Attorney General

Funds — Settlements — “Uncommitted” Funds — General Fund

Wisconsin State Legislature v. Kaul, 2026 WI 28 (filed 10 July 2026)

HOLDING: The Wisconsin attorney general complies with Wis. Stat. section 165.10 by depositing uncommitted settlement funds into the general fund and crediting them to one or more program appropriations.

SUMMARY: This case involves the disposition of settlement funds obtained in civil enforcement actions brought by the attorney general. The settlements might include money earmarked for specific purposes, such as restitution or attorney fees. But they also might include so-called uncommitted funds, “that is, money that is not designated for a particular purpose by the settlement and is instead left to the attorney general’s discretion” (¶ 1).

In a majority opinion by Justice Dallet, the Wisconsin Supreme Court reversed the Wisconsin Court of Appeals, holding that “when the attorney general deposits uncommitted settlement funds into the general fund and credits them to one or more program appropriations,” the attorney general is complying with the directive in Wis. Stat. section 165.10 to “deposit all settlement funds into the general fund” (¶ 2). The court dismissed as improvidently granted a second issue, whether the services rendered by the Department of Justice personnel in litigating a civil action on behalf of the state or an executive branch agency constitutes “proceeds from services” under Wis. Stat. section 20.455(3)(g).

The majority explained how revenues are placed in the state treasury and differentiated between “two key terms used in the budget statutes, ‘deposit’ and ‘credit’” (¶¶ 3-9). The underlying dispute arose when the Wisconsin Legislature insisted that Wis. Stat. section 165.10 required attorney general Josh Kaul to deposit all uncommitted settlement funds into the general fund and credit them to the general purposes revenues of the general fund (see ¶10). The circuit court ruled that Kaul complied with Wis. Stat. section 165.10 by depositing the settlement funds into the general fund; the statute did not require its designation as general purposes revenue. The legislature appealed, and the court of appeals reversed. In turn, the supreme court reversed the court of appeals.

“Section 165.10, entitled ‘Deposit of settlement funds,’ provides in its entirety that ‘[t]he attorney general shall deposit all settlement funds into the general fund’” (¶ 16). “This simple, declarative sentence identifies a class of state money (‘settlement funds’) and imposes a single, narrow restriction on where that money must be deposited (into the state treasury, specifically ‘the general fund’). See id. It says nothing whatsoever about where that money may or must be credited after it is deposited. Further, the ‘general fund,’ as explained above, consists of ‘[a]ll moneys in the state treasury not specifically designated in any statute as belonging to any other funds.’ See § 25.20. In other words, everything except money belonging to ‘segregated funds’ falls under the broad umbrella of the ‘general fund’” (¶ 17).

“Accordingly, like the circuit court, we decline to read into § 165.10 atextual restrictions on where deposits to the general fund may be credited. Therefore, we hold that the attorney general is complying with § 165.10 when he deposits uncommitted settlement funds in the general fund, even if those settlement funds are credited to a specific program appropriation within the general fund” (¶ 19).

Justice Hagedorn concurred in part and dissented in part. “I agree with the majority that the court of appeals misconstrued Wis. Stat. § 165.10. However, I strongly disagree with the court’s failure to decide whether the monies received from settlements in civil cases litigated by the Department of Justice constitute ‘proceeds from services’ under Wis. Stat. § 20.455(3)(g)” (¶ 23).

Justice Bradley filed a dissent, which Justice Ziegler joined with respect to paragraphs 30-87. The dissent focused on a perceived political bias by the majority in this and other cases.

Contracts

Residential Leases — Nonpayment of Rent — Wisconsin Consumer Act — Attorney Fees

Koble Invs. v. Marquardt, 2026 WI 19 (filed June 5, 2026)

HOLDING: The residential lease at issue was not subject to the Wisconsin Consumer Act (WCA).

SUMMARY: Koble, a landlord, sent Marquardt a notice terminating her residential lease for nonpayment of rent. Marquardt counterclaimed, alleging that Koble violated provisions of the WCA and that the lease was void and unenforceable under several other provisions because it lacked protection for domestic abuse victims as required by Wis. Stat. section 704.14. Koble then moved to dismiss its eviction claim, admitting it had served her during a period prohibited by a COVID-19 moratorium provision. The counterclaims remained. Later, Marquardt’s lawyer moved to withdraw on multiple grounds but also sought to intervene and to recover attorney fees. The circuit court ruled that Marquardt was not entitled to recover any damages and that her former attorney had no interest in the action. (He was allowed to intervene solely to handle the appeal.) The court of appeals reversed on several grounds, including its conclusion that a residential lease is a “consumer transaction” governed by the WCA.

The supreme court reversed in a majority opinion by Justice Bradley, joined by Chief Justice Karofsky and Justice Ziegler, Justice Dallet, Justice Hagedorn, and Justice Protasiewicz. It held “that Wis. Stat. § 427.104 does not govern a residential lease under which rent is payable on a monthly basis because it is not an ‘agreement to defer payment.’ Additionally, even if the parties’ lease were void and unenforceable, Marquardt failed to show Koble’s violation of Wis. Stat. § 704.44(10) and Wis. Admin. Code § ATCP 134.08(10) caused her to suffer any pecuniary loss. Accordingly, neither Marquardt nor her attorney are entitled to recover any damages, costs, or attorney fees under either Wis. Stat. § 100.20(5) or Wis. Stat. § 425.308(1)” (¶ 4).

The “principal issue” was whether Wis. Stat. section 427.104 (part of the WCA) applies to a residential lease under which rent is payable monthly (¶ 5). The court held that it “need not determine whether Marquardt’s residential lease is a ‘consumer transaction’ under Wis. Stat. § 427.104(1) because a residential lease under which rent is payable monthly is not ‘an agreement to defer payment’” (¶ 8).

“Under the plain meaning of § 427.104(1), an agreement to ‘defer payment’ is an agreement to delay or put off the discharge of a debt or an obligation. A tenant’s obligation to pay rent under a typical residential lease accrues monthly; therefore, a tenant does not owe all future monthly rent payments upon execution of the lease. Upon signing a residential lease under which rent is payable on a monthly basis, the tenant and the landlord have not agreed to defer payment of rent. The court of appeals erred in concluding otherwise” (¶ 8). In the five decades since the WCA’s enactment, not a single case applied the WCA to a residential lease (see ¶ 20).

“Chapter 704 of the Wisconsin Statutes governs residential leases; Wis. Stat. § 427.104 does not.” Neither Marquardt nor her attorney were “entitled to recover attorney fees or costs under Wis. Stat. § 425.308, which allows a customer to recover costs, expenses, and reasonable attorney fees in connection with the successful prosecution or defense of an action under the WCA” (¶ 22).

Nor was Marquardt entitled to damages for the absence in the lease of the required notice regarding domestic abuse protections. The court declined to decide whether the lease lacked the required language. “Even if the lease were void and unenforceable, Marquardt cannot recover any damages under Wis. Stat. § 100.20(5)” because she did not establish any pecuniary loss (¶ 25), and her lawyer was not entitled to recover attorney fees (see ¶ 30).

Justice Bradley also filed a separate concurring opinion, joined by Justice Ziegler. The concurrence objected to the “narrow disposition” on the WCA’s application to residential leases and would have preferred a broader holding that clearly placed such leases outside the WCA (¶ 32).

Justice Crawford filed a concurring opinion. “The court decides this landlord-tenant dispute despite a fundamental defect in the appeal: there is no tenant. The tenant, Elicia Marquardt, whose name appears in the case caption, did not file this appeal. The majority adjudicates her rights in her absence. The appeal was filed solely by Marquardt’s former attorney, James Miller, without her knowledge or consent, apparently seeking a decision that would require Koble Investments (Koble) to pay his attorney’s fees. Miller lacked standing to appeal the issues presented here and in the court of appeals. For this reason alone, I would reverse the decision of the court of appeals without reaching the merits of the landlord-tenant issues presented by Koble and Miller, important though they may be” (¶ 41).

Elections

NVE Forms — Public Records — Mandamus

Wisconsin Voter All. v. Secord, 2026 WI 27 (filed July 7, 2026)

HOLDING: Notice of Voting Eligibility (NVE) forms are “closed” records under Wis. Stat. section 54.75.

SUMMARY: When a person subject to a guardianship is found incompetent to vote, courts notify election officials through an NVE form. The Wisconsin Voter Alliance filed a public records request with county officials and brought this mandamus action seeking disclosure of completed forms. The circuit court ruled that the forms should not be released, and the court of appeals affirmed.

The supreme court affirmed in a majority opinion by Justice Protasiewicz. The court held that the NVE forms are “closed” by statute (¶ 2). The opinion discussed the background of the NVE forms, including their content and role in elections. The court reiterated that “Wisconsin law presumes open access to public records” (¶ 13). Mandamus actions are the means by which the public records law is enforced (see ¶ 16), but the cases seldom address the technical elements of mandamus (see ¶ 20).

The supreme court clarified that a “court should consider only whether the requester has a right to the records. To determine whether a requester has a right to the records, a court analyzes whether responsive records exist, whether statutory or common law exceptions apply, and whether the public policy balancing test weighs toward disclosure. See supra ¶ 14. Our public records statute requires nothing more” (¶ 18). Analyzing the other elements of mandamus would risk “undermining public records law” (¶ 22). (The other elements are addressed at paragraphs 23-25.)

The court held that the plaintiff “does not have a legal right to the NVE forms requested here because those records are ‘closed’ under Wis. Stat. § 54.75” (¶ 30). “On its face, this provision protects court records in chapter 54 cases. It says that ‘court records’ are ‘closed.’ Id. Thus, the legislature communicated its intention to keep some chapter 54 records private” (¶ 33). Moreover, the NVE forms fell within this provision because “the legislature contemplated that even the fact that a person was found incompetent should be protected. We will not interpret the preceding sentence of § 54.75 to allow any public records requester access to a form that gives away that very fact” (¶ 41). The court rejected several arguments that opposed this construction.

Justice Ziegler, joined by Justice Bradley, dissented “because, unlike the majority’s determination that these forms are shielded from this public records request, I conclude that NVEs cannot be pertinent to the finding of incompetency and should be released to the requestor” (¶ 49).

Equal Protection

Grant Programs — Diversity

Rabiebna v. Higher Educ. Aids Bd., 2026 WI 20 (filed June 18, 2026)

HOLDING: Taxpayers had standing to challenge the constitutionality of a grant program, which the court held to be unconstitutional under the Equal Protection Clause.

SUMMARY: The grant program in this case provided financial assistance to students in need because of their race, national origin, ancestry, or alienage. The Higher Educational Aids Board (HEAB) administered the program. The plaintiff taxpayers challenged the grant program’s constitutionality. The circuit court upheld the statute, and the taxpayers appealed. While the appeal was pending, the U.S. Supreme Court issued its decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023) (“SFFA”).

Applying SFFA, the Wisconsin Court of Appeals reversed the circuit court, “holding that attaining diversity in higher education is no longer a compelling interest, and that the Grant Program was not narrowly tailored to fulfill those ends.” “[The] HEAB appealed asserting that the legislature has a compelling interest in equalizing education opportunities for certain students of specifically identified racial, national origin, ancestry, or alienage-based groups in Wisconsin’s private and technical colleges.” The HEAB also asserted that the taxpayers lacked standing because they had not demonstrated a specified pecuniary injury (¶ 3).

The supreme court affirmed, concluding that “the Taxpayers have standing and that the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment. Accordingly, we affirm the court of appeals’ decision that the statute is unconstitutional and conclude that HEAB is enjoined from operating the Grant Program” (¶ 4). Justice Ziegler wrote the majority opinion, in which she was joined by Justice Bradley, Justice Hagedorn, and Justice Protasiewicz; Chief Justice Karofsky along with Justice Dallet and Justice Crawford joined in paragraphs 17-20.

The majority opinion explained the grant program and its administration by the HEAB. In light of SFFA, two issues were before the supreme court — the taxpayers’ standing and (assuming) the program’s constitutionality (see ¶ 14). The court held “(1) the Taxpayers have standing, and (2) the Grant Program violates the Equal Protection Clause of the Fourteenth Amendment” (¶ 115).

The taxpayers had standing because they “allege that public funds are being expended pursuant to an unconstitutional statute” (¶ 20).

As to the merits, the court applied a two-step strict-scrutiny analysis. First, any racial classification must further “compelling governmental interests.” Second, “it must be ‘narrowly tailored’” (¶ 25). The court summarized SFFA as follows: “In the context of ‘race-based admissions,’ the U.S. Supreme Court concluded that a university’s race-based admissions schemes ‘must comply with strict scrutiny, they may never use race as a stereotype or negative, and — at some point — they must end.’ …The colleges’ admissions programs failed in all three respects” (¶ 34) (citation omitted).

Turning to the record here, the court held that “[the] HEAB has failed to demonstrate that the legislature’s goals of increasing diversity and equalizing educational opportunities for certain students are compelling in this instance” (¶ 42). The court discussed the failure in some detail.

The court next turned to the “second step.” “Regardless of whether a compelling interest might exist, the Grant Program still fails because the statute is not narrowly tailored. Strict scrutiny’s second step requires the court to analyze whether the means chosen are narrowly tailored to achieve the legislature’s ends” (¶ 52). “Under the Grant Program, race is not but one factor in a ‘highly individualized, holistic review’; race is the only factor” (¶ 56).

Chief Justice Karofsky, joined by Justice Crawford, concurred in the mandate. They said that although the court is bound by SFFA, they lamented the “catastrophic impact of racial disparities in Wisconsin” (¶ 69).

Justice Dallet, joined by Chief Justice Karofsky and Justice Crawford, also concurred. They objected to the majority’s “piecemeal” approach to the HEAB’s assertion of the compelling state interest in the program (¶ 89).

Indian Tribes

Tribal Sovereignty — Immunity from Suit — Exceptions

Legend Lake Prop. Owners Ass’n, v. Keshena, 2026 WI 21 (filed June 23, 2026)

HOLDING: A lawsuit against an Indian tribe was barred by sovereign immunity.

SUMMARY: This case asked the court “to resolve a dispute about the scope of tribal sovereign immunity from suit in a Wisconsin state court. A group of private landowners — the Legend Lake Property Owners Association (the Association) — brought suit in Wisconsin state court against the Menominee Indian Tribe of Wisconsin (the Tribe) and one of its members, Guy Keshena, in an effort to restrict use of land historically inhabited by the Tribe and now held in trust by the federal government on the Tribe’s behalf. The Tribe and Keshena assert that tribal sovereign immunity bars the suit” (¶ 2). The circuit court dismissed the complaint, and the court of appeals certified the case to the supreme court.

The majority opinion, written by Justice Crawford, held that both the Tribe and Keshena were immune from suit on grounds of sovereign immunity (see ¶ 3). The opinion provides an overview of the history of the Menominee Indians and the lands since the mid-19th century, including the “Termination Act” (1954) and the restoration of the Tribe’s rights through the Restoration Act (1973), which “reinstated all rights and privileges of the tribe or its members under Federal treaty, statute, or otherwise which may have been diminished or lost pursuant to [the Termination Act].”

This lawsuit was filed by the Association in 2018 to declare that earlier (2009) restrictive covenants were valid and enforceable, that they applied to various lots later acquired (by Keshena) for the Tribe, and that any later transfers violating the 2009 restrictive covenants were null and void (see ¶ 8). Around the same time, the federal Bureau of Indian Affairs (BIA), acting under the Restoration Act, declared its intent to accept the “Keshena lots” in trust. A federal court later upheld the BIA’s actions.

“At bottom, the Tribe and Keshena want this lawsuit dismissed. For its part, the Association argues that neither sovereign immunity nor the United States’ absence prevent this suit from proceeding” (¶ 14). The court rejected the Association’s contentions that Congress had abrogated the Tribe’s sovereignty through the Restoration Act and that the Tribe had waived its immunity (see ¶ 18). Congress had not made “unmistakably clear” any intention to abrogate immunity, as required by federal law (¶ 26).

Nor did the Tribe waive its sovereign immunity by any of its later actions, which included Keshena’s actions (see ¶ 31). “The Tribe did not purchase the lots and never accepted any deeds containing the immunity waiver the Association seeks to enforce against it. The Association identifies no other agreement or statements by the Tribe expressly waiving its sovereign immunity. Nor did Keshena have the actual authority or apparent authority to waive the Tribe’s sovereign immunity” (¶ 35).

The supreme court also rejected a so-called in rem exception to sovereign immunity. It agreed that an act of Congress was needed for such an exception (see ¶ 36). The court also rejected what was termed an “immovable property exception,” reviewing the scant authority in support (¶¶ 43, 48).

Finally, the court applied the Tribe’s sovereign immunity to the claims against Keshena (see ¶ 52).

Justice Bradley dissented, joined by Justice Ziegler, commenting especially on the immovable-property-exception contention.

Justice Hagedorn dissented, joined by Justice Ziegler and Justice Bradley. “The long and short of it is that the owner of the lots — the United States government — is not a party to this case. Therefore, we should not decide these weighty and consequential legal questions without the owner of the property having its day in court” (¶ 72). The dissent charted the “messy procedural waters” that flow through this litigation and a “more prudent path” that could have been taken (¶¶ 73, 82).

Insurance

Homeowner’s Policy — Construction Defects — Exclusions — Fungi Damage

Cincinnati Ins. Co. v. Ropicky, 2026 WI 25 (filed July 7, 2026)

HOLDING: A homeowner’s insurance policy might provide coverage for rainwater damage to a home despite the policy’s “ensuing loss” language and a fungi exclusion.

SUMMARY: Rainwater flooded and badly damaged Ropicky’s home. His homeowner’s insurance carrier paid him substantially less than the cost of the damage, concluding that the harm was caused by construction defects that allowed rainwater to enter the home for years. Litigation followed, and the circuit court granted summary judgment in favor of the insurer. The court of appeals reversed, concluding that disputed issues of fact precluded summary judgment.

The supreme court affirmed in a majority opinion by Justice Hagedorn. The opinion addressed three issues.

First, “any physical loss caused by rainwater constitutes an ensuing loss within the meaning of the policy” (¶ 3). As to coverage, the court construed the policy’s exclusions for construction defects and fungi (see ¶ 49). The supreme court discussed Arnold v. Cincinnati Insurance Co., 2004 WI App 195, a case “parallel” to this one (¶ 58). The insurer’s position in this case “runs headlong into Arnold’s holding and reasoning” (¶ 62). The supreme court adopted Arnold because it was “persuasive” and avoided “a real risk of upsetting settled expectations of the parties to this insurance contract” (¶¶ 62-63).

“Arnold adopts a reading of the ensuing loss language that is more consistent with normal language: that to ensue means to follow as a ‘chance, likely, or necessary consequence.’ The policy language simply does not suggest a narrow, proximate-cause like meaning… [which] requires not only that there be an ‘ensuing loss,’ but that there be a cause in the chain so unique it breaks the causal chain, and only then are the losses covered. That is not the best reading of the policy language. For these reasons, we adopt the rule from Arnold” (¶ 66).

Second, the supreme court also clarified “the proper way to read the Fungi Exclusion and Fungi Additional Coverage provisions” (¶ 68). “First, we ask whether fungi caused the damages. If so, then the exclusion applies and such damages are presumptively not covered. But then we ask if an exception to the exclusion applies. In this case, the answer is yes. Ropicky purchased additional coverage restoring coverage up to $10,000. This operates like other exclusions and exceptions to those exclusions” (¶ 74).

Third, disputed issues of fact precluded summary judgment, namely, whether a construction defect existed and how much of the loss that followed was caused by such defects (see ¶¶ 5, 78). Such issues are fact intensive.

Justice Ziegler dissented, joined by Justice Bradley and Justice Crawford. Their principal contention was that the majority failed to properly apply or clarify Arnold (see ¶ 90). “The unfortunate reality is that Wisconsin homeowners now may see their insurance costs skyrocket as coverage is expanded to encompass the homebuilder’s faulty workmanship” (¶ 91).

Protective Placements

Protective Placements — Wis. Stat. chapter 55 — Mootness — Standard of Review

Racine Cnty. v. R.P.L., 2026 WI 26 (filed July 7, 2026)

HOLDINGS: (1) An appeal from an order continuing placement was not moot. (2) Applying the proper standard of review, evidence supported the continuation of the placement.

SUMMARY: The individual, for whom the court used the pseudonym Robert, was in his mid-60s and had a history of stroke and various other disorders. In 2023, he was found unconscious, and a protective placement under Wis. Stat. section 55.08 was ordered. In a 2024 annual review, Robert’s guardian recommended continuing the protective placement. Robert opposed it, a hearing was held, and the circuit court ordered the placement to continue. The court of appeals affirmed.

The supreme court affirmed in a majority opinion by Justice Crawford. First, the court held that this appeal was not moot despite a 2025 order continuing the protective placement, which Robert did not appeal. “The financial consequences to Robert of the order continuing protective placement in 2024 did not disappear when the court ordered the continuation of protective placement in 2025. Robert is ‘liable for the cost of the care, maintenance, services and supplies’ under Wis. Stat. § 46.10(2), including the costs of his care incurred while the 2024 order was in effect. Over Robert’s objection, his home was sold to generate assets to cover those costs, in part. Robert’s liability for the costs related to his protective placement is a collateral consequence of the order extending the protective placement” (¶ 13).

Second, the supreme court held that the circuit court’s findings were not “clearly erroneous” and that sufficient evidence supported its order for a protective placement under section 55.08 (¶ 16). The court clarified that the appellate standard of review presents a mixed question of fact and law. “A circuit court’s findings of fact are not clearly erroneous unless ‘the finding is against the great weight and clear preponderance of the evidence’” (¶ 15). The supreme court split over the application of the standard to the record on appeal, highlighting several “conflicts” in an expert’s testimony, who was the only witness (¶ 28).

Justice Hagedorn, joined by Justice Crawford, concurred. The issue involving the proper standard of review had been raised by an amicus, not the parties. They wrote separately “to explain why this court should reexamine this issue in a future case” (¶ 31).

Justice Bradley dissented on grounds that the county had failed to prove that Robert’s condition justified the Wis. Stat. chapter 55 “out-of-home” protective placement instead of imposing some manner of in-home care (see ¶¶ 54-76).

Justice Dallet also dissented. She observed that “it might make sense for us to hold that a different, more deferential standard applies to protective-placement cases in the future” (¶ 78). As to this case, she joined Justice Protasiewicz’s dissent and would have found the evidence insufficient under the current standard.

Justice Protasiewicz, joined by Justice Dallet, dissented. They contended that the majority misapplied the current standard and that the evidence was insufficient to support the continuing placement.

Mental Commitments

Involuntary Commitments — Tardy Reports — Competency of Court — Harmless Error

Outagamie Cnty. v. M.J.B., 2026 WI 23 (filed June 26, 2026)

HOLDING: The circuit court did not lose competency to proceed despite the fact that an examiner’s report was not accessible to counsel at least 48 hours before a final hearing.

SUMMARY: The respondent, M.J.B., was arrested for a minor offense, questions were raised about his competency to stand trial, and he was later placed in emergency detention pending an involuntary civil commitment proceeding. The circuit court found probable cause for an involuntary commitment and scheduled a final hearing for September 6, 14 days after M.J.B.’s initial detention and the latest date under Wis. Stat. section 51.20.

The court also appointed two examiners, who were to file their reports no later than 48 hours before the final hearing. One of the reports was filed less than 48 hours before the hearing. Although the report was untimely filed, the circuit court ruled that it had competency to proceed. After the hearing, the court ordered that the respondent be involuntarily committed and medicated for six months.

The court of appeals reversed, finding that the report’s late filing violated the statute and deprived the court of competency to proceed.

The supreme court reversed in a unanimous decision by Justice Crawford. “[W]e hold that a failure to comply with the 48-hour deadline does not cause the circuit court to lose its competency to proceed and, further, that the error here did not affect [the respondent’s] substantial rights” (¶ 11). “[I]n determining whether the violation of a statute causes a circuit court to lose competency, we examine the role of the statutory requirement within the statutory scheme.” Put differently, the issue was whether the statutory “scheme” can be fulfilled without strictly following a statutory directive (¶ 15).

The court summarized the procedures called for by Wis. Stat. section 51.20 (¶ 18). “Requiring the examiners to file written reports ensures that the individual receives notice of evidence that may be offered in support of involuntary commitment. Imposing a time limit by which counsel must have access to the examiners’ reports ensures that counsel has sufficient time to prepare for the final hearing and potential cross-examination of witnesses, enabling the subject individual to mount a defense” (¶ 19).

“The provision at issue here, § 51.20(10)(b), does not establish a timeframe within which the circuit court must exercise its jurisdiction, establish conditions that must be met for the proper exercise of jurisdiction, or otherwise implicate the court’s power to proceed in the case. A failure to strictly comply with the 48-hour requirement does not defeat Chapter 51’s broader purposes of ensuring that the full range of mental health treatment is available to state residents and that no person is institutionalized who can be adequately treated outside of an institutional setting.” The statute sets an “interim deadline.” The legislature never intended that a failure to timely provide these reports would terminate the court’s jurisdiction (¶ 22).

Such failures are, however, subject to harmless-error analysis (see ¶ 24). The court found no evidence that the tardy filing here affected the outcome of the respondent’s involuntary commitment proceedings (see ¶ 27).

Competency to Stand Trial — Involuntary Commitments — Involuntary Medication

State v. N.K.B., 2026 WI 22 (filed June 26, 2026)

HOLDING: Involuntary commitments intended to restore a person’s competency to stand trial should not authorize involuntary medication orders.

SUMMARY: The defendant, for whom the court used the pseudonym Naomi, was charged with felony battery by a prisoner for slapping a nurse while an inmate in the county jail. Questions about her competency to stand trial resulted in a hearing finding her incompetent to proceed but likely to regain competency with treatment. Applying the factors in Sell v. United States, the circuit court ordered that Naomi be involuntarily medicated (see ¶ 3). It later modified the order to reflect that Naomi be involuntarily medicated based on her dangerousness. The court did not address the Sell factors.

Naomi appealed, and the court of appeals agreed with her that the circuit court lacked authority under Wis. Stat. section 971.14 to order involuntary medication on the basis of dangerousness when the underlying commitment was only for competency restoration (see ¶ 5).

The supreme court affirmed the court of appeals in an opinion by Justice Dallet, joined by Chief Justice Karofsky and Justice Hagedorn, Justice Protasiewicz, and Justice Crawford.

Wis. Stat. section 971.14 does not grant authority for the order at issue. “That is because the language of § 971.14 provides for court-ordered involuntary medication only to restore competency, and not because a defendant is found to be dangerous. The State instead argues that a portion of Wis. Stat. § 51.61(1)(g)3. authorizes the involuntary medication order in this case. Naomi responds that the language, context, and statutory history of § 51.61(1)(g)3., as well as our existing case law, demonstrate that the relevant portion of § 51.61(1)(g)3. does not permit a circuit court to order involuntary medication for an individual committed exclusively under § 971.14. We agree with Naomi” (¶ 7).

The court addressed the interplay of Wis. Stat. sections 971.14 and 51.61(1)(g)3. (¶ 10). “Here, by contrast, the legislature has added separate involuntary-medication provisions to § 971.14. We conclude that those provisions, rather than § 51.61(1)(g)3.’s first exception, govern court-ordered involuntary medication for individuals committed exclusively under § 971.14. This reading of § 51.61(1)(g)3. takes into account its text, full statutory context (including the related provisions of § 971.14), and its statutory history, and is consistent with Anthony D.B.’s conclusion that § 51.61(1)(g)3. authorizes court-ordered involuntary medication of an individual committed under a chapter listed in § 51.61(1) ‘unless and until the legislature provides alternative provisions’ in the relevant chapter” (¶ 13).

The court also explained “that it is still possible to administer involuntary medication to individuals committed for competency restoration under § 971.14 who present a danger to themselves or others because of mental illness” (¶ 14). The court provided examples.

Justice Bradley concurred in an opinion (a “defense of textualism”) that critiqued the majority opinion’s analysis and underscores the approach taken in Kalal (¶¶ 16-53).

Justice Ziegler dissented. “Because the chapter 971 statutes clearly contemplate that the criminal court oversees returning a defendant to competency, and those statutes provide for court-ordered involuntary medication, I would not hamstring the criminal court judge from considering the dangerousness of the defendant who needs treatment, nor would I require a separate chapter 51 proceeding. I would not relegate the decision to regularly administer involuntary medication to medical professionals, who should only be administering involuntary medication in an emergency situation. In short, the criminal court judge should not be precluded from considering what best assists the restoration of competency or whether the defendant is dangerous, and chapter 971 contains no such prohibition” (¶ 55).

Involuntary Commitments — Mootness — Substantial Rights — Hearsay

Waukesha Cnty. v. R.D.T., 2026 WI 24 (filed June 30, 2026)

HOLDING: An appeal from a now-expired order extending an involuntary commitment was not moot, and the court’s reliance on hearsay did not affect the petitioner’s substantial rights.

SUMMARY: In October 2021, the petitioner (for whom the court used the pseudonym Ryden) was involuntarily committed under Wis. Stat. section 51.20(1)(a). His commitments were extended in 2022 and 2023, and the county moved to recommit Ryden for another year. After hearing evidence, the circuit court extended the commitment in September 2023. Ryden appealed, contending that the circuit court relied on inadmissible hearsay and that the nonhearsay evidence did not support his recommitment. While that appeal was pending, the circuit court extended the commitment for a fourth time in September 2024. The court of appeals held that the 2023 appeal was moot but that any errors were harmless regardless (see ¶ 9).

In a majority opinion by Justice Dallet, the supreme court held that the September 2023 appeal was not moot and that the recommitment order did not violate Ryden’s substantial rights regardless of any errors. As to mootness, Wis. Stat. section 46.10 imposes liability for the cost of Ryden’s care under a Wis. Stat. chapter 51 commitment that remains in effect until the liability is satisfied or the recommitment order is vacated (see ¶ 14).

“Because vacating the September 2023 recommitment order would have the practical effect of removing that threat [of liability], we hold that Ryden’s appeal is not moot” (¶ 16). The court also addressed the “practical effect” this had on Ryden’s ability to “restore his right to possess firearms” because the order would no longer be part of the record for courts to consider when assessing Ryden’s dangerousness (¶ 19).

Turning to the merits of Ryden’s contention that the circuit court relied on inadmissible hearsay, the supreme court held that it need not decide whether the admission of reports containing the hearsay was error (see ¶ 22). Although Ryden had objected to the hearsay in the reports, he did not object to testimony by the county’s expert witnesses, which “strongly support[ed]” the findings of dangerousness. Thus, the reports did not affect Ryden’s substantial rights (¶ 26).

Justice Dallet, joined by Chief Justice Karofsky and Justice Protasiewicz, filed a separate concurring opinion. The opinion trenchantly rejected the county’s argument that the hearsay within the report was admissible. The concurrence underscored “that the ordinary hearsay rules apply in recommitment hearings” (¶ 29).

Nothing in Wis. Stat. section 51.20(1)(am) “establishes or implies the categorical admissibility of treatment records or hearsay contained within those records. Because the legislature has not provided otherwise, the ordinary rules of evidence apply to recommitment proceedings under § 51.20. See § 51.20(10)(c). Hearsay is inadmissible under those rules unless it falls within one of chapter 908’s exceptions” (¶ 38).

Justice Ziegler dissented, joined by Justice Bradley. They contended that the recommitment order raised only moot issues that had no “practical effect on the underlying controversy” (¶ 40).

Torts

Informed Consent — Unborn Child — “Patient”

Brekke v. Midwest Med. Ins. Co., 2026 WI 29 (filed July 10, 2026)

HOLDING: Both minor and unborn children are patients within the meaning of Wis. Stat. section 448.30.

SUMMARY: Charlie was born in late 2015 and was injured during the birthing process. Samantha (a pseudonym used by the court of appeals and the supreme court) was the gestational carrier. In 2017, Charlie (through a guardian ad litem) and her parents sued the physician who delivered her and who provided prenatal care to Samantha; they also sued the physician’s insurer. Samantha was not a plaintiff.

Charlie allegedly experienced shoulder dystocia during the birthing process, which in turn resulted in an injury that left her “permanently limited and disfigured” (¶ 5). The plaintiffs claimed that the physician (1) was negligent in his handling of Samantha’s pregnancy and the delivery and (2) failed to obtain informed consent under Wis. Stat. section 448.30 regarding the risks of shoulder dystocia, related injuries, and alternative modes of delivery (see ¶ 6). The circuit court dismissed Charlie’s informed-consent claim, ruling that Samantha, not Charlie, was the patient. A jury trial on the negligence claim resulted in a defense verdict (see ¶ 11).

Charlie appealed the informed-consent issue, and the court of appeals certified the matter to the supreme court.

Chief Justice Karofsky wrote the majority opinion, which addressed an array of issues. First, Charlie was a “patient” under Wis. Stat. section 448.30. The doctor “indisputably provided medical care to Charlie by, for example, monitoring her condition, conducting an ultrasound, monitoring her vitals at the hospital, and being prepared to otherwise intervene” (¶ 24). Moreover, “an informed consent claim is an iteration of a negligence claim.” “In other words, an informed consent claim is a claim that a physician negligently failed to properly inform a patient” (¶ 25).

Second, the court also refused to apply two statutory exceptions to informed consent on grounds that Charlie was incapable of understanding technical medical information and was also incapable of consenting (see ¶ 26). “There is no argument or suggestion that the risk of shoulder dystocia … [fell] into the category of detailed technical information that a patient would not understand under § 448.30(2).” As to Wis. Stat. section 448.30(6), “there is no reference to age or any indication that all minor children are categorically outside the scope of § 448.30” (¶ 28). “To summarize, Charlie was Dr. Batley’s patient prior to birth, Samantha exercised consent to medical treatment on behalf of both herself and Charlie, and Samantha was capable of providing consent. As such, Dr. Batley had a duty pursuant to § 448.30 to obtain informed consent from Samantha on Charlie’s behalf” (¶ 33).

Third, it was not necessary to join Samantha (the gestational carrier) as a party. Charlie’s claim was not derivative for reasons elaborated upon by the majority (see ¶ 39).

Fourth, the court’s holding that Charlie was a patient for purposes of Wis. Stat. section 448.30 does not create a conflict of interest between pregnant individuals and their unborn children (¶ 40). The court emphasized that its “holding does not introduce or expand rights afforded to an unborn child. Rather, just as in any claim for negligence concerning an unborn child, it protects the right of a born child to recover for wrongs done before she was born” (¶ 46).

Finally, the court addressed and rejected three other arguments that are fact intensive: forfeiture by “implausible” arguments, breaches of summary-judgment procedures, and the effect of the negligence verdict.

Justice Hagedorn filed a concurring opinion in which he agreed that the majority’s holdings were correct but lamented its inclusion of “broad statements and digressions” (¶ 55).

Justice Crawford filed a concurring opinion joined by Chief Justice Karofsky. They emphasized “that today’s decision upholds the rights of pregnant patients to make medical decisions implicating their bodily integrity and self-determination. I also explain why the decision does not fundamentally change a physician’s obligations in complying with the implied consent law when providing treatment during pregnancy and birth” (¶ 62).

Justice Ziegler concurred in part and dissented in part. She agreed that Charlie was a “patient” but emphasized that the statute has no “born alive” requirement (¶ 76).

Justice Bradley also concurred in part and dissented in part. She accused the majority of making this case into an abortion case (see ¶ 85).