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.

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 pr​ocess, 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.”

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.