 Here's a rundown on justice-related bills and issues in the Legislature this week.
An amendment by David Steffen (R-Green Bay) that would have prohibited the Department of Health Services from providing the COVID vaccine to incarcerated folks less than 60 years old until at least 21 days after the SARS-CoV-2 vaccine is available to the general public was not included in the final version of AB5 adopted by the Assembly Thursday. HOWEVER: SB8, which would prohibit people incarcerated in state prisons from being given priority in COVID vaccine priority in the state’s allocation, is still out there. Below are summaries of some new bills introduced. The summaries are not complete so if something catches your eye, you might want to check out the full Legislative Reference Bureau analysis printed at the top of the actual bill and check out the full bill itself. HARSHER PENALTIES – When 40 years is not enough SB17 – This is a long one. It's all about extra penalties if crimes involve victims who are 60 or older. These summaries are lifted right from the Legislative Reference Bureau except for the penalty explanations. SEXUAL ASSAULT OF AN ELDER PERSON Under this bill, any act of sexual misconduct that is currently a second degree sexual assault is a first degree sexual assault if the victim is 60 years of age or older. Under current law, if a person engages in any of the specified acts of sexual misconduct, he or she is guilty of a Class C felony (fine of up to $100,000, or imprisonment of up to 40 years, or both). Under the bill, he or she is guilty of a Class B felony (60 years in prison) if the victim is 60 years of age or older, whether or not he or she knew the victim's age. PHYSICAL ABUSE OF AN ELDER PERSON This bill creates the crime of physical abuse of an elder person that is modeled after the current law prohibition of physical abuse of a child. Under the bill, an elder person is anyone who is 60 years of age or older, and a person may be prosecuted irrespective of whether he or she knew the age of the crime victim. Under the bill, the penalties range from a Class C felony for intentionally causing great bodily harm to a Class I felony for recklessly causing bodily harm. (Details in the bill.) FREEZING OF ASSETS This bill creates a procedure for a court to freeze or seize assets from a defendant who has been charged with a financial exploitation crime when the victim is an elder person. Under the bill, if a person is charged with a financial exploitation crime, the crime involves property valued at more than $2,500, and the crime victim is at least 60 years old, a prosecuting attorney may file a petition with the court to freeze the funds, assets, or property of the person in an amount up to 100 percent of the alleged value of property involved in the person's pending criminal proceeding for purposes of preserving the property for future payment of restitution to the crime victim. INCREASED PENALTIES This bill creates a scheme that allows a term of imprisonment that is imposed for a criminal conviction to be increased in length if the crime victim was an elder person. Under the bill, a maximum term of imprisonment of one year or less may be increased to not more than two years; a maximum term of imprisonment of more than one year but not more than ten years may be increased by not more than four years; and a maximum term of imprisonment of more than ten years may be increased by not more than six years. Under the bill, the term of imprisonment may be lengthened irrespective of whether the defendant knew the age of the crime victim. RESTRAINING ORDERS FOR AN ELDER PERSON This bill allows an elder person who is seeking a domestic violence, individual-at-risk, or harassment restraining order to appear in a court hearing by telephone or live audiovisual means. Under the bill, an elder person is anyone who is 60 years old or older. Under current law, a person seeking a domestic violence, individual-at-risk, or harassment restraining order must appear in person in the courtroom at a hearing to obtain a restraining order.
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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. This case is a big deal in some circles. An amicus curiae brief was filed on behalf of the Wisconsin Association of Lakes, Inc., Big Portage Lake Riparian Owners Association, Blue Lake Preservation Association, Ballard-Irving-White Birch Lakes Association, Inc., Deer Lake Improvement Association, Wildcat Lake Association, Lake Katherine Association, Inc. and Plum Lake Association. The Wisconsin Towns Association filed an amicus, as did Wisconsin Realtors Association and Wisconsin Builders Association (jointly). The full opinion is here. Majority: Justice Ann Walsh Bradley (19 pp.), joined by Justices Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky. Dissent: Justice Brian Hagedorn (14 pp.), joined by Justice Rebecca Grassl Bradley.  Walsh Bradley The upshot The petitioner, Michael Anderson, seeks review of a published court of appeals decision affirming the circuit court's order upholding the Town of Newbold's denial of Anderson's attempt to subdivide his property.... Anderson contends that the Town's minimum shoreland frontage requirement is unenforceable because it is a shoreland zoning regulation that the Town does not have the authority to enact. The Town, on the other hand, argues that the requirement is a permissible exercise of its subdivision authority. We conclude that the Town ordinance at issue is a permissible exercise of the Town's subdivision authority pursuant to Wis. Stat. § 236.45 (2017-18). The Town thus proceeded on a correct theory of law when it denied Anderson's request to subdivide his property in a way that would contravene the ordinance. Background Anderson owns property on Lake Mildred in the Town of Newbold, which includes 358.43 feet of shoreline frontage. Seeking to subdivide his property into two separate lots, one with 195 feet of shoreline frontage and the other with 163.43 feet, Anderson submitted a proposal to the Town. At its November 3, 2016 meeting, the Town Plan Commission considered Anderson's proposal. The commission recommended that the Town deny Anderson's proposal based on its failure to comply with the Town's subdivision ordinance. According to the commission's minutes, denial was recommended "because [the plan] does not comply with Town of Newbold On-Water Land Division Standards which requires a minimum 225 foot lot width at the ordinary high water mark" of Lake Mildred. Adopting the commission's recommendation, the Town Board denied Anderson's proposed subdivision. Anderson sought certiorari review of the Town's decision in the circuit court....Anderson argued that the Town of Newbold ordinance is invalid because it is more restrictive than state standards. The circuit court issued a written decision, in several places referring to the case as a "close call." Although it stated that Anderson "makes a fairly strong case," it ultimately did not rule in his favor and affirmed the Town's decision.... The circuit court concluded that..."It is not a zoning ordinance...at all; instead, it is a subdivision ordinance..." Anderson appealed, and the court of appeals affirmed the circuit court, upholding the Town's denial of Anderson's proposed subdivision.... The guts Not all lands are treated equally in terms of community planning. Indeed, the legislature has recognized that shorelands are subject to unique considerations. These considerations arise from the fact that shorelands abut navigable waters, the beds of which are held in trust by the State for all of its citizens.... Because shorelands present unique considerations, they are treated differently for purposes of zoning. The legislature has specifically stated that shoreland zoning regulations are "in the public interest...." The essential question posed in this case is whether Town of Newbold Ordinance 13.13 is a zoning ordinance or a subdivision ordinance. In other words, we must determine the source of the authority under which the ordinance was passed. To determine whether the Town of Newbold ordinance at issue here is a zoning ordinance, we apply the Zwiefelhofer framework. Our analysis of the Zwiefelhofer factors is framed by the statutory mandate to liberally construe subdivision ordinances in the Town's favor. Specifically, (state statute) provides that "[t]his section and any ordinance adopted pursuant thereto shall be liberally construed in favor of the municipality, town or county and shall not be deemed a limitation or repeal of any requirement or power granted or appearing in this chapter or elsewhere, relating to the subdivision of lands." Pursuant to the Zwiefelhofer framework, and through the lens of the required liberal construction, it is apparent that the Town's ordinance is not a zoning ordinance. Most importantly, Town of Newbold Ordinance 13.13 has nothing to do with the use of land. It says nothing of how Anderson can use his land, only that he cannot split into the portion he seeks. Indeed, the ordinance addresses minimum lot size, an area that this court has recognized can be addressed in both the zoning and subdivision contexts. Second, the Town of Newbold ordinance does not divide the land into any type of zone or district. Although it contains different lot size requirements for areas bordering on various lakes within the Town, this does not make it a zoning ordinance. The characteristics of a zoning ordinance recognized by the Zwiefelhofer court indicate that the hallmark of a zoning ordinance is some type of use restriction....No such restriction is present here. Driving the determination in the present case are the first two Zwiefelhofer factors——division of a geographic area into zones or districts and the allowance or prohibition of certain uses within those zones. ("Some characteristics, under the circumstances of the case, may be more significant than others."). We need not exhaustively analyze the remaining Zwiefelhofer factors because they presuppose that the ordinance in question regulates land use in some way. As stated, Town of Newbold Ordinance 13.13 does not support such a presupposition. Because it is not a zoning ordinance, the restrictions on Town enactment of zoning ordinances set by (Wisconsin statute) do not apply. We therefore conclude that the Town ordinance at issue is a permissible exercise of the Town's subdivision authority pursuant to (Wisconsin law). The Town thus proceeded on a correct theory of law when it denied Anderson's request to subdivide his property in a way that would contravene the ordinance.  Hagedorn The dissent
While I agree that the ordinance in question is a subdivision ordinance and that it is not subject to the restriction in Wis. Stat. § 59.692(1d)(a), I disagree with the ultimate conclusion because these are the right answers to the wrong questions. The relevant and dispositive statutory provision in this case is § 59.692(2)(b). It provides that the more restrictive provisions of any kind of town ordinance relating to shorelands, including a subdivision ordinance, only have effect if the ordinance creating those more restrictive provisions predated the county shoreland zoning ordinance. § 59.692(2)(b). Therefore, while towns have some zoning and subdivision authority over shorelands, their power to regulate more restrictively than provisions in a county shoreland zoning ordinance is preempted unless those more restrictive provisions predate the county shoreland zoning ordinance. The Town does not contend § 59.692(2)(b) operates to save the more restrictive provision at issue here, and therefore it acted contrary to law in relying on its ordinance to deny Anderson's proposed land division. For these reasons, I respectfully dissent. Wisconsin Stat. § 59.692(2)(b) provides: "If an existing town ordinance relating to shorelands is more restrictive than an ordinance later enacted under this section affecting the same shorelands, it continues as a town ordinance in all respects to the extent of the greater restrictions, but not otherwise." This provision means several things. First, a "town ordinance relating to shorelands" that predates a later-enacted county shoreland zoning ordinance is, with one exception, no longer in effect. A county shoreland zoning ordinance preempts the preexisting town ordinance regulating shorelands. Second, the only exception to this rule is that the more restrictive provisions of a preexisting town ordinance remain in effect. Third, by necessary implication, more restrictive provisions in a later-enacted town ordinance "relating to shorelands" may not take effect. Only the more restrictive provisions of preexisting town ordinances are grandfathered in. These conclusions are dispositive in this case because this section does not limit itself to town zoning ordinances; it applies to any "town ordinance relating to shorelands." The plain language includes ordinances of any type, including subdivision ordinances. Wisconsin Admininistrative Code § NR 115.06 places additional review duties on DNR to ensure any county shoreland zoning or subdivision ordinance complies with Wis. Stat. § 59.692, including by issuing a certificate of compliance and providing advice and assistance to counties. There is simply no reason to think the legislature meant to require county subdivision ordinances to comply with and go no further than the county shoreland zoning ordinance, only to have them superseded by a town subdivision ordinance.... The practical effect of the majority's approach is to read the shoreland zoning restrictions out of the statutes, at least as applied to towns. If towns can do via subdivision authority exactly the same things that the state says they cannot do, the state's legislative policy choice to limit the power of towns and require some baseline uniformity in county shoreland zoning ordinances over specific matters becomes a dead letter. That is an absurd result; this is not the best way to read the governing law.  Goyke By Gretchen Schuldt
The criminal record expunction effort that came oh, so, close to approval in the State Legislature last session is back for another try and one of its chief backers, State Rep. Evan Goyke (D-Milwaukee), said there is reason for optimism. "A lot of our effort during the last two years was education," Goyke said. When legislators first considered the idea of giving those convicted of crimes a second chance, "their initial position was cautious and negative," he said. More people are more knowledgeable about and less opposed to the bill, he said. There also is new leadership and possible new rules in the Senate, which may help as well, he said. The revived bill again has bipartisan support. Other key backers of the measure include State Rep. David Steffen (R-Green Bay), State Sen. Alberta Darling (R-River Hills) and State Sen. Kelda Roys (D-Madison). The four have signed on to a co-sponsorship memo being circulated among other legislators. An expunction bill last year came within three senators of passage, but bill supporters could not corral those votes. Under current law, a person who wants to have a criminal conviction expunged from their record must ask the judge at the time of sentencing, before a judge has any idea how that person does in prison or on supervision. The law also limits the availability of expungement to those less than 25 years old at the time and to those who do not have a felony conviction record. The offense for which expungement is requested must not be a violent felony and must not carry a penalty greater than six years. The bipartisan bill being proposed would change the law in several ways. It would remove the discriminatory age limit of 25 and would allow the people convicted of crimes to request expungement when they complete their sentences. "The decision of whether or not to expunge a record should be based on merit and how an individual rehabilitated themselves, rather than an age," the four legislators said in the memo. "Wisconsin is one of only four states to have an age limit. This bill removes the age limit in order to focus on individuals that have successfully completed their sentence and have not reoffended." Other limits, including the types of crimes eligible for expunction, would remain in place. Once an expunction petition is filed, a judge would review it and either grant or deny it. If denied, a new petition could not be filed for two years. The bill also would limit a person to one expunction. The bill also makes clear what it means to successfully complete a sentence. That would include completing community services, paying all fines, fees, restitution, and completing any community supervision without revocation, according to the co-sponsorship memo. The bill has strong support among some conservatives. Americans for Prosperity, for example, "have really made this one of their priorities," Goyke said. "We are inching our coalition bigger," he said. The bill started in the Assembly last year; this time around, it will go to the Senate first, he said. 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. Majority: Chief Justice Patience Roggensack (34 pp.) The full decision for this case is here.  Roggensack The upshot We conclude that (Angel) Mercado forfeited several of his objections to the admissibility of the forensic interviews. Specifically, Mercado forfeited his contentions that: (1) the circuit court erred by not watching the victims' forensic interviews in their entirety prior to admitting them and (2) the circuit court erred by permitting N.G. to testify prior to the jury watching her forensic interview. Additionally, although Mercado objected to the admissibility of N.G.'s video-recording under Wis. Stat. §§ 908.08(2) and (3), we conclude that her video-recording is admissible under § 908.08(7), based on the residual hearsay exception found in Wis. Stat. § 908.03(24). Therefore, we conclude that the circuit court did not erroneously exercise its discretion when it admitted the three video-recorded forensic interviews during Mercado's trial. Accordingly, the court of appeals' decision is hereby reversed in full and has no precedential value. Background Mercado was arrested in August of 2016 for sexually assaulting N.G., L.G. and O.G., who were ages four through seven at the time of the assaults. The victims and their mother, C.C., lived with Mercado during that time. C.C. had known Mercado since 2011 and she and her children moved in with him so that she could assist him with his day-to-day activities (e.g., banking, appointments, medication, etc.). C.C. learned of the assaults on August 11, 2016....C.C. took all three girls to the hospital that night. The hospital staff did not find any physical evidence of the assaults; however, each victim individually repeated her allegations to the hospital staff. On August 16, 2016, C.C. took N.G., L.G. and O.G. to the Sojourner Family Peace Center in Milwaukee where they underwent forensic interviews with Officers Patricia Klauser and Danillo Cardenas. Before asking about what happened to them, the officers took the time to ascertain whether N.G., L.G. and O.G. understood the difference between right and wrong or the truth and a lie. N.G. and L.G. initially had difficulty articulating that difference. ... The State charged Mercado with two counts of first degree sexual assault of a child, sexual intercourse with a child under 12 years old...and one count of first degree sexual assault of a child, sexual contact with a child under 16 years old.... Before trial began, the State informed Mercado and the circuit court of its intent to introduce the video-recordings of the victims' forensic interviews into evidence. In a pretrial hearing regarding the video-recordings' admissibility, Mercado objected to the introduction of N.G.'s and L.G.'s video-recordings. Specifically, Mercado alleged that N.G. "evinces in this interview . . . zero ability to be able to tell the examiner the difference between truth and a lie." Mercado raised the same objection regarding L.G. The State disagreed. It acknowledged that "[N.G.] does have some trouble with the examples that she's given." Nonetheless, the State argued that the video-recording showed that she understood the importance of telling the truth. Mercado did not object to the introduction of O.G.'s forensic interview.... Mercado's case continued to trial in January of 2017.5 There, the State introduced the video-recordings of their forensic interviews which were admitted into evidence.6 The State also provided the jury with transcripts of the videos. Mercado did not object to either O.G.'s or L.G.'s videorecordings. After each video, the State called each victim to the stand to testify.... The jury returned a guilty verdict on all counts. The guts
Mercado appealed to the court of appeals reprising his postconviction arguments. The court of appeals agreed with Mercado. We granted the State's petition for review. On review, we determine: (1) whether Mercado forfeited all of his objections relating to O.G. and L.G. and one argument related to N.G. by not raising them at trial, in his postconviction motion or on appeal, and (2) whether N.G.'s video-recording is admissible under the residual hearsay exception. We also determine the proper interpretation of Wis. Stat. §§ 908.08(2) and (5).... We first examine whether Mercado forfeited all of his objections as they relate to O.G. and L.G. and one objection as it relates to N.G. by not objecting at trial, raising an issue in his postconviction motion or raising an issue on appeal. If Mercado did forfeit his objections, the State argues that the court of appeals erred by directly reviewing and reversing the alleged errors to which Mercado did not object. We conclude that, under Wis. Stat. § 901.03(1), Mercado forfeited several of his objections by either not raising them during his trial or raising an issue on appeal. First, Mercado did not object to the court's showing of O.G.'s video-recording at any stage until he moved for postconviction relief. Additionally, although Mercado objected to the admissibility of L.G.'s video-recording during a pre-trial hearing, he did not renew his Wis. Stat. § 908.08(3)(c) argument relating to L.G. on appeal to the court of appeals. Finally, Mercado did not object to the court permitting N.G.'s testimony prior to showing her videorecording.8... To the extent that there are defenses related to the admissibility of O.G.'s and L.G.'s video-recordings, we conclude Mercado forfeited those arguments and there was therefore no error in the circuit court admitting either video-recording. Hearsay We have set out five factors that courts look to in determining whether a video-recording of a child's statement meets circumstantial guarantees of trustworthiness... We conclude that N.G.'s statement has circumstantial guarantees of trustworthiness such that it is admissible under the residual hearsay exception. First, N.G. was four years old at the time of the assaults....N.G.'s age "tend[s] to support the veracity of [her] report of sexual abuse" by Mercado. Id. Additionally, she had a close relationship with Mercado having lived with him and spent time with him outside of the house....although she had trouble articulating the difference between the truth and a lie, there is simply no evidence that N.G. deliberately fabricated her statement. Second, N.G. made her statement to a police officer. Similar to the social worker in Sorenson to whom the victim made her statement, Officer Cardenas had experience conducting these types of forensic interviews and did not appear to utilize coercive interviewing techniques....We detect no motive to coerce N.G. to implicate Mercado nor any motive to have her fabricate her assertions. Officer Cardenas's relationship with N.G. weighs in favor of admitting N.G.'s video-recording. Third, the circumstances under which N.G. made her statement support its reliability. Again, N.G. made her statement during a one-on-one interview with a police officer at a neutral location. Additionally, although difficult to pinpoint, the timing of the statement in relation to the assaults is at least a neutral factor. The assaults occurred between June and August of 2016. This puts her statement in a range of potentially a few days to one or two months after the assaults.... Fourth, the content of N.G.'s statement further supports its trustworthiness....Based on the manner in which she described the assaults, the content of her statement appears to be free from adult manipulation. Fifth, there is circumstantial evidence that corroborates N.G.'s statement to Officer Cardenas. We note at the outset that there was not physical evidence of the assaults, which is to be expected given the nature of the assaults. Rather, we conclude there is corroborating evidence in the consistency of N.G.'s statements. Specifically, N.G. offered nearly identical statements to her mother and to Nurse Kanack. In both circumstances she was unprompted and offered these statements voluntarily.....  Hruz By Gretchen Schuldt
Defendants in criminal cases cannot be held indefinitely in jail before a preliminary hearing simply because them State Public Defender's Office cannot find a lawyer willing to represent them, the State Court of Appeals ruled Wednesday. "Although the SPD’s search for counsel can constitute good cause to delay the preliminary hearing, going forward there must be a more robust consideration of relevant factors than is demonstrated by this record—including the necessity and feasibility of appointing counsel at county expense, especially in instances of prolonged delay," District III Court of Appeals Judge Thomas M. Hruz wrote for the three-judge panel. He was joined in his opinion by Appeals Judges Lisa K. Stark and Mark J. Seidl. The panel reversed a ruling by Marathon County Circuit Judge LaMont K. Jacobson, who denied a motion to dismiss by defendant Nhia Lee, who said the frequent delays of his preliminary hearing were errors by the circuit court. While the appeals judges ordered the case is dismissed, Marathon County can re-issue the charges. The appeals panel also found that the court had the authority to appoint a lawyer for Lee at county expense, but was not required to do so. State law requires that a preliminary hearing be held within 10 days of an defendant's initial appearance in felony cases where bail is more than $500. The time limit can be extended for cause or if both parties agree. Lee, who was eligible for public defender representation, was held for 101 days without a lawyer and 113 days before his preliminary hearing. Lee was in jailed on $25,000 bond on two felony drug charges and one count of identity theft. He was represented by an SPD-appointed lawyer for his September 2018 initial appearance. After that, SPD could not find a lawyer to represent Lee. At the time, the state paid $40 per hour to private attorneys appointed by the agency to represent indigent clients when SPD lawyers could not do so themselves. That pay rate, the lowest in the nation at the time, did not cover lawyers' costs and led many to refuse SPD cases. The rate has since been raised to $70 per hour. Lee made clear to during "review hearings" held by a court commissioner that he wanted a lawyer. Because SPD couldn't find one, the commissioner several times on his own motion found good cause to extend the time limit for holding the preliminary hearing. After Lee complained that he had been held for a month without counsel, Hruz wrote, "The court commissioner responded: 'I wish I could tell you what the hold up is, there doesn’t seem to be any…certain length. I’ve seen people who have been in shorter get attorneys, so I’m not sure what the hold up is on your particular case.' ” Hagedorn By Gretchen Schuldt Did the state misrepresent data it used to argue that convicted felons should never be allowed to own guns? State Supreme Court Justice Brian Hagedorn said yes, and a WJI analysis suggests the state's presentation was misleading, at best. It is unclear, though, that having more accurate data would have changed the court's ruling in State v. Roundtree upholding the gun possession ban law that courts had also previously upheld. Assistant State Attorney General Sarah Burgundy and Attorney General Josh Kaul contended in a brief that a Department of Corrections study showed that "Public-order offenders had a significant rate of recidivating with violent crimes. For example, based on data from prisoners released in 2011 for public order offenses, 21.4% recidivated with a violent offense..." WJI, based on the data contained in the report, determined that 6% of public-order offenders recidivated with violent crimes. Reached by email for comment, Burgundy simply referred WJI to the DOC study. Public-order offenses, the study said, included non-property, non-violent crimes such as fifth- or sixth-offense drunk driving, felony failure to pay child support, possession of a firearm by a felon, and felony bail jumping. The appellant in the gun case, Leevan Roundtree, was convicted in 2003 of felony failure to pay child support and was placed on probation, which he completed; in 2015, police found a gun under his mattress, and he was convicted of felon in possession of a gun and sentenced to 18 months in prison and 18 months of extended supervision. Roundtree argued unsuccessfully that the gun ban was unconstitutional when applied to non-violent offenders like him. DOC defined recidivism in its report as "Following an episode of incarceration with the Wisconsin DOC, to commit a criminal offense that results in a new conviction and sentence to Wisconsin DOC custody or supervision." Burgundy and Kaul, in their brief, also said the study's data showed that "the 21.4% of public-order offenders recidivating with a violent crime was higher than that of property offenders (16%) and drug offenders (17.9%)," they wrote. "And it was just seven percentage points lower than the rate of violent offenders (28.3%). WJI determined that 6.6% of property offenders, 5.5% of drug offenders, and 7.7% of violent offenders recidivated with violent crimes. The DOC study did not measure the released offenders who recidivated with violent crimes, as the brief suggested. It measured instead the share of recidivists who committed such crimes, as Hagedorn said in his dissent. The state's brief did not make clear that the percentages it cited so prominently represented a percentages of percentages.  Justice Ann Walsh Bradley cited the state's figures in the majority opinion upholding the gun possession ban.
"This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence," Walsh Bradley wrote. Hagedorn, in dissent, disagreed. "That's simply not what the study says, and it is an egregious error in light of its almost singular prominence in the State's effort to prove the requisite connection," Hagedorn wrote in a dissent "It should be obvious, then, that this (21.4%) statistic offers no assistance in establishing the relationship between past crime and a person's risk to commit gun-related violent crime in the future, which is the core inquiry of the intermediate scrutiny analysis," he said.  Walsh Bradley Note: We are trying something new here, crunching Supreme Court of Wisconsin decisions down to size. (Left to themselves, some of our justices do go on so.) 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. In this case, we've omitted a concurrence by Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, because it addresses a secondary issue. Majority: Ann Walsh Bradley, joined by Patience Roggensack, Annette Ziegler, Rebecca Dallet, and Jill Karofsky. (20 pages) The upshot The petitioner, Leevan Roundtree, seeks review of an unpublished per curiam decision of the court of appeals affirming his judgment of conviction and the denial of his motion for postconviction relief. He asserts that the felon-in-possession statute under which he was convicted is unconstitutional as applied to him. Specifically, Roundtree contends that Wisconsin's lifetime firearm ban for all felons is unconstitutional as applied to him because his conviction over ten years ago for failure to pay child support does not justify such a ban. He maintains that the conviction was for a nonviolent felony and that no public safety objective is served by preventing him from owning a firearm.... We determine that Roundtree's challenge to the felon-in-possession statute requires the application of an intermediate level of scrutiny. Under such an intermediate scrutiny analysis, we conclude that his challenge fails. The statute is constitutional as applied to Roundtree because it is substantially related to important governmental objectives, namely public safety and the prevention of gun violence..... The Background In 2003, Roundtree was convicted of multiple felony counts of failure to support a child for more than 120 days. As a consequence of these felony convictions, Roundtree was, and continues to be, permanently prohibited from possessing a firearm. Milwaukee police executed a search warrant at Roundtree's home on October 30, 2015. Under his mattress, officers located a revolver and ammunition. A record check of the recovered gun revealed that it had been stolen in Texas. Roundtree claimed that "he purchased the firearm from a kid on the street about a year ago, but that he did not know it was stolen." The State charged Roundtree with a single count of possession of a firearm by a felon contrary to Wis. Stat. § 941.29(2). He pleaded guilty and was subsequently sentenced to 18 months of initial confinement and 18 months of extended supervision. The guts
Roundtree's as-applied challenge is based on the contention that his conviction for failure to pay child support is a nonviolent felony and thus is insufficient to curtail his constitutional right to bear arms. He argues that "[d]isarming [him] does not in any way advance public safety, but deprives him of his right to keep and bear arms for self-defense." As this is an as-applied challenge, he must demonstrate that his constitutional rights specifically were violated, not that the statute is unconstitutional in all applications.... The United States Supreme Court has made clear that "[l]ike most rights, the right secured by the Second Amendment is not unlimited." The same is true of the right provided by our State Constitution. Indeed, the Second Amendment secures "the right of law-abiding, responsible citizens to use arms in defense of hearth and home." In Heller, the Court struck down a regulation barring residential handgun possession as contrary to the Second Amendment. Id. In doing so, the Court observed "that the Second Amendment conferred an individual right to keep and bear arms." It was careful, however, to delineate the reach of its analysis: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Roundtree was convicted of failure to support a child for over 120 days. In his view, this is different in kind from the crime at issue in Pocian, where the defendant was convicted of uttering a forgery as the underlying felony. Put frankly, he suggests that failing to pay child support is not as bad as "physically taking a victim's property." But failure to pay child support is every bit as serious as uttering a forgery if not more so. Those who fail to make support payments deprive the very people they should be protecting most, their own children, from receiving basic necessities. Roundtree chose to keep money for himself that rightly belonged to his children. And, to further add to the egregiousness of his offense, he committed this crime repeatedly by failing to support for at least 120 days. By all accounts this is a serious offense. Simply because his crime was not physically violent in nature, it does not follow that the felon-in-possession statute cannot be constitutionally applied to Roundtree. The Seventh Circuit determined as much in Kanter when it concluded that "the government has shown that prohibiting even nonviolent felons like Kanter from possessing firearms is substantially related to its interest in preventing gun violence." The legislature did not... create a hierarchy of felonies, and neither will this court. Even in the case of those convicted of nonviolent felonies, "someone with a felony conviction on his record is more likely than a non-felon to engage in illegal and violent gun use." Thus, even if a felon has not exhibited signs of physical violence, it is reasonable for the State to want to keep firearms out of the hands of those who have shown a willingness to not only break the law, but to commit a crime serious enough that the legislature has denominated it a felony, as Roundtree has here. Such assertions are echoed by data from the Wisconsin Department of Corrections (DOC). For example, DOC data indicate that among recidivists who committed public order offenses, such as failure to pay child support, and were released from prison in 2011, 21.4 percent recidivated with a violent offense. As the State strikingly observes in its brief, "the 21.4 percent rate of public order offenders recidivating with a violent crime was higher than that of property offenders (16 percent) and drug offenders (17.9 percent). And it was just seven percentage points lower than the rate of violent offenders (28.3 percent)." This data is surely sufficient to support a substantial relation between keeping firearms out of the hands of those convicted of nonviolent felonies and the public safety objective of preventing gun violence." Further, the fact that Roundtree's conviction occurred over ten years ago does not affect the result. Roundtree asserts that he poses no danger to public safety and should be able to possess a firearm as a result. However, the record indicates that the gun Roundtree possessed was stolen and purchased off the street. Supporting street level gun commerce is hardly the benign action Roundtree would have us believe it is.  By Gretchen Schuldt
The federal government's drug battle goes on. From pushing new technology that differentiates legal hemp from increasingly legal marijuana to funding opioid treatment, the government is spending billions in an effort to control the use and supply of illegal drugs in the country. If the War on Drugs has been lost, the federal government hasn't surrendered. There is a piece of good news. The bill prohibits the Justice Department from using its resources to prevent Wisconsin and other states "from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana." In a move just a step or six behind the times, the new appropriation bill directs the U.S. Drug Enforcement Administration to make available to state and local law enforcement kits that can distinguish between hemp and marijuana so marijuana busts are easier for police agencies. Marijuana is legal in 35 states. Hemp, in general, is cannabis without the high. In Wisconsin, legal hemp must contain less than 0.3% of THC, the active ingredient in marijuana. Marijuana and hemp smell the same and look similar, leading to confusion and errors in arrests and prosecutions. The appropriations measure, better known as the "Coronavirus Relief Bill," tells the DEA to work to "ensure state and local law enforcement have access to this field test technology so they can more efficiently conduct their drug interdiction efforts at the local level," according to a congressional summary. The bill also directs the agency to make periodic reports to congressional committees on DEA's success in sharing the technology. An earlier post on justice-related programs funded through the bill is here. The bill also includes:
Proposed Assembly resolution alleges improper voting practices, sets fixing them as top priority1/5/2021  Allen By Gretchen Schuldt
State Rep. Scott Allen (R-Waukesha) this week introduced a resolution that suggests that problems with administering the 2020 election could lead to the loss of governmental legitimacy. "When the executive branch or administrative agencies charged with enforcing the laws instead choose to step outside of the law, or go beyond the law, or stretch the law to something other than what is written, the legitimacy of the government begins to erode....Without legitimacy, the government of the people, by the people, and for the people shall not stand," he said in his resolution. "Instead, our government will devolve into a system of coercion and bribery that seeks to use the guise of elections to hold a degree of credibility." The resolution would establish as the Assembly's top priority dealing with alleged election administration flaws. It's unclear why Allen introduced the resolution rather than propose legislation that would actually address the problems he says exists. Most of them were also cited in the Trump campaign's unsuccessful effort before the State Supreme Court to invalidate ballots in Milwaukee and Dane Counties. Allen said there were numerous instances where election officials did not follow "the letter of the law," including those below. The wording in the list is taken directly from Allen's resolution. 1. Clerks provided absentee ballots to electors without applications, as required by Wis. Stat. § 6.86. 2. Clerks and deputy clerks authorized by the municipal clerk failed to write on the official ballot, in the space for official endorsement, the clerk's initials and official title, as required by Wis. Stat. § 6.87 (1). 3. Clerks issued absentee ballots to electors who were required to enclose a copy of proof of identification or an authorized substitute document, but who failed to do so under Wis. Stat. § 6.87 (1). 4. Clerks failed to enter initials on ballot envelopes indicating whether the elector is exempt from providing proof of identification, as required by Wis. Stat. § 6.87 (2). 5. Clerks in Milwaukee and Dane Counties declared electors in their counties to be “indefinitely confined” under Wis. Stat. § 6.86 (2), causing chaos and confusion, and failed to keep current the mailing list established under that subsection; more than 215,000 electors thus avoided identification requirements and safeguards that the legislature has established. 6. Clerks and the boards of canvassers permitted absentee ballots returned without the required witness address under Wis. Stat. § 6.87 (2) to be counted in contravention of Wis. Stat. § 6.87 (6d). 7. Clerks who received absentee ballots with improperly completed certificates or no certificates filled in missing information in contravention of Wis. Stat. § 6.87 (9). 8. The Wisconsin Elections Commission, in contravention of Wis. Stat. § 6.875, barred special voting deputies from entering qualified nursing homes and assisted living facilities, instead mailing ballots to residents directly, thereby avoiding safeguards the legislature put in place to protect our most vulnerable citizens and loved ones. 9. The clerk of the City of Madison ignored Wis. Stat. § 6.855 and created an event named “Democracy in the Park” and, of her own accord, designated alternate sites where absentee ballots could be collected; these ballots were counted in contravention of Wis. Stat. § 6.87 (6). By Gretchen Schuldt The coronavirus relief bill signed by President Trump last month was the fifth longest bill in the history of the United States, according to govtrack.us. The bill actually deals with a lot more than the COVID crisis and $600 stimulus checks. It funds the government for the next fiscal year, including the Department of Justice and all of its many arms and related agencies; federal courts, the Department of Homeland Security, and a host of justice-related entities. Below are some highlights from the Department of Justice's general administration section. The information and quotes are taken from the House Rules Committee Joint Explanatory Statements. We'll be posting more information over the next few weeks. The bill:
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