Wisconsin Justice Initiative blog

The SCOW docket: Defense counsel did not misstep; guilty verdicts upheld

3/6/2021

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 very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.

The case: State v. Decarlos K. Chambers

Majority: Justice Annette Zieger (17 pages) for a unanimous court.

The upshot:

Because we conclude that (Decarlos) Chambers' counsel never conceded his guilt during closing arguments, Chambers'...claim fails. Accordingly, we affirm.

Ziegler

Background

On January 17, 2017, the State filed a criminal complaint against Chambers. The complaint alleged two counts. The first count alleged that Chambers committed first-degree reckless homicide with a dangerous weapon, as a party to a crime....The second count, possession of a firearm by an adjudicated delinquent, alleged that Chambers possessed a firearm despite being adjudicated delinquent of an act that would constitute a felony....

On August 14, 2017, Chambers' jury trial commenced....The State requested that the court instruct the jury as to the lesser-included offense of second-degree reckless homicide. Chambers did not object. Chambers' trial counsel requested time to discuss the proposed jury instructions with Chambers prior to the court finalizing those instructions. After a discussion off the record, Chambers' trial counsel confirmed that Chambers agreed with the proposed jury instructions, including the instruction for second-degree reckless homicide....

As part of her closing argument, Chambers' trial counsel (attorney Ann Bowe) stated that because "whoever shot [Kyle Weary]" did so "at night, in the dark, in the rain, a distance away," the jury "should consider" second-degree reckless homicide. She concluded the closing argument by insisting that because there was reasonable doubt based on the evidence, the jury "should find [Chambers] not guilty...."

(The jury convicted Chambers on both counts. – WJI)

On December 12, 2018, Chambers filed his motion seeking postconviction relief. In this motion, he claimed that his trial counsel conceded his guilt against his expressed intent to maintain absolute innocence, contrary to the new rule the United States Supreme Court announced in McCoy (v. Louisiana). Specifically, Chambers argued that when his trial counsel stated that the jury "should consider" second-degree reckless homicide, it was a concession of his guilt on the lesser-included offense. Because this error is structural, Chambers asserted that he must receive a new trial to remedy the error. The circuit court denied Chambers' postconviction motion, holding that Chambers' trial counsel never conceded his guilt at trial....

Bill would allow "elders" to testify in criminal cases early, over phone

3/4/2021

Nelson

By Gretchen Schuldt

Crime victims and witnesses at least 60 years old would able to give their testimony in criminal court cases ahead of the trial and possibly over the phone, under a bill approved by the state Senate.

While some groups applauded the bill, Aaron Nelson, the president of a statewide lawyer's organization, said it is unconstitutional because allowing testimony by phone or video violates a defendant's right to confrontation. The bill has other flaws, as well, he said.

The bill, Senate Bill 18, would require a judge, at the request of the prosecutor, to hear the testimony of an "elder" victim or witness and to preserve it in case something happened to the person.

"The ability to recall certain details is critical to the outcome of court cases," State Sen. Patrick Testin (R-Stevens Point), author of the bill, said in written testimony. "As degenerative brain diseases increase in senior populations, the system must be able to respond to the unique needs of an elderly victim's ability to testify."

Under the bill, now pending in the Assembly, the defendant would be required to be present during the testimony and the victim or witness would be subject to cross-examination.

The bill would allow the victim or witness to testify by phone or video if they have a good reason to do so, and would mandate that the recorded testimony be admissible against a defendant.

It also also would require a judges to work to ensure a speedy trial "in order to minimize the length of time the elder person must endure the stress of the elder person's involvement in the proceeding," the bill says.

But Nelson, head of the Wisconsin Association of Criminal Defense Lawyers, said the the bill is "certainly problematic."

"The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony."

"The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony." – Aaron Nelson, WACDL president

If the State Public Defender's Office cannot find a lawyer for an indigent defendant, the judge in a case has the power to appoint a lawyer at county expense. Many judges do not want to do that because of the costs to the county, and defendants can sit in jail, unrepresented, for weeks or months. The early testimony and the defendant's constitutional right to a lawyer would force judges to make the appointments.

Nelson cited three other concerns about the bill in addition to whether it is constitutional – it grants older victims and witnesses a semi-right to a speedy trial, which may deprive the defense of time needed to investigate the case and prepare a case; it does not allow a defense lawyer the same right to file a motion to preserve testimony as it grants a prosecutor; and it mandates that the preserved testimony be admissible against a defendant, but does not do the same for testimony that is favorable to a defendant.

"Some of these may be drafting issues, rather than ill intent," Nelson said, ""but they need to be fixed."

Backers of the bill, in written testimony, said it would benefit the victims or witnesses.

"Involvement in these types of court proceedings can be very stressful," said Janet Zander, advocacy and policy director for the Greater Wisconsin Agency on Aging Resources. "Court proceedings that drag on and have multiple continuances can create needless stress which can trigger trauma symptoms in both victims and witnesses."

And Michael Bruhn, public policy director for the Alzheimer's Association - Wisconsin, said that "we have witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify against in the case."

Evers proposes $45.8 million for Milwaukee juvenile facility; DOC capital budget totals $119 million

2/26/2021

Evers

By Gretchen Schuldt

Gov. Tony Evers is proposing to spend $45.8 million on a new juvenile facility in Milwaukee, budget documents show.

"The facility in this request will assist DOC (Department of Corrections) with working towards meeting the requirements of Act 185 and Act 8, which were created with the intent of eventually converting Lincoln Hills and Copper Lake Schools buildings into adult facilities," the proposed budget says.

Lincoln Hills and Copper Lake are the state's secure juvenile prisons.

The proposal is part of the proposed 2021-23 state capital budget. The governor recommended a total of $119.1 million in DOC capital spending.

Milwaukee County last year held off on accepting $15.2 million in state funding to develop a secure residential center for juvenile offenders because the funding was inadequate.

The county earlier sought $41.8 million from the state to increase the number of juvenile beds available. It later reduced the proposal to $26 million, and then $17.9 million. Even then, the county would have to kick in $2.7 million of its own funding.

At the time he rejected the $15.2 million, County Executive David Crowley said that the funding gap and continuing operational costs "creates significant sustainability concerns,” according to the BizTimes.

Crowley said Friday he was encouraged by the governor's general and capital budget proposals.

The proposed youth facility would be about 59,000 square feet with "housing, food services, health services, education, counseling, vocational training, visitation, recreation, administrative services, and other supporting spaces for a population up to 32 juveniles," according to the budget proposal.

It would employ about 70 people and cost $7.7 million per year to operate.

Evers also rejected a $45.4 million funding request for a juvenile facility in Outagamie County.

Other DOC capital spending recommended by Evers include the projects listed below.

$18.6 million for a new health services unit at Dodge Correctional Institution. Dodge is the prison system's intake facility and in fiscal 2019 there were 7,178 intakes; the prison's population is more than 1,600. Each new inmate requires a minimum of 3 HSU appointments, and some can require four to eight appointments.

The existing 12,300-square-foot facility "is very congested," the proposed budget says. "There are no medical observation cells or negative pressure rooms. There are several shared areas, such as the treatment room is shared with ER. There are staff doing data entry for electronic medical records in the X-ray room because there is no space for them."

The new HSU would add 36,558 square feet.

The SCOW Docket: Bibs, a hanky, and a suit

2/25/2021

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 very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.

The case: Ted Ritter v. Ted Farrow

Majority: Justice Jill Karofsky (24 pages), joined by Justices Rebecca Grassl Bradley, Rebecca Dallet, and Brian Hagedorn

Dissent: Justice Patience Roggensack (24 pages) joined by Justices Ann Walsh Bradley and Annette Ziegler

Karofsky

The Upshot

It is a well-settled legal principle that trademarks and their associated goodwill pass with the sale of a business. Therefore, we conclude as a matter of law that: (1) the Association did not acquire the Bibs Resort marks in 1998; and (2) the Farrows became the exclusive owners of the Bibs Resort marks in 2006 when they purchased the resort management business from the Ritters. Consequently, since the circuit court did not apply the well-settled principles surrounding trademarks and trade names, we reverse the grant of summary judgment to the Ritters and the Association and remand to the circuit court ....

Background

The subjects of this case are a logo depicting a pair of red bib overalls with a handkerchief hanging out of the back pocket and the names "Bibs Resort" and "Bibs." These designations relate to a lakefront resort in St. Germain, Wisconsin, and we are asked to determine their ownership.

The three parties involved in this case are: (1) Ted and Carolyn Ritter, original owners of Bibs Resort; (2) Tony and Arlyce Farrow, purchasers of the Ritters' resort management business; and (3) Bibs Resort Condominium, Inc., the condominium association at Bibs Resort ("Association"). The Farrows claim that they assumed ownership of the Bibs Resort marks when they purchased the Ritters' resort management business, and that the Ritters subsequently infringed on those marks. The Ritters and the Association disagree with the Farrows.

The circuit court granted summary judgment to the Ritters and the Association.... The circuit court concluded that the Bibs Resort marks "became part of" the Association in 1998 when the resort was converted to a condominium form of ownership. Finding that no one exclusively owned the Bibs Resort marks after that conversion, the circuit court ruled that the Farrows could not have become exclusive owners of the marks when they purchased the Ritters' resort management business in 2006. The court of appeals affirmed on other grounds, ruling that the 1998 resort-to-condominium conversion resulted in the Ritters impliedly transferring the Bibs Resort marks to the Association. The court of appeals reasoned that because of that transfer, the Ritters no longer owned the marks and, as a result, could not have sold them to the Farrows in 2006....

***

In November 2008, unbeknownst to any of the other unit owners, the Farrows filed an "Application for Registration of Marks" with the Office of the Secretary of State of Wisconsin, seeking to register a "pair of red bibs with a kerchief sticking out of pocket" and the resort name of "Bibs." In February 2010, the Farrows filed another application, seeking to register the mark "Bibs Resort."

Several months later, the Ritters filed an action against the Farrows which set in motion the decade of litigation that preceded this appeal. The Farrows counterclaimed with multiple causes of action, including trademark infringement. The circuit court eventually dismissed all of the Ritters' claims, and the case proceeded to trial on the Farrows' counterclaims....

The circuit court granted summary judgment to the Association and the Ritters...The circuit court concluded that: (1) "Bibs Resort" was a trade name; (2) the name Bibs Resort "became part of" the Association at the time of the 1998 conversion; (3) although there were disputed issues of fact as to whether the marks were transferred to the Farrows as part of the 2006 sale, that dispute was immaterial because the Ritters did not have exclusive ownership of the marks in 2006; and (4) because each individual condominium owner held rights to "Bibs Resort," no one held exclusive ownership. The Farrows appealed.

The court of appeals affirmed the circuit court on different grounds, concluding that, in 1998, the Ritters impliedly transferred the name "Bibs Resort" to the Association when they converted their resort to a condominium form of ownership; consequently, the Ritters could not have transferred ownership of the name "Bibs Resort" to the Farrows in 2006....

The guts

We begin by emphasizing that the Bibs Resort marks indicate the source of the provided goods or services. That is, the Bibs Resort marks represent the resort management services that the Ritters' business continuously provided from Bibs Resort's founding in 1986 until 2006....

Because the Ritters provided ongoing and uninterrupted resort services, returning customers were able to identify their services, and the associated goodwill, with the Bibs Resort marks. Having established this link between the Bibs Resort marks and the resort management services they symbolized, we turn to the Association's argument about the 1998 resort-to-condominium conversion. ...

The Association asserts that the Bibs Resort marks were tied to the resort's real property and thus automatically transferred when the Ritters recorded the Declaration and converted the property to a condominium. This argument violates the longstanding principle that marks cannot exist separate and apart from the goodwill of the product or service they symbolize: the resort management services....

Even assuming, incorrectly, that the Bibs Resort marks can be separated from the resort management services they represent, there is no evidence that the Bibs Resort condominium's bylaws conferred on the Association the ability to own any items of intangible property and it is undisputed that the Association never provided goods or services in the resort management service industry....

The Ritters also signed a bill of sale that transferred the personal property and business equipment necessary to operate the resort management business to the Farrows. The parties confirmed the sale of the entirety of the Ritters' resort management business to the Farrows in subsequent documentary filings with the State. Indicative of selling their business to the Farrows, Ted and Carolyn Ritter changed their business name from "Bibs Resort, Inc." to "Ritter Enterprises, Inc...."

Following the "old and clear rule, universally followed," the Bibs Resort marks and their associated goodwill passed from the Ritters to the Farrows in 2006 with the sale of the resort management business....

To summarize, the language in the 2006 documents clearly shows that the Ritters sold the Farrows the entirety of their resort management business, which included the associated goodwill and exclusive ownership of and rights to the Bibs Resort marks. The offer to purchase made explicit the Farrows' intention to purchase the goodwill that was inextricably associated with the resort management services. The bill of sale signed by the Ritters further indicates that the resort management business and related goodwill were transferred together in accordance with longstanding practice. The Report of Business Transfer filed by the Ritters and the joint letter the parties sent to the DOR subsequent to the sale provide even more evidence demonstrating the parties' intent to transfer the goodwill and trade names from the Ritters to the Farrows. Based on the ample evidence in the record and well-settled trademark and trade name law, the ownership of the Bibs Resort marks passed with the sale of the Ritters' resort management business in 2006.

The Dissent

The majority opinion errs when it fails to apply summary judgment methodology, which is the same for us as it is for the circuit court, and thereby ignores uncontested material facts developed during summary judgment. Those uncontested facts preclude Anthony and Arlyce Farrows' (the Farrows) claim for tradename or trademark infringement. The majority opinion compounds its error when it ignores the common law of Wisconsin in regard to what must be shown at summary judgment to make or defeat a prima facie claim of infringement of tradename or trademark and relies instead on federal case law that is grounded in the Lanham Act....

Let's hear from the candidates for Milwaukee County Circuit Court Branch 3!

2/22/2021

Susan Roth and Katie Kegel are defense lawyers running for the Milwaukee County Circuit Court Branch 3 bench being vacated by Clare Fiorenza, who is not seeking re-election.

Election Day is April 6.

Kegel, an assistant state public defender, received her law degree from Marquette University, where she now is an adjunct professor. Her resume is here.

Roth, an attorney/partner in the Kohn Smith Roth law firm, also is a Marquette Law School graduate. Her resume is here.

WJI asked each of the candidates to answer a series of questions. The answers are presented here as submitted. The questions asked are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.

Added bonus! The two candidates will discuss their positions and qualifications at the March 10 WJI Virtual Salon. The free Zoom event will be from noon to 1 p.m. Register here.

Kegel

Why do you want to become a judge?

I want to become a judge to serve as a change agent in our justice system who will not be satisfied with the status quo and will engage with the public to build greater trust and understanding. That starts with guaranteeing folks are treated with respect, dignity, and have the opportunity to achieve true justice back in the courtroom and guarantee every person is treated with those principles in mind.

I want to reduce harm, not create more. People come to courts in their worst moments looking for help and fair outcomes and too many leave feeling they didn’t have a fair shot and they weren’t respected in the process. That must change.

I also want to help address racial and economic disparities currently present in our justice system and be a leader who will push for the use of best practices in this area.

When we have judges on the bench with those goals in mind we as a community can both get closer to achieving justice for all and improve public safety.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Like many, I rejoiced the day the Obergefell v. Hodgkins decision was handed down by the
United States Supreme Court legalizing same sex marriage. Some of the most shameful moments in history are those where our Supreme Court has been asked to take up a case about civil rights only to make a decision in favor of discrimination and division. Not only did the majority rely on solid legal reasoning, but the decision reflected the values of our nation. By the
time Obergefell was decided, a solid majority of Americans agreed that gay couples should be free to marry.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

April 7, 2020, a cold, dreary day, and a world full of fear and uncertainty. Spring election day. An election day like no other. People lined up for blocks wearing bandanas and makeshift masks. Some carrying signs or a lawn chair to sit in while they waited in line. Poll workers leaving their houses before the sun came up not returning until well after midnight. Neighborhood Facebook pages abuzz with panicked questions about where to vote, how to get absentee ballots turned in, what the difference was between putting your ballot in the mailbox versus getting a postmark. Social media posts incredulous that people hadn’t been more careful
to request and return absentee ballots if they wanted their voices heard. Everywhere people were angry and they were sad.

Just 24 hours earlier, Governor Evers attempted to delay the election via executive order after other attempts at making absentee ballots and drive thru voting more accessible achieved only moderate success. While other states recognized the danger in requiring people to vote at the polls during a pandemic, the Wisconsin legislature actively interfered in attempts to find alternate solutions. The issue of first review meant the justices must return to the most basic
methods of statutory interpretation, the majority relying on plain language and the dissent on the dictionary. In the end, Wisconsin Legislature v. Evers was decided by the Wisconsin Supreme Court, and then just hours later as part of a consolidated group of cases by the U.S. Supreme
Court, both divided solidly along political lines, to rule that the election must continue as planned and that no mail in extensions could be granted. The Wisconsin Court’s rationale was that Governor Evers had overstepped his executive authority into an inherently legislative one. The majority claimed to make no statement about the validity of the threat or the need to protect
public safety but essentially proclaimed “our hands are tied.”

The dissent rightly pointed out the absurdity of the decision and considered the real
consequences. “Voters who make this reasonable choice to put their health first will be disenfranchised. Those voters who do show up, along with poll workers, and everyone with whom they come in contact, will be put at needless risk of contracting a deadly virus.” The irony of the Wisconsin Supreme Court convening remotely to hear and decide that Wisconsin voters must show up the poll in person as scheduled if they wanted their voices heard was not lost. As
a result, 71 Wisconsinites contracted COVID-19 exercising their right to vote, or helping others do so. This case was the first decision of several to come making the 2020 COVID-19 a political issue instead of a public health issue.

Describe your judicial philosophy.
First and foremost, as a trial court judge my job is to carry out existing law. However, cases are unique and many don’t involve decisions where the law dictates a clear outcome. A trial judge makes discretionary decisions all the time.

When those discretionary decisions must be made I believe a judge should make decisions that reduce harm, not create more. On a broad level, that means looking beyond the historically “easy” answer of locking people up. Though there will always be some people who are so dangerous to our community that they must be incarcerated, but it is now well-settled that Wisconsin and Milwaukee County specifically have traditionally overused incarceration. This
practice has resulted in human and financial consequences that tear apart the fabric of our community. Instead, we should be focusing our efforts and resources on ways to get to the root cause of crime and to set people up for success as part of our community. That is why I support efforts to reduce people’s entry into the criminal justice system through deferred
prosecution agreements, methods of addressing the reasons why people are committing crime like treatment courts, and increased use of restorative justice and community service to get people making amends for the crimes they’ve committed by repairing harm, not creating more.

On a case by case level, a judge must hold people accountable for their actions. A judge must also demonstrate respect for all parties in the courtroom. That occurs when a judge
acknowledges the lived experience of the parties and requires professional decorum from everyone who enters the courtroom. It also means making scheduling allowances to support people’s pro-social obligations like work and childcare.

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

I am always working to find the best outcome in every individual case I handle. Defense attorney “records” are not as simple as counting trial wins and losses. It also isn’t as easy as talking about the cases with the most difficult legal issues or the most serious charges. The cases I am most proud of are the ones where I helped achieve a client’s goal, whatever that may be. Over the years, I have helped thousands of clients achieve their case goals.

One individual case that stands out in my mind was a man in his late 30’s who was accused of using his work as a cable installation tech to commit identity theft. He was a family man with no prior record and adamantly denied the allegations. He had worked his way up from entry level
tech to a supervisor and was laid off as a result of this allegation. We were able to get the case dismissed due to lack of evidence in the early stages, which meant being able to resume his job and keep a paycheck coming in to support his family.

I am also particularly proud of all the cases where I helped someone struggling with addiction gain admission to Drug Treatment Court. As advocate counsel I helped clients make the decision to enter the court, and as a staffing team member I could monitor their progress and ensure clients received an evidence-based process. One particular client was a man in his early 20’s who was found overdosing on his parents’ bathroom floor. He was revived with Narcan only to be charged with a felony for possession of the drugs he overdosed on. When we discussed drug court, he confided that he didn’t think he could make it because his addiction
was too strong. He agreed to try it anyways and graduated a year later as a model participant. He now has several years of sobriety. He has a good job, is married, repaired his relationship with his family, and now mentors other people struggling with addiction.

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.

I have spent my career working as a state public defender here in Wisconsin. I have handled thousands of misdemeanor and felony cases as a staff attorney for the State Public Defender.

I have performed over 20 solo jury trials including several for homicide and have sat second chair as a mentor to less experienced lawyers on several occasions. I also litigage (sic) the most probation/extended supervision revocation cases and overdose homicide (Len Bias) cases of anyone in my office.

In addition to my regular duties, I served on a number of collaborative teams including the drug and OWI treatment courts for approximately 7 years and the evidence based decision making (EBDM) case processing committee for approximately 3 years. I also am the law student intern
coordinator and supervisor at my office and a client interviewing and trial trainer for new
attorneys at public defender’s offices statewide.

Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?

No.

Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur?

No. The only citations of any sort I’ve ever received are for speeding (in my early 20’s) or for parking violations.

Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so, why? What contribution limits would you set?

As the judicial ethics code requires, I support a judge recusing themself from any case where they cannot be fair and impartial, or where this is a substantial risk of the appearance of bias. There may be campaign donors who contributed a small amount of money and with whom the judge has no relationship of any sort. On the other hand, there may be influential campaign supporters who gave no financial contribution of any sort but have a relationship with the judge that would cause the judge to favor them. Transparency is critical. Recusal relies on a judge
making the call themself about whether they can be fair. I think there should be an easily
accessible accountability and oversight mechanism. This is also why I support campaign finance reporting requirements and easily accessible publicly available information.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?

The law requires that a judge be neutral and impartial in all matters. A judge is also still a
human and capable of being swayed consciously or unconsciously. Courts have become increasingly politicized. Judicial elections at all levels are increasingly expensive and especially our State Supreme Court races have become magnets for large donations by special interest groups. As stated in a previous question, transparency regarding donations and a willingness to
recuse oneself are both very important.

Beyond this, all humans carry a perspective based on their own personal experiences and
implicit biases. The most dangerous situation is one where a judge is unable or unwilling to
acknowledge their own implicit biases or becomes completely disconnected from the people they are making decisions about. Individual cases and their body of work in the aggregate are opportunities for reflection and improvement. A judge should welcome feedback andconstructive criticism, not just from their peers, but from litigants and the community. Further, remaining active in community organizations and seeking life experiences that keep a judge discussing difficult issues with diverse groups in our community is critical to staying engaged
with the community’s values.

Roth

Why do you want to become a judge?

I believe in being a true advocate for justice. Milwaukee County is not only my home, but it is where I practice law. I believe that everyone can make some form of a higher contribution toward strengthening our communities and serving the public good. I want to become a judge because the law is my deepest passion – I have a broad range of experience in private practice from all aspects of criminal defense including juvenile law and have addressed civil
and family law issues as they’re related to my practice. I have a statewide practice and
practice both in state and federal court. I feel I have the best experience and am ready to
begin this public service on day one. I do not want to bring politics to the bench, but rather a passion for justice.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Crawford v. Washington 124 S.Ct. 1354 (2004): The 6th Amendment guarantee to confront
one’s accusers is a cornerstone of our legal system. The Court’s holding in Crawford
enunciated the guarantee given by the same, in its holding that an accuser’s out of court statement, despite its perceived indiciaces (sic) of reliability, could not be admitted as defense counsel did not have an opportunity to cross examine the witness. This decision helps to ensure that criminal defendants will be able to make inquiry of their accusers, and that the trier of fact can serve in its role as the assessor of credibility.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Kelo v. City of New London 125 S.Ct. 2655 (2005): While several states have declined to
extend their own eminent domain laws to reach the holding in Kelo , this case creates a
dangerous precedent for private interests to displace individual property owners who those entitles deem to be “undesirable” or “contrary to economic interest.” It creates a slippery slope by which to further marginalize already vulnerable people and populations.

Describe your judicial philosophy.

I feel a judge must adhere to the laws at hand and interpret those laws with an objective eye. Judges are meant to be independent and make decisions based on the facts, but I also believe in considering the personal story of those who appear in court, including the circumstances and background that brought someone before the bench. We must act with
the times – when society changes or there are large shifts in the balances of power, they
must be recognized and voices must be heard. We must be willing to be independent
stewards of the law whilst on the bench, as well as advocates for justice and a stronger
society.

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

State v. Deondre Dean: Milwaukee County Case No. 16CF4722. The Honorable Jeffrey A.
Conen presided over the case, and the State was represented by Attorney Paul Tiffin of the Milwaukee County District Attorney's Office. Mr. Dean was charged with 2nd Degree Reckless Homicide. I was appointed by the State Public Defender’s Office, and represented him through his jury trial. I argued that Mr. Dean acted in self-defense, and he was acquitted. This case was particularly challenging as the decedent was in his early 70's while my client was aged in his 20's at the time of the incident, which created, in the eyes of some, an
assumption that my client was not justified in his actions. I argued to the contrary, and was very pleased when the jury returned a verdict of not guilty. For this case I was awarded the The Hanson Memorial Advocates Prize.

State v. Spencer Lewis: Milwaukee County Case No. 17CF730. The Honorable Jeffrey A.
Wagner presided over the case. The State was represented by Attorney Grant Huebner of the Milwaukee County District Attorney’s Office. I initially represented Mr. Lewis with my law partner, Steven Kohn, until he fell ill and I became lead counsel. Mr. Lewis was charged with two counts of First Degree Reckless Homicide and Attempted Armed Robbery. This case was particularly challenging as Mr. Lewis and his co-actor were young teens at the time of
the incident. Mr. Lewis was charged as an adult. Attorney Kohn and I attempted to waive the case back into juvenile court, but were unsuccessful. Ultimately Mr. Lewis plead guilty to two counts of Second Degree Reckless Homicide and one count of Attempted Armed Robbery. This was one of the most difficult cases of my career. My client and his co-actor were children when they committed these offenses, and the victims were also teens . Mr. Lewis is
a polite, articulate, and pleasant young man with no prior police contact, and is (to put it
mildly) haunted by his actions. The facts, my client and his friend concocting a childishly
simplistic plan to rob the victims that went so horribly awry it resulted in the deaths of two other teenagers, were beyond tragic. While I believe that Mr. Lewis entering a guilty plea to reduced charges was the best decision in his case, sitting next to him and helping him through the process was incredibly difficult, as I was watching a child make very adult decisions and take responsibility for his actions. Watching Mr. Lewis grow from a child into a young man in the almost vacuum-like atmosphere of the juvenile detention center was also very impactful. To represent Mr. Lewis was to walk a fine line between instinctually wanting
to protect him and maintaining the objectivity necessary to effectively represent him. While incredibly challenging, I am so pleased I was able to represent Mr. Lewis, and his case is one that I will continue to reflect upon for the remainder of my career.

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.

Having just entered my 14th year of practice, I have a broad range of experience in criminal law ranging from misdemeanors to the most serious of state and federal charges and represent children and adults as well as indigent defendants. My civil experience is more limited, having participated in the same as it relates to my criminal practice. As for administrative proceedings, since starting with my law firm in 2007 I have handled
approximately 90% of our probation and parole revocation work.

Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?

No.

Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur?

I received a speeding ticket about 12 years ago in Fond du Lac County. Being a resident of Milwaukee I have, of course, received many parking tickets over the years. All associated
fines have been paid.

Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so,
why? What contribution limits would you set?

Our current laws do not require such recusals, and as I am seeking a role in the judiciary which serves to interpret, not create, laws, I feel further comment on the same is
inappropriate. As such, I will follow the laws as they are written and of course continue to
comply with them should they change.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?

While an attorney is able to develop a professional relationship with her client, a judge, by virtue of the position, does not. With that distance between the judge and, for example a criminal defendant, comes the difficulty of the former having to make a decision regarding the fate of an individual based only upon what information is provided by his or her attorney, the state, and others who give input to the court. To ensure that one is making a decision as fairly as possible, it is important to ask pointed questions, when appropriate, of the parties to
ensure that enough information is being relayed to make an informed decision, and to make certain that more of an ear is not given to one litigant over the other,

Provide any other information you feel would be helpful to potential voters deciding whom to vote for.

I have spent my legal career working in Milwaukee County and have been dedicated toward improving the quality of life for everyone in our community. That’s why I have a large list of support: hundreds of legal professionals, community members, and Milwaukee County Circuit Court judges, who want me to serve in Branch 3. I have earned the trust and support of elected officials as well, from the Milwaukee County District Attorney to the Milwaukee City
Attorney, alongside many municipal judges and mayors across our county.

Public defenders would regain pay parity under bill OK'd by the Legislature

2/19/2021

Thompson

By Gretchen Schuldt

The State Legislature has authorized pay raises for lawyers in the State Public Defender's Office that will allow them to regain parity with their counterparts in prosecutors' offices.

The bill will allow SPD to give merit pay increases of more than 10% for fiscal 2021-22. It now awaits Gov. Tony Evers' signature.

The public defender raises will be funded with money already in the SPD budget – partly with money saved because so many people are quitting the agency and partly with money saved due to the drop in caseload during the coronavirus pandemic.

"While these cases are likely to come back at some point, that does not seem likely in the next few months," State Public Defender Kelli Thompson told the Senate Judiciary and Public Safety Committee. "In using these savings now, we have the opportunity to fix this disparity without appropriating new funds."

Some 78 staff members have left the office since March 2020, she said.

"Continuing to visit clients and their families in person, going to jails, and in-person court proceedings and the added workload that has been associated with the pandemic has added significant pressure that has increased turnover," Thompson said.

The pay of assistant state public defenders and assistant district attorneys are usually linked, but that link got broken during 2019-2021 budget deliberations – assistant district attorneys got raises, but assistant state public defenders did not. A bill to restore pay period was introduced in the last legislative session, but died when the session ended.

"Throughout the pandemic, SPD attorneys have been working; their offices have remained open and staffed," said State Rep. Amy Loudenbeck (R-Clinton) and State. Sen. Jerry Petrowski (R-Marathon), authors of the bill, which received bipartisan support. "The global pandemic has not paused the Constitutional rights of poor and indigent clients, which means that SPD attorneys have continued to appear in court, visit clients in custody, and provide professional representation."

When staff members leave, their cases must be reassigned, Thompson said. It takes time to get a new attorney up to speed, she said.

"This impact can have significant ripple effects but in smaller more rural counties it can be that much more pronounced," she said.

Thompson said there also here has also been a drop during the pandemic in the number of private bar attorneys willing to accept SPD appointments to represent indigent clients. Private lawyers are appointed to cases that SPD can't take due to issues such as workloads or conflicts of interest.

The state last year increased the amount it pays private lawyers to $70 per hour, up from the previous rate of $40, which was the lowest in the nation.

The new $70 amount, however, judging from SPD emails seeking private lawyers to take cases, has not been altogether successful in ensuring that defendants get timely representation.

One defendant with three cases pending in Langlade and Forest counties has been waiting for a lawyer for five months, according to an SPD email this week; Langlade County was seeking private lawyers for eight other defendants as well. SPD also recently was looking for lawyers for nine Sheboygan County Circuit Court defendants, 10 Fond du Lac County defendants, and defendants in several other counties as well.

"The need to retain staff at this time is even more critical to ensuring that the rights of defendants, particularly those being held in custody during a pandemic, are protected and that the criminal justice system is not brought to a standstill by lack of counsel," Thompson said.

The State Bar, Americans for Prosperity, the Association of State Prosecutors, and the Wisconsin District Attorneys Association also supported the bill.

The SCOW Docket: A drunk driving decision

2/18/2021

Walsh Bradley

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 very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them.

Note 2: This is a case originating in Rock County Circuit Court, Judges John M. Wood and Richard T. Werner presiding.

Majority: Justice Ann Walsh Bradley (17 pages) for a unanimous court

The upshot

Based on a review of the record before us, including (Alfonso C.) Loayza's admissions contained in the California documentation, together with the DOT driving record and the references to his probation contained in the California materials, we determine that it is more likely than not that Loayza had a 1990 California OWI conviction. We therefore conclude that the State has met its burden of proof, demonstrating by a preponderance of the evidence the existence of Loayza's 1990 California OWI conviction.

Accordingly, we reverse the decision of the court of appeals.

Background

On May 26, 2012, Loayza was stopped by a police officer for speeding. During the course of the stop, Loayza admitted to recently drinking, and a preliminary breath test indicated a 0.14% blood alcohol concentration. A subsequent blood test confirmed that Loayza's blood alcohol concentration was well above the legal limit for driving. Upon running a check of Loayza's driving record, the officer noted that Loayza had eight prior alcohol-related convictions.

The State charged Loayza with one count of OWI as a ninth offense and one count of operating with a prohibited alcohol concentration (PAC), also as a ninth offense. Detailed in the complaint were Loayza's alleged prior convictions – three convictions from California in 1989, 1990, and 1991, and five subsequent convictions in Wisconsin between 1992 and 2009....

Loayza...argued that the please in those (Califonia) cases, were entered without a valid waiver of counsel. In an affidavit accompanying the motion, Loayza acknowledged convictions in 1989, 1990, and 1991, but averred that he had no recollection as to whether he was represented at sentencing for any of those convictions or whether the judge advised him regarding his right to counsel. The circuit court denied this motion in its entirety.

Loayza ultimately pleaded guilty to one count of OWI as a ninth offense. However, he made his plea contingent on the State proving his number of prior convictions.

At sentencing, the State submitted three exhibits as proof of Loayza's prior convictions....

Loayza conceded that the State offered sufficient proof of his 1991 conviction. However, he asserted that it failed to establish the existence of the 1989 and 1990 convictions.

The circuit court rejected Loayza's arguments and determined that both the 1989 and 1990 convictions were established through the exhibits submitted by the State. With regard to the 1990 conviction, the circuit court referenced the San Mateo County documents, stating, "[i]t's clear to me by reading this documentation that he was convicted of that, and I think this is competent proof of that particular conviction."

Accordingly, the circuit court determined that Loayza's current conviction constituted a ninth offense and sentenced him to a bifurcated sentence consisting of five years of initial confinement followed by five years of extended supervision. Loayza subsequently filed the first of two postconviction motions challenging the proof submitted for the 1989 and 1990 California convictions. In this initial motion, he sought resentencing, arguing that the State did not offer sufficient proof of the 1989 conviction. The circuit court agreed, amending the judgment of conviction to reflect an eighth offense rather than a ninth. However, it sentenced Loayza to the same term of confinement and supervision that it had initially imposed.

Loayza then brought the postconviction motion at issue in the present case. He contended that his sentence should be modified to reflect its status as a seventh offense rather than an eighth offense.

Specifically, he argued that the California documents provided by the State do not support the determination that a conviction occurred in 1990....

"The circuit court agreed, amending the judgment of conviction to reflect an eighth offense rather than a ninth. However, it sentenced Loayza to the same term of confinement and supervision that it had initially imposed." – Justice Ann Walsh Bradley

A quick look at Gov. Evers' justice proposals

2/17/2021

Evers

By Gretchen Schuldt

Gov. Tony Evers wants to expand expungement eligibility, do away with the plea-coercing charge of felony bail jumping, and legalize recreational marijuana.

Many of his justice-related proposals are almost certainly doomed in the Republican-controlled state Legislature. But they are alive and well right now, and some, such as establishing a council or commission to review the state's sentencing structure, may not even need legislative approval.

Here's a very quick look at some of his proposals. Most of the language is taken directly from the governor's budget narratives.

Evers proposes:

Eliminating automatic original adult court jurisdiction for youth under the age of 18 and modifying the conditions under which a youth under the age of 18 may be waived into adult court.
Raising the age that a circuit court or municipal court exercises adult court jurisdiction on individuals from 17 years of age to 18 years of age.
Removing statutory daily rates for placements at juvenile correctional facilities and allowing the Department of Corrections to establish rates that reflect the number of supervised youth and the costs for providing care.
Eliminating Type 1 juvenile correctional facilities (Lincoln Hills and Copper Lake youth prisons) and authorizing DOC to operate secured residential care centers for children and youth.
Eliminating the Serious Juvenile Offender Program to reflect evidenced-based decision-making practices that recognize the risk and needs of youth. The Serious Juvenile Offender Program would continue for youth under that disposition prior to the effective date of the elimination.
Prohibiting the use of restraints on anyone under the age of 18 when appearing before a juvenile or criminal court unless the court orders restraints after finding that their use is necessary.
Eliminating the use of detention for youth who have violated a court order for having committed a status offense.
Limiting the use of detention sanctions or holds to situations where there is a public safety risk.
Increasing the minimum age of delinquency from 10 years old to 12 years old to enable more age-appropriate, evidence-based youth justice programs.
Creating a sentence adjustment procedure for individuals who commit criminal offenses prior to the age of 18.
Creating certain mitigating factors that a court must consider when sentencing an individual who committed a criminal offense prior the age of 18.
Spending $3.1 million to create four circuit court branches in 2021 and four in 2022.
Expanding the earned release program to include educational, vocational, treatment or other qualifying training programs that are evidence-based to reduce recidivism.
Allowing a sentencing court to reduce the term of a person's extended supervision if certain conditions apply.
Expanding the conditions under which an individual may have his or her criminal record expunged of a conviction.
Creating an extreme risk protection injunction procedure where a court, after a hearing, may order an individual to refrain from possessing a firearm if it finds by clear and convincing evidence that he or she is substantially likely to injure himself or herself or another by possessing a firearm. As recommended, a court must hold an extreme risk protection injunction hearing after a petition is filed by a law enforcement officer, family member or household member.
Creating a civil cause of action against a person who, with certain intent, unnecessarily summons a law enforcement officer and causes the officer to arrive at a location to contact another person.
Modifying the process by which DOC may revoke the extended supervision, probation or parole of a person in the department's care and modifying the sanctions procedure for certain rule violations.
Creating an earned compliance credit for certain eligible persons in the department's care. The earned compliance credit would equal the amount of time served on extended supervision or parole without violating any conditions or rules of extended supervision or parole.
Requiring the DOC to identify, via an annual report to the Governor and Legislature, the cost savings incurred by the modifications to the earned release and extended supervision processes included in this bill. The savings would be used for r training programs for persons in the department's care, recidivism reduction services and community supervision.

State Senate advances bill to block inmates from COVID vaccine priority

2/15/2021

Wanggaard

Updated Feb. 16.

By Gretchen Schuldt

A bill that would block incarcerated people from being prioritized for the coronavirus vaccine was approved by the State Senate Tuesday.

Van Wanggaard (R-Racine), a sponsor of the bill, said in earlier testimony that the bill it "aims to prevent a coming mistake by the Evers' administration to prioritize Wisconsin's prison inmates over law abiding essential workers and others in receiving a COVID-19 vaccine."

The proposal from a state advisory committee to prioritize inmates would mean a "healthy 30-year-old three-time murderer would be entitled to receive a vaccine before other at-risk individuals," Wanggaard said. "A 25-year-old who raped a 60-year-old asthmatic cancer survivor would be entitled to receive the vaccine before his victim. This is not only unwise, it is unconscionable."

Prisons are recognized as breeding grounds for pandemics due to the poor health of many inmates and the crowded conditions. Incarcerated people face increased risk of contracting the disease, as do corrections workers and those they come in contact with both inside and outside the prison walls.

Registering against the bill were the ACLU of Wisconsin, Kids Forward, the Wisconsin Catholic Conference, the Wisconsin Council of Churches, and the Wisconsin Democracy Campaign. No organization registered in favor of the bill.

"Around the country, COVID-19 has spread at unparalleled rates inside jails and prisons," the ACLU said in a statement. "Outbreaks inside prisons affect the communities these prisons are part of, and hospital capacity in rural areas that prisons are mostly in, is very limited."

"Senate Bill 8 fails to respect the dignity inherent in every incarcerated person and the mercy that must be afforded to all," Kim Vercauteren, executive director of the Wisconsin Catholic Conference, said in written testimony.

"Individuals in the DOC's care have already been processed by the criminal justice system and sentenced. Failure by corrections authorities to properly mitigate a threat of illness or death through communicable infection is not an allowable additional penalty under the law," she said.

Wanggaard said he did not want to push inmates to the end of the vaccination line, but did not want to give them special priority, either.

Incarcerated people already are "quarantined," he said.

"They are not in, and are not exposed to, the general public," he said. "The only way they could be infected is if it is brought into the prison. Since prison guards and personnel are in line to be vaccinated now, the risk of infection will be greatly reduced in a short number of weeks."

In addition, he said, "over 10,000 inmates, more than half of our entire prison population, have caught COVID. That means that over half of our prison inmates already have the antibodies against COVID. Many others may have the antibodies because of their exposure, and did not become sick. In essence, people who already have immunity would be getting the vaccine, while others who do not have immunity will have to wait."

Four vie for Green County Circuit Court bench

2/12/2021

Four people are vying for the Green County Circuit Court Branch 1 seat. They are Faun Marie Phillipson, Daniel R. Bartholf, Peter B. Kelly, and Jane Bucher.

Bartholf and Phillipson are in private practice. Bucher is an assistant state public defender. Kelly is in private practice and is a Green County court commissioner.

The primary election is Feb. 16. The top two finishers will advance to the April 6 general election.

WJI asked each of the four candidates to answer a series of questions. Two, Bartholf and Phillipson, provided answers. The two others, Bucher and Kelly, did not. The questions are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.

Bartholf's resume is here; WJI is awaiting Phillipson's.

Bartholf

Why do you want to become a judge?

Response: A core guiding principle for me is that I want to make a difference, a positive impact, and to improve the lives of my clients or those organizations that I volunteer or participate in. Being a judge will allow me to have even more of a positive impact on the whole Green County community. My dedication to public service and my reserved and calm demeanor makes me a great fit to be judge.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Response: As a circuit court judge, my job would be to apply the law that is currently in place. While I am not trying to evade this question, it just doesn’t matter my opinion as to any particular decision. I will apply the law no matter if I like or dislike the decision. I have no desire to make new law from the bench.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Response: As a circuit court judge, my job would be to apply the law that is currently in place. While I am not trying to evade this question, it just doesn’t matter my opinion as to any particular decision. I will apply the law no matter if I like or dislike the decision. I have no desire to make new law from the bench.

Describe your judicial philosophy.

Response: For those that know me, I am on the reserve side. I listen more than I talk. This is how I will operate in my courtroom. I will make sure each side, whether represented or not, has an equal and fair ability to present his or her case. I will fully review all testimony and evidence, weigh the credibility of witnesses, and determine the relevant facts. I will then apply those facts to the underlying law and arrive at a prompt and unbiased decision.

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

Response: When I take a new case or take on a new client, I do not treat one client’s matter as more important than another. I take great satisfaction when I have resolved a client’s matter. For example, in a divorce no matter if it is client that has little property to divide or a client that has significant funds or highly contested placement issues, helping a client through the process and bringing the case to a final conclusion is very satisfying. Working hard on the case, keeping the client informed along the way, will lead to satisfied clients, even if the trial results may not always go their way.

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.

Response: I am a general practice lawyer and I have been practicing over 21 years in many areas of the law that a circuit court judge will handle. This includes family, municipal, Guardian ad Litem, guardianships, child abuse and neglect and other juvenile law, business, real estate, probate, contracts, small claims and civil litigation, among other areas. This significant and well-rounded experience will be an advantage because I will not have to learn on the job.

Have you ever been convicted of a crime, either misdemeanor or felony?

Response: No.

Have you ever been cited for a municipal offense?

Response: No.

Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge’s election? If not, why not? If so, why? What contribution limits would you set?

Response: Yes. Most of my donors are family, friends or clients that I would recuse myself anyways. Making a donation to a judge’s campaign, other than something nominal, brings the impression that the judge has a conflict or will not act in an impartial manner. I believe that if a donor would make a donation over $100 to a campaign that the judge should recuse him or herself.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done by them?

Response: For judges to make fair, impartial and informed decisions, they need to be able to effectively receive all relevant information. This can be hard with pro se clients or minorities (especially those that English is not their primary language) that don’t understand how to present that information. Being prepared and informing the litigants in advance so they can know what to expect in contested hearings is important. Being patient, calm and taking the necessary time will be necessary.

Provide any other information you feel would be helpful to potential voters deciding whom to vote for.

Response: I have been practicing law my entire 21.5-year career in Green County. I currently have the most expansive law practice of any of the candidates for this position. A Green County Circuit Court Judge will hear cases of all practice areas - from family law, small claims, juvenile law including child abuse and neglect, guardianships, probate matters, evictions, restraining orders, contracts to civil litigation trials. These are all areas that I currently practice and no other candidate can say the same. Combined with my reserve and even-handed demeanor, I am the best fit for judge for Green County.

Phillipson

Why do you want to become a judge?

I would like to put my skills, my experience and my education to work for Green County in the best way I know how. I’m smart, I have 20 years of experience practicing law in state and federal courts, and I am unbiased. I believe in a judicial branch that doesn’t play politics, and I embrace our judiciary as a strong foundation of the balance of power. I want to be part of that tradition. I believe my home county deserves the best of the best.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). The Equal Protection and Due Process analyses are instructive and the reasoning is elegant. My favorite statement, from Justice Kennedy’s majority opinion, speaks to the core truths of both humanity and jurisprudence: “Marriage responds to the universal fear that a lonely person might call out only to find no one there,” and because each of us is capable of heart-wrenching loneliness each of us should have the right to togetherness. See Obergefell v. Hodges, 576 U.S. at 667. I remember sitting on my front porch reading the full opinion on the day it was published, thinking this application of Constitutional law to ordinary everyday rights was both academically brilliant and genuinely beautiful.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

No comment.

Describe your judicial philosophy.

Theories of judicial philosophy are many, varied and complex; you could spend an entire semester of law school deciphering this question. Let me break it down very clearly: I am running for Green County Circuit Court – which is the first and likely only court in which most citizens will appear. It’s imperative for the judge to get it right the first time, because few people have the financial ability, or time, to appeal. If elected, I will approach my cases with intelligence and fairness and decide cases based on facts and law. I have no desire to legislate from the Bench, nor do I believe it is appropriate to do so.

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

Significantly on a personal level, early in my career, I represented a woman with a variety of addictions. Several times, we fought – and beat – the charges against her. My firm ultimately withdrew as counsel for a number of reasons, but the former client had my cell phone number and would continue to call me regularly at all hours of the night. I chose not to answer. I eventually learned the woman had been found dead in her swimming pool in the Hamptons later that summer. To this day, I wonder if I should have answered the phone for her 3 a.m. calls, or if my firm should not have withdrawn as counsel, or whether the woman would still be alive had I refused to represent her and she had, instead, spent time in custody at Riker’s. The line between human and lawyer, between advocate and friend and, I imagine, between occupying a seat on the Bench and a space in the rest of the world is one that deserves serious thought and respect.

Significantly with regard to setting (not so great) precedent, I lost a matter that resulted in case law emphasizing the great deference given to arbitration awards – even if the findings are “implicit” in the arbitrators’ decisions. See Loeb v. Blue Star Jets, LLC, No. 09 CIV. 7858 (SAS), 2009 WL 4906538, at *2 (S.D.N.Y. Dec. 17, 2009) (“It is well established that courts must grant an arbitration panel's decision great deference.”) Despite the loss, it was a total privilege to appear before the Honorable Shira A. Scheindlin.

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.

I have been practicing law for 20 years, and I have had my own law firm for 16 of those years. My experience is broad and varied. At the beginning, when we first opened our firm, we took almost any case that came our way. At this point, the majority of my work is civil litigation – and mostly on the defense side. I am licensed to practice law in Wisconsin and New York, and I am admitted to practice before the following courts: U.S. Court of Appeals (Second Circuit); U.S. District Court for the Southern District of New York; U.S. District Court for the Eastern District of New York; U.S. District Court for the Eastern District of Michigan; U.S. District Court for the Western District of Wisconsin.

Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?

No.

Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur?

No.

Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so, why? What contribution limits would you set?

I do not support a broad and overarching recusal standard for Circuit Court judges with regard to donors and indirect supporters of the judge’s campaign. Green County has a population of approximately 37,000 people according to the 2010 census. My hometown of New Glarus has a population of approximately 2,100 people, and the county seat of Monroe’s population is roughly 10,800 as of the 2010 census. It is possible, and even likely, that a judge will have a courtroom encounter with an individual they know or with whom the judge has been acquainted at some point. It’s pure math. If a person lives across the street and you wave at them every Sunday while taking out the garbage, must you recuse yourself? Probably not. If a person contributes $25 or $50 to your judicial campaign, must you recuse yourself? Probably not. The rules are clear: if bias or a perception of bias exists, then recusal is appropriate. See Wis. Stat. §757.19(g) (“[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner.”). See also S.C.R. 60.03 and 60.04. My campaign has been largely self-funded, and funded by my parents. I also have received contributions from friends, colleagues and community members in varying amounts. Those contributions – whether financial, or whether in the form of assistance in canvassing and putting up yard signs – would not bias my judgment.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?

Let’s hope that I am elected this Spring, and that I can then answer this question appropriately from the judge’s point of view. For now, I will just say that one of the toughest aspects is probably balancing your human side with and against the need to be strong and impartial. Judges are not robots; if measuring facts against law was a purely technical exercise, then we could create an algorithm to feed into a computer and spit out the results of any given case. That’s not how it works; therefore, ultimately you want and need a judge who is strong, smart and fair. What can you do about this? Vote Phillipson for Judge.

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