WisBar Court Review | State Bar of Wisconsin

Wisconsin Supreme Court: Student in Custody at School, but Error Harmless

Jay D. Jerde — 2026-04-07 00:00:00

April 7, 2026 – A 12-year-old student deserved Miranda protection for questioning in the tiny school resource officer’s (SRO) office and at an in-school suspension desk, a 4-3 Wisconsin Supreme Court majority held in State v. K.R.C., 2026 WI 10.

But everyone on the Supreme Court affirmed the circuit court’s finding of delinquency.

The majority said it was harmless error. Other testimony sufficiently supported delinquency for fourth-degree sexual assault.

“In sum, the [SRO’s] testimony about Kevin’s statements was duplicative of other testimony, unnecessary for a finding of intent, and went unmentioned during the State’s closing,” wrote Justice Janet C. Protasiewicz for the majority, which included Chief Justice Jill J. Karofsky, Justice Rebecca Frank Dallet, and Justice Susan M. Crawford.

The concurrence saw no correlation between school conversations and the intimidating police tactics struck down in Miranda v. Arizona, 384 U.S. 436 (1966).

“Kevin’s situation is not analogous to the coercive pressures that motivated the Court in Miranda,” wrote Justice Brian K. Hagedorn in the concurrence joined by Justice Annette Kingsland Ziegler and Justice Rebecca Grassl Bradley.

“And while a trip to the office may cause an ordinary 12-year-old student to sweat, these run of the mill schoolhouse fears do not – at least under the facts here – require that the student be warned of his constitutional rights first.”

Called to the Office

A school administrator told Kevin (a pseudonym) to go to the SRO’s office after another student complained that Kevin had touched his groin. Kevin complied.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

The room was small. A police officer in uniform stood at the closed door. Kevin sat comfortably in front of the SRO, identified as police only by a vest over civilian clothes.

A sign near Kevin said “You Are in Here Voluntarily Unless Told Otherwise. You Are Being Filmed And Can Leave at Any Time!”

The conversation was calm. It lasted 10 minutes.

Adults surrounded Kevin an hour later, including two officers and the vice principal, while Kevin sat in an in-school suspension cubicle.

The three-minute conversation was “more direct.” The SRO may have raised her voice.

Kevin held to his story in both conversations. He might have accidentally hit the other student.

In the delinquency proceedings, the Manitowoc County Circuit Court allowed the SRO testimony, holding that “this was a non-custodial voluntary conversation.”

The trial included four witnesses. In addition to the SRO, testimony came from the victim, another classmate, and the assistant principal. The circuit court found Kevin delinquent.

The Wisconsin Court of Appeals affirmed “because Kevin was not in custody and that his statements were voluntary.”

Miranda in Schools

Miranda protects the Fifth Amendment right against self-incrimination. Without the standard warnings prescribed by Miranda, a defendant’s statements while in police custody may be suppressed.

A Miranda analysis involves two questions. Would “a reasonable person … have felt free to leave?” Did “the relevant environment present[] the same inherently coercive pressures as the type of station house questioning at issue in Miranda?”

Age affects what is reasonable. “[C]hildren will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave,” advises J.D.B. v. North Carolina, 564 U.S. 261 (2011), which applied Miranda in a school setting.

The majority interpreted the SRO office as “the schoolhouse version of a police-station interrogation room.” The SRO made deceptive statements, including reference to witnesses.

No one told Kevin he was free to leave or explained what the sign saying that he was free to leave meant to him. No one invited him to call his parents.

“To be sure, some factors cut against our conclusion,” the majority summarized, “but considering the totality of the circumstances we are nevertheless convinced that a reasonable 12-year-old would not feel free to leave the office.”

The second meeting, less than an hour later, happened in a more open space but restricted by surrounding adults at a school-suspension cubicle.

“Students do not feel free to walk out of suspension,” the majority said, concluding that this “closer call” remained a situation where Kevin did not feel free to leave.

The majority concluded that the brief time between encounters meant Kevin remained in custody between them.

Although the majority believed Miranda warnings were necessary before those conversations, justifying suppressing Kevin’s statements to police, the SRO’s testimony from those interrogations was superfluous, the majority said.

Any evidence from Kevin’s conversations with the SRO “came in through the assistant principal” who heard the same story from Kevin outside police presence.

The victim testified that Kevin’s movement was intentional.

‘Ordinary Schoolhouse Questioning’

“In my view,” wrote Justice Hagedorn in concurrence, “the majority’s contrary view misses the forest for the trees, erroneously transforming a rather ordinary schoolhouse questioning (on a serious offense, to be sure) into a matter of constitutional moment.”

A focus on “how this interrogation compares to the station house questioning in Miranda” is necessary, he advised.

Miranda is challenging to apply, Justice Hagedorn sympathized, especially “when the suspect is a minor.” Confusion grows from precedent that is “utterly irreconcilable.”

He admitted that the majority “presents a reasonable countervailing view.”

The concurrence pointed to the advice of State v. Halverson, 2021 WI 7 ¶ 15, that the “anti-coercion objective is central to understanding” Miranda.

In Miranda, a defendant at a police station sat “in a room in which he was cut off from the outside world” facing “the danger of police brutality.”

In those conditions, the concurrence explained, time is on the side of police, who can patiently continue with “relentless questioning” to “erode the will of the accused.”

Not every police contact requires Miranda warnings. A traffic stop – a brief, public encounter – doesn’t need one, nor does a Terry stop.

An imprisoned individual needs no Miranda warning. The prisoner has lost freedom already and has no hope from ending the conversation early. The prisoner has only the prospect of returning to a cell.

Such precedent applies here, the concurrence analogized.

“During the school day, a student’s freedom is always limited and subject to the direction of adults” – any adult in authority – “in whose care they have been entrusted,” the concurrence explained.

Nor was Kevin “‘whisked’ to the police station where the sudden ‘shock’ might overwhelm him.”

He was at his school around people he knew, the concurrence said, and “in the familiar student services office.”

In a school with a permanent SRO, Kevin wouldn’t “see SROs as unfamiliar and antagonistic adults,” the concurrence said.

Kevin could expect that after the conversation, the concurrence said, he would return to school. “At some point, the school day ends.”

Kevin had two brief conversations. His freedom to leave after the first one “is pretty sound evidence that he was not functionally under arrest,” the concurrence noted.

“Someone in Kevin’s shoes would certainly feel the weight of adult condemnation,” the concurrence summarized. “His conscience might even call him to come clean in the face of a serious infraction.

“But this normal human experience should not so quickly be placed on par with the uniquely coercive station house questioning to which Miranda applies.”

Supreme Court: WCA 'Appropriate Remedy' Prevents Class Action

Jay D. Jerde — 2026-03-09 00:00:00

March 4, 2026 – The Wisconsin Consumer Act (WCA) allowed the defendant to remedy the claim with the individual plaintiff, preventing a class action lawsuit, a 6-1 majority of the Wisconsin Supreme Court decided in Gudex v. Franklin Collection Service, Inc., 2026 WI 6.

Reversing the Milwaukee County Circuit Court, Justice Brian K. Hagedorn for the majority wrote, “when a customer brings a class action for damages under” Wis. Stat. section 426.110(4), Wis. Stat. section 426.110(4)(c) “requires an appropriate remedy be given or agreed to be given to the party bringing suit, not to the putative class.”

A concurrence written by Justice Rebecca Frank Dallet and joined by Chief Justice Jill J. Karofsky and Justice Janet C. Protasiewicz clarified that the statutory provision “is not a get-out-of-class-certification-free card.”

Based on the WCA’s stated purposes in section 421.102, Justice Susan M. Crawford dissented.

“Allowing a defendant to avoid a consumer class action for damages by ‘picking off’ the representative plaintiff defeats the class action mechanism under the WCA,” which “undermin[es] the WCA’s purpose of ‘protect[ing] customers from unfair, deceptive, false, misleading and unconscionable practices.’”

Confusion Followed by Litigation

Heather Gudex received a letter from Franklin Collection Service, Inc., which Gudex’s creditor hired to collect a debt.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

With warnings to “CONTACT YOUR ATTORNEY REGARDING OUR POTENTIAL REMEDIES, AND YOUR DEFENSES,” and that “no attorney has personally reviewed your account,” the letter “confused” Gudex.

She was afraid she was going to be sued, contacted a lawyer and “filed a putative class action for damages against Franklin.”

Her lawsuit sought class-wide statutory damages under the federal Fair Debt Collection Practices Act (FDCPA) and injunctive relief under the WCA, although she ultimately elected monetary damages.

As the WCA requires, Gudex sent Franklin a notice and demand for monetary damages.

Franklin responded with “an appropriate remedy” under Wis. Stat. section 426.110(4)(c) “of actual damages and the WCA’s maximum statutory penalty of $1,000.”

Franklin also promised that it would stop using the confusing language on its debt collection letters, backed by a “voluntary stipulation with Gudex.”

This remedy, Franklin believed, resolved the WCA case and ended the potential class action lawsuit.

Gudex rejected the offer and moved for class certification. Franklin countered that its offer was “an appropriate remedy” that ended the case.

The circuit court granted Gudex’s motion, concluding that the remedy had to “be appropriate to the whole class” to preserve the WCA’s “purpose of allowing class actions.”

Franklin appealed the class certification order. The Wisconsin Court of Appeals, District 1, affirmed the circuit court.

‘Window of Time to Remedy’

The WCA permits a “consumer affected by a violation” to bring a lawsuit both individually and for “all persons similarly situated.”

At least 30 days before a class action may begin, “any party must” both notify the alleged WCA violator and demand correction or remedy, the majority emphasized.

“Thus, we see right from the beginning a legislatively created window of time to remedy the injuries to a ‘party’ – a ‘customer affected by the violation’ who wishes to file a class action for damages – prior to and apart from class action proceedings,” the majority summarized.

The disputed statute, Wis. Stat. section 426.110(4)(c), says that “no action for damages may be maintained under this section if an appropriate remedy, which shall include actual damages and may include penalties, is given, or agreed to be given within a reasonable time to such party within 30 days after receipt of such notice.”

The initial language “no action for damages may be maintained” meant a class action for damages could not continue if the defendant gives or promises an “appropriate remedy,” the majority said.

The “30 days” term set a specific limitation for action based on the initial notification to the defendant, the majority continued.

“This makes sense since the party providing the notice must do so at least 30 days prior to commencing the litigation.”

For further clarification, the majority determined that “such party” refers to “‘any party’ … seeking to commence a lawsuit and who must send pre-litigation notice.”

In this case, Gudex is the party, Franklin the defendant. Gudex cannot maintain a class action, the majority held, “if Franklin gave or agreed to give an appropriate remedy” to Gudex – “and Gudex alone.”

These terms shouldn’t be confused with Wis. Stat. section 426.110(4)(d), which provides throughout the litigation another means to end a class action for damages, the majority explained.

The two statutes offer contrast. The latter’s use of “such customers” recognizes the class, compared with “such party” at issue here.

“The text does not contain an unrestrained endorsement of class actions,” the majority summarized.

“A better view of the statutory policy choice is that the legislature chose to incentivize making an affected customer whole as quickly as possible, while still preserving access to the class action lawsuit if the customer does not receive an appropriate remedy.”

Even with these limitations, a class action for injunctive relief may still proceed under Wis. Stat. Section 426.110(4)(e), both the majority and concurrence explained.

‘Procedurally Improper’

Franklin’s affirmative defense of an “appropriate remedy” doesn’t fit against a class certification motion, Justice Dallet’s concurrence explained.

It’s an attack on the merits, suitable for a motion to dismiss or summary judgment.

The circuit court must decide certification only on factors in Wis. Stat. section 803.08, the concurrence said. A plaintiff who receives a settlement may affect those factors, but not whether the claim is viable.

The circuit court here, the concurrence explained, should have ruled Franklin’s defense “procedurally improper” in a class certification hearing, but it didn’t do that.

“Under that unique circumstance, I agree with the majority’s decision to reverse the circuit court’s grant of class certification,” Justice Dallet concluded.

‘Guts the WCA’s Class Action Remedies’

The WCA states that it “shall be liberally construed and applied to promote their underlying purposes and policies,” Justice Crawford’s dissent begins.

Among those purposes, the WCA is meant “[t]o protect customers against unfair, deceptive, false, misleading and unconscionable practices by merchants,” and “[t]o coordinate” regulation of consumer credit consistent with policies underlying the federal Consumer Credit Protection Act.

The majority’s decision “conflicts with policies for class actions under FDCPA,” in which “an offer of individual relief to a representative plaintiff does not bar a class action.”

“The majority makes Wisconsin an outlier,” Justice Crawford noted, and it “violates [WCA’s] directive.”

“The purpose of the WCA is explicitly to provide protections for consumers,” providing relief “when it is inefficient and uneconomical to individually litigate claims,” Justice Crawford explained.

The ability “to obtain class-wide damages on claims” furthers that purpose, especially making recourse available “to unsophisticated consumers,” Justice Crawford said.

When a defendant can merely pay off the representative party – a “powerful, inexpensive, court-created tool for avoiding consumer class actions for damages,” Justice Crawford said, “it is hard to imagine how any consumer class action for damages will be maintained.”

“[B]y allowing defendants to evade class-wide liability under the WCA merely by paying damages to a single customer, the majority guts the WCA’s class action remedies.”

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.

Wisconsin Supreme Court Sets Involuntary Medication Standards of Review

Jay D. Jerde — 2026-03-02 00:00:00

Feb. 25, 2026 – An appeal challenging the constitutionality of involuntary medication to restore a defendant’s competency to stand trial gave the Wisconsin Supreme Court the opportunity to set standards of review for the Sell factors in State v. J.D.B., 2026 WI 5.

Justice Brian K. Hagedorn, writing for the 6-1 majority, said “we independently conclude – and agree with the circuit court – that the [s]tate has an important interest in prosecuting Jared for his serious crime of battery to a law enforcement officer.”

In contrast, Justice Susan M. Crawford disagreed “that the [s]tate maintained a sufficiently important interest in prosecuting Jared, eight months after he was arrested and taken into custody, to warrant an order to forcibly medicate him solely for the purpose of restoring his competency to stand trial.”

Punched an Officer

The defendant, which the Court gave the pseudonym “Jared,” at age 19 had threatened to get “a gun and kill everyone at his home.” His mother called police.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

“Jared threatened the officers and punched one of the officers in the face.” He was charged with battery to a law enforcement officer. Jared had no criminal history.

Jared’s defense counsel had reason to believe Jared was not competent to stand trial. At Jared’s first court appearance, the Milwaukee County Circuit Court ordered a competency evaluation.

A Wisconsin Department of Health Services (DHS) evaluation indicated schizophrenia and found Jared incompetent to proceed to trial and assist in his defense.

A few months after Jared went from jail to Mendota Mental Health Institution, he stopped taking his medications, which made him violent.

DHS moved the circuit court to involuntarily medicate Jared. The court, relying on the DHS doctor’s report, proposed treatment plan, and testimony, granted the motion.

The Court of Appeals reversed. The state appealed.

Due Process

Orders for involuntary medication for trial raise a due process liberty interest under the Fourteenth Amendment. The U.S. Supreme Court defined these constitutional protections in Sell v. United States, 539 U.S. 166 (2003).

Sell sets four factors the state must prove:

“important governmental interests are at stake,”
“involuntary medications will significantly further” the government’s interest,
“involuntary medication is necessary to further those interests,” and
“administration of the drugs is medically appropriate.”

State v. Fitzgerald, 2019 WI 69, applied the Sell factors to Wisconsin’s statutory provisions, but no standard of review existed to evaluate appealed orders.

Although Jared’s involuntary medication order expired – making his appeal moot – both parties sought judicial clarification.

Because the issue could evade review, the Supreme Court decided to review the merits.

Governmental Interest

“In general, if a defendant is charged with a serious crime, the state has an important interest in bringing that defendant to justice via prosecution,” the opinion explained about the first Sell factor.

Special circumstances could undermine the government’s interest, Sell warned. A civil commitment or lengthy pretrial incarceration cuts into this interest, the opinion explained.

This “threshold question” is a “fundamental legal question … focused on the broader governmental interest, not on the credibility determinations or judgments unique to factual findings.”

It’s a question of law, the Supreme Court held, subject to independent appellate review.

Although Jared never argued special circumstances before the circuit court – potentially forfeiting the defense – the majority considered his arguments, which it concluded didn’t “undermine the [s]tate’s interest.”

Although Jared argued that he could be found not guilty by reason of insanity, “a defense to prosecution cannot be the very reason to forgo prosecution in the first place,” the majority explained.

His “mental health crisis,” Jared argued, “could be addressed through a future mental health commitment rather than a long sentence,” but Sell advises that “civil commitment is not ‘a substitute for a criminal trial,’” the majority said. Nor had a civil commitment proceeding begun.

“Jared suggests he was unlikely to receive a long sentence, and the eight months he spent in custody would likely cover substantially all of the sentence,” the majority said.

“What Jared misses, and our analysis emphasizes, is that criminal prosecution serves interests far beyond Jared himself.”

Questions of Fact

The other three Sell factors, the majority held, relied upon factual determinations – reviewing an individualized treatment plan and evaluating witness credibility.

“This is work ‘where the [trial] court’s comparative expertise is at its zenith and ours its nadir,” the Supreme Court majority explained.

Whether “involuntary medication significantly furthers the government’s interest in prosecuting the offense,” ensuring mental competence with minimal side effects, required weighing the evidence of the proposed treatment plan’s ability to help the defendant.

This process isn’t resolved by a checklist, the majority said in addressing a misunderstanding about State v. Green, 2021 WI App 18, which attempted to remedy a generic treatment plan by listing specific items.

Similarly, whether “medication is necessary to further the important government interest” is a medical conclusion, “assessed by a careful credibility-focused assessment of the written evidence and hearing testimony.”

Finally, whether “‘the administration of drugs is medically appropriate, i.e., in the patient’s best medical interest’ … requires the circuit court to assess the medical evidence adduced in the record and at the hearing to make a factual finding.”

These three factors are reviewed under the clearly erroneous standard of review, the majority held. Decisions will survive appeal “as long as the evidence would permit a reasonable person to make the same finding.”

“We search the record not for evidence opposing the circuit court’s decision, but for evidence supporting it,” the majority explained, quoting State v. Wiskerchen, 2019 WI 1.

The circuit court’s findings, the majority said, demonstrated “a reasonable view of the evidence” and application of “clear and uncontested” testimony in ordering involuntary medication of Jared.

Justice Crawford: ‘Not Constitutionally Warranted’

Although Jared never argued in circuit court his central issue on appeal, Justice Crawford in her dissent emphasized that Sell turned on “specific circumstances not considered by the lower courts.”

With “important liberty interests at stake” under de novo review with a well-developed record, Justice Crawford concluded that the circuit court had “overlooked special circumstances that outweighed the [s]tate’s prosecutorial interest.”

“If the circuit court had declined to order Jared forcibly medicated, a civil commitment would have been reasonably foreseeable,” potentially including “an order for involuntary medication.”

When the circuit court ordered involuntary medication, Jared had already been in custody for more than eight months. Medically induced competence could take months more.

The longer he remained confined, the dissent argued, the state’s interest in prosecution diminished.

“[A]s a first-time offender, he would likely have received a sentence for the crime well under the statutory maximum of three years of confinement,” the dissent said, especially given his youth and additional medical problems.

“As instructed by Sell, I reach this conclusion by considering the facts of this individual case,” the dissent concluded.

“[B]y the time the [s]tate sought the order to forcibly medicate Jared, its interest had diminished to the point that the intrusion on his liberty was not constitutionally warranted.”

Wisconsin Supreme Court: Google was a Private Actor in File Search

Jay D. Jerde — 2026-02-24 00:00:00

Feb. 24, 2026 – Google’s scan of four files that its employee confirmed contained child sexual abuse material (CSAM) operated outside of the Fourth Amendment as a private search, the Wisconsin Supreme Court unanimously decided today in State v. Rauch Sharak, 2026 WI 4.

“Google scanned and viewed Rauch Sharak’s files on its own. It had a business reason to do so. Law enforcement became involved only after Google submitted a CyberTip,” summarized Justice Janet C. Protasiewicz, who authored the opinion.

“And even though federal statutes may encourage these searches, they are not enough to make Google an instrument or agent of the government, especially considering the disclaimer in 18 U.S.C. § 2258A(f)(3).”

The case is the second this year in which the Supreme Court decided whether electronic service provider (ESP) scans of a user’s files constituted a search under the Fourth Amendment.

State v. Gasper, 2026 WI 3, released Jan. 14, differed in that Snapchat – under its user agreement and policies – only digitally scanned the files before it sent them to the National Center for Missing and Exploited Children (NCMEC), whose confirming scan resulted in Wisconsin law enforcement viewing the files.

A 5-2 court held in Gasper that the investigators – the first human eyes to view the videos – did not exceed the scope of Snapchat’s digital private search, permitting law enforcement’s warrantless search.

Google a Government Agent?

Google scans user content for known files of CSAM and flags the files for review. In August 2021, Google found four files of potential CSAM.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

A Google employee confirmed the digital scan revealed CSAM.

Google submitted a CyberTip to NCMEC with the four files. NCMEC forwarded the tip to the Wisconsin Department of Justice.

A subpoena to the telecommunication company tied the Internet address to a residence in Jefferson County.

After viewing the files without a warrant, a sheriff’s detective obtained a search warrant for Andreas W. Rauch Sharak’s home and devices.

Law enforcement found CSAM on Rauch Sharak’s phone. He was charged with 15 counts of possession of child pornography.

Rauch Sharak moved the Circuit Court to suppress the evidence. He argued that “Google acted as an instrument or agent of the government,” and its search violated the Fourth Amendment.

A “constellation of federal statutes surrounding CSAM reporting and liability for internet content” made Google a government agent, he explained.

The State sought protection by arguing that terms of service precluded a reasonable expectation of privacy and the government’s search didn’t exceed Google’s private search: a warrant wasn’t necessary.

The Circuit Court denied Rauch Sharak’s motion.

The case reached the Supreme Court after the Court of Appeals certified three questions, only one of which determined the Supreme Court’s conclusion.

Two Key Cases

The critical question before the Supreme Court asked whether Google’s scan and review of Rauch Sharak’s files was a government search, requiring a warrant, or a private search.

The Fourth Amendment prohibiting unreasonable searches limits only government action. The defendant bears the burden to prove a search done by a private entity was, in fact, a government search.

Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989), guided the Supreme Court before considering Wisconsin precedent.

Skinner involved Federal Railroad Administration regulations requiring intoxication testing of railroad employees.

These rules a railroad couldn’t negotiate away, preempted contrary state laws, and required employee compliance – factors that the U.S. Supreme Court equated to government “encouragement, endorsement, and participation.”

This degree of participation made the searches by railroads a government search under the Fourth Amendment.

State v. Payano-Roman, 2006 WI 47, “adopted Skinner’s totality of the circumstances test,” the Wisconsin decision explained.

Payano-Roman listed three requirements for a private search, the decision said. In addition, if the search “is a ‘joint endeavor’ between private and government actors,” the “search may be a government search.”

In Payano-Roman, law enforcement assisted the medical team to administer laxatives to the defendant to pass a baggie of heroin that he had swallowed upon arrest.

This “joint endeavor” with a “dual purpose,” both medical and law enforcement, the Supreme Court held, was a government search.

Rauch Sharak argued that Payano-Roman created a three-factor test to determine whether a search was private.

The Supreme Court clarified that the three considerations, “whether the police initiate, encourage, or participate in the search; the private actor’s purpose; and whether the search was a joint endeavor,” merely demonstrate the totality of the circumstances.

“[N]o one consideration is dispositive,” the decision explained.

‘In Good Company’

In applying the two cases, the Supreme Court pointed out that the government wasn’t a part of the Google search.

Wisconsin law enforcement became involved only after receiving the CyberTip.

As a service provider, “Google had a business reason to complete this search” – to ensure that customers had “a good experience using its products,” the decision said.

This purpose is “independent of any desire to help law enforcement,” which is further evidence that Google was not acting at the behest of government when Google searched the files.

But Rauch Sharak argued that the numerous statutes governing ESPs and CSAM push Google to conduct the searches, making Google a government agent.

The first of those statutes that the Supreme Court evaluated, 18 U.S.C. section 2258A, regulates CSAM reporting, but the statute also says that “‘[n]othing in this section shall be construed to require a provider to … affirmatively search, screen, or scan for’ CSAM.”

“Many federal courts” – and the Supreme Court cited five U.S. Court of Appeals decisions – “have relied on that disclaimer in determining that” that statute “does not turn ESPs into government agents.”

Similarly, 47 U.S.C. section 230 governing “liability for online content and for ESPs who screen or block user content” also states, “[n]o provider … shall be held liable on account of … any action voluntarily taken in good faith” restricting material such as CSAM.

Rauch Sharak found this immunity the result of ESPs statutorily moderating content, enforced by liability for not scanning for CSAM.

The Supreme Court found that the statute didn’t “require, reward, or incentivize scanning for CSAM in the first place” – contrary to the mandatory requirements that fueled the government search in Skinner.

These conclusions put Wisconsin “in good company,” the decision said.

Consistent with decisions in four U.S. Court of Appeals circuits, including the Seventh Circuit, and two states, including Minnesota, the Supreme Court said, “[s]eemingly without exception, federal circuit courts and other state supreme courts have held that ESPs like Google are private actors when searching for CSAM on their platforms.”

Wisconsin Supreme Court: Video View OK Within Private Search

Jay D. Jerde — 2026-01-23 00:00:00

Jan. 23, 2026 – The Fourth Amendment’s private search doctrine protected a warrantless view of a video that Snapchat flagged as child sexual abuse material (CSAM), a majority of the Wisconsin Supreme Court agreed on Wednesday in State v. Gasper, 2026 WI 3.

“The government did not exceed the scope of Snapchat’s search when it viewed the video because any expectation of privacy [Michael Joseph] Gasper may have had in the video was frustrated by the private search, and there was virtual certainty that law enforcement would not find anything of significance beyond what the private search revealed,” wrote Justice Annette Kingsland Ziegler for the five-justice majority.

Chief Justice Jill J. Karofsky and Justices Rebecca Grassl Bradley, Brian K. Hagedorn, and Janet C. Protasiewicz joined the majority opinion.

Justice Rebecca Frank Dallet wrote in her concurrence that the good-faith exception to the exclusionary rule protected the search.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

“[L]aw enforcement made a reasoned, though mistaken in my view, decision to follow the weight of non-binding authority on an unsettled legal question, as reflected in the decisions of two federal circuits and two state appellate courts,” Dallet wrote.

Justice Susan M. Crawford dissented in part, saying neither the private search doctrine nor the good-faith exception protected the viewing – but “the remaining facts gained from the CyberTip and investigation were sufficient to support probable cause for the search warrant of Gasper’s home and devices.”

“I thus agree with the mandate reversing the circuit court’s order suppressing evidence obtained pursuant to the search warrant.”

Hash Values Versus Eyeballs

In compliance with federal law, Snapchat’s user agreement prohibits CSAM on its platform. Through a computerized scan of a video’s digital fingerprint, Snapchat flagged a video and submitted it to the National Center for Missing and Exploited Children (NCMEC), whose own hash match confirmed Snapchat’s scan.

Neither of these scans involved human viewing of the video.

NCMEC sent a CyberTip and the video to Wisconsin Department of Justice (DOJ). A DOJ analyst, operating without a warrant, opened the file to confirm it contained CSAM and obtained identifying information from the internet service provider by administrative subpoena.

The DOJ forwarded the CyberTip and video to the Waukesha County Sheriff’s Office, whose detective also viewed the video without a warrant to confirm it depicted CSAM.

Both the CyberTip and video justified a warrant to search Gasper’s home and electronic devices, where police found ten files on his cell phone with CSAM.

Gasper was charged with ten counts of possession of child pornography and nine counts of sexual exploitation of a child.

He moved to suppress the evidence as an unconstitutional search “because the government was the first to view the video and did so without a warrant.” Any subsequent evidence, Gasper argued, was fruit of the poisoned tree.

The detective who viewed the video testified that Snapchat’s and NCMEC’s computerized scans were accurate. CyberTips have always led to pornographic videos.

The Waukesha County Circuit Court granted Gasper’s suppression motion because no human at Snapchat viewed the video and because the court believed Snapchat’s scan that assigned a hash value could result in misidentification.

The Wisconsin Court of Appeals reversed the circuit court, reasoning that Gasper had no reasonable expectation of privacy because of Snapchat’s Terms of Service, Community Guidelines, and Sexual Content Explainer.

The video came from the search of the Snapchat account, to which Snapchat has access, and not Gasper’s cell phone, the Court of Appeals clarified.

Private Search

The government may view anything within a private search without a search warrant, the majority opinion explained, because the private search “frustrates” the individual’s reasonable expectation of privacy.

Gasper argued the DOJ and the detective exceeded the private search and needed a warrant because they were the first to watch the video, something that no private search had done.

Viewing the video was like the Drug Enforcement Administration’s search in U.S. v. Jacobsen, 466 U.S. 109 (1984), the majority explained.

In Jacobsen, a forklift accident damaged a package. Following company policy, Federal Express employees opened the package – and “discovered several plastic baggies of white powder.”

A subsequent DEA test confirming the powder was cocaine didn’t exceed the private search, the U.S. Supreme Court held, because “‘there was a virtual certainty that nothing else of significance’ was in the package, and the inspection would not have provided ‘anything more than [what it] already had been told.’”

The “almost absolute certainty” of the computerized hash value comparisons, which flagged the video as CSAM, was nothing more than what human eyes did, which was to determine that the video was CSAM, the majority explained.

Two recent decisions specifically about private search scans, U.S. v. Miller, 982 F.3d 412 (6th Cir. 2020) and U.S. v. Reddick, 900 F.3d 636 (5th Cir. 2018), supported the majority’s conclusion – as well as three state courts that adopted their reasoning.

Although two other circuits in U.S. v. Wilson, 13 F.4th 961 (9th Cir. 2021) and U.S. v. Maher, 120 F.4th 297 (2d Cir. 2024) came to the opposite conclusion, the majority found their reasoning “incongruous” and disregarding “how the scanning operates.”

A human detective’s skills did not meaningfully expand the search beyond what the private search covered, the majority said, and no one provided evidence that the scanning program was flawed.

“Gasper does not argue that the government viewed more than the one video provided, nor does he argue that anything else of significance was in the video,” the majority said.

The search “did not exceed the scope of Snapchat’s search” and is protected by the private search doctrine, the majority concluded.

Concurrences written by Justice Ziegler and Justice Hagedorn, who was joined by Chief Justice Karofsky and Justice Protasiewicz, provided additional analysis consistent with the majority decision.

Dallet: Good-Faith Exception

Justice Dallet argued in the part of her concurrence joined by Justice Crawford that Snapchat’s contractual agreement with Gasper cannot thwart constitutional expectations of privacy against the government. Courts have rejected that argument.

“Because breaches of private agreements in the real world do not eliminate renters’ or users’ reasonable expectations of privacy against government intrusion, it is irrelevant that Gasper breached Snapchat’s terms of service when he privately uploaded the video to his account,” Dallet wrote.

Law enforcement watching the video without a warrant, Dallet wrote, resulted in the detectives violating Gasper’s reasonable expectation of privacy because, as Wilson held, viewing the video “reveals innumerable granular private details.”

Justice Dallet believed the good-faith exception applied. The DOJ weighed the Fifth and Sixth Circuits’ decisions followed by two state courts allowing the search against the Ninth Circuit’s Wilson decision.

“Even though not all instances of law enforcement reliance on non-binding precedent will fall within the good-faith exception, this one does,” Dallet concluded.

Crawford: No Good Faith, Enough Probable Cause

Justice Crawford’s opinion, joined by Justice Dallet, said the private search doctrine didn’t apply because the Snapchat scan merely flagged the video as “apparent CSAM,” not defining “what specimen of ‘known CSAM.’”

“Only by opening and playing the file did the government confirm it contained an intact video that was unequivocally CSAM,” and the detective used that information to justify the subsequent search warrant, Crawford explained.

That information provides more than the private search, as the Second and Ninth Circuits concluded, Crawford wrote.

Much like a dog sniff detecting potential narcotics provides limited information requiring a warrant to seize luggage, Crawford wrote, “Snapchat’s digital scans likewise reveal limited information about the files it flags,” requiring a warrant to view the video.

Crawford departed from Dallet, however, by emphasizing that only “reasonable reliance on binding precedent is not subject to the exclusionary rule,” requiring precedent that is “clear and settled.”

The DOJ knew precedent was unsettled. It could have easily obtained a search warrant. More than 60 days passed between receiving the tip and the warrant to search Gasper’s property, Crawford said. “[T]he government instead chose to risk violating Gasper’s rights.”

Although the video should be suppressed, Crawford said the CyberTip and related information provided probable cause, giving the state “sufficient untainted evidence” to conduct the physical search.

“Because the evidence obtained from the lawful search pursuant to the warrant was obtained independently from the constitutional violation, it need not be excluded.”

U.S. District Court: First Amendment Doesn't Protect "RD RRAGE"

Jay D. Jerde — 2025-12-16 00:00:00

Dec. 16, 2025 – A car enthusiast who likes vanity plates to express his opinions recently lost his First Amendment claim on summary judgment before the U.S. District Court for the Western District of Wisconsin.

The court in M J Nichols Company, Inc. v. Thompson, No. 24-cv-566-amb (W.D. Wis., Dec. 12, 2025), held that a license plate is government speech.

Whether the language on a license plate is individual expression or government speech to which the First Amendment doesn’t apply “is a close call,” Magistrate Judge Anita Marie Boor explained, “as illustrated by the split developing at the district court level, made all the more difficult because there is no clear guidance” in the Seventh Circuit.

Vanity Plates

Wisconsin law has allowed residents to buy “personalized registration plates” – commonly called vanity plates – since 1979.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

Although the owner may choose the letters and numbers on the plate, the Wisconsin Department of Transportation (WisDOT) reviews the applications.

WisDOT may deny an application that, under Wis. Stat. section 341.145(7), “may carry connotations offensive to good taste or decency, or which would be misleading, or in conflict with the issuance of any other registration plates.”

WisDOT’s “decision whether to issue a personalized plate is final and not subject to judicial review,” according to statute, but the agency’s process includes multiple steps.

If a trained staff member believes a requested plate text is objectionable, “the staff member puts a hold on the application” while the issue goes to the Title and Registration Processing Section (TARPS).

The TARPS team reviews the text against WisDOT criteria, including internal guidelines, before voting on whether to accept the application.

After this decision, the applicant may request review in writing to the TARPS section chief or a higher-ranking WisDOT manager.

Two Pontiac Firebird Trans Ams

Back in 2001, plaintiff Michael J. Nichols, operating through plaintiff M J Nichols Company, Inc., owned a Pontiac Firebird Trans Am with the license plate “RD RRAGE.” He had to give up the car in 2003 for reasons unrelated to the plate.

When Nichols acquired another Pontiac Firebird Trans Am in 2019, he applied to get his old plate back.

WisDOT denied the request and added the text “to its list of objectionable license plates.”

“Believing the denial of the application was a mistake, plaintiffs filed another application for the same personalized plate in December 2023.” WisDOT denied it.

Plaintiffs sued WisDOT Secretary Craig Thompson in August 2024, claiming that the statutory prohibition “may carry connotations offensive to good taste or decency” violated on its face the First Amendment “by restricting the applicant’s personal expression.”

Both plaintiffs and WisDOT sought summary judgment.

U.S. Supreme Court Guidance

Although the issue before the district court lacked clear authority, U.S. Supreme Court jurisprudence on government speech provides the applicable test.

In Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009), the district court explained, the Supreme Court created a three-factor test: (1) “whether governments have used [the medium] to speak to the public”; (2) “the general public’s perception of who” is speaking; and (3) “whether the government maintains control over the selection.”

In Pleasant Grove City, the Supreme Court analyzed whether monuments created by private citizens that were placed in a public park spoke for the individuals or the government. They spoke for the government.

The Supreme Court used the test to determine whether the state of Texas could deny a private nonprofit entity’s request for a specialty license plate featuring a Confederate flag.

In Walker v. Texas Division, Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015), the Supreme Court concluded that states often convey messages on license plates that people associate with the state. Texas could deny the request.

“A few courts have applied this jurisprudence to the personalized license plate programs of various states,” the district court explained, “and the resulting opinions are split.”

Vanity plates are private speech according to federal district courts in California, Delaware, Kentucky, and Rhode Island, and state courts in Maryland. They are government speech as held by the federal district court in Hawaii and state courts in Indiana and Tennessee.

Although the Seventh Circuit considered a First Amendment claim involving specialty plates in Choose Life Illinois, Inc. v. White, 547 F.3d 853 (7th Cir 2008), the district court noted the case framed the issue at odds with the later U.S. Supreme Court test.

The Choose Life court held the plates weren’t government speech, constituted a nonpublic forum, and the plate could be excluded as “a permissible and reasonable content-based restriction.”

Wisconsin’s License Plates

“Wisconsin’s state-issued license plates convey government information through their registration numbers and have done so since their inception” in 1905, the district court explained.

“The state stamps unique combinations of numbers and letters on every license plate to identify vehicles and link them to their owners.”

As the Walker court described it, such license plates are “essentially government IDs.”

If so, the plaintiffs argued, Wisconsin is “‘babbling prodigiously and incoherently’ through the thousands of disparate and potentially conflicting messages on personalized plates.”

Wisconsin-registered vanity plates include “GO PACK” and “GO BEARS.” That’s not a consistent message, the plaintiffs pointed out.

“[A]s a means of identifying and indexing cars,” however, it makes sense, the district court said.

Because people see so many license plates, the district court explained, it’s reasonable to conclude “that the public understands license plates and their registration numbers come from the state and convey governmental information.”

“[A] substantial number of Wisconsinites have firsthand knowledge of [WisDOT’s] role in reviewing, approving, and issuing personalized plates,” the district court said, referring to the number of personalized plates and applications noted in the record.

In 2024, Wisconsin had 239,413 issued personalized plates, and WisDOT reviewed 29,496 personalized plate applications – of which 1,166 were flagged for additional review and 694 denied.

The plaintiffs felt a personalized plate identifies a plate holder’s personal viewpoint because Wisconsin would never endorse the message “BEARS.”

The district court replied, “[a] reasonable person can understand that the state acquiesced to a resident’s request to identify their vehicle by the word ‘BEARS’ without also interpreting it as the sovereign State of Wisconsin’s official announcement of its favorite sports team.”

Finally, although an individual Wisconsin vanity plate doesn’t have the reach of a Texas specialty license plate design, the district court found paramount “the state’s oversight and its exercise of veto power.”

The court thus concluded that the license plate’s message is government speech for which the First Amendment doesn’t apply.

Court of Appeals: Smartphone Search Unconstitutionally Overbroad

Jay D. Jerde — 2025-11-25 00:00:00

Nov. 25, 2025 – In what may be the first case of its kind, the Wisconsin Court of Appeals in State v. Melssen, No. 2024AP1942-CR (Nov. 20, 2025) (recommended for publication) vacated an order denying suppression of evidence obtained from an overly broad search of a smartphone.

Presiding Judge Rachel A. Graham, writing for the unanimous three-judge panel, concluded “the warrant to search [Emil] Melssen’s smartphone – which authorized officers to search virtually all of the messages, images, search terms, passwords, correspondence, credit card bills, telephone bills, digital artifacts, and incoming and outgoing telephone numbers and call details stored on the smartphone – violated the Fourth Amendment because it was overbroad and not carefully tailored to its justifications.”

The panel included Judge Brian W. Blanchard and Judge JoAnne F. Kloppenburg.

The Court of Appeals remanded the case to Lafayette County Circuit Court to determine whether evidence found on the smartphone and a search of Melssen residence based on the smartphone evidence must be suppressed, and whether Melssen’s is entitled to a new trial.

Text Messages in the Ambulance

Reports that Melssen and a victim injured each other on May 25, 2021, outside the home of the victim’s girlfriend, began a police investigation.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

Police learned that Melssen and the victim’s girlfriend talked to each other on the phone before the physical conflict, and Melssen had sent her multiple text messages while he was in the ambulance.

The victim also suggested his girlfriend and Melssen were in touch by text messages and phone calls, and “are constantly communicating about drugs and refer to drugs as ‘groceries.’”

Officers seized Melssen’s smartphone and sought a warrant for evidence of “battery, domestic abuse incidents, and/or narcotic activity.”

The affidavit justifying probable cause detailed facts about the battery in 11 paragraphs.

The affidavit justified the search for drug violations by the victim’s statement and that the officer knew “from prior law enforcement investigations” that the girlfriend was “a drug user” who lived where methamphetamine had been sold.

Officers wanted to search the phone to “reveal valuable information to establish a timeline for investigating officers to establish an accurate record of events.”

‘Narcotic Activity’

The circuit court issued the warrant for searches of images or visual depictions, search terms, telephone calls, and correspondence, as well as passwords, ownership, and technical data.

Text messages found between Melssen and individuals identified as “Becky” and “Bill’s Girlfriend” “could support the reasonable inference that Melssen was involved” in drug distribution.

Police obtained a warrant to search Melssen’s residence, where they found “methamphetamine, drug paraphernalia, and items consistent with drug distribution.” A locked vehicle on the property contained methamphetamine.

After being charged with drug crimes, Melssen moved to suppress the evidence from the searches for lack of probable cause.

“Melssen argued that this ‘scant factual evidence’ did not justify the search that police conducted, which amounted to a ‘general search’ of his ‘entire phone.’”

The state in defense “focused almost exclusively on the battery,” saying that “common sense would cause a person to infer that this incident may be drug related.”

The circuit court denied Melssen’s motion, based in part “that it would have been impractical to authorize a more limited search because investigators have to ‘walk through an entire cell phone … to find what it is that [they]’re looking for.’”

The jury found Melssen guilty on all drug-related charges. Charges related to the battery involve another case also on appeal.

Digital Particularity

The Fourth Amendment prohibits “unreasonable searches and seizures,” requiring warrants “upon probable cause” and “particularly describing the place to be searched.”

The search must be “carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.”

“There are no United States Supreme Court cases, and no published Wisconsin cases,” the Court of Appeals said, “that have addressed what the dual mandates of the Warrant Clause require of an application for a warrant to search the contents of a smartphone.”

Cases involving searches of smartphones and computers provided guidance.

“The concern about indiscriminate searches of residences by government actors is at the core of the Fourth Amendment,” the Court of Appeals explained, and the U.S. Supreme Court “observed that smartphones contain personal and sensitive information far beyond what would be found in a residence ‘in any form.’”

Cases about searches of computers advise that “the particularity requirement must be carefully applied when analyzing governmental searches,” the decision noted from federal cases in other states and the U.S. Court of Appeals.

“[A]n unlimited search of a person’s smartphone would reveal private details of the person’s life that are wholly unrelated to any criminal investigation that justified the search,” Graham wrote, such as about medical conditions, confidential communications, and private writings.

“For all of these reasons,” the Court of Appeals explained, “we do not agree with the circuit court’s conclusion that, to the extent there is probable cause that evidence of a crime will be found on a smartphone, this necessarily means that there is probable cause for an essentially unrestricted search of the smartphone’s contents.”

As federal and state courts have held in seven states and the District of Columbia, the Court of Appeals warned that “a warrant to search a smartphone must be ‘carefully tailored to its justifications.’”

Demands of particularity require searches limited by specified types of data and time periods, the court explained.

‘Exceptionally Vague and Exceedingly Slim’

In applying these principles, the Court of Appeals concluded that the affidavit documented sufficient probable cause for a smartphone search in the battery investigation.

“This does not end our inquiry,” the court cautioned.

Only the call log on May 25, 2021, communications with the girlfriend on that date, and communications “immediately following the altercation” found support in the affidavit, the Court of Appeals said.

“[T]he affidavit did not reasonably suggest,” the court warned, any other data on the smartphone would reveal evidence: no inference of photos or videos, communications, and no justification for an unlimited time period for the search.

For the battery investigation, the warrant was overbroad, the appellate court held.

The warrant fared worse for the narcotics investigation, for which “the averments … were exceptionally vague and exceedingly slim,” the Court of Appeals said.

Evidence that the two communicated about drugs using the term “groceries” – even with “a known drug user” – is not a crime, the court explained.

The circuit court appeared to rely on what it knew from previous criminal proceedings against Melssen, the Court of Appeals noted, but “this information was not included in the warrant application, and we do not consider these additional allegations in our analysis.”

The Court of Appeals concluded “that the warrant to search Melssen’s smartphone authorized a far more extensive search than was allowed by the Warrant Clause’s dual mandates of probable cause and particularity.”

On appeal, the state argued that Fourth Amendment good faith and plain view exceptions allow the evidence, but, the Court of Appeals noted, the state never had the opportunity to argue that before the circuit court.

“[W]e do not resolve the potentially fact-intensive issues surrounding the determination of whether the text messages found in the resulting search must be suppressed,” the Court of Appeals said.

Because the faulty smartphone search justified searching the residence, “we also do not determine whether they could be used as probable cause to support the residence warrant,” the Court of Appeals concluded.

Those issues remained for the circuit court on remand.

Court of Appeals: Controlled Substance Violation Doesn't Get Hemp Regulatory Protection

Jay D. Jerde — 2025-11-12 00:00:00

Nov. 12, 2025 – A required administrative referral for criminal prosecution didn’t apply for allegedly breaking controlled substances laws, the Wisconsin Court of Appeals recently held in State v. Syrrakos, No. 2024AP554-CR and State v. Shattuck, No. 2024AP556-CR (Oct. 29, 2025) (recommended for publication).

The Court of Appeals reversed and remanded the consolidated cases against Christopher J. Syrrakos and Kristyn A. Shattuck to Waukesha County Circuit Court.

The circuit court dismissed the cases because the Department of Agriculture, Trade and Consumer Protection (DATCP) as the regulator of hemp licenses had not referred the matter for criminal prosecution.

“This prohibition does not apply to the charges against Syrrakos and Shattuck,” Presiding Judge Lisa S. Neubauer explained, “because neither has been charged with violating [the hemp statute or DATCP regulations], and they have not shown that the conduct alleged in the complaint violates the statute or those rules.”

The unanimous District II panel included Judges Mark D. Gundrum and Maria S. Lazar.

Hospitalized From THC Gummies

Under a hemp processor license, Syrrakos owned and operated Superstar Buds in Menominee Falls. Syrrakos lived with Shattuck in Menominee Falls.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

The store sold hemp products. Hemp comes from a plant biologically similar to the plant that produces marijuana. Both contain delta-9-tetrahydrocannabinol (THC), the intoxicant in marijuana. The difference is in how much THC.

Under Wis. Stat. section 94.55(1), hemp products may be sold with THC of not more than 0.3% on a dry weight basis, or the maximum allowed under federal law up to 1%, whichever is greater.

Any product with THC greater than the maximum is a controlled substance – an illegal drug as defined under Wis. Stat. section 961.14(4)(t).

Law enforcement investigated Syrrakos after receiving information that children had been hospitalized after ingesting a sample of a THC gummy from the store.

Waukesha police made undercover purchases at the store. They searched a dumpster near the store and garbage outside the residence.

From these activities, police obtained items with “concentrations of THC in excess of the legal limit.”

Search warrants of the store and residence found additional products that “tested positive for THC.”

According to the complaint referenced in the decision, police purchased vape cartridges with THC concentrations of as much as 40.32% and “moonrocks” with concentrations of as much as 7.11%.

Based on such evidence, the state charged Syrrakos with 11 violations of Wisconsin’s controlled substances law for manufacturing or delivery, possession with intent to deliver, possession, and “maintaining a drug trafficking place.”

Shattuck was charged with “maintaining a drug trafficking place” at the residence.

Competence?

Syrrakos and Shattuck filed a motion to dismiss for lack of subject matter jurisdiction because, they argued, Wis. Stat. section 961.32(3)(c) required referral from DATCP before the state could charge them with criminal violations.

The circuit court denied the motion.

On reconsideration before another judge, the circuit court concluded that “negligent violation rules … apply fully to all forms of production regulated by” DATCP licenses, including for processing hemp.

It then rejected the state’s argument that Wis. Stat. section 94.55 didn’t govern the activities because the products weren’t hemp based on the higher amount of THC.

Without the state receiving the case on referral from DATCP, the circuit court dismissed the complaints because the court lacked competence.

Not Hemp

The Court of Appeals analyzed the case as “whether a referral was required. The answer to that question turns on whether Syrrakos and Shattuck are ‘person[s] who violate[d] [§] 94.55 or a rule promulgated [there]under.’”

The state points to violations of the controlled substances statutes – not under Wis. Stat. section 94.55 regulation of hemp production.

As the state explained, “the charges against Syrrakos and Shattuck are not for the production of ‘hot’ hemp,” which is hemp above the legal limit that a grower may destroy or remediate for compliance, the Court of Appeals wrote.

It is “rather for Syrrakos’ allegedly intentional possession, manufacture, and delivery of products containing levels of THC far in excess of the legal limit and his and Shattuck’s alleged maintenance of drug trafficking places.”

In contrast, the appeals court explained, the defendants point to Syrrakos’ hemp processor license as requiring DATCP referral for charges.

The Court of Appeals agreed that the charges did “not arise out of … manufacture, possession, or sale of hemp. They relate, instead, to items with THC concentrations far in excess of the level that would make them hemp under Wisconsin law.”

“These items, as alleged in the complaint,” the court explained, “are not ‘hemp’ as defined under § 94.55(1); they are controlled substances under” Wis. Stat. section 961.14(4)(t).

Processors, Not Growers

While the defendants argue any violations fall under DATCP regulations, the court explained, “these rules do not apply to persons, like Syrrakos and Shattuck, who are not licensed to grow hemp.”

“As the text of these rules makes clear,” the court said, “sampling, testing, destruction, and remediation are activities that pertain to hemp plants that are grown in lots.

“Only a person to whom the DATCP issues a grower license is authorized to grow hemp,” making such remedies available only to licensed growers, a conclusion reinforced by DATCP’s analysis of its rules, the court explained.

“It is undisputed that Syrrakos held only a processor license,” the court said.

“That license allowed him to ‘store, handle, and convert hemp into a marketable form.’ … It did not allow him to grow hemp. And Shattuck did not hold any licenses related to hemp.”

Court of Appeals: Dangerousness Necessary to Support Recommittal

Jay D. Jerde — 2025-10-14 00:00:00

Oct. 14, 2025 – The statute setting requirements for recommitting an individual that the circuit court had conditionally released after a verdict of not guilty by reason of mental disease or defect the Wisconsin Court of Appeals found unconstitutional in State v. Wilhite, No. 2024AP2177-CR (Sept. 25, 2025) (recommended for publication).

Due process requires a finding of dangerousness, explained Presiding Judge JoAnn F. Kloppenburg for the unanimous panel, including Judges Brian W. Blanchard and Jennifer E. Nashold.

The Court of Appeals severed the three unconstitutional portions of Wis. Stat. section 971.17(3)(e) that permit revocation of conditional release if the individual “has violated any condition or rule, or that the safety of the person or others requires that conditional release be revoked.”

“[T]o avoid violating due process, a circuit court may not commit to institutional care a conditionally released … acquittee without making a new finding of dangerousness,” Kloppenburg wrote.

The decision vacates the Dane County Circuit Court’s order revoking the conditional release of Desmond J. Wilhite, who was discharged from commitment last June.

‘Significant Trepidation’

In September 2022, Wilhite pleaded not guilty by reason of mental disease or defect to a charge of threatening a law enforcement officer in August 2019. The circuit court ordered him committed to the Wisconsin Department of Health Services (DHS) for three years.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

Two months after Wilhite’s plea, the state stipulated to a conditional release because “Wilhite did not ‘currently pose a significant risk of harm to self, others, or property,’” and the circuit court granted release in February 2023.

In the same month the circuit court granted release, the state petitioned to revoke conditional release. It withdrew its petition after changes to Wilhite’s treatment plan.

The state petitioned again in October 2023. At a hearing, it withdrew the request in place of additional conditions the circuit court added to the terms of conditional release.

Both petitions alleged Wilhite violated DHS rules.

A recent incident of a rule violation justified the state’s third petition to revoke conditional release in January 2024.

“[T]he circuit court determined that the [s]tate ‘has met its burden by clear and convincing evidence that [Wilhite] has violated his rules, and this is not a situation where I have to find dangerousness.”

The decision, however, raised in the circuit court “some significant trepidation and some serious concerns” about recommitment.

Wilhite had testified that he had improved using coping strategies – and a return to institutionalization “would destabilize his mental state.”

The circuit court would have preferred the parties agree to a different community residential facility. It “also expressed concern that Wilhite’s behavior was ‘escalating.’”

U.S. Supreme Court Precedent

Because Wilhite failed to raise his constitutional claim in the circuit court or in a motion for post-disposition relief, the state argued that the Court of Appeals could not hear the case.

A facial constitutional challenge to a statute, the Court of Appeals explained, cannot be forfeited according to State v. Bush, 2005 WI 103 ¶ 17.

The core of Wilhite’s argument comes from Foucha v. Louisiana, 504 U.S. 71 (1992), claiming that “without proof that a civil committee is currently ‘both mentally ill and dangerous,’ confinement stemming from the commitment violates due process.”

Wisconsin’s recommittal statute requires the state to prove by clear and convincing evidence either a violation of a rule or dangerousness.

The foundational case, Jones v. United States, 463 U.S. 354 (1983), the Court of Appeals quoted, “clarified that ‘[t]he committed acquittee is entitled to release when [the acquittee] has recovered [the acquittee’s] sanity or is no longer dangerous.’”

“The import of this statement was that due process requires that an … acquittee be entitled to release when either mental illness or dangerousness is no longer shown,” the Court of Appeals summarized.

Drawing support from Jones, in Foucha the U.S. Supreme Court “emphasized that an … acquittee ‘could be held’ only ‘until [the acquittee] was no longer mentally ill or no longer dangerous,’” the Court of Appeals said.

Because Foucha was found not guilty by reason of mental disease or defect, the defendant was not convicted, eliminating the government’s interest in punishment, the Foucha court explained, raising due process concerns of “[f]reedom from bodily restraint … from arbitrary government action.”

In Wisconsin, the Court of Appeals said, commitment in such a verdict is, likewise, civil.

Relying on Foucha to interpret a statute significantly different from the one governing here, the Supreme Court in State v. Randall, 192 Wis. 2d. 800 (1995), nonetheless held that an “acquittee may continue to be committed ‘based on dangerousness alone,’” the Court of Appeals emphasized.

‘Not Required to Ignore’

Recommitment places a defendant in a different situation than from the initial commitment, the Court of Appeals outlined.

Institutional care is appropriate after a not guilty by reason of mental disease or defect verdict because the “verdict establishes that: (1) ‘the defendant committed an act that constitutes a criminal offense’; and (2) the defendant ‘committed the act because of mental illness.’”

“[T]hese are sufficiently probative, across cases, of continuing mental illness and dangerousness so as to satisfy the Due Process Clause’s requirement of a finding of dangerousness for commitment,” the Court of Appeals explained, citing Jones.

“However, as pertinent here, if a court finds that an … acquittee is no longer dangerous, the court must release the acquittee because the constitution prohibits continued commitment,” the Court of Appeals continued, citing both Foucha and Randall.

“In other words, after the initial period of commitment and following conditional release, the inference of dangerousness from [a not guilty by reason of mental disease or defect] verdict is no longer sufficient to justify commitment.”

The circuit court in ordering commitment for a conditionally released individual must support it with a new finding of dangerousness, the Court of Appeals instructed.

Precedent supporting that conclusion, the Court of Appeals explained, “did not purport to establish a degree of required dangerousness or to limit the appropriate methods of showing dangerousness.”

“[A] circuit court is ‘not required to ignore indications that a … person has disregarded the rules ... in the past and will do so in the future,’” the Court of Appeals said, citing State v. Burris, 2004 WI 91 ¶ 72.

Court of Appeals: Separate Abandonment Claims Require Separate Verdicts

Jay D. Jerde — 2025-10-14 00:00:00

Oct. 14, 2025 – A circuit court’s failure to instruct the jury to decide on each period of abandonment denied a mother due process protection of a five-sixths verdict, the Wisconsin Court of Appeals decided in S. S. v. A. S.-P., No. 2024AP2532 (Sept. 23, 2025) (recommended for publication).

The decision clarifies “unsettled law,” justifying reversal of the Brown County Circuit Court verdict for plain error.

“When multiple periods of abandonment are alleged, that statute requires the jury must be instructed to consider each period of abandonment separately, and the jury must be provided with a separate verdict form for each period of abandonment,” Presiding Judge Lisa K. Stark wrote for the unanimous panel with Judges Thomas M. Hruz and Gregory B. Gill Jr.

Because the law had been “unsettled,” the mother’s claim that she received ineffective assistance of counsel for not objecting to the jury instructions and verdict form failed.

Alleged Abandonment

The mother struggled with alcoholism. When her daughter was four and a half years old in September 2014, the child was found to be in need of protection or services (CHIPS).

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

The child was placed with her mother’s maternal aunt and uncle.

The mom didn’t complete the conditions to bring her child home, and in 2017, the aunt and uncle received guardianship against the mom’s objection.

Two years later, they filed a petition for termination of parental rights (TPR) against the parents alleging two, six-month periods of abandonment and failure to assume parental responsibility under Wis. Stat. section 48.415(1), (6).

The natural parents sought a jury trial, as is their right under Wis. Stat. section 48.422(4).

In the first period from November 2017 to May 2018, the mother admitted she did not meet with her daughter but did communicate with her aunt by email, and “her lack of direct contact … was not her fault.”

Prior to the guardianship, the mother said that she remained “very involved” in her daughter’s life with “frequent visits,” but the county human services supervised visitation center became unavailable to her during the guardianship.

She believed her aunt excluded her from her daughter’s life.

The aunt testified in contrast that it was the mother’s responsibility to make contact to schedule visits, and while the aunt tried to keep the mother informed of her daughter’s schedule, she admitted she may not have always succeeded.

In the second alleged period of abandonment from January to July 2019, the mother admitted that she didn’t have contact with her daughter, but she sent several emails to her aunt. The aunt testified she responded to some of them.

The circuit court instructed the jury about the alleged two periods of abandonment and the mother’s available defense of whether she “had a reasonable opportunity to visit or communicate with” either the child or “the persons who had physical custody of [the child] during that period.”

The jury gave a single verdict of abandonment. Two jurors dissented.

Plain Error

The jury instruction and verdict form may be reviewed for plain error under Wis. Stat. (4), the decision explained, because “substantial rights” are affected, even though the issue never arose at trial.

Precedent warns to use plain error “sparingly.”

TPR “permanently sever[s]” the parent-child relationship, affecting a “fundamental liberty interest” that requires “‘heightened’ due process protections” and “clear and convincing evidence.”

The right to a jury, even with the five-sixth vote permitted by statute, the Wisconsin Constitution guarantees in article I, section 5, but the jurors must agree on all the questions for a particular claim.

The mother argued she didn’t receive that protection because the jury made one verdict on one verdict form covering two separate alleged periods of abandonment with no way to show that the same ten jurors voted the same for both periods.

One Singular Period

A review of the language of both Wis. Stat. section 48.415(1)(a)3., and Wis JI-Children 314 (2018), however, referenced “‘a period of 6 months or longer’ – meaning one singular period,” the Court of Appeals explained.

The circuit court needed to provide the jury with a set of verdict questions and a separate verdict form for each alleged period of abandonment, the Court of Appeals held.

“Based upon the jury instructions and verdict form, we cannot determine if the same five-sixths of the jurors found that [the mother] abandoned [the child] during one of the alleged periods, both of the alleged periods, or some combination of the two.”

The circuit court had considered the difficulty of ensuring a five-sixth verdict on both claims, but it believed “the ultimate question the jury must answer is: did the parent abandon her child.”

By the circuit court’s math, “if only five jurors agreed on the first time period, and only five jurors agreed on the second time period, ‘this means 10 jurors (five-sixths) found the mother abandoned her child.’”

The Court of Appeals explained that the circuit court’s conclusion didn’t follow the statute’s language.

As the mother argued, “‘the question of ‘when’ [she] allegedly failed to visit and communicate with [her daughter] is inherent in the question of ‘whether’ she abandoned” her daughter.

Alternative Arguments

The custodial aunt and uncle pointed to Wisconsin Supreme Court precedent to support the circuit court verdict.

They argued that multiple sexual assaults of a child do not need to receive a verdict on each violation, and factual findings of dangerousness for involuntary commitment require “a single evidentiary threshold.”

The language of the abandonment statute ruled out those analogies, the Court of Appeals held.

Although a finding of plain error shifts the burden to the losing party to argue the error was harmless – whether “the error contributed to the outcome” – only a cursory argument followed, reinforcing the Court of Appeals’ conclusion.

Court of Appeals: No 'Trial Penalty' for Different Sentences in Similar Statutes

Jay D. Jerde — 2025-09-22 00:00:00

Sept. 22, 2025 – Two state statutes that covered the same criminal act – one that required a mandatory minimum sentence – were not unconstitutional under federal and state precedent, the Wisconsin Court of Appeals, District I recently held in State v. Kenyon, No. 2022AP2228-CR (Sept. 16, 2025) (recommended for publication).

“[W]e find no case that stands for or even implicitly supports the proposition that a trial penalty is imposed when the State chooses to charge a defendant under the harsher of two identical or overlapping statutes prior to trial,” wrote Judge Sara J. Geenen for the unanimous panel that included Presiding Judge Pedro A. Colón and Deputy Chief Judge M. Joseph Donald.

‘Trial Penalty’?

Keith C. Kenyon was charged in Milwaukee County Circuit Court for sexual intercourse with a minor under Wis. Stat. section 948.02(1)(b) that requires a mandatory minimum sentence of 25 years of initial confinement under Wis. Stat. section 939.616(1r).

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

The same allegation, Kenyon argued, could fit within Wis. Stat. section 948.02(1)(e), which has no mandatory minimum.

Kenyon claimed the statutes as applied to him violate “due process, equal protection, and separation of powers because the statutes unconstitutionally allow prosecutors to determine the defendant’s sentence and enable the arbitrary enforcement of the law.”

The 34 cases charged in Milwaukee County Circuit Court under section 948.02(1)(b) between Jan. 1, 2018 and July 1, 2022, he argued, involved “significantly more aggravated” facts than his alleged crime.

As the circuit court saw “significant mitigating factors” in Kenyon’s case, “it took issue with the State’s” charging decision that it made knowing those mitigating factors.

The State had “offered to recommend a sentence of five-to-seven years” if Kenyon “agreed to forego his right to a trial and plead guilty to a charge under” section 948.02(1)(e), the circuit court explained.

The circuit court “agreed that the statutory scheme violated due process and separation of powers” and dismissed the case.

On appeal by the state, the Court of Appeals was concerned that the record supported “the circuit court’s conclusion that the decision to charge Kenyon … was made exclusively because Kenyon insisted on going to trial and was not motivated by legitimate concerns for the public welfare” – a “trial penalty.”

Batchelder and Wisconsin Progeny

As the state had argued before the circuit court – which distinguished the case because it evaluated a statute mandating maximum rather than minimum penalties – “[t]he seminal case on this issue is United States v. Batchelder,” 442 U.S. 114 (1979), the Court of Appeals said.

Batchelder challenged two overlapping statutes, one with a maximum penalty of two years of prison and the other with a maximum penalty of five years’ imprisonment.

Such a pair wasn’t void for vagueness, the U.S. Supreme Court said, because the charging uncertainty was no greater than “a single statute authorizing various alternative punishments.”

An equal protection claim would arise only if the government selectively enforced the laws “based upon an unjustifiable standard such as race, religion, or other arbitrary classification,” the Supreme Court explained.

Nor did the statutory twins unconstitutionally delegate to the executive branch the legislative duty to set criminal penalties because the statute provided a range of penalties offering “permissible punishment alternatives,” the Supreme Court said.

The Wisconsin Supreme Court applied Batchelder to two identical criminal statutes in State v. Cissell, 127 Wis. 2d 205 (1985), and found no problem.

But Justice Shirley Abrahamson dissented, the Court of Appeals noted, because, although prosecutorial discretion is a part of the criminal justice system, “the legislature’s adoption of criminal statutes identical except for penalty is an unlawful delegation of power to the executive branch.”

State v. Lindsey, 203 Wis. 2d 423 (Ct. App. 1996), addressed the persistent-repeater penalty enhancement and whether it violated separation of powers and equal protection.

The enhanced penalty was fine because the legislative power to grant discretion to courts also allowed declining to grant discretion, the Court of Appeals explained.

Lindsey, the Court of Appeals noted, remains in “tension” with Oehler v. State, 202 Wis. 530, 536 (1930), which “assert[ed] that the legislature cannot fully divest a court of its sentencing discretion.”

‘Very Little Controlling Authority’

“[A]ll of Kenyon’s arguments have been previously considered and rejected in functionally identical contexts,” the Court of Appeals decided, as the mandatory case law demonstrated.

But Kenyon’s point wasn’t that arbitrary classifications created his plight but that the violation arose from imposing on him a penalty for wanting a trial – the “trial penalty.”

Reviewing courts, including the Court of Appeals, have expressed due process concerns with the concept, but the panel could find “very little controlling authority.”

The Federal Kidnapping Act in United States v. Jackson, 390 U.S. 570, 581 (1968), imposed the death penalty only for defendants who had requested a jury trial, which, the Court explained, could discourage a defendant’s assertion of Fifth and Sixth Amendment rights.

As the Jackson court warned, “[i]f the provision has no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them, then it would be patently unconstitutional.”

The Wisconsin Statutes did not specify a trial penalty, the Court of Appeals distinguished.

Closer to the facts, the Court of Appeals explained, is State v. Edwardsen, 146 Wis. 2d 198, 203 (Ct. App. 1988), involving an additional charge if Edwardsen appealed and obtained a retrial.

“[T]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort,” the Edwardsen court advised in establishing “a presumption of vindictiveness … to a prosecutor who increases charges … following a defendant’s successful appeal.”

The Court of Appeals, noting that a similar principle should apply if such a prosecutorial threat happened before trial, nonetheless found no case even close to saying that.

Such a holding, the Court of Appeals concluded in reversing the circuit court, is contrary to “the overwhelming number of cases that hold that prosecutors have absolute discretion to decide what charge to bring when a defendant’s alleged conduct violates two or more identical or overlapping criminal statutes.”

U.S. District Court Suppresses Evidence: Police Ruse Defeats Voluntary Consent

Jay D. Jerde — 2025-09-02 00:00:00

Sept. 2, 2025 – A police request to enter an apartment to search for a missing child – when they really sought evidence of drug dealing – voided any consent that the defendant may have given, the U.S. District Court for the Eastern District of Wisconsin decided in U.S.A. v. Jose Angel Hernandez-Pineda, No. 25-CR-64 (Aug. 25, 2025), available at 2025 WL 2438683.

“In this case, the officers told Hernandez-Pineda that they needed to get into his home to verify that a missing child was not there.

“Upon entry, however, they searched places, i.e., drawers, bathroom closets, a duff[le] bag, where drugs were likely to be found, not places where a missing child would be located,” wrote Judge William C. Griesbach in granting the motion to suppress evidence.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

“Even if Hernandez-Pineda’s consent could be deemed voluntary, the search conducted by the officers exceeded the scope.”

Ruse

As a part of a joint task force between local law enforcement and the Drug Enforcement Agency (DEA) on March 7, 2024, agents followed a red Audi leaving Chicago that they believed “had engaged in bulk-cash smuggling.”

They followed the car to an apartment near Green Bay where the driver, whom they now knew was Hernandez-Pineda, parked the car in a garage and entered the building.

He came out of the apartment an hour later. Agents followed his car and observed him engaged in what looked like a hand-to-hand drug deal.

When the agents confronted Hernandez-Pineda back at the apartment, they did not want to reveal a larger drug investigation. Instead, they told Hernandez-Pineda that they needed to search his car and home for a missing three-year-old child.

Hernandez-Pineda allowed them to search the car but denied he lived in the apartment complex.

As the agents persisted in saying they had to check his apartment, Hernandez-Pineda explained he could not understand them because his native language is Spanish. Officers provided an interpreter.

Eventually, Hernandez-Pineda allowed the officers into the building, unlocking his apartment.

In their search, officers “began looking in dresser drawers and closets. In the bathroom closet, they found a duffle bag that contained two kilogram-sized bricks of [c]ocaine” and a gun nearby.

A Mexican ID and passport were in the master bedroom, although the record does not indicate whose they were.

Agents asked Hernandez-Pineda to sign a consent for the search, which he did.

The unit was rented to the person with whom Hernandez-Pineda drove out of Chicago. The lease prohibited visitors longer than three days without prior landlord consent.

Hernandez-Pineda was charged with possession of 500 grams or more of cocaine with intent to distribute, possession of a firearm in furtherance of a drug trafficking offense, and possession of a firearm as an illegal alien.

The defendant sought to suppress evidence from the search that he argued he involuntarily consented to of a place where he had an expectation of privacy.

Expectation of Privacy

The reasonable expectation of privacy includes an individual’s subjective expectations that society would consider reasonable.

Although “Hernandez-Pineda is not in the country legally and may be under an order of removal,” the district court explained, “the government does not argue that he is outside the protection of the Fourth Amendment.”

The district court listed many facts supporting Hernandez-Pineda’s expectation of privacy.

He gave the apartment address in a previous traffic stop that law enforcement relied upon and entered on the consent form. Officers “referred to it as his apartment.”

His car parked in a garage unit showed residence – and officers knew that at the time.

He easily found the key and entered the locked apartment for the search. While police were present, he changed out of his sweatshirt into a jacket, indicating residence.

Although Hernandez-Pineda’s name wasn’t on the lease, the district court explained that information was “after-acquired evidence,” and although he could not reside under the lease, he could stay temporarily under its terms, which weren’t dispositive for the Fourth Amendment claim.

The district court concluded that Hernandez-Pineda had a reasonable expectation of privacy.

Coercion

Only a “freely and voluntarily given” consent supports a search, the district court explained. “Trickery, fraud, or misrepresentation on the part of the police to gain entry naturally undermines the voluntariness of any consent.”

“Consents elicited by law enforcement officers presenting themselves as law enforcement officers, but nevertheless lying about their authority or the purpose and scope of their investigation, are particularly troublesome,” the district court explained.

The concern is straightforward. Citizens assume they can trust the police.

A type of invalid ruse involves officers falsely stating urgent action was necessary, such as a gas leak or missing child, which “leave an occupant with little choice but to consent or risk loss of life or serious injury,” the district court said.

A court also considers the individual’s specific circumstances.

Hernandez-Pineda faced a language barrier and “repeatedly expressed difficulty in understanding what the officers were saying.” Police also didn’t advise him of his constitutional rights, the district court said.

More troubling to the district court, “the ruse used by the officers, together with their insistence that they had to search his apartment to verify that a missing child was not there, rendered any consent on his part involuntary.”

With descriptions “that it was their job to do” and “they could not leave until they satisfied themselves that the missing child was not in Hernandez-Pineda’s apartment,” the district court concluded police “gave him no choice.”

The sense of urgency – that a little child could die – exacerbates the violation, which another U.S. District Court held invalidated consent.

But even if the consent had been voluntary, the search exceeded its scope when police looked through places too small for a child to hide, such as a drawer, the district court concluded in suppressing the evidence.

Seventh Circuit: U.W.'s Blocking 'Off Topic' Comments Violated First Amendment

Jay D. Jerde — 2025-08-18 00:00:00

Aug. 18, 2025 – The University of Wisconsin-Madison’s (UW) removal of Madeline Krasno’s comments on its Facebook and Instagram posts violated the First Amendment because its policies were not reasonable or content-neutral, a 2-1 majority on a U.S. Court of Appeals for the Seventh Circuit recently held in Krasno v. Mnookin, No. 22-3170 (Aug. 1, 2025).

“In short, [UW’s] inflexible and context-blind keyword filters do not reasonably further its ‘off-topic’ justification when there is no way to know before a post is created whether a given phrase will be on- or off-topic in relation to the post,” wrote Judge Doris L. Pryor, joined by Judge Ilana Diamond Rovner.

Disputing the majority’s analysis and a case it relied upon, Judge Frank H. Easterbrook dissented.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

“[M]y colleagues conclude that the move from wisc.edu or an alumni site to facebook.com flips the constitutional rule,” he wrote. “Instead of the editors being allowed to choose, the readers get to compel [UW] to include their submissions.”

Social Media

UW operates public Facebook and Instagram accounts with posts that speak as “the official voice of the University.”

The Office of University Communications oversees the accounts and operates under a policy that reserves “the right to remove any content for any reason,” including “off-topic” comments.

UW enforces these limitations both by manually removing comments based on employee discretion and by using a series of keyword filters that automatically hide comments with the prohibited words.

Krasno’s comments on UW’s posts brought up what she saw as the cruelty of UW’s primate research. She noticed that UW removed her comments. UW later restricted her Instagram account, “automatically hiding her comments.”

To get around keyword filters, Krasno began altering spellings to get her comments seen.

On Feb. 10, 2021, Krasno sued UW’s Board of Regents and leaders, alleging that UW violated her First Amendment rights through its censorship on UW comment threads.

The U.S. District Court for the Western District of Wisconsin granted summary judgment to UW, holding that comment threads to UW posts were nonpublic forums and UW’s policies complied with constitutionally required “reasonable and viewpoint neutral” standards.

Government Speech

UW’s comment threads “are government-controlled property” requiring an analysis of whether UW was speaking for itself – and the public would view it that way – or admitting “private speech on property it controls.”

The difference, which the majority illustrated by case law, is whether a government “curated” or “actively shaped” the message, or instead allowed individuals to speak on government property.

UW’s comment threads fit the latter category, the majority said, because UW didn’t actively select the comments, and automatic keyword filters only “passively” reviewed comments in a limited way, not by substance and, as Krasno demonstrated, could be circumvented.

The comments on social media, the majority explained, showed that they did not convey an official UW message but could be a rebuttal. The author’s name appears before the comment. UW has replied to comments, and social media offered a readily understood place for debate.

Because the majority found that UW “does not display the comments of others as its own speech, but instead opens its comment threads for private expression,” the next inquiry required evaluating Krasno’s constitutional claims by “the nature of the relevant forum.”

Forum

Government property, based on U.S. Supreme Court precedent, may be one of four types of forums. Traditional public forums and designated public forums are places one expects debate.

The other two forums are more private, permitting government greater flexibility to restrict speech. A limited public forum is “property ‘limited to use by certain groups’” or certain discussions. A nonpublic forum is a location of internal government operations.

In those latter forums, any restrictions must be reasonable and viewpoint neutral.

The majority fit comment threads to UW posts as a limited public forum.

The threads “are inherently compatible with expressive activity.” They offer a place for discussion, even though UW reserved the right to remove content.

Another court reached the same conclusion in People for the Ethical Treatment of Animals v. Tabak, 109 F.4th 627 (D.C. Cir. 2024), the majority explained while also distinguishing itself from the dissent.

Reasonable and Viewpoint Neutral

With the proper forum in view, the majority held that UW’s “off-topic rule as applied to Krasno” was “not viewpoint neutral, but instead discriminates against Krasno’s anti-animal testing and pro-animal rights viewpoint.”

The keyword filters include many “terms that one would reasonably expect to be used by individuals opposed to animal testing.” And UW admits that it “has hidden an on-topic comment by Krasno.”

The “off-topic” rule, the majority held, was “unconstitutional because it is unreasonable.” Such a rule requires definition. Instead, UW “has neither clarified what it means to be ‘off-topic’ nor provided ‘objective, workable standards’” for guidance.

Keyword filters themselves are unreasonable because they are “inflexible and unresponsive to context” and “the record contains no evidence that [UW] manually approves on-topic comments initially hidden by its filters,” the majority explained.

The majority concluded that UW’s “off-topic comment restriction, as currently written and enforced against Krasno, is unreasonable under the First Amendment.”

Irreconcilable

Judge Easterbrook took a different path. From On Wisconsin alumni magazine to letters to the editor, from a posted PDF of the magazine to a magazine website with clickable links – UW has all of them – and in the transformation from paper to digital, letters to the editor become “comments” or “posts, he explained.

The magazine has editors who choose what to print from authors or letters to the editor and guidelines to delegate the job. “A governmental body has the same right to speak as any private entity,” Judge Easterbrook wrote.

The next step arrives in this case, the equivalent of an alumni magazine on Facebook. They “use the Guidelines to select which comments will appear there,” Judge Easterbrook explained.

“This should not make a constitutional difference. [UW] remains the speaker and editor,” Easterbrook wrote. Facebook is privately controlled, which should justify allowing greater speech restrictions.

“Moving from a site under [UW’s] control to a private one (Facebook) should curtail the rights of the general public to compel [UW] to include what it deems anti-University speech.”

UW’s standards are like any open-ended guidelines a government may make, such as to curate an art museum or stock a public library, Judge Easterbrook explained.

Finally, the majority’s reliance on Tabak, Judge Easterbrook noted, ignores government speech precedent. Even worse, a case cited in Tabak “lacks precedential force, given the vacatur” and “has taken its lumps from academic commentators.”

None can be reconciled, Judge Easterbrook concluded, with fundamental U.S. Supreme Court cases.

Seventh Circuit: No ‘Manifest Necessity’ for Mistrial Requires Reversal

Jay D. Jerde — 2025-08-12 00:00:00

Aug. 12, 2025 – A mistrial based on a misunderstanding of Wisconsin’s State v. Denny led to unconstitutional double jeopardy, the U.S. Court of Appeals for the Seventh Circuit held recently in Mitchell D. Green v. Milwaukee County Circuit Court, No. 24-2980 (Aug. 1, 2025).

The reversal of the U.S. District Court for the Eastern District of Wisconsin resulted in Green receiving the requested writ of habeas corpus, freeing him from retrial.

“By relying on a mistake about what the law requires, the trial court failed to exercise sound discretion,” wrote Judge Frank H. Easterbrook for the unanimous panel that included Judges Joshua P. Kolar and Nancy L. Maldonado.

‘Denny Witness’

Green faced trial in Milwaukee County Circuit Court on a charge of trafficking a child and related offenses, based principally on the victim’s testimony that Green “had driven her to a hotel, where he forced her to engage in a sex act.”

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

Green’s first witness in his defense was his cousin, Jonathan Cousin, who said he “had driven the minor to the hotel,” although he didn’t know the purpose.

Green listed Cousin on his witness list five months before trial, and the prosecution didn’t object to Cousin’s testimony. The prosecution began cross-examination.

After lunch, however, the prosecutor argued that Cousin was “Denny witness” – a witness “who testifies that they rather than the defendant committed the crime” – requiring pretrial notice under State v. Denny, 120 Wis. 2d 614 (Ct. App. 1984).

The circuit court judge agreed with the prosecution. The need for notice and hearing on admissibility, the judge decided, could not be cured by jury instructions.

Green objected to the mistrial and filed a motion to dismiss. The circuit court denied the motion. On interlocutory appeal, the Wisconsin Court of Appeals, No. 2021AP267-CR (Mar. 22, 2022), held the mistrial erroneous, but the Wisconsin Supreme Court, 2023 WI 57, reversed.

‘Manifest Necessity’

A writ of habeas corpus – a test of whether detention is legal – under 28 U.S.C. section 2241(c)(3) results if the defendant is “in custody in violation of the Constitution.”

Green qualifies because he’s on a $1,500 bond, a sufficient loss of liberty to fall within the statute’s protection, Judge Easterbrook explained.

“Retrial following a mistrial declared over a defendant’s objection is proper only if the mistrial was supported by ‘manifest necessity,’” Judge Easterbrook said.

Absence of “manifest necessity” means the defendant’s retrial would violate the constitutional protection against double jeopardy – a second trial for the same crime.

To avoid that constitutional infirmity, a trial judge considering mistrial “must exercise ‘sound discretion’ and consider” the defendant’s interest in facing a verdict from the currently empaneled jury, “which might already be favorable to him.”

Pretrial Notice?

Green’s trial judge justified mistrial “on the assumption that Denny requires pretrial notice,” but “Denny establishes an admissibility standard [under Wisconsin law], not a notice requirement,” Judge Easterbrook explained.

“We cannot find a pretrial-notice requirement that was in effect before Green’s trial (or today, for that matter),” Judge Easterbrook began in documenting its absence.

“Apparently neither could the Attorney General of Wisconsin, the trial judge, the Court of Appeals of Wisconsin, the Supreme Court of Wisconsin, or the [federal] district court.

“Such a requirement might come from a statute, rule, or judicial decision, but no one has pointed to any of these sources, and our search did not reveal one.”

The Wisconsin Supreme Court’s decision affirming the mistrial did not endorse pretrial Denny disclosures, Judge Easterbrook explained.

The trial arose from “a procedural quirk,” Judge Easterbrook wrote. In Milwaukee County, it’s common for a case to be “‘spun’ or assigned to a new judge” based on that day’s scheduling requirements.

The new judge assumed that the previously assigned judge had ruled on the prosecution’s motion in limine, requesting to exclude Cousins’ testimony, from five months earlier – although no judge had.

The Wisconsin Supreme Court found that was enough, but it wasn’t for the federal court. “[W]e do not understand how ‘manifest necessity’ can be established by presuming something contrary to fact,” Judge Easterbrook said.

Notice of the “Denny witness” existed from that motion in limine, Judge Easterbrook said, among other common ways the issue appears before trial – such as a reminder to the judge or a discovery demand – but none of those other possibilities happened.

“Defense counsel need not comply with rulings never made,” Judge Easterbrook noted.

Alternatives

“So where was the ‘manifest necessity’ to end the trial?” Judge Easterbrook asked. “The jury did not hear inadmissible testimony,” the trial judge ruled the testimony admissible under Denny for retrial, and Green had Cousin on his witness list five months before trial.

“Even if there was an error that necessitated correction,” Judge Easterbrook said, other reasonable alternatives short of mistrial remained available.

A curative jury instruction, rejected by the trial judge, could have done the job.

Another alternative often used, Judge Easterbrook said, would have involved dismissing the jury for a hearing on the testimony “and if necessary giving the prosecutor more time to assemble rebuttal evidence.”

“Even now, the prosecution does not argue that a lack of pretrial notice affected its cross-examination of Cousin,” Judge Easterbrook explained. “A second trial therefore would be identical to the first.”

As a result, the Court of Appeals reversed the district court and remanded the case for the federal district court “to issue an unconditional writ.”

Supreme Court: Substantial Evidence Supports Reversal of Parole Revocation

Jay D. Jerde — 2025-07-29 00:00:00

July 29, 2025 – Although an administrative law judge (ALJ) found sufficient evidence of probation violations, a reversal satisfied the low bar of certiorari review, a 6-1 majority of the Wisconsin Supreme Court concluded in State ex rel. Department of Corrections, Division of Community Corrections (DOC) v. Brian Hayes, 2025 WI 35 (July 3, 2025).

“In sum, we conclude that under the certiorari standard of review, the administrator’s decision must be upheld because it is supported by substantial evidence and was made according to law,” Justice Ann Walsh Bradley wrote in the majority opinion.

Chief Justice Jill J. Karofsky and Justices Rebecca Frank Dallet, Brian Hagedorn, and Janet C. Protasiewicz joined Justice A.W. Bradley’s opinion.

Jay D. Jerde, Mitchell Hamline 2006, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

Justice Annette Kingsland Zieger agreed that substantial evidence supported the administrator’s decision but disagreed with the majority’s analysis of the second issue, she explained in her concurrence. She didn’t join the majority opinion.

Looking at the evidence together, instead of separately as the majority analyzed it, Justice Rebecca Grassl Bradley dissented.

“No reasonable factfinder could conclude DOC failed to show by a preponderance of the evidence that [Keyo] Sellers trespassed on K.A.B.’s property,” Justice R.G. Bradley wrote.

“Video evidence corroborated by multiple individuals familiar with Sellers’[s] appearance and posture identified him in the video. Considering his presence at the victim’s home a week after the sexual assault puts the evidence of the assault in its proper context.”

Alleged Parole Violations

DOC’s alleged parole violations tell a story: Sellers entered K.A.B.’s home without her consent, sexually assaulted her, took $30 from her, and later trespassed when looking in from her porch windows.

Before the ALJ, the “DOC presented live testimony from three witnesses” – but not the sexual assault victim, K.A.B.

The police officer who investigated the sexual assault and burglary testified that K.A.B. installed security cameras after the assault, which “almost a week to the day of the original assault” recorded a man on the porch looking in her living room window.

Facial recognition software used by police led the officer to Sellers. Although K.A.B. couldn’t be sure the man on the video was Sellers, his ex-wife was “absolutely sure.”

The crime lab analyst testified that the DNA from the sexual assault “was ‘consistent’ with Sellers’[s] profile” – but it also could match, statistically, 389 African-American Milwaukee residents.

Sellers’s probation agent testified about her meeting with K.A.B., whom she said she didn’t subpoena to reduce K.A.B.’s trauma, especially because “she can’t 100% ID her assailant.”

The agent was 99% sure that Sellers appeared in the video “based on his appearance, based on his walk, and based on the fact that I’ve supervised him, you know, for almost 18 months.”

Sellers didn’t testify, relying only on a written statement that said he had never been on or in K.A.B.’s property, was not the man on the video, and didn’t sexually assault anyone.

Based on this hearing evidence, the ALJ revoked Sellers’s probation because a preponderance of the evidence supported all four allegations.

Sellers appealed to Division of Hearings and Appeals (DHA) administrator Brian Hayes, who faulted the ALJ for relying on K.A.B.’s hearsay statements that were both inadmissible under the rules of evidence and prevented Sellers from confronting the witness.

Without K.A.B.’s live testimony, Hayes saw no case. He reversed the ALJ.

Before Milwaukee County Circuit Court, the DOC appealed through certiorari review. The circuit court reversed DHA administrator Hayes, but the Court of Appeals disagreed.

Substantial Evidence

The scope of certiorari review is limited to whether the administrator’s decision was within his or her jurisdiction; according to law; not “arbitrary, oppressive or unreasonable and represented his will and not his judgment”; and the evidence was such that the administrator could reasonably conclude as he did.

The DOC first argued that “the administrator erred by ignoring non-hearsay evidence that supports revocation” – the DNA evidence and security camera footage – the administrator’s decision lacked substantial evidence.

Substantial evidence is a low standard, merely “evidence of such convincing power that reasonable persons could reach the same decision.”

“Even if there is evidence supporting a contrary determination, we must affirm the administrator’s decision if substantial evidence supports the decision,” the majority explained.

The majority saw “that the DNA evidence was far from airtight” and that “it was not unreasonable to conclude that the footage on its own did not establish every element of the alleged violation or tie the person in the footage to the earlier offenses.”

Nor was it unreasonable for administrator Hayes to conclude the necessity of K.A.B.’s testimony for proof, the majority agreed with the Court of Appeals. In total, substantial evidence supported the administrator Hayes.

Hearsay

The DOC’s second challenge claimed administrator Hayes wrongfully excluded hearsay evidence when the record showed “good cause exists” to allow it over Sellers’ due process rights – what the majority styled under the certiorari review prong “according to law.”

Although a probationer receives fewer legal rights than a defendant under criminal process, the right to confront witnesses is a minimum necessary component of due process.

Good cause comes in two ways, according to State ex rel. Simpson v. Schwarz, 2002 WI App 7.

It can result from balancing the need for the probationer to cross-examine the witness against the State’s interest in denying confrontation, such as the evidence’s reliability or barriers to live testimony.

The majority saw no barriers to K.A.B.’s live testimony. Only the probation officer, not K.A.B. herself, raised the concern of retraumatization. No testimony indicates any difficulty or expense that K.A.B. would have incurred.

Administrator Hayes could reasonably conclude that K.A.B. faced no barriers, explaining her absence from testifying, the majority concluded.

Good cause also results when “the evidence offered in lieu of an adverse witness’s live testimony would be admissible under the Wisconsin Rules of Evidence.”

DOC argued that the residual hearsay exception, Wis. Stat. section 908.03(24), would allow K.A.B.’s hearsay statements because non-hearsay evidence corroborated them.

Noting that “the non-hearsay evidence is not particularly strong,” the majority, using the standard of review for admission of evidence, concluded, “we cannot say that rejecting the residual exception here was an erroneous exercise in discretion.”

Justice Ziegler’s concurrence, however, explained that the DOC’s second argument also fit under the certiorari prong of “arbitrary, oppressive, or unreasonable and represented [his] will and not [his] judgment.” She disagreed with the majority’s analysis of this second issue.

‘Put Two and Two Together’

Non-hearsay evidence proves the DOC’s allegations, Justice R.G. Bradley argued in her dissent. “Only by ignoring non-hearsay evidence supporting revocation could the administrator reasonably decide not to revoke Sellers’[s] probation.”

“The non-hearsay evidence supporting DOC’s first two allegations … is enough to reverse the administrator’s decision,” Justice R.G. Bradley wrote. “The evidence supporting allegation four … refutes Sellers’[s] claim that he had never been to the victim’s residence.”

“K.A.B.’s hearsay testimony, however, is not necessary to put two and two together.”

The video evidence, supported by three separate witnesses and high percentages of similarity to Sellers according to facial recognition software, shows Sellers trespassed – enough to affirm revocation, Justice R.G. Bradley said.

Although the administrator’s review was de novo, it still “must encompass all of the evidence,” Justice R.G. Bradley emphasized.

“Unlike the administrator, the majority discusses both the DNA evidence as well as the video footage, but examines the evidence piecemeal rather than collectively,” Justice R.G. Bradley explained.

“No reasonable factfinder could conclude DOC failed to prove Sellers invaded the victim’s home, sexually assaulted her, and one week later trespassed on her property,” Justice R.G. Bradley summarized. “The administrator’s decision to the contrary was not supported by substantial evidence.”

She doubted the case worthy for review. It had no novel issues of law. The majority used the same precedent relied upon by the Court of Appeals and reached the same result as the lower court’s non-precedential, per curiam opinion. The Supreme Court “should have dismissed the petition as improvidently granted.”