"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: Mary L. Roth Burns
Appointed to: Oneida County Circuit Court
Appointment date: August 12, 2022 (to term ending July 31, 2023)
Law School – University of Wisconsin-Madison
Master’s – New York University, New York, New York
Undergraduate – University of Wisconsin-Madison
High School – Newman High, Wausau, Wisconsin
Recent legal employment:
December 2021-present – Attorney manager, Burns Northwoods Law, Rhinelander, Wisconsin
January 2008-August 2021 – Assistant state public defender, Office of the State Public Defender, Rhinelander, Wisconsin
Bar and administrative memberships:
State Bar of Wisconsin
State Bar of Illinois
U.S. District Court for the Western District of Wisconsin
General character of practice:
As an attorney with the Office of the State Public Defender … my practice was about 95% criminal law, with about 5% of my cases being mental commitments. I defended clients, both adults and juveniles, who were charged with felonies and misdemeanors. I met with clients and discussed their charges, their rights, their options, the likelihood of dismissal, and answered their questions. I appeared in court on a daily basis and worked hard to get signature bonds for our clients. I litigated motions where needed … and I negotiated with district attorneys. I tried to enlighten judges (respectfully) as to mistakes made by law enforcement.
Describe typical clients:
With the SPD, I represented indigent clients who qualified for representation. Many were parents, many had addictions, most were citizens, most of them just needed my help. In Oneida and Vilas Counties, many of my clients are Native American. I did specialize in juvenile cases - I was known in my office as the attorney who liked working with kids (this might be a function of my having been a teacher by training).
Number of cases tried to verdict: 13
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:
l. I am including a case that is older than seven years because it's the most significant case I was ever involved with, and it actually resulted in a Wisconsin Supreme Court decision. Ultimately published as In re Tyler T., 341 Wis2d 1(2012), 814 N.W.2d 192, 2012 WI 52, the case started out as a Walworth County juvenile waiver to adult court for a 15-year-old boy who had committed an armed robbery at the behest of his mother's ex-boyfriend. I argued for retaining the boy in juvenile court but realized at the hearing that ADA Wiedenfeld had attended the meeting of the Department of Health and Human Services where he had influenced the DHHS not to recommend retaining the boy in juvenile court. When Judge Carlson ruled in favor of the State, I filed an Interlocutory appeal to the Court of Appeals (COA), arguing undue influence and prejudice. When the COA upheld the circuit court's decision, the case was appealed to the Wisconsin Supreme Court. Although an SPD appellate attorney wrote the brief and argued before the Supreme Court, I attended the oral arguments with my client. Ultimately, the Supreme Court upheld the circuit court, although their holding seemed to be that what the State did wasn't right but they weren't going to do anything about it. I did feel vindicated that Justice Ann Walsh Bradley wrote a dissenting opinion in which Justice Shirley Abrahamson joined. On the upside, while the case wound its way through the courts, my client matured considerably and was able to avoid a prison sentence in Walworth County case #10CF97.
2. State v. Michael Johnson (not his real name) in Oneida County, in 2015. Judge O'Melia. Michael was a 17-year-old autistic boy who was living with his mother and his abusive step-father (called him a Retard, often damaged Michael's possessions, broke his computer). During a fight about the step-father breaking Michael's prized computer, Michael snapped, grabbed a knife and stabbed his step-father; when the mother tried to intervene, she was slashed across the neck. He was charged as an adult with two attempted homicides, but I worked with experts to show that my client was not actually a danger to the community. Eventually the DA (Mike Schiek) agreed to Michael pleading to two lower felonies, probation with a few months in jail, and with Huber so he could stay in high school, plus expungement. Luckily, Michael did well, and his cases were expunged.
3. State v. N. Johnson (not his last name). 2018. Very emotional juvenile case because he was to be charged with Making Terroristic Threats because he and his girlfriend made some stupid statements, with emails, while on a school trip to a Mock Trial competition, indicating a plan to commit a school shooting. The school district quickly had a meeting where, without an attorney present, the school board expelled him after 3-4 hours of testimony. First, I convinced ADA Mary Sowinski to charge him only with Disorderly Conduct to start with. Then I filed an appeal of the expulsion with the State Department of Public Instruction - the DPI overturned the expulsion due to an inadequate record of the hearing (just 4-5 sentences to summarize 3-4 hours!). As a result, Nathan was NOT expelled. Moreover, after a couple months of discussions, the ADA agreed to a Consent Decree. Thus, Nathan walked away without an expulsion or a criminal record.
Experience in adversary proceedings before administrative bodies:
As a public defender attorney, I regularly represented clients who were incarcerated in jail because they were on probation, extended supervision or parole, but who were placed on a hold due to some allegations of violations of their rules of supervision. If the clients wished to fight the revocation, I represented them at revocation hearings before an Administrative Law Judge (AW). In my first 4-5 years as a public defender, all of the parties at these hearings were in person, but eventually video hearings became the norm. Over the years, I have probably represented clients in 70-80 of these hearings. I continue to represent clients in revocation hearings, although I am now solo practice.
Describe your non-litigation experience (e.g., arbitration, mediation).
In my limited spare time, I have helped local people with completing Power of Attorney for Finance and Power of Attorney for Health Care forms, as well as simple wills.
I also was a founding member of the hybrid Vilas County Circuit Court/Lac du Flambeau Tribal Court (Zaagibagaa Healing to Wellness Court) from 2011-2019. I left that court only because I was determined to start a drug court in Oneida County and didn't have the time to do both.
Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization:
I have been a volunteer in Oneida County for the Democratic Party for every election since 2011. This includes for President Obama, Hillary Clinton, Russ Feingold, Tony Evers, Tricia Zunker and all the local candidates. I continue to do so, in the form of canvassing in person or over the phone.
I ran for office this year. I lost, but my Township was very red. I worked very hard, knocked on lots of doors and made tons of calls.
Previous runs for public office: Oneida County Board supervisor (defeated April 2022)
All judicial or non-partisan candidates endorsed in the last ten years: No
Professional or civic and charitable organizations:
Kiwanis Club, member, 1993-1997
Northern Arts Council, board member, 1994-1998
Barron County Bar Association, secretary, 2008-2009
Walworth County Bar Association, secretary, 2009-2011
ArtStart, board member, 2013-2019
Significant pro bono legal work or volunteer service: As an attorney with the State Public Defender, I was not permitted to perform pro bono legal work.
Why I want to be a judge -- I’m a Badger. I grew up in and attended schools in Wausau from kindergarten through my freshman year in college. My undergraduate degree and law degree are from the University of Wisconsin-Madison. Both of my parents graduated from UW-Madison, as did both of my siblings and both of my daughters. I’m also a Hodag. I have owned my home in Rhinelander since 1990 and both daughters attended Rhinelander schools. I supported the schools with bake sales, as a band mom and by working to get funding referenda passed. I also supported the community by joining local arts agencies, including the Northern Arts Council and ArtStart. However, once I became a lawyer, my public service increased exponentially.
Specifically, since law school, I have been serving in various counties for the Office of the State Public Defender (SPD), and I have vigorously represented indigent members of various demographics for fourteen years: eleven years have been in the Oneida County SPD office.
In those eleven years, I worked beside the Department of Social Services (DSS) to resolve the needs of mentally ill adults and children in guardianships, child protection cases, and commitment cases. I perform a valuable public service by working with court staff, including the District Attorney’s office and the Corporation Council’s office, to resolve cases fairly and efficiently. In addition, I have worked hand-in-hand with jail staff to meet the needs of and address issues with many inmates during my SPD tenure. Also, when I was the SPD representative on the courthouse safety committee, I was involved in evaluating security for the staff and visitors to the courthouse.
This judicial position would offer an opportunity to use my expertise to expand my public service even further – from individual clients to the entire local court system. I care about the people who work in the courthouse AND the people who come before the court at difficult times, whether as defendants, parties to civil suits, victims or family members.
Back in 2019, I decided to initiate a drug court in Oneida County, similar to the drug court I was involved with in Vilas County. I gathered other supporters from DSS, the probation office, the Rhinelander Police Department, the District Attorney’s office, a County Board Supervisor, and various treatment providers. Together, as a team, we put together a grant to the National Drug Court Institute (NDCI). Although neither of the judges had agreed to take part, they also hadn’t said no, and told us that they would consider it, if we were successful with our grant application. Happily, in January of 2020, we learned that our grant was approved and that NDCI trainers would be coming from all over the nation for a week in May of 2020 to set up the court and train the team. Unhappily, at that point, neither judge would agree to take part, and the grant was put on hold. Of course, the pandemic shot the whole process down.
However, that group has now renewed our effort to initiate a drug court. I ask that you appoint me as judge, because I am determined that Oneida County will get its drug court.
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 March of 2005, United States Supreme Court Justice Anthony Kennedy wrote the decision in Roper v. Simmons, 543 U.S. 551 (2005), a 5-4 decision upholding the Missouri Supreme Court’s ruling that the Eighth Amendment forbade imposing the death penalty on defendants who were under the age of eighteen when the crimes were committed. Justice Kennedy wrote that sentencing such a defendant to death is unconstitutional per se under the Eighth Amendment’s rule against cruel and unusual punishments. The decision held that, because national consensus against the death penalty had changed (“evolving standards of decency”), and because the defendant’s “youth and immaturity diminishes…culpability and blameworthiness…by a substantial degree,” the State cannot extinguish a young defendant’s “life and his potential to attain a mature understanding of his own humanity.” The Court was influenced by various amicus curiae briefs presenting strong scientific evidence about brain development (or lack thereof) in late adolescence impairing decision making to a high degree and reducing culpability.
Although Wisconsin is not a death penalty state, this case has had a tremendous positive impact on juvenile justice in Wisconsin, and will hopefully continue to have positive in the future.
Because of Roper, defense attorneys like myself have reminded judges that, no matter whether a teenager is charged as an adult – meaning the justice system is calling him “an adult” – he is still an adolescent because Roper and other subsequent cases tell us that the Constitution covers these teens under 18: they are NOT ADULTS because their brains are different. I can use expert evidence and peer-reviewed studies to explain the effects of disabilities, trauma and immaturity on a juvenile’s intent, as well as on the ability to assist counsel. This has led to courts taking more time on cases involving my clients under 18 who have committed offenses, and has prevented more of my older teen clients from being sentenced more harshly.
In the bigger, statewide picture, activists are pushing to change Wisconsin law so that 17-year-olds are not automatically charged as adults (except for the most serious charges). Wisconsin is one of only three states that mandates that 17-year-olds be charged as adults! With Roper telling us that the brain of a 17-year-old is not fully formed, more recent research has led to many other states retaining such teens in the juvenile system. Using updated research, some state legislators have worked for years to bring Wisconsin into the mainstream with this issue. Other similar juvenile issues, such as ending the practice of sentencing juveniles in Wisconsin to life without parole, have been attempted (SB862 in 2021), but have been blocked by the Republican majority. However, using Roper and its progeny, hopefully these laws will ultimately pass.
Two or three judges whom I admire and why:
The obvious choices here, for me, would be judicial rock stars Sandra Day O’Connor, Ruth Bader Ginsberg and/or Shirley Abrahamson because they were strong smart women who persevered and broke glass ceilings for women attorneys that followed their lead. All three then worked so hard that virtually no one today doubts the value that they brought to their respective Supreme Courts. Nonetheless, I am choosing lesser-known jurists who are closer to home.
First, Wisconsin Supreme Court Justice Ann Walsh Bradley. I can relate in many ways to Justice Bradley because she was born in Richland Center and I also have family ties to Richland Center. We both had what I call “previous lifetimes” – meaning we both had prior careers before attending the University of Wisconsin Law School. I was raised in Wausau, and that is where she raised her family and started her judicial career as a Marathon County circuit court judge. She was elected to the Supreme Court in 1995 and was reelected twice, having proven herself to be an excellent jurist. I have the life experience and work ethic indicating a potential to be an excellent jurist. I appreciate that Justice Bradley also works collaboratively with other justices and entities on the national level to advance the causes of freedom and justice. In addition, we have another connection - she wrote the wonderful dissent in my In Re Tyler T. case …. When Justice Bradley, joined by Chief Justice Abrahamson, wrote her support of my appeal of Tyler (a juvenile waiver case) based on my objecting to the prosecuting attorney’s improper involvement in what should have been an independent process, she stated the “answer to this question should be a resounding ‘yes.’” Thus, even though the majority ruled otherwise, I knew that I was right.
Justice Bradley has continued to work tirelessly, first with Justice Abrahamson and now, with two other moderate justices, to hold the line against the partisan elements which currently drive the Court’s decisions. I can imagine how frustrating it must be to see where the Wisconsin Supreme Court is leaning these days. On occasion, I have seen her out to dinner in Wausau, and usually I respect her privacy and say nothing. But once, I just had to step to her table and thank her for all the thankless work she does for the people of Wisconsin. I was surprised that she was SO modest, grateful and gracious, thanking me for speaking up. She deserves a medal.
Second, Judge Neal A. Nielsen, III, former Vilas County Circuit Court Judge. Having appeared before many judges in my career, I found Judge Nielsen to be the epitome of justice. He is smart, determined and firm, and his legal decisions are respected. He always took his time with my clients, explaining his decisions carefully. With strong ties to his community, he is also caring and kind. What really impressed me was Judge Nielsen’s determination to engage local tribal judges and other state entities to start a hybrid tribal/circuit court drug court. Even though it took a huge effort on his part to persuade all the parties that a tribal drug court was possible, Judge Nielsen pulled everyone to the finish line through the sheer force of his will. Thanks to his determination, this court has helped tribal members work to overcome their addictions and break the cycles of dysfunction that has damaged their families for generations. He is truly inspiring.
The proper role of a judge:
The proper role of a judge is to apply the law fairly and equally to all parties, to protect the rights of all parties, and to proceed with honesty and transparency. This requires knowledge of the law, of course. However, the relationship between the language of the law and its interpretation is often not simple or straightforward. Ideally, a judge should be detached and objective, but one’s moral presuppositions or unconscious biases are the underpinnings of each supposedly objective decision. Luckily, if a judge has ethics, an awareness of underlying biases, and a common-sense core of fairness to buttress knowledge of the law, her interpretations of the law will be valid.
Because the perception of fairness is also as important as the actual fairness, a judge needs to convey an image of fairness by being equally respectful to all parties, working to move cases along efficiently, and communicating effectively and patiently. In order to communicate effectively in this era. a judge must be technologically proficient so that Zoom hearings run as smoothly as in-person hearings. And, especially at criminal hearings, a judge should limit the use of legalese and strive to speak plainly and simply so that the defendants understand when the judge explains their rights and how the cases will proceed. Ideally, in the courtroom, the judge should be able to maintain order without sacrificing compassion.
The importance of maintaining professional appearances and professional communication cannot be overstated. In addition, organization is important to manage the calendar and the staff.
A judge is also part of the larger courthouse team and must work with other judges, attorneys, and courthouse staff to maintain a positive, collegial relationship so as to engender a positive image with the public at large.
Citizens need to feel confident that the judicial system is operating in a fair and timely fashion. As such, a judge should be willing to communicate outside of the courthouse, embracing opportunities to discuss legal issues with community leaders, community organizations and area schools.
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