By Gretchen Schuldt

​An effort to get the State Supreme Court to give itself the power to draw new legislative maps based on the pending census drew negative reactions from 40 organizations and individuals who submitted comments on the proposal before Monday's deadline.

There was just one comment favoring the proposal. That comment was by attorney Misha Tseytlin on behalf of Republican U.S. Representatives Glenn Grothman, Mike Gallagher, Bryan Steil, and Tom Tiffany and Rep.-elect Scott Fitzgerald. 

Assembly Speaker Robin Vos and Fitzgerald, in his role as State Senate majority leader, also submitted a comment.  It was not immediately clear whether the two Republicans favored the  the proposal, as the Supreme Court website link that was supposed to go to their comments went instead to comments submitted by the Building Trades Council, which opposed the proposal.

The Wisconsin Justice Initiative, in its comments, said the proposal "ultimately allows the Court to develop its own redistricting proposal, establish many of the rules for any public comment on the proposal, and approve the proposal. The petition leaves it unclear whether non-governmental interested groups or individuals would be allowed to file formal objections to any Court map or have any say on it at all, as their right to participate would be so severely limited."

The petition, filed by former State Rep. Scott Jensen, a Republican, and the Wisconsin Institute for Law and Liberty, and the conservative law firm, seeks to change the way redistricting disputes are handled by the courts. 

Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies.

The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say.

"WILL’s proposed changes would only allow for consideration of partisan interests rather than those of individual Wisconsinites and civic groups that can provide for knowledge about their regions and how certain redistricting of areas would affect them..." the Dane County Board said in comments submitted to the Court. "WILL’s proposed changes decrease transparency in the redistricting process and would allow the Court to bypass consideration of any views by groups other than elected officials and/or political parties."

"The rules, if adopted, will increase the politicization of the Court while they decrease the public trust in the redistricting process," the ACLU wrote.

The Supreme Court considered a similar petition in 2019 and a majority of justices rejected it, the organization said.

"As Justice (David) Prosser stated during the 2009 rulemaking process, the Court taking original jurisdiction in redistricting cases would be a 'fundamental institutional mistake for this Court'  as it would place the Court at the center of the political arena."

​"If accepted," the ACLU continued, "the proposed rule will undermine the public’s trust in the Court and in the redistricting process. It is clear that the public wants a fair, impartial process: over the past few years, 34 county boards have passed resolutions, and voters in 28 Wisconsin counties and 19 municipalities throughout the state have passed referendums, in support of fair electoral maps and a non-partisan 2021-22 redistricting process."

"A traditional trial and appeals process to resolve redistricting challenges allows Wisconsin voters and groups to follow cases throughout the process and, if motivated and possible, get involved," Linda Laarman wrote. "Vesting judicial resolution in a single court — the Wisconsin Supreme Court — would diminish the ability to follow cases and participate in them."

Under the petition, the Supreme Court would have deadlines for actions on redistricting, but would be allowed to disregard most of the dates, she said. 

"The rationale, according to the petition?" Laarman wrote. “ 'Because circumstances can always change.' ”

Below are excerpts from other comments submitted. The full comments can be found here.

League of Women Voters of Milwaukee County – "The proposed rule change vests powers and duties in this court that currently belong to the state legislature. Seizing these powers and responsibilities under the guise of 'divided government,' as an administrative rule change, grossly violates the separation of powers with our constitutional framework. The creation of fair voting districts dramatically impacts the quality of democracy in our state and should be accomplished with transparency and neutrality."

Linda Bochert – "I write, as a private citizen and voter, to raise a predicate question: should the Court adopt a rule at all? I think not. Not because the issue is political, complicated, controversial, or simply hard – although it is all of those things. But because the redistricting issue it proposes to solve is inherently not a judicial issue but a legislative one."  

Douglas Owens-Pike – "As a farmer, making my living by tilling the soil, and a member of the Farmers Union, I am shocked at the audacity of one narrow interest group's attempt to make it even more difficult to challenge an already biased, unfair redistricting process. The proposed rules change would throw a dark cloak over an already closed-door process, shrouding out the light of open participation from a wider swath of public interests that have a history of being represented poorly."

Sarah S. Jones – "Wisconsin citizens deserve fair representation in their legislature, determined by fairly-designated voting districts. They deserve a process for drawing those districts which operates without partisan affiliation; allows ample time for deliberation; admits comment by any concerned groups and individuals, including the non-partisan; provides for review by appropriate levels of state or federal court; and maintains transparency throughout."

All on the Line – The proposed rule "does not make clear who is permitted to object or rebut the Court’s proposed map plan, but instead suspends the creation of that list to a later date. This could lead to absurd results, such as a group being able to submit a proposed map, but not being able to submit an objection or rebuttal to the Court’s plan, and vice versa. Moreover, the Petition will preclude participation by community groups that lack the sophistication to understand brand new judicial procedures or lack the technology to draw their own map. The Court’s rules should not limit public input on a proposed map where the rules of civil procedure or prudential considerations could not."

Campaign Legal Center – The Proposed Rule has numerous flaws. Most notably, the Proposed Rule: (1) invites premature litigation; (2) mistakenly suggests that the legislature can adopt new districts without presenting those districts to the governor for approval or veto; (3) prioritizes involvement of partisan interests as parties; (4) short shrifts or, at the Court’s discretion, omits entirely the fact-finding process necessary to resolve redistricting disputes; and (5) establishes inadequate procedures governing proposed maps. 

Tseytlin – We support Rule Petition 20-03 for three reasons. First, it would restore the primacy of this Court vis-à-vis the federal courts in resolving any impasse in Wisconsin’s congressional-redistricting process. Second, it meets this Court’s criteria in Jensen v. Wisconsin Elections Board...for 'establish[ing] [the] protocol for the adjudication of redistricting litigation.' Third, it puts forth a process that will allow the Justices of this Court—who are elected by the people statewide to serve on the State’s highest court—to adjudicate any dispute over the congressional districts well before statutory deadlines for the Fall 2022 Elections, which may not be possible if this Court were to allow such redistricting disputes to proceed first in the circuit court or federal district court."

Common Cause – "Our opposition to the Jensen petition is based on both the narrow scope of interest in the upcoming redistricting process which it seeks to define, as well as the abbreviated period of time in which it proposes the Court to act. Both of these factors undermine and even largely exclude altogether, the interests and concerns of most Wisconsin citizens, including our members. It is important to remember that voters and citizens are the ones whose rights are most impacted by redistricting, and who deserve to be protected by the Court. The petition seeks a rush to judgment without allowing citizens to have their concerns adjudicated and addressed through even the normal channels of judicial review."

By Gretchen Schuldt

​President Donald Trump's campaign has agreed to drop the lawsuit it filed against a small Wisconsin television station over an advertisement the station aired.

"The parties intend this Stipulation for Dismissal and Release to foreclose the assertion by the Plaintiff and its candidate in any court or forum of any claims made or that could have been made against the Defendant and Intervenor Defendant in connection with advertising arising out of the 2020 election," the agreement between Trump's campaign and WJFW says.

The agreement also includes Priorities USA, which ran the ad. Priorities USA intervened in the suit after it was filed.

“Like all of his other misguided legal actions, Donald Trump only knows how to lie, cheat, and sue his way out of accountability for his actions,” Priorities USA Chairman Guy Cecil said about the dismissal agreement. "Priorities stood strong against the Trump campaign’s onslaught of baseless legal actions and we have successfully rebuffed Donald Trump’s effort to censor the truth about his failed leadership. I have confidence that the courts will continue to reject Donald Trump’s other foolish litigation pursuits in the weeks to come.”

The station, WJFW-TV, of Rhinelander, had sought dismissal of the suit, arguing that Trump's defeat in his re-election bid mandated an end to the litigation.

The suit alleged that a political ad the station aired showing Trump downplaying the threat of COVID-19 contained false and defamatory content. The ad was played by stations across the state, but those stations were not sued. (Politifact did label it false – details here.)

The station was represented by the law firms of Ballad Spahr and Godfrey & Kahn. Priorities USA was represented by Perkins Coie. The Trump campaign was represented by Husch Blackwell.

By Gretchen Schuldt

​Firms that contract with medical providers to handle medical records requests cannot overcharge patients for those records, the State Court of Appeals ruled last week.

The contract firms must follow the same rules that apply to direct medical providers when giving providing the records, the District I Court of Appeals panel said in reviving a class-action lawsuit.

"To allow a third-party to circumvent the statutory limitation on health care providers simply because it does not provide actual health care services would…yield absurd results," Appeals Judge M. Joseph Donald wrote. He was joined in the decision by Appeals Judges William W. Brash III and Timothy G. Dugan.

State law limits how much medical providers can charge patients for their own medical records. Generally, for paper records, the charges top out at $1 per page; for microfiche or microfilm, the charge is $1.50 per page. 

Andrea Townsend filed a class action complaint in 2018 alleging that ChartSwap, which contracted with a radiology practice to handle medical records requests, overcharged for those records. Townsend said that her attorneys, at her request, sought her records after she was in a traffic accident. ChartSwap responded with a bill for $35.87 and provided the records after Townsend's lawyers paid it.

Townsend alleged in the suit that ChartSwap violated the medical records pricing statute; ChartSwap responded that the statute did not apply because the firm, based in Texas, was not a medical provider but was merely an agent. 

Milwaukee County Circuit Judge Paul R. Van Grunsven, relying on an earlier Federal Court decision interpreting Wisconsin law, ruled in ChartSwap's favor. That Federal Court decision said that state law "does not impose liability on entities that are not health care providers even when they act as agents of health care providers," Donald said.

But, he wrote, "the district court’s decision is not binding upon us."
More importantly, Donald said, the decision "undermines the purpose of (the law) which is to protect patients from being charged excessive fees for access to information in the custody and control of health care providers."

A different state law also puts the same obligations upon an agent of a principal that are put on the principal, Donald said.
"The goal of patient protection would be eviscerated if health care providers could simply contract with parties who were permitted to charge fees of their own liking," he said.

The panel returned the matter to Circuit Court for further action.

By Gretchen Schuldt

​The small Rhinelander television station sued by the Trump campaign committee over a television ad is seeking dismissal of the suit, arguing President Trump's defeat in his re-election bid mandates an end to the litigation.

"This case began when President Donald Trump repeatedly used the word “hoax” to discuss the COVID-19 pandemic, and it ends with him repeatedly using the word “hoax” to describe his defeat at the ballot box," WJFW-TV said in its new motion. "With the election now decided against him, the Trump Campaign’s work has ended, and so should this defamation lawsuit."

The Seventh Circuit Court of Appeals already has held that "redressability is lacking where, as here, an alleged injury amounts to defeat at the ballot box, because federal courts simply cannot remedy such alleged harm," the station said.

The Trump campaign in April sued the WJFW, alleging that a political ad the station aired showing Trump downplaying the threat of COVID-19 contained false and defamatory content. The ad, aired by Democratic super PAC Priorities USA, was played by stations across the state. (Politifact did label it false – details here.)

The station and its lawyers, from the Washington, D.C. law firm of Ballad Spahr and the Madison firm of Godfrey & Kahn, previously sought to have the complaint dismissed on the grounds that it did not state a legitimate claim. The station still believes that, but Trump's loss provides "a new and independent basis to dismiss the complaint," the station said.

"President Trump has lost his bid for reelection, and this Court can neither set those results aside nor recast the election results," the station argued. "Moreover, the money damages that the Committee seeks also would not 'likely remedy' their alleged injury. The Supreme Court has made it clear that the 'psychic satisfaction' of winning a lawsuit alone – the only possible motive for the Trump Campaign Committee to continue with this litigation – 'is not an acceptable...remedy.'”

The Trump campaign has not yet filed its response to the new motion. The campaign is represented by the Husch Blackwell law firm. Trump himself is not a party to the suit.

"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. WJI also will continue to profile former Gov. Scott Walker's appointees who are still in office. 

Name: Brittany Cha'ron Grayson

Appointed to: Milwaukee County Circuit Court
Appointment date: Sept. 4, 2019. (Elected to a six-year term in April 2020)
Education:
   Law School – Marquette University Law School.
   Undergraduate – Marquette University
   High School – Catholic Memorial High School, Waukesha
           
Recent legal employment:
   2013-present – Milwaukee County District Attorney's Office
   2011-2013 – Hudson Legal
      
Bar and Administrative Memberships:
Grayson responded "N/A," but the Wisconsin State Bar says she was admitted to the Wisconsin Bar in 2011.
​
General character of practice before becoming a judge: Currently assigned to the Early Intervention Unit handling diversions and deferred prosecution agreements for the DA's general crimes teams. Prior to that, worked in the Child in Need of Protection and/or Services unit and the domestic violence unit.
 
Describe typical clients: N/A

Number of cases tried to verdict or judgment: 10  

List up to five significant cases in which you participated as a judge or lawyer in the past seven years:

In the interest of T.B. et al – 2015 – I handled the CHIPS case for these three children. The case involved four parents: one mother and three fathers. There were several attorneys involved and endless court hearings over several months. The mother struggled with unmanaged mental health and addiction issues that kept her from safely co-parenting her children with their respective fathers....Litigating this case was particularly difficult because the mother was just not ready to accept services or admit that ​she needed help....In the end, the children were able to continue living with their respective fathers, with the mother having visits so long as they were safe and appropriate. This case didn't end the way I wanted it to. Of course, I wanted the children to remain in the stable homes their fathers had provided for them, but I also wanted better for the mother. What this case did teach me was that despite our intentions and efforts as legal advocates, we are still charged with the task of meeting people where they are and accepting that we can't always control where they end up when they leave us.

By Margo Kirchner

In a decision with statewide impact, Dane County Circuit Judge Frank D. Remington on Tuesday struck down the “Marsy’s Law” constitutional amendment adopted by voters in April. 

Remington permanently enjoined the amendment, but ordered that it stay in effect pending appeal. His decision is here.

WJI, three individual voters, and Sen. Fred Risser brought the case, arguing that the April 2020 ballot question failed to fully and fairly inform the public of the essential components of the alleged victim’s rights amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject.

“Plaintiffs are pleased by the court's decision,” said their attorney, Dennis Grzezinski.  “It protects Wisconsin voters' important right not to be misled by a ballot question when they vote on proposed amendments to the state constitution.”

The suit named as defendants the Wisconsin Elections Commission and its chair, Dean Knudson; Secretary of State Douglas LaFollette; and Attorney General Josh Kaul. Kaul’s office represent the defendants.

The plaintiffs argued that although Wisconsin Supreme Court case law gives the Legislature discretion in formulating a ballot question, that discretion is not limitless.

The Supreme Court has said that a constitutional ballot question must “reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment” so the public “may be fully informed on the subject” on which it is voting. 

The plaintiffs argued that the April 2020 ballot question failed this test. They contended that the question failed to warn voters that the amendment struck the state constitution’s only reference to a “fair trial for the defendant,” eliminated a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altered defendants’ rights set forth in other sections of the Wisconsin Constitution or state statutes. 

Remington agreed, finding that the “question presented to the voters was insufficient because it did not reference the effect on the existing constitutional rights of the accused.”

Remington stated: “If the amendments to Wisconsin’s Constitution had just given crime victims meaningful and enforceable constitutional rights equal to the rights of the accused, (as suggested in the ballot question), this case would easily have been resolved. But, in this court’s opinion, the amendments went further and reduced and in some ways eliminated existing State Constitutional rights. From a constitutional perspective, this is a problem. Reducing or eliminating existing constitutional rights required the informed approval and ratification by Wisconsin voters.”

Remington found that the ballot question failed to communicate to voters that the amendments would eliminate the rights of those accused of a crime of their right to a fair trial and affect other existing rights in the Wisconsin Constitution. “The question today is about the integrity of the process of amending the State Constitution by ballot. Voters deserve to know what they are voting on,” he wrote.

Plaintiffs also argued that the ballot question directly misled voters, telling them that the amendment would protect a victim’s and an accused’s rights “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives.

Again, Remington agreed, stating that the question presented “did not accurately correspond to the language in the proposed amendments regarding the standard ‘no less vigorous.’”

“Clearly, if something is to be done no less vigorous it can be greater to that which is equal,” he said.

Finally, plaintiffs argued that the amendment contained more than one subject, requiring separate ballot questions. The Wisconsin Constitution mandates that “if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately.”

Remington agreed again: “These amendments, taken as a whole, required two questions because the portion of the amendments that affected the rights of the accused did not sufficiently relate to the principal purpose behind the changes being driven by Marsy’s Law to create rights for crime victims.”

"This is a great victory for the citizens of Wisconsin and our criminal justice system,” said Craig Johnson, WJI president and an individual plaintiff in the case. “Since this referendum passed in April, confusion has reigned in the courts as prosecutors, judges and attorneys for the accused have tried to decipher the meaning of undefined terms and confusing procedural requirements. It has undermined protections for the accused and has not improved justice for victims.”

“Prior to this amendment's passage, we had a system that worked and provided meaningful protections for victims in this state. We don't need a 'one-size fits all' solution to a problem that doesn't exist imposed on us by a billionaire from out of state," Johnson added.

Remington made clear his decision was not about the merits of the victim's rights or defendant's rights as affected by the amendment. Instead, he focused on process, stating that “Wisconsin voters deserve no less than to be asked the right question(s). Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”

"Nothing in this opinion should suggest that the provisions relating to the rights of the accused should or should not be deleted," he wrote. "Nothing in this opinion should suggest that the provisions relating to victims and victim rights should or should not be made part of the State Constitution. The sole purpose of this opinion is to hold that if the provisions relating to the rights of the accused are to be repealed from the existing State Constitution it was constitutionally required that the voters be asked that question directly.

"In the end, it is ultimately up to the voters to determine what changes are to be made to the State Constitution."

Marsy’s Law is the personal cause of billionaire and now convicted drug felon Henry Nicholas III. He and his organizations have advocated for passage of substantially similar amendments in at least 20 states. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organization aims to be “ultimately successful at the national level” as well.

Remington’s decision means that Marsy’s Law amendments have been invalidated in three states.  The supreme courts of Kentucky and Montana struck Marsy’s Law due to violations of rules for constitutional amendments, but Kentucky adopted the measure again Tuesday. A court in Pennsylvania held that the ballot question for voters there did not adequately set forth contents of the amendment and contained too many matters for one question. An en banc Pennsylvania appellate court heard arguments on the case on June 10.

Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters. ​

By Gretchen Schuldt

​The number of COVID-19 cases reported in Wisconsin state prisons soared by 1,033 cases last week, the biggest one-week increase since the outbreak began, Department of Corrections figures show.

The total number of cases reported rose from 3,296 on Oct. 23 to 4,329 on Friday, Oct. 30, a 31% jump, the figures show.

Five prisons reported more than 100 additional cases in a single week. Those  prisons were Waupun, Stanley, Jackson, Dodge, and Green Bay Correctional Institutions. 

Four facilities, including Taycheedah Correctional Institution, the state's major women's prison, reported their first cases. The other three were McNaughton Correctional Center, Racine Youthful Offender Correctional Facility, and the Thompson Correctional Center. 

Just seven of DOC's 37 facilities did not report any COVID cases as of Friday. They are the Flambeau Correctional Center, The Grow Academy (juvenile), Kenosha Correctional Center, Oregon Correctional Center, Prairie du Chien Correctional Institution, Sanger B. Powers Correctional Center, and the Wisconsin Secure Program Facility.

The Kettle Moraine Correctional Institution has the most total cases reported overall – 872 – but reported no new cases last week.

Gov. Tony Evers has been sharply criticized by advocates for his failure to his powers as governor to release low-risk offenders during the pandemic. 

Facilities reporting increases in COVID-19 cases

By Gretchen Schuldt

Alleged crime victims can intervene in at least some criminal court cases if the victims disagree with defendants' motions and want to formally oppose them, the State Court of Appeals said in a decision released Thursday.

Previously, a criminal case was between the state and the defendant, but voters in April approved a victims' rights amendment to the state constitution that granted alleged victims new rights. Those include the right "to be heard in any proceeding during which a right of the victim is implicated...."

The amendment also gives the alleged victims the right "to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused" and eliminates the only mention of a defendant's right to a fair trial.

Thursday's ruling means that criminal defense lawyers may have to fight for their clients both against prosecutors and against interventions by alleged victims.  Prosecutors, if they disagree with an alleged victim's position, may be put in a similar position.

The District IV Court of Appeals panel also said the amendment applies to cases in which the crime occurred before the "Marsy's Law" amendment was ratified  in April.

Full disclosure: WJI, three individual voters, and Sen. Fred Risser are suing to overturn the amendment, approved by voters in April. The plaintiffs argue that the ballot question failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject. A decision in the case is pending.

Thursday's ruling reversed a decision by Waupaca County Circuit Judge Raymond S. Huber, who said the victim in the case, identified in the decision only as "T.A.J."  and "T.," did not have a right to intervene in a battle over whether Huber should privately review T.'s medical records to determine whether they should become part of the court case.

The appeals panel, in a decision written by Appeals Judge Michael R. Fitzpatrick, said it was "manifest" T. has the right to be heard in a circuit court proceeding that implicates his rights or privileges.

Fitzpatrick was joined in his decision by Appeals Judges Brian W. Blanchard and JoAnne F. Kloppenburg.

The defendant in the case, Alan S. Johnson, was charged with multiple crimes stemming from his alleged sexual assault of T. As part of his defense, Johnson asked to review T.'s records.

The state did not oppose Johnson's request, but T. hired a lawyer and sought to intervene, arguing that T. had standing to oppose Johnson's motion and that Johnson's argument was not strong enough win the in-camera record review.

Huber, relying on previous case law, ruled that T. did not have standing. T. appealed; the state supported the appeal. 

The appeals panel found that Marsy's Law overrides the case law precedent. The court also found that the amendment is retroactive, although Marsy's Law does not contain language to that effect.

​"We agree with the State that...provisions (of the amendment), read together, express the intent that the 2020 constitutional amendment applies to pending motions in cases initiated prior to passage of the amendment," Fitzpatrick wrote.

Johnson also argued that allowing T. to oppose the records review motion essentially made him part of the prosecution team, but the panel said the matter "does not implicate hallmarks of substantive criminal law."

Marsy's Law, the panel noted, mandates that victims' rights be "protected by law in a manner no less vigorous than the protections afforded to the accused."

​Left unanswered by Thursday's decision is whether the state is obligated to provide a lawyer to represent indigent victims, as it does for indigent defendants.