A federal judge last week refused to dismiss a former inmate's allegation that Milwaukee County Sheriff David Clarke and the county implemented an unconstitutional policy requiring that pregnant inmates be shackled while giving birth.
Clarke and the county had argued that the claim by the former inmate, identified as "Jane Doe" in court filings, should be dismissed because she did not exhaust all potential administrative remedies available to her before filing suit, as required by law.
U.S. District Judge J.P. Stadtmueller, citing an earlier ruling from the 7th Circuit Court of Appeals, said that Doe was not required to pursue a grievance because there was little the jail could do to rectify the harm the shackling caused her as and after she gave birth to her daughter in October 2014.
"Defendants’ allegedly harmful shackling thus concluded upon the birth of her daughter, and so “[s]he had no opportunity to grieve [the shackling] until after the harm done by it was complete and could not be undone by the defendants,” Stadtmueller said in his opinion.
Doe filed suit in 2014, alleging that she was repeatedly sexually assaulted by Corrections Officer Xavier D. Thicklen while she was a County Jail inmate. Her shackling claim was added to the suit later. Doe originally sought class action status for that claim, but dropped the request in March.
The county has not disputed the claims.
The trial in the case is set for June 5.
Read earlier reporting on the case here, here, and here.
Milwaukee County Circuit Judge Rebecca F. Dallet is widely rumored to be readying a run for the State Supreme Court seat now held by Michael J. Gableman.
Dallet, however, isn't quite ready to commit. "I've been approached by several people asking me to run and I'm giving it serious consideration," she said Wednesday.
If Dallet runs and the very conservative Gableman seeks re-election, there will be a primary in the Supreme Court race next year because Madison attorney Tim Burns already has announced that he will also seek the seat.
The primary election will be Feb. 20; the general election will be April 3.
Dallet was elected to the Branch 40 bench in 2008, beating attorney and police officer Jeffrey Norman. She was re-elected without opposition in 2014.
She also has served as a Milwaukee County court commissioner, adjunct professor at Marquette University Law School, assistant district attorney, and special assistant U.S. attorney.
As judge, she presided over felony courtrooms for several years and is now assigned to civil court.
Dallet received her law degree from Case Western Reserve University Law School in 1994.
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
Name: Robert F. Dehring Jr.
Appointed to: Jefferson County Circuit Court
Appointment date: Dec. 14, 2016; up for election spring, 2018
Law School – Marquette University
Undergrad – University of Wisconsin-Madison
High School – Waukesha North
2013 - present – Waukesha County judicial commissioner
2010 - 2012 – Jefferson County judicial commissioner
2009 - 2013 – Jefferson County assistant corporation counsel
Waukesha County Bar Association (board member, 2014-15; secretary/treasurer, 2015-16; president-elect, 2016-17)
Wisconsin Family Court Commissioner Association
The Federalist Society-Milwaukee Lawyers Chapter
Office of Lawyer Regulation-District 5 Committee
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Private practice focused on estate planning, tax, and corporate contract work.Limited work in bankruptcy court, probate court, and criminal court (including felony cases).
Number of cases tried to verdict or judgment: Jury, 0; non-jury, 30,000; administrative bodies, 2.
Cases on appeal: 0
List and describe the three most significant cases in which you were involved: None listed. I am unaware of any cases of mine that were cited in reported decisions.
Describe the approximate number and nature of cases you have heard during your judicial or quasi-judicial tenure: Civil court evictions, money claims under $10,000; temporary restraining orders in domestic abuse, harassment, child abuse and other matters; family court cases; criminal court initial appearances, bail hearing, arraignments, felony preliminary hearings and search warrants; juvenile court and probate matters.
Describe the two most significant cases you have heard as a judicial officer. Identify the parties, describe the cases, and explain why you believe them to be significant. Provide the trial dates and names of attorneys involved, if possible.
One case of mine that I believe to be especially significant is Waukesha County case ... due to a novel family law issue that surely would have reached the appellate level had the parties not eventually reached a stipulation. The parties have an 18 year old child who is developmentally disabled. The child attends public school receiving instruction in "life skills" which may or may not be interpreted as worthy of high school credit. In Wisconsin, child support runs until age 18, unless the child is actively pursuing a high school diploma. The mother, who has primary placement of the child, wants child support to run until age 19 because the child is still in school. The father wants child support to end at age 18 because the course of instruction will not lead to a high school diploma.
Another case that I consider significant is one of the first small claims trials that I heard in Jefferson County. ... The plaintiff was an indigent farmer who contracted with a Farmers Market (the defendant) to sell her fruits and vegetables. The farmer had a booth in a prime location, in a more prominent view of shoppers. Defendant told Plaintiff that she would have to move her booth to a less desirable location, even though they had contracted otherwise, so that the Defendant could give the spot to another preferred vendor. When plaintiff resisted, the defendant threatened to harm the plaintiff in an illegal manner. I found that the hostile environment created by the defendant was tantamount to a breach of contract, and awarded damages in the amount of $200.00. This amount represented the profit that the farmer would have earned but for the breach of contract. While the outcome may not be considered significant in terms of dollars and cents, I believe this case to be a victory for the proposition of equal justice under the law, and in particular, for small business owners everywhere.
Involvement in judicial, non-partisan or partisan political campaigns in the last six years: In 2010, I ran for City of Cudahy Municipal Judge. I received 17.43% of the vote in the 2/16/10 primary and did not advance to the general election. John Dobogai won the general election in April, 2010.
Candidates endorsed in the last six years -- David Wambach, Ronald Sonderhouse, Rebecca Bradley, Timothy Kay.
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: I am an active member of St. Catherine’s Church in Oconomowoc. I have volunteered for several years as Presiding Judge in the Wisconsin High School Mock Trial program. I volunteer from time to time for charities such as the American Cancer Society, Make-A-Wish Foundation, Susan G. Komen Foundation, Big Brothers / Big Sisters, Muscular Dystrophy Association, and the Lake Area Free Clinic.
I found that the hostile environment created by the defendant was tantamount to a breach of contract, and awarded damages in the amount of $200.00. - Jefferson County Circuit Judge Robert F. Dehring Jr., describing one of his most significant cases
Describe any pro bono legal work in the last five years: None - prohibited due to status as quasi-judicial official.
Why I want to be a judge – I want to be a judge because, given my abilities, it is the highest level of service that I can offer to the community.
It is a daily honor to take the bench as a commissioner. When on the bench, it is inescapable to realize ones responsibility to society, and to the litigants in particular. It is rewarding to have the chance to positively affect people’s lives (or, all too often, minimize the negative circumstances).
The intellectual challenge of applying statutes and case law to a particular fact pattern is often grueling, but always stimulating.
Our system of justice is not flawless. But it is the best in the world, and the envy of all other nations. It is both daunting and rewarding to be a critical cog in the system.
As a commissioner I am already familiar with the processes of the Jefferson County court system. I have heard thousands of cases in every area of the law. In Waukesha County, I have helped reduce costs to the taxpayers through efficiency initiatives, such as leading the county's transition to paperless filing. I would like to use this experience to take the next step from commissioner to judge.
Best Wisconsin or US Supreme Court decision in the last 30 years — United States v. Lopez (1995)
[This case] halted a decades-long trend of federal encroachment on state sovereignty.
In 1990, Congress made it a federal offense for any individual to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone. The Act neither regulated a commercial activity nor contained a requirement that the possession be connected in any way to interstate commerce. Lopez was convicted in the District Court. Lopez appealed, challenging his conviction based on his claim that the Act exceeded Congress' power to legislate under the Commerce Clause. The Court of Appeals agreed and reversed the conviction, holding the Act invalid as beyond the power of Congress under the Commerce Clause in light of insufficient congressional findings and legislative history. The Supreme Court affirmed the decision of the Court of Appeals.
This opinion is remarkable in its patient and deliberative analysis. Chief Justice Rehnquist immediately recognizes that even the precedents which have expanded congressional power under the Commerce Clause confirm that this power is subject to outer limits. …
In the instant case, there was no evidence that the carrying of handguns affected the economy on a grand scale. To accept the government's "domino effect" argument would be to create a slippery slope where the government could regulate any activity that might lead to violent crime, regardless of its nexus to interstate commerce, due to possible social costs. If Congress could regulate something so far removed from commerce, then it could regulate anything.
The Constitution created Congress as a body with enumerated powers. Congress may exercise only those powers granted to it. Regulation of criminal law enforcement and education are areas that States have been historically and constitutionally sovereign. Given no evidence that the activity substantially affects interstate commerce, the Court was correct to step in and check the government's authority by defining clearly between state and federal powers.
Worst Wisconsin or US Supreme Court decision in the last 30 years – Kelo v. City of New London (2005)
[This case] is an unfortunate assault upon individual property rights.
The city of New London used its eminent domain authority to seize private property to sell to private developers for redevelopment. The city said developing the land would create jobs and increase tax revenues, as local planners hoped that the Pfizer Corporation would draw new business to the area. Kelo and others whose property was seized sued New London in state court. The property owners argued the city violated the Fifth Amendment's takings clause, which prohibits the government from taking private property for public use without just compensation. Specifically, the property owners argued taking private property to sell to private developers was not public use. ...
In a 5-4 opinion delivered by Justice John Paul Stevens, the majority held that the city's taking of private property to sell for private development qualified as a "public use" within the meaning of the takings clause. The city was not taking the land simply to benefit a certain group of private individuals, but was following an economic development plan. Such justifications for land takings, the majority argued, should be given deference. …
This is a classic example of judicial activism, where the Court contorts the plain text of the Constitution to the point of absurdity, for the benefit of subjective policy preferences. In the takings clause, the words "public use" limit the government's power to the taking of private property only when the land would be used by the general public. The majority misinterprets "public use" as being the equivalent of "public purpose," which displaces the language of the Clause. Moreover, the takings clause in the Fifth Amendment was enacted to prevent the government from infringing on the private property rights of citizens, a right which was fundamental to the American Founding. The Founders could not have intended to benefit the politically powerful at the expense of individual homeowners and local communities.
Judicial philosophy — My judicial philosophy is characterized by restraint, strict constructionism, and accountability.
Judges must interpret the law strictly rather than to seek to make new laws. A judge should defer to the intent of the legislature rather than what he or she feels the law should be. This is assuming that the legislature is acting within its enumerated powers.
A role of the judiciary is to be a check on the expansion of federal power. The 10th Amendment to the United States Constitution states that powers not granted to the federal government by the Constitution, nor prohibited to the States, are reserved to the States or the people. Accordingly, issues that are not explicitly expressed in the U.S. Constitution are the domain of each respective State.
If you have previously submitted a questionnaire or application to this or any other judicial nominating commission, please give the name of the commission and the approximate date of submission. I applied for an appointment to Branch 9 in Waukesha County through this commission on 7/23/2014.
Milwaukee County will increase the amount it charges suburbs to incarcerate municipal ordinance violators at the House of Correction by 49% and the amount it charges the City of Milwaukee to house its municipal violators at the County Jail by 61%, county documents show.
The increases will take effect June 1.
The daily boarding rate charged by the House will rise from $25.40 to $37.75, an increase of $12.35; the jail rate will increase from $25.40 to $40.77, up $15.37.
The House will also eliminate the $35 per commitment it charges for municipal offenders. A commitment is essentially an incarceration order for unpaid fines.
"The majority of the daily rate covers the actual cost of of medical services and direct inmate supervision of by Corrections Officers," Steven R. Kreklow, director of the county Office of Performance, Strategy and Budget said in a memo. "Other components of the daily rate include the cost of food, laundry and payment processing."
The charges have note been adjusted since 2007, Kreklow said.
Last year, the jail had 2,483 inmate days served while the House of Correction had 15,441 inmate days served on municipal commitments, Kreklow said.
Suburban commitments generally are served at the House; City of Milwaukee commitments generally are served at the jail, although overflow from the jail is sent to the House.
The Wisconsin Justice Initiative urged the county to raise its rates both to more fully recover its costs and to discourage municipalities from overusing the two detention facilities to incarcerate municipal ordinance violators who do not pay their fines in a timely fashion. County officials have said they are allowed to increase rates only to cover direct costs of housing the inmates.
Suburbs vary widely in their incarceration of municipal violators. In 2016, for example, West Allis incarcerated municipal offenders for an equivalent of more than 18 inmate years, while Shorewood did not incarcerate anyone at all because of non-payment of fines, House of Correction billing records show.
Milwaukee County should settle a federal court lawsuit filed by a former County Jail inmate brutally attacked and beaten without provocation by another inmate while a country jailer allegedly was slow to react, a county lawyer says.
Gary L. Kimble alleged in his lawsuit that jail staff misdiagnosed or mishandled his attacker's mental illness and wrongly assigned him to the general population, Assistant Corporation Counsel Julie P. Wilson said in a report to the County Board.
The beating Kimble received at the hands of Travis J. Moore was so bad that "the investigating detective observed Mr. Kimble to be unrecognizable due to facial injuries," Wilson wrote.
Kimble "sustained significant injuries to his head and eyes and now suffers from post-traumatic stress disorder," she said. He is willing to accept $18,000 to settle the case, she said.
Kimble represented himself throughout most of the suit, filed in April 2016, federal court records show. He hired legal counsel in March of this year.
Kimble alleged that Moore was disrupting his jail unit before the attack. "Moore was kicking his cell door...telling CO (corrections officer) (Michael) Allen that he had let somebody into his room to rape him," Kimble wrote. He also said in court documents that Moore was talking to himself and "making threats to kill and harm people."
Allen, he said, knew Moore to be a potential risk, but did nothing to protect other inmates.
Kimble was was asleep in his cell when Moore ran in and began beating him, Kimble alleged.
Other inmates who witnessed the attack tried for three or four minutes to get Corrections Officer Dominique Smith to intervene, Kimble said. Another inmate reported that "it seemed that C/O D. Smith freaked and was in shock, which also prevented him from moving quickly to respond," Kimble said.
A Sheriff's Department report filed by Smith said that several corrections officers responded to the incident and "secured" Moore, but Smith told a Sheriff's Department detective that Moore "eventually stopped the assault and surrendered himself to authorities," according to a criminal complaint filed against Moore.
As a result of the attack, Kimble said, "I have vision problems, and I need a walker to keep balance when walking.
Wilson, in her memo, said Moore's behavior had "raised some concerns," but he was ultimately cleared to be housed in general population.
There also are "some discrepancies about what information was shared between shifts," she wrote.
Moore, the assailant, was evaluated by medical staff about 40 minutes after the assault, but the badly injured Kimble was not evaluated for more than an hour. He was ultimately taken to Froedtert Hospital for further evaluation.
Moore had some hand injuries. He told jail staff that "The demon told me to do it, and god isn't helping me," Smith said in his report.
Moore was eventually convicted of felony battery to an inmate. Circuit Judge Mark Sanders sentenced him to three years' probation, with one year served at the House of Correction. Sanders also ordered Moore to undergo a mental health evaluation and comply with all recommended treatment or therapy.
The state's cocaine mom law is unconstitutionally vague and is unenforceable in the state, a federal court judge has ruled.
The law allowed pregnant women to be locked up if they use drugs or alcohol.
The law "affords neither fair warning as to the conduct it prohibits nor reasonably precise standards for its enforcement. The court will enjoin enforcement of the Act statewide," U.S. District Judge James D. Peterson wrote in his opinion, released Friday.
Tamara Loertscher used drugs before she knew she was pregnant and admitted that fact to doctors. She declined inpatient drug treatment because she no longer was using the drugs, which she had taken in an effort to medicate herself for depression brought on by thyroid problems.
Taylor County officials detained her for several days in the hospital, and she later was incarcerated for contempt of juvenile court for 18 days, until she signed a consent decree that required her to submit to drug monitoring, Loertscher was not provided prenatal care during the 18 days she was jailed.
Loertscher also was thrown into solitary confinement for refusing to take a urine test to confirm her already established pregnancy.
Loertscher finally was provided a public defender and signed a consent decree agreeing to, among other things, submit to drug testing at her own expense. All the tests were negative.
Peterson, in his decision, said there is conflicting evidence about how much drug or alcohol intake by an expectant mother poses a substantial risk to the child and how effective state-mandated treatment programs are.
Attorney General Brad Schimel's office, defending the law, argued that the court should be more lenient with its consideration of the statute's vagueness because it is a civil statute, not a criminal one.
Peterson shot that down. "This is too simplistic a view," he wrote. "Although the Act is nominally a civil statute and does not impose a criminal liability, its consequences are nearly equivalent to criminal sanctions: a woman subject to the Act may be involuntarily detained for treatment, as Loertscher's own case shows."
The statute involves constitutional rights to be free from physical restrain and the right to be free from coerced medical treatment, Peterson said.
The law contains a two-prong test to help determine whether a mother is in violation: the mother must "severely and habitually lack self-control in the use of alcohol, controlled substances, or controlled substance analogs" and that lack of self control must "pose a substantial risk that the physical health of the child will be seriously affected or endangered."
"Presumably, these terms are intended to prevent enforcement of the Act against minimal users of alcohol or controlled substances," Peterson wrote. "But where to draw the line? The State contends that its experts and social workers in the field can draw the line. But their answers are just as circular and standardless as the dictionary definitions."
The word "habitually" poses a similar problem, Peterson wrote. "Habitually means in some sense 'recurrent,' so it, too, poses a quantitative question: how often is often enough to be 'habitual'?" he said.
"How would the Act deal with an expectant mother who does not believe that alcohol—or some other drug—is really dangerous to the unborn child, and on the basis of that belief, consciously chooses to drink or use drugs during her pregnancy? There would be no demonstrated lack of self-control in such a case. So under the terms of the Act, a defiant—as opposed to dependent—expectant mother would not be subject to State control. ... The point is that the conduct covered by the Act is fundamentally unclear," he wrote.
A total of five sexual assault survivors contacted the state's hotline after the launch Attorney General Brad Schimel's "By Your Side" campaign to encourage survivors to find out about the status of their sexual assault kits.
"Maybe for some folks that's a really disappointing number," said Keeley Crowley, the State Department of Justice's Sexual Assault Kit Initiative site coordinator.
The assaults of at least three of those who used the hotline occurred 30 years ago, she told attendees of a meeting of the Milwaukee Commission on Domestic Violence and Sexual Assault last month. Those women welcomed the the chance to talk about what happened to them, she said.
"I feel confident they (the five) were provided the services the were looking for," she said.
She also said that the state now is planning to translate materials from the campaign into languages other than English.
A five-week online advertising effort to promote the By Your Side website ended in March. Attorney General Brad Schimel's office has come under fire for its low-budget effort to provide sexual assault survivors information about the testing status of their sexual assault kits and to determine whether women whose kits were not tested want them tested.
Schimel said during his agency's budget hearing that the By Your Side Campaign spent about $60,000.
"We do not have a fixed budget amount for the outreach program," DOJ spokesman Johnny Koremenos said in a March 27 email. "Instead it is a flexible budget item which may be supplemented as needed."
(The state is spending, in contrast, $1.7 million to spread the word about the dangers of opioid abuse.)
There are about 6,000 untested sexual assault kits in the state and about 600 have been sent to a private lab for testing, DOJ officials said during the commission meeting.
Of the 6,000, almost 4,000 are already targeted for testing because the survivors gave their consent at some point, they said. The kits in another 1,000 or so other cases were not tested because the criminal cases were resolved and the testing was deemed unnecessary. The state is trying to determine how much value there is in testing those kits. The state already has on file DNA of convicted sex offenders.
About 500 tests were not tested for a variety of other reasons. Some cases might involve two consenting juveniles, where one could be technically considered guilty of sexual assault. There are a relative handful of cases that involve kits routinely taken at autopsy, whether or not there is any sign of sexual assault.
That leaves about 500 survivors the state especially would like to reach. Those survivors never gave their consent to have their kits tested, and the state will not test them without that consent. The state also is not trying to proactively contact the survivors to ask. Such a contact, coming out of the blue, could re-traumatize survivors or disrupt their lives, DOJ officials said.
Instead, the agency launched the web-based By Your Side campaign. It was kicked off in late January with three press conferences. More recently, DOJ printed posters promoting the outreach effort.
An internet campaign is more likely to be missed by survivors who are low-income than by those who are wealthy. The Pew Research Center reported in September that internet non-adoption "correlated to a number of demographic variables, including age, educational attainment, household income and community type."
About 13,000 people visited the website as of March 31, DOJ officials said. There is no way to tell, though, how many of those were survivors.
The 500 "priority" survivors may not come forward now for the same reason they were reluctant to have their kits tested immediately after the assault, Crowley said.
“Those survivors may never come forward," she said.
Koremenos said in the March 27 email that the state was "in the process" of collecting information about how many women came forward to have their kits tested after the campaign started. He has not responded to an April 17 follow-up inquiry.
Asked specifically how victims who left the state after they were assaulted in Wisconsin are supposed to find out about the state's testing program, Koremenos did not respond to the question asked, but wrote:
"Victim advocates, survivors and the Wisconsin Coalition Against Sexual Assault all participated in the creation of the 'By Your Side' outreach concept," he wrote. "Their recommendation was for a general outreach program that allows survivors to reach out regarding their sexual assault kits only if and when they decide they are ready to do so. They explicitly rejected direct contact / outreach to survivors, based upon the very real potential such direct 'cold' contact has for re-inflicting trauma."
Wisconsin has received about $4 million in grants for outreach and to test the kits. The Wisconsin Justice Initiative on Feb. 17 filed an open records request seeking documents related to the state's grant application and implementation. DOJ has yet to provide a single record.
The state's cautious approach to testing may have consequences beyond current survivors.
As of August, according to endthebacklog.org, "testing these backlogged rape kits has resulted in the identification of over 1,200 potential serial rapists. These serial offenders, linked to kits in just three cities, have committed crimes across at least 40 states and Washington, D.C. They have not just committed rape—many have been linked to other violent crimes, as well."
Gov. Scott Walker's proposal for a 21% increase in the amount charged to counties for housing youth in the state's two scandal-plagued juvenile prisons "is moving in exactly the wrong direction," County Executive Chris Abele said Wednesday.
Walker's budget proposes raising the fee from the current rate of $292 per child per day to $344 on July 1 of this year and to $352 on July 1, 2018. That would increase the annual cost of holding a child at Lincoln Hills School for boys or Copper Lake School for Girls from $106,580 now to $128,480 in the second year of the budget.
"Honestly, you don't have to be a Sherlock Holmes to figure out at least part of the motivation is the economy up in Wausau, because it sure as hell isn't helping Milwaukee," he said.
Lincoln Hills and Copper Lake are about 30 miles north of Wausau. Both schools have been under federal investigation for possible criminal and civil rights abuse of inmates. The ACLU of Wisconsin, along with the Juvenile Law Center and with pro bono help from the Quarles & Brady law firm, have filed a federal court lawsuit over conditions and alleged abuse at the schools, The suit, filed on behalf on former and current inmates, seeks class action status.
The plaintiffs also are seeking a preliminary injunction to temporarily halt most use of solitary confinement, pepper spray and use of restraints.
The county for six years has been reducing the number of youths it commits to the schools, he said. As of As of March 30, there were a total of 84 boys from Milwaukee County at Lincoln Hills and seven girls at Copper Lake, according to a county report.
"We spent a year-and-a-half trying to convince the state to do something smarter," Abele said during a meeting of the Milwaukee Community Justice Council. during a meeting of the Milwaukee Community Justice Council. The council includes representatives of many key actors of the justice system who collaborate in an effort to improve the system and its components.
County officials believed at one point that the state was interested helping establishing a youth correctional facility in the Milwaukee area, the exec said.
"We'll do it right here and have better programming," Abele said. Instead, he said, Walker proposed adding staff to the existing schools and charging counties more to use them.
Lincoln Hills' own figures show the institution has a 70% to 75% recidivism rate, he said. Offenders who commit less serious crimes associate at the facility with more serious criminals, and become worse offenders themselves, he said.
"We are dramatically and expensively making it more likely that people are going to commit crime. ... It's just a poster child for everything that's wrong," he said.
Legislation offered by State Sen. Leah Vukmir and State Rep. Joe Sanfelippo (R-West Allis) that would send more children to the youth prisons "would move us in directly the wrong direction," he said.
"There's a lot of legislation that everyone here would love to have Madison pass," he said. "We spend a lot of time trying to do it and, you know, I can tell you why we're supportive of getting it passed; you'd have to ask them why they're not."
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. While typos and grammar goofs happen to everyone, Tolan's application had a particular large number of them. We noted some of them.
Name: Daniel J. Tolan
Appointed to: Polk County Circuit Court
Appointment date: Jan. 3, 2017 (Elected April 4, 2017)
Law School – Hamline University
Undergrad – University of Wisconsin-Green Bay
High School – Luck Public High School, Luck, Wisconsin
2009 - present – Polk County District Attorney
1997 - 2016 – Self as private attorney
2014 - 2016 – Luck village prosecutor
Wisconsin Over 10 years ago was notified I was 1 epr credit short and rectified the situation within 1 week.
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: More than 18 years experience in criminal and civil law. I have tried to represent my clients by applying the law to our facts and negotating (sic) a fair and reasonable resolution. I have tried the cases that we could not achieve a fair and reasonable resolution (sic).
Number of cases tried to verdict or judgment: Jury, about 22; non-jury, estimated 100+.
Cases on appeal:
State of Wisconsin v. Albert Linder – I did the Jury Trial on this case as a Special Prosecutor. It was a Second Degree Sexual Assault of a Child. It is signficant to me because I was able to get justice for the victim in terms of a conviction and the resulting sentence was life in prison due to the persistent repeater enhancer. I was able to take a pedofile (sic) off the streets and protect the victim and public from him for life.
State of Wisconsin v. Eugene Ferguson – I was involved in this Arson case from it's (sic) inception. I tried this case as a Jury Trial for 4 and a half days. It ended in guilty verdicts on 2 counts of Arson, and 1 Count of Burglary. This case is significant to me because I was able to achieve convictions after a hard fought fight and was able to give the victim some piece (sic) of mind that she did not have to be afraid of him while he is incarcerated.
County of Washburn v. Eric D. Smith – I reasearched (sic) and wrote the Appeal brief and the Supreme Court brief. I also did the oral argument in Madison, Wisconsin before the Supreme Court. This case is signficant (sic) to me because the court applied the law of Implied Consent to the facts of our case. The defense was attempting to expand the law by using footnotes in a different Supreme Court case to create new law which would penalize law enforcement if they attempt to provide additional information in answering any questions regarding Implied Consent.
Involvement in judicial, non-partisan or partisan political campaigns in the last six years: None
Election history: None
Involvement in judicial, non-partisan or partisan political campaigns: None
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: I do not belong to an (sic) organizations, but have volunteered for Luck Commercial Club during Lucky Days and have also volunteered for the Luck Gandy Dancer Marathon.
Describe any pro bono legal work in the last five years: NA
Why I want to be a judge – I want to be Judge in my hometown county because I feel that the public has lost faith in the local justice system. I hear local citizens comment about not being treated fairly in the courts. I hear local citizens comment about the system doing nothing about the drug problem. I hear citizens and lawyers comment about the timeliness of their court hearings. I believe that there is a better way to move the cases along in the process in a more timely manner. ... I became a prosecutor because I wanted to play a role in what was happening my community. Over time, I have realized that I want to become a judge for the people of Polk County, Wisconsin because I believe that I am the best choice for this county given the current field. I bring with me experience in the civil and criminal area as well as the fundamental fairness and demeanor that the citizens of Polk County deserve.
Over time, I have realized that I want to become a judge for the people of Polk County, Wisconsin because I believe that I am the best choice for this county given the current field. - Polk County Circuit Judge Daniel J. Tolan
Best Wisconsin or US Supreme Court decision in the last 30 years - State v. O’Brien (2014)
It is a great example of strictly applying the law to the facts of the case. The opinion specifically rejects the invitation of the defendant to do the job of the legislature and modify or limit Wis. Stat. 970.038. This decision is also important for judicial economy reasons as well as the demonstration of the literal application of the law to the facts and comments upon the role of the legislature. However, part of the reason why I selected this case … is because it has directly impacted my role as a prosecutor. … The Wisconsin Supreme Court's decision in O'brien to allow hearsay consistent with §970.038 has curtailed the use of the Preliminary Hearing as a mini trial, protected the rights of victims, confirmed the summary nature and narrow scope of the Preliminary Hearing as well as upholding (sic) the protection of the defendant from unwarranted prosecution. ... All in all this decision was a win - win for Wisconsin.
Worst Wisconsin or US Supreme Court decision in the last 30 years — Missouri v. McNeely (2013)
I believe that this case fails to adequately consider the reasonableness component of the protections of the 4th Amendment. In that particular case, there was more than enough probable cause to obtain a search warrant. … Therefore, the focus of this case is really on the reasonableness of the police conduct … Given the facts of this case, is it really unreasonable to draw blood given the above stated facts, the guaranteed dissipation of alcohol, the natural delay that occurs in obtaining a search warrant, the government’s interest is protecting citizens from drunk driving and implied consent law? … I believe that fits within the exception to the warrant requirement as well as making (sic) the blood draw in this case reasonable. Obviously, the better practice is to try and obtain a warrant as the court decided.
Judicial philosophy – My judicial philosophy would be to a combination of a conservative and moderate. . (sic) My belief is that the judges should carefully apply the law to the facts in a fair and impartial manner and should not legislate from the bench. With that said, there will be times, such as sentencing, when a judge is required to use discretion in administering justice. In my humble opinion, I believe that everyone carries their own personal bias as a result of cultural influence from their formative years and upbringing. A judge should fairly apply the McCleaty, Gallion and any guideline sentencing factors, but to say that a judge's inherent bias will not play some role in determining a what they believe to be a just sentence is to ignore reality. For it is their own common core beliefs that will be called upon when executing justice. I am a believer in the following Ronald Reagan quote "We must reject the idea that every time a law is broken, society is guilty rather than the law breaker. It is time to restore the American precept that each person is accountable for his own actions."
Give any other information you feel would be helpful in evaluating your application: I have practiced law on my own from 1997 until March of 2016, when I left the private practice to be a full time Assistant District Attorney for Polk County. I think that it is a very difficult feat to come from just out of law school to practicing on your own for 18 plus year. During that time, I have had to lean on the local bar for help and advice. I think that gained me some respect as it showed that I was humble, appreciative and wanted to do things the right way. I think my ability to operate of (sic) my own for 18 years is extremely relevant because it highlights one of my strongest character traits. That trait is determination. …
The ACLU asked a judge Wednesday to temporarily ban the use of solitary confinement "for disciplinary or punitive purposes" at the state's Lincoln Hills and Copper Lake juvenile prisons.
In a motion for a temporary injunction, the ACLU of Wisconsin also asks the federal court to "eliminate the routine use of mechanical restraints, including handcuffing juveniles in solitary confinement to a waist belt and tethering youth to a table during their only time out of their cells."
Joining the ACLU in its filing was the Juvenile Law Center, with pro-bono assistance from Quarles & Brady.
It also seeks to "eliminate the use of pepper spray for punishment and behavior management or control."
Exceptions to the prohibitions would be allowed to prevent imminent and serious harm to people.
"Plaintiffs file this motion for interim relief due to the extreme and ongoing danger posed
by these practices," the ACLU, Juvenile Law Center and Quarles & Brady said in a brief accompanying the motion.
“Isolating, handcuffing and pepper spraying children is not only dehumanizing and traumatizing, it is also unnecessary and counterproductive," Larry Dupuis, Legal Director of the ACLU of Wisconsin, said in a prepared statement.. "As experts in the field show, these practices actually undermine institutional safety and security. As a result, most juvenile correctional facilities no longer use pepper spray, restraints or punitive solitary confinement.”
The ACLU has filed suit on behalf of past and current inmates of the two facilities alleging the extreme disciplinary practices at Lincoln Hills and Copper Lake violate the inmates' constitutional rights against unreasonable searches and cruel and unusual punishment. The practices also violate the youths' due process rights, according to the suit.. The case has been assigned to U.S. District Judge James D. Peterson.
The brief says that solitary confinement is known to cause psychological harm to adolescents.
"Research on adolescent development makes clear why juvenile solitary confinement is 'uniquely harmful'," the brief says, adding, "Stress derails brain development, and for a juvenile, simply being placed in isolation – the utter helplessness of it – is enormously stressful."
The brief says pepper spray use is on the upswing. "The use of pepper spray at LHS/CLS has increased dramatically since the beginning of 2016," the brief says. LHS/CLS (Lincoln Hills School and Copper Lake School) staff documented 198 pepper spray incidents in the first 10 months of 2016 – nearly 20 deployments per month, compared with 45 incidents in all of 2015."
Several juveniles have displayed symptoms such as difficulty breathing or coughing blood after being exposed to pepper spray, the brief says.
“These practices are so harmful that we’re taking decisive action to stop them immediately,” said Jessica Feierman, Associate Director of Juvenile Law Center. “Putting children in solitary, shackling them to tables, and pepper spraying them isn’t rehabilitation – it’s abuse.”
Vincent Schiraldi, a juvenile corrections expert from the Harvard School of Government, describes Wisconsin's practices as “excessively restrictive" and "a substantial departure from accepted professional standards, practice and judgment," according to the brief.
The full brief is below.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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