Constitutional Law

Second Amendment – Foster Parent Regulations

Lafferty v. Pertl, 2026 WI App 45 (filed July 31, 2026) (ordered published Aug. 26, 2026)

HOLDINGS: The numerous holdings in this case are summarized in the text that follows.

SUMMARY: The plaintiffs have been foster parents in Wisconsin for many years. The Wisconsin foster care system is administered by the Department of Children and Families (DCF), which partners with county governments and private entities. The DCF promulgates administrative rules establishing the requirements for foster home licenses, which counties and other agencies must follow.

In the present litigation, the plaintiffs challenged several regulations in or related to Wis. Admin. Code section DCF 56.08 (Dec. 2015) as well as various county regulations that they contended violated their Second Amendment rights. These regulations dealt with such matters as the storage of firearms and ammunition in foster homes. When the plaintiffs sought to renew their license in 2020, they were required to sign a county form advising that a foster parent with a conceal-and-carry permit must not carry a weapon while in the presence of foster children.

During this litigation, most of the challenged restrictions — either imposed by the county or encompassed in the administrative rules — have been abrogated. A new administrative rule, Wis. Admin. Code section DCF 56.076, now more fully defines the term “dangerous weapon” and contains new provisions addressing firearm and ammunition storage as well as concealed-carry rights (see ¶ 39). These changes eliminated many of the plaintiffs’ complaints, especially with respect to concealed-carry-and-storage requirements (see ¶ 5). (The current rule is presented in full at paragraph 39 of the opinion.)

Although these recent changes addressed most of the plaintiffs’ issues in this litigation, the Wisconsin Court of Appeals resolved a few remaining issues. In a 72-page opinion authored by Judge Lazar, it concluded, inter alia, that (1) the plaintiffs did not waive their Second Amendment rights by their voluntary decision to become foster parents (see ¶ 142); and (2) one part of the new administrative rule, a provision requiring that firearms in a foster home be stored unloaded, violates the Second Amendment (id.).

Judge Neubauer and Judge Gundrum filed lengthy concurrence–dissents.

Criminal Procedure

Sentence Credit – Time in Custody Following Revocation of Extended Supervision in Other Cases – Application of Beets Rule

State v. Zastrow, 2026 WI App 47 (filed July 21, 2026) (ordered published Aug. 26, 2026)

HOLDING: The defendant was not entitled to sentence credit for time spent in custody following revocation of extended supervision in another case.

SUMMARY: When defendant Zastrow was arrested and charged with burglary and other offenses in this case, he had been on extended supervision in three other cases that included convictions for forgery and other offenses (“the forgery cases”). Zastrow remained in custody in connection with both this case and the forgery cases until his extended supervision in the forgery cases was revoked and he was returned to prison. A jury later found him guilty of the offenses in this case, but the circuit court vacated those convictions and sentences. The Division of Hearings and Appeals (DHA) then vacated Zastrow’s revocation in the forgery cases, and he was again released to extended supervision in those cases. Following a second trial on the offenses in this case, a jury again found Zastrow guilty, and the court sentenced him.

Zastrow argued that he is entitled to sentence credit in this case for the time he spent in custody serving his revocation sentences for the forgery cases (1,275 days) because, upon the DHA vacating its order revoking Zastrow’s extended supervision, his prior revocation was a nullity and the time spent in custody therefore was connected solely to the course of conduct for which his sentences were imposed in the present case. See Wis. Stat. § 973.155(1)(a) (entitling defendant to credit toward service of sentence for all days spent in custody in connection with course of conduct for which sentence is imposed).

In an opinion authored by Judge Hruz, the court of appeals concluded that Zastrow is not entitled to the sentence credit he seeks, given the controlling sentence-credit principle set forth in State v. Beets, 124 Wis. 2d 372, 379, 369 N.W.2d 382 (1985) — once a defendant starts serving a revocation sentence in one case, it severs the factual connection with the custody in another case. “Here, that severance occurred when Zastrow’s extended supervision in the forgery cases was revoked and he was returned to prison to serve his revocation sentences. The fact that the DHA later vacated the order revoking his extended supervision does not change the fact that the factual connection was, and remained, severed” (¶ 3).

Lastly, the court noted its agreement with the state that if Zastrow’s extended supervision in the forgery cases were again revoked, he would be entitled to the 1,275 days of credit he sought in the present case (see ¶ 38).

Property

Zoning – “Right to Rent”

Clinton v. Village of Sister Bay, 2026 WI App 46 (filed July 14, 2026) (ordered published Aug. 26, 2026)

HOLDING: Zoning limitations on rental properties violated state statutes.

SUMMARY: This litigation involves a successful challenge to a local zoning ordinance that prohibits owners from renting more than four bedrooms in their homes. Property owners sued the village of Sister Bay, alleging that its ordinance violated the so-called right-to-rent provision in Wis. Stat. section 66.1014 and case law construing it. The circuit court rejected the challenge and granted summary judgment in favor of the village.

The court of appeals reversed in an opinion authored by Judge Stark. “We conclude that the Village’s four-bedroom limit on short-term rentals logically conflicts with the plain language of Wis. Stat. § 66.1014, which language we have previously interpreted, in Wisconsin Realtors Ass’n v. City of Neenah, 2025 WI App 49, 418 Wis. 2d 78, 25 N.W.3d 663, to bar restrictions on short-term rentals beyond timing limits alone” (¶ 3).

The opinion addressed only the first of four issues raised on appeal. Local ordinances may “complement” state statutes but must not conflict with them (¶ 14). The court held that Wis. Stat. section 66.1014 “preempted” the zoning ordinance, which logically conflicted with the statute (¶ 16). It agreed that “the functional operation of the Village’s four-bedroom limit is that it ‘clearly excludes some residential dwellings’—i.e., the ‘part of the building or structure’ containing the fifth or sixth bedrooms—‘and thus the ordinance prohibits short-term rentals of at least some residential dwellings’” (¶ 20).

The court pointedly rejected the village’s “suggestion” that Wis. Stat. section 66.1014(2)(a) “bars only local measures operating as back-door prohibitions on renting, not reasonable regulations like the Village’s four-bedroom limit, which does not prohibit the owner altogether from renting the property” (¶ 21). “The four-bedroom limit absolutely operates as a “back-door prohibition[] on renting,” and “nothing in the language of [Wis. Stat. section] 66.1014 authorizes this type of piecemeal ban on portions of a residential dwelling” (id.). Moreover, the statute’s “common-household” provision “is intended to clarify that homeowners have the right to rent their homes to a single tenant at a time – not to rent each of their bedrooms to separate tenants, like a hotel or bed and breakfast” (¶ 31).