By Gretchen Schuldt
Lawyers in the State Public Defender's office would get pay raises, as would private bar attorneys who agree to represent indigent clients, under Gov. Evers' proposed 2023-25 budget.
The agency, though, would lose 63 federally funded attorney positions while gaining 50 support staff jobs. The total number of full-time positions would drop by 13 over the biennium, from 682.85 this fiscal year to 669.85 in 2025. It would also put additional pressure on lawyers already struggling with high caseloads.
Evers' budget would increase the starting pay for assistant state public defenders from $26.70 per hour to $35, the same amount he proposed for assistant district attorneys. Wisconsin's pay is well below that of many other states, including those of Montana ($36.96 per hour), South Dakota ($39.59), Texas ($40.87) and Oregon ($43.60) according to the agency's budget request.
SPD has had difficulty in recruiting and retaining staff attorneys, according to the request.
"Despite a significant increase in the number of attorney positions posted for recruitment, there has been a decrease in the number of individual applications," the agency said.
SPD attorney applications
The pay for private lawyers who agree to represent SPD clients when staff lawyers have conflicts or workload issues would increase from $70 per hour to $100 per hour and $50 per hour for travel, under Evers' budget. SPD requested a rate of $125 per hour for in-court work, $100 for out-of-court work, and $50 for travel. The travel rate is now $25 per hour.
"The current $70 per hour rate has been cited by private bar attorneys as one of the main factors in their decisions to not accept SPD case appointments," SPD said in its budget request. Counties pay at least $100 per hour when judges appoint lawyers, SPD said, giving counties a competitive advantage when seeking lawyers to take cases.
"The number of attorneys who have actively taken public defender appointments has declined significantly during the pandemic, from 940 attorneys certified in January 2019 to only 772 attorneys in August 2022, a 17.9% decrease," SPD said.
There now are about 770 lawyers on the appointments list, but 13% did not take any cases in fiscal 2022 and 39% took fewer than 26.
"The average number of contacts statewide that it takes to appoint a private bar attorney is just over 123. In some counties, it can be more than 200, with the outliers taking more than 1,000 contacts to appoint a single case," the agency said. "There is not a county or jurisdiction in the state that has not felt these effects."
It is not clear that $100 an hour will be enough to attract attorneys to take the appointments. Clio, a legal practices management firm, said in its Legal Trends Report in 2021 that the average billing rate for Wisconsin lawyers of any type is $248, and nationally the average hourly rate for criminal defense lawyers is $181, the request said.
Evers refused SPD's request for $687,000 for additional expert witness expenses, even though those costs have risen 311% since 2010. He instead said the agency should reallocate funds from other areas.
SPD expert witness costs
He also recommended reallocating funds to cover the $402,000 in new funding SPD requested for increased costs related to transcripts, copying, discovery, and interpreters. The requested increase was the amount of the shortfall in that budget in fiscal 2022.
SPD transcript, interpreter, and discovery costs
Evers again proposed legalizing marijuana, as he has in the past. He also proposed "requiring a diversion and restitution alternative for certain misdemeanor offenses" but did not identify what those were. SPD proposed a diversion program for disorderly conduct offenses if the defendant has not been convicted of a felony and has not been convicted of a similar offense in the past three years.
SPD handled 4,896 disorderly conduct cases in fiscal 2022, it said in its budget request. Under its proposal, about half of those could have been diverted, saving taxpayers $1.3 million.
Overall, under Evers' proposal, the SPD budget would increase from $114.7 million this year to $137 million in fiscal 2025, an increase of $22.3 million, or 19.4%.
By Gretchen Schuldt
The Republican-led Legislature is full-speed ahead on bills to crack down on reckless driving by subjecting some offenders to immediate impoundment of their cars and substantially increasing the forfeitures imposed on reckless-driving offenses.
The Assembly Criminal Justice and Public Safety Committee is holding a hearing on the bills on Tuesday in Madison.
Here is a rundown of some of the latest justice-related bills introduced.
Senate Bill 75/Assembly Bill 54 – Implementing cash bail changes yet to be adopted
Voters will decide in April whether people accused of certain crimes may be held in jail without bail prior to a determination of whether they are guilty of any crime at all, but that is not stopping Republican legislators from taking their first swing at deciding what kind of criminal charges would qualify a person for higher bail or no bail at all.
Currently, cash bail is meant to ensure that a person appears in court, protect members of the community from serious bodily harm, or prevent the intimidation of witnesses.
The constitutional amendment would allow judges to consider more factors when ordering and setting bail, including whether the person is accused of a "violent crime," however the legislature defines that, and the need to protect community members from "serious harm" (not just serious bodily harm), and however the legislature defines that.
Under the bill, "serious harm" would include property damage or economic loss of over $2,500, according to the Legislative Reference Bureau. It also would include any personal physical pain or injury, any illness, any impairment of physical condition, or death. It would include mental anguish or emotional harm related to the injury, illness, or death.
Currently, theft of less than $2,500 is a misdemeanor, but a separate bill would make theft of more than $1,000 a felony. That bill also is set for the public hearing on Tuesday.
The bill defines "violent crime" to include offenses including homicide, aggravated and special circumstances battery, mayhem, sexual assault, false imprisonment, human trafficking, hostage-taking, kidnapping, stalking, disarming a police officer, arson, felony burglary, and carjacking, according to the LRB. It also would include crimes where a domestic abuse or dangerous weapon penalty enhancer could be applied; the violation of a domestic abuse, child abuse, or harassment injunction; or the solicitation, conspiracy, or attempt to commit a Class A felony, the state's most serious felony classification.
While the bill would prohibit "excessive" bail, that is undefined.
Senate Bill 76/Assembly Bill 52 – Calling out carjacking
The maximum penalty for carjacking would be increased by 20 years in prison, under this bill. Taking a vehicle without the owner's consent, with a weapon and use or threat of force, is now punishable by up to 40 years in prison and a $100,000 fine. This bill creates a separate offense of carjacking and increases the maximum penalty to up to 60 years in prison.
Senate Bill 90/Assembly Bill 55 – Increasing reckless-driving forfeitures
This bill would increase the forfeiture for first-offense reckless driving from the current range of $25 to $200 to $50 to $400.
The penalty for the second or subsequent offense would jump from the current fine of $40 to $500 to a fine of $100 to $1,000 if the second or subsequent offense is committed within four years. Currently, the increased fine applies only to offenses that occur within one year of the first offense. The additional potential penalty of a year in jail remains unchanged.
The $435 driver improvement surcharge and the $50 safe ride surcharge also would be imposed on people convicted of reckless driving.
Other changes to fines and forfeitures proposed in the bill are shown in the chart below.
Senate Bill 92/Assembly Bill 56 – Impounding some vehicles used in reckless-driving offenses
This bill would allow communities to adopt ordinances allowing police to immediately impound a vehicle used in a reckless driving offense if the driver owns the vehicle and has not fully paid an earlier forfeiture for a reckless driving conviction.
Juneau County must honor nonprosecution agreement of former prosecutor, appeals court rules
By Gretchen Schuldt
An unwritten agreement made by a district attorney to forego criminal charges in a child abuse case in exchange for a couple's agreement to terminate parental rights is enforceable, the state Court of Appeals ruled Thursday.
The ruling by the three-judge District IV appellate panel affirms a decision by Juneau County Circuit Judge Stacy A. Smith dismissing with prejudice criminal charges brought against the couple after the district attorney's office changed hands.
The appellate panel, however, dodged the question of whether Smith correctly decided the case based on prosecutorial misconduct by former controversial Juneau County District Attorney Michael Solovey. Instead the panel, in a decision written by Appellate Judge Rachel Graham, held that the state, among other things, did not meet its burden to show the agreement was against public policy.
Graham was joined in her decision by Appellate Judges Brian W. Blanchard and Jennifer E. Nashold.
The couple, Debra and Steven Rippentrop, were each charged with multiple felonies related to child abuse they allegedly committed against their son around 2014 and 2015.
Law enforcement first got wind of potential abuse in January 2015, when the son, then 14, told law enforcement that he ran away because the Rippentrops were restraining him "24 hours a day seven days a week," Graham wrote.
The adult Rippentrops admitted it, but said they did so "as a desperate measure to prevent him from harming himself or others due to violent and destructive behavior," Graham said.
The issue was referred to Solovey for review, and the county began a child in need of protection or services (CHIPS) case. Solovey expressed some concern about A.B.'s credibility and whether a jury would believe his testimony.
The son, identified in the decision as "A.B.," ran away again later that year. He again reported abuse, and the county human services department placed him with other relatives, who eventually adopted him.
Solovey, who was aware of the CHIPS case, got together with Debra and Steven Rippentrop and their lawyer, Kerry Sullivan-Flock, and made an offer. Solovey would forego issuing criminal charges if the Rippentrops gave up parental rights and ended all contact with A.B., Graham said. The couple accepted.
Solovey said he was concerned that the CHIPS case could result in A.B. going back to their home, which Solovey believed was not in A.B.'s best interest.
Solovey notified law enforcement and attorneys in the corporation counsel's office of the agreement and later told the guardian ad litem representing A.B.'s interests.
He testified later that his decision was “ '[not] received well,' and that the office of corporation counsel was not happy about his decision to not charge the Rippentrops with criminal offenses," Graham wrote.
The Rippentrops began meeting their obligations under the agreement. They stopped contesting allegations in the CHIPS case and began pursuing voluntary termination of their parental rights.
Unhappy officials in the corporation counsel's office began a John Doe proceeding in early 2016 that the Rippentrops did not learn about for about three years. Solovey attended, but was not allowed to cross-examine witnesses or to testify.
After a two-day hearing, the John Doe judge appointed a special prosecutor to decide whether the Rippentrops should be charged. Solovey was allowed to make a statement after the judge ruled, but he did not tell the judge about the non-prosecution agreement. The corporation counsel's office also did not tell the judge of the agreement.
The Rippentrops signed TPR petitions in May, 2016, and it was approved. Solovey determined that the Rippentrops met all the agreed-upon conditions.
Solovey lost his reelection bid in 2016 and was replaced by Kevin Hamm.
In February, 2019, the state charged the Rippentrops with multiple felonies, including second-degree recklessly endangering safety, child abuse, false imprisonment, and causing mental harm to a child.
The Rippentrops, with new lawyers, demanded the state keep its agreement, but the DA's office fought back. It argued that the pact was "void as against public policy because it required the Rippentrops to terminate their parental rights."
While recognizing a contract with the state should be enforced, Smith found that "it was against public policy 'to make any arrangement that would terminate a [parent’s] rights by either a threat or some kind of contract such as this,' ” Graham wrote. "The court likened the agreement to the sale of a child, concluding that, much like it violates public policy to offer an expectant mother money for her unborn child, the nonprosecution agreement violates public policy because it offered the Rippentrops something of value in exchange for terminating their parental rights."
Smith also said that the Rippentrops did not have “clean hands” because they failed to disclose the agreement to the TPR court. Debra Rippentrop said later she did not mention it because she thought everyone knew about it.
A year later, the Rippentrops again moved to have the charges dismissed, this time arguing that Solovey committed prosecutorial misconduct by proposing the agreement. Smith granted the motion, finding that "Solovey's actions 'clearly' constituted 'misconduct' and that the only recourse for maintaining the integrity of the judicial system is dismissal of the criminal charges with prejudice."
The appeals panel upheld Smith's decision, but on a different basis — that the agreement was binding and enforceable.
"Wisconsin cases suggest that any prosecutorial promise — whether embodied in a nonprosecution agreement or an unexecuted plea agreement — may become binding if a party detrimentally relies upon it," Graham wrote. The State appears to acknowledge that the Rippentrops did just that, she said.
The appeals court also found that the state did not adequately show that the nonprosecution agreement was contrary to public policy.
The state appeared to argue that voluntarily agreeing to terminate parental rights was not truly voluntary if it was wrapped up in other considerations that include a safe harbor from criminal prosecution.
"Much like it does not violate public policy for a criminal defendant to enter into a plea agreement that induces the defendant to waive valuable rights in exchange for receiving the agreement’s benefits, the State does not persuade us that the provision in the nonprosecution agreement that required the Rippentrops to voluntarily terminate their parental rights violated any public policy clearly expressed by" law, Graham said.
They state also argued that neither Solovey nor the Rippentrops disclosed the agreement to court officials, suggesting it "amounted to a secret backroom deal that should not be enforced by any court."
Solovey, though, told law enforcement, the corporation counsel's office, and the guardian ad litem about the agreement, Graham said.
"Although the aforementioned individuals were not parties to the deal the Rippentrops struck with Solovey — indeed, it appears that they strenuously disapproved of its terms — they made no objection to receiving its benefits when the Rippentrops followed through with their promise to consent to the termination of their parental rights," Graham wrote.
"Although we need not weigh the policies in favor of enforcement, we note that the public policy in favor of enforcing the nonprosecution agreement is compelling," Graham said. "Generally speaking, public policy favors the enforcement of contracts. And here, substantive due process and principles of fundamental fairness render the enforcement of this prosecutorial promise even more compelling."
Two candidates are vying for a seat on the Milwaukee Municipal Court bench. The election is April 4, 2023.
Candidate Lena Taylor is an attorney and elected state senator. Candidate Molly Gena is the managing attorney at Legal Action of Wisconsin, a nonprofit law firm providing free legal services in civil cases to those who meet certain low-income requirements.
Gena (on the viewer's left) and Taylor (on the viewer's right) joined WJI in person on January 25 to introduce themselves and answer questions from attendees.
Notes: Taylor had a prior engagement that, when combined with snow that day, caused her to enter the event a few minutes after it started. The event was held as a luncheon at Riverfront Pizzeria in Milwaukee, hence the imperfect visual quality and some background noise at times.
Attorney Molly Gena and Attorney and Sen. Lena Taylor are running for the Milwaukee Municipal Court seat being vacated by Derek Mosley, who left the bench for a position at Marquette University Law School.
Election Day is Tuesday, April 4.
WJI asked each of the candidates to answer a series of questions. Taylor did not respond to the questionnaire. Gena responded, and her answers are printed here as submitted.
The questions are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.
Gena, managing attorney at Legal Action of Wisconsin, received her law degree from the University of Wisconsin-Madison. Her resume is here.
Taylor, a state senator, received her law degree from the Southern Illinois University School of Law, according to the State Bar of Wisconsin's online attorney directory.
The two candidates participated in a candidate forum held by Wisconsin Justice Initiative on January 25, 2023. Watch the video.
Why do you want to become a judge?
I am running for Milwaukee Municipal Judge because I have dedicated my career to public service, and I want to continue to serve Milwaukee as its next judge. I have been a civil legal aid attorney for over 15 years, providing free legal services to those who cannot afford an attorney in Milwaukee Municipal Court and all over Wisconsin. I have seen firsthand the barriers too many people face when seeking justice. I whole-heartedly believe that the judicial process needs to be easier for people to access and understand, and that judges, as stewards of the court, are responsible for promoting access and ensuring the court’s positive impact on the community as a whole.
Representing clients in the municipal court for over 15 years, I know how much impact the court has on people and the community. Although municipal court cases are not criminal cases, they still have serious consequences. They may show up on criminal background checks. They are often used to deny housing and employment. Most frequently, when someone misses the deadline to pay a fine, the municipal court automatically issues arrest warrants or driver’s license suspensions until they pay. The serious implications that these cases have on people’s lives deserve thoughtful and deliberate consideration.
I will not punish people simply because they cannot afford to pay tickets. People living in poverty should not face harsher consequences for the same violations as those who have the means to pay their fines. Instead, for those who cannot afford their tickets, I will look to alternatives like community service, affordable payment plans, fine reductions, and the tax refund intercept program. I would use these alternatives based on each individual situation. This will allow me to spend more time handling serious violations like the dangerous reckless driving that plagues Milwaukee streets. In those more serious traffic-safety cases, the behavior of the driver will drive the severity of the consequence rather than their financial circumstance.
I have been a champion for racial justice and racial equity throughout my entire career. Punishing people who cannot pay their tickets with warrants and driver’s license suspensions has disproportionately affected people of color. It has been shown to be an ineffective debt collection device that further harms our community. I would be intentional about addressing racial disparities and encourage the city attorneys, law enforcement officers, and others in the system to do the same.
Courts can hold people accountable without punishing them just for being poor. I will focus on reducing the court’s reliance on default judgments and punishments to adopt a more individualized approach to cases that considers the circumstances of each individual who comes before me. This means adjudicating cases in a timely manner and working on systemic changes to make the court more efficient, ensuring justice and fairness and accessibility while enhancing public safety. The court can ensure that violators of the law are held responsible, while also allowing them to work, support their family, and contribute to the community.
Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.
I think Bank of New York Mellon v. Shirley Carson (2015) was an excellent Wisconsin Supreme Court decision that had significant ramifications for the City of Milwaukee. This case dealt with “zombie foreclosures” or abandoned properties that have been in foreclosure for a long time. The bank had obtained a judgment of foreclosure against a homeowner but then did not immediately sell the property, letting it languish for over 16 months. The house remained in Ms. Carson’s name, though she moved out when she thought she no longer owned it. The house was subsequently vandalized and in disarray. Ms. Carson received multiple building code violations and was ordered to pay about $1,800 in fines even though she was not living there. She learned she still owned the home when she received the tickets. She was an elderly widow, and she went to Legal Action of Wisconsin for help. They filed a motion to amend the judgment to find the home was abandoned and order the bank to sell the property. The circuit court denied the motion, and it was eventually appealed to the Wisconsin Supreme Court. In a unanimous decision, the Court held that once a property is declared abandoned, the bank must follow through and sell the property within a reasonable amount of time.
The decision was important for homeowners, because “zombie foreclosures'' were common in Milwaukee. It also was important in preventing crime and blight in the city. The decision was applauded by city officials, including the mayor of Milwaukee. However, it also has major significance for me because I was fortunate to be able to watch my friend and colleague argue the case before the Wisconsin Supreme Court. Watching her argue one of our non-profit civil legal aid law firm’s cases and then win it was incredibly exciting and inspiring. While I am certainly biased, it was argued and written exceptionally well. It encouraged me to continue as a public interest law attorney. When I first started as a baby lawyer other lawyers in court would ask me what I do and where I work. When I told them that I was a civil legal aid lawyer, I would sometimes hear, “That’s nice, but when are you going to get a real job?” I did not settle for my job because I could not get a corporate firm job. This is the work that I went to law school to do. I believe that representation at a non-profit law firm is every bit as important, technically demanding, and fulfilling as any other practice, and our law firm’s work in this case was affirmation of that belief. The outstanding oral and written advocacy in this case resulted in a unanimous decision that reminded the legal community that civil legal aid attorneys are real lawyers too.
Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.
The recent Supreme Court of the United States decision in Dobbs v. Jackson Women’s Health Center continues to plague our country. It denies women their fundamental rights. I do not need to rehash the painful holding, ramifications, or completely wrong analysis, but it has been gut-wrenching to watch the clinics in Wisconsin have to stop providing essential medical services in response to such a flawed decision. While the opinion does not directly affect cases in Milwaukee Municipal Court, it is tragic and will cause women to lose their lives.
Describe your judicial philosophy.
My judicial philosophy centers around two principal concepts: access to justice and equal justice. The administration of justice is an unheralded, but critical role of any judge and in a people’s court like the municipal court, it is even more essential that it be handled with access to justice and equal justice in mind.
I believe that a judge should ensure and promote access to justice by being transparent and accountable, and by championing ideals like a right to counsel in civil cases as well as criminal. The court should be open to innovation and developing new initiatives to promote access, such as the community court programs, and willing to allow litigants to appear in court as walk-ins without scheduled appearances.
A municipal court judge should strive to ensure equal justice through every aspect of how they administer the law. That begins, at a base level, by treating everyone fairly and with dignity and respect, while still holding people accountable and protecting public safety. Furthermore, patience is critical. I understand that there may be some people in court who are facing trauma, mental illness, or homelessness and may not have the resources to navigate the legal system. It is imperative for judges to clearly and effectively communicate to ensure that they understand their rights, the consequences of municipal convictions, and the legal process. Equal justice can be further advanced by providing litigants with increased access to resources that can better their situation, helping to reduce recidivism and improving the odds of their court case ultimately bettering them individually and as part of the community.
Finally, I believe that municipal courts are not a fundraising apparatus and they are not debt collectors. The function of the municipal court is not to bring in revenue but to administer justice, and to adjudicate city ordinance violation cases.
Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.
I sued the Wisconsin Department of Transportation (DOT) to help reinstate my client’s driver’s license that had been revoked for 14 years and fixed a flawed agency practice. His license was revoked after he defaulted on a court-ordered payment plan related to a minor accident. I negotiated with the attorney for the creditor to obtain another payment plan and lift the suspension so he could get to work. We submitted the payment plan to the DOT, but the DOT did not approve it because they had a rule at the time that drivers who defaulted on a court-ordered payment plan were never eligible for another payment plan. I sued the DOT on my client’s behalf in a Chapter 227 petition for judicial review in Milwaukee County Circuit Court and argued that the DOT’s decision was contrary to state law which clearly allowed for a second payment plan. Eventually, the Assistant Attorney General agreed that the DOT would reinstate my client’s driver’s license and promulgate an administrative rule on payment plans for these types of suspensions and give our law firm an opportunity to comment on the language of the rule prior to the public comment. We settled the circuit court case and I submitted written comments and testified about the proposed rule which directly cited my case. The DOT agreed with me and the rule stated they would start permitting an unlimited number of payment plans. This is significant for low-income drivers because at the time the suspensions for an unpaid damage judgment were 20 years long. Payment plans allow drivers to get their licenses back while making payments to the creditor.
In another case, I represented a client in attempting to lift their driver’s license suspensions for failure to pay minor traffic tickets in Milwaukee Municipal Court. She had to take two buses to get to work. The court had a policy that litigants could get one payment plan and if they defaulted, they had to pay 30% of the total amount of the tickets in order to lift the driver’s license suspensions. For my client, that was $118 that she did not have. I filed a motion for a payment plan citing the poverty protections in the statutes. The judge denied my motion and my motion to reconsider. I then filed an appeal in circuit court, a notable fact because only about 5% of defendants in the municipal court have attorneys and few appeals of municipal court decisions are filed. The circuit court judge agreed and held that because the municipal court judge did make a finding that she was unable to pay due to poverty (which they had to make because she was receiving food stamps), they acted contrary to the law which required them to lift her driver’s license suspensions. The case was reversed and remanded to the municipal court and we continued to file motions in municipal courts throughout the state to force judges to follow the law and the specific poverty protections within it.
Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.
I do not have much criminal litigation experience. At the UW Law School, I participated in the Innocence Project and I worked on the Audrey Edmunds case in Dane County in which we filed a motion for a new trial based on newly discovered evidence. My professor argued the case, but I did draft the affidavits for our expert witnesses and collaborated on the strategy and arguments. I have also represented a couple of clients on criminal Operating After Revocation cases in assisting them with efforts to obtain their driver’s licenses.
I have much more civil litigation experience. I have represented clients in over 45 different municipal courts in the state and over 20 circuit courts. I have represented clients in traffic tickets, civil ordinances, and parking tickets in municipal courts. I have also defended clients in evictions, money judgment and consumer cases in both small and large claims. I have filed a few appeals. Most of my work has been motion practice, poverty hearings, evidentiary hearings and brief writing.
I have also represented clients in administrative proceedings in hearings in front of both the DOT and the Housing Authority of the City of Milwaukee. I have appealed some of those decisions to circuit court as well.
Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?
Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur?
What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?
I think the biggest problem is that the system itself is not fair and accessible for everyone. There are systemic barriers in our justice system, especially for people of color, low-income families, and other marginalized communities.
Many people have a hard time understanding and using the legal system. This is especially true for people who are not fluent in English or who do not have enough money to hire a lawyer. Additionally, the bureaucracy involved in seeking justice can be overwhelming or difficult to navigate. And for many, the hours that courts typically operate conflict with working hours that they are not able or cannot afford to miss. Everyone deserves equal access to our justice system.
Overall, addressing the obstacles to justice requires a multifaceted and systemic approach, including addressing bias and discrimination, increasing access to justice, and addressing the underlying social and economic issues that contribute to inequality in the justice system.
If elected, I plan to take a number of actions to help remove some of these barriers to justice. I plan to minimize automatic judgments and defaults whenever possible, and consider all of the circumstances in the cases that come before me. Additionally, I will continue the court’s practice of holding court in the community and in the evenings.
For most of my career and practice in the Milwaukee Municipal Court, everyone had the ability to “walk-in” to the court to be heard. This means that they could come in without a scheduled time post-judgment to ask for a payment plan or community service. Milwaukee Municipal Court is one of only two full-time municipal courts in the state, and walk-ins are essential to make the court accessible and fair. However, that practice stopped in 2020 with the pandemic, and the court has not brought it back. Walk-in court is essential for a people’s court, so they can be heard and resolve their tickets quickly. The circuit court allows walk-ins on civil tickets, and that practice needs to be restored in the municipal court, and I plan on doing just that.
Finally, we are experiencing a reckless driving epidemic in the city that is at the forefront of everyone’s minds. However, instead of focusing on traffic safety, Milwaukee Municipal Court instead orders tens of thousands of driver’s license suspensions per year to collect debt. I would reserve driver's license suspensions for serious and harmful driving behavior so that the court, police, and DMV can focus their resources on safety violations. This would ensure that courts do more good than harm in our community. One of my top priorities as judge will be significantly reducing the time between when someone is issued a reckless driving ticket, and the time that they are in court to face potential penalties, so we can get the most dangerous drivers off the street and held accountable sooner. And in less serious cases, I would utilize evidence-based solutions and alternatives to fines and suspensions, like ordering drivers to attend traffic safety courses.
Provide any other information you feel would be helpful to potential voters deciding for whom to vote.
As I have said, I would discontinue certain debt collection tools/sanctions for failure to pay tickets, such as driver’s license suspensions or commitments to jail. I have seen through my 15 years representing countless clients in municipal court that these are ineffective at coercing payment and actually have the opposite effect. Suspending driver’s licenses and jailing people keeps them from being able to get to work, making it even less likely for them to be able to pay tickets. Municipalities spend more to jail defendants than what is collected in payments. Those who can pay do pay their tickets, and those that cannot just end up stuck in a vicious cycle of poverty if they lose their licenses or go to jail for not paying minor municipal tickets. I would increase the use of community service (which still holds people accountable and benefits the community), reasonable payment plans, and lower fines. Fines should be proportional to one’s ability to pay, and payment plans must also be reasonable for the individual litigant. Furthermore, the law requires courts to lift driver’s license suspensions and warrants for anyone that cannot pay due to poverty. The majority of those who do pay are statutorily unable to pay due to poverty because they are on public assistance such as W-2, SSI or food stamps or qualify for a public defender of civil legal attorney. It is a waste of court and law enforcement resources to suspend or issue warrants in the first place.
The overwhelming majority (75-80%) of cases in Milwaukee Municipal Court are default judgments. This means that the litigants, or people facing penalties, do not appear in court and a judgment is automatically entered against them. Most of the time an appearance is not required, and most litigants do not see the value in coming to court. These cases are automated in the system and once the judgment is entered, they are given 60 days to pay. I would review not only the tickets in which the litigants appear in court, but every single case. Before entering a default judgment, I would review the citations to ensure that the judgment is warranted under the circumstances.
Individual consideration of the cases and the underlying behavior on a case-by-case basis is not limited to traffic, but would be applied throughout my courtroom. As a result, my court would be able to hold slumlords accountable in a fashion like reckless drivers. I have had clients who own their houses and are on a fixed income and need help making repairs to their homes who are being punished more severely than slumlords because of their inability to pay the fines. I would give homeowners time to address those issues and provide them with resources to assist them with those repairs. And I would dismiss or reduce tickets once they have fixed the problems. I would consider raising fines for slumlords who own and rent out multiple properties with terrible living conditions where their tenants have no recourse.
Four new circuit court branches would be opened by August, costing the state $1.1 million in fiscal 2024 and $1.2 million the following year, under Gov. Evers' proposed 2023-25 state budget.
Establishing the branches would comply with 2019 Act 184, which allows the director of state courts to select the counties that will get the new branches.
Evers also included $840,800 over the two years to fund additional, undefined costs associated with the new courts.
Eight new state employees would staff the branches. Other employees, such as deputy court clerks, are hired at county expense.
Other items included in Evers' proposed courts budget include:
Overall, the circuit court budget, under the proposal, would increase from $116 million this fiscal year, to $118.1 million in fiscal 2024, an increase of $2.1 million, or 1.8%. It would drop to $117.2 million in 2025, a decline of 0.7% from the 2024 amount and a 1% increase from this year's budget.
Evers' court proposal includes policy items proposed in other agency budgets. WJI will include them in the discussion of those budgets.
By Gretchen Schuldt
Here are summaries of new bills of interest introduced in the Legislature. A table showing the sponsors of each is at the bottom of this post.
Senate Bill 48 – Increasing scrutiny of Parole Commission
Legislative Republicans want to increase public scrutiny of the workings of the Wisconsin Parole Commission.
The bill would strip the commission of its ability to privately consider specific applications for release from prison and for placement on probation, parole, or extended supervision. Currently, the commission is exempt from the provisions of the state’s Open Meetings law that requires most public bodies to post adequate public notice of meetings and to hold them where they are accessible to the public.
The bill also would require the Department of Corrections to post more information about commission activities on its website. DOC would be required to post any guidance documents the commission uses when making decisions about release; information about individuals granted parole, denied parole, and returned to prison following the revocation of parole; monthly and annual data about parole grants, denials, and revocations. The annual totals would include the crime for which the person was convicted; the sex, race, and age of the person; and the county in which the person was convicted.
Senate Bill 55 – Reforming the prostitution law
People younger than 18 years old could not be charged with prostitution, under the bill.
Senate Bill 56 – Reporting for adult-oriented businesses
Adult-entertainment businesses and their investors and managers could face fines of up to $10,000 per day if they do not follow proposed reporting requirements, under the bill introduced in the state Senate. The bill also would subject operators of those businesses to the forfeitures if they ever owned an adult-oriented business that was declared a public nuisance or that previously was fined under the proposed statute.
The new requirements would apply to businesses or services that offer predominantly sexually oriented items, services, or presentations.
Under the bill, the businesses would be required to provide, by the next business day, a list of employees, operators and owners to local law enforcement upon request.
The bill would prohibit the adult establishments from being owned or operated by anyone convicted of certain crimes, including prostitution, a sex offense against a child, or human trafficking. Adult-entertainment businesses also would be prohibited from employing anyone under the age of 18. The businesses would be required to display human trafficking posters distributed by the state Department of Justice and the U.S. Department of Homeland Security.
Senate Bill 61 – Live births: Criminalizing the already criminal
A new bill would require health care providers to treat an infant born alive after an attempted abortion with the same effort to save the infant’s life and health that the physicians would offer any other child and to ensure that the child born alive is immediately transported to a hospital.
Violations would be punishable by up to six years in prison and a $10,000 fine.
“The mother of the child born alive, however, may not be prosecuted,” the Legislative Reference Bureau wrote in a summary of the bill. The woman who underwent the attempted abortion could also sue any caregiver who failed to comply with the bill’s requirements.
Causing the death of a child born alive after an attempted abortion would be punishable by life imprisonment.
But, as the LRB noted, the infants described in the bill already have legal protections.
“Under current law, whoever is born alive as a result of an abortion is considered to have the same legal status and legal rights as a human being at any point after the human being undergoes a live birth as the result of natural or induced labor or a cesarean section,” it said.
Reckless homicide conviction does not bar insurance coverage for an "accident," Supreme Court holds
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. Italics indicate WJI insertions except for case names, which also are italicized. Underlined text indicates emphasis added by the justices, not WJI.
The case: Lindsey Dostal v. Curtis Strand and State Farm Fire and Casualty Company
Majority Opinion: Justice Ann Walsh Bradley (26 pages), joined by Justices Rebecca F. Dallet, Brian Hagedorn, and Jill J. Karofsky.
Dissent: Justice Annette K. Ziegler (16 pages), joined by Justices Rebecca Grassl Bradley and Patience Drake Roggensack.
The court of appeals determined that Curtis Strand's conduct did not constitute an "occurrence" covered by the State Farm policy at issue because his conviction for second-degree reckless homicide established that the death was not the result of an accident.
Dostal contends that Strand's criminal conviction does not preclude a finding that Haeven's death was the result of an accident. She further advances that the State Farm policy provides coverage for her claims against Strand and that neither the resident relative nor the intentional acts exclusion bars coverage.
In contrast, State Farm asserts that issue preclusion bars relitigation of the issue of whether Haeven's death was the result of an accident. It argues that Strand's criminal conviction is dispositive on the issue of available insurance coverage under Strand's policy, and that there is no coverage for Dostal's claims. State Farm further contends that the policy's resident relative and intentional acts exclusions preclude coverage.
We conclude that issue preclusion does not bar Dostal from seeking insurance coverage for her claims against Strand. The issue of whether Strand's conduct constituted an "accident" was not actually litigated in the prior criminal proceeding. Additionally, we conclude that there are genuine issues of material fact regarding the application of the resident relative and intentional acts exclusions such that summary judgment is inappropriate.
Accordingly, we reverse the decision of the court of appeals and remand to the circuit court for further proceedings consistent with this opinion.
Dostal and Strand were in an on-and-off relationship for 17 years. Dostal gave birth to Haeven on April 3, 2017, and Strand was subsequently adjudicated the father.
On July 11, 2017, Haeven passed away as a result of head trauma that occurred while she was in Strand's care. Law enforcement conducted an investigation into Haeven's death.
As part of the investigation, law enforcement spoke with Strand multiple times, during which Strand gave inconsistent accounts of what happened. In a statement given to police on July 10, 2017, Strand said that Haeven fell off of his knee and hit the floor as he attempted to burp her. Strand was interviewed again in November of 2017, at which time he stated that he was warming a bottle, turned around and hit the kitchen island, dropping Haeven to the floor. In both versions of events, Strand put Haeven to bed without seeking medical attention.
…. After a jury trial, at which Dostal was a witness, the jury convicted Strand of second-degree reckless homicide and resisting or obstructing an officer.
Dostal subsequently brought this civil action for negligence and wrongful death against Strand. …
Strand turned to State Farm, which held his homeowner’s insurance policy. State Farm intervened in the case to argue that Strand was not covered.
…. Specifically, State Farm asserted that there was no "occurrence" (defined as an "accident") triggering coverage. In State Farm's view, the fact that Strand was convicted of second-degree reckless homicide, which required that the jury find that Strand created an unreasonable and substantial risk of death or great bodily harm and that he was aware of that risk, precluded the events at issue "from being labeled a mere 'accident.' " State Farm additionally argued that even if there were an "occurrence," coverage remains precluded under a "resident relative" exclusion and an "intentional acts" exclusion.
The circuit court and court of appeals found in favor of State Farm.
The insurance policy in this case sets forth that coverage is provided for an "occurrence." An "occurrence," in turn, is defined under the policy as an "accident," which results in, as relevant here, "bodily injury." The policy does not include a definition for "accident." In interpreting this term, we keep in mind that we read insurance policies from the perspective of a reasonable person in the position of the insured. We have previously described an "accident" as an event "occurring by chance or arising from unknown or remote causes" and "an event which takes place without one's foresight or expectation."
State Farm contends that the issue of Strand's fault was actually litigated in a prior action, namely the criminal case against Strand. It asserts that the jury's verdict convicting Strand of second-degree reckless homicide conclusively determined that, because Strand's conduct was reckless, Haeven's death could not have been an "accident" for purposes of insurance coverage.
The offense of second-degree reckless homicide is set forth as follows: "Whoever recklessly causes the death of another human being is guilty of a Class D felony." In turn, the statutes define criminal recklessness, as relevant here, to mean "that the actor creates an unreasonable and substantial risk of death or great bodily harm to another human being and the actor is aware of that risk."
We are asked to discern whether being aware of the risk that something might happen necessarily means that when that thing happens, it is not an "accident." Dostal asserts that this question should be answered in the negative. She contends that none of the elements of second-degree reckless homicide that the jury found would preclude a determination that Haeven's death was an accident.
State Farm, on the other hand, advances that in this analysis we should focus on the conduct itself and not the result of the conduct in determining whether conduct was an accident. In other words, State Farm points the court's attention to the "injury-causing event" and not the injury. Under this theory, even if Haeven's death was unintentional, Strand's conduct that led to the death was still not accidental because he was aware of the risk of death, and that is where our focus should be for purposes of coverage.
Wisconsin does not have defining case law, Walsh Bradley wrote. She cited two out-of-state cases, one from New York and the other from Illinois, as illustrative examples holding that reckless conduct does not necessarily eliminate the possibility of a resulting accident.
…. State Farm provides us with no authority compelling the conclusion that a reckless act can never be an "accident," and the analysis of the … (two out-of-state cases) persuasively concludes that the opposite is true.
Thus, in the context of this case, the issue of whether Strand's conduct was an "accident" was not actually litigated in the prior criminal proceeding. The jury here was presented with a question of guilty or not guilty and did not make a determination of what events actually occurred. It was not asked to return a special verdict and made no specific factual findings aside from finding that the elements of the crime charged were proven beyond a reasonable doubt. Strand gave inconsistent accounts of the events leading to Haeven's death. We do not know if the jury accepted either of his explanations, or if it rejected both.
Likewise, if the jury rejected both of Strand's explanations, we do not know what alternative explanation it embraced. The jury additionally heard testimony from the State's expert that although a fall can result in a skull fracture as occurred in this case, "we also know from the literature from short falls . . . that children do not typically, or the vast majority do not incur any kind of brain injury from a short fall." Another expert testified: "I don't think hitting the counter and falling from that height would have resulted in those injuries."
Further, we do not know what act committed by Strand (if it accepted either of his explanations) was determined by the jury to be reckless. The jury heard testimony both that Strand dropped Haeven (whether it was from his knee while trying to burp her or when he turned and hit the kitchen island) and that he put her to bed without seeking medical attention. It could have concluded that the first act (dropping Haeven, however it happened) was an accident, but that it was reckless for Strand to put her directly to bed without first seeking medical care. In such a scenario, there would be an "accident" covered by the State Farm policy.
Haeven’s “residency” with Strand also was in dispute in the case. State Farm’s contention that a coverage exemption existing for acts committed by people residing together thus was not suitable for summary judgment, Walsh Bradley said. Also not appropriate for summary judgment was State Farm’s argument that Strand’s act was intentional, and so not covered, Walsh Bradley said.
I dissent because 12 jurors at Strand's criminal trial unanimously decided beyond a reasonable doubt that Haeven's death was not an "accident," and this precludes relitigating the issue of Strand's coverage. Because the jury's verdict is controlling in this case and cannot be relitigated, that ends the analysis as to Strand – he has no coverage under his policy with State Farm, which grants coverage for bodily injury caused by an "accident." Since Strand has no claim against State Farm, as his causing Haeven's death was beyond a reasonable doubt not an accident, Dostal is also precluded from making a claim against State Farm under Strand's policy. Dostal has no independent claim against State Farm, and she cannot recover under Strand's policy any more than Strand could.
…. While she (Dostal) may have a claim against Strand for his criminally reckless killing of Haeven, this is not a risk for which Strand purchased insurance. Strand's insurance contract does not provide Dostal with more coverage than it would provide its own insured. The circuit court and court of appeals therefore correctly concluded that State Farm was entitled to summary judgment and declaratory judgment on the issue of coverage.
The majority contorts its analysis in order to reach a result of coverage in this very sad and unfortunate case. It ignores the facts of this case and the law of our state, instead reaching out to foreign authorities to create insurance that was never provided by contract. As we have interpreted the term "accident" in insurance contracts, Strand's act of "criminal recklessness" cannot be an "accident" under his insurance policy with State Farm because Strand was "aware" that he created an "unreasonable and substantial" risk of Haeven's death. Strand's prior conviction for second-degree reckless homicide therefore precludes him from asserting that Haeven's death was an "accident" for which he is granted coverage. The majority mistakenly frames the issue as whether issue preclusion binds Dostal when the issue is actually whether it binds Strand. Because Strand has no claim against State Farm and cannot relitigate that issue, Dostal has no claim either.
…. In cases under the direct action statute, the plaintiff "steps into the shoes of the tortfeasor and can assert any right of the tortfeasor against the insurer." …In other words, a plaintiff bringing a direct action cannot recover against a tortfeasor's insurer unless the tortfeasor would himself be able to recover.
…. Therefore, the question in this case is not whether Dostal is precluded from claiming there was an accident. The question is whether Strand is precluded from doing so. Because issue preclusion applies against Strand, Strand has no coverage for Dostal to claim.
However, the majority's analysis of our state law stops there. Notably absent from the majority's analysis is any recognition of the fact that we have previously interpreted the terms "occurrence" and "accident" as used in insurance policies. We have said that an "accident" is "an event which takes place without one's foresight or expectation. …
The jury in Strand's criminal trial unanimously concluded, beyond a reasonable doubt, that Strand was aware that his actions created an unreasonable and substantial risk to Haeven. The jury concluded beyond a reasonable doubt that Strand was "aware of that risk." If the risk of Haeven's death were unexpected or unforeseen to Strand, such a finding would not be possible. …
Furthermore, the majority's reliance on foreign authorities treats this issue as if it were settled. That is not the case. Several courts in other jurisdictions have come out on the opposite side, concluding that reckless conduct is not accidental.
…. Because Strand has no coverage under State Farm's policy, Dostal cannot recover against State Farm either.
The majority avoids this inevitable conclusion by ignoring the law of our state and blindly relying on foreign authorities. It makes no effort to scrutinize the cases it cites and summarily labels them "persuasive." As a result, the majority interprets Strand's homeowner's insurance policy as providing "Reckless Homicide Insurance," indemnifying policyholders for their decisions to disregard known "unreasonable and substantial risk[s] of death or great bodily harm." This is absurd.
The minimum pay rate for assistant and deputy district attorneys would increase from $27.24 per hour to $35 per hour under Gov. Tony Evers' proposed state budget.
Minimum annual salaries would increase from $56,659 to $72,800.
The proposed increase is designed to "increase retention of experienced counsel," according to Evers' budget. The raises would cost about $7 million for each year of the biennium. Evers also is recommending one-step pay increases for assistant and deputy DAs in fiscal 2025, costing a total of $1.7 million, and increasing the pay of elected district attorneys in 2025 at a cost of $854,000.
District attorney pay varies on county size. In Milwaukee County, the pay is $145,288. For Wisconsin's smallest counties, the pay is $106,288.
The total number of positions would increase from 544.9 this year to 586.7 in fiscal 2024 before dropping to 546.7 in 2025.
The overall budget would increase from $61.3 million in fiscal 2023 to $74.4 million in fiscal 2025, and increase of $13.1 million, or 21%.
Oneida County voters will see on their ballots next week a primary election for a seat on the circuit court. Gov. Tony Evers appointed Mary Roth Burns to the position in August 2022, and she's running for reelection. Two candidates, Michael Fugle and Michael Schiek, are challenging her.
The primary is coming up on Tuesday, February 21. (There's a statewide primary for an open seat on the Wisconsin Supreme Court, too. You can learn about the Supreme Court primary candidates here.)
Wisconsin Justice Initiative asked each of the Oneida County Circuit Court candidates to answer a series of questions. Candidates Burns and Fugle responded, and their answers are presented here as submitted. The questions are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.
Burns, the incumbent, received her law degree from the University of Wisconsin–Madison. Her resume is here.
Fugle is Oneida County corporation counsel. He received his law degree from Marquette University. His resume is here.
Schiek did not respond to the questionnaire.
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