 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 The District 3 per curiam (nonprecedential) opinion issued from the three-judge panel of Presiding Judge Lisa K. Stark and Judges Thomas M. Hruz and Gregory B. Gill.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.
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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 Court of Appeals has found the state statute controlling transfer of a child’s homicide case to juvenile court unconstitutional because it fails to consider the unique attributes of youth. Counsel for Noah Mann-Tate has been fighting Mann-Tate’s adult status since he was charged in adult criminal court for the intentional murder of his mother in January of 2023, when he was just 10 years old. Wisconsin law developed in the early 1990s requires any intentional homicide case to be charged in adult criminal court if the juvenile is at least 10 years old. Proceeding in adult court can only be changed by the statutory “reverse waiver” legal procedure governing when a youth can be transferred from the adult system into the juvenile system. The Court of Appeals found that the statute violates due process because it does not provide for consideration of the distinctive attributes of youth recognized in U.S. Supreme Court case law.  Geenen Judge Sara J. Geenen wrote for the District 1 panel, joined by Chief Judge Maxine White and Judge Joseph Donald.
Wisconsin statutes on reverse waiver require the youth charged in adult court to prove three factors more likely than not before the trial court can transfer the case to juvenile court: 1) whether the defendant can ultimately receive adequate treatment in the adult criminal justice system, 2) the seriousness of the offense and whether reverse waiver will depreciate that seriousness, and 3) whether retaining jurisdiction will undermine the goal of deterring the juvenile and other juveniles from committing the charged offense. Mann-Tate’s constitutional argument centered on the fact that several U.S. Supreme Court cases emphasized differences between adults and juveniles in the criminal justice system. Those cases, decided a decade after Wisconsin decided to send 10-year-old defendants to adult criminal court, were based on the U.S. Constitution’s prohibition against cruel and unusual punishment and distinguished juveniles from adults for sentencing purposes. Mann-Tate argued those distinctions are not relevant solely to questions regarding cruel and unusual punishment, and the Court of Appeals agreed. Geenen wrote that unique attributes of youth include the youth’s age as it relates to immaturity and inability to appreciate risks and consequences; the youth’s home and family life; the full context of the events and the extent to which the youth participated in the criminal conduct; the effect the defendant’s youthfulness on the ability to navigate the criminal justice process; the impact of family and peer pressure; and the possibility of rehabilitation. “Without consideration of these characteristics,” wrote Geenen, the current law violates due process because it does not provide a meaningful opportunity for a juvenile to prove that he or she is not one of the rare and unfortunate cases that warrant treating the juvenile as having the same culpability as an adult.” “This is a big decision,” said WJI Executive Director Margo Kirchner. “Advocates have argued for years that preteens and even up to 17-year-olds belong in the juvenile justice system.” (See this coverage of a June 2024 press conference highlighting Mann-Tate's case.) "The Court of Appeals has now recognized that children are different than adults when it comes to criminal charges, as the Supreme Court has said. The Legislature should follow suit and raise the age of adult-court jurisdiction. We need to follow the science on these cases,” Kirchner said. Geenen last year also ruled in favor of expanded discovery protections for juvenile defendants in reverse waiver hearings.  By Alexandria Staubach
The Wisconsin Elections Commission last week struck Christine Hansen from the spring election for District 2 of the Court of Appeals, leaving Anthony LoCoco as the sole candidate on the ballot. Hansen’s campaign website reports that she does not plan to challenge the WEC’s decision in court and is formally ending her campaign. Now, none of the three Court of Appeals candidates up for election faces a challenger. But voters should still know a bit about them. Judge Joe Donald is up for reelection in District 1, and Judge Rachel Graham is up for reelection in District 4. Both were initially appointed by the governor in 2019, so they are subjects of WJI’s “Evers’ judges” posts available here and here. Because the District 2 race is for an open seat (Judge Lisa Neubauer is retiring), voters may not know much about the remaining candidate. So who is Anthony LoCoco? If the Waukesha resident’s work history is any indication, his election would result in a very conservative-minded court. Although LoCoco’s campaign website says he will “apply the law as written and never legislate from the bench,” he is simultaneously campaigning as a “proven conservative fighter who will keep our communities safe and the bureaucracy out of our lives.” A Harvard Law School graduate, LoCoco served as a clerk for Justice Annette K. Ziegler. Ziegler and Justice Rebecca Grassl Bradley endorse LoCoco for the District 2 seat. After the high-court clerking position, LoCoco became deputy counsel at the conservative Wisconsin Institute for Law & Liberty, which was formed to address what it perceived as political imbalance where “conservatives and libertarians in Wisconsin were severely outnumbered in the legal arena.” WILL’s founder and president, Rick Esenberg, wrote in 2023 that “changes in power mean changes in policy,” and “the so-called progressive left is committed not only to statist control of the economy, but to advancing the social objectives of the misnamed social justice warriors of the left.” While at WILL, LoCoco participated in cases challenging the governor’s veto power (Bartlett v. Evers), demanding that the Wisconsin Department of Natural Resources hold a gray wolf hunt (Hunter Nation v. DNR), and involving Wisconsin’s legislative maps (Johnson v. WEC). LoCoco subsequently was hired by the conservative think tank Institute for Reforming Government, for which former Gov. Scott Walker serves as honorary chair. Most recently, LoCoco has managed his own “boutique appellate law firm,” Wisconsin Appellate Litigation Services. LoCoco, like current District 2 Judges Maria Lazar and Shelly Grogan, is affiliated with the Federalist Society, which has described itself as a “group of conservatives and libertarians dedicated to reforming the current legal order.” According to his law firm website, LoCoco is vice president of the Federalist Society’s Milwaukee chapter. Since a change in the law in 2011, litigants are no longer required to bring actions against the state in Dane County, and appeals of cases against the state in Dane County must be taken to a different appellate district—think Waukesha County in lieu of Dane County, and District 2 in lieu of District 4. Today, cases involving the power struggle between the conservative Legislature and Gov. Evers’ executive branch often are appealed to District 2. By Alexandria Staubach The Wisconsin Court of Appeals shut down a Dunn County man’s argument that new intoxicated-driving charges must be dismissed because they relate back to his exercise of his constitutionally protected right to refuse a warrantless blood draw.  Gill Judge Gregory Gill wrote for the District 3 panel, joined by Presiding Judge Lisa Stark and Judge Thomas Hruz.
Nicholas Sparby-Duncan was charged with failing to install an ignition interlock device (IID) in his vehicle and operating a motor vehicle with a prohibited alcohol concentration (PAC), both as a second offense. Sparby-Duncan was, due to prior actions, required to have an IID in his vehicle and prohibited from driving with a blood alcohol concentration above 0.02. An IID requires a driver to pass a breath test before the vehicle can be operated. Sparby-Duncan's restrictions stemmed from his 2008 refusal to submit to a warrantless blood draw and his 2013 conviction for operating a motor vehicle with a detectable amount of a restricted controlled substance (RSC). Because of the 2008 refusal, the sentencing judge in 2013 ordered Sparby-Duncan to install an IID in his vehicle. By statute, as a result of the IID order, Sparby-Duncan was subject to a maximum blood alcohol concentration of 0.02, rather than 0.08, for operating a motor vehicle. Sparby-Duncan would not have been subject to the IID order in 2013 or the 0.02 PAC level absent his 2008 refusal to submit to a warrantless blood draw. Sparby-Duncan argued to the Court of Appeals that because he had a constitutional right to refuse the blood test in 2008, the second-offense charges were unconstitutional—they would not apply but for his exercise of a constitutional right. The State called the nexus between the prior refusal and the new charges “indirect at best.” Wisconsin law and U.S. Supreme Court law prohibit criminal sanctions for refusal to submit to a warrantless blood draw, but they permit civil penalties. Rejecting Sparby-Duncan’s argument that he faced criminal sanctions because he would not be subject to the IID order or a 0.02 PAC but for his 2008 refusal, the Court of Appeals wrote: “Be that as it may, the State could not have charged Sparby-Duncan with the IID and PAC counts in this case but for his choice—made long after the refusal—to forgo installing the IID and to drive with a blood alcohol concentration above 0.02.” “The State is not seeking to treat Sparby-Duncan’s 2008 refusal as an offense for the purposes of increasing the criminal penalty for a subsequent offense,” the court said. Rather, the state is “seeking to impose criminal penalties on Sparby-Duncan for his violation of the IID order—a civil consequence of his refusal—and his operation of a vehicle with a PAC.” Put another way, the new charges would impose criminal penalties on Sparby-Duncan not for refusing to submit to the blood draw in 2008, but for violating the permissible IID order and blood alcohol concentration limit. Wisconsin Court of Appeals clarifies prior conviction count for domestic violence sentence enhancer12/11/2025 By Alexandria Staubach A recent decision by the Wisconsin Court of Appeals addresses the state’s ability to count prior convictions in cases where the “domestic abuse repeater” statute applies. The statute is a discretionary sentence enhancer that not only increases the length of a potential sentence but also morphs what would otherwise be misdemeanor conduct into a felony. That the sentence enhancer can turn a misdemeanor into a felony was top of mind for the trial court judge, but it was dismissed as inconsequential at the appellate level.  Hruz Judge Thomas M. Hruz delivered the opinion of the District 3 appellate panel, joined by Presiding Judge Lisa K. Stark and Judge Gregory B. Gill Jr.
Under the statute, a defendant may qualify as a repeat offender if during the preceding 10-year period they are “convicted on 2 or more separate occasions” of a domestic abuse offense. On appeal, the question for the court was whether those two prior convictions could stem from the same set of events or case. The defendant, Brian Tyrone Ricketts Jr., was convicted of two prior acts of domestic abuse, but the convictions arose out of a single incident in 2021. Ricketts argued that the single incident should not qualify him as a repeat offender under the statute. The state argued that the domestic abuse repeater statute applies to two convictions irrespective of how they were accumulated and that the statute should be interpreted in the same manner as the general repeater statute. The Wisconsin Supreme Court has interpreted the general repeater statute to apply “as long as the defendant was convicted of three misdemeanors during the requisite statutory time period, even if the convictions arose out of the same incident and occurred during a single court appearance,” Hruz wrote. However, a distinction between the general repeater statute and the domestic abuse repeater statute remained because the domestic abuse statute bumps what would otherwise be misdemeanor conduct up to a felony offense. That distinction led Brown County Circuit Judge John P. Zakowski to interpret the domestic abuse statute to require two separate and distinct occurrences of domestic violence in Ricketts’ case. “With the elevation of a misdemeanor to a felony, there is a significant change in the case,” he said. Zakowski relied on Supreme Court precedent related to the sex offender registration statute to conclude that the common, ordinary, and accepted meaning of two or more separate occasions means separate dates of offense. “For example, if a defendant had been involved in only one domestic abuse incident on a particular date and was asked on how many occasions s/he was convicted of a domestic abuse offense, the court would expect the correct answer to be ‘one,’” wrote Zakowski. The problematic word for the appeals court was “occasion,” which it said has “multiple common, ordinary meanings.” The court noted that the word can mean both an incident and a time at which something occurs or an instance of something. This, to the court, made the statute ambiguous. When a statute is ambiguous, the court may look outside the plain meaning of the text and examine legislative history or use other methods of statutory construction. In this case, “the parties have not directed us to any legislative history of the domestic abuse repeater statute that is relevant to the issue presented in this appeal,” wrote Hruz, so the court used other “canons” or principles of statutory construction. The appeals court agreed with the state that the statute should be interpreted consistently with the Wisconsin Supreme Court’s prior considerations of the general repeater statute. Because the statues appear to be related laws dealing with the same topic, population, or class of things, “they should be construed together,” wrote Hruz. In a footnote, Hruz wrote that the statute’s feature of bumping a new conviction from a misdemeanor to a felony is a “minor difference.” The appeals court then concluded that a person qualifies as a domestic abuse repeater “if he or she was convicted of two or more qualifying domestic abuse offenses during the requisite statutory time period, regardless of whether those convictions arose out of the same incident, had the same offense date, or occurred during the same court appearance.” Ricketts’ case was remanded back to the trial court for further proceedings consistent with the appeals court’s ruling. By Alexandria Staubach The Wisconsin Court of Appeals last week invalidated part of a law that permitted individuals, institutionalized as "not guilty by reason of mental disease or defect” (NGI) and later released, to be sent back into state custody for mere rule violations.  Judge JoAnne F. Kloppenburg wrote for the three-judge panel in District IV, joined by Judges Brian W. Blanchard and Jennifer E. Nashold. The case centered on the institutionalization, release, and reinstitutionalization of Desmond J. Wilhite. Wilhite had been found NGI on a charge of threatening a law enforcement officer and committed to the care of the Wisconsin Department of Health Services. In November 2022, the state stipulated to Wilhite’s conditional release, stating that he “did not 'currently pose a significant risk of harm to self, others, property.'” As a result, the circuit court ordered Wilhite conditionally released in February 2023 to the same community residential facility where he previously resided. That release was later revoked by Dane County Circuit Court Judge Josann M. Reynolds. DHS had sought to have Wilhite’s conditional release revoked based on DHS rule violations, the nature of which were not specified in the appellate court’s opinion. The statute at issue allowed revocation and reinstitutionalization of NGI-committed individuals who had been released based on 1) violation of a release condition set by the court or DHS, or 2) the individual’s current dangerousness. Reynolds found that the state had met its burden of proof regarding rule violations by Wilhite and that it was "'not a situation where (she had) to find dangerousness.'" Wilhite argued on appeal that the law was unconstitutional on its face because it allowed a circuit court to revoke an NGI individual’s conditional release based solely on a violation of a court-ordered or DHS rule, absent proof of dangerousness. Wilhite relied on federal law to argue that it “always violates due process” to commit an individual to institutional care without proof of dangerousness, because due process requires release from commitment when the individual is no longer dangerous. The court of appeals agreed. Kloppenburg wrote that if an individual is conditionally released, the court must necessarily find that an individual no longer presents a danger to themselves or the community. “(I)f a court finds that an NGI acquittee is no longer dangerous, the court must release the acquittee because the constitution prohibits continued commitment.” After that, “the inference of dangerousness from an NGI verdict is no longer sufficient to justify commitment; rather, dangerousness must be established as a matter of fact,” she wrote. “It follows from this that, to avoid violating due process, a circuit court many not commit to institutional care a conditionally released NGI acquittee without making a new finding of dangerousness,” Kloppenburg wrote. “(I)n all such cases the court has previously determined that there was not clear and convincing evidence that the acquittee is dangerous.” Because state and federal law require a finding of dangerousness to justify the detention of an NGI individual, the portion of the statute allowing reinstitutionalization for rule violations alone is unconstitutional, the court held. The court left in place the remainder of the statute. Wilhite’s case was reversed and remanded to the circuit court with directions to vacate the order that revoked his conditional release and recommitted him to institutional care. By Alexandria Staubach The Wisconsin Court of Appeals recently reversed a man’s conviction because the attorneys and court all failed to realize until too late that two charges sent to the jury were not separate offenses; instead, one was a lesser-included offense of the other. Wisconsin Court of Appeals District IV remanded the case to Columbia County Circuit Court for a new trial. Blanchard Judge Brian Blanchard wrote for the panel, joined by Presiding Judge JoAnne Kloppenburg and Judge Chris Taylor.
Samuel Osornio was charged with both delivery of heroin and first-degree reckless homicide by delivery of heroin. A jury found Osornio guilty on both charges, exposing him to potential punishment on both. But the charges arose from the same conduct of delivering heroin and the elements for one count were all included in the other count as well. The legal name for such situations is “multiplicity.” It happens when charges require the same elements to prove an offense to a jury, stemming from the same facts—here that Osornio delivered heroin and that he delivered heroin which resulted in death. Because the reckless-homicide charge added death to the elements of heroin delivery, the delivery charge was a “lesser-included” offense of the reckless-homicide charge. The prosecutor, defense attorney, and Columbia County Circuit Judge Todd Helper all failed to appreciate that the delivery and reckless homicide charges required proof of the same elements until the jury was well into lengthy jury deliberations after a two-day trial. Helper had not given any jury instruction about considering a lesser-included offense. Three hours into deliberations, the jury informed the court that it could not reach a verdict as to the reckless homicide offense but that it had consensus on the delivery offense. Helper then ordered the jury to continue its deliberations, still unaware of the multiplicity issue and without giving a lesser-included instruction. The lesser-included instruction would have told the jury that if it had already made every reasonable effort to decide the greater offense of reckless homicide, it could proceed to resolve the lesser-included charge of heroin delivery. The appeals court found that counsel for Osornio’s counsel failed to notice this multiplicity issue in a timely manner, which resulted in prejudice and ineffective assistance of counsel. The question for prejudice resulting from deficient performance of counsel is “whether it is reasonably likely the result would have been different,” Blanchard wrote. Here, he said, “there is a substantial, not merely a conceivable, likelihood that a jury that was properly instructed from the start would have reached a more favorable result for Osornio.” While Helper ultimately sentenced Osornio on only the reckless-homicide charge, the appeals court found that “the missed potential benefit to Osornio should have been obvious from the time the case was charged through to the time of trial.” “(A)pplying the objective standard of reasonableness, the three overlapping elements in the two counts should have prompted double jeopardy concerns by defense counsel before trial,” Blanchard wrote. By Alexandria Staubach The Wisconsin Court of Appeals recently found that a state statute and corresponding grant program for immigrants and students of color are unconstitutional. The Higher Educational Aid Board Minority and Undergraduate Retention Program offers grants from $25 to $2500 per year to Black, Native American, and Hispanic students plus immigrants from Laos, Cambodia, and Vietnam admitted to the United States after 1975.  Gundrum Presiding Judge Mark Gundrum wrote the lengthy opinion, joined by Judges Shelly A. Grogan and Maria S. Lazar in District 2. The decision upheld the ruling of former Jefferson County Circuit Court Judge William F. Hue.
In finding the program unlawful, the appeals court relied almost exclusively on a 2023 U.S. Supreme Court decision (Students for Fair Admissions v. Harvard) holding that race-based affirmative action college admissions programs violate the equal protection clause. Gundrum spent 10 of the 53 pages of the opinion reiterating the high court’s decision. “With the grant program, the legislature did not simply enact another financial aid program for all financially needy students; rather, it specifically and intentionally targeted students who were members of certain racial, national origin, ancestry and alienage groups,” Gundrum said. The program has been in existence since 1985. The Higher Educational Aid Board said the program was designed to keep the diverse recipients from dropping out because of financial hardship—a national phenomenon that persists today. The appeals court rejected the argument that addressing such an issue could be a “compelling state interest” as required by the legal standard for race-based laws. When asked at oral argument whether the board had “'any case law support that says improving retention and graduation rates for certain minority groups but not others is a compelling state interest,'” the board’s counsel said they hoped “'this court issues the first opinion.'” “That is a big ask,” wrote Gundrum. The appeals court found that the board “failed to show that improving retention/graduation rates of students in the preferred racial, national origin, ancestry and alienage groups at Wisconsin private and technical colleges or mitigating the disparity in those rates between students in the preferred groups and students in nonpreferred groups constitutes a compelling government interest.” Gundrum quoted the U.S. Supreme Court, adding his own emphasis, saying that “’no State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” By Alexandria Staubach Wisconsin Court of Appeals District 2 last week reversed Wisconsin Supreme Court hopeful and Waukesha Circuit Court Judge Brad Schimel’s decision siding with Elmbrook School Board leaders on open meeting violation allegations. Elmbrook School Board members Scott Wheeler and Jean Lambert face fines after the three-judge panel unanimously ruled in favor of plaintiff Leanne Wied.  Gundrum Presiding Judge Mark D. Gundrum wrote for the panel, joined by Judges Shelly A. Grogan and Maria S. Lazar.
The appeals court found that the school board operated under a “cloak of secrecy” in filling a vacant school board seat during COVID. Gundrum characterized the case as “an excellent example of the real-world impact of failing to adhere to open meetings law requirements.” In 2020, the school board sought to fill a vacancy during a meeting held by Zoom during the pandemic. Four candidates, including Mushir Hassan and Wied, vied for the job. During the meeting, Wheeler asked each board member to rank their first and second choices by email and send him their preferences. The email votes did not constitute formal votes but were intended to narrow the field, Wheeler said. According to Gundrum's opinion, no candidate received enough votes to be the first choice of four or more of the candidates. Nevertheless, Wheeler presented Hassan and Wied as the candidates for the board to consider. He did not announce or subsequently volunteer the results of the email vote. Ultimately the board was deadlocked three to three. Wheeler consistently voted for Hassan. On a third vote between Hassan and Wied, board member Glen Alliger, who had previously voted for Wied, switched his vote to Hassan. Before receiving all votes, Wheeler announced “We’ve got four votes for Mushir (Hassan) and two votes for Leanne (Wied),” which Wheeler said constituted a “consensus.” In fact, another member had also switched, but from Hassan to Wied, so the board was still deadlocked three to three. Wheeler then called for a formal vote, which Hassan won with five votes and one member abstaining. At no point were the results of any email votes read aloud or published in the online meeting to the entirety of the board or the public. Further, Wheeler never corrected the email vote tally, which after the meeting he characterized as an oversight. The actual numbers were disclosed only through subsequent open records requests, which produced the emails. Wied sued Wheeler and Lambert, alleging violations of the open meeting laws and another claim against the school district. Schimel sided with the defendants in circuit court. The court of appeals found that Schimel incorrectly removed Wied as the plaintiff because she had a “personal interest” in the case after having initiated a different suit against the district. Schimel also had found that Wheeler and Lambert’s actions did not constitute an “intent to hide something.” In reversing, the appeals court wrote that “Board members sharing their preferences with Wheeler in a manner that hid the same from the public and other board members was concealment that was initiated and invited by board president Wheeler.” Gundrum wrote that “the secrecy of Wheeler’s process allowed him to erroneously announce his own preferred candidate, Hassan, as having received four email preferences to advance for the subsequent up-or-down vote, and no one was in a position—at the time when it mattered, as opposed to after Hassan had already been selected, voted on, and seated as a new board member—to monitor the process.” Wheeler and Lambert remain on the Elmbrook school board with terms expiring in April 2026 and April 2027, respectively. Hassan's term ended in 2024. |
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