By Gretchen Schuldt
A dispute over the right of an unmarried couple to adopt a child is at the center of the first case the state Supreme Court will hear in September. Most of the case, which bypassed the Court of Appeals, is confidential. But one document, a reply brief filed by attorneys representing the unmarried couple, is available. It names as a defendant Ashland County Circuit Judge Kelly J. McKnight, who rejected an unmarried couple's request to adopt a child. The couple, referred to as A.M.B. and T.G. in the brief, are appealing. McKnight, wrote the couple's lawyers, John R. Carlson and Carla J. Smith, "chooses to focus first and foremost on 'protecting marriage' – an institution in which the child does not even participate." The judge "obfuscates the core intent and interest of the legislature – the best interest of the child." McKnight, who as a judge is a state official, is represented by Assistant Attorney General Lynn K. Lodahl. "The Legislature makes its intent clear in the first few sentences of Chapter 48 (the Children's Code) – 'the best interests of the child or unborn child shall always be of paramount consideration," the lawyers wrote, emphasizing the key words. "A sentence with no qualifications, conditions, or exceptions." The law identifies the secondary, qualified goal of preserving the unity of the family "whenever appropriate," they said. "And the word 'traditional' never appears anywhere in the legislative intent section." M.M.C., as the child is called in the brief, never had a relationship with her biological father and his parental rights were terminated. There is no ability to preserve the unity of M.M.C.'s family, Carlson and Smith said. "The legislative intent of 'preserving the unity of the family' should not be mistaken for what the Court tried to do – force two unwilling participants into a marital contract – an event that was not centered on the child or her best interest, but focused solely on a technicality that would have no effect on M.M.C.’s day-to-day life," they said. McKnight "determined that the best interest of the child was wholly irrelevant in determining whether to approve an adoption," they said. The law specifically allows "an unmarried person" to adopt, they said. "If the legislature were seeking to 'promote marriage, stability for children and families…[and] protect the traditional unitary family,' it does not make sense the legislature would explicitly permit unmarried individuals to adopt under Wisconsin law," they wrote. Oral arguments in the case are scheduled for 9:45 a.m. Sept. 11.
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By Gretchen Schuldt
Gov. Tony Evers signed a bill sharply raising the penalty for first-degree reckless homicide involving drugs from 40 years in prison to 60 years in prison. The governor did not justify or explain his action in the press release announcing the signing, though he addressed reasons for signing another bill. The measure was introduced as SB101, and is now Act 29. First-degree reckless homicide is charged when someone dies of an overdose after taking drugs, virtually always voluntarily. The charge can be issued against a drug dealer or even a friend who was with the user when the user purchased the drugs. Technically, the law prohibits causing the death of another person "by manufacture, distribution, or delivery of, or by administering or assisting in administering," certain drugs. Opponents of the bill say it will prevent people who are with the victim at the time of the overdose from seeking help before death occurs because they are worried about prosecution. Evers did not address that possibility. Evers also signed a bill requiring increased transparency from the Parole Commission, including the requirement that additional statistics and information be published on the Department of Corrections' website. That bill, AB47, is Act 31. Evers was more forthcoming about his reasons for signing this bill than he was in explaining why he signed the overdose bill. “Ensuring transparency, accountability, and appropriate support and notification for victims, survivors, and their families is absolutely vital to the success of the Parole Commission and of our criminal justice system as a whole,” Evers said. Justice-related bills pending in the Legislature include those below. A chart showing the sponsors of each is at the bottom of this post. SB302/AB301 – Sexual contact lawsuits This bill would allow more time for a childhood victim of incest, sexual assault, or sexual contact to sue the alleged perpetrator. Currently, the victim must bring an action before reaching the age of 35; this bill would raise the age to 45. In addition, it would apply to all adult offenders, not just clergy members. SB313/AB313 – Failure to stop for a school bus The minimum penalty for failing to stop for a stopped school bus with flashing red lights would increase 10 times, from a forfeiture $30 to $300, under this legislation. The maximum penalty would jump from $300 to $1,000. The bill also would require the Department of Transportation to assess three demerit points against the record of a person convicted of failing to stop for a school bus. Under the demerit system, repeated traffic violations can lead to the suspension of a person's driver's license. SB314/AB315 – Possession of child pornography Under this bill, the depiction of actual children engaged in real or simulated sex no longer would be necessary to be charged or convicted of possessing child pornography. Instead, possessing pornographic images of someone who looks like a child or of computer-generated or hand-drawn pictures of children would be enough. The bill, according to the Legislative Reference Bureau, would make it illegal to knowingly receive, distribute, produce, possess, or access, with the intent to look at, obscene photographs, film, motion pictures, or digital or computer-generated images or pictures that contain a visual representation that appears to depict an actual child engaged in sexually explicit conduct although the representation does not depict an actual child. (Imagine the arguments over whether that 16- or 17-year-old looks like a child or an adult!) Violations would be punishable by up to 25 years in prison and a $100,000 fine. The bill includes a three-year mandatory minimum sentence. SB321/AB329 – Child sex dolls It would be illegal to possess child sex dolls, under this bill. Such dolls are defined as "anatomically correct doll, mannequin, or robot, with features that resemble a minor that is intended for use in sex acts, for sexual gratification, or for manipulating children into participating in sex acts, instructing children how to participate in sex acts, or normalizing sexual behavior with children," according to the Legislative Reference Bureau. Penalties for violations would vary depending on how many dolls are involved, past offenses, and past convictions for crimes against children. A first offense involving fewer than three dolls, for example, would be punishable by up to 3½ years in prison and a $10,000 fine. For a second offense involving at least three dolls, the penalty would be up to six years in prison and a $10,000 fine; for a third offense, up to 10 years in prison and a $25,000 fine. The penalties are tougher if the doll is intended to represent a specific child or if the offender has been previously convicted of intentional child abuse of a child, first-degree sexual assault of a child, sexual exploitation of a child, use of a computer to facilitate a child sex crime, or possession of child pornography. The bill also makes it a felony to provide premises for the use of a child sex doll, or to transfer, advertise, or display a child sex doll, instructions on how to create one, or materials intended to create one. The bill also prohibits intentionally making a child sex doll. Exempted from the created prohibitions under the bill are law enforcement officers, physicians, psychologists, attorneys, court officers, and others involved in law enforcement or child therapy, as long as their sex-doll activity is done in the lawful performance of their duties. By Gretchen Schuldt
Supreme Court rules don't support Chief Justice Annette K. Ziegler's complaint that the new liberal court majority ignored them when it dismissed at-will employee Randy Koschnick as director of state courts and changed the way the court runs. The Koschnick decision, Ziegler said, "was made without regard for the Constitution, case law, or Supreme Court rules." But here's what the court's own operating procedures (emphasis added) actually say: The court continually reviews its procedures to improve the efficient processing of its caseload and the effective discharge of its administrative responsibilities. Accordingly, these procedures may be changed without notice as circumstances require. It should be reemphasized that these are not rules. They do not purport to limit or describe in binding fashion the powers or duties of any Supreme Court personnel. These internal operating procedures are merely descriptive of how the court currently functions. Any internal operating procedure may be suspended or modified by majority vote of a quorum of the court. The rules say the courts director "is appointed by and serves at the pleasure of" the Supreme Court. Ziegler also said the majority's decision to set up a new committee with new administrative powers and to increase court transparency was made in an "illegitimate closed meeting." It was the then-conservative majority who in 2012 voted, 4-3, to close many Supreme Court administrative meetings. Ziegler voted in favor of secrecy. The new majority voted this week to open those meetings again. And did the majority "gut" Ziegler's constitutional authority as administrator of the court, which she alleged in a statement? In a word, no. Here's what the constitution says: "The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court." (Emphasis added.) Finally, Ziegler said changes like those the court majority has announced are made "when seven members of the court convene with an agenda prepared by the Chief Justice and at a time set by the Chief Justice during the court’s business year, which is September-June." Ziegler, in other words, believes the court should consider only the rules that Ziegler likes at a time that Ziegler likes. But now the court's new four-member majority constitutes a quorum of the court and will actually have a say in how things run. The court's own procedures and the state constitution make that clear. "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is. Name: Ryan Nilsestuen Appointed to: Dane County Circuit Court Appointment date: Dec. 22, 2022 (term ends July 31, 2024) Education: Law School – University of Wisconsin-Madison Undergraduate – Luther College, Decorah, Iowa High School – DeForest Area High School, DeForest, Wisconsin Recent legal employment: January 2019-present – Chief legal counsel, Office of the Governor, Madison, Wisconsin June 2011-January 2019 – Chief legal counsel, attorney, LTE, and law clerk, Wisconsin Department of Public Instruction, Madison, Wisconsin Bar and administrative memberships: State Bar of Wisconsin General character of practice: I lead a team of talented attorneys who advise Gov. Evers and his Administration on everything from routine legal matters to high-stakes litigation. This includes successfully advising and representing key decision makers on issues that impact the entire state of Wisconsin, including redistricting, elections, separation of powers challenges, employment cases, and public records lawsuits. I also chair the Governor's Pardon Advisory Board. In this role, I have assisted Gov. Evers in pardoning hundreds of individuals who have made amends and completed serving their felony sentence. Describe typical clients: I represent Gov. Evers and his administration. As a result, I have significant experience in a wide variety of areas in the law, including administrative, constitutional, contract, criminal, elections, employment, and public records law. Number of cases tried to verdict: Unknown (most litigation experience in administrative contested case hearings) List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years: Coyne v. Walker, 2016 WI 38, 368 Wis.2d 444. I successfully represented then-State Superintendent of Public Instruction Tony Evers and the Wisconsin Department of Public Instruction (DPI) before the Wisconsin Court of Appeals, District IV, (Judge Sherman authored the decision) and the Wisconsin Supreme Court. I drafted all of the briefs and argued the case before the Wisconsin Supreme Court. DPI Chief Legal Counsel Janet Jenkins was my co-counsel. There were numerous opposing counsel, including Maria Lazar, Timothy Barber, David Meany, Andy Cook, and Daniel Lennington. This case challenged the constitutionally of 2011 Act 21, which gave the governor veto-like authority over administrative rules promulgated by state agencies, including rules promulgated by the state superintendent of public instruction. The decision was significant because it upheld the independence of the state superintendent, as intended by the framers of our state constitution. Koshkee v. Evers, 2018 WI 82, 382 Wis.2d 666. Along with DPI Attorney Benjamin Jones, I represented then-State Superintendent of Public Instruction Tony Evers in an original action which re-litigated the result of Coyne v. Walker. Before we could argue the case on the merits, an issue arose of who could represent the DPI and State Superintendent Evers. The Attorney General argued that only the Department of Justice could do so. Even more problematic, the Attorney General argued that he alone determined the ends of representation, even if it was contrary to the client's position (and in violation of the Supreme Court's Rules of Professional Conduct for Attorneys). Opposing counsel were Misha Tseytlin and Ryan Walsh. We prevailed before the Wisconsin Supreme Court. This case is significant because it established that state officials, sued in their official capacity, are the client and, as such, the Attorney General may not dictate their litigation positions. Experience in adversary proceedings before administrative bodies: As an attorney with the Wisconsin Department of Public Instruction, I participated in numerous administrative proceedings. This included defending the department in employment matters before the Wisconsin Equal Rights Division, the Labor & Industry Review Commission, and the Division of Hearings and Appeals. I also represented the department in matters before the federal Equal Employment Opportunity Commission. I also have experience overseeing administrative proceedings. For example, I chair the Governor's Pardon Advisory Board, which has heard from hundreds of pardon applicants. I also am a member of the Wisconsin State Claims Board, which hears claims made against the State of Wisconsin. Describe your non-litigation experience (e.g., arbitration, mediation). I have significant non-litigation legal experience, including: negotiating, drafting, and reviewing contracts; conducting investigations in employment, civil rights, and licensing matters; drafting final agency decisions; drafting administrative rules; handling public records requests; advising on state ethics matters; and participating in mediations. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Volunteer (multiple campaigns since 2004) Previous runs for public office: None listed. All judicial or non-partisan candidates endorsed in the last ten years: Susan Crawford judicial campaign, 2018 Professional or civic and charitable organizations: Inns of Court, 2020-present American Constitution Society, 2020-present Significant pro bono legal work or volunteer service: Since 1998, I have volunteered numerous times for Habitat for Humanity. Quotes: Why I want to be a judge: I want to be a judge because I strongly believe in the need for a strong, independent judiciary to protect our democracy and constitutional rights. Following the 2020 presidential election, scores of lawsuits, including six in Wisconsin, were filed across the nation in an unprecedented effort to overturn the free, fair, and accurate results. Each of these lawsuits failed. But some of them came close. In Trump v. Eiden, 2020 WI 91, 349 Wis.2d 629, the former president's campaign sought to disqualify the votes of 220,000 people in Dane and Milwaukee Counites. A slim 4-3 majority of the Wisconsin Supreme Court held that the former president's claims either had "no basis in reason or law" or were barred by laches. It shouldn't have been such a close vote. Unfortunately, this lawsuit and others across the nation demonstrated just how fragile our democracy is. It also was a reminder of the critical role the judiciary plays in protecting our democracy and constitutional rights. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. In Johnson et al v. Wisconsin Elections Commission, 2022 WI 19, the Wisconsin Supreme Court adopted new legislative maps authored by the Wisconsin Legislature, effectively overriding the Governor's veto of those same maps. In doing so, the Court gave its approval to the most gerrymandered and partisan maps in the nation. This decision has had a significant and profoundly negative impact on the people of Wisconsin. First, the ultimate decision - and the process the Court used to get there - undermined the Court's credibility as independent, non partisan branch of government. As Justice John Paul Stevens once wrote, "It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law." Bush v. Gore, 531 U.S. 98, 128 (2000). The public's confidence in the judiciary is undermined when courts search for a result, especially a highly partisan result, rather than find the answer required by the faithful application of the law. That is exactly what the Court did in Johnson, where the Court's "least changes" approach was unmoored to Wisconsin law. Second, the decision thwarts the ability of the people of Wisconsin to have a truly representative government. By adopting highly partisan and gerrymandered maps, the Court ensured that one party will remain in control of the legislative branch of government even if a large majority of Wisconsinites vote for the opposing party. This prevents the people of Wisconsin from being able to have a truly representative government. Two or three judges whom I admire and why: I greatly admire Wisconsin Supreme Court Justice Anne Walsh Bradley. Justice Walsh Bradley is the paradigm of what a justice should be. She is always well-versed in the arguments made by the parties appearing before the Court. She asks insightful questions that illicit the strengths and weaknesses of the arguments being made. Finally, no matter how contentious a case is, she always maintains a respectful demeanor to her fellow justices and the litigants. I also admire former Wisconsin Supreme Court Chief Justice Shirley Abrahamson. One of the most memorable experiences I had as a law student was watching an oral argument before the Wisconsin Supreme Court. Some of the justices asked difficult or "gotcha" questions. Others offered softball or "lifeline" questions. But Justice Abrahamson's approach showed her unparalleled intelligence and humor. I was in awe off how she carefully conducted a series of questions which led the attorneys to a conclusion that may (or may not) benefit their position. At the same time, her questioning undermined or supported questions asked by the other justices. Beyond her brilliance, I admire Justice Abrahamson's impact on the law and work ethic. The numbers speak for themselves. She authored 525 majority opinions, 493 dissenting opinions, and 326 concurring opinions. And, at the same time, she gave countless speeches and wrote scores of articles on the law. No other justice has had such an impact on Wisconsin law. The proper role of a judge: Entire essays and books have been written on the role of a judge. But I believe the preamble to the Wisconsin Code of Judicial Conduct best summarizes the role and importance of judges: Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us. The role of the judiciary is central to American concepts of justice and the rule of law... [J]udges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system. The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law. |
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