The JS has the story.

​So who pays the lawyer fees?

By Gretchen Schuldt

​A Kenosha County judge overstepped when he ordered a shoplifter to give notice of her conviction to the management whenever she entered a place that sells goods to the public, a state Court of Appeals panel ruled this week.

"That condition is overly broad and also falls into the category of shaming, which the circuit court appeared to acknowledge at sentencing," the three-judge panel wrote in an unsigned decision, invalidating the condition ordered by Circuit Judge Bruce Schroeder.

"We are not persuaded that embarrassing or humiliating defendants with a state-imposed broad public notification requirement promotes their rehabilitation," the panel said.  The panel included Appellate Judges Lisa S. Neubauer,  Paul F. Reilly, and Jeffrey O. Davis.

Markea L. Brown, 28, pleaded guilty to felony shoplifting in connection with helping to steal $2,655 worth of items from a store at the Pleasant Prairie Outlet Mall.

Schroeder sentenced her to 15 months in prison followed by two years of extended supervision. He also ordered, as conditions of her supervision, that Brown have no contact with the mall and to make the notifications of her conviction.

Brown challenged both conditions on appeal; the panel upheld the first, but struck down the second.

Schroeder told Brown the notification requirement " is 'going to embarrass you, of course,' ” the panel said. "It continued, noting that society no longer puts people in the stocks 'to be embarrassed and humiliated … but [the court] feel[s] that embarrassment does have a valuable place in deterring criminality.' ” 

While Schroeder said he wanted to give merchants the opportunity to protect against theft,  "the State has provided no legal support for the imposition of a requirement that repeat offenders must self-identify as they go about day-to-day life to personally notify any and all individual potential victims of their criminal history," the panel said. "We do not see where such a requirement would start and stop."

Brown has a history of shoplifting, according to online court records.

Brown, if required to notify store management of her conviction, could be refused service, even by those selling essential goods, such as groceries, the panel said. 

"We understand that Brown has children, and as such the consequences of the condition could impact them as well," the panel said.

The condition would result "in an overly broad ban, with consequences...that are not reasonably related to rehabilitation or protection of society," the panel said.

"It is apparent that public shaming is the second condition’s primary effect; thus, we will require it vacated."

By Gretchen Schuldt

​A bill in the State Senate that would greatly expand phone and audiovisual proceedings in criminal cases must preserve a defendant's right to reject such e-hearings in favor of "critical in-person hearings," WJI President Craig Johnson told a Senate Committee.

"Without preserving this 'opt-out' right for defendants (in criminal cases), video hearings likely will become more and more common, thus creating a culture in which defendants as well as witnesses and counsel will be expected to appear, as they have for much of the last year, via 'Zoom' and other remote technology for important fact-finding hearings," he told the Judiciary and Public Safety Committee in testimony submitted for a public hearing.

Senate Bill 219 would allow "any criminal proceeding" to be conducted over the phone or by audiovisual means "unless good cause to the contrary is shown." Currently, the law limits the proceedings that can be conducted electronically.

There are many defendants who face challenges with technology, Johnson said. 

"An elderly person or someone with cognitive limitations may not understand how to use a smart phone or computer," he said. "Someone who is poor or lives in an area without good internet or wireless service may have trouble with this technology. If a person prefers to appear in person, in a courtroom, with their lawyer, before a judge, and see and hear the proceedings, including witnesses, LIVE, they should have the opportunity and right to do so."

Low-income and rural households may have limited access to the Internet or slower speeds, he said. 

"We have seen this reflected in concerns about equal access to online education during the last year of this pandemic," Johnson said. "Increasing reliance on video conferencing in court proceedings can exacerbate this digital divide."

The Wisconsin Supreme Court, in State v. Soto, discussed the problems that could arise with video proceedings, Johnson said.

​"The opinion notes that the physical presence in a courtroom provides a setting that emphasizes the solemnity and gravity of the proceeding," he said. "The physical courtroom setting also effectively displays the power and importance of the state, as personified by the circuit court judge."

By Gretchen Schuldt

​The COVID-19 pandemic has the Milwaukee State Public Defender's Office doing what it rarely did in the past – sending out email blasts asking private bar attorneys to represent indigent defendants in criminal cases.

Those types of emails are fairly common in rural counties, where lawyers are scarce and SPD offices struggle to find enough private lawyers to take cases.

In Milwaukee County, though, there are more lawyers overall and enough have been willing to step in when SPD staff attorneys bow out of a case for reasons such as conflicts of interest or caseload issues. 

"The pandemic, I'll have to say, has really had an impact," said Tom Reed, regional attorney manager for the SPD's Milwaukee Trial Office.

The cases are often serious felonies. In one email last month, SPD sought lawyers for 15 cases involving 12 defendants. Charges included intimidating a witness, stalking, child sexual assault, and armed robbery, among others. A few days later, SPD sent an email seeking one lawyer for one case – a homicide. 

The numbers vary, but Reed said there are now generally about 30 to 40 defendants in custody for at least a week or two without representation, a much higher number than in pre-COVID times.

There are other factors to the lawyer shortage, but the pandemic looms large. When it hit, the courts essentially shut down and that had cascading impacts.

Judges, jailers, lawyers, and court officials worked to keep defendants out of the jail when they could because of concerns of COVID spread. More people charged with misdemeanors were told when to appear in court and released, rather than being booked through the jail., for example. The people held in jail were those accused of more serious crimes. There are about 150 people sitting in jail on homicide charges, Reed said.

The courts' shutdown meant backlogs built for SPD lawyers,  prosecutors, private bar attorneys, judges, and everyone else in the system. Milwaukee County Chief Judge Mary Triggiano estimates it will take 18 months to two years to clear the build-up of criminal cases.

Courts are reopening, slowly, and cases are moving forward. Private bar attorneys are needed to handle SPD cases, but those private lawyers also have to handle the cases they already have on their docket. Lawyers who were willing to work SPD cases before the pandemic simply can't handle them now

"People feel unwilling to overload their calendars," Reed said.

The pandemic also may have helped some lawyers approaching retirement age decide that it was the perfect time to pull the plug, Reed said.

In addition, "I think there were lawyers who weren't retirement age, but they did back off if they felt some vulnerabilities," he said.

Some might have had caregiving duties or their own health concerns, he said. 

The pandemic also may have made it financially more difficult for private lawyers to accept bar appointments, he said. They get $70 an hour for the work, and usually are not paid until a case is over, which can take some time.  If lawyers are under financial stress, they just might not be able to wait several months or longer for a paycheck.

The generational turnover also means there are fewer lawyers available who have the experience to ably defend a murder case or other very serious felony, Reed said. Yet it is people charged with those types of crimes who have been sitting in the jail and whose cases judges are now giving priority. 

The private bar pay has been criticized as too low, but Reed said he did not think that was a factor in the current situation.

Cases are moving now, though slowly. The SPD and private bar lawyers continue to work together, Reed said.

"Every day we're finding lawyers to take some of the cases," he said. 

"Our program relies on the strength of the private bar," he said.. "They have been good partners in seeking justice."

By Margo Kirchner and Gretchen Schuldt

WJI is launching a project to fill some of the holes of Wisconsin legal history. 

We're looking for the people and events that played significant but largely overlooked roles in the state's legal development. 

There are likely many holes that can be filled; we just don’t know about them yet because the people and events have been deleted or relegated to the background for decades or longer. Their stories need to be told so we have a more comprehensive view of Wisconsin legal history.
​
This project was inspired by the absence of diversity in the four murals, completed in 1915, that hang in the State Supreme Court. 

They depict historic events and that's all well and good, but the only mural that includes people of color depicts a murder trial where the defendant is a Native American and the person being celebrated is a White male judge, one with a somewhat cloudy historical reputation. 

The other murals celebrate events that occurred in different times and places.

***

***

This mural represents Roman law, showing Caesar Augustus Octavius presiding over the trial of a soldier; the scene depicts all White men. ​

***

There are a lot of people and historic events not recognized in the Supreme Court art. The murals are definitely a product of their time.

But it's a different time now. 

We want to hear about the great variety of people and events that shaped Wisconsin legal history. 

The people don’t have to be lawyers, but they must have played a significant role in advancing the cause of justice in Wisconsin. A plaintiff in a civil rights lawsuit could qualify, for example, or a defender of consumer rights, or someone who broke down a legal barrier so others could succeed. 

We also are looking for the significant events that brought about positive change in Wisconsin law or in Wisconsin’s legal system, whether those events occurred in or outside of a courtroom.

​White people, Black people, Brown people, men, women, children. Protests, court decisions, orations – let's hear about them!

We will publish information about these folks and events on our blog; funding willing, WJI eventually will transform the information into a book and make it available to the public. We also have various events in mind to celebrate these unsung characters and occasions.

Please help us identify people and events that deserve more recognition for their place in Wisconsin’s legal history. You can send as much information as you want, but at minimum we need:

-The name of the person / identity or name of event
-A picture, if available
-A brief description of the person or event and the person or event’s impact on Wisconsin law or legal history
-Where we can find out more about the person or event

We are closing this phase of the project on Nov. 15.

Please send the information to gretchen@wjiinc.org or mail it to WJI, P.O. 
Box 100705, Milwaukee, WI 53210

By Gretchen Schuldt

​Police did not need a warrant or probable cause to search a vehicle parked in an Appleton East High School parking lot that resulted in the discovery of two guns in the car, the state Court of Appeals ruled this week.

"The duty of school officials to keep students safe applies equally to threats posed by students or non-students," appellate Judge Mark A. Seidl wrote for the three-judge District III Court of Appeals panel. "We therefore conclude that standard applies equally to searches on school grounds of both students and non-students of the school where the search occurs."

Seidl was joined in his decision by appellate Judges Lisa K. Stark and Thomas M. Hruz.

The decision affirmed the conviction in Outagamie Circuit Court of Blong Vang, who was convicted of one count of conspiracy to commit child abuse – intentionally committing bodily harm. 

The incident started when two men were spotted in the commons area of the school by Jack Taschner, a school resource officer employed by the school and not by the police, according to the decision, Seidl said.

"The two individuals were wearing hats, which was in violation of the school dress code," Seidl wrote. "Taschner also thought their clothing indicated a gang affiliation."

The two – eventually identified as Travis and Daniel – told Taschner  that they were not students at the school.

"When Taschner contacted dispatch to check for warrants on the individuals, no information was returned on one of them, which led Taschner to believe one of them gave Taschner a false birthdate," Seidl wrote.

The two said they were driven to the school by their uncle to pick up a student named Lucy, "who was known by school officials to have a history of truancy, verbal altercations with other students, and physical fights," Seidl said.

The school's athletic director, Timothy Zachow, who by that time had joined the questioning, testified that one of the men told him they were there to beat up another student.

Candace Ray Jackson-Akiwumi is President Biden's nominee to the Seventh Circuit Court of Appeals. The court's area of authority includes Wisconsin, Indiana, and Illinois. This profile is based on the completed Questionnaire for Judicial Nominees Jackson-Akiwumi submitted to the Senate Judiciary Committee. She is expected to appear Wednesday, April 28, before the committee for a hearing. 

Name: Candace Ray Jackson-Akiwumi
Nominated to: Seventh Circuit Court of Appeals
Nomination date: March 30, 2021

​Education:
            Law School – Yale Law School
            Undergrad – Princeton University
            High School - None listed


Recent Employment:
​          2020-present Zuckerman Spaeder LLP, Washington, D.C.
          2010-2020 Federal Defender Program for the Northern District of Illinois, Inc.

Bar Associations:
           American Bar Association
           Black Women Lawyers' Association of Greater Chicago
           Federal Bar Association
​           National Association of Federal Defenders
​           Women's White Collar Defense Association

Memberships
           Chicago Coalition for Law-Related Education Volunteer Mock Trial Coach
(2009, 2010, 2015)
           Diaspora! Rhythms (art collectors' organization) (2013 - 2020)
            Edward J. Lewis II Lawyers in the Classroom Volunteer (2005 -2006)
            Election Protection Chicago Legal Committee (2008)
           Ladies of Virtue (girls' mentoring organization) Annual Fundraiser Host Committee (2017, 2018)
            Princeton Club of Chicago (Various positions, 2006-2020)
            Princeton Club of Washington (2020-present)
            Princeton University Alumni Council (Various positions, 2015-2020)
            Princeton University Class of 2000 Millennial Lecture Series Committee (2010)
            West Point Missionary Baptist Church (Legal ministry, 2013-2019; writer, "The Point" (2013-2014)
            Yale Law School Association of Illinois Steering Committee (2008-2020)
            Yale Law School Class of 2005 (Reunion social chair, 2020; reunion co-chair, 2010)
            Yale Law School Executive Committee Term Member (2019-12)
            Yale Law Women Summer Alumni Mentor (2013 - 2015)

Judicial offices held: 0 

Previous public office, political activities, and affiliations: None

Previous involvement in political campaigns:

On one occasion in 2008, I volunteered at a phone bank for Barack Obama's campaign for President of the United States. My responsibility was to call voters. I did not have a title.

Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: 

Engaged in complex civil litigation at Skadden, Arps, Slate, Meagher & Flom, which she joined in 2007.

My billable matters involved contracts, tax, privacy, securities, and patent infringement. My pro bono matters involved adoption, civil rights, criminal law, tort law, and immigration at the trial and appellate level, in federal and state court, and before administrative bodies....

During my decade as a federal defender, I represented over 400 clients accused of federal crimes at every stage of the process, from investigation to trial and pre-trial proceedings,
sentencing, and appeal, including petitions for writ of certiorari to the United States Supreme Court. In case types ranging from fraud to firearms, I successfully advised grand jury witness appearances, negotiated pleas, and achieved hundreds of mitigated sentences. I tried
seven federal jury trials. I briefed and argued five more appeals in the United States Court of Appeals for the Seventh Circuit....

Handles civil and criminal cases at Zuckerman Spaeder​.

Percent of practice in: Federal courts, 80%; state courts, 17%; other courts, 0%; administrative agencies, 3%

Percent of practice in: Civil proceedings, 34%; criminal proceedings, 66%.

Number of cases tried to verdict: Eight, all jury trials.

Describe the 10 most significant litigated matters you handled (WJI is picking the first four listed. All four originated in the Northern District of Illinois):

1. United States v. Brown, No. 12 CR 632-1

From 2012 to 2018, I represented Mr. Brown, who was charged with, among other things, conspiracy to rob a fictitious drug stash house. In 2013, I and two attorneys in a related case began challenging the pattern of the Bureau of Alcohol, Tobacco, Firearms, and Explosives in bringing these cases largely against African-American and Latino defendants. The groundbreaking discovery litigation we initiated attracted the attention of the University of Chicago's Federal Criminal Justice Clinic. In 2014, the clinic joined the effort and spearheaded (1) the filing of a Motion to Dismiss for Racially Selective Law Enforcement in 12 pending cases on behalf of 43 defendants and (2) the retention of an expert statistician to support defendants' position and testify at an unprecedented nine-judge evidentiary hearing in 2017. In 2018, the
district court denied defendants' Motion to Dismiss. Nonetheless, the course of events
resulted in favorable plea offers to all defendants and my client was sentenced to time
served. The litigation also resulted in the U.S. Attorney's Office for the Northern District of Illinois no longer charging fictitious stash house cases.

The upshot

Polk Properties, LLC and its sole member, Donald J. Thoma (collectively, "Polk"), seek review of the court of appeals decision, which affirmed the circuit court's order requiring Polk to pay forfeitures for zoning violations, damages for the Village of Slinger's lost property tax revenue, and attorney's fees. Whether these forfeitures, damages, and fees can be sustained depends upon whether Polk abandoned the legal nonconforming use of the property after its zoning classification was changed from agricultural to residential.... 

It is undisputed that the farmer who farmed the land before Polk acquired it continued to cut and remove vegetation on the property after Polk purchased it and after the rezoning. Because the agricultural use continued without cessation, Polk remained in compliance with the applicable zoning code provisions and Polk's use of the property constituted a lawful nonconforming use for which it cannot be penalized. Accordingly, we reverse the decision of the court of appeals and vacate the circuit court's order imposing forfeitures, its monetary judgment for real estate taxes, its order authorizing special assessments, special charges, and fees to be levied against Polk, and its order enjoining Polk from using the property for agricultural purposes. We remand to the circuit court for further proceedings consistent with this decision.

Background

Polk's property comprises 82 acres of rural land located in the Village of Slinger, which the Melius family operated as a farm before Polk purchased the parcel in 2004. Polk worked with the Village of Slinger on his proposed plan to convert the farmland to a residential subdivision known as Pleasant Farm Estates, which would consist of three phases of development over the course of several years. In February 2007, the Village of Slinger approved Polk's planned residential subdivision development. Installation of the infrastructure for the development began in June 2007 and was completed in August 2008. Two of the lots in phase one of the project were sold and residential homes were constructed on those lots. Sales of additional lots stalled, however, due to the 2008 economic recession and the collapse of the real estate market. 

Throughout the entire development project, Ronald Melius continued to farm the property by cutting and removing vegetation from the land. This continuous farming formed the basis for the Village of Slinger's lawsuit against Polk, in which the Village of Slinger sought an injunction from the circuit court ordering Polk to stop the agricultural use of the property. Melius' continued farming of the property is the particular conduct that led the circuit court to conclude Polk violated the residential zoning ordinance as well as the circuit court's order, for which that court found Polk in contempt....Ultimately, the circuit court ordered Polk Properties, LLC to pay to the Village of Slinger $28,760, representing daily zoning violation forfeitures, as well as $48,953.26 in additional real estate taxes covering tax years 2009 to 2013. The circuit court additionally ordered Thoma to pay to the Village of Slinger $28,760, representing daily zoning violation forfeitures as well as $12,017 for additional real estate taxes covering tax years 2009 to 2013.

Polk appealed the circuit court's orders and the court of appeals affirmed. Relying on an opinion from the Rhode Island Supreme Court, the court of appeals decided that Polk had abandoned its legal nonconforming use....

The guts
Polk maintains that the cutting and removing of the vegetation on the property was not abandoned after purchase, but in fact occurred continuously as part of the maintenance of the property. The Village of Slinger agrees that the farming occurred continuously, but argues that specific actions Polk took to convert the property into a residential subdivision constituted abandonment. Specifically, the Village of Slinger pinpoints Polk's request for the zoning change, the Subdivision Development Agreement for Pleasant Farm Estates ("the Development Agreement"), which limited the property to residential use, and the Declaration of Covenants, Conditions and Restrictions of Pleasant Farm Estates ("the Declaration") with residential restrictions executed and recorded by Polk.

The court of appeals agreed that these specific acts by Polk constituted legal abandonment regardless of any farming still taking place on the property. Rather than relying on Wisconsin law, however, the court of appeals rested its determination on a single foreign case at odds with our own jurisprudence. Wisconsin law requires two elements for abandonment of a legal nonconforming use: (1) actual cessation of the nonconforming use and (2) an intent to abandon the nonconforming use. Although Polk's specific acts may signify an intent to abandon the nonconforming use, the undisputed fact that Polk continued farming on the property confirms there was no actual cessation of the nonconforming use.... 

​For nearly a century, Wisconsin has required actual cessation of a legal nonconforming use together with an intent to stop it as prerequisites to abandonment. We have even rejected a "mere suspension" of the nonconforming use in considering whether the actual cessation element had been met. The law requires actual cessation in order to conclude that a property owner has abandoned the legal nonconforming use. The record in this case overwhelmingly demonstrates that Polk did not actually stop farming this property, despite the Village of Slinger's repeated and persistent attempts to end this use.... ​

The Village of Slinger has not presented nor have we located any case suggesting that merely reducing the nonconforming use constitutes actual cessation....

We conclude that Polk did not abandon the lawful nonconforming use of the property because farming occurred continuously on the property before, during, and after the rezoning. Polk never ceased cutting and removing vegetation on the property. Because this nonconforming use continued without cessation, Polk's use of the property constituted a lawful nonconforming use for which it cannot be penalized. Accordingly, we reverse the decision of the court of appeals and vacate the circuit court's order imposing forfeitures, its monetary judgment for real estate taxes, its order authorizing special assessments, special charges, and fees to be levied against Polk, and its order enjoining Polk from using the property for agricultural purposes. We remand to the circuit court for further proceedings consistent with this decision.

Concurrence

While I agree with the majority's conclusion that Polk did not abandon its nonconforming use of the property, I write separately because the majority could be read to be unnecessarily breathing life back into a doctrine that the legislature abrogated over 80 years ago. 

In 1931, we originally adopted the two-part test for abandonment, which required intent to abandon and actual cessation of use....

However, the legislature later abandoned this approach....the legislature changed the statutory language regarding discontinuance to its current form: "[i]f such nonconforming use is discontinued for a period of 12 months, any future use of the building and premises shall conform to the ordinance...."

(T)he doctrine of voluntary abandonment is inapplicable to cases where either the statute or municipal ordinance contains a definite time limit. In the case at bar, both the statute and municipal ordinance contain the language "discontinued for a period of 12 months...." 

Applying the proper test here, it is clear that Polk never ceased agricultural use of the property for a 12-month period. As I described above, both the statute and the ordinance have a 12-month definite time period. Accordingly, to have lost the right to use the property for agricultural purposes, Polk must have ceased using the property for agricultural purposes for a period of 12 months. 

Polk never ceased its agricultural use for a period of 12 months. Indeed, Polk never ceased its agricultural use for a single day....

​While I agree with the majority that Polk did not abandon its nonconforming use, I would make clear that the voluntary abandonment doctrine is inapplicable here. I would rely on the objective test that the legislature set forth in the statute – whether the property owner actually ceased use for the legislatively definite time limit. Because Polk never ceased its agricultural use of the property for even a day, let alone the 12-month time limit, I conclude that Polk did not abandon its nonconforming, agricultural use. As a result, I do not join the majority opinion and instead respectfully concur.... 

By Gretchen Schuldt

A bill pending in the state Legislature that would allow "elder" victims and witnesses to provide early testify in criminal cases is unnecessary and provides undue benefits to prosecutors, WJI told a Legislative committee last week.

The bill, Assembly Bill 43, would allow witnesses and alleged victims at least 60 years old to give their testimony in criminal court cases ahead of the trial and possibly over the phone. The measure already has been approved by the state Senate as Senate Bill 18.

"Although we very much sympathize with complainants in criminal cases who are older, this bill duplicates a process that already addresses many of the concerns that exist in these situations," WJI President Craig Johnson said in testimony to the Assembly Judiciary Committee.

State law allows a witnesses' testimony to be taken provided through deposition if it appears the person will not be able to appear at trial. The law gives judges the power to reject deposition requests.

The law also allows either side to request deposition testimony. AB43, however, would allow only the prosecution to request early testimony and does not require a reason for the request. The judge would be required to hold a hearing within 60 days to take the testimony.

Johnson said the bill would create a speedy trial right for alleged victims and witnesses. That, he said, "could adversely impact a defendant's ability to prepare a defense. In so doing, it can create grounds for costly appeals which would drag out cases longer than under current law. This is the exact opposite result from what appears to be intended."

The bill does not say what happens if the judge fails to meet the 60-day deadline, Johnson wrote.

"What if the defendant does not have a lawyer representing him or her?" he asked. "What happens if the defense lawyer has been on the case for just a few days or a week and has not been given adequate time to prepare? What if a defense investigator has not finished work on the case? Again, these are issues that can result in lengthy and costly appeals."

The bill also could violate a defendant's constitutional right to confrontation because it would allow alleged victims and witnesses to testify by phone or by audivisual means, rather than face-to-face, "live" in a courtroom, he said.

"Finally," Johnson said, "the bill says that the elder's testimony 'shall be admissible in evidence against the defendant in any court proceeding in the case.' It does not make mandatory admissibility of the testimony on behalf of the defendant if it is exculpatory."

Other groups offered testimony in favor of the bill. The Alzheimer's Association, for example, said it has "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 in the case." 

The Greater Wisconsin Agency on Aging Resources, Inc., the Elder Law and Special Needs Section of the State Bar of Wisconsin, and AARP Wisconsin also supported the bill.