 By Alexandria Staubach
The Wisconsin Supreme Court is back in session, having heard its first oral arguments of the new term on Tuesday. The pair of cases before the court examine privacy under the Fourth Amendment regarding the online world, considering whether materials brought to law enforcement by third-party online platforms require a warrant to be opened. Oral arguments opened for the first time in 30 years without Justice Ann Walsh Bradley. Newly installed Chief Justice Jill Karofsky presided, and Justice Susan Crawford made her debut on the high court bench. The first case involved Snapchat’s sending of a video suspected of containing child sexual abuse material (CSAM) to Wisconsin law enforcement. Snapchat had traced the video to Michael Joseph Gasper’s account. A Waukesha County Sheriff’s Office detective first viewed the material without a warrant. He then obtained a warrant that led to discovery of more CSAM material on Gasper’s phone. Gasper successfully moved to suppress the evidence in Waukesha County Circuit Court. Judge Michael Bohren ruled that Gasper retained a reasonable expectation of privacy in his Snapchat data. Prosecutors successfully appealed Bohren’s ruling. Wisconsin Court of Appeals District 2 concluded that Snapchat’s terms of service notify all users that their accounts are monitored for CSAM material, which, if found, would be turned over to law enforcement. During Tuesday’s oral arguments, Wisconsin Department of Justice attorney Michael Conway argued that an exception to the warrant requirement allowed law enforcement to view the material without a warrant. Conway argued that if the government had a “virtual certainty” that looking at the file would not reveal anything else of significance not conveyed by the private party, its conduct was appropriate and permitted. Conway said the case differs from instances where law enforcement officers search a cell phone or container. The government didn’t search a phone or a file, he said. Instead, “the government searched a photo that was provided to it by a third party.” “Snapchat didn’t invite law enforcement to open a whole account,” he said. “The cases are a little frustrating and not particularly clear,” said Justice Brian Hagedorn about the relevant case law. Crawford asked whether the state was asking the court to “narrowly authorize the government to conduct additional searches without a warrant when there is a cyber tip for child sexual abuse specifically” and questioned why the court would make such a distinction. The second case heard by the court presented similar questions. The case arose when Google presented the Jefferson County Sheriff’s Office with evidence of CSAM held in a Google Photos account owned by Andres Rauch Sharak. Again, a detective with the sheriff’s office viewed the material without a warrant. In addition to making arguments similar to those made earlier by Gasper, Sharak’s attorney, Bradley Novreske, argued that Google’s monitoring for CSAM amounted to government action because Google would not endeavor to look for the material on its own. “This isn’t voluntary for them,” said Novreske. He argued that the federal government functionally compelled the searches, “indirectly deputizing” online platforms that enjoy immunity for content created by individual users and the privilege of policing themselves. Novreske referred to a group of federal laws known as the “Protect the Children Act.” Those laws do not themselves compel searches, but he argued that they effectively compel online platforms to act like the government in looking for CSAM. “How many courts have said what you’re asking us to say?” Justice Annette Ziegler asked. “No courts have been asked to,” replied Novreske. He acknowledged that whether online platforms are “functionally deputized” to search for illicit material is an issue of first impression nationwide. No one law specifically says that online platforms are required to look for CSAM. In fact, one of the laws encompassed by the Protect the Children Act specifically says that such searches are not mandatory. “I don’t understand how we could disregard a provision that explicitly says searches are not mandated and find that some combination of other provisions or regulations does create such a requirement,” said Crawford.
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 The Wisconsin Supreme Court hearing room. Photograph by Margo Kirchner. By Alexandria Staubach
Wisconsin lawyers will soon be able to claim up to six credits for courses on cultural competency and reduction of bias within the legal system to satisfy the 30 mandated hours of continuing education every two years. A new rule approved by the Wisconsin Supreme Court permitting the training will take effect for the reporting cycle beginning in January 2026. The rule stops short of mandating any course in the subject area, leaving it to the attorney's choice. At an open session following a public hearing in January, the Supreme Court justices voted to approve the State Bar of Wisconsin’s petition seeking recognition of continuing legal education credit for courses addressing cultural competency and reduction of bias. The contours of the rule and when it would take effect remained outstanding until last week when the court issued its final order. The order put to rest a years-long campaign for attorneys to receive such credits. In 2022, the Supreme Court rejected a previous petition for a similar rule change. At that time, Justice Rebecca Grassl Bradley penned a 33-page concurrence, writing that the State Bar was seeking to “mandate DEIA training, impose group think on attorneys, and condition bar admission and continuing licensure on subscribing to an illiberal political ideology.” Bradley attached her lengthy 2022 concurrence to her seven-page dissent in last week’s order approving the new legal education credits. In her dissent, Grassl Bradley cited authorities from Bob Dylan to Frederick Douglass to support her position that cultural competence and bias reduction education “inflicts particularly pernicious damage on the justice system." She wrote that “without any evidence, (DEI’s) adherents assert that race-based bias infects the entire system, precluding people of color from receiving equal protection of the law.” Grassl Bradley asserted this was an “insupportable insult to attorneys and judges” and is “in derogation of every principle that makes America great.” Justice Annette Ziegler joined the dissent. The January decision came with sharp criticism from Justice Brian Hagedorn as well. At the court's January open session he called the rule change “wrong-headed and likely counterproductive.” However, although last week’s order noted Hagedorn's dissent to the outcome, Hagedorn did not join Grassl Bradley’s written dissenting opinion. The rule change was also opposed by conservative advocacy group Wisconsin Institute for Law & Liberty, which, according to its January testimony against the rule, is generally opposed to continuing legal education. 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 reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Case: State v. Stetzer  Dallet Majority: Justice Rebecca Dallet (17 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Brian Hagedorn, and Janet Protasiewicz Concurrence: Justice Annette Ziegler (2 pages) Dissent: Chief Justice Jill Karofsky (15 pages) Upshot When a defendant commits an ongoing, otherwise-criminal act, like operating a motor vehicle with a prohibited alcohol concentration (PAC), the elements of the coercion defense (a complete defense to the charge) must be met for the entire duration of that act. Further, a defendant’s personal history can be relevant to the reasonableness of her belief that committing a crime was the only means of preventing imminent death or great bodily harm. Taking these determinations into account, the imminent danger situation that caused defendant Joan Stetzer to drive with a PAC dissipated, ending the defense and resulting in her conviction. Background Joan Stetzer was physically, emotionally and sexually abused by her husband, Bill Behlmer, for many years. He admitted that he physically and verbally abused her. To get away from the abuse, Stetzer sometimes went to their lake house, about 15 minutes from their primary home, because it had interior chain locks on the doors that prevented even someone with a key from entering. During the early hours one morning, after an argument about Behlmer's sexual affairs, Behlmer became violent, screamed at Stetzer, and pushed her down the stairs. Behlmer threatened to call the police, and taunted Stetzer that the police would arrest her instead of him, which had happened in the past. He accidentally dialed 911 but quickly hung up. Around the same time, Stetzer went outside. When the police called back, Behlmer told them that she was likely driving to the lake house and that she may be intoxicated. When Stetzer reentered the house, he ran at her with a closed fist, telling her to “get the hell out.” Stetzer testified that Behlmer had a look on his face that she had never seen before. He then ran after Stetzer into the garage carrying a large metal pot, “whipped” the pot at her, and continued to chase her outside and around her car. Stetzer managed to get inside her car and lock the doors. Behlmer pounded on the windows of the car and yelled “I’m going to take you out you fucking bitch.” Stetzer testified that she was frightened that he would break the windows of the car. Despite drinking a number of glasses of wine earlier that evening, Stetzer fled in her car, testifying that she did not believe she had another alternative. At first, Stetzer said she was “just trying to escape,” without a particular destination in mind, but she soon decided to drive to the lake house. About halfway there, Stetzer passed Officer Kimberley Kuehl in a police car pulled over on the side of the road. Officer Kuehl had learned of Behlmer’s report that Stetzer was likely driving to the lake house and that she may be intoxicated, and had positioned herself along Stetzer’s expected route. Stetzer acknowledged at trial that she saw the police car. When asked why she did not stop, Stetzer testified, “I thought about it. I thought should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested." After observing Stetzer weaving and veering in her lane, Kuehl initiated a traffic stop. Stetzer admitted that she had been drinking. She told Officer Kuehl that her husband had thrown her down the stairs and that she was going to the lake house “to get out of there.” Officer Kuehl testified that Stetzer appeared to be afraid of her husband and that she was crying. During the stop, Stetzer exhibited signs of impairment, and a subsequent blood draw showed that her blood alcohol concentration was over the legal limit of 0.08. She was arrested and charged with operating a motor vehicle with a PAC as second offense. At her bench trial, Stetzer stipulated that her blood alcohol concentration exceeded the legal limit, but she argued that the coercion defense absolved her of the offense. She argued that the defense allowed her to a motor vehicle with a PAC because the physical attack and threats by Behlmer caused her reasonably to believe that driving to the lake house was the only means of preventing imminent death or great bodily harm. Trial evidence included testimony from Stetzer, Behlmer, and an expert on domestic violence, Dr. Darald Hanusa. Hanusa, a psychotherapist and clinical social worker specializing in domestic violence, testified that on the night in question, Stetzer was presented with a “classic dilemma” for a person experiencing domestic violence: “[d]oes she stay with the possibility of being injured or does she take a risk to drive a car to flee to safety?” Dr. Hanusa also explained that fear is a primary factor in the decisions of domestic violence victims and that victims often do not call the police. He further opined that because Stetzer had an “adverse relationship with the police department,” the police would be “the last people she’s going to call for help.” The circuit court concluded that the elements of the coercion defense were initially met when Stetzer initially decided to drive away from her home. However, the state proved beyond a reasonable doubt that by the time she was pulled over, Stetzer had other means of safety available, so the elements of the defense no longer existed. The judge pointed out that once Stetzer left the driveway she had more options than driving to the lake house. The court of appeals affirmed. Guts Stetzer argued that as long as the elements for the coercion defense were met at the beginning of the offense when she began to operate her vehicle, the defense applied. We start with the text of . . . the statutes defining the coercion defense. . . . The pertinent statute identifies when an individual’s conduct occurs under circumstances of coercion, providing, in relevant part, that “[a] threat by a person . . . which causes the actor reasonably to believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor . . . and which causes him or her so to act is a defense to a prosecution for any crime based on that act . . . .” The “circumstances of coercion” referenced in the statute are therefore present only when the three elements . . . are met: (1) there is a threat by another person; (2) the threat causes the defendant reasonably to believe that an otherwise-criminal act is the only means of preventing imminent death or great bodily harm; and (3) the threat causes the defendant to engage in the act. *** Requiring the elements of the coercion defense to be met throughout the duration of an ongoing act is consistent with how we have interpreted the closely related defenses of self-defense and defense of others. Like coercion, these other defenses permit an individual to engage in otherwise-criminal conduct (use of force against another) under certain narrow circumstances without facing liability—namely, when the individual reasonably believes that the force is necessary to prevent unlawful interference with the individual’s person or with a third person. Significantly, we have concluded that these related defenses are available only when a defendant or a third person is actually under threat. Even more to the point, we have held that when the otherwise-criminal act is ongoing, like possessing a firearm as a felon or carrying a concealed weapon, a defendant arguing self-defense must not have continued the act any longer than reasonably necessary. Our interpretation of the coercion defense also finds support in how other jurisdictions have interpreted similar defenses. The Supreme Court of Alaska, for example, held that defendants asserting the necessity defense for continuing offenses, like drunk driving, must show some evidence that they stopped violating the law as soon as the necessity ended. And New Jersey courts have noted that in a drunk-driving prosecution, “the distance a driver traveled might be relevant to the defense of necessity if the driver had escaped the harm and continued to drive.” Other courts have come to the same conclusion outside the specific context of drunk driving. And still others have held that coercion or similar defenses apply only as long as the elements of the defense continue to be met. Stetzer’s interpretation, by contrast, lacks a meaningful limiting principle and would dramatically expand the scope of the defense. Accepting Stetzer’s argument that the elements of the coercion defense need to be met only at the beginning of an ongoing, otherwise-criminal act would mean that an individual who is coerced in the first instance is free to ignore clearly safe alternatives to continued criminal conduct, or may continue engaging in such conduct even long after the threat has dissipated. In other words, the coercion defense could apply even if the act is no longer “occur[ing] under circumstances of coercion,” as required by the relevant statutes. We decline to adopt this expansive interpretation and therefore hold that the elements of the coercion defense must continuously be met throughout the duration of an ongoing, otherwise-criminal act. With respect to the second issue before us, Stetzer argues that the circuit court failed to consider her personal history of domestic violence and interactions with the police when determining whether she reasonably believed that operating a motor vehicle with a PAC was the only means of preventing imminent death or great bodily harm. In response, the State asserts that a defendant’s personal history is always irrelevant to what she reasonably believed. We disagree with the State’s categorical claim that personal-history evidence is always irrelevant to the reasonableness of a defendant’s belief. . . . *** Importantly for our purposes, we have repeatedly held that “[t]he personal characteristics and histories of the parties are relevant to” the reasonableness of the defendant’s belief. Regarding self-defense, for example, we held that the defendant’s testimony that he was the victim of an armed robbery at his sister’s residence could support a finding that he reasonably believed he was under an imminent threat when he heard kicking at the door of that same residence. And regarding defense of others, we similarly held that evidence that the defendant knew the victim abused his sister and could be violent could support a finding that the defendant reasonably believed his actions were necessary to protect his sister. We conclude that evidence of a defendant’s personal history can be similarly relevant in the context of coercion. Like self-defense and defense of others, the coercion defense focuses on what the defendant “reasonably believes” about both the threat and the act necessary to prevent it. Determining whether the defendant “reasonably . . . believe[d] that . . . her act . . . [wa]s the only means of preventing imminent death or great bodily harm,” therefore, must be determined from the standpoint of the defendant, and the operative question is what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. And if personal history can be relevant to this analysis for self-defense and defense of others, it must similarly be relevant for the defense of coercion. The State suggests that the personal history of the defendant is irrelevant because considering it would transform “reasonableness” into a subjective standard. We disagree. Whether evidence of a defendant’s personal history is admitted or not, the underlying legal question remains the same: what a person of ordinary intelligence and prudence would have believed in the defendant’s position under the circumstances that existed at that time. In answering that question, the defendant’s past experiences, like her present ones, may be probative of what a reasonable person in the defendant’s position would have believed under the circumstances. The standard remains objective, however, because a mere subjective belief on the defendant’s part is insufficient to support the coercion defense. The factfinder must still determine if the defendant’s belief was objectively reasonable. Accordingly, we hold that, just as in the contexts of self-defense and defense of others, the defendant’s personal history can be relevant to the reasonableness of her belief that her actions were the only means of preventing imminent death of great bodily harm. *** Here, the circuit court’s conclusion that coercion had been disproven centered on two key factual findings: Stetzer knew she passed a police car and Stetzer was in a city she knows well. Those findings are amply supported by the evidence, and indeed are not disputed. Stetzer herself acknowledged that she saw the police car and that she thought about stopping, testifying that she thought “should I stop, and I thought no, I’m not going to stop, I have called the police on two other occasions when being physically abused. [Behlmer] lied and I got arrested.” On the basis of the findings that Stetzer knew she passed a police car and was in a city she knew, a reasonable factfinder could conclude, as the circuit court did, that beyond a reasonable doubt Stetzer knew there were other means of preventing imminent death or great bodily harm, and that the coercion defense was therefore disproven. Stetzer nevertheless argues that the circuit court’s verdict is not supported by sufficient evidence because she did not trust the police and feared they would arrest her, and that it was therefore reasonable for her to believe that continuing to drive past the police car was the only means of preventing imminent death or great bodily harm. But a reasonable factfinder could conclude, her distrust of police and fear of arrest notwithstanding, that Stetzer could not reasonably believe that she would still be under a threat of imminent death or great bodily harm by Behlmer while in the police’s presence. Moreover, a reasonable factfinder could have relied, as the circuit court did, on Stetzer’s knowledge of the area. In particular, the record indicates that on the way to the lake house, Stetzer passed a hotel that she knew was open. A reasonable factfinder considering this record could have reached the same conclusion as the circuit court: that the coercion defense had been disproven.  Ziegler Concurrence I cannot, however, join part of the majority opinion, . . . because the majority unnecessarily reaches out to address whether personal history may be relevant to determining the reasonableness of a defendant’s belief that her act was the only means of preventing imminent death or great bodily harm. The court does not need to address this issue to resolve this case. As the majority opinion itself concludes, there is sufficient evidence to support the circuit court’s guilty verdict even if Stetzer’s personal history is considered. Said otherwise, whether or not Stetzer’s personal history is considered has no bearing on the outcome of this case. “‘Issues that are not dispositive need not be addressed.’” Further, the majority’s analysis regarding the relevance of a defendant’s personal history appears to suggest that the psychological effects prior acts of abuse may have on a defendant may be relevant personal history. We have not received meaningful briefing or argument on that issue from the parties, and courts are divided on whether such evidence is relevant to determining the objective component of the coercion defense. Accordingly, we should not opine, explicitly or implicitly, on that issue in this case.  Karofsky Dissent
“I’m going to take you out, you fucking bitch!” Threats, violence, abuse, manipulation, and coercion were all tactics Bill Behlmer employed to exert power and control over his wife, Dr. Joan Stetzer. In the early hours of May 24, 2017, Behlmer yelled the above threat as Stetzer cowered in her truck, wearing only pajamas. She was trying to escape Behlmer’s rage after he engaged in several acts of domestic abuse, including throwing Stetzer down a flight of stairs. Behlmer also threatened Stetzer by calling 911 and promising, “They [the police] [a]re going to get you just like the last time.” At 2:00 a.m., Stetzer fled in her vehicle without her phone, a change of clothes, a wallet, shoes, or even a plan. Just as Behlmer predicted, she was pulled over by the police a few miles from her house. Stetzer, not Behlmer, was arrested. She was later charged with disorderly conduct as an act of domestic violence; operating a motor vehicle with a prohibited alcohol content; and operating a motor vehicle while intoxicated. *** To secure a conviction, the State had to prove beyond a reasonable doubt that Stetzer did not reasonably believe that continuing to drive was her only means of protection from the threat of imminent death or great bodily harm. When assessing both reasonableness and imminence, the circuit court applied the wrong legal standard and consequently erred in concluding that the State met its burden. The majority’s insistence that the circuit court correctly applied the pertinent statute does not square with a proper interpretation of the statute and a thorough review of the evidence introduced at trial. *** The police stopped Stetzer and she tried multiple times to explain to them how Behlmer had attacked her. The officers disregarded her report. Stetzer described her perspective: “I felt like I was a victim . . . of domestic abuse and violence that night, and I felt like I was being treated as a criminal. I was dismissed. [The officers] didn’t even want to hear about what happened.” One officer insisted “you’re lying about the whole thing, you’re just a liar.” The same officer called her “narcissistic,” and another officer “didn’t seem to care.” In the course of being questioned, Stetzer penned a one-page account of what had transpired. In her words, “I was trying to explain that, [number one], this had happened tonight and, [number two], he had gotten away with it before.” The police ignored Stetzer’s account of Behlmer’s violence and abuse. They conducted only the most perfunctory of investigations into Behlmer’s actions. Behlmer even hired an attorney, in anticipation of legal consequences, and was surprised that the police never questioned him again. Instead the police arrested Stetzer for operating a motor vehicle while intoxicated. She was later charged with disorderly conduct as an act of domestic violence, . . . operating a motor vehicle with a prohibited alcohol content, as a second offense, . . . and operating a motor vehicle while intoxicated, also as a second offense . . . . Karofsky says reasonableness and imminence are central to the case and must be assessed within the context of domestic abuse. *** Personal history is particularly salient when assessing the behavior of domestic abuse victims. Hanusa framed it this way: “The question for victims of domestic violence isn’t how a reasonable person reacts in this situation. The question is given trauma that the victim of domestic violence has received, how would a reasonable domestic violence survivor respond. That’s the important question.” The violence can have widespread effects. “As with victims of terrorism or those held hostage, a battered woman’s perception of her situation and reality in general is changed and substantially altered. When this occurs, her capacity to evaluate options is diminished substantially.” For a reasonable victim of domestic violence, “[i]n situations of stress and trauma, there tends to be a narrowing or focusing on parts of the experience that the brain is appraising as really essential to survival and coping.” A domestic violence victim in survival mode will experience an “ignoring or non-processing of peripheral details.” *** Understanding the distinction between imminent and immediate is especially important when assessing the culpability of a domestic violence victim who engages in unlawful conduct to protect herself from the threat of imminent death or great bodily harm. “Imminent” does not mean that the threat or harm is occurring this moment. Rather, “imminent” means that the threat or harm is impending. “[T]he use of the word ‘immediate’ . . . obliterates the nature of the buildup of terror and fear which had been systematically created over a long period of time. ‘Imminent’ describes the situation more accurately.” Conflating the two standards leads courts to improperly blame domestic violence victims for failing to exercise proper judgment. Said differently, “the relevant question . . . concerns the relationship as a whole,” not just the most recent incident of abuse. *** The police were hardly a means of safety for a reasonable person in Stetzer’s position. Behlmer himself admitted that he had manipulated the police against Stetzer in the past. And that very night he taunted her with the threat that the police would come and “get you just like last time.” Stetzer testified that if she contacted the police, they might return her to Behlmer. Stetzer learned from past experiences that the police do not believe her reports of domestic abuse. Why would the police believe her now? Why would the police keep her safe this time? The circuit court failed to consider whether a reasonable person with Stetzer’s past experiences would believe that contacting the police would have interrupted the imminent threat. Had it done so, it would have identified reasonable doubt. *** Mystifyingly, the circuit court made no mention of the years-long history of abuse that informed Stetzer’s decision-making that night. Nor did it account for Hanusa’s testimony that a domestic violence victim, having endured years of abuse, might behave in a state of fight-or-flight, which readily explains why Stetzer would flee. Stetzer had been a victim of Behlmer’s physical abuse for years, and Behlmer’s abuse that night had ricocheted between verbal (calling her names and threatening her), to psychological (calling 911 to get her arrested), to physical (throwing her down stairs, throwing a heavy pot at her, and pounding on the truck windows). Given the history of abuse and the events that preceded her driving, Stetzer was understandably still terrified of Behlmer once she started driving. And her fear did not diminish upon pulling out of the driveway. She thought the headlights behind her were Behlmer chasing her down as he had done in the past. Stetzer had no reason to believe Behlmer was no longer a threat to her. Stetzer, and any reasonable person in her circumstances, would believe that fleeing from Behlmer was her only means of safety. The presence of a police car did not alleviate the threat Behlmer posed—his aggression continued to be dangerously impending. In other words, a reasonable doubt remained as to whether the State proved that the threat was no longer imminent. To summarize, the majority misses the mark by adopting the circuit court’s incorrect conclusion that the State met its burden. The State’s entire case, and the circuit court’s conclusion, depended on two facts: the presence of an officer and Stetzer’s familiarity with the area. Yet a diligent examination of the record—including those two facts—reveals that the State failed to disprove Stetzer’s coercion defense. The circuit court did not apply the correct legal principles in evaluating the State’s case. Undoubtedly, Behlmer’s history of abuse, and his manipulation of law enforcement, coupled with his threat to use the police to “get” Stetzer, would cause a reasonable person in Stetzer’s circumstances to believe that seeking help from the police could catapult Stetzer back to Behlmer’s violence and abuse. And being in a familiar place would be cold comfort to anyone in Stetzer’s circumstances, given that the place was just as familiar to Behlmer, and he had followed her in the past. It was reasonable for Stetzer to believe that Behlmer’s escalating physical abuse remained dangerously impending. At minimum, a reasonable doubt remained as to whether the State showed that Behlmer was no longer coercing Stetzer. The majority adopts the circuit court’s legal error, effectively eliminating the coercion defense for a victim it was written to protect. 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 reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Case: State v. McAdory Dallet Majority: Justice Rebecca Frank Dallet (13 pages), joined by Chief Justice Ann Walsh Bradley and justices Jill Karofsky, Brian Hagedorn, and Janet Protasiewicz Concurrence: Justice Annette Ziegler (30 pages), joined by Justice Rebecca Grassl Bradley Upshot Under a Wisconsin statute directing a single sentence even when a defendant is found guilty of multiple impaired-driving offenses stemming from the same incident, if the conviction on one offense is reversed the court may reinstate a guilty verdict on an alternate offense. Background After a traffic stop in January 2016, Carl Lee McAdory was charged with eighth-offense operating a motor vehicle while under the influence of a controlled substance (OWI) and operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood (RCS). A jury found him guilty of both offenses. Pursuant to a state statute, an individual may be charged and found guilty in a single case with any combination of three impaired driving charges, but can be sentenced on only one charge. Prior to sentencing the State moved (without objection) to dismiss the RCS charge and guilty verdict as “duplicative” under the statute. That statute provides that if a person is found guilty of more than one enumerated offense of OWI, RCS or operating a motor vehicle with a prohibited alcohol concentration (PAC), “there shall be a single conviction for purposes of sentencing . . . . " The circuit court granted the motion, and sentenced McAdory on the OWI charge and verdict alone. On appeal, the court of appeals overturned the OWI conviction on grounds unrelated to the RCS charge and guilty verdict. Accordingly the court of appeals’ opinion stated that it “reverse[d] and remand[ed] for a new trial on” the OWI offense. . . . The State did not seek to retry McAdory on remand. Instead, it asked the circuit court to reinstate the previously dismissed RCS charge and guilty verdict, enter a judgment of conviction, and dismiss the OWI charge. The circuit court agreed and proceeded to sentencing on the RCS charge and guilty verdict alone, granting McAdory sentence credit for the time he had already served on the invalidated OWI conviction. McAdory unsuccessfully challenged the circuit court’s reinstatement of the RCS charge and guilty verdict in post-conviction proceedings and in the court of appeals.  Guts The statute at issue is silent about two things: (1) what the circuit court must do procedurally after a person is convicted of more than one of the enumerated offenses, and (2) what the circuit court may do on remand if a conviction for one or more of those enumerated offenses is overturned on appeal. The first gap . . . has long been filled by the court of appeals’ decision in Town of Menasha v. Bastian, which explains that if a defendant is convicted of more than one of the . . . offenses (OWI, RCS, and PAC) in a single case, “the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed.” That is what happened in McAdory’s case when, after the jury returned guilty verdicts on both the OWI and RCS charges, the circuit court dismissed the RCS charge and guilty verdict on the State’s motion prior to sentencing, and sentenced McAdory on the OWI conviction alone. The court decided not to address whether the court of appeals' Bastian and the court's own opinion in State v. Bohacheff (addressing similar statutory language) should be overturned, finding them irrelevant in McAdory's case, which involved only the second gap in the statute. . . . . In essence, McAdory argues that because the statute does not expressly authorize what the circuit court did, it must prohibit it. But that argument asks us to read too much into the statutory silence, since nothing in the statute prohibits what the circuit court did either. Accepting McAdory’s argument would mean that whenever a statute identifies an end goal like “a single conviction for purposes of sentencing and for purposes of counting convictions . . . ,” but does not specify how courts should reach that goal, every means of implementing the statute is prohibited. That argument cannot be right if for no other reason than it would prevent courts from implementing such statutes entirely. We conclude that the statute implicitly authorized the circuit court to reinstate the previously dismissed RCS charge and guilty verdict. That authorization flows from the text and structure of the statute itself, which establishes a procedure whereby multiple offenses from a single incident can be charged and tried in a single proceeding resulting in a single conviction for purposes of sentencing and counting convictions. What the circuit court did—first by dismissing the RCS charge and guilty verdict and later by reinstating it—implemented that statutory structure in a way that gave effect to its central premise, namely that guilty verdicts for the enumerated offenses are fundamentally interchangeable for purposes of the statute. Moreover, there is no suggestion that the RCS charge and guilty verdict itself was somehow invalid, or legally insufficient in a way that would otherwise make reinstating it improper. In short, the circuit court’s approach did not violate any provision of this statute or any other statute, and ensured that a statute designed to result in “a single conviction for purposes of sentencing and for purposes of counting convictions” was not transformed into one that results in no conviction at all. The court rejected McAdory's arguments that the state had somehow forfeited its right to seek reinstatement of the RCS charge and that the trial court violated the court of appeals' mandate by not holding a new trial. Finally, we are unpersuaded by McAdory’s arguments that reinstating the RCS charge and guilty verdict violated his right to be free from double jeopardy. The Fifth Amendment provides that “[n]o person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . ." The Wisconsin Constitution provides that “no person for the same offense may be put twice in jeopardy of punishment . . . .” Neither party develops any argument that the Wisconsin Constitution offers distinct double jeopardy protections from those guaranteed by the United States Constitution. As such, we analyze these claims together. The United States Supreme Court has described the Double Jeopardy Clause as containing three distinct protections: (1) “against a second prosecution for the same offense after acquittal;” (2) “against a second prosecution for the same offense after conviction,” and (3) “against multiple punishments for the same offense.” Although McAdory’s briefing is far from clear, we understand him to be focused solely on the latter two protections, the ones against second prosecutions for the same offense after conviction and against multiple punishments for the same offense. First, he appears to contend that he was prosecuted a second time for RCS after conviction because reinstating the previously dismissed charge and guilty verdict violated his expectation “that he would not be further prosecuted or punished for [that] offense.” Second, he asserts that he was threatened with a second prosecution for the OWI offense after conviction when, after reinstating the RCS charge and guilty verdict, the circuit court raised the possibility of a second trial on the OWI charge. Although the State stated that it did not intend to retry McAdory on that charge, and the circuit court dismissed it as a result, McAdory nonetheless contends that this sequence of events violates the Double Jeopardy Clause. And third, he maintains that he received multiple punishments because “swap[ping]” the RCS charge and guilty verdict for the OWI conviction may have prevented him from receiving sentence credit for the time he served. The problem with McAdory’s first argument is that he was not prosecuted twice for RCS. Instead, the circuit court reinstated the jury’s guilty verdict on the RCS charge from his first and only prosecution for that charge stemming from the January 2016 traffic stop. As many other courts have concluded, “[t]he Double Jeopardy Clause does not bar reinstatement of a conviction on a charge for which a jury returned a guilty verdict.” It is therefore irrelevant that once the RCS charge and guilty verdict were dismissed, McAdory “expect[ed]” that he would never be punished for it. Although the Double Jeopardy Clause certainly protects the defendants’ interest in finality, it does so only through its specific prohibitions, like the one on successive prosecutions after conviction. Because reinstating the RCS charge and guilty verdict did not result in a second prosecution for RCS after conviction, it did not violate the Double Jeopardy Clause. McAdory’s second and third arguments also miss the mark. McAdory was not prosecuted or tried twice for the OWI offense after the RCS charge and guilty verdict were reinstated. Rather, the OWI charge was dismissed at the State’s request, and he was never prosecuted or tried for it again. Moreover, even if a new trial had occurred, the Double Jeopardy Clause still would not have been violated since that second trial would have occurred as a result of the relief he sought in his appeal. As for multiplicity, McAdory’s argument is underdeveloped at best and is contrary to the facts, which—as McAdory’s counsel conceded at oral argument—demonstrate that he did in fact receive sentence credit for the time he served on the OWI conviction. Accordingly, we need not address this argument further.  Ziegler Concurrence
Like the majority, I would affirm the court of appeals. But I come to this conclusion for reasons quite different than those advanced by the majority. Unlike the majority, which employs a thoroughly purposivist analysis, I would address what the pertinent statute actually means and overrule this court’s decision in State v. Bohacheff, and the court of appeals’ decision in Town of Menasha v. Bastian. Rather than providing a detailed critique of the majority opinion, I set forth the opinion I believe should have been written by this court. One point must be made regarding the majority, however. The majority argues that this court cannot, or at least should not, overrule this court’s decision in Bohacheff because no party before this court asked us to overrule that decision. The majority’s argument rings hollow. First, the majority’s supposed commitment to the party presentation principle goes only so far. The argument the majority ultimately embraces in this case—that the statute implicitly authorized the circuit court to reinstate the dismissed charge and guilty verdict—is not advanced by either party. Both McAdory and the State expressly reject such an argument. Second, virtually every justice in the majority has voted to overrule a decision of this court even though no party asked the court to do so. In fact, one of the justices in the majority (Hagedorn) argued this very term that this court should have overruled at least four precedents of this court despite the fact no party requested this court to do so. *** Ziegler then sets for the full opinion she believes should have issued from the court, including the factual and procedural background and sections addressing McAdory's arguments regarding points with which she agrees with the majority. The following paragraphs are from her proposed version of the opinion regarding her point of difference. . . . The State and circuit court were following this court’s decision in State v. Bohacheff, and the court of appeals’ decision in Town of Menasha v. Bastian. Together, the two cases stand for the proposition that when a defendant is tried and found guilty for multiple offenses under the applicable statute that arise out of the same incident or occurrence, the circuit court must dismiss all but one of the charges and guilty verdicts. That is, even though there may be multiple guilty verdicts, there may be only one conviction. *** Bohacheff’s statutory analysis is unsound in principle. Bohacheff is accordingly overruled. Bastian’s dismiss-extra-counts rule is premised on Bohacheff’s faulty analysis and cannot be squared with the text of the statute. Consequently, Bastian must be overruled as well. . . . A fair reading of the statute allows the state to charge a defendant with an OWI offense . . . , an RCS offense . . . , and a PAC offense . . . , or “any combination” of those offenses, “for acts arising out of the same incident or occurrence.” Now, if the defendant is found guilty of more than one of the charges, the court enters judgment of conviction on each guilty verdict, as it is instructed to do . . .. There is to be a single conviction for two specific, enumerated purposes: sentencing and counting convictions . . . . This follows directly from the plain text of the statute. “If the person is found guilty of any combination. . . for acts arising out of the same incident or occurrence, there shall be a single conviction for purposes of sentencing and for purposes of counting convictions . . . . Bohacheff’s holding that there shall be a single conviction “for all purposes,” is at war with the statute's clear text. The statute enumerates two purposes for which there will be a single conviction, sentencing and counting convictions . . . . The legislature, therefore, expressly identified the circumstances when there shall be only one conviction. This means that in other circumstances there shall be more than one conviction. This is a classic application of the canon of statutory interpretation expressio unius est exclusio alterius, “‘[t]he expression of one thing implies the exclusion of others.’” *** Bastian’s dismiss-extra-counts rule adds words to the statute not found in its text. Nowhere . . . does the statute indicate that a circuit court must dismiss all but one guilty verdict if a jury finds a defendant guilty of more than one count. “‘One of the maxims of statutory construction is that courts should not add words to a statute to give it a certain meaning.’” Additionally, Bastian’s mandatory dismiss-extra-counts rule sits uneasily with another statute, which prescribes the procedure for dismissing (impaired driving) charges . . . . To dismiss a charge, the state must file an application with the circuit court that states the reasons for the proposed dismissal. It is after the application is filed that a circuit court may dismiss the charge, but “only if the court finds that the proposed . . . dismissal is consistent with the public’s interest in deterring” violations of the impaired driving laws. Accordingly, Bastian is overruled. *** Because of Bohacheff and Bastian, the State requested the circuit court to dismiss the RCS charge and guilty verdict, and the circuit court did so. That is, the dismissal was not due to any defect in the charge or guilty verdict, but simply due to the misinterpretation of the statute's text in Bohacheff and Bastian, which today we overrule. Under these circumstances, we find no error in the circuit court’s decision to reinstate the RCS charge and guilty verdict after McAdory’s initial appeal . . . .  Entrance to the Wisconsin Senate in the Wisconsin State Capitol. Photograph by Margo Kirchner. By Alexandria Staubach The Wisconsin Senate recently voted along party lines to codify several types of specialty courts, including a controversial business court. The bill, having previously passed in the Assembly along party lines, now heads to Gov. Tony Evers for signature or veto. Treatment courts, such as drug courts and mental health courts, have long held bipartisan support. The creation of special civil courts to deal with large business and commercial case has been more controversial. Passage of the bill puts the Legislature’s stamp of approval on them. At the bill’s May 15 reading in the full Senate, Sen. Kelda Roys (D-Madison), criticized the bill as creating a “rocket docket for guys like Elon Musk,” without providing funding for any of the specialty courts, especially the treatment courts. “We don’t need a system where the powerful, the wealthy, the best connected among us get to have their own court system, their own handpicked judges, and then the rest of us can sit around and wait for our day in court to resolve really important critical matters,” said Roys. To date, specialty courts have generally been created by the courts themselves. For instance, Milwaukee County Circuit Court last summer started a specialty court for cases in which a defendant’s competency is at issue. Specific judges have been assigned to a specific type of case, sometimes with training in that legal area. AB 73 would recognize in statute the following specialty courts: adult drug treatment court, juvenile drug treatment court, operating-while-intoxicated treatment court, mental health treatment court, family dependency treatment court, veterans’ treatment court, hybrid treatment court, and tribal healing-to-wellness court. Treatment courts have long been used throughout the state. The bill also statutorily recognizes a specialized docket for commercial cases, the subject of Roys’ concern. A special court for business interests is relatively newer and will not immediately affect every county in Wisconsin. We don’t need a system where the powerful, the wealthy, the best connected among us get to have their own court system, their own handpicked judges, and then the rest of us can sit around and wait for our day in court to resolve really important critical matters. Wisconsin Sen. Kelda Roys (D-Madison) Wisconsin’s commercial courts were born out of a 2017 Supreme Court rule that characterized the specialty docket as a “pilot project.” That pilot project lasted more than seven years in only certain trial courts in the state.
Last year, the Supreme Court evaluated the pilot project and declined to extend it for another two years. The court divided along ideological lines. Referencing the same courts that were part of the pilot project, the bill provides procedures for establishing commercial courts in the following judicial districts and their corresponding counties: the second district (Kenosha, Racine, Walworth), the third district (Dodge, Jefferson, Ozaukee, Washington, Waukesha), the fifth district (Columbia, Dane, Green, Lafayette, Rock, Sauk), the eighth district (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, Waupaca), and the tenth district (Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Iron, Polk, Rusk, St. Croix, Sawyer, Washburn). Judges would be assigned to those counties with prior or existing commercial courts by the chief justice of the Supreme Court, “after considering the recommendation of the chief judge of the encompassing judicial administrative district,” according to the bill. The bill can be retroactively applied to any county that chooses to develop a commercial court. The first district, composed solely of Milwaukee County Circuit Court, which is the busiest judicial district, was not part of the pilot program and does not currently have a commercial court. Roys at the May 15 floor session strongly supported recognition of treatment and diversion courts, saying that they were “win-win.” She suggested that the Legislature dedicate state funds to run them. “Without an appropriation, without money, programs can’t run,” she said. Recognition and funding of the treatment courts is “one step that we can take to address the shameful fact that Wisconsin incarcerates two to three times more people than our neighboring state of Minnesota, and I refuse to believe that Wisconsinites are two to three times worse than Minnesotans,” Roys said. But she proposed that the Legislature delete the provision recognizing business courts. The commercial courts do “nothing to help everyday Wisconsinites,” she said. Sen. André Jacque (R-New Franken) disagreed with Roys, saying the bill “was not about creating a rocket docket for anything” and that “these are all specialty courts that have been in operation in Wisconsin, and very successfully I might add.” Jacque sponsored the bill in the Senate, along with Sen. Van Wanggaard (R-Racine), Sen. Dan Feyen (R-Fond du Lac), and Sen. Steve Nass (R-Whitewater). In written testimony filed with the bill, Jacque said the commercial courts would “aid the effective resolution of commercial disputes and help provide more certainty for our economy.” Before declining to extend the pilot project last year, the Supreme Court held a public hearing in September 2024 at which those involved in commercial litigation overwhelmingly supported continuing the business court. Retired Judge Richard G. Ness was a rare voice against the project. Ness said at the September hearing that the program is the “creation of a solution for a problem that doesn’t exist.” He said that in his 13 years on the bench, he never encountered an inability to effectively deal with civil business cases. Justice Rebecca Grassl Bradley asked how business court differed from juvenile court, sexual assault court, probate court, criminal courts, and other civil courts. She told Ness that he was holding the commercial courts to a “very different standard” than the other specialty courts. Ness, who testified that he also spent 26 years representing big business, previously said in an op-ed for Wisconsin Watch that the project “has granted large commercial interests outsized influence over our court system’s handling of their cases, exactly as intended.” Department of Corrections battles with Division of Hearings and Appeals in Supreme Court argument4/2/2025  By Alexandria Staubach
A Wisconsin Department of Corrections lawsuit that could change evidentiary requirements in probation revocation hearings landed in the Supreme Court for oral arguments in late March. Whether and to what extent probationers maintain minimal rights to confrontation is at stake. The case concerns the overturning by the Division of Hearings and Appeals (DHA) of an administrative law judge’s decision to revoke Keyo Sellers’ probation. Attorney Clayton Kawski represented the DOC at oral arguments before the Supreme Court. Attorney Elizabeth Pierson appeared on behalf of the DHA at the hearing. Attorney Daniel Drigot appeared on behalf of Sellers. The DHA is a quasi-judicial, independent entity within the Department of Administration that oversees a panel of administrative law judges, including those who preside over probation revocation hearings. In the DHA’s opinion, the judge had revoked Sellers’ probation on scant, inadmissible evidence. In June 2019, Sellers was placed on probation for a drug conviction. Almost three years later, the DOC initiated revocation proceedings after Sellers was charged with sexual assault and other violations. According to the allegations described in court filings, Sellers, while masked, sexually assaulted an unnamed victim, stole $30 from her, and returned to her home a week later as shown on home security footage. The victim could not identify him definitively, but both his probation officer and ex-wife identified him in the home security footage and made out-of-court statements. Sellers denied the sexual assault and trespass on the victim’s property. At the probation revocation proceedings, the ALJ considered Y-STR DNA evidence. Y-STR DNA evidence is inherently less specific that usual DNA evidence, as it compares DNA location on the Y chromosome exclusively. DNA collected from the victim after the sexual assault indicated that one out of 278 African American males would have a consistent profile, meaning that in Milwaukee, based on census data, 389 African American males would match the profile. According to Kawski, the DOC declined to call the victim to testify at the revocation proceeding, and did not even ask her to testify, out of concern that testifying would “re-traumatize” her and because she could not definitively identify Sellers as her assailant. The ALJ presiding over the hearing believed that the Y-STR DNA evidence coupled with the out-of-court, “hearsay” statements of the probation officer and ex-wife were sufficient to find it more likely than not that Sellers committed the crimes and therefore revoked Sellers' probation. Sellers appealed the ALJ’s decision to DHA, which found that without testimony from the victim, the only credible evidence of nonconsent to the trespass and sexual assault was inadmissible hearsay, which deprived Sellers of his constitutional right to confrontation. The DHA believed that the DOC’s decision not to call the victim as a witness was not due to any “difficulty, expense, or other barrier to obtaining live testimony,” as required under the legal standard of “good cause” for not calling her. The good-cause standard protects an individual’s limited right to confrontation in probation revocation cases. The revocation proceedings before the administrative law judge occurred separately from proceedings on the merits of the charges in court. Ultimately, Sellers was convicted at trial and sentenced to more than 30 years in prison. “So why are we here?” asked Justice Jill Karofsky about the appeal on the revocation matter. “He owes the state more time,” said Kawski. He added that the case in front of the Supreme Court was the only thing maintaining the DOC’s supervision of Sellers on the old drug case. Kawski also argued that the Supreme Court had not opined about the standard governing evidence at probation revocation hearings in more than a decade. “Without relying on the hearsay evidence of the victim, which (the administrative law judge) couldn’t do without violating Mr. Sellers’ constitutional rights, the rest of the allegations did not prove DOC’s allegations,” Pierson argued in response. “To show good cause . . . they have to show that there is a difficulty, expense, or other barrier and then that gets balanced against the constitutional rights of the accused,” said Pierson. Oral arguments focused heavily on the sufficiency of the evidence and whether the DOC had good cause for not calling the victim to testify at the revocation hearing. Chief Justice Ziegler and Justices Rebecca Dallet, Janet Protasiewicz and Jill Karofsky are all former prosecutors. Dallet and Karofsky said the “unfamiliar” DNA evidence probably cut against DOC. “You’re putting a lot of weight in the reliability of the proffered evidence,” Karofsky said to Kawski. However, she also remarked that avoiding re-traumatization of the victim “feels like that fits the exception” for good cause. Kawski repeatedly insisted on the sufficiency of the DNA evidence and said “the more reliable the evidence is, the less is necessary for the state to show.” Pierson said the DHA relied on the fact that the victim was never even asked to testify. “There was nothing to suggest that she was asked and declined,” Pierson said. “We need something more than DOC’s word,” she said. Pierson insisted that however the court applies the standard governing good cause, “it cannot be that low.” Drigot insisted at oral argument that the DOC was asking the court to create an exception for out-of-court statement use at probation revocation hearings that does not currently exist. A finding that good cause excused the DOC from calling or even asking the victim to testify would be “an opinion on whether that’s what the law should be, but not the rule right now,” said Drigot. The justices gave no hints on where they will land, though Justice Brian Hagedorn said he was “not convinced we need to change (the standard) in any way.” By Alexandria Staubach
The Supreme Court recently voted 4-3 to increase an annual assessment on Wisconsin attorneys that funds civil legal services for those who cannot pay. A $50 public interest legal services assessment has been on the books since 2005 as part of annual fees for Wisconsin attorneys. The assessment will increase to $75 for two years then to $100. Retied Milwaukee County Circuit Court Judge Richard Sankovitz spoke on behalf of the petitioners, eight legal service providers or supporters, at a March 13 hearing on the request for the increase. He stressed that a steady stream of revenue to those providing free or reduce cost civil legal services is essential to continuity of service. The reliability of the funds from the attorney assessment is one of its essential features, especially in a landscape where groups otherwise rely on discretionary grants that vary from year to year, he said. At least 3,000 people are aided by the funds from the assessment each year, Sankovitz said. He described how the funding provides direct legal services for individuals on matters ranging from access medical care coverage to temporary restraining orders for domestic violence victims. There was near unanimous agreement in the Supreme Court hearing room that the Legislature should be doing more to support legal services for those who cannot afford attorneys. But the Legislature has appropriated funds only once in the assessment’s 20-year history, Sankovitz said. At the recent hearing, as in 2005, some justices questioned whether such a fee is constitutional. At oral arguments, Justice Brian Hagedorn said he was “sympathetic to the idea that this is an unconstitutional tax.” “What limits are there on our power to raise funds?” he asked. Hagedorn also expressed concerns that some of the nonprofits that receive funds provided from the assessment may have ideological stances that attorneys disagree with. Are we not “asking attorneys to subsidize work they may not agree with?” he asked. “There is no stopping point,” said Justice Rebecca Grassl Bradley. She said she was sympathetic to the cause because her family could not afford needed civil legal services when she was young. But “we went without,” she said. At the justices’ open conference following oral arguments, Justice Janet Protasiewicz moved to adopt the measure. The assessment will address “a pressing need,” she said. A court majority then determined that in the absence of Legislative funding it was appropriate to continue the assessment and approve the increase. Justice Ann Walsh Bradley was the only current justice on the bench when the rule was originally adopted in 2005. She said she was voting for the measure because the bench and bar have “an ethical obligation” to ensure “the quality of legal representation.” While Chief Justice Annette Zeigler ultimately voted against the petition, she said “on a personal level I can’t say I am disappointed that these services will continue to be funded.” Wisconsin Justice Initiative submitted written support of the petition to increase the assessment, and WJI Board member James Gramling spoke on behalf of WJI at the hearing on the petition. Gramling said “the pro bono efforts that are made by members of the State Bar are huge, but they are not enough to address the need.” In its letter, WJI highlighted that legal representation “assists the court by streamlining proceedings, providing otherwise pro se litigants with explanations of procedures and law, reducing the need for law clerks and judges to conduct research, and getting to the heart of a case and to judgment more quickly.” Many other organizations and individuals shared WJI’s support for the petition in writing or at the hearing. Waukesha Circuit Court Judge William Domina, who had testified against the introduction of the assessment in 2005, appeared at the hearing now in support. He said that in his 40 years as a Wisconsin attorney and 15 years on the bench he has observed both “an increase in demand” and an “increase in the self-represented.” Domina urged the court to consider “that costs have increased over time and ours will as well.” In written submissions on the petition for the fee increase, only one writer, an attorney, opposed the measure, while 33 supported it. Another entity, the State Bar of Wisconsin, submitted a response that did not take a “binary position” entirely for or against the petition. Instead, the State Bar presented the results of a survey of its 18,000 members. The survey, to which roughly 17% of Wisconsin attorneys responded, showed that 65% opposed the increase. “(A)s an organization representing Members with divided opinions on this subject,” though, the State Bar also presented in its written submission some of the arguments its members expressed for and against. State Bar President Ryan Billings appeared at the hearing on the petition as well and highlighted the views of State Bar members opposing the petition. He said that funding civil legal services was the right to thing to do but that it was a “question of what is the appropriate mechanism.” Billings, and the court’s more conservative justices, thought funding for civil legal services was the responsibility of the Legislature. Susan Crawford and Brad Schimel vie for the open seat on the Wisconsin Supreme Court created by Justice Ann Walsh Bradley's retirement. The election is April 1. Crawford is a trial judge on the Dane County Circuit Court. She graduated from the University of Iowa College of Law in 1994. Schimel is a trial judge on the Waukesha County Circuit Court. He graduated from the University of Wisconsin Law School in 1990. WJI asked each of the candidates to answer a series of questions. The questions are patterned after some of those on the job application the governor uses when he is considering judicial appointments. Crawford responded to WJI's questionnaire. Schimel did not. Answers are printed as submitted, without editing or insertion of “(sic)” for errors.  Susan Crawford
Why do you want to become a justice on the Wisconsin Supreme Court? As a prosecutor, private-practice attorney, and now as a judge, I have always worked to protect the basic rights and freedoms of Wisconsinites under our laws and Constitution, and to use my legal training and experience to have a positive impact on people and communities. I have broad legal experience, including arguing before the Wisconsin Supreme Court in both criminal and civil cases. I know how important it is to have Wisconsin Supreme Court justices who are fair and impartial and who will reject efforts to politicize the Court and undermine our constitutional rights. Describe which U.S. Supreme Court or Wisconsin Supreme Court opinion in the past 25 years you believe had a significant positive or negative impact on the people of Wisconsin and explain why. The Court’s decision in Clarke v. Wisconsin Elections Commission is particularly significant because it upheld the Wisconsin Constitution and our democratic principles. I agree with the majority's decision in this case, which found the state’s legislative maps unconstitutional. As a result of this decision, the legislature and the governor agreed to new maps that comply with the Wisconsin Constitution. Describe your judicial philosophy. My approach to judicial decision making is people-centered and grounded in common sense. I consider myself a pragmatist. I work hard to get the facts right and to apply the law fairly and impartially. In my view, our laws are tools to protect people. It’s important to consider the purposes of the law and how it will affect the parties when applying it. My goal is always to arrive at a fair and just result. Another core component to my judicial philosophy is how I treat people in my courtroom. I want everyone who enters my courtroom, whether or not they achieve the result they were seeking, to leave feeling they were heard, treated with respect, and got their day in court. Describe two of the most significant cases in which you were involved as either an attorney or a judicial officer. As a judge, the most significant cases I have presided over involve children and families. In cases involving children in need of protection and services, I had the opportunity and privilege to reunite children with their families after the parents received court-ordered services to help them to overcome problems like mental health crises and drug addiction that had prevented them from caring for their children. As a lawyer, I litigated several high-profile public interest cases that broadly impacted the rights of Wisconsinites. One such case was Planned Parenthood of Wisconsin v. Brad Schimel. Our team of lawyers successfully challenged an anti-abortion law that threatened doctors with the loss of their medical licenses for providing abortions to women. The law was found unconstitutional by the federal district court for the Western District of Wisconsin and the decision was upheld by the Seventh Circuit Court of Appeals. Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings. As a former prosecutor, government attorney, private-practice attorney, and now as a Circuit Court Judge, I’ve dedicated my entire career to upholding the law and protecting Wisconsinites under our laws and constitution. I started my career at the Wisconsin Department of Justice, where I prosecuted felony cases in the Wisconsin Supreme Court and Court of Appeals, prosecuted health care fraud and abuse cases in circuit courts throughout the state, and and served as director of criminal appeals, the largest legal unit at the DOJ. As chief legal counsel in the office of Governor Jim Doyle, I oversaw the fair and equal enforcement and application of our laws throughout state government. Later in my career, as a civil litigator in private practice, I advocated for Wisconsinites from all walks of life, standing up for their rights in court. Describe an instance when you were challenged and had to exhibit courage in the face of adversity or opposition and how you handled that situation. When I was in high school, my dad, an engineer, was laid off from his job. It took some time for him to find another job in his highly technical field. As a result, my family went through some tough times financially. I did my part by financing my own college education. Do you support requiring a justice or judge to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so, why, and what contribution limits would you set? I am open to considering proposals to strengthen the recusal rules for judges and justices. As a judge, I make decisions on recusal after evaluating the parties and legal issues raised in the case. If I believe I am unable to be fair and impartial for any reason, I do not remain on the case. Just as I have in my current courtroom, I will look at every case that comes before me on the Wisconsin Supreme Court and make a determination as to whether it’s appropriate for me to sit on that case. What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them? [Define “true justice” as you see fit.] The most significant obstacle is the lack of affordable legal services to people facing significant legal issues without representation. Although as a judge I take care to explain courtroom procedures to pro se litigants, many civil cases, including evictions, family court matters, and mortgage foreclosures involve complex legal issues that place unrepresented parties at a disadvantage. As a judge, I’ve seen firsthand how the lack of representation affects parties and the legal system. Low or no-cost legal representation or legal clinics, simplified court procedures and forms, and better access to quality legal research materials could help reduce these disadvantages. If elected to the Wisconsin Supreme Court, I’ll advocate for increased resources to serve Wisconsinites fairly and effectively. To me, justice means that everyone who comes into my courtroom is treated fairly and with respect, regardless of the outcome. It’s about thoroughly examining all the facts, weighing the evidence impartially, and ensuring each party has an equal opportunity to be heard. Above all, it’s about upholding the law with fairness, transparency, and accountability. I want everyone who enters my courtroom to leave feeling they were treated with respect and got their day in court. Provide any other information you feel would be helpful to potential voters deciding for whom to vote. My opponent, Brad Schimel, has spent his entire career as an extreme politician and has made it clear that he’s more interested in pushing a partisan, right-wing agenda than upholding the independence and impartiality of our courts. During his time as Wisconsin’s Republican Attorney General, he defended Scott Walker’s attacks on workers’ rights and our basic freedoms—putting politics ahead of the people he was supposed to serve. As a former prosecutor, private-practice attorney, and now as a judge, I have spent my career focused on upholding our laws and Constitution, and fighting to protect the fundamental rights and freedoms of all Wisconsinites. I am committed to fairness, impartiality, and ensuring that every person enters my courtroom, whether they win or lose, gets a fair shake. Brad Schimel has also shown a troubling willingness to prejudge cases before they even reach the bench. He’s openly condemned the recent ruling overturning portions of Act 10 and continues to defend Wisconsin’s outdated 1849 abortion ban as “valid.” That’s not how justice should work. If I have the honor of serving on the Wisconsin Supreme Court, I will approach every case with an open mind—listening carefully to both sides, weighing the facts, and applying the law based on the Constitution and established precedent. That’s what fairness demands, and that’s what Wisconsinites deserve.  Lubar Center Director Derek Mosley interviews Dane County Circuit Court Judge Susan Crawford at Marquette University Law School on Feb. 28, 2025. Photograph by Alexandria Staubach. By Alexandria Staubach
Dane County Circuit Court Judge Susan Crawford would not hint at what her position on pending cases would be if elected to the Wisconsin Supreme Court, but she wasn’t shy about a body of professional work that demonstrates her values. Crawford told a packed house at Marquette University Law School on Friday that during her tenure as a civil litigator she represented the League of Women Voters, physicians at Planned Parenthood Wisconsin, and educators fighting Act 10, the law that largely gutted collective bargaining for public employees in the state. Crawford also highlighted her work as an administrator in Wisconsin’s Department of Natural Resources in Gov. Jim Doyle’s administration. She said those fights on behalf of her civil clients led her to the judiciary in 2018. She often found success in circuit court, but then the Supreme Court “would ask questions that were not based on the law” and that “really (got) into political questions.” Crawford’s remarks occurred during a “Get to Know You” forum moderated by Derek Mosley, director of the law school’s Lubar Center for Public Policy Research and Civic Education. A recording of the forum can be found here. Crawford called out her opponent, Waukesha County Circuit Court Judge Brad Schimel, when saying she thinks “it’s really important to adhere to the judicial code and not comment on pending cases.” She accused Schimel of openly saying “there’s nothing wrong with” Wisconsin’s 1849 law on abortion. She said she has “really refrained” from taking any stance on pending litigation and skirted an audience question asking her position on the decline of diversity, equity, and inclusion at the federal level and the potential for litigation in that area. “It’s going to be up to the parties and the lawyers to decide if there is a state court role to play,” she said, calling the courts “reactive not proactive.” Crawford described her judicial philosophy as “pragmatism,” which she said allows her to “apply the laws to protect the people of the state.” Schimel claimed originalism as his judicial philosophy at a Lubar Center forum last week. Originalism is the view that a constitution or law should be interpreted by today’s jurists in a way they think the writers of the document intended; they act like historians to give the words their perceived original meaning. Three other Supreme Court justices claim originalism, meaning that Schimel's election to the court would make it the majority view. Crawford said that to her, “originalism is a starting point for analysis,” but asking “why was this law enacted” and considering its application over time informs her views. This “gives you a much deeper understanding,” said Crawford. Crawford’s civil litigation experience is coupled with a long career working in various roles for Doyle, when he was attorney general and then governor. “I always said, ‘yes sir, I will take up this new challenge,” said Crawford about her time working for Doyle. Notwithstanding that government work, Crawford told the audience that she was “not running on a partisan agenda.” No matter the issue, she promised the crowd, she will evaluate any evidence, listen to argument, perform her own legal research, and consult with her colleagues prior to rendering every decision if she’s elected. A prospective colleague, Justice Rebecca Dallet, listened from the front row. Th audience asked Crawford about donations from George Soros and J.B Pritzker, the former donating $1 million and the latter donating $500,000 to the state Democratic Party, which passed the money along to Crawford’s campaign. Crawford largely dodged the question about contributions to her own campaign but took the opportunity to say Schimel was taking Elon Musk’s money with obvious strings attached. “Elon Musk is entering the race” and “openly saying he wants Schimel on the court to advance Trump’s agenda,” said Crawford. “I never thought I would be fighting with the world’s richest man for justice in Wisconsin,” she laughed. An audience member questioned Crawford about an accusation that her election could result in a decision that would generate two U.S. House seats, based on Crawford’s appearance at a donor event earlier this year. Crawford said she did attend a video call for the group Focus on Democracy but that she never discussed congressional maps nor took any questions related to them. About congressional maps, “I have never taken a position publicly or privately and don’t know what my position would be,” she said.  By Alexandria Staubach
The Wisconsin Supreme Court in mid-February heard oral arguments in four cases and issued numerous orders, including denial of a petition to skip the Wisconsin Court of Appeals regarding Dane County Circuit Judge Jacob Frost’s decision invalidating part of the public union collective bargaining law known as Act 10. The Court heard arguments in two civil cases and two criminal cases. Here’s the recap. State v. Luis A. Ramirez The Supreme Court’s many former prosecutors grilled counsel for Luis Ramirez about what constitutes a permissible delay on the part of the state and court system. Jennifer Lohr, Ramirez’s attorney, responded that the delay in Ramirez’s case was four times the minimum for presumed prejudice against a defendant. “It is the government’s duty to keep the justice system moving,” Lohr argued. The Court of Appeals found that the state acted with “cavalier disregard” for Ramirez’s constitutional right to a speedy trial. The state offered explanations for its many adjournments. Its counsel, John D. Flynn, argued that Ramirez was incarcerated on another conviction while the case was pending and that he only ever asked for a speedy trial without the assistance of counsel. The bulk of the court’s questioning centered on the meager circuit court record when it was rescheduling trial dates, but there were also differing views about the duration of delays, even if the delays were explainable. On one hand, Justice Janet Protasiewicz recalled her time as a prosecutor and said that in Ramirez’s case “the facts seem relatively simple” and should not have required much preparation to take to trial. Justice Jill Karofsky, on the other hand, recalled her time on the bench to say “the state did exactly what it should do” and that “for everyone one of the continuances for trial, there is a reason for it.” “What prejudice did your client suffer?” asked Justice Rebecca Grassl Bradley. “He was going to be in prison for a very long time, his liberty interest was not even implicated,” she said. Lohr argued that the sheer duration of delay was sufficient to demonstrate prejudice to Ramirez. Ramirez, who was serving a prison sentence, was charged with battery after allegedly assaulting a correctional officer. Over the following 46 months, Ramirez saw his trial rescheduled several times, for reasons that included a prosecutor’s retirement, a courthouse remodel, scheduling conflicts, and his own pro se motions. “Pro se” representation occurs when a defendant represents himself without counsel. Columbia County Circuit Court Judge W. Andrew Voight had ruled that despite the many delays, Ramirez’s right to a speedy trial was not violated. Voight found that Ramirez’s motions, including for discovery and change of venue, were inconsistent with his expressed desire for a speedy trial. The Court of Appeals overruled Voight’s decision, stating that that while some of the delay was justified, the state acted in “cavalier disregard” for Ramirez’s right to a speedy trial. “What would you have us do with the words ‘cavalierly disregard’?” asked Justice Rebecca Dallet. “Cavalierly disregard them,” joked Karofsky in response. Dallet signaled where the court might land in its opinion, asking Flynn his thoughts on “something that was more like we focus on what the reasons for the delay are and we don’t require, as no case has required, that someone gave reasons for the length of time it took to reschedule the trial.” “I’d be perfectly happy with that,” said Flynn, smiling and then yielding the rest of his time on rebuttal. Scot Van Oudenhoven v. Wisconsin Department of Justice The Wisconsin Court of Appeals over the summer upheld the denial of Scot Van Oudenhoven’s handgun purchase application based on a previous misdemeanor domestic violence conviction that was expunged under Wisconsin law. Van Oudenhoven then took his case to the Supreme Court. In oral arguments, justices grappled with every aspect of the case. Justices Janet Protasiewicz and Jill Karofsky were passionate in their concern over whether the underlying expungement was valid in the first place, revisiting time and again Van Oudenhoven’s date of birth and date of conviction. Current state law permits expungement of an offense with a penalty of six years or less if it was not a violent felony and the defendant was under age 25, had no prior felony record, and requested expungement at the time of sentencing. At the time of Van Oudenhoven’s conviction in 1994, the age was 21, said Karofsky. She pointed out that she was at that time a prosecutor for crimes of domestic violence. Justices and parties discussed how Van Oudenhoven was older than 21 at the time of conviction and did not request expungement at sentencing. “If it were an illegal expungement, is it void?” asked Karofsky at the outset of oral arguments. Justice Brian Hagedorn grappled with the different meanings of expungement among the 50 states. At issue was whether a federal statute permitting a defendant whose criminal record has been “expunged or set aside” to obtain a handgun, covers defendants who have had their criminal records expunged in Wisconsin. Attorney Brian P. Keenan from the Wisconsin Department of Justice opposed Van Oudenhoven’s petition. He emphasized that under federal law, “all effects” of conviction must be erased. In Wisconsin, expungement only affects the court and public’s record of the crime, he said. “Here it just means that the record has been removed from the court files,” Keenan argued. “The conviction itself has not actually been expunged from anything,” he said. The court grappled with what Congress intended when including expunged crimes in the law providing restoration of firearms rights. Hagedorn cited a variety of sources, including legal website Justia Law and Black’s Law Dictionary, to say that “expungement” means something different in effectively every state. “It makes imminent sense to me,” said Hagedorn, that the Legislature used expungement to mean however a state defines expungement, as the converse effect would be that the law is “absolutely irrelevant.” Justice Rebecca Dallet asked Keenan whether the DOJ’s best argument was whether “the plain text of the statute is that the conviction actually needs to be expunged.” Keenan replied “yes.” There appeared to be no consensus among the justices regarding whether and to what extent “expungement” under Wisconsin law has the same meaning as in the federal statute. Service Employees International Union Healthcare Wisconsin v. Wisconsin Employment Relations Commission Oral argument in this case concerned whether the Wisconsin Employment Peace Act applies to the University of Wisconsin Hospitals and Clinics Authority (UWHCA) and gives its employees collective bargaining rights notwithstanding the public union collective bargaining law known as Act 10. UWHCA was originally included under the Peace Act in 1996, but was later removed. In a case brought by UW healthcare workers, the Wisconsin Employment Relations Commission and Dane County Circuit Judge Jacob Frost concluded that the Legislature’s statutory changes in Act 10 reflected a clear intent to exclude UWHCA from the Peace Act, meaning that its employees no longer have collective bargaining rights. The Supreme Court took the case directly, bypassing the Court of Appeals. The justices and parties focused on legislative intent to include or exclude UW healthcare workers when it enacted Act 10, with a new twist: asking the Supreme Court to ignore what the Legislature may have intended at the time of enactment (originalism) and instead focusing on the plain language of the law. UW healthcare workers brought a previous case in federal court and were unsuccessful. This time, they argued that they should never have been covered by Act 10 because they are closer to private employees than public employees. “There is an element of all of this that I must confess feels a little bit like the emperor’s new clothes, where everyone has a firm grasp on reality until a new tailor comes to town and says I’m going make you a garment that only the most sophisticated people can see,” argued attorney James Goldschmidt on behalf of UWHCA, which opposed the employees’ petition. Hagedorn was vocal during oral arguments and from the start asserted that the employees’ interpretation of law was “contrary to what all our cases say, at least in the last 20 years.” Justice Rebecca Grassl Bradley also voiced opposition, saying “what your argument is asking this court to do, is back track off at least two decades of recent precedent.” Justices Rebecca Dallet and Ann Walsh Bradley were more open to the argument, but even Walsh Bradley told the employees’ counsel that the “legislative history is so strong here that if applied here your clients lose.” State v. Carl Lee McAdory WJI has been following this case since the summer of 2023. The case finally made it to a hearing in the Supreme Court. In Carl Lee McAdory’s case, a Rock County Circuit Court judge disregarded an appeals court order for a new trial and instead sentenced McAdory on a charge that had previously been dismissed. Prior coverage is here and here. McAdory was charged with eighth-offense operating under the influence (OWI) and eighth-offense operating with a restricted controlled substance (RCS). Blood testing showed he had cocaine and marijuana in his system when arrested. A jury found him guilty on both counts. OWI requires a showing that drugs in McAdory's system impaired his driving. RCS law makes it illegal to drive with any detectable drug in the blood, whether or not it affects the person's driving ability. Because Wisconsin law says McAdory could only be sentenced on one of the counts arising from the same conduct, the prosecutor moved to dismiss the RCS charge. The court sentenced McAdory on the OWI count. Typically, when a court dismisses a count, it cannot be retried or revived. And in McAdory’s case there was no argument that the circuit court’s dismissal was without prejudice—a legal mechanism which would permit the count’s resurrection. McAdory appealed his OWI conviction. The Court of Appeals held that the state repeatedly misled the jury about what the state had to prove for conviction on the OWI charge. The appeals court remanded with an order for a new trial. However, McAdory did not get a new trial on remand. Instead, the prosecution asked Judge Karl Hanson to revive the dismissed RCS count and sentence McAdory on that charge, which Hanson did. During oral arguments in the Supreme Court, the justices and the state’s attorney wrestled with whether McAdory and other defendants could receive a windfall for what was characterized by the state as a mistake. The state could have asked the circuit court to dismiss the more difficult to prove OWI charge and for a sentence on the RCS charge. That could have avoided grounds for appeal, as McAdory’s appeal hinged on the state’s failure to prove the drugs his system in fact impaired his driving. The state is asking the court to “rescue it from strategic decision-making gone awry,” argued McAdory’s attorney, Olivia Garman. “While the parties disagree on just about everything in this case, there’s one thing we can agree on, that the procedural history that got us here should never happen again,” argued John W. Kellis on behalf of the state in asking the court for guidance in a muddy area of law. Justices Ann Walsh Bradley and Brian Hagedorn floated the idea of crafting an opinion that would instruct the lower court to dismiss one count, consistent with the statute, but without prejudice, which the law is currently silent about. Justice Rebecca Grassl Bradly suggested entering convictions on both counts but sentencing on only one. |
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