This afternoon WJI petitioned the Wisconsin Supreme Court to require trained interpreters in municipal court proceedings involving low-English-proficiency (LEP) individuals.
WJI’s proposed new rule of procedure would bring municipal courts more in line with circuit courts, which are required to use “qualified” interpreters in proceedings involving LEP individuals. Qualified interpreters must meet certain requirements regarding their capabilities and accuracy. The current rule requires qualified interpreters in municipal courts only in matters involving juveniles. Otherwise, municipal judges are allowed to ask a party to bring a friend or family member—sometimes even a minor child—to court to interpret legal proceedings. “I’ve even seen a judge ask the gallery—the defendants awaiting their own cases to be called—if anyone spoke Spanish and could interpret proceedings when a woman did not bring someone with her to court,” said WJI Executive Director Margo Kirchner. The proposed new rule for municipal courts tracks the circuit court rule, with a major difference. The proposed rule divides proceedings into 1) evidentiary hearings that involve testimony and 2) other proceedings. Qualified interpreters would be required for all evidentiary hearings, including trials. In other proceedings, such as initial appearances or status conferences, the municipal court could use a telephonic, video, or computerized service approved by the director of state courts. Interpretation of legal proceedings by untrained friends, family members, or strangers would no longer be permitted. WJI wrote in its brief supporting the petition that “LEP individuals in Wisconsin today are not receiving proper access to qualified interpreters in municipal court proceedings.” Family members and friends acting as interpreters may not be proficient in the languages being used and may have conflicts of interest. “Even assuming they are proficient, these individuals almost certainly lack professional training as interpreters, let alone the specialized legal training necessary for properly interpreting court proceedings,” WJI wrote. “The ability to understand the words of the judge and the opposing party during a legal proceeding is a crucial element of due process. Without the help of a qualified interpreter, LEP individuals cannot meaningfully participate in their own legal proceedings This deprivation of due process rights has serious legal and practical consequences,” WJI wrote. WJI added that holding proceedings without providing qualified interpreters may also amount to national origin discrimination. “Very few defendants in Wisconsin's municipal courts have attorneys. This problem is compounded for those who do not understand the language being spoken in the courtroom,” said WJI board member and former Milwaukee Municipal Judge Jim Gramling about the need for the petition. “Municipal courts handle drunk driving cases, building and health code violations, charges of disorderly conduct, vandalism, marijuana possession, assault and battery. Forfeitures can reach into the thousands of dollars. Defendants in these cases deserve full interpreter services,” Gramling said. “Every court in Wisconsin, by law, must provide full interpreter services for defendants with one exception—the 230 municipal courts which handle over 400,000 cases every year,” Gramling said. “Municipal courts fly under the radar for the public and media, but that is where many people interact with the court system. As we say in our brief, municipal court cases involve real charges and real consequences," Kirchner said. “Those charged with offenses in municipal court, just as in circuit court, should be able to understand what is said and argue their case to the judge with accurate interpretation.” The petition is part of WJI’s broader effort to improve municipal court outcomes for defendants, especially low-income and minority individuals. “Since 2016, WJI has educated the public about municipal courts, monitored municipal court proceedings, and advocated for an end to jail and driver’s license suspension in response to unpaid municipal court forfeitures,” said Kirchner. “While monitoring municipal courts, we saw the frequent use of friends and family members when interpreters were needed,” said Kirchner. WJI has published public education information to help defendants understand municipal court proceedings. The materials include a Spanish-language video and pocket guide. Under the proposed rule, interpreters would be provided at municipal expense. WJI argues that the cost is reasonable and necessary in light of the important interests at stake. WJI awaits review of the petition by the Supreme Court.
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We've deleted footnotes and headings. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them if helpful. Italics indicate WJI insertions except for case names, which are also italicized. The case: A.M.B. v. Circuit Court for Ashland County Majority: Justice Rebecca Grassl Bradley (23 pages), for a unanimous court Concurring: Grassl Bradley (12 pages), joined by Chief Justice Annette Kingsland Ziegler and Justice Brian Hagedorn Concurring: Justice Rebecca Frank Dallet (7 pages), joined by Justices Ann Walsh Bradley and Janet Protasiewicz Concurring: Justice Jill J. Karofsky (7 pages) The upshot A creature of statute, adoption confers legal rights and duties on adopted children and their adoptive parents. The legislature has made policy choices regarding the circumstances under which children may be adopted and by whom. A.M.B. is the biological mother of M.M.C. and wishes to have her nonmarital partner, T.G., adopt M.M.C. Under the adoption statutes, T.G. is not eligible to adopt M.M.C. because T.G. is not A.M.B.'s spouse. A.M.B. and T.G. allege the legislatively drawn classifications violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in denying T.G. the right to adopt M.M.C. and in denying M.M.C. the right to be adopted by T.G. Because the adoption statutes do not restrict a fundamental right or regulate a protected class, we consider whether any rational basis exists for the legislative limits on eligibility to adopt a child. Among other legitimate state interests, promoting stability for adoptive children through marital families suffices for the statutes to survive this equal protection challenge; therefore, we affirm the circuit court. Background A.M.B. is the biological mother of M.M.C. and maintains a cohabitating, nonmarital relationship with her male partner, T.G. After more than a decade in a relationship with A.M.B., T.G. has become a father figure for M.M.C. and has assumed a variety of parental duties for her. The parental rights of M.M.C.'s biological father have been terminated. Based on T.G.'s fatherly bond and relationship with M.M.C., T.G. filed a joint petition with A.M.B. to adopt M.M.C. Prior to the adoption hearing, the county department of human services generated a "Home Study Report," which included a background check of T.G., a review of T.G.'s relationship with M.M.C., and an interview with M.M.C. The interview with M.M.C. revealed she did not have a meaningful relationship with her biological father and views T.G. as her father. The report concluded with a recommendation to grant the adoption. On June 20, 2022, the circuit court held a hearing on the adoption petition. At the outset, the court raised concerns over its authority to grant the petition given the criteria for adoption under applicable statutes, despite having determined the adoption would be in the best interests of the child, M.M.C. The circuit court cited this court's decision in Georgina G. v. Terry M., which the circuit court summarized as precluding "an adoption to a third party who is not the spouse of the parent." Because T.G. was not married to A.M.B., the circuit court determined T.G. was not statutorily eligible to adopt M.M.C. and denied the adoption petition. A.M.B. and T.G. appealed. The case bypassed the court of appeals on its way to the Supreme Court. The guts Chapter 48 of Wisconsin Statutes establishes legal adoption and specifies the circumstances under which a child may be adopted as well as who is eligible to adopt. Under the statutes, a child who is present in the State of Wisconsin when the adoption petition is filed may be adopted under any of the following four scenarios: (1) the parental rights of both parents have been legally terminated; (2) both parents are deceased; (3) the parental rights of one parent have been terminated and the other parent is deceased; or (4) "[t]he person filing the petition for adoption is the spouse of the child's parent with whom the child and the child's parent reside." Subsection (4) applies only if the child's other parent is deceased or his parental rights have been terminated. Colloquially called the "stepparent" exception, this provision permits a stepparent to adopt his spouse's child while the spouse's parental rights remain intact. The adoption statutes additionally identify three classifications of individuals who may adopt an eligible child: "A husband and wife jointly," "either the husband or wife if the other spouse is a parent of the minor," or "an unmarried adult." The statutes do not allow two unmarried adults to jointly adopt a minor. Nor do the statutes permit a nonmarital partner to adopt his partner's child. Omitting those categories of unmarried individuals from the list of eligible persons who may adopt means the law does not qualify them as adoptive parents." . . . *** The court discussed why the adoption statutes do not implicate a fundamental right under federal or state constitutions and do not affect a protected class of individuals. If a fundamental constitutional right is not at stake and a protected class is not disadvantaged by the statute, the court applies rational basis review. A "relatively relaxed standard," rational basis review reflects the court's respect for the separation of powers and recognizes "the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." In applying rational basis review, the court will uphold the statute provided the classification bears a rational relationship to a legitimate government interest. *** The state has a legitimate interest in ensuring children are adopted into "safe and stable families." The state may achieve this goal by encouraging married couples to adopt children and the legislature recognized the essential link between marriage and the welfare of children in "The Family Code." Marriage in the State of Wisconsin creates a legal bond between two persons who "owe to each other mutual responsibility and support." This legal bond creates a series of rights and obligations between the two individuals, dissolvable only by death or divorce. Wisconsin law imposes on each spouse "an equal obligation" in accordance with financial ability "to contribute money or services or both which are necessary for the adequate support and maintenance of" the couple's "minor children and of the other spouse." The state deems "[t]he consequences of the marriage contract" to be "more significant to society than those of other contracts." Unlike a nonmarital relationship, the legal union between two individuals through marriage cannot be terminated impulsively or spontaneously; the law requires a court proceeding to terminate the contractual relationship. If a child already has a legal parent, the state reasonably concludes it would be more beneficial for that child to be adopted into a marital family, rather than by an unmarried partner of the child's legal parent. As the state argued in its brief, the fact that marriage requires legal proceedings to terminate provides "some level of assurance" the adoptive stepparent "will remain committed to the family unit and the child’s upbringing." A child joining a family with married parents enjoys a greater likelihood of a financially stable upbringing compared to a household with two unmarried parents. In the event of a divorce, Wisconsin statutes create a presumption guaranteeing both marital partners leave the relationship on financially equivalent footing. This presumption "effectuates the policy that each spouse makes a valuable contribution to the marriage and that each spouse should be compensated for his or her respective contributions." Nothing comparable exists for unmarried couples. If an unmarried partner decides to sever the relationship, he may freely leave without an equal division of financial assets, to the financial detriment of the remaining parent and the adoptive child. Rational basis review is a "low bar" for the government to clear in an equal protection challenge. In this case, the state has met this burden because it is reasonable for the legislature to have concluded that a married couple would provide a more secure and financially stable home environment for adoptive children than an unmarried couple. While A.M.B. and T.G. may provide a safe, stable, healthy, and loving home for M.M.C., the judiciary is powerless to craft an exception to the adoption law on a case-by-case basis. "A legislative classification satisfies rational basis review if any conceivable state of facts could provide a rational basis for the classification." Petitioners cannot overcome the rational basis for the classifications established in the adoption statutes. Wisconsin has a legitimate interest in preferring the stability and security of a marital household for the upbringing of adopted children. The statute's classifications for whom may adopt a child reflects the state's interest in preferring stable and financially secure households for adoptive children. Petitioners argue the state draws an arbitrary and irrational distinction by permitting a single, unmarried adult to adopt a child but not a cohabitating, unmarried partner. We disagree. The legislative classifications bear a rational basis because the state may reasonably prefer a child to be adopted by a single, unmarried adult rather than be placed in foster care or another impermanent living arrangement. Because a child with one parent has permanency, the state has a legitimate interest in restricting adoption to the child's stepparent, who is more likely to provide a stable family and better outcomes for the child. Allowing married couples to adopt but not unmarried couples is consistent with the "public policy" of the state "to promote the stability of marriage and family." By allowing married couples to adopt but not unmarried couples, the state provides a benefit to married couples not afforded to unmarried couples. States "have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities." Precluding an individual from adopting his nonmarital partner's child merely makes marriage a basis for the adoption right, a classification rooted in our nation's history. Limiting adoption to married couples and single adults is neither irrational nor arbitrary because the state has legitimate reasons for the legislative classifications established . . . . Under rational basis review, the court does not judge the wisdom of the legislative classifications. Instead, we must uphold the statute's classification if there exists some rationale to justify it. In establishing eligibility to adopt or to be adopted, the legislature chose to prioritize the stability of marriage for adopted children with one parent, while preferring an unmarried adoptive parent to impermanency for a child with no parents. A rational basis exists for these legislative policy choices. We hold that the statutes do not violate the Equal Protection Clause because they serve the legitimate state interest in promoting the adoption of children into stable, marital families. Grassl Bradley concurrence For most of the history of the United States, constitutional-rights litigation occurred predominantly in state courts and centered on state constitutional rights. It's no wonder why. The individual rights protected by the United States Constitution did not originally apply to the states. Regardless, all individual rights protected under the Constitution originated from the guarantees of liberty embodied in state constitutional provisions. Even the practice of judicial review—the main vehicle by which citizens vindicate their liberties—originated in state courts. Invoking state constitutional rights, however, has been out of vogue for some time. Such claims have sometimes been relegated to "second-tier status," and an afterthought in legal briefs. Many commentators have noted the decline in the centrality of state constitutional claims as the United States Supreme Court federalized constitutional rights during the Warren Court era. Over the course of the twentieth century, and especially in the 1960s, the Court incorporated most federal constitutional rights against the states through the Fourteenth Amendment. As incorporation occurred, the Court also developed expansive—and novel—interpretations of the Constitution. As Justice William Brennan put it, the Court "fundamentally reshaped the law of this land" by "nationaliz[ing] civil rights." As a result, the relevance of state constitutions appeared to fade. Litigants stopped arguing their cases under state constitutions. Some state courts interpreted their state constitutions in lockstep with the federal courts' interpretation of the Federal Constitution. In recent years, a newfound interest in asserting state constitutional rights has emerged, which, in theory, should benefit individual liberty. State constitutional rights are just as important and worthy of protection as federal constitutional rights. And this court has a duty to enforce the rights protected under the Wisconsin Constitution. Not all arguments for enforcing state constitutional rights are rooted in text, history, and tradition; some stem from disappointment with the outcomes in certain United States Supreme Court decisions. Negative reaction to the Burger, Rehnquist, and Roberts Courts' reluctance to "innovate" new federal constitutional rights, triggered a resurgence of interest by litigants and legal commentators in asking state courts to fill the gap. For example, in two famous law review articles, Justice William Brennan urged state courts to "step into the breach" created by the Court, and argued that "activist intervention[s]" into democratic governance are less problematic when done by state courts. The pressure on state courts to intrude on the democratic process has intensified with the Court's landmark decisions in Rucho (gerrymandering) and Dobbs (abortion). Channeling the spirit of Justice William Brennan, Justice Rebecca Dallet argues this court should abandon its past practice of construing Article I, Section 1 of the Wisconsin Constitution to provide substantially identical protections as the Fourteenth Amendment. Instead, she invites litigants to ask this court to invent constitutional rights: "[T]he lack of settled case law [discussing Article I, Section 1] should be encouraging to litigants. It is up to us—judges, lawyers, and citizens—to give effect to the fundamental guarantees of Article I, Section 1." As a pivotal part of her call for activism, Justice Dallet claims this court has embraced a "pluralistic approach" to constitutional interpretation in which this court "balance[s] the majority's values against the values that should be protected from society's majorities." Nothing could be further from the truth or more corrosive to our democratic form of government. It is not for judges to superimpose their values on the constitution. The Wisconsin Constitution's text "is the very product of an interest balancing by the people," which judges cannot "conduct for them anew" in each case. The balance struck by the people of Wisconsin, as embodied in the constitution, "demands our unqualified deference." What the constitution does not say is as important as what it says. If the constitution itself does not bar majorities from passing certain laws, there is no lawful basis for judges to say otherwise. Nothing in the constitution authorizes judges to void laws that violate some judges' sense of what ought to be. There is a good reason jurists "seldom endorse[]" the views espoused by Justice Dallet openly: They contradict "the basic democratic theory of our government." Justice Dallet attempts to conceal her call for an antidemocratic power grab with the illusion of inclusive language. She intimates that future generations must each decide for themselves what the constitution means in their time: "It is up to us—judges, lawyers, and citizens—to give effect to" the constitution's words today. When the president of Wisconsin's 1848 convention said "the pages of our constitution . . . abound[] in the declaration of those great principles which characterize the age in which we live," he did not mean to characterize the constitution as an empty vessel into which each generation may pour its prejudices and aspirations. He meant exactly what he said. The new constitution embodied the values and principles of that time, and those principles were to remain fixed and endure throughout the ages: "[The Wisconsin Constitution] abounds in the declaration of those great principles which characterize the age in which we live, and which, under the protection of Heaven, will—nay, must—guard the honor, promote the prosperity, and secure the permanent welfare of our beloved country." Justice Dallet ultimately advocates for the discredited "practice of constitutional revision" by a committee of four lawyers who happen to form a majority on the court. Should a majority of this court—four lawyers—decide to imbue the constitution with modern meanings divorced from the constitutional text and the history and traditions of this state, they will rob the people of Wisconsin of their most important liberty: "the freedom to govern themselves." Although living constitutionalism is often couched in the rhetoric of flexibility and a purported need to adjust for a changing society, in practice it presents a grave threat to democracy by thwarting the people from passing legislation to accommodate changing views. Living constitutionalism invites lawyers donning robes to decide all the important issues of the day, removing their resolution from the political process altogether and depriving the people of any say in such matters. "In practice, the Living Constitution would better be called the Dead Democracy." Justice Dallet's invitation to reimagine the constitution's text with a so-called "pluralistic approach" flies in the face of this court's established method of constitutional interpretation and should be rejected. As with statutory interpretation, the goal of constitutional interpretation is to ascertain the meaning of the constitutional text as it would have been understood by those who adopted it. Judges lack any authority to "rewrite the Constitution to reflect the[ir] views and values." As stated by Justice Cassoday in 1890: "It is no part of the duty of this court to make or unmake, but simply to construe this provision of the constitution. All questions of political and governmental ethics, all questions of policy, must be regarded as having been fully considered by the convention which framed, and conclusively determined by the people who adopted, the constitution, more than 40 years ago. The oath of every official in the state is to support that constitution as it is, and not as it might have been." *** Any argument construing Article I, Section 1 of the Wisconsin Constitution to protect an asserted right must be grounded in the constitution's actual text and history. "Certainly, states have the power to afford greater protection to citizens under their constitutions than the federal constitution does." But it cannot simply be assumed that the Wisconsin Constitution provides more protection for an asserted right than the Federal Constitution: "[T]he question for a state court is whether its state constitution actually affords greater protection. A state court does not have the power to write into its state constitution additional protection that is not supported by its text or historical meaning." This court has stated many times that "[i]n interpreting a constitutional provision, the court turns to three sources in determining the provision's meaning: the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption." Litigants asserting a right under Article I, Section 1 must ground their arguments in those considerations—not policy or subjective moral judgments. Our constitution and our commitment to a democratic form of government demand nothing less. Dallet concurrence I agree with the majority's conclusion that the adoption statutes are rationally related to a legitimate state interest, and therefore do not violate M.M.C.'s or T.G.'s rights under the Equal Protection Clause of the Fourteenth Amendment. For that reason, I join the majority opinion. I write separately to address petitioners' alternative equal protection challenge under Article I, Section 1 of the Wisconsin Constitution. Our constitution was written independently of the United States Constitution and we must interpret it as such, based on its own language and our state's unique identity. When we do so, there are several compelling reasons why we should read Article I, Section 1 as providing broader protections for individual liberties than the Fourteenth Amendment. We cannot simply assume—as petitioners seemingly did in this case—that these different constitutional provisions mean the same thing. *** (W)e have a long history of interpreting our constitution to provide greater protections for the individual liberties of Wisconsinites than those mandated by the federal Constitution. For example, we concluded that the Wisconsin Constitution guarantees the right to counsel at the state's expense in criminal cases more than 100 years before the United States Supreme Court recognized the same right in Gideon v. Wainwright. More than 40 years before Mapp v. Ohio, we held that suppression was the appropriate remedy for unlawful searches and seizures under our constitution. And we have also said that when police deliberately violate a criminal defendant's Miranda rights, our constitution requires that the evidence be suppressed, even if the Fourth Amendment doesn't require the same. More recently, we have endorsed the view that "[t]he Wisconsin Constitution, with its specific and expansive language, provides much broader protections for religious liberty than the First Amendment." *** Even a cursory review of Article I, Section 1 of our constitution and the Fourteenth Amendment indicates that the clauses have different meanings. Article I, Section 1 states, in its entirety: "All people are born equally free and independent, and have certain inherent rights: among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." Compare this with the Fourteenth Amendment which provides in pertinent part that "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Aside from two shared words—"life" and "liberty"—Article I, Section 1 and the Fourteenth Amendment are worded in dramatically different ways. Article I, Section 1 protects more than the enumerated rights of "life, liberty, or property." It declares unequivocally that all Wisconsinites have "inherent rights," a phrase that was written "to be broad enough to cover every principle of natural right, of abstract justice." Whereas the Fourteenth Amendment's protections extend only to those rights "so rooted in the traditions and conscience of our people as to be ranked as fundamental," the inherent rights contemplated by Article I, Section 1 are not so limited. Moreover, Article I, Section 1 begins with the clear and expansive declaration that all people are "born equally free and independent." As we said over a century ago, "[t]oo much dignity cannot well be given to that declaration." By contrast, the Fourteenth Amendment contains a narrower guarantee of "equal protection of the laws." *** Notwithstanding the many reasons to interpret our state constitution differently than the federal Constitution, litigants often overlook state constitutional claims, or fail to develop them fully. This case is a perfect example. Although petitioners argued that the adoption statutes at issue violate Article I, Section 1 of the Wisconsin Constitution, they offered little more than a citation to that section as support. Otherwise, the parties' briefs focused solely on the Fourteenth Amendment and federal precedent, and ignored the Wisconsin Constitution entirely. That omission is somewhat understandable. Lawyers are surely more familiar with the extensive case law interpreting the Fourteenth Amendment. By comparison, our case law regarding Article I, Section 1 is sparse. But we must break this self- perpetuating cycle whereby lawyers fail to develop state constitutional arguments because they lack clear legal standards, which further prevents courts from developing clear legal standards. In a way, the lack of settled case law should be encouraging to litigants. It is up to us—judges, lawyers, and citizens—to give effect to the fundamental guarantees of Article I, Section 1. And in doing so, I agree with what Justice Dodge wrote more than 100 years ago, when he said that Article I, Section 1, should "not receive an unduly limited construction." Karofsky concurrence I agree with the majority that A.M.B.'s constitutional challenge merits rational basis review and that the challenged adoption statutes have a rational basis under the law. Rational basis review presents a low bar for the state to clear. We need only to conceive of a single rational connection between the statutes and a legitimate state interest in order for us to uphold the statutes' constitutionality. Here it is rational for the legislature to connect marriage to relationship longevity, then relationship longevity to household stability, and finally household stability to the child's best interest. Because there is a conceivable logic behind those connections, the statutes have a rational basis. But in this case, the logical threads begin to shred under the weight of any sincere scrutiny. Here, we are left with the inescapable fact that the legally rational statutes prevented an adoption that all agree would have been in A.M.B.'s best interest. This incongruent outcome exemplifies the specious connection between the statutes and their stated goal of promoting a child's best interest. At first glance the connection may seem neatly knitted together; however, closer inspection reveals nothing more than a fraying tangle of dubious assumptions, circular reasoning, and outdated values that fail to reflect the practical realities of modern family life. I write separately to call out these three fraying threads that form an ever weakening connection between our adoption statutes and the goal of a child's best interest. I urge the legislature to reform the adoption restrictions so that they truly support the best interest of every child. The first fraying thread connecting the adoption statutes to the best interest of a child is a set of dubious assumptions regarding the stability of marital families compared to non-marital families. To be clear, the state has a legitimate interest in making sure that legal decisions involving a child are made based on the best interest of that child. And there is no doubt that it is in a child's best interest to grow up in a safe and stable household. However, conditioning adoption on the marital status of the child's parent and prospective adoptive parent reflects questionable assumptions about which types of households are stable, and which are unstable. There are many different family structures that create stability for children, and the statute's one-size-fits-all approach can actively work against the benefit of a child, as it did in this case. Children can and do thrive in families with single, unmarried, or married parents. This case is an excellent example of the second category. T.G. has, by all accounts, demonstrated dedication and commitment to A.M.B. over the past decade, and for her part A.M.B. reports that she views T.G. as a father figure. There is no dispute that adoption would be in A.M.B.'s best interest. Moreover, children can and do struggle in households with married parents. Married couples may, on average, stay together in the same household longer than unmarried parents, and that may look like stability from a thousand-foot-view. But inside the home, the legal pressure for a married couple to stay together, the very thing that makes the household appear stable in a superficial sense, may sometimes lead to worse outcomes for children. More than 20% of children have witnessed domestic violence within their lifetime, often resulting in long term harm to their development. Even short of domestic violence, legally "stable" marriages may be rife with stressors for the children in those homes. Even ignoring the challenges that may arise when a married couple remains together, marriage is hardly a guarantee of relationship stability given that divorce rates have continued to rise in the United States since the Civil War. In short, using marriage as a litmus test for household stability reflects suspect assumptions about which family structures create stability, and what it means for a household to be stable in the first place. Marriage is treated as binary, where married parents check the stability box, unmarried parents do not, and all nuance is disregarded as insignificant. In cases such as this where unmarried parents provide stability, there is no tolerance for any exception. And, as a result, children suffer. The second frayed thread linking the adoption statutes to the best interest of the child goal is little more than tail-wagging-the-dog circular reasoning. It goes like this: The state grants a "constellation of benefits" to married couples related to "taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority," and more. The state then uses those benefits as justification to grant yet another benefit to married couples—here, adoption rights—reasoning that because married couples are already well-supported by the state, they are in a better position to receive the new benefit. The connection between the granting of the benefit and the state's goals is thus substantially manufactured by the state, resulting in a spiral of ever-expanding benefits to married couples, leaving alternative family structures further and further behind. Perhaps the answer then is not to limit adoption benefits to married couples on the basis that the other benefits they receive make them "safe and stable," but for the legislature to expand support for alternative family structures, making them even more "safe and stable," and (from the state's point of view) suitable for adopting children. The third unraveling thread is an outdated set of values positioning marriage as the moral center of family and society. These values sometimes lurk beneath other seemingly neutral rationales for marital benefits (such as ensuring household stability), only surfacing occasionally as a reminder to us that they are still there. Sometimes these values are front and center, serving as the main justification for a marriage-based distinction under the law. To explain what is fundamentally wrong with using this set of values to justify marriage-based laws, I turn to an 1888 U.S. Supreme Court case . . . that expounded on marriage as "the foundation of the family and of society, without which there would be neither civilization or progress." At the time those words were written, the following was true about the institution of marriage. Coverture laws subordinated married women to their husbands' legal control, eliminating their legal and economic identities. As a result, a married woman's property, earnings, and labor automatically belonged to her husband. In addition, there was no legal recourse for a married woman whose husband had sexually assaulted her, which would be true well into the 1970s in many states. And neither married women nor unmarried women had the right to vote, to exercise civic influence in order to right these wrongs. Furthermore, marriage was limited exclusively to heterosexual relationships. And, marriages between people of differing races and ethnicities were widely banned. In short, if marriage was the foundation of the family and of society in 1888, there was something rotten at the core of that foundation. Times have changed, of course, but the justification that marriage is the moral core of society and the family is as weak as it ever was. With only about half of U.S. adults in a marriage, first marriages beginning later in life, and increasing divorce rates over time, Americans are spending more and more of their adult lives unmarried. Unsurprisingly then, nearly one third of children live in a single-parent home. Yet many Americans still desire to create families. Functional, stable families continue to form as alternative family structures proliferate and garner greater societal acceptance. The notion that marriage serves as the foundation of society is at best outdated, and at worst misogynistic. It provides scant justification for laws that distinguish based on marital status. By Margo Kirchner
We continue our summary of justice-related laws passed this last legislative session, many of which created new crimes and increases criminal penalties rather than easing the number of incarcerated individuals and the harsh aspects of Wisconsin's criminal justice system. Part 1 is available here. Except for interim committee work, the Legislature has adjourned until after the November 2024 elections. Here’s more of what was signed into law. Senate Bill 314, now 2023 Wisconsin Act 224 Current law criminalizes possession of child pornography involving a real child engaged in actual or simulated sexually explicit conduct. This law adds a new felony crime for receiving, distributing, producing, possessing or accessing an obscene photograph, film, or digital or computer-generated image that appears to depict a child engaged in sexually explicit conduct even though no actual child is in the image. Senate Bill 321, now 2023 Wisconsin Act 225 The Legislature created a new crime for illegal possession of a “child sex doll,” with various levels of felony punishment based on number of dolls, repeat offenses, and past convictions for other crimes against children. A child sex doll is defined as an anatomically correct doll, mannequin, or robot with features resembling a minor child, intended for use in sex acts or to manipulate or instruct children to participate in sex acts. Manufacture, sale, transferring, advertising, and providing premises for child sex doll use are also prohibited. Senate Bill 514, now 2023 Wisconsin Act 226 This law increases the felony level penalties for fleeing an officer. It provides for mandatory minimum incarceration periods of 18 months if the violation results in great bodily harm and 30 months if the violation results in death. Senate Bill 169, now 2023 Wisconsin Act 228 This law requires the Department of Workforce Development to establish a toll-free telephone hotline and website with information to help employers interested in hiring individuals with a conviction record. The hotline staff are to provide information on available incentives and programs under state and federal law for employing individuals who have criminal conviction records. Senate Bill 722, now 2023 Wisconsin Act 229 This law requires that Department of Corrections’ training programs for correctional officers include identifying symptoms of active psychosis and reporting such symptoms to the correctional institution’s superintendent and appropriate medical personnel. In addition, the new law expands who may authorize a voluntary transfer of an incarcerated person from jail or prison to a mental health treatment facility. Previously only a physician or psychologist could do so; now a registered nurse, licensed practical nurse, or physician assistant can as well. The law requires that DOC authorize an emergency transfer to a mental health treatment facility or the Wisconsin Resource Center if there is reason to believe a person in DOC care is in active psychosis and a danger to self or others. Assembly Bill 237, now 2023 Wisconsin Act 230 Act 230 changes procedures regarding parole and extended supervision hearings and release. The law increases the notice period for victims from seven to 30 days before the parole or other release hearing, provides that a victim has the right to make an oral or written statement and present visual aids at any hearing, and requires the person being considered for parole or extended supervision release to submit to a psychological evaluation beforehand. The law also allows a police chief or sheriff where the person plans to reside upon release to share information regarding the released individual with the public, if the law enforcement officer thinks it necessary. Assembly Bill 556, now 2023 Wisconsin Act 231 Courts must expedite proceedings in criminal and juvenile matters involving a victim or witness who is an elder, meaning age 60 or older. On any motion for continuance, the court must consider any adverse impact on the well-being of an elder victim or witness. The court must also preserve testimony in criminal matters involving a victim or witness who is an elder if the prosecutor so requests. Upon the prosecutor’s motion, the court must hold a hearing within 60 days to record the elder person's testimony, with the defendant present and able to cross-examine the witness. The recorded testimony will be admissible in evidence in any later court proceedings in the case. Senate Bill 172, now 2023 Wisconsin Act 233 This law requires the DOC to contract with at least one nonprofit organization, for-profit entity, or public agency to establish a community reentry center to assist those released from incarceration with health, identification, financial, housing, employment, education, and supervision services. The DOC must prioritize contracts in counties with the highest numbers of individuals being released from incarceration. DOC staff must be present at the centers to provide case management services. Assembly Bill 965, now 2023 Wisconsin Act 234 As reported previously by WJI, this law creates a new misdemeanor crime for picketing or demonstrating at a judge’s residence with the intent to impede the administration of justice or influence the judge in the discharge of judicial duties. Assembly Bill 966, now 2023 Wisconsin Act 235 As reported previously by WJI, this law enhances privacy protections for judges. The law includes creation of a new felony for publicly posting on the internet personal information of a judicial officer or their immediate family if the intent of the posting is to create or increase a threat to the health and safety of the judicial officer or their family and bodily injury or death of the judicial officer or family member is a natural and probable consequence of the posting. Senate Bill 874, now 2023 Wisconsin Act 254 Certain sex offender registry lifetime tracking requirements and notifications are required for someone released after having been convicted :on two or more separate occasions." This law defines how prior offenses are counted for that purpose. The new law is retroactive, and the DOC must notify persons who were not subject to the lifetime tracking requirement before the bill took effect but now are. If a person fails to register as a sex offender or submit to lifetime tracking within 30 days of notice, the violation is a new felony. By Gretchen Schuldt
Little progress was made this last legislative session to ease the state’s tough criminal justice laws, while Gov. Tony Evers — who took office talking about reducing the prison population — signed several bills creating new crimes and harsher penalties. An oft-introduced bill that would have eased expungement rules and another bill that would have provided juveniles sentenced to life in prison with a chance at reduced sentences failed to get to the governor’s desk. The Legislature has no more floor periods scheduled until the next legislative session begins in January 2025. Here’s a look at what was signed into law. Senate Bill 292, now 2023 Wisconsin Act 1 The law lets municipalities adopt ordinances allowing law enforcement officers to grab up and impound a vehicle if all of the following conditions are met:
The ordinance can call for the vehicle to remain impounded until its owner pays off the earlier forfeiture and for the costs of impoundment, including “towing or other transportation costs and storage costs.” If the owner does not claim the vehicle for 90 days after the disposition of the ticket, the municipality can treat the vehicle as abandoned. Senate Bill 75, now 2023 Wisconsin Act 3 This law was enacted to implement two changes to the state constitution approved by voters in April 2023. Before the amendments, the constitution limited monetary bail to the amount needed to assure a defendant’s appearance in court or to protect members of the public from serious bodily harm. Voters approved changing the constitution’s wording from “serious bodily harm” to “serious harm” as defined by the Legislature defined it in law. The Legislature in this new law adopted a broad definition of “serious harm” after the amendments were adopted. "Serious harm" now includes damage to property over $2,500; economic loss of $2,500; or physical pain, injury, illness, any impairment of physical condition, or death, plus any related mental anguish or emotional harm. Voters also approved allowing a court to impose cash bail for those accused of a "violent crime" as defined by the Legislature, “based on the totality of the circumstances, taking into account whether the accused has a previous conviction for a violent crime as defined by the legislature by law, the probability that the accused will fail to appear in court, the need to protect members of the community from serious harm as defined by the legislature by law, the need to prevent the intimidation of witnesses, and the potential affirmative defenses of the accused.” The new law defines "violent crime" with a long list of crimes and conforms statutory law to the constitutional change. Assembly Bill 55, now 2023 Wisconsin Act 9 Prior to the new law, penalties for reckless driving ranged from a $25 forfeiture to a maximum penalty of 3½ years in prison and a $10,000 fine. The new law stiffens the penalties and adds surcharges. The penalty changes include:
People found guilty of reckless driving also will be assessed a $435 driver improvement surcharge and a $50 safe driver surcharge. Senate Bill 76, now 2023 Wisconsin Act 10 This law increases the penalty for carjacking while possessing a dangerous weapon, by use of force, or by the threat of the weapon. The maximum penalty jumps from 40 years in prison and a $100,000 fine to 60 years in prison. Senate Bill 101, now 2023 Wisconsin Act 29 The penalty for causing the death of another by the unlawful distribution of a Schedule I or II drug or their analogs, ketamine, or flunitrazepam (“roofies”), or by illegally administering or helping to administer those drugs increases from 40 years in prison and a $100,000 fine to 60 years in prison. Assembly Bill 47, now 2023 Wisconsin Act 31 Parole Commission transparency is increased under this bill. It requires the Department of Corrections to post, on the Parole Commission website, the individuals “granted parole, denied parole, and returned to prison following the revocation of parole.” DOC must post monthly and annual aggregate numbers showing:
The law mandates the agency post any guidance documents the Parole Commission uses in making parole decisions. The law allows family members of victims, who were under 18 years old at the time of the crime but who are now adults, to request notification of when the offender is requesting parole or is released on parole or supervision. The measure also increases, from three weeks to 90 days before a parole hearing, the deadline for notifying certain people that an incarcerated person has applied for parole. Assembly Bill 166, now 2023 Wisconsin Act 61 There are new actions that constitute “sexual contact” in determining crimes against children and sexual assault. Those actions include “touching by the complainant of the ejaculate, urine, or feces of any person upon the intentional instructions of the defendant, upon the use or threat of force or violence by the defendant, or upon an intentional act of the defendant.” Senate Bill 485, now 2023 Wisconsin Act 133 The definition of financial institution robbery is expanded under this law to include robbery accomplished “by creating circumstances that would cause a reasonable person to believe use of force was imminent.” The definition previously was limited to robbery “by use of force or threat to use imminent force” to take property owned or in the custody or control of a financial institution. Senate Bill 313, now 2023 Wisconsin Act 154 The penalty for failing to stop for a school bus when it is stopped and flashing red warning lights is increased under this law. The forfeiture rises from a $30 to $300 range, to $1,000. The Wisconsin Department of Transportation also must assess demerit points for any infraction. Senate Bill 460, now 2023 Wisconsin Act 159 This law adds railroad construction and maintenance areas to other areas (such as highway construction areas) where workers are at risk from traffic. The law doubles fines for certain traffic violations committed where workers are present in a railroad construction or maintenance area. Senate Bill 333, now 2023 Wisconsin Act 200 A new crime, sexual misconduct against a pupil, is created under this law. The new law prohibits certain conduct by a school employee or volunteer, including verbal conduct of a sexual nature, meaning “communications made intentionally for the purpose of sexually degrading or sexually humiliating the pupil or the actor, or sexually arousing or sexually gratifying the pupil or the actor,” according to a Legislative Council amendment memo. It also prohibits physical contact of a sexual nature. The Department of Public Instruction must revoke the licenses of those convicted of sexual misconduct. Assembly Bill 437, now 2023 Wisconsin Act 212 This law increases, from $1,000 to $5,000, the forfeiture for a fraud-involved violation of an insurance statute or rule. Senate Bill 875, now 2023 Wisconsin Act 217 Testing materials involved in detecting the drug xylazine or a xylazine analog are exempt from the definition of illegal “drug paraphernalia,” under this law. The law also provides civil and criminal immunity to anyone who distributes such testing material if a person dies or is injured as a result of the material’s administration. The person administering the testing material also is provided immunity, “except for civil liability for negligence in the performance of the act.” More to come in part 2. By Margo Kirchner
When John Remington takes his seat this month as Milwaukee County Circuit Court judge, he will be the eighth new judge joining the court during the past 12 months. And once newly elected Marisabel Cabrera takes her seat, about one-fifth of the judges on the court will have been appointed since June 2023. Cabrera’s term starts Aug. 1. For comparison, just one judge started on the court in all of 2022 and two in 2021. “Is it unusual to have this many (new judges)? Yes, no question,” said Milwaukee County Circuit Court Chief Judge Carl Ashley in an interview with WJI. Cabrera and Judge Ana Berrios-Schroeder were elected. The other seven new judges were appointed by Gov. Tony Evers to fill vacancies. (Several of the appointees then won election in April to serve new terms beginning Aug. 1.) A chart below shows the new judges and their start dates based on information provided by Ashley. Milwaukee County Circuit Court has 47 judicial seats (called branches). In lesser-populated counties, some with just one judicial seat, the judges hear all varieties of cases. But in Milwaukee County, judges are assigned to specific divisions such as felony, misdemeanor, civil, probate, children’s, or small claims court. Ashley said that historically most new judges have started in children’s or misdemeanor court. However, when a judge had prior experience in a particular area of the law, a start in another division has occurred. Becoming a judge is a transition, he said, and “We want to be supportive of the judge” during that transition. Veteran judges are always helpful for the new judges, he said. In Milwaukee County, judges generally rotate after four years maximum in a particular division. For rotations, the chief judge takes into account where the judges want to be assigned, their seniority, and other factors. Ashley said we wants to have the best judges where they are needed. “Does (the number of new judges) impact the ability to assign judges? Yes,” he said, adding that it's all part of balancing and “just something we have to adjust for.” “As one would expect, there’s a bit of a learning curve that every judge experiences as they acclimate themselves to being a judge. As chief judge that impacts how judge assignments are made, but that is the nature of the process,” Ashley told WJI. The number of new judges is not the only change that today impacts initial judge assignments to children’s court, Ashley said. Children’s court has changed as well, with nearly 10 homicide cases in children’s court in the past year, compared with perhaps one per year before then, he said. “Things have changed on both ends." Ashley noted his respect for the judges who have retired recently. “I certainly want to acknowledge our veteran judges who have served our community for decades with great skill and commitment. The legacy of their mentorship has been and will be invaluable to our newer judges,” he said. Currently, a committee led by Deputy Chief William Pocan and District 1 (Milwaukee County) Court Administrator Stephanie Garbo is studying rotation procedures for Milwaukee County Circuit Court. Ashley said the process for rotations was last assessed about 15 years ago. The committee gathered survey data and other input from attorneys, current and retired judges, and the public. The committee will soon present Ashley with recommendations for any changes to the processes and policies governing rotations. |
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