By Gretchen Schuldt

​State Sen. Andre Jacque (R-De Pere) wants to ask voters whether the Department of Corrections should be required to recommend revocation of community supervision for anyone charged with a crime while on probation, parole, or extended supervision.

Jacque and Sen. Stephen Nass (R-Whitewater) also would like to ask voters whether they think school districts should be prohibited from providing curriculum or instruction to students that one race or sex is inherently superior to another race or sex or that an individual, because of the individual's race or sex, bears responsibility for acts committed in the past by others of the same race or sex. 

The referendums would be advisory only, meaning they would have no legal impact. Both questions, introduced last week for consideration by the Legislature, if passed would be submitted to voters in an upcoming election. 

There already are two referendum questions on the April 4 ballot. One would amend the state constitution regarding bail if voters approve. The other, advisory only, asks whether able-bodied childless adults should be required to look for jobs in order to receive taxpayer-funded welfare benefits. 

The advisory referendums are widely seen as efforts to draw conservatives to the polls to vote in the hotly contested state Supreme Court race.

Update on 2/1/23: The two referendum questions slated for the April 4 ballot are being challenged as submitted too late under state law. 

By Gretchen Schuldt

​The Wisconsin Institute for Law and Liberty is appealing a circuit court decision preserving a scholarship program designed to increase student diversity in colleges.

WILL argues that Jefferson County Circuit Judge William F. Hue got it wrong when he said the Minority Undergraduate Retention Program, operated by the state’s Higher Education Aids Board, survived “strict scrutiny,” the most-stringent level of judicial review. The program provides grants of $250 to $2,500 per year to students who are Black, American Indian, or Hispanic, or who are former citizens of Laos, Vietnam, or Cambodia. Eligible students also must attend private, nonprofit colleges or technical colleges. 

Hue found the state had compelling interests in post-enrollment racial diversity and providing financial aid to students who might not otherwise have access to it. Those interests, WILL said in a brief filed Tuesday, were “not previously recognized by other courts.”

Hue also found that no race-neutral alternative would serve the state’s interests and that the program was sufficiently temporary and was narrowly tailored because it did not take money from other aid programs, WILL said. 

The state has not yet filed a reply brief.

WILL, representing five plaintiffs opposed to the program, contended in its District II Court of Appeals brief that Hue did not properly apply strict scrutiny standards. Instead, he relied on a U.S. Supreme Court case, Grutter v. Bollinger, “with a starkly different policy and some law review articles rather than the entire body of admissions case law,” WILL argued. 

In Bollinger, the Supreme Court ruled that the Equal Protection Clause did not prevent the University of Michigan Law School from considering race in admissions decisions to obtain the benefits that come from a diverse student body. The court found that the school’s individualized review of student applications meant that acceptance or rejection would not be automatically based on race.  

It is undisputed, WILL said in its brief, “that the Grant program excludes large swaths of students from consideration solely based on their race. The barred groups include not only Caucasian students, but students from India, China, Afghanistan, and the Middle East. A student who is not a member of one of the preferred racial groups selected by the Legislature in the 1980s is ineligible, full stop, no matter the extent of the student’s need."

WILL wrote that “In fact, appellants have located no policy in higher education or otherwise that provides a complete racial bar and still survives strict scrutiny."

Dodge County’s district attorney resigned effective Friday, January 13, 2023. Another prosecutor also left on Friday, and a retiring prosecutor’s last day is today, Tuesday, January 17. With that, Dodge County is left with no regular prosecutor staff and only its managing attorney, who will retire February 1.
 
The office usually consists of five prosecutors plus the managing attorney.
 
For the near future, the county’s prosecution team will consist of three part-time retirees brought in to help temporarily. “They’re a Band-Aid” said now-former District Attorney Kurt Klomberg on Friday about 90 minutes before he left office. “Our long-term staff is all gone," he said.
 
Already, several trials have been adjourned, and “there are people who are going to sit in jail,” he said. “This is a very bad situation for Dodge County."
 
The staffing crisis is the result of too few applications for open positions, with low pay being a major factor. “The inability to get applicants caused this collapse," Klomberg said.
 
The Dodge County prosecutor staffing crisis arose from a cascade of retirements and the inability to fill those positions with new attorneys.
 
Klomberg and his staff several years ago recognized that based on the career stages of three attorneys there would be a series of retirements after 2020. They started working on a succession plan six years ago and thought they had “everything lined up.”
 
The first retirement was scheduled for July 2022. That prosecutor handled drunk-driving prosecutions, and before the retirement Klomberg paired the retiring attorney with another assistant district attorney (ADA) to learn the practice.
 
Initially, because of the retiring attorney’s leave benefit that kept him on the payroll for about six months, the position could not be filled right away. Klomberg had planned for that and thought the office could cover that time period.
 
Then came a “curveball,” said Klomberg, when the ADA being trained informed him of the need for extended family leave in the fall. That attorney is not scheduled to return until mid-February.
 
Klomberg received permission to fill the retiree’s position early. But the problem then became a dearth of applicants. One applicant withdrew and another took a position in a different county.
 
Klomberg next received permission to offer more than the minimum hiring amount. But by November there were still no applicants.
 
At that point, the two other attorneys who had been holding off on retirement announced their end dates.
 
The office was down to two prosecuting attorneys: Klomberg and one ADA.
 
Klomberg tried to determine how to handle all of the Dodge County’s prosecutorial work with two attorneys. The Dodge County District Attorney’s Office files between 1,100 and 1,300 criminal cases each year.
 
Then the remaining ADA soon told him she was taking a position elsewhere. Her last day would be Friday, January 13. That ADA is heading to an office offering a shorter commute and a better quality of life. She won’t have to help cover about 1,200 cases before four judges, he said.
 
Towards the end of December, Klomberg asked the state’s Department of Justice for help, but there was “no cadre of attorneys to step in,” he said.
 
He asked other district attorneys for help. One turned him down because that office was also experiencing an attorney shortage. Another said help was possible, though Klomberg knew that wouldn’t work long term.
 
Klomberg said he saw two choices.
 
One, he could try to handle all of the county’s prosecution work himself. That would mean committing “daily acts of malpractice” and not being a proper father to his children.
 
No single attorney can handle 1,200 cases properly or handle that level of stress, he said. He noted that ADAs commonly handle 200 cases. Victims deserve better, as do defendants, who need prosecutors who properly scrutinize cases, he said.
 
Plus, with that choice “I cannot meet my obligations to my family at all,” he said.
 
Two, he could resign and hopefully “force the state’s hand” to address the staffing problems.
 
He resigned.
 
Klomberg said the base starting salary of $56,000 for prosecutors is not competitive in the current economy. “No one goes into government lawyering to get rich, but they need to be able to make a living,” he said.
 
Plus, although people still want to be prosecutors, they can make more money by working in other government departments. Klomberg pointed to Dodge County child support attorneys who are offered more than $80,000, and corporation counsel who make more than that.
 
Klomberg said “this is not a unique story.” He is concerned that other counties’ ADA staff will collapse as well. “A number of (district attorney) offices are teetering on the brink,” he said. Klomberg said on Friday that there were 48 open ADA positions in the state.

Prosecutors and a coalition of other justice-related offices are asking for the starting salary for prosecutors to be raised to $72,000, he said, though that is still not at the level of other government positions.
 
Klomberg noted that the pay issue exists for State Public Defender’s Office (SPD) attorneys, too. “Don’t miss the public defenders in this,” he said. “Both sides have to be healthy or the system just does not work,” he said.
 
Because prosecuting and defending attorneys in criminal court have similar skills, the district attorneys’ offices and SPD often compete for the same people at $56,000, he said. Klomberg indicated that the coalition of the Wisconsin District Attorneys Association, SPD, Wisconsin Courts, and the Wisconsin Department of Justice has submitted a budget request seeking an increase in salaries for both prosecutors and public defenders.
 
Klomberg is “deeply concerned” for the next Dodge County DA, who will walk into the job already having to fill four attorney positions and likely will not have institutional knowledge of the office. Klomberg was DA for 12 years.
 
The Dodge County DA’s Office has gone from about 135 to 145 years of prosecutorial experience to about 10 when the attorney on leave returns, he said.
 
Klomberg also is concerned about other DAs offices that are operating with skeletal staff. The staffing issue for his office occurred very quickly, and other several offices are at similar risk.
 
Klomberg, a Republican, said the collapse of the Dodge County DA’s Office highlights the need for proper funding of prosecutors and public defenders after years of neglect.
 
He urges Wisconsinites to contact their state legislators to fix the funding issue by supporting the budget requests of the coalition.

By Gretchen Schuldt

The state Supreme Court will hear arguments Tuesday in a case that could have a profound impact on how hospitals and doctors treat patients and the degree of control patients have over their medical care.

At issue is whether patients or their representatives can demand treatment that their caregivers believe is below an adequate standard of care.

The Court of Appeals, in a 2-1 decision, ruled in May that Aurora Health Care did not have to administer ivermectin to John Zingsheim, a COVID-19 patient. Ivermectin, promoted by some as a COVID treatment, is primarily used as an anti-parasitic in farm animals and is given to humans to treat some parasites and scabies. It has not been approved by the FDA for COVID-19 treatment. 

Aurora declined to administer the drug, requested by Zingsheim’s representative, Allen Gahl, who is the plaintiff in the appeal. Waukesha County Circuit Judge Lloyd Carter first ordered Aurora to administer ivermectin, then said Gahl should find a physician willing to administer the drug and to whom Aurora could grant credentials to practice in its hospital. Once credentialed, that doctor would have permission to go to the hospital and administer the ivermectin to Zingsheim.

Aurora appealed and won. Then-Appellate Judge Lori Kornblum wrote that Gahl “failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment,” so the lower court “erroneously exercised its discretion in granting Gahl injunctive relief.”

Appellate Judge Shelley A. Grogan, in dissent, said Carter ruled reasonably when he issued the injunction directing Aurora to credential a doctor willing to give the treatment to Zingsheim.

Zingsheim recovered.

Aurora, in its brief to the Wisconsin Supreme Court, agreed that Gahl failed to meet legal standards to be granted the relief he sought. In addition, it argued, “There is no authority that would give hospital patients a legal right to demand a specific treatment against the medical judgment of their providers.”

Aurora is represented by attorneysJason J. Franckowiak, Michael L. Johnson, and Randall R. Guse.

Karen Mueller, the lawyer representing Gahl, said in her appeal brief that “It has been established in the record that the hospital relies heavily on the CDC and the FDA for directions on what drugs to give and what drugs to withhold from their patients.” 

Mueller accused Aurora of “strict and blind adherence to unconstitutional edicts, guidelines and administrative rules of federal agencies who had loftier goals than keeping John Zingsheim and many other Wisconsin citizens alive.” 

Both parties have allies in the case. The Wisconsin Medical Society and the American Medical Association filed a joint amicus brief supporting Aurora. Two groups, the Front Line COVID-19 Critical Care Alliance and the Association of American Physicians and Surgeons, are weighing in on behalf of Gahl.

The AMA and Medical Society said reversing the appellate decision would mean that doctors will be forced “to choose between the law and their ethical duties, potentially exposing patients to harm and physicians to liability.” 

Ivermectin is not-an FDA-approved COVID treatment, attorneys Patricia Epstein Putney and Melita M. Mullen wrote.

“To the contrary, the FDA cautions that taking ivermectin – even in amounts approved for human consumption – can interfere with other medications” and cause a variety of reactions ranging from nausea to “seizures, coma, and even death,” they wrote.

Doctors can administer off-label prescriptions if they minimize risk, the treatment is backed by evidence and clinical experience, and the treatment is shown to improve patient outcomes, they said. 

“Novel treatments do not become part of the standard of care simply because they are ethically attempted, however,” they said. “And physicians do not breach ethical or legal duties by declining to administer them. Consequently, even if a physician could ethically treat COVID-19 with ivermectin, patients have no legal or ethical entitlement to that care.”

The Physicians and Surgeons group, in supporting Gahl, said Grogan’s dissent was right and that Wisconsin law “does fully recognize the right of a patient ‘to request and receive medically viable alternative treatments.’ That right would be meaningless if a powerful, revenue-maximizing business such as Aurora could interfere with access to treatment without judicial review, as the panel majority decision mistakenly establishes.”

The FDA found “decades ago” that ivermectin is safe, attorneys Rory E. O’Sullivan and Andrew L. Schlafly wrote in the brief. Many physicians have prescribed it for countless COVID-19 patients, they said.

“Yet Aurora blocked access to that physician-prescribed medication by patients trapped in its hospital,” they said. “Aurora never disclosed to the public that patients who admit themselves to that hospital will be automatically denied this medical care that is widely available outside of its hospital. As Aurora benefits enormously from its nonprofit tax status in purportedly serving the public, it can hardly hide behind its private status now to evade judicial review for how it senselessly blocked access to medication by all the patients hospitalized there for COVID-19.”

Attorney Joseph W. Voiland, writing for the Critical Care Alliance, said overturning the Court of Appeals decision would “preserve the equitable and statutory authority…of trial judges to grant temporary injunctive relief, particularly in matters where a patient is on their deathbed without many, if any, other option.” 

Mueller, Schlafly, and Voiland have represented and advocated for conservative causes in the past, such as arguing that the 2020 presidential election was “stolen” (Mueller), filing suit to challenge the Affordable Care Act (Schlafly), or submitting an amicus brief for Sen. Ron Johnson in Wisconsin’s ballot-box case (Voiland).

I wish I didn’t have to pick up the proverbial pen and write this as I am forced to revisit prior tragedies and traumas of our society. However, for context and clarity of current events it is necessary. It starts with a headline: “10-year-old Wisconsin boy charged as an adult in fatal shooting of mother over Amazon order of VR headset.” Yes, a tragedy of immense pain for a family, a community, a nation. There’s hurt, pain, anger, frustration, confusion, questions, and emotional fatigue as the community and the courts react and respond to the reality that in Wisconsin a 10-year-old is under the original jurisdiction of the adult criminal court if charged with a homicide offense. See Wis. Stat. § 938.183(1)(am).
 
I am sorry if this starts off and comes off as an emotional appeal, but 10 years old is 10 years old! Our great and progressive State of Wisconsin should not be charging 10-year-olds in adult criminal courts, subjecting them to the state’s harshest penalties. A 10-year-old facing up to 60? In our state? The community was shocked at a 10-year-old being charged as an adult — but not the courts. In fact, our lawmakers in their wisdom thought this to be a good idea when they codified this sentiment in 1995. See 1995 Wisconsin Act 77. This has been the law in Wisconsin for more than 26 years. It is time for us to revisit and rethink this immediately!
 
But how did we get to where we are today, where we are charging 10-year-olds as adults? We have to revisit another tragic event. In 1991, an 11-year-old Racine boy stood on the roof of a community center and shot a man dead as he left the building. The boy had been put up to this by some older teens. However, under the then-existing law, the 11-year-old could not be charged as an adult and was sent to a treatment center. At that time, Racine County Circuit Court Judge Dennis Barry (now deceased) was outraged that the 11-year-old could not be charged as an adult. So he vowed to revise the juvenile justice code to make this a new reality, partnering with Bonnie Ladwig, a Republican representative (also now deceased) who served on a committee tasked to revise the code.
 
The reason this law needs to be revisited is that it was born out of frustration and reaction to a tragic event that provided no simple solutions. What do you do with an 11-year-old who was used by two teen gang members to commit an egregious act? Our lawmakers were under the spell of the now-debunked popular myth of the '90s about the rise of “juvenile super predators.” In addition, the lawmakers did not have at their disposal the solid research we have from the neuroscience community concerning adolescent brain development. In simple terms, the research empirically demonstrates that children are different than adults and should be treated differently than adults because of the “diminished culpability” of the juvenile.
 
In the last decade, the United States Supreme Court has relied on and accepted the research as the basis of numerous policy-changing decisions. The courts have established that children are categorically less deserving of the harshest forms of punishment. See Roper v. Simmons, 543 U.S. 551 (2005); Miller v. Alabama, 567 U.S. 460 (2012). In Miller, the court reiterated that children are fundamentally different from adults and the sentencer must take into accounts a juvenile’s “lessened culpability” and “greater capacity to change.” Miller, 567 U.S. at 465. The changes that made it possible to charge 10-year-olds as adults in Wisconsin are a product of good intentions fueled by bad science, bad policy, and the politics of race.
 
Believe it or not, there was a time when the “children’s court” did not exist. Children and adults accused of crime were lumped together in their treatment. This began to change in 1899 in Illinois with the establishment of the first juvenile court. Wisconsin followed suit with its juvenile court in 1901. Recognizing the need for two systems in the 1900s, we have somehow lost our way and gone backwards in the 21st century, as our laws deem it appropriate to treat 10-year-olds with adult charges and adult sanctions. With what we know now in law, public policy, and science, how can we be all right with a 10-year-old treated as an adult to punish him, when it is quite obvious he has serious emotional and behavioral issues that need to be treated — not in a punitive environment but in a patient and parental setting. This 10-year-old may have some messed up things going on, but he is not a monster. He needs help on so many levels, as he will eventually deal with the grief of not having a mom.
 
If this child is kept in the adult court, he will be exposed to an extreme sentence for his age and will not receive the treatment needed. This child will potentially go untreated until he can he learn how to read and write properly and get his GED, which are prerequisites before any treatment in the adult system. In the meantime, how do we cancel out puberty for this child in an adult setting? And let us not be ignorant of the fact that hundreds of 14- to 16-year-olds have lived in maximum security prisons in Wisconsin for decades. With his charges, the reality of this child staying in a juvenile home until he is 17 or 18 is not realistic. To keep him in the adult system is cruel and unusual and is the equivalent of executing a child, creating a pseudo adult — because there is no such thing as a 10-year-old adult.
 
Let me wrap this up with a story — a true and tragic story. In 1858 in Mobile, Alabama, an enslaved 10-year-old black boy named Godfrey was accused of murdering another child. Godfrey was charged, tried, found guilty, and, after his judgment was upheld, subjected to the harshest penalty of the day. Godfrey was hanged at the age of 10. I have to believe that we are a better society than the pre-Civil War 1858 slave society that felt it was okay to hang a 10-year-old as if he was deserving of the state’s worst form of punishment. Godfrey v. State, 31 Ala. 323 (1858).
 
I have to believe we are better. In the name of Godfrey, we have to be better.

​Craig Johnson, Wisconsin Justice Initiative board president, testified today at the State Capitol against a proposed constitutional amendment on cash bail. 

The proposed amendment would allow more frequent use of pretrial custody and conditions for release. It also would allow judges setting cash bail amounts to consider several factors beyond a defendant’s likelihood of appearance at future hearings.

The process for amending Wisconsin’s constitution involves the Legislature passing a proposed amendment in two separate legislative sessions then presenting the amendment to voters in the form of one or more questions. 

The proposed amendment regarding new changes to bail and pretrial release passed the Legislature during a first consideration in early 2022. It is now before the Legislature for the second time as Senate Joint Resolution 2 and Assembly Joint Resolution 1. If the Legislature approves the amendment quickly on second consideration, the amendment could go to voters as early as April 4, 2023.

Johnson spoke at a joint hearing of the Senate Committee on Judiciary and Public Safety and the Assembly Committee on Judiciary. His oral remarks on WJI’s behalf, provided in written form as well, included the following:

Bail and pretrial release are important public policy areas that deserve careful attention, especially considering the recent tragic and heartbreaking events in Waukesha County in late 2021. The violence and loss of life at the Waukesha Christmas parade sent shockwaves through our state. It has now prompted an examination of our bail laws. I write today to highlight certain principles that should be kept in mind as the debate on these important questions moves forward. 

First and foremost, it’s important to understand that good bail decisions are made by relying on evidence. The problem that led to the tragedy in Waukesha was NOT that the evidence supported the decision to recommend a risky and dangerous person for release. The problem was that the evidence that was available – evidence that flagged the risk for violence and the risk for flight – was ignored. 

The process of setting bail in Milwaukee County (and other jurisdictions) is assisted by a risk tool called the Public Safety Assessment (PSA). Each defendant who is arrested on new charges receives a risk score, and the results are available for prosecutors and defense attorneys who make bail recommendations, and to court commissioners and judges who make the ultimate bail decisions. Among the factors that the PSA “scores” are a person’s prior record of convictions, the type of offense they are currently facing, their history of missing court, their history of violence, their age, and their record of prior incarceration. 

SJR 2 and AJR 1 propose an amendment to the Wisconsin Constitution that will allow courts to consider additional factors (beyond the likelihood to appear) in setting bail when a person is charged with certain offenses. The additional factors are set forth in the amendment and include the seriousness of the offense and the need to protect the public. However, these factors are already listed in chapter 969 of the statutes as appropriate considerations in setting the amount of bail – see §969.01(4): Considerations in Setting Conditions of Release. They are also part of the risk assessment used in many jurisdictions. It is arguably unnecessary to include them in the Constitution. 

Amending the Constitution to focus more on the offense charged rather than the total risk profile of an accused person will likely result in locking up low-risk poor people before trial with high cash bail while rich people who may be dangerous can buy their way out of custody. This makes no sense and will have potentially devastating effects on moderate and low-income people who are, after all, presumed innocent. We cannot have a two-tiered justice system – one for the rich, and one for the rest of us. The U.S. Civil Rights Commission released a report last year that highlighted the economic and racial disparities in the cash bail system. It noted that, of those held in jail unable to post bail, “there were stark disparities with regards to race” (https://www.usccr.gov/reports/2021/civil-rights-implications-cash-bail).

In the last couple decades, we’ve increasingly come to rely on evidence, not emotion, in making decisions in the criminal justice system. This should be applauded, not criticized, because it results in rational decisions rather than ones driven by prejudice and fear. It’s also important to note that studies have shown strong correlations between the length of time a low or moderate-risk person spends in pretrial detention and the likelihood that they would be re-arrested later in life. In other words, detaining low-risk individuals has societal costs – it can make us less safe. 

Well-informed bail decisions are made by experienced prosecutors, defense counsel, and judges – when they rely on the evidence in each case. The key is following the evidence, meaning appropriate high cash recommendations when a person’s history includes pending violent offenses, an extensive record of convictions, and a demonstrated history of missing court, as was the case with the defendant in the Waukesha Christmas parade incident. It also means release on recognizance even in some serious cases, IF the evidence shows a person is not high-risk. 

It is important to remember the teaching of the United States Supreme Court from the case of Salerno v. United States, 481 U.S. 739 (1987), that “(i)n our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” Any proposal that violates this premise may be vulnerable to federal constitutional challenge.  

Crucial evidence was missed or ignored in the 2021 Waukesha case, and the result was a tragedy. This should never happen in the future. We must make sure that future bail decisions are the result of an evidence-based, validated risk assessment that provides information to justice system professionals to make smart decisions in each case. The evidence points the way but gets the right result only if it’s not ignored. 

Because this amendment puts too much focus on the offense charged and does not adequately safeguard against unnecessary pretrial detention for low-risk individuals, we urge that you reject second consideration.

As currently proposed, the amendment would be presented to voters in the form of two questions.

Johnson urged the Legislature to rewrite Question 1 if the proposed amendment advances on second consideration. Johnson noted that as currently written Question 1 is misleading and fails to fully and fairly inform voters of the amendment’s contents. 

Question 1 currently asks if the Constitution should “be amended to allow a court to impose on an accused person being released before conviction conditions that are designed to protect the community from serious harm.” 

The question fails to inform voters that the Constitution currently allows such conditions only to protect the community against “serious bodily harm” and that the amendment expands the definition of “serious harm” to anything so “defined by the legislature” at any time.

WJI believes the question needs to inform voters of this expansion regarding types of potential harm to be considered, especially regarding harm not yet even determined.