It was kind of like watching a "nyah, nyah boo boo" moment on a playground. Only it was the State Supreme Court. And it was a very important case -- the Milwaukee Police Association's challenge to the city's residency rule. But, hey, if you can't interrupt yourself to act like a child when you are a Supreme Court justice, when can you? Here's the exchange between Justice Michael Gableman and Justice Ann Walsh Bradley. It started when Gableman confronted Bradley.
Gableman: Justice Bradley, is there something amusing that I’m saying?
A. Bradley: It must be the acoustics that have a problem here.
Gableman: It must be. It must be, Ann. So back to my question....
State Supreme Court Justice Michael Gableman this week coached a Milwaukee Police Association lawyer fighting the city's residency rule on how to frame an argument.
MPA attorney Jon Cermele was responding to Justice Shirley Abrahamson's observation that Milwaukee's residency rule may still have been in effect after the legislature adopted a law prohibiting residency rules because Milwaukee's residency rule was still on the books.
"You had two possible applicable rules governing your employees," she said. "One, they had to be residents; two, they didn’t have to be residents.…You didn’t know which one was going to win (in court)."
In stepped Gableman lend the MPA a hand.
"That’s one way of looking at it," he said to Cermele. "Another way of looking at it might be for you to respond by saying you felt entitled to rely on the word of the Legislature."
Yes, Justice Gableman! Thanks for the help!
Cermele was appropriately appreciative. “That would perhaps be a better way for me to have responded,” he said.
Memo to Milwaukee: We think we know how Gableman will go on this one.
The Legislature wants to throw a giant strip-search party, and way too many people are invited.
The Constitution, however, is not.
Under a bill just adopted by the Assembly and sent to the governor, litterers, loiterers, and others whose jail stay is expected to be only a few minutes or few hours will join the ranks of the strip searched.
Doesn't matter if the cops have one iota of reason to believe that a detained person has contraband. Doesn't matter if the person has been charged with a crime. Doesn't matter if the person is jailed for littering or loitering. Anyone who is expected to be lawfully detained with at least one other person for any amount of time will be subject to strip search. Currently, only those held at least 12 hours are subject to strip search.
The Wisconsin Sheriffs and Deputy Sheriffs Association likes the bill because it allows more efficient operations of jails.
"Many counties do not have the capacity to hold multiple individuals for twelve hours prior
to moving them into cells with other incarcerated individuals....The twelve-hour hold provision puts a burden on jail staff to manage limited holding cell space, and the hold potentially compromises safety in the jail," the association said in testimony submitted to the Assembly Committee on Corrections.
The association also argued that allowing strip searches of everyone enhances safety. "Strip searches are conducted to protect the detainee, other inmates, and jail staff. The twelve-hour hold provision limits the ability of law enforcement to ensure the jails are free of dangerous weapons, drugs and disease," it said.
The State Public Defender's Office, however, reminded the committee that the 12-hour limit was put in place during the previous legislative session because of constitutional concerns.
"We respectfully request that the committee consider the ramifications of removing the twelve hour delay
without data to show that it is necessary," Adam Plotkin, legislative liaison for the public defender's office, wrote to the committee. When considered previously, he said, "all available evidence suggested that there was not a significant amount of contraband being taken into jails after arrest of individuals."
Two court cases considered how much contraband was found during strip searches, Plotkin said. In one case, In one, 23,000 strip searches over a four-year period resulted in five instances of contraband found; in the other, 75,000 body cavity searches over five years resulted in 16 instances of contraband discovery.
Jon M. Theisen was appointed to an Eau Claire Circuit Court judgeship by Gov. Walker in October 2011 and has not had to work hard to keep his job since then. Theisen, who was Chippewa County district attorney as the time of his appointment, ran unopposed in 2012. He is up for re-election in 2018.
Supreme Court Justice Michael Gableman attended Theisen's 2011 swearing-in ceremony.
Theisen's decisions have been challenged 17 times in District 2 of the State Court of Appeals. Three decisions were reversed; 14 were upheld.
A bill that would force Milwaukee County to use the Department of Revenue as a debt collection agency poses big questions and may create big problems for the entire court state system, the state's top courts administrator said last week.
And Milwaukee County Clerk of Circuit Court John Barrett said the bill, Assembly Bill 885, relegates victim restitution "to secondary status" because the bill specifically excludes restitution from the types of debt the state would collect for the county.
"If the legislature is truly concerned about crime victims, then restitution should be turned over and collected with equal vigor as these other debts," he said.
The bill, supported by Milwaukee County Executive Chris Abele, would require Milwaukee County have the State Department of Revenue to collect outstanding debt owed to the county. Other counties may have such agreements with DOR, but they are voluntary, not mandatory.
The Milwaukee bill would require that $1 million per year or 50% of collections, whichever is less, go to the Milwaukee Area Workforce Investment Board for job training programs, and would financially penalize the county if DOR believed the county was not notifying it of all the debt the state could collect on the county's behalf.
Director of State Courts J. Dennis Moran, in written testimony to the Assembly Committee on State Affairs and Government Operations, outlined a series of questions about the bill and its potential impacts on the courts. Moran did not take a position on the bill, but submitted his testimony for information only.
How, he asked, are courts supposed to link collections by the state to the individual court cases from which they arise? "How will the Clerk record the payments for the fees, surcharges and other statutory court-ordered amounts that are collected? There are currently approximately 50 different accounts that we track and report on every month," he said.
Barrett, in a letter to the committee, presented a chart of payments that he said represented a typical second offense OWI case. Money is allocated to state and county agencies for different purposes. The chart does not include the 15% surcharge the Department of Revenue would levy as a collection fee. "Under this bill court imposed penalties will no longer be paid to the Clerk of Circuit Court," Barrett said in a letter. "Does this statute absolve the Clerk of Circuit Court of those allocation responsibilities?"
Moran asked whether the annual MAWIB grant would come from money owed to courts. If so, that could divert money from purposes designated by law. The bill also is unclear about whether it would restrict judges in establishing appropriate payment plans for defendants, he said.
"Payment plans are not just about collecting the maximum amount for the state and county coffers; they are also important tools for enforcing court orders," he said. "Judges often have to balance a party's resources against obligations for child support, substance abuse treatment, family counseling, attorney fees, and other costs associated with the case. Courts need the ability to set the terms of any repayment plan, and that need continues well after the judgment is entered."
Moran worried that the punishment the state could mete out if it felt the county did not certify enough debt for collection could hurt the Clerk of Court office. "If that happens, there is the potential to cripple our largest court, a court that handles more than 100,000 cases every year," he said.
The state's computer system for courts, CCAP, does not now talk to the DOR system, Moran said. "We do not know the cost or the length of time it would take to build such an interface.... CCAP has already suffered from declining program revenues over the last several years, and this would add to the current strain on its resources," he said.
"And finally," Moran wrote, "does AB 885 set a precedent that will hurt other clerks of court if they choose to use DOR debt collection? Will it be forced upon them, as this bill does to Milwaukee County?"
The committee, on a 9-4 vote, recommended passage of the bill.
The Village of Kohler said the Blackwolf Run golf course was worth $18,454,910 and wanted property taxes levied on that amount. An expert from the Kohler Company, owner of the golf course, said it was worth $14,400,000.
In steps Circuit Sheboygan County Circuit Judge Timothy Van Akkeren, who said both experts were wrong. Instead, the judge said, the course was worth $12,621,152, less than even Kohler contended.
A District 2 Court of Appeals panel, in an unsigned opinion released last week, upheld Van Akkeren's ruling.
The village had argued in its appeal, among other things, that Van Akkeren ignored its expert's opinion and drew his own conclusions, but the appeals panel said, "it is well known that a fact finder is not bound by an expert’s opinion."
Kohler Co. will get a property tax refund of $605,908.51 plus interest.
This is not the first time Van Akkeren has help Kohler and its golf ventures. In 2010, he rejected challenges to plans by Kohler and the Wisconsin Department of Transportation to build a Sheboygan County interchange to be used for roughly one week every five years to serve traffic going to big tournaments at Whistling Straits, a Kohler facility.
The appeals panel in the tax case included Judges Lisa S. Neubauer, Paul F. Reilly, and Brian K. Hagedorn.
And here is the roundup of the week's appeals court cases from around the state.
The State Supreme Court this week stripped away a bit more of Fourth Amendment protection against unreasonable searches.
Check out our illustrated casebook on the decision in State of Wisconsin v Charles V. Matalonis.
A look at Gov. Scott Walker's appointments to state courts since 2010, when he was elected to office.
Nelson W. Phillips III
Phillips was appointed by Walker in October 2011 and was immediately tainted by the association. Phillips worked as a state and federal prosecutor and in private practice before his appointment. He had to run for election in spring 2012, just a few months after he got the job. Despite having the support of the legal establishment, including numerous judges and lawyers of large law firms, he lost to Carolina Starks, a state administrative law judge who made Walker an issue in the campaign. Phillips did not hold office long enough to make much of an impact.
Walker's record on diversity in judicial appointments has deteriorated immensely since Phillips' appointment.
Prediction: The State Supreme Court will grant the elected officials the right to seek judicial review of open records requests to determine whether the public interest is better served in releasing the relevant records than in not releasing them.
This will result in all kinds of mischief, including elected officials' refusal to hand over records until certain key dates in the election cycle -- like election day itself -- are over. It also will essentially exempt State Supreme Court justices from the law, because what judge is in a position to tell a justice to release a record he or she does not want made public?
Justices made clear their leanings during oral arguments yesterday in Albert Moustakis vs. the Wisconsin Department of Justice. Justice Michael Gableman even decried the "unelected bureaucrat" -- maybe he meant to say "public employee" or "records custodian" -- in each public agency who is now tasked with performing such balancing tests. That person, he said, "may or may not be trained in the fine points of the open records law."
Justice Shirley Abrahamson pointed out that it was the Supreme Court itself who set out the guidelines for how the balancing test should be conducted.
"This is a well-established balancing test," she said.
Justice Ann Walsh Bradley said the statute and explanatory legislative notes made clear the legislature intended there be some records not subject do judicial review.
It appeared difficult for some of the justices to understand how the Justice Department officials who conducted the balancing test of Moustakis-related records made their decisions.
The records request from a newspaper were related to complaints about Moustakis the Justice Department investigated and found to be unsubstantiated. The DOJ, in reviewing the records before their scheduled release, were redacted in part; others contained allegations so outlandish they were withheld from public view entirely, said Asst. Atty. Gen. Brian Keenan. Moustakis sued, and the records were never released.
Keenan said Moustakis, an an elected state official, was not entitled to a judicial review of the records before their release, but some justices appeared unconvinced.
"Is it fair since there's such a subjective redaction that there shouldn't be review by somebody else?" Justice David Prosser asked.
Although it is not an issue in the case, Keenan said that Moustakis also did not have a right to augment the records with additional information before they were released. State law gives many employees that right because the additional records may clarify or refute the records originally gathered.
But Keenan said that such augmentation is a right held by an employee of the agency that receives the open records request, not by an employee of any other agency. In other words, had Moustakis been a DOJ employee he would have had the right to augment the record; since he was not, he did not have that right, Keenan said.
"Why in the world would there be that difference?" Chief Justice Patience Roggensack asked. "What purpose does that serve?"
Justice Rebecca Bradley did not ask any questions.
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