices can say about their values when campaigning and whether significant campaign contributions are grounds for recusal. Justice Rebecca Grassl Bradley voiced heavy skepticism and asked petitioners’ representative Niess whether he thought “it’s impacted the reputation of the court to have justices that freely express how they feel about issues that they know are going to come before the court.” Niess said that on the question of campaign speech, “for better or worse the judges in this state are elected and the electorate needs to be fully informed about what the past positions of candidates have been on all issues.” “The problem that we are trying to resolve, in part, is the public perception that the court can be for sale. It isn’t a universal perception, but it is a broad-based perception. Part of the problem is that there is very little discussion by this court when it chooses not to recuse,” he argued. Since Citizens United, the U.S. Supreme Court decision that characterized corporate campaign spending as free speech, both statements and spending have been considered to raise constitutional questions. In their written memorandum supporting the petition, the retired judges indicated that the proposed amendments mainly “flip the implied presumption to favor recusal where the source or amount of any campaign contribution or independent communication raises an objectively reasonable question about a judge's ability to preside on a case impartially.” The proposed changes would also clarify “that statements of a judge or judicial candidate, other than those that expressly commit the speaker to rule on a case or issue in a particular manner, are not grounds for recusal,” they said. “It might make sense what you’re saying if someone is going to rule as a judge consistent with what their values are, perhaps that should be something they say to the public,” said Justice Annette Ziegler at the hearing. “But if someone is not a judge that is going to rule based on their personal values and instead just look at the law and figure out what the law says and reach a conclusion based solely on the law and the facts in that case, then your personal opinion is absolutely irrelevant to the determination you make as a judge.” Niess disagreed. “If the law is clear the law has to be followed irrespective of the personal beliefs of the judge,” he said in response. But he noted that “there are so many areas where the law is not clear and you are attempting to clarify it, and whether or not you think it is appropriate to bring your values to bear, they are going to somehow inform your view on the intricacies between these various issues that are not resolved by the current law.” “The personal beliefs (of a judge) are relevant to the electors to the people of the state of Wisconsin to decide who they want on their court,” he said. Karofsky seemed to agree with Niess on the point. “We have all looked at the law and wished it said something different than it says, but I took an oath to uphold the constitution of the United States and the state and the statutes,” said Karofsky. “I think you the voters deserve to know who I am as a person and I will make a commitment to continue to follow the rule of law when I put on a black robe and sit behind the bench,” she said. Justice Brian Hagedorn wrestled with the Niess over the petition’s objective. “A lot of this feels like PR coverage to me that doesn’t really do anything,” said Hagedorn. “I’m trying to figure out what problem you’re trying to solve that isn’t being resolved, who should have recused that’s not recusing.” “These things were not problems historically,” said Hagedorn, talking about deep conflicts of interest without recusal in the early days of the U.S. Supreme Court. Because the proposed rule change would restrain discretion around campaign contribution recusals, Hagedorn asked what kind of climate the state is encouraging regarding campaigns. “What kind of legal culture do we want in Wisconsin?” he asked. “Do you think we should be concerned at all about greenlighting what’s become of our elections?” While much of the hearing focused on what judicial candidates say on the campaign trail, Justice Rebecca Dallet was quick to point out that campaign spending has long signaled political alignment and personal values. “Doesn’t money communicate values?” she asked. “How are we opening up some flood gate or greenlighting?” “If you’re taking money from the Republican party, that communicates something, or the NRA,” she said. Current campaign-related recusal rules were drafted by Wisconsin Manufacturers and Commerce in conjunction with the Wisconsin Realtors Association. They were adopted with little change by a conservative Supreme Court in 2010, according to the memorandum filed by the petitioners in support of the rule change. WMC is historically a significant donor to conservative candidates. The current rules “foster a presumption against recusal based solely on the source or the amount, however large,” they wrote. Since 2010, “the amount of money contributed to Supreme Court elections, and even to some circuit court elections, has exploded,” they wrote. While record breaking spending occurred in 2007 and 2008, spending has continued to rise in the wake of the rule change. Wisconsin’s 2023 Supreme Court election between Justice Janet Protasiewicz and former Justice Daniel Kelly broke national records as the most expensive race in U.S. judicial election history, with $51 million in spending by the campaigns and third parties. The 2024 Supreme Court race between now-Justice Susan Crawford and Judge Brad Schimel broke the record again, with more than $100 million in spending by the campaigns and third parties. “It is not a stretch to conclude some cause-and-effect relationship,” wrote the retired judges in their memo. WJI Action, an advocacy ally of Wisconsin Justice Initiative, submitted written comments in support of the petition. As indicated by the quotation Karofsky read, WJI Action focused on the need for transparency by the judiciary to maintain public trust. WJI Action board member Jill Kastner spoke at the hearing in support of the petition, emphasizing those reasons. "Because this really does impact my practice, it (public lack of faith in the judiciary) can make it more challenging to convince my clients to utilize the justice system as opposed to taking matters into their own hands,” said Kastner. She suggested urgency in strengthening recusal rules. Kastner said she was "not under the false notion” that this proposed rule change would end public perception that judges are bought and paid for. “But an assumption in favor of recusal and greater transparency—that parties are allowed to put forth their evidence and reasoning for recusal—would result in a greater sense of transparency and trust," she said. Several other groups wrote in support of the intent of the petition but worried that the specific changes proposed had the potential to dampen political speech by attorneys and judges, failed to account for political action before any new rule took effect, and could leave courts shorthanded. Supreme Court justices, for instance, do not have substitutes who can step in for them if they recuse. While those commenters generally expressed support for reform, most asked the court not to adopt the rule change petition in its current form. “The proposed rule may swing the pendulum too far,” Law Forward in its written comments to the court. Attorney Rachel Snyder spoke at the hearing on behalf of Law Forward. She called the hearing an "excellent first step" but cautioned against creating a rule that would chill First Amendment speech. Law Forward was also concerned about whether the rule would be retroactive, punishing lawyers and judges for past conduct if changes are made. Attorney Danielle Schroder spoke on behalf of Wisconsin Association for Justice. She urged cautious change. Professor Robert Yablon, co-director of the University of Wisconsin Law School’s State Democracy Research Initiative, suggested at the hearing that the court find "palatable" means to "dispel mistrust when jurists are deciding on their own recusals." He also spoke on more technical concerns with the proposed rule change. Protasiewicz asked him how substitutions should work under a judicial structure in which judges are elected. Yablon suggested the high court in particular might identify a few judges from the lower courts at the start of each session who could be randomly tapped to substitute at the high court if recusal is necessary. With Yablon, Hagedorn returned to questions on whether the recusal rules were in fact creating a presumption that jurists are "not to be trusted." Yablon suggested that a general "slippage of trust that people have generally in institutions" was to blame, having "less to do with the recusal regime and more to do with the influx of money." At the open conference following the hearing, Bradley disagreed with the court’s formation of a study committee. “I oppose the creation of this committee because I think it will ultimately waste the time of all of the members,” she said. “If the committee proposes anything that represents true reform in the recusal arena, the court as currently constituted will never adopt anything that will interfere with the successful formula for electoral success, which is to telegraph how you will rule on cases and receive up to $10 million dollars from a party and then sit on that party’s cases,” she said. WJI Action's comments on the rule petition are found below. By 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
The year is just two weeks old, but two cases--one with significant implications for the criminal justice system--already have notable court activity. In the Wisconsin Court of Appeals District 3, a defendant in a criminal case filed his opening appellate brief seeking a declaration that a 468-day detention without appointment of counsel or a preliminary hearing violated his due process rights. James Grandberry sat for 14 months without even a copy of the complaint describing the allegations against him. He filed pro se motions to dismiss along the way. Grandberry’s case stems from the state’s first wiretap case aimed at disrupting the distribution of fentanyl. The case was filed under seal. Grandberry was arrested in summer 2024, but counsel was not appointed until September 2025, and his preliminary hearing was delayed until then. For individuals who remain in custody, preliminary hearings are supposed to take place within 10 days. But court commissioners in Brown County found exception to the rule at least seven times over 14 months. Granberry’s attorneys filed an interlocutory appeal—meaning an appeal before judgment in the trial court. The Court of Appeals, in its decision agreeing to hear the case, cited a 2022 Court of Appeals decision in State of Wisconsin v. Nhia Lee. In Lee, the appeals court ruled that a 113-day delay in appointment of counsel violated Lee’s rights, leading to dismissal without prejudice. A dismissal without prejudice allowed prosecutors to refile the charges. The Lee appeal was initially taken to the Supreme Court of Wisconsin, but after oral arguments that court dismissed its review as “improvidently granted.” Justice Rebecca Dallet in Lee noted that the court was minimizing important questions “about the efficacy of Wisconsin's process for appointing counsel for indigent defendants, which protects one of a defendant's most important constitutional rights.” Grandberry’s appeal asks 1) whether “during his exceedingly long stay in jail,” the lower court appropriately considered all of the relevant factors in finding good cause to continue to extend the time to appoint counsel and hold the preliminary hearing, and 2) whether Grandberry’s due process rights were “denied by delay.” In the second case, the ACLU of Wisconsin, the national ACLU’s Voting Rights Project, and the Law Forward law firm join forces seeking to intervene in litigation brought by the federal administration against the Wisconsin Elections Commission for refusing to give the U.S. Department of Justice confidential information about Wisconsin’s registered voters. “It has been widely reported that the United States intends to use this data to build an unauthorized national voter database and to target voters for potential challenges and disenfranchisement, and the United States’ own representations to states tend to confirm those suspicions,” the coalition’s memorandum says. A press release from the ACLU of Wisconsin says Wisconsin is among 21 states, plus the District of Columbia, that the U.S. DOJ has sued to obtain sensitive voter data. |
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