Aug. 13, 2025 – Next month, the Wisconsin Supreme Court begins hearing oral arguments for the 2025-26 term. While the term’s docket has yet to be filled, accepted cases scheduled for oral arguments in the next few months raise big issues.

The Court will decide the degree of privacy in digital data, whether the Wisconsin Consumer Act applies to residential leases, and the story of a 12-year-old taken out of class and into a police interrogation without a Miranda warning.

In total, of the 11 cases on the most recent table of pending cases, three are criminal, including two cases addressing expectations of privacy in digital data, three mental health cases, and five civil cases.

Unknowns

Even with this first batch of accepted cases, a lot of unknowns remain. One of the bigger questions for Matthew M. Fernholz of Cramer Multhauf LLP in Waukesha is whether the Court will pick up more cases than the historically low numbers in the past two terms.

Last term, the Court addressed 24 cases; the term before, it was 14. Earlier terms often included 50 cases or more.

Although the Court has a new member, Justice Susan Crawford replacing retired Justice Ann Walsh Bradley, the liberal-conservative split remains the same.

“We don’t know exactly how Judge Crawford is going to rule on some of these cases,” Fernholz said, “but if the court is going to be limiting the bulk of its docket to these big, high-profile political disputes, those are going to continue to fall along ideological divisions.”

With the 2026 elections still far away, maybe there won’t be as many political cases coming up, Fernholz said.

What would fill that gap? “Are they going to get back to normality of taking more business law cases, more criminal cases? … They are just not doing criminal law cases,” which once took half the docket, Fernholz said.

The Wisconsin Consumer Law and privacy cases on the current docket are “cutting edge issues,” Fernholz said.

Big Cases

Here are some of the big cases scheduled for oral arguments.

State v. K.R.C. (2023AP2102) arose when a 12-year-old child named Kevin was taken out of class to the principal’s office. The principal sent him to the school resource officer’s office – where two police officers were waiting.

One stood at the door while the other “interrogated” the child, who never received a Miranda warning.

The small room had a sign that advised anyone in the room was “here voluntarily unless told otherwise. You … can leave at any time!” It’s unknown whether Kevin got the message. A second meeting, including school officials, happened in a larger space.

Both the circuit court and the Court of Appeals determined that “a reasonable person” would have felt free to leave and that Kevin’s statements were voluntary, although both courts found it a “close case.”

Kevin, however, argues that the “reasonable person” standard needs to be calibrated to what a 12-year-old would find reasonable, something the Supreme Court has not decided, and that he was in police custody.

He argues his statements came involuntarily because of “coercive police tactics.”

The Attorney General’s office, in responding to the petition for review, argued the law is decided and the case no more than an attempt at “error correction.”

Koble Investments v. Marquardt (2022AP182) appeals a Court of Appeals decision that applied the 1971 Wisconsin Consumer Act to landlord enforcement of a residential lease because a tenant fits within “customer” under Wis. Stat. section 427.104(1).

Elicia Marquardt raised the defense in response to a five-day eviction notice during the state moratorium on evictions during the pandemic.

Koble Investments argues that the “comprehensive statutory scheme” in Wis. Stat. chapter 704 and Wisconsin Department of Agriculture, Trade and Consumer Protection regulations demonstrate that these, and not the WCA, cover the landlord-tenant relationship.

A second issue involves whether a lease’s failure to include required domestic abuse protections against eviction required by Wis. Stat. section 704.14, but merely incorporates them by reference, violates statute and consumer protection regulations.

The case has drawn amici including – from the Wisconsin Builders Association, Wisconsin Realtors Association, and carpenters for the landlord – and for the tenant, from civil legal action groups.

Digital Privacy

A pair of cases about reasonable expectations of privacy in the digital world will be argued together on Sept. 2.

In State v. Gasper (2023AP2319), Michael Gasper argues that he had a reasonable expectation of privacy in his Snapchat account based on U.S. Supreme Court precedent. He seeks to reverse the Court of Appeal’s denial of the suppression motion granted in circuit court.

The “private search” exception to the Fourth Amendment and “good faith” exception to the Exclusionary Rule, Gasper argues, do not justify the search.

Snapchat’s software filter detected in Gasper’s account a video of suspected child sexual abuse material (SCSAM) and reported it to the Department of Justice (DOJ), which screens such tips and determines whether to forward them to the relevant law enforcement agency.

While it’s standard for a DOJ agent to review the tip and forward it to local law enforcement, Gasper argues that that both are presumptively unreasonable warrantless searches.

In the companion case of State v. Rauch Sharak (2024AP469-CR), which the Supreme Court accepted on certification from the Court of Appeals, Andreas W. Rauch Sharak argues, in part, that Google, Inc. became a government agent by its digital searches that led to a tip of SCSAM in his Google Photos account. He seeks suppression of the evidence.

The DOJ argues that no reasonable expectation of privacy existed based on Snapchat’s and Google’s Terms of Service.

Both cases have drawn amici, including digital privacy groups, criminal defense attorneys, and the American Civil Liberties Union.

Google LLC, Snap LLC, and Microsoft Corp. submitted amicus briefs to discuss the relationship between Terms of Service and the Fourth Amendment.

Involuntary Medication

In State v. J.D.B. (2023AP715), the defendant was charged with battery to a law enforcement officer after he punched an officer in the face. Police had arrived at the home because the defendant had threatened to shoot people in the house.

J.D.B. was found incompetent and committed for treatment. After several months, the circuit court ordered involuntary medication under U.S. v. Sell, which allows the practice when important government interests are at stake.

The Attorney General argues that prosecution met all four Sell factors and seeks to reverse the Court of Appeals.

J.D.B.’s public defenders contend otherwise and argue that the battery arose out of a unique mental health crisis at the age of 19 with no prior criminal history, reducing the government’s interest.

The Wisconsin Department of Health submitted a non-party brief and the Wisconsin Psychiatric Association submitted an amicus brief in support of J.D.B.

State v. N.K.B. (2023AP722) addresses whether Wis. Stat. section 971.14 allows a committing court to order involuntary medication of a dangerous person committed at Mendota Mental Health Institute in the same manner as if the patient were committed under Wis. Stat. ch. 980 for sexually violent persons.

The Court of Appeals reversed the involuntary medication order, arguing the committing court lacked authority to do so.

The Wisconsin State Public Defender submitted an amicus brief arguing that the statute did not authorize the involuntary medication orders.

Tribal Sovereign Immunity

Legend Lake Property Owners Association, Inc. v. Keshena (2022AP937) addresses tribal sovereign immunity and restrictive covenants that state the purchaser waives sovereign immunity.

The Menominee Indian Tribe of Wisconsin is among tribal entities terminated in the 1950s. A successor Menominee corporation sold 5,000 acres for the Legend Lake development. The development includes restrictive covenants designed to maintain Association controls.

Congress restored recognition of the Menominee in 1973, allowing the federal government to hold in trust land owned by tribal members. The Menominee Restoration Act stated it preserved existing rights.

Guy Keshena, a tribal member, purchased 33 parcels in the Legend Lake development on behalf of the tribe with the intent to convey the parcels to the federal government as trust land.

The Association contends that the tribe has waived its sovereign immunity because Keshena owned the property in his capacity as an individual tribal member, and that the Menominee Restoration Act abrogates tribal sovereign immunity.

The Association also claims that sovereign immunity exceptions for immovable property or in rem exceptions may apply.

Keshena and the tribe also argue that the portions of the covenants still at issue cannot be severed from other provisions whose legal status federal litigation has determined and that the United States holding the land in trust is a necessary party to the case, justifying dismissal.

The Supreme Court is hearing the case on certification as requested by the Court of Appeals. The circuit court found in favor of Keshena.