By Gretchen Schuldt
A proposal to require law enforcement to impound any vehicle operated by a person without a valid driver's license would cost the state and local governments up to $50 million a year if the proposal becomes law, according to the State Department of Transportation.
The cost estimate assumes costs of $28.9 million for 258.4 new employees to handle the work involved and $21.2 million in towing and vehicle storage costs that law enforcement agencies would not be able to recover.
In addition, the law proposed by State Sen. David Craig (R - Big Bend) and State Rep. Joe Sanfelippo (R-New Berlin) could leave car owners scrambling to retrieve from the impound lot their vehicles that were stolen and driven by the unlicensed thieves.
"It appears that the owner of the (stolen) vehicle would be responsible for paying the fees to get their own vehicle back," DOT said in a fiscal estimate.
Craig is the lead sponsor in the Senate; Sanfelippo is the lead in the Assembly. Senate co-sponsors are Stephen Nass (R-Whitewater), Andre Jacque (R-DePere), and Howard Marklein (R-Spring Green). Assembly co-sponsors include Scott Allen (R-Waukesha), Barbara Dittrich (R-Oconomowoc), Rick Gundrum (R-Slinger), Cody Horlacher (R-Muskego), Terry Katsma (R-Oostburg), Daniel Knodl (R-Germantown), Mike Kuglitsch (R-New Berlin), Gae Magnafici (R-Dresser), David Murphy (R-Greenville), John Spiros (R-Marshfield), Ken Skowronski (R-Franklin), Paul Tittl (R-Manitowoc), Ron Tusler (R-Harrison), and Chuck Wichgers (R-Muskego).
The Craig/Sanfelippo bill would, with few exceptions, require that a car operated by a driver without a valid license "be immediately impounded." The requirement would apply in cases of driving on a suspended license, driving after revocation, and driving without a license.
"It appears that the owner of the (stolen) vehicle would be responsible for paying the fees to get their own vehicle back." – Wisconsin Department of Transportation
A person could get a car back at the end of an impound period by paying the fine or forfeiture for the license violation and any impound fees. A vehicle could not be released, however, unless it was properly registered and the person to whom it was registered showed proof of insurance and a valid operator's license.
The State Patrol, which issued 11,292 citations last year for driving without a valid license, doesn't have any impound lots and would have to get some, the DOT said.
"It is estimated that it could cost roughly $500,000 to establish each lot when factoring in the costs to obtain real estate, paving, fencing and the necessary security measures," the agency said. The estimate does not say how many impound lots the state would need.
Kelly / Karofsky battle gets nasty at Supreme Court candidate forum; Fallone stays clear of it
By Gretchen Schuldt
(We'll be coming back to this forum in later posts.)
State Supreme Court Justice Daniel Kelly on Thursday accused challenger Jill Karofsky of "disgusting slander" before insisting that Karofsky apologize to Chief Justice Patience Roggensack, who hadn't been mentioned by anyone until Kelly brought her up.
Marquette University Law Professor Ed Fallone, the third candidate vying for a 10-year term on the court, remained removed from the back-and-forth.
"There may be people around the state of Wisconsin who are happy to see our Supreme Court elections descend to this level," Fallone said. "If there are, I've never met them."
The Karofsky-Kelly battle occurred during a Supreme Court candidate forum sponsored by the Milwaukee Bar Association and WJI. Karofsky went after Kelly hard, saying he catered to right wing special interests.
Near the end of the forum she said, "I just want to respond to Justice Kelly, saying I don't have any examples of him always finding (for) the right-wing special interest, and that's not true. The Koschkee case is a prime example. The lame-duck case is an example where the Supreme Court couldn't even wait to get their hands on that case to make a ruling."
In Koschkee, a 2019 decision, the Supreme Court ruled the governor had the right to reject rules proposed by the State Department of Public Instruction. The ruling reversed the court's 2016 decision on the same issue.
The "lame duck" reference is to the Supreme Court's 2019 decision to uphold laws passed by the Republican-dominated Legislature to strip newly elected Democratic leaders, including Gov. Tony Evers and Attorney General Josh Kaul, of powers their predecessors enjoyed.
"They plucked it from the circuit court before the circuit court could even hold a hearing on it," said Karofsky, a Dane County circuit judge, "and they did it in the budget veto case again, and no one is going to be surprised by how Justice Kelly rules on those cases. They pulled them from the circuit court so that they could make the decision that they want to make as soon as they possibly could."
Kelly responded sharply, and then pulled Roggensack into it.
"I think we really do have to take Judge Karofsky to task for this disgusting slander, not just on me, but on my colleagues as well," he said.
"This is about your personal advancement and you don't care who you are going to lie about," Kelly said. "But that's really not even the worst of it."
Since he and Roggensack often agree, he said, Karofsky must be referring with her criticism to the chief justice as well.
"And that is an outrageous slander on someone who has been a paragon of integrity for the entirety of her career and the practice of law and her service on the bench," he said.
"Now you owe me an apology for this disgusting slander," he said. "I don't think I'll get one. Because if you didn't have slander, you wouldn't have a campaign. But you do owe Chief Justice Roggensack an apology. She's not here. She's not been part of this campaign. And she did not ask to be slandered by some careless trial judge who can't even be bothered to keep her insults focused on the target. So this is your opportunity. Apologize to Chief Justice Roggensack right now."
"I'm not going to be bullied by you," Karofsky responded.
Karofsky, Kelly said, "does not have the judgment or the character to get anywhere near the Supreme Court."
Forum moderator Steve Walters gave Karofsky a chance to respond.
The comments she made reflect "what the voters, the people in the state of Wisconsin, are seeing," she said. "They are seeing decisions made on the Supreme Court before anyone ever walks into the state Supreme Court chamber. That isn't what justice is."
Justice, she said, "is when a judge looks at the law and the judge allows the facts to percolate in a trial court, where I sit, so that witnesses can answer questions so that there can be a fair hearing, so that there is a process that is followed that everyone can see. That is what justice is. And then after that, the law is applied to the facts of the case and that's how you reach the right answer. That is what people in the state of Wisconsin are asking for and that is what they deserve."
By Gretchen Schuldt
The State Assembly's Criminal Justice and Public Safety Committee will hold an announced-at-the-last-minute public hearing on a package of partisan "tougher on crime bills" Thursday in the State Capitol.
The hearing is scheduled for 9 a.m. in room 412 East.
If you support criminal justice reform, chances are you will not like these Republican proposals. WJI opposes them.
The bill numbers, links to their text, and short summaries of what the legislation would do are below. The summaries are taken from Legislative Reference Bureau information and from the relevant bill's language. Each one will carry a fiscal cost, but the estimates are not yet available.
Please contact your legislator and join the fight for a reasonable criminal justice system. Find out who your state representatives are by going here and clicking on the "Who are My Legislators?" button.
The members of the criminal justice committee are listed here.
Assembly Bill 758 – Under this bill, a person in a facility to await a commitment trial as a sexually violent person is guilty of a Class H felony if he or she commits battery against an officer, employee, agent, visitor, or other resident of the facility. Class H felonies are punishable by up to six years in prison and / or a $10 000 fine.
Assembly Bill 802 – This bill would allow a judge, when determining when videoconferencing can be used in court, to consider the safety of the witness or the risk that the witness may be unavailable to testify if videoconferencing is not used
Assembly Bill 803 – The allowable use of deposition testimony in court instead of live testimony would be expanded under this bill. Deposition testimony would be acceptable if it appears that the witness is "at risk" of being intimidated and thus may not fully cooperate at trial. It also would be allowed if a judge finds that a witness "may have been" intimidated.
Assembly Bill 804 – This bill would increase the penalty for intimidating the victim or alleged victim of domestic abuse from a maximum of nine months incarceration and / or a $10,000 fine to a maximum of 10 years in prison and / or a $25,000 fine.
African Americans were defendants in 77% of 2019 Milwaukee Municipal Court cannabis cases
By Gretchen Schuldt
African Americans were defendants in more than three-fourths of the marijuana possession cases opened in Municipal Court last year, despite accounting for just 39% of the city's population.
Blacks were defendants in 462, or 77% of the 603 cases filed. Whites were defendants in 63 cases, or 10% of cases filed; Hispanics were defendants in 62 cases, also 10%; and Asians in 11 cases (2%), according to court statistics. Just one Native American was a defendant, and four defendants were of unknown races.
"Frankly, these numbers are outrageous," WJI President Craig Johnson said. WJI actively advocates for cannabis legalization.
The figures "illustrate once again the disparate impact of cannabis prohibition laws on communities of color," he said. "Just as is the case with state criminal prosecutions, the numbers regarding Milwaukee Municipal Court citations show that African Americans are cited far more often than whites - and studies have consistently shown that both groups use marijuana at the same rates."
"My position is that possession of marijuana cases must meet the standard of clear, satisfactory and convincing evidence to obtain a conviction. If 0.3 percent THC could be from the legal possession of hemp, then the ordinance violation should not be referred to court for prosecution." - Vince Bobot, candidate for Milwaukee city attorney
More defendants had home addresses in the predominantly African American zip codes of 53206 and 53209 – 65 and 64, respectively – than in any other Milwaukee zip code. (See map)
The city is 45% white, 39% African American, 19% Hispanic, 4% Asian, and 1 percent American Indian / Alaska Native, according to the U.S. Census Bureau.
Tickets for marijuana possession "shouldn't be dismissed as insignificant," Johnson said. "They can lead to warrants if unpaid, and can have a heavy financial burden on those who receive them, especially young people. They can also have an adverse impact on employment, rental applications and other areas of life. Wisconsin must join other Midwestern states in legalizing marijuana so that this source of disparity in our justice system can be eradicated."
Milwaukee home zip codes of defendants in 2019 Municipal Court possession of marijuana cases.
Police improperly prolonged traffic stop to investigate for drugs, appeals court rules
By Gretchen Schuldt
Polk County sheriff's deputies had no legitimate basis to significantly extend a traffic stop to allow time for a drug investigation of the driver, the State Court of Appeals ruled last week.
"At best, the officers had an inchoate suspicion or 'hunch,' which is insufficient to support an extension of the stop for the traffic offense," the District III Court of Appeals panel said in an unsigned opinion.
The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark Seidl.
The panel, reversing Polk County Circuit Judge Daniel J. Tolan, ordered that evidence found in the resulting search be suppressed.
Deputy Del Stone stopped Tyler Thompson shortly after midnight for a "rolling stop" at a stop sign as Thompson drove away from a house Stone was monitoring for suspected drug activity.
Stone testified in Circuit Court that Thompson appeared extremely nervous and that he denied failing to come to a full stop. Stone questioned Thompson about where he was coming from and about his residence, and told Thompson that he was driving in the wrong direction.
Thompson told Stone he did not know anyone at the residence he just left and that he was helping a friend move.
Stone already knew that Thompson's truck was properly registered and returned to his squad to run a criminal background check on Thompson. He also ran a criminal background check on the friend Thompson said he was helping.
Another deputy, Anthony Puetz, arrived at the scene and Stone got out of the squad. Stone testified that he told Puetz there was reasonable suspicion to believe drugs were in the truck.
Three candidates in the race for the Milwaukee County Circuit Court Branch 5 bench will compete in the Feb. 18 primary. The top two finishers will advance to the April 7 general election.
The three are challenger Brett Blomme, incumbent Paul Dedinsky, and challenger Zach Whitney.
Blomme is president and CEO of Milwaukee-based Cream City Foundation. He graduated from Marquette University and earned his law degree from the University of Missouri. He formerly was employed by the State Public Defender’s Office and the Madison city attorney’s office. His resume is here.
Dedinsky was appointed to the bench in December 2018 by former Gov. Scott Walker. He spent more than 20 years as a Milwaukee County assistant district attorney, then accepted a job as chief legal counsel to the Wisconsin Department of Agriculture, Trade and Consumer Protection. He received his undergraduate degree from Creighton University in Omaha, Nebraska; a Ph.D. from Cardinal Stritch University; and his JD from the University of Wisconsin Law School. His resume is here.
Whitney is a shareholder at Kohner, Mann & Kailas. Before that, he spent eight years as an assistant district attorney. At Kohner, Whitney has numerous practice areas, including employment and labor law for businesses, bankruptcy, and appeals. He received his law degree from Marquette University Law School and his bachelor’s in Hanover College in Hanover, Indiana. His resume is here.
WJI asked each candidate to answer a series of questions. The questionnaire was patterned after job applications used by Walker and Gov. Tony Evers when they are considering judicial appointments. The answers here are as the candidates submitted them except where the candidate did not stick to the 500-word limit for each answer. WJI edited those answers for length. Such editing is noted.
Milwaukee Fire and Police Commission executive director rips behavior by aldermen
By Gretchen Schuldt
Fire and Police Commission Executive Director Griselda Aldrete on Tuesday accused aldermen of "outright grotesque and misogynistic" behavior at last week's meeting of the Common Council's Steering and Rules Committee.
"I always welcome open dialogue to discuss or debate policy issues with those who may not always agree, but what happened during that committee was classic blame-shifting and name-calling with veiled threats from elected officials," she wrote in an open letter to Common Council President Ashanti Hamilton. The letter was released publicly via the city's e-notify email system about 5 p.m. Tuesday.
"Rather than rationally asking questions and even the right to question the answers given, two women who lead key departments for the City were accosted," Aldrete wrote. "This seems to be the nature as of late for the Steering and Rules Committee - mainly by select alders. This ends now." (Video of the committee's discussion about the commission is here.)
Aldrete apparently was referring to herself and Director of Employee Relations Maria Monteagudo when referring to "two women who lead key departments." Monteagudo grew visibly angry during the meeting and said Ald. Robert Bauman was insulting her and was being disrespectful.
Bauman said he did not trust an assessment Monteagudo proposed to help determine what the commission needs to move forward. The office has been hit with high turnover and some staff have complained about Aldrete.
The proposed assessment would be done by a consultant the city has used before and would be hired without competitive bids. Monteagudo said that would allow the work to be done quickly.
Aldrete wrote, "As civil servants, we all work hard to gain and regain public trust while executing our daily mandates. How can we work in good faith with one another if the only words spoken are attacks?"
"I call upon you and leaders of this body to hold each other accountable and censure when necessary," she said.
She also said she thought fire and police commissioners should have city email addresses and cell phones or secure voicemail so members of the public could contact them directly. Communications from the public now are funneled through the commission staff.
Aldrete wrote that her office will launch a transparency campaign to increase communication with residents and "highlight progress and significant positive outcomes to the Council and media."
She also said that, due to time and staffing constraints, she may start sending a designee to update council members on commission activities.
Defendants abandoned by counsel must figure out appeal rules on their own, State Supreme Court rules
By Margo Kirchner
The Wisconsin Supreme Court said in two recent opinions that criminal defendants must meet the same standards as lawyers when appealing their cases if their actual lawyers abandon them before the appeal is filed.
That means incarcerated people fighting on their own behalf must meet the same deadlines and follow the same rules as lawyers even without access to the same resources, such as law books, paper, and online information.
In each of the two cases, the defendant told counsel he wanted to appeal, but counsel failed to file a required notice of intent to pursue postconviction relief, resulting in the loss of appeal rights.
Such a failure constitutes ineffective assistance of counsel. But in each case the Court held the defendant responsible for errors when acting on his own to restart his appeal.
Justice Rebecca Grassl Bradley joined with Justices Ann Walsh Bradley and Rebecca Dallet in strong dissents in both cases.
State v. Pope
In the first case, after four days of trial, a jury in Milwaukee County Circuit Court convicted Robert James Pope of first-degree intentional homicide as a party to the crime. In early July 1996, the court sentenced Pope to life imprisonment without parole.
Immediately after sentencing, Pope and his attorney, Michael Backes, signed a form indicating that Pope intended to pursue postconviction relief and that counsel would file a formal notice of the same within 20 days. Filing the formal notice sets in motion preparation of the trial transcript and appointment of appellate counsel. But Backes never filed the notice, and Pope’s direct appeal rights expired.
Pope and his mother tried repeatedly, without success, to reach Backes by phone to ask about the appeal.
About a year later, in August 1997, Pope contacted the State Public Defender’s Office to inquire about his appeal. The SPD told Pope there was no appeal, the office had no idea why the formal notice was never filed, and Pope could ask the court to extend the time for filing the notice.
Milwaukee council members hit release of video related to ongoing sex assault investigation
By Gretchen Schuldt
Ald. Milele Coggs on Thursday criticized Mayor Tom Barrett, Police Chief Alfonso Morales, and members of the Fire and Police Commission for their silence on the release, for apparently political purposes, of a video related to an ongoing investigation into an alleged sexual assault.
Ald. Nik Kovac, meanwhile, said he hoped the release would be investigated and said the Police Department should not be the agency to conduct any probe since everyone there reports to Morales, the apparent intended beneficiary of the incident.
The "deafening silence about the wrongfulness of the public disclosure, potentially and possibly by an employee or a member of the Police Department, of a sexual assault accuser is disturbing to me," Coggs said. "All other mess aside – commissioners, chief, everything else – for a department that is supposed to uphold the law to be the very one that, it appears, leaks information about the potential, possible sexual assault victim to the media, to the public, is alarming."
She continued: "And the fact that commission members, the mayor – who also was questioned about it – the chief, have not - have been silent - in outrage over that and finding out how that was allowed to happen is utterly disturbing to me."
The video showed questioning by police of Kalan Haywood Sr. Haywood was accompanied by Steven DeVougas, a lawyer and chairman of the Fire and Police Commission. The video was released as DeVougas was trying to delay the appointment of Morales to a four-year term as chief. Haywood has not been charged in connection with the alleged assault.
The police union said DeVougas violated ethics guidelines by accompanying Haywood during the police interview.
The release of the video and the police union's accusations came as DeVougas tried unsuccessfully to delay the vote on Morales' appointment until he could get more information.
"It would appear that whoever released that information was hoping to discredit the integrity and the authority of one of your colleagues," Kovac told Commissioner Nelson Soler during a meeting of the Common Council's Steering and Rules Committee. "That came from within the department. The department did not disavow it."
Morales' only comment on the matter, at least to the Milwaukee Journal Sentinel, was " 'Oh, that's really interesting,' " Kovac said. Morales "suggested essentially (that) – your colleague, the chair – that there might be something inappropriate there."
Kovac said he believed the release affected the commission as it weighed whether to appoint Morales to a new term.
"I would assume all of the commissioners were very much aware that was going on," he said.
The video release was inappropriate and the motivation for it was "highly suspect and related directly to the deliberation the commission had going on," Kovac said.
The Journal Sentinel story "was full of information that should not have been public," Kovac said. "It happened on the chief's watch. It may have directly benefited the chief's career. Should there be an investigation into that?"
Soler declined to respond directly.
"I think any behavior of that nature, as you described, should be investigated," he said.
DeVougas, who joined the meeting late into the discussion, said he thought the District Attorney's office and Fire and Police Commission could handle aspects of the investigation, and that he would recuse himself from involvement.
"I would even go so far to say an independent third party to have the investigation performed," he said.
WJI earlier this week wrote to the commission to inquire about the status of any investigation and to urge that an independent, third-party probe be conducted. From the correspondence:
By Gretchen Schuldt
A Milwaukee County judge's effort to force a man to remain a child's legal father after a DNA test showed he was not the biological dad was thrown out Tuesday by a State Court of Appeals panel.
The ruling reversed Milwaukee County Circuit Judge Paul R. Van Grunsven's decision that Deray J. Shaffale should remain the legal father because it was in the best interest of the child.
Shaffale had earlier signed a voluntary paternity acknowledgement because, he said, he thought he was the child's father and he wanted to get the child insured.
In sending the case back to Circuit Court, the three-member District 1 Court of Appeals panel said Van Grunsven applied the wrong standard and directed the judge and state attorneys involved in the case to read the relevant statutes.
Van Grunsven had found that requiring Shaffale to remain the legal father was in the best interests of the child.
"You signed that document, you’re the best and only father for this kid," Van Grunsven said during a 2018 hearing, according to the appellate decision.
He also said he had previously required men who erroneously acknowledged paternity to maintain their legal obligations even when they provided proof they were not the fathers.
"Let me explain this," Van Grunsven said. "I have had guys that I’ve known are not the father. I had genetic testing that establishes without a doubt that they’re not the father, but I continue to have that person under Wisconsin law be the legal father of the child because it was in the child’s best interest. That’s what the law is."
The appeals panel, though, in an opinion written by Appeals Judge Timothy G. Dugan, said that state law provides for voiding a paternity acknowledgement if a court finds that the male who signed it is not the biological father.
"We note that the statute does not reference a best interest of the child standard," Dugan wrote.
Shaffale wound up in court in the first place after the state filed a child support action naming both him and the child's mother, Vanidy R. Cross, as respondents.
Shaffale submitted the results of a privately obtained DNA test showing that he has 0% chance of being the father. Another man living in Seattle whom Cross said might be the father refused to submit to genetic testing that would determine whether he was.
The state argued that "it is better for the child to have a father on the birth records than no father at all," Dugan wrote. "The GAL agreed with the state."
Van Grunsven appointed the GAL, or guardian ad litem, to represent the child.
The state's lawyer told Van Grunsven the paternity acknowledgement could be voided only if its signing was tainted by fraud, mistake of fact, or duress, Dugan wrote. Van Grunsven found that Shaffale did not adequately show that it was, but the appeals panel said Van Grunsven did not do enough to determine that.
"There is no testimony or evidence in the record that establishes that Shaffale knew or had reason to believe that there were other potential fathers," Dugan wrote. "Cross was never called as a witness....There is no testimony or evidence in the record regarding Cross’s actions and representations to Shaffale....Further, because Cross was never called as a witness, Shaffale never had an opportunity to cross-examine her. He also was not given an opportunity to give his own direct testimony."
Dugan was joined in his opinion by Appeals Judges William W. Brash III and Joan F. Kessler.
Shaffale was represented on appeal by Demetra Christopoulos.
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