Criminal Procedure

Guilty Pleas — Bangert — “Insubstantial” Errors

State v. Wallace, 2026 WI App 40 (filed June 23, 2026) (ordered published July 29, 2026)

HOLDING: The circuit court properly denied the defendant a Bangert hearing.

SUMMARY: The defendant, Wallace, pleaded no contest to multiple charges, including homicide by intoxicated use of a vehicle. The circuit court failed, however, to inform him that he faced a five-year presumptive minimum term of initial confinement on the homicide charge, a prima facie defect in the guilty plea colloquy. Wallace later moved to withdraw his guilty plea; the circuit court denied the motion without holding an evidentiary hearing. Although Wallace had met the first prong required for a “Bangert hearing” (a defective plea colloquy), the defect was “insubstantial” (the second prong). Essentially, a minimum mandatory sentence was “not realistic” for the defendant’s crimes (¶ 12).

The court of appeals affirmed in an opinion by Judge Gill that carefully reviewed the case law governing guilty pleas. “[W]e agree with the State that a circuit court’s failure to provide accurate information about a presumptive minimum sentence during a plea colloquy is not always a per se Bangert violation requiring an evidentiary hearing” (¶ 32). Moreover, the court may “look to the record outside of the plea hearing” to determine whether a defect is “insubstantial” (¶ 33).

“Binding precedent dictates that no evidentiary hearing is required on a defendant’s Bangert motion where, despite the defendant making a prima facie showing that the court’s plea colloquy was defective: (1) the record demonstrates that the defendant knew the ‘potential punishment’ and was given the sentence the circuit court described, … and (2) the defendant ‘was not affected by’ an ‘insubstantial defect[]’ in the plea colloquy. … The record makes clear that Wallace did not expect to receive — or ask for — a sentence below the presumptive minimum, that Wallace knew of the presumptive minimum, that the parties jointly recommended a period of initial confinement on the count in question that was double the presumptive minimum, that the circuit court adopted and imposed that sentence, and that the presumptive minimum played no role in the court’s sentencing decision” (¶ 2).

Elections

Military Absentee Ballots — Fictitious Names — Election Fraud

State v. Zapata, 2026 WI App 36 (filed May 12, 2026) (ordered published June 24, 2026)

HOLDING: The deputy director of a city’s election commission was properly convicted of election fraud and misconduct in public office.

SUMMARY: In 2022, Zapata, then the deputy director of the Milwaukee Election Commission, applied for three military absentee ballots. Zapata received the ballots, and she sent them to a state legislator ostensibly to demonstrate that it was “easy” to commit election fraud. She was charged with misconduct in public office and several counts of making a false statement to obtain an absentee ballot. A jury convicted her on all counts.

The court of appeals affirmed in an opinion by Judge Geneen. First, the election fraud charges were appropriate under Wis. Stat. section 12.13(3)(i). “We agree with the State that ‘obtaining,’ as used in Wis. Stat. § 12.13(3)(i), does not necessarily require that the person making the false statement intends to physically possess the ballot. Interpreting ‘obtain’ broadly to include actual and constructive obtainment is consistent with case law interpreting criminal statutes governing possessory offenses, and it is consistent with the manifest purpose of the statute. … It would defeat the purpose of § 12.13 to allow individuals to do what Zapata did here: inject false ballot requests into the electoral system so long as the requestors did not direct that the ballots be sent to themselves or someone they knew. Conversely, the State’s construction of ‘obtaining’ is reasonable and consistent with the manifest purpose of the statute” (¶ 23).

The evidence also showed that Zapata “obtained” the absentee ballots that she requested, which was also consistent with the “case law discussing constructive possession” (¶ 24).

The evidence supported Zapata’s conviction for misconduct in public office. She did not act purely as a “concerned private citizen” (¶ 28). Acting in her “official capacity” required “a material connection between the public official’s duties and powers and the forbidden act” (¶ 32). The trial evidence established this connection (see ¶ 33).

The court also rejected Zapata’s arguments sounding in the rule of lenity and her First Amendment rights.

Employment

Restrictive Covenant — Wis. Stat. section 103.465

Steffes v. Fond du Lac Regional Clinic, 2026 WI App 35 (filed May 27, 2026) (ordered published June 24, 2026)

HOLDING: The circuit court erred in finding a physician’s restrictive covenant was enforceable and in denying him benefits.

SUMMARY: The plaintiff worked as a dermatologist for the Fond du Lac Regional Clinic in 2009 and became a shareholder-employee in 2011. In so doing, he signed a “covenant not to compete” and joined a supplemental retirement plan, which was amended in 2017 to increase incentives and profitability. In 2018, the plaintiff resigned from the clinic and opened his own clinic, which was located outside the 10-mile geographic restriction in the restrictive covenant but in one of the counties also restricted by the covenant. He also sought his benefits under the retirement plan. The defendant clinic refused to waive the restrictive covenant and declined the plaintiff’s request for payment because the plaintiff had violated the covenant. The circuit court granted summary judgment enforcing the covenant in favor of the clinic on both issues.

The court of appeals reversed, applying Wis. Stat. section 103.465 and pertinent case law. It distinguished Selmer Co. v. Rinn, 2010 WI App 106, in which the court of appeals declined to apply the statute and which the clinic and the plan believed “provides them more fertile soil” (¶ 17). “While it would be more favorable to the Clinic and the Plan’s position if we had the power through our Selmer decision to modify our supreme court’s earlier, precedential ‘reading [of] the statute itself,’ … that is not how things work.” Only the supreme court can modify its prior cases (¶ 21).

“Because the restrictive covenant in this case falls squarely within the language of Wis. Stat. § 103.465, that statute applies, with Holsen nailing the coffin shut on that question. And, because the Clinic and the Plan fail to dispute Steffes’ pointed position that the restrictive covenant is invalid and unenforceable under § 103.465, we conclude that it is invalid and unenforceable” (¶ 22).

Insurance

Homeowner’s Policy — Coverage — Exclusions — Firearms

Westbrook v. Jones, 2026 WI App 37 (14 May 14, 2026) (ordered published June 24, 2026)

HOLDING: A homeowner’s insurance policy excluded coverage for injuries caused by use of a firearm.

SUMMARY: The plaintiff was injured when a firearm accidentally discharged at the residence that the shooter (Kahmeron) shared with his father, who owned the gun. Kahmeron was adjudicated delinquent for possessing a dangerous weapon while under age 18. The plaintiff sued Kahmeron and his father (hereinafter the Joneses) as well as American Family, which had issued a homeowner’s policy. The circuit court ruled that the policy did not provide coverage.

The court of appeals affirmed in an opinion by Judge Graham. The court followed its “well-established procedure” in construing insurance policies (¶ 13).

First, the accidental shooting was a covered “occurrence” under the policy (¶ 16). Second, the court examined the exclusions, especially the policy’s “violation of law” exclusion, which provides: “[American Family] do[es] not cover any occurrence arising out of, resulting from, or in connection with” a “Violation Of Law. This includes [a] violation of any criminal law for which any insured … is convicted or adjudicated” (¶ 17). The exclusion was “unambiguous” and its “everyday terms” were “commonly understood” (¶ 18).

“Under the circumstances, an insured would reasonably understand this language to mean, at minimum, that coverage is excluded if an insured’s violation of criminal law has some causal relationship to the occurrence, assuming that the insured ends up being adjudicated for that violation. This broad reading is consistent with how Wisconsin courts have construed similar phrases in insurance policies” (¶ 19). The court addressed and rejected several arguments advanced by the plaintiff, including one directed at an “independent concurrent cause.” The court explained: “Daniel’s failure to secure his firearms did not become actionable until Kahmeron possessed the gun and caused Westbrook’s injury. In other words, Daniel’s negligence required the occurrence of the excluded risk — Kahmeron’s criminal possession of the firearm, for which he was adjudicated — ‘to make it actionable’” (¶ 28).

Municipal Law

Zoning Ordinances — Legal Nonconforming Uses — Billboards

Adams Outdoor Advertising v. City of Madison, 2026 WI App 42 (filed June 11, 2026) (ordered published July 29, 2026)

HOLDING: A city ordinance banning digital signs is not a zoning ordinance subject to Wis. Stat. section 62.23(7)(h).

SUMMARY: In 2022, the city of Madison “absorbed” part of the town of Madison through “attachment.” As a result, a digital billboard that Adams had installed in 2006 in compliance with the town’s ordinances now fell under the city’s purview. A city ordinance prohibited digital signs, and the city’s zoning administrator ordered removal of the billboard’s digital features. Adams petitioned the city’s Urban Design Commission (UDC), which agreed that the digital billboard violated city ordinances. The circuit court affirmed the UDC’s decision.

The court of appeals affirmed in an opinion by Judge Graham, which opened by reviewing the requirements for certiorari review (see ¶ 18). There was no dispute that Adams’ digital billboard violated the city’s digital sign ban (see ¶ 19). “The parties agree that the scope of the UDC’s review turns on the proper interpretation of MGO § 31.043(1). Thus, the precise question before us is whether, pursuant to that ordinance, the UDC has the authority to consider the legal issue at the core of Adams’ appeal: that is whether the zoning administrator erred in enforcing the digital sign ban against Adams because the ban is a zoning ordinance that Adams is exempt from complying with pursuant to Wis. Stat. § 62.23(7)(h)” (¶ 21).

The court held that “the UDC had authority to consider the legal questions about the nature of zoning and Wis. Stat. § 62.23(7)(h) that are at the core of Adams’ appeal. Thus, the UDC proceeded on an incorrect theory of law when it declined to consider these issues on the grounds that it did not have authority to do so” (¶ 34).

Turning to Adams’ arguments, the court of appeals resolved the underlying legal issues in the city’s favor (see ¶ 35). The threshold issue was whether the digital sign ban was a zoning ordinance, which might then qualify as a legal nonconforming use under Wis. Stat. section 62.23(7)(h) (see ¶ 37). In resolving the question, the court determined that the six characteristics set forth in Zwiefelhofer, a controlling case, should guide its determination of whether the city’s sign ban was a zoning ordinance (see ¶ 44).

The court conceded that “although we think it is likely that the City could have passed the sign control ordinance as a zoning ordinance, we are not persuaded that it had to do so” (¶ 50). Because “neither the digital sign ban nor the sign control ordinance are zoning ordinances … the digital features of its billboard do not qualify as legal nonconforming uses under Wis. Stat. § 62.23(7)(h)” (¶ 51).

Medicaid

Involuntary Discharge — Notice and Hearing

Schott v. Wisconsin Dep’t of Health & Hum. Servs., 2026 WI App 34 (filed May 4, 2026) (ordered published June 24, 2026)

HOLDING: When involuntarily discharging the petitioner from treatment, the Wisconsin Department of Health Services (DHS) failed to provide her with a fair hearing; the denial of a fair hearing was unjustified.

SUMMARY: Schott, a Medicaid recipient, received behavioral health services operated through a county agency, North Central Health Care (NCHC). She received services through a comprehensive community services (CCS) program. In 2023, NCHC notified Schott that she had been involuntarily discharged from the CCS (see ¶ 5). When Schott requested a hearing, NCHC argued, among other things, that it was a “provider” decision. An administrative law judge (ALJ) granted NCHC’s motion to dismiss despite a defective notice (see ¶ 7).

NCHC provided a new notice, and Schott petitioned for judicial review.

The circuit court reversed the ALJ and remanded the matter to the Division of Hearings and Appeals (DHA) to determine whether the involuntary discharge was improper. It also awarded Schott attorney fees and costs because the DHS was not “substantially justified” in its actions (¶ 12). (The court of appeals noted that “[t]he caption incorrectly names the Department of Health Services as the Department of Health and Human Services” (¶ 1 n.1)).

The court of appeals affirmed the circuit court “in all respects” (¶ 14) in an opinion by Judge Stark. “The manner in which the DHS characterizes its operation and decision-making is not the gauge by which we determine an individual’s rights under the Due Process Clause of the Fourteenth Amendment or interpret statutes or rules. The circumstances in this case demonstrate that NCHC’s decision to discharge Schott from the CCS program was not a ‘provider’ decision. The decision was the result of the direct execution of the DHS’s own discharge rules by the only entity that the DHS has designated to provide CCS services to Medicaid recipients in the County, and that discharge decision resulted in a complete denial of eligible Medicaid benefits or services” (id.).

Under the statutes, Schott was entitled to a fair hearing, which includes timely and adequate notice and the opportunity to present evidence and cross-examine witnesses (¶ 22). To resolve the issue, the court had to determine “(1) whether NCHC’s decision to discharge Schott was a decision of ‘the agency’ — i.e., state action — and (2) whether that decision resulted in ‘[a] termination, suspension of, or reduction in covered [Medicaid] benefits or services’” (¶ 24). The court answered yes to both questions based on its assessment of the law and the facts (see ¶ 28). In particular, the failure to establish a treatment plan “alone is not a basis for discharge” under the regulations (¶ 30). The court also determined that NCHC’s decision qualified as an “action” for purposes of the federal fair hearing requirements (¶ 42).

“[W]e conclude that NCHC’s act of involuntarily discharging Schott from the CCS program resulted in a termination of a covered Medicaid benefit or service, and, therefore, Schott was entitled to a fair hearing to challenge that termination” (¶ 43). “In summary, NCHC decided to discharge Schott from the CCS program as a state actor on behalf of the DHS and pursuant to a DHS-promulgated rule. Schott’s involuntary discharge resulted in the termination of her CCS benefits with no other way to receive the covered service. Schott is therefore entitled to a fair hearing to review that decision” (¶ 47).

Finally, the circuit court properly imposed attorney fees and costs under Wis. Stat. section 227.485 based on its findings that the DHS was not substantially justified in taking the positions it did (see ¶ 51).

Property

Condominiums — Restrictive Covenants

Munnik v. Blue Harbor Resort Condo. Ass’n, 2026 WI App 39 (filed June 3, 2026) (ordered published July 29, 2026)

HOLDING: Occupancy restrictions imposed on condominium owners were reasonable, valid, and enforceable.

SUMMARY: The “unit owners” owned condominium units at the Blue Harbor resort. They alleged that “occupancy restrictive covenants” imposed by an amended restrictive covenant were invalid on several grounds. For reasons described in the opinion, Blue Harbor classified all units as “transient residential” “from the date they were built through this lawsuit,” which limited the owners and their guests to 29 consecutive days of occupancy (¶¶ 2, 7). Some unit owners brought this action seeking a declaration and injunction that the 29-day restriction was invalid and unenforceable (see ¶ 11). The circuit court granted summary judgment and a declaratory judgment in favor of Blue Harbor.

The court of appeals affirmed in an opinion by Judge Lazar. The unit owners challenged the 29-day restriction on two grounds. The court first rejected the contention that the restriction was ambiguous, unreasonable, and “absurd” (¶ 18). “The parties entered into their condominium purchase agreement contracts with their eyes wide open and with a full understanding that they were limited in how long they could continuously occupy their units so as to encourage visitors to the resort. … Merely because the zoning designation could be changed by the City does not alter the fact that the documents were valid when signed and were based upon the R-1 classification” (¶ 19). The opinion addressed the underlying law on condominiums and property rights (¶ 24).

“Ambiguity in a document … is only found when there is language that is ‘fairly susceptible to more than one reasonable interpretation’” (¶ 29). “The drafters clearly designated that the occupancy timeframe would be 29 days maximum so that the resort would fall within the R-1 Transient Residential designation as it existed at the time. Even if that occupancy designation was altered after the fact or if the Building Code was later amended, it does not change the clear and precise number of days that a unit owner can continuously stay in their unit. In fact, the restriction could not be clearer — 29 days is the limit: not one day more” (¶ 34).

Because the restrictive covenant was not ambiguous, it was not unreasonable (see ¶ 37). The court observed that the unit owners came “to regret their freely-made decisions” to buy the units subject to the covenant (¶ 41).

The court rejected a second argument regarding the effect of any applicable building code (see ¶ 46). The pertinent documents included the “transient residential” classification. It made no difference that the units could have been placed under a different classification (see ¶ 49). The court also rejected an argument about alleged actions by the “former Board” (¶ 59).

Social Services

Reimbursement — Administrative Reviews — Orders Compelling Payment

Stewart v. Wisconsin Dep’t of Health Servs., 2026 WI App 41 (filed June 18, 2026) (ordered published July 29, 2026)

HOLDING: A recipient of social services would qualify as a person aggrieved by an order issued by the Department of Health Services (DHS) and therefore would be entitled to a final decision on the merits from the DHS if the county had issued an order compelling payment, but the county did not issue such an order.

SUMMARY: Stewart, the petitioner, had a disabling mental illness. She had been cared for under a county-administered program that covered her room and board at a privately owned facility but later transferred to a different county-run program that, according to the county, obligated her to contribute to her room and board. Stewart did not pay any of the bills she received and eventually was issued a “FINAL NOTICE,” as described at paragraph 6. Upon her request for a hearing, an administrative law judge (ALJ) ruled that the county had the authority to bill her for room and board costs. Stewart objected in writing, and the DHS dismissed her objection without reaching its merits on the ground that the ALJ “lacked jurisdiction” because there had been no “order to compel payment issued by [the DHS]” (¶ 10). The circuit court affirmed.

The court of appeals affirmed in an opinion by Judge Blanchard that addressed the DHS’s order dismissing the petition. First, the court rejected the DHS’s position that it was the county, not the DHS, that gave Stewart the notice. The court concluded that “if the county had issued an order to compel payment to Stewart, it would have been exercising a delegated responsibility of the Department under Wis. Stat. § 46.10 for the collection from her of patient fees for services pursuant to § 46.10(16)” (¶ 16).

The court, however, rejected a second argument by the DHS that “none of the notices constituted an order to compel payment” within the meaning of Wis. Stat. section 46.10(4)(a) (¶¶ 15, 17).

The opinion closely canvassed the features of Wis. Stat. section 46.10 (see ¶¶ 18-24). As to the first issue, a request for a Wis. Stat. chapter 227 hearing is not a function delegated to the county. “Facilitating and hearing administrative appeals is not itself a responsibility for the ‘collection of patient fees’ vested in the Department by Wis. Stat. § 46.10.” Rather, it relates to the DHS’s ability to hear appeals as outlined in Wis. Stat. chapter 227 (¶ 32).

As to the second issue, there was no “order to compel” as provided by Wis. Stat. section 46.10(4)(a). “[W]e conclude that the final notices here could not be orders to compel payment for at least the reason that they do not alert the reader to the significant mechanism of the automatic-judgment mechanism of subpart (5), which we have referred to in the discussion above” (¶ 42). Parsing the statutes, the court explained that notices that Stewart received “render them unmistakable as bills, not orders to compel payment under Wis. Stat. § 46.10(4)(a)” (¶ 45).

Finally, the court clarified the “legal standards, based on our review of the pertinent provisions.” “[W]e conclude that an order must, at a minimum, include the following: a statement to the effect that it is an order to compel payment for liabilities under § 46.10; explicit reference to the ability of the recipient to pursue an administrative appeal of the order, and the deadline for doing so, under subpart (4)(a); and explicit reference to the automatic-judgment mechanism under subpart (5). When a bill-like document lacks any of these components, those involved in keeping track of collection activities, recipients of purported orders, and courts and administrative law judges are all unable to sort mere bills from orders compelling payment with a reasonable degree of consistency. The legislature could not have intended such an indeterminate procedure” (¶ 52).