Federal officials just gave private attorneys appointed to represent indigent defendants in federal court a raise to $140 per hour, $100 per hour more than their colleagues doing the same job in Wisconsin state courts are paid.
The $40 per hour the State of Wisconsin pays private lawyers to defend indigent clients is the lowest rate in the nation. Defense lawyers have been seeking a pay hike for years, and both lawyers and judges say the low pay is making it harder to find lawyers willing to take the cases.
The Office of the State Public Defender appoints private bar lawyers when SPD staff attorneys have too many cases to handle, or when there is a conflict of interest. In 2015-16, 55,568 cases were assigned to private bar attorneys, according to the Legislative Fiscal Bureau.
The $40 rate has not changed in decades and does not cover even the overhead expenses of many lawyers.
The federal rate rose from $132 to $140 effective March 23.
"Surveys showed that it was getting more difficult to retain qualified and experienced panel attorneys in district courts at the prior rates," the federal court system said in an announcement of the increase.
John Birdsall, a Milwaukee lawyer who is working for a pay raise for appointed defense lawyers in state courts, said the federal pay raise was "substantial and long overdue," the result of the work of a commission appointed by Chief Justice John Roberts to study the problems of the entire federal lawyer appointment system.
"Every state should emulate this path to fixing its indigent defense systems," Birdall said.
David Carroll, executive director of the Sixth Amendment Center, agreed that a task force could be valuable.
The Sixth Amendment Center is studying issues related to the Wisconsin private bar pay.
"I think there are structural deficiencies in the SPD (Office of the State Public Defender that makes the assigned counsel system an unequal part of right to counsel services," Carroll said.
The State Supreme Court is expected to hold a public hearing in May on a petition filed last year seeking a private bar pay increase.
The court has the power to order the increase, but some are skeptical that it will use that power because it is reluctant to tell the State Legislature what to do.
The Legislature, meanwhile, has failed to take even modest steps to ease the burden of appointed private lawyers working in state courts.
A proposal to spend $500,000 on a pilot loan assistance program to provide tuition reimbursement to lawyers who accept appointed cases in rural counties died in the most recent legislative session.
Another bill, introduced with bipartisan support, would have increased the pay for appointed attorneys from $40 to $55, $60, or $70 per hour, depending on the type of case. That bill did not even get a hearing.
The issue of inadequate pay for defense counsel representing poor people is a nationwide problem. Lawsuits alleging inadequate funding of the indigent defense bar have been filed in several states and jurisdictions.
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
Today's featured judge, Dane County Circuit Judge Josann M. Reynolds, was assailed by State Assembly Speaker Robin Vos last week after Reynolds ordered Gov. Scott Walker to hold special elections to fill two vacant seats in the Legislature.
Vos said Reynolds is an "activist judge" who injected her "own personal opinion into how we conduct elections," according to the Milwaukee Journal Sentinel. He also said her approach was endemic among Madison judges.
State law says Walker must call a special election to fill any legislative seat vacated "before the second Tuesday in May in the year in which a regular election is held."
Walker aides argued that special elections weren't required because the vacancies occurred in 2017, not in election year 2018.
As the JS reported: "The judge called that interpretation absurd because a seat that becomes vacant in 2017 remains empty longer than one that begins in 2018."
Here's the background. You decide.
Name: Josann M. Reynolds
Appointed to: Dane County Circuit Court
Appointment date: Sept. 19, 2014 (Elected to full term in 2015)
Law School – University of Wisconsin - Madison
Undergrad –University of Wisconsin - Oshkosh
High School – No answer
May 2009 - Aug. 2010 and March 2011 - present – Attorney, Sipsma, Hahn & Brophy, Madison Aug. 2010 - March 2011 – Attorney, Winner, Wixson & Pernitz, Madison 1980-1995 – Clerk, associate, partner, Jenswold, Studt, Hanson, Clark & Kaurfman, Madison
1998-2009 – Operator, Port Douglas Drive & Tours, Port Douglas, Queensland, Australia
Dane County Bar Association
American Bar Association
Hague Convention Attorney Network
Past: Dane County Bar Association, Board Member; Wisconsin Academy of Trial Lawyers; Civil Trial Counsel of Wisconsin; Board of Attorneys Professional Responsibility, District 9 Committee
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Represented major insurance companies, area municipalities in first job. Served as prosecutor for City of Stoughton, Village of McFarland, and City of Middleton for eight years. Also practiced in federal court and several Wisconsin circuit courts. Represented individuals and employers in employment discrimination cases. Extensive experience in family law; argued before Wisconsin Supreme Court.
Number of cases tried to verdict or judgment: Jury, 20-30; non-jury, innumerable when including those where I acted as a municipal prosecutor; arbitration, 0; administrative bodies, 3-5.
Number of cases litigated on appeal: Three that I recall in which I was lead counsel. There were many others in which I conducted research, assembled the record and prepared briefs during my clerk/associate period at Jenswold, Studt.
Two most significant cases in which you were involved:
Pleuss v Chi Psi; Ct. Appeals 131 Wis. 2d,. 589, (1986) is one of the most significant cases I
have been involved in not only because of the unique exposure it provided to trial advocacy in
the real world but also for the opportunity to observe a circuit court judge manage complex
(WJI note: The case stemmed from an early-morning electrical fire in the Chi Psi fraternity house in Madison. Ultimately, an out-of-town guest fell from a third-story window onto a concrete staircase.)
This was an extraordinarily long trial and the judge had to manage divergent parties and interests, the jury, scheduling and hear arguments and make rulings while keeping the case moving forward. It provided insight into how a judge sets the tone in the courtroom by allowing the lawyers to try their own cases while keeping control of the proceedings. There were approximately 20 lawyers present daily during the trial, some with alliances, others representing individual interests, all with their own egos and agendas. It was a lesson in how to herd lawyers as well as a lesson in advocacy, evidence, civil procedure and courtroom decorum.
A second significant case remains active today. A copy of the brief submitted on behalf of my
client in response to the opposing party's Motion to Dismiss and for Relief is attached as one of
my writing samples. This case began in the Western District Federal Court as an OTSC pursuant
to the Hague Convention as Case No. 12 CV 644 seeking the immediate return of the client's
minor child to her father in Italy. The case was handled under an expedited schedule which was
very challenging due to the fact that handling actions inolving (sic) a Hague Petition is a rarity for most attorneys and most evidence was located in Italy and written in Italian. We prevailed in
retaining the child in the U.S. despite the one year presumption for return of a child, primarly (sic) based on Judge Crabb's assessment of the parties' credibility. This case was then filed as a
family law matter in Rock County Circuit Court. ... The case has followed a convoluted and tortured path because of the international complexities and has covered basic civil procedure issues including personal service and both personal and subject matter jurisdiction harking back to the holding in International Shoe. Professionally the case has been interesting, multifaceted and demanding. Personally, the case has been rewarding and satisfying based on the importance it held im (sic) my client's life and the fact that justice was done in an exceedingly complex case. This case also resulted in the U.S. Department of State contacting me and inviting my membership in the Hague Convention Attorney Network and providing my name to the parents of other children involved in international custody disputes.
(WJI note: The attorney network provides free or reduced-rate assistance to low-income parents involved in international parental child abduction cases.)
In 2013 I represented a father in France who had his children wrongfully removed by their mother and relocated here in Wisconsin. That case was tried in the Eastern District Federal Court and the children were ordered to be returned to their native France at the conclusion of the hearing. This case was also very significant to my client and the deep sense of gratitude from the father upon the realization his children were coming home was extremely rewarding both personally and professionally.
Prior judicial experience: N/A
All runs for elective office: N/A
Judicial or non-partisan candidates that you have publicly endorsed in the last six years:
Judge Richard Niess
Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application: I regularly volunteer in the Dane County Bar’s mediation program, which provides a cost-effective means for parties in lawsuits to obtain the assistance of a neutral third party mediator in facilitating the resolution of a dispute. This is important for all litigants but of particular significance in family law matters with minor children when the parties will have an ongoing need to interact in the future.
In terms of current civic involvement, as a single parent, much of my volunteer time is
invested in maintaining my daughter’s schedule and in activities appropriate for
participation with her including field trips, working at concession stands and in athletic
activities. While in Australia, our staff and I devoted a great deal of time and resources
to community causes including civic activities in Port Douglas as well as fundraisers and
charitable work for groups and individuals in need.
Pro bono work in last five years: Mediator in the Dane County Bar mediation program, volunteer at the Dane County Family Law Clinic, Hague Convention Attorney Network.
Why I Want to Be a Judge - Over the course of my life and legal career I have seen the legal system function well and function poorly. I take great satisfaction in seeing, and being part of
assisting in ensuring our system of justice functions well. I believe I can continue to
contribute on a positive level toward that goal as a Judge.
The opportunity to serve as a Dane County Judge would also provide the vehicle to bring
together the diverse skills I have accumulated through my unique experiences to benefit
the citizens, the judiciary and the system. My impetus for attending law school was a
deeply seated, inherent interest, in seeing fairness and justice have a place in the world.
The opportunity to serve my community, my profession and society is something that I
have long aspired to achieve and, for an attorney, serving as a Judge is the ultimate
expression of that commitment. ...
My experience as an attorney with extensive courtroom and legal experience has honed
my ability to read, understand and apply all areas of the law to a given fact situation and
has given me a solid perspective on the role of a circuit court judge. I am also fortunate to
possess abundant common sense which should never get lost in the machinations of our
Judicial philosophy - Our judicial system is an essential underpinning of our remarkable system of democracy. It is a co-equal but independent branch of the government which provides a redress for grievances and a forum to resolve personal conflicts in a peaceful arena. Thus, Judges should be patient and engage in a thoughtful and predictable analysis of the existing law. Parties need predictability in preparing and presenting their cases. A judge’s obligation is to provide litigants and their attorneys a full and fair opportunity to be heard. Many litigants will only have one experience in the courtroom and it is important that they perceive they are treated with dignity and respect.
Judges should be fully prepared when they enter the courtroom and be dedicated to dispensing with cases promptly and efficiently. Justice delayed truly can be justice denied. Delay can compromise the administration of justice because the expense of the process is onerous both to the participants and the citizens. By promptly handling a case load, limited resources are conserved. This is particularly true in family law matters where a limited marital estate is rapidly consumed by adversarial proceedings.
Judges should be patient and engage in a thoughtful and predictable analysis of the existing law. A circuit court judge should recognize his or her duty is to apply the law and not legislate new law. Parties need predictability in preparing and presenting their cases.
A circuit court judge should recognize his or her duty is to apply the law and not legislate new law. Parties need predictability in preparing and presenting their cases. – Dane County Circuit Judge Josann M. Reynolds
Best Wisconsin or US Supreme Court decision in the last 30 years – Tucker v. Marcus, 1988.
Early in my legal career I handled a challenging case from the time it was filed, through discovery, depositions and all pretrial motions and ultimately to a jury trial and verdict. The case ended up in the Wisconsin Supreme Court and I was fortunate to have the opportunity to appear and argue the case before our highest Court. Therefore, I am sure my personal
involvement is a factor in my selection but I believe one of the best decision (sic) of the last 30 years of the Wisconsin Supreme Court is Tucker v. Marcus. ... The decision in Tucker set a legal precedent limiting the recovery of punitive damages. Tucker involved the drowning of a minor child at an indoor swimming pool which was arguably, poorly maintained. While the jury did not find the maintenance of the pool a cause of the drowning, they did award punitive damage based on the condition of the pool. The trial court entered judgment for the plaintiff as to the punitive damages awarded by the jury and defendants appealed. The holding is important because it established the law which precludes the recovery of punitive damages in cases where no underlying liability exists. The decision reinforced the elementary principals of our tort law requiring not only proof of injury, but proof of causation as well, for a prevailing party to be entitled to recovery. The opinion is also significant for its analysis and recognition that the Court should not adopt a modified system of comparative negligence inconsistent with legislative intent. This rational (sic), set forth in dicta, confirms the need for the separation of judicial powers from those belonging to the legislative and executive
branches of government.
Worst Wisconsin or US Supreme Court decision -- Thomas ex rel. Gramling v. Mallett, 2005
This case extended the risk-contribution theory established in Collins v. Eli Lilly Co. ...
N.W.2d 37 (1984), to manufacturers of white lead pigment whose products were used in the
production of lead based paint. (The Collins decision concerned the effects of the prescription
medicine diethylstilbestrol (DES) on pregnant women and their unborn fetuses). Everyone is
familiar with the devastating effects ingesting lead paint can have on the development of young children. The Gramling case is a classic example of hard facts making bad law. The plaintiff was born in 1990 and as a child lived in a series of run down housing units which had been built in the early 1900’s in Milwaukee. Unfortunately those homes had been painted using lead based paints and the plaintiff suffered severe deficits as a result of his exposure to those paints. It was impossible to trace the producers of the paints actually used in the residences in question.
The court undertook a laborious 33 page decision involving the history and use of lead based
paints and its known adverse effects if ingested by humans, particularly children. Ultimately the Court concluded that in comparing the interests of the innocent victim who suffered severe harm and those of the defendants who may have provided the product which caused the injury, the interests of justice and fundamental fairness dictate that the defendants should pay.
The decision in Gramling created liability out of policy considerations without regard to
fundamental legal concepts of privity of contract or a causal connection between the defendants and the damages sustained by the plaintiff. Our legal system, and in part our economic system, depend upon an objective ability to predict liability. The decision is result oriented and creates an entirely new cause of action.
The federal court did limit the effect of the Gramling decision in Gibson v. Am. Cyanamid Co. ... by protecting successor corporations from a claim founded on the risk-contribution
theory of liability.
Previous judicial applications: 1990, 2012
Other information that may be helpful:
I am undaunted by a challenge. I left a very successful legal practice at 38 years of age because my husband’s son was diagnosed with a very rare, aggressive cancer. We went to
Australia for his surgery and returned to Madison to continue my career. Unfortunately the
cancer metastasized and I took a second leave of absence. Ultimately I resigned my partnership and returned to Australia. My husband and I learned to dive and operate all of the electronics, hydraulics and mechanics on our 48 foot vessel and navigated our way to New Guinea and the Solomon Islands. It was exhilarating, exhausting and immensely satisfying. It was a challenge I embraced and it provided the opportunity for exposure and interaction with people from diverse cultures. It also afforded me the opportunity to observe alternate systems of law and judicial process.
I can make the tough decisions when necessary. At age 52 I returned to Madison with my then 7 year old daughter as a full time single parent and have rebuilt a successful career and earned the respect of my colleagues, my fellow attorneys who I oppose in court and the judges I appear before. I will make the difficult decisions when necessary as a circuit court judge.
I have a great deal of energy and enthusiasm and a capacity for hard, focused work. When I was on the District 9 Committee of the Board of Professional Responsibilities the then chairman was noted to comment “If you want a job done, give it to Josann Reynolds”. This attitude permeates every aspect of my life and it will continue to do so given the opportunity to serve on the bench in Dane County. I also have the patience and personal skills to deal with litigants in high conflict situations.
I am not a score keeper. I do not bear grudges. I cannot tell you how many cases I have tried
and won. Most of them. But I can tell you each of the cases I tried to a jury and lost. What I
remember from those cases is not who opposing counsel happened to be, but the lessons learned and how to improve and better serve my clients. I will treat all litigants and attorneys in my courtroom with the respect and impartiality they deserve. I have had the great pleasure of calling several trial judges close acquaintances and through those interactions I have gained considerable insight and respect for the role of the judiciary.
I have given careful consideration to the fact that if appointed I may face an election in April of
2015. I have met with campaign organizers, former candidates, and current and former judges
who have shared their insights and recommendations about the most effective approach to
building a strong campaign organization. In addition, I have begun the outreach necessary to
assemble a broad and diverse base of grass roots support.
I am extremely well organized. My trial experience solidified the importance of being well
prepared. I strive to walk into the courtroom with control over the examination of witnesses and the presentation of exhibits. My goal is to have nothing happen in front of the jury that I am ill prepared to handle. My organizational skills were imperative when provisioning our boat to be out to sea for 6-8 months at a time cruising in undeveloped countries. We never ran out of any necessity, or provision. I will run my courtroom with the same organization, preparation and sense of purpose.
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
Name: Joseph R. Wall
Appointed to: Milwaukee County Circuit Court
Appointment date: June 2, 2017 (Unopposed in April 2018 election)
Law School – Marquette University
Undergrad – Marquette University
High School – Brookfield East, Brookfield, WI
2007 - present – Assistant U.S. attorney, Eastern District of Wisconsin
2001 - 2007 – Milwaukee County Circuit Court judge
1986 - 2001 – Assistant U.S. attorney, Eastern District of Wisconsin
1984 - 1986 – Assistant district attorney, Milwaukee County
Seventh Circuit Bar
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Criminal Prosecutor as Assistant District Attorney, Milwaukee County, May 1984 through November 1986; Assistant U.S. Attorney, Eastern District of Wisconsin, Criminal Division, November 1986 through July 2001 and November 2007 through present
Number of cases tried to verdict or judgment: Jury, 75+; non-jury, 3-5; arbitration, 0; administrative bodies, 0.
Number of cases litigated on appeal: More than 35.
Three most significant cases in which you were involved:
United States v. Abdullah Rafeia (1994) – In the U.S. Attorney’s Office, the Criminal Division prosecutors rotate and every week we have a different "Duty" AUSA. One week in mid-1994, I was the Duty AUSA. I received a call from our receptionist that a woman was up front who needed help. They brought her to my office and she told me that she had three children with a Qatar resident named Abdullah Rafeia. The two were estranged, but they shared custody of the boys. Rafeia had the boys for the summer. She said that when it was time to bring them back to Wisconsin, he called her, said that he was going to keep them in Qatar, and that “you will never see your sons again.” (That remains the most chilling sentence that I ever heard from a witness or victim.) I typed out an affidavit and a criminal complaint for three counts of International Parental Kidnapping in violation of 18 U.S.C. § 1204. We went to the Magistrate, she swore to the affidavit, and we issued a criminal complaint naming Rafeia. I called the State Department and fortunately found an attorney there who became as upset as I was. Through Interpol, she put out a “Red Notice” which some countries will recognize as an arrest warrant. In our favor was that Rafeia had to travel often due to his job. As I recall, he flew to a country that did not recognize our red notice, but did notify us that he was in their country. A couple days later he flew to Madrid, Spain, where law enforcement authorities arrested him on the Red Notice, put him in a jail cell, and so informed us that they had him. After much back and forth with the Spanish authorities, and the State Department attorney pulling some strings, the Spanish authorities let me speak to Rafeia. I told him that unless he returned the boys to their mother, he would stay in that Madrid jail and if he ever did bail out (or whatever), I would continue to have him arrested. He told me if I withdrew the Red Notice, he would return the boys as soon as he flew back to Qatar. At my request, the Spanish authorities released him. Rafeia kept his word and flew the boys back to Wisconsin where their mother picked them up. I withdrew the Red Notice and the arrest warrant. I never heard from the mother again.
The second most significant case I prosecuted was that was charged against Alderman Michael McGee, Jr., (2007) … This was the case I was hired from the bench by the U.S. Attorney to take to trial. The case was a mess. The U.S. Attorney's Office had indicted McGee in May or June 2007, the investigation had ended, and the investigative reports and wiretap recordings were strewn across various bankers' boxes. So, after reviewing everything, and understanding the case as charged, I reinvestigated the case. Initially, there were eight victims, all of whom were named victims in the indictment. I found eight more, and the judge allowed all eight to testify as Rule 404(b) witnesses. Along with an officer with the Milwaukee Police Department (not the FBI), we went through all the wiretap conversations and the body-wire records made by an informant and picked out the best.
This was the highest profile public corruption trial in Milwaukee's recent history. It was politically charged with citizens wearing “Free Michael” t-shirts and carrying “Free Michael” signs. Milwaukee newspapers were running editorials consistent with those sentiments. McGee, a crooked politician, was seen in many quarters as a liberal firebrand who was a rising star in Democratic circles and the spokesman of his generation and his race.
I tried the case alone with only a paralegal at counsel table working the trial presentation software on the computer. (When I started playing the wiretap recordings, all of the “Free Michael” demonstrations stopped.) After eight or so days of trial in June 2008, the jury convicted McGee of all counts in the indictment. A colleague wrote the government's response brief to McGee's appeal and argued the case in front of the seventh circuit.
The third most significant case I have prosecuted is the first of 13 sex traffickers (pimps) that I have convicted and sentenced since 2008 under the federal sex-trafficking statute, 18 U.S.C. § 1591. The case is also significant because it was the first use of the federal sex trafficking statute in Wisconsin. Additionally, it woke up the Milwaukee D.A's office, who had not prosecuted pimps previously, to the reality that it could be done. The defendant was Todd Carter … Carter was a long-time pimp who started specializing in minor females in 2007. After his house was targeted with a search warrant in 2008, his minor females scattered. We were able to locate them, separate them from Carter and his lies, gain their trust, and get them to tell the truth about their association with Carter. After that, we put them into the grand jury to testify about Carter's activities. I charged Carter in January 2009 with several counts of “Sex Trafficking of Children or by Force, Fraud, and Coercion.” He eventually pled guilty and was sentenced to 25 years prison. Carter did not appeal. By no means was Carter the worst pimp that I have prosecuted. But, he was the first. His conviction and sentence kicked opened the door and began the creation of what we now see as the “Human Trafficking Task Force” and a consortium of non-government entities working to assist trafficking victims regain their lives.
Prior judicial experience:
Milwaukee County Circuit Court, Branch 40, circuit court judge – 2001 - 2007
Number and nature of cases you have heard during your judicial or quasi-judicial tenure: More than 2,000, probably much more. I heard cases at Milwaukee County Children's Court and Milwaukee County Felony Drug Court. Some days at Children's Court I would hear 15 or so cases.
Two most significant cases you have heard as a judicial officer:
Termination of parental rights (TPR) case, In re Diane F. I heard the case while on the bench at Children's Court beginning on February 17, 2003, and lasting for four days. … This was a trial to the court.
The State filed a TPR petition naming Diane's two youngest children. Diane's major problem was a cocaine addiction and it led to the neglect of her children -- the youngest of whom was born cocaine positive.
In addition to her addiction to cocaine, Diane was unable to secure a residence to which her children could be safely returned. She had been laid off her job; then evicted from her residence; she had to go to the courthouse and obtain a restraining order on her former boyfriend; and she was fighting depression, for which she was taking medication. She testified that she used cocaine because of all the pressures in her life.
At various times, Diane would abstain from cocaine -- once for 16 months, once for six months, and once for four months. Because of the pressure and stress of her upcoming TPR trial, Diane went back to using cocaine almost up to the trial date.
I found grounds (reasons) for termination of her parental rights. The dispositional hearing was scheduled for March 19, 2003. I heard two more days of testimony from the two foster parents of Diane's children, among others. When I entered a dispositional order finding that termination was in the best interest of her children, Diane let out a howl of pain such that I had never heard before.*
All contested TPR cases are sad, but this case has stayed with me for the last 15 years, so it was obviously significant to me. And to Diane F.
*See Jeremiah 31:15 “A voice is heard in Ramah, mourning and great weeping, Rachel weeping for her children and refusing to be comforted, because they are no more.”
State v. Manuel Perez, et al., (2008). There were approximately 30 defendants charged. …The trial began on August 29, 2005, and ended after ten trial days on September 12, 2005.
The case was significant because it was the longest trial I presided over on the felony drug court bench, it involved wiretaps on 18 phones, and the amount of drugs associated with these defendants, and others, was more than 100 kilograms in total. The charges lodged against these defendants included Conspiracy to Distribute Cocaine, Distribution of Cocaine, and Racketeering.
Of additional significance was that the leader of the conspiracy, Samy Caraballo, in five separate statements to Detective Jerry Stanaszak, named his brother-in-law, Manual Perez, as the source of all the cocaine. When Caraballo was called to the witness stand, he testified that Perez was never involved with cocaine. Detective Stanaszak had to impeach Caraballo with his prior inconsistent statements (unlike the Federal Rules of Evidence, those are substantive evidence under the Wisconsin evidence code).
Additionally, the State introduced 137 exhibits and the defense four. Among other testimony, was that these and other defendants used a kilogram press to rerock cocaine (squeezing it into kilogram squares) and among other items seized by law enforcement pursuant to search warrants, was a 15 kilogram scale. One witness testified that he and others rerocked 15 kilograms of cocaine in one week.
Additionally, it woke up the Milwaukee D.A's office, who had not prosecuted pimps previously, to the reality that it could be done. – Milwaukee County Circuit Judge Joseph R. Wall
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Volunteer worker on two judicial campaigns – Kevin Martens and Audrey Skwierawski. Nothing formal.
All runs for elective office:
April 2, 2001, Milwaukee County Circuit Court Judge -- won the election, 60%
Judicial or non-partisan candidates that you have publicly endorsed in the last six years:
Christopher Dee (Gave $500 contribution)
Michelle Havas (Her first run, gave $250 contribution)
Scott Wales (Gave $100 contribution)
Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application:
1. Member, Friends of the Benedict Center, 2017.
2. Member, Board of Directors, Benedict Center for Women, 2008-2016.
3. Member, Board of Directors, Coalition for Children, Youth, and Families, Inc. (formally Adoption Resources of Wisconsin), 2008-2017.
4. Member, Justinian Society of Lawyers, (currently and in various years).
5. Participating Attorney, Magistrate Judge Nancy Joseph's "Kids, Courts, & Citizenship Program," approximately 2011-2012.
6. Member, Governor's Advisory Council on Early Childhood Development, 2008-2011,
Certificate of Appreciation, Governor Scott Walker.
7. Member, Thomas E. Fairchild Inn, Inns of Court, 2011-2017.
8. Judge, High School Mock Trial Tournament (2006, 2007, various years)
9. Member, National Italian American Bar Association (2004, 2006, various years)
10. Wisconsin Juvenile Court Jury Instruction Committee, 2002-2007.
11. Established Pro Bono Program at Children's Court that Gave Parents Named in TPR Petitions Legal Representation.
12. Seventh Circuit Criminal Jury Instruction Committee, 1998.
13. Site Coordinator, Youth Crime and Violence Task Force (Safe & Sound Initiative), 1999 to 2001.
14. Milwaukee Public Schools Reading Tutor, 1998-2000.
15. Volunteer Attorney (and Founder), St. Benedict the Moor Indigent Legal Clinic, 1983-1990 and 1999 -2001.
Describe any significant pro bono legal work in the last five years: None recently...
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: None
Pro bono work in last five years: None
Why I Want to Be a Judge - I was a circuit court judge for more than six years. I was a very good judge, engaged in my work, and respected and enjoyed by those who appeared in front of me. This is especially true of my four years at Children's Court. When I run into those attorneys now, I often hear them say, simply, “come back.”
I know the job well and know that, if approached correctly, every day it is an opportunity to make a significant, positive contribution to our justice system. I felt that I did that previously, and know that I can do that again and be that again. Only better.
Most of my professional career has been in public service and I want to continue that. So, when I look forward to the next 12 to 15 years, I believe that I can make the best contribution to the community on the Milwaukee Circuit Court bench. That's the analysis: it really comes down to where I can make the best contribution in the coming years. In 2007, after several overtures from U.S. Attorney Steven Biskupic, and much thought, I felt that I could make a bigger contribution to the community as a federal prosecutor, doing the type of cases that the U.S. Attorney felt I was uniquely qualified to do. And what he needed me to do.
That was almost ten years ago. I have made my mark there once again. I have done what I was hired to do and much, much more. Among other things, as a federal prosecutor (in the Financial Crimes unit) I initiated the prosecution of sex traffickers (pimps) in Wisconsin and showed the various state prosecutors - most especially those in Milwaukee - that these master manipulators could be indicted, convicted, and sentenced to the long terms that their conduct called for.
I seek to work with the attorneys and parties that everyday appear in our civil and criminal courts, and the people who find themselves under the jurisdiction of the juvenile court. I want to write decisions again. I want to preside over trials, where I think I was at my best, and I want the opportunity to again talk to the children and defendants who would appear in front of me. I want to make those connections again, and despite the circumstances, encourage those people that a better future awaits them if they just start making better decisions.
Again, I did all these things in my six years on the bench, and I did them well. I want to do all of that again and do all of it well again, or almost certainly, even better.
More simply, I just want to serve. And the circuit court bench is the position where I can best do that in the coming years.
Judicial philosophy - As a prosecutor it is naturally conservative. Because of the discretion we have there is no need to stretch, manipulate, or reinterpret a statute or prior case rulings on the meaning of the statute or the meaning of an established point of law. This is a luxury, again, because of our discretion. So, as a prosecutor, I see some amazing motions, pretrial memos, and appellate briefs from opposing defense attorneys that bear little resemblance to the facts of the case or the relevant law. Again, I have the luxury of not having to do anything of the kind.
While I was a circuit court judge, I had numerous opportunities to interpret and apply statutes - especially from my time in Children's Court beginning in 2001. …
Because the Children's Code had been overhauled and rewritten five years earlier, many statutes in the juvenile code had not been interpreted and were not necessarily clear on their face. As a result, many nights and weekends I found myself at Marquette Law School sifting through their microfiche stacks that sometimes reflected the original drafting material of a statute or any comments from the legislators that would shed some light on their intent or purpose in drafting a particular statute. I often referenced those items in my written decisions.
As to the unstated question as to whether I was or would be, an “activist” judge, or if I believe that the Constitution is a “living document,” or whether unwritten “penumbras” extend “the Fourteenth Amendment's Due Process Clause,” the answer is “no.” There is no need to stretch the Constitution or well-established case law. The pathway is already paved; why create a new one in uncharted dirt and mud?
Best Wisconsin or US Supreme Court decision in the last 30 years – Crawford v. Johnson (2004)
Among the very best, and most important, of the United State Supreme Court's recent decisions is Crawford v. Johnson … a right-to-confrontation decision that punched a medium-sized hole in every prosecutor's toolbox.
Writing for the Court, Justice Scalia's sprawling, historical-based opinion and analysis is a delight to read.
The facts leading to this decision are brief: at Petitioner's trial the state introduced an inculpatory recorded statement from Petitioner's wife who did not testify. In holding that the use of the wife's “testimonial” statement violated the Sixth Amendment's Confrontation Clause, the Crawford Court abrogated its 24-year-old decision in Ohio v. Roberts … (1980).
The Sixth Amendment's Confrontation Clause provides in relevant part: “In all criminal prosecutions, the accused shall have the right ... to be confronted with the witnesses against him.” Initially, Justice Scalia found that this wording can have different meanings. 541 U.S. at 42-43. He then turned to the historical background of this Clause to determine what its drafters meant.
He began by noting that “the right to confront one's accusers is a concept that dates back to Roman times.” … He then moved to the reign of Queen Mary in the 16th century, contrasting civil law, which allowed witness examinations to be read in court, with the common law “tradition of live testimony in court subject to adversarial testing.” Id. He called the civil law practice “notorious” and profiled Sir Walter Raleigh's 1603 treason trial. This was a death-penalty trial. There, crucial testimony from a witness was read to Raleigh's jury. Raleigh demanded that the judges bring that witness to court to testify “before my face,” and likened his trial to those of the "Spanish Inquisition." The judges refused, Raleigh was convicted, and then sentenced to death. … This civil law practice eventually caused some regret for Raleigh's judges.
Justice Scalia then traced the turn to the common law practice through 17th and 18th century England up to 1791 (which J. Scalia notes was the year that we ratified the Sixth Amendment), when the common-law confrontation rule became widespread in England. Id. at 46-47. Justice Scalia, creating a clear path from 18th century American documents and proclamations, demonstrated that there could not be a different meaning: the right to confront your accusers in court means just that.
Summary: Justice Scalia's historical analysis is not only compelling but dispositive. Despite his previous concerns about the wording of the Confrontation Clause, Justice Scalia came to an unimpeachable result at the end of his decision. See Crawford, 541 U.S. at 51-55 ("The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement ..."). This decision does raise at least one question: What took so long?
As to the unstated question as to whether I was or would be, an “activist” judge, or if I believe that the Constitution is a “living document,” or whether unwritten “penumbras” extend “the Fourteenth Amendment's Due Process Clause,” the answer is “no.” – Wall
Worst Wisconsin or US Supreme Court decision -- Termination of Parental Rights to Max G.W. (Jodie W.) (Wis. 2006)
This is a terrible decision for a number of reasons: 1) as precedent, it creates confusion among those who prosecute and defend TPR cases; 2) in order to reach a due process analysis, the court distorted the facts about Jodie's “no contest” plea on the grounds phase of her TPR; 3) its fact-finding process was outcome determinative; 4) stylistically, the court's footnotes dominate its analysis and decision and 5) this is another example in which “hard cases make bad law.”
The facts are quite straight-forward. Jodie was the birth mother of Max, born on July 10, 2000. She was Max's sole caregiver for the first two years of his life. In July 2002, Jodie was incarcerated based on convictions for operating while intoxicated (fourth offense) and fleeing an officer. Jodie arranged for her mother to care for Max. However, shortly after Jodie's incarceration, her mother was unable to care for Max and called social services. They placed Max in a foster home on November 25, 2002. On April 22, 2004, while Jodie was in prison and facing two more years of incarceration, the state filed a TPR petition under Wis. Stat. 48.415(2) ("continuing CHIPS"). In re Max G.W., 293 Wis.2d at 537.
On September 20, 2004, the day set for her jury trial, Jodie filled out a "no contest plea" questionnaire for the "grounds" phase of the proceeding.* Jodie was represented at the time, filled out the questionnaire, and modified some of the questions as they pertained to her position at the time. She modified the form to make it clear that she was pleading no contest to just the "grounds" phase, not the "best interest" phase. The circuit court found that she made this decision voluntary, knowingly, and intelligently. That court subsequently determined that termination of Jodie's parental right's was in Max's best interest. The court of appeals affirmed in a one-page decision. Id. at 540, 543.
In a tortured, incomplete, and cherry-picked recitation of the facts, the majority found insufficient evidence to support a determination that Jodie's no contest plea was valid. That finding was crucial because a valid no contest plea waives a party's “right to challenge the constitutionality of a statute ...” Id.at 545. At that point the court invoked “substantive due process” and found that the statute as applied to Jodie was unconstitutional since she was in prison, and as such, it was impossible for her to complete the necessary conditions for the safe return of Max to her home. Id. at 554-63
The dissent, whose factual findings were more complete, determined that there was no question that Jodie's no contest plea to the grounds phase was knowingly, voluntarily, and intelligent made. Id. at 563-66. The dissent quite accurately stated that “now children of incarcerated parents will be serving a concurrent sentence in limbo.” Id. at 563.
* Under Wisconsin TPR law there is a two-step process involved. The first step is a determination of whether "grounds" (reasons) have been proven. At this stage the parent's rights are paramount and the parent is entitled to a jury finding as to whether grounds have been proven. If proven, or stipulated to, the second step is a determination by the judge whether termination of the parents' rights is in the best interest of the child. Id. at 566-67.
The awful pro-prison bill, SB 54, died in the State Senate.
That is really good news for just about everybody except its sponsor, State Sen. Leah Vukmir (R-Brookfield). The bill would have required the Department of Corrections to recommend revocation for anyone on probation / parole who was charged with a new violent misdemeanor or felony.
The bill would have sent thousands of people to prison who didn't need to be there. The measure included $350 million for a new prison to accommodate them all.
The proposal would increase misery, add to local property taxes, and cost millions annually in additional state funds.
The State Senate got it right.
By Gretchen Schuldt
The City of Milwaukee wants a federal court to dismiss a class action lawsuit over allegedly unconstitutional stop-and-frisk practices by the Milwaukee Police Department because former Police Chief Edward Flynn retired and because the city has promised to change its stop-and-frisk practices.
"Flynn no longer exercises supervisory authority over MPD officer and MPD operations," the city said in a court filing. Flynn also does not have the power to continue to have police officers "conduct a high volume of traffic and pedestrian stops," the city argued.
"It is clear from public statements made by Milwaukee’s leaders that the interim and the permanent police chief will not continue the law enforcement strategies implemented by Chief Flynn of which Plaintiffs complain," the city said. The city is represented in the suit by the City Attorney's Office and the law firm of von Briesen & Roper.
ACLU of Wisconsin, which brought the suit on behalf of stop-and-frisk targets, argued against the city's request.
"Chief Flynn’s retirement does not repeal the City’s unlawful stop-and-frisk program," the ACLU said.
The city is trying to shift the blame for its "racially motivated and unlawful policies" to Flynn "while ignoring the allegations against the other defendants - the city and its Fire and Police Commission, the ACLU said.
In addition, the organization said, the vague promises the city made to change stop-and-frisk practices are not enough to warrant the suit's dismissal.
The ACLU said none of the defendants have disavowed the program and there have been no modifications to written police documentation.
The ACLU's suit alleges that thousands of people were stopped even though police did not have reasonable suspicion of criminal activity, making the program unconstitutional. The suit also alleges the stops were based on racial profiling.
The Washington, D.C. law firm of Covington & Burling is assisting the ACLU in the case.
The number of felony cases opened in Milwaukee County rose 3 percent last year, the biggest jump since 2010, records show.
There were 5,694 felony cases opened last year, up 151 from the previous year. It is the first significant increase in crime since 2010, when there were 6,194 cases opened, a 4.7% increase over the previous year.
Felony traffic cases were up 21 percent last year, when there were 439 felony traffic cases opened, up 76 from the 363 filed the previous year, according to the statistics from the Wisconsin Court System. Tougher drunk driving laws likely are responsible for much of the increase. Fourth offense drunk driving became a felony in 2017.
Intimidating a victim / witness cases jumped to 100 cases last year, a 69 percent increase from the 59 cases filed in 2016.
On the decline side, the number of armed robbery cases dropped from 398 in 2016 to 282 last year, down 116 cases, or 29%. Weapons and explosives cases also were down, from 91 to 47, a drop of 44 cases, or 48 percent.
Substantial battery cases were down by 56 cases, or 25 percent, but that decline was offset by a 46-case, 72 percent increase in felony battery.
The figures do not reflect the total number of charges, but the top charges. A single case may include multiple charges, with the top charge the most serious.
The number of weapons / explosives cases listed by the state is incorrect and should be significantly higher, District Attorney John Chisholm said.
Prosecutions are a result of police referrals to the district attorney's office. Felony referrals fell by 10.4 percent from 2011 through 2016, according to figures Chisholm provided. The number of felony cases opened fell by 9.4% over that same time period, according to the state statistics.
Overall, from 2011 through 2017, felony court cases opened in Milwaukee County fell 7 percent; statewide, they rose 18 percent.
By Gretchen Schuldt
Drug possession, bail jumping and traffic crime cases were the major drivers pushing Wisconsin's felony caseload up 8 percent last year, statistics show.
Circuit courts around the state in 2017 opened:
The number of all felony cases opened in the state rose from 39,171 in 2016 to 42,197, an increase of 3,026.
The numbers, provided by the Wisconsin Courts System do not reflect every charge filed, but the cases opened in which a drug possession charge was the most serious, or first listed.
Drug possession was the most common felony case opened in Wisconsin, accounting for about 19% of felonies filed in the state last year. The 14% increase doubtless reflects the increased presence of opioids and methamphetamine in the state.
Felony bail-jumping charges are criticized by defense lawyers for the negotiating advantage they give to prosecutors. There have been double-digit increases in felony bail jumping cases every year except one during the past six years – their numbers rose 20 percent in 2012, 11 percent in 2013, 6 percent in 2014, 12 percent in 2015, and 11 percent in 2016. They accounted for just under 19% of felony case openings statewide.
Felony bail jumping ranks second in the type of case opened. Felony bail jumping occurs when person out on bond in a felony case violates the condition of the bond, even if the violation is itsef not a crime. Having a beer in defiance of an "absolute sobriety" order, for example, could subject a person to a felony bail jumping charge, as could missing a drug test or a court date. Felony bail jumping is punishable by up to six years in prison, which may well be a longer sentence than the offender faces for the original crime.
The big jump in felony traffic cases last year was driven, no doubt, by tougher drunk driving laws that made fourth offense drunk driving a felony rather than a misdemeanor. There were 2,469 felony drunk driving cases opened statewide in 2017, up 40%, or 701 cases, from the 1,768 felony drunk driving cases filed in 2016, according to statistics.
The biggest declines were in burglary and armed robbery cases, according to the statistics.
Burglary cases dropped from 2,002 cases in 2016 to 1,830 cases last year, down 172 cases, or 9 percent. Armed robbery cases 706 in 2016 to 553 last year, down 153, or 22%.
By Gretchen Schuldt
The State Supreme Court should decide whether Wisconsin's case law on imposing life without parole sentences on juveniles complies with related decisions by the U.S. Supreme Court, a State Court of Appeals panel said.
The State Supreme Court also should rule on whether the two judges who pronounced life sentences on juveniles adequately considered the mitigating effect of the defendants' youth, in compliance with U.S. Supreme Court standards.
The issues raised in the two cases considered "are matters of considerable statewide importance and constitutional dimension," the three-judge District 3 Court of Appeals panel said. The panel included Appeals Judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
The panel certified the cases to the Supreme Court for consideration.
From left to right: Stark, Hruz, Seidl.
Criminal justice experts are rethinking life sentences for juveniles more is learned about brain development. The U.S. Supreme Court said in 2012 that juveniles convicted of murder cannot be given a mandatory sentence of life imprisonment without parole.
The Court later ruled later that a no-parole sentence may be unconstitutional even if the judge considers the defendant's age if the crime reflects "unfortunate but transient immaturity." The Court also banned all life sentences for youth except "where the child is so irreparably corrupt that rehabilitation is impossible."
Both cases in Wisconsin considered by the appeals panel are homicide cases. The first occurred in 1994, when Curtis Walker and an accomplice shot and killed a Milwaukee police officer. Walker was six weeks shy of his 18th birthday.
The judge sentenced Walker to life in prison with the possibility of parole in 75 years, or when Walker is 95.
Walker's legal team is arguing that the de-facto life sentence is excessive and disproportionate and is inconsistent with the U.S. Supreme Court's rulings.
The state, however, says that the U.S. Supreme Court's decisions do not apply when the sentencing court, as it did in this case, has discretion to set a parole date. The state also is arguing that the issue of de facto life sentences are not included in that court's decision.
In the second case, Omer Ninham, then 14, helped throw a 13-year-old boy off the fifth floor of a parking garage in 2000. He was sentenced to life without parole.
Ninham previously appealed, but the Wisconsin Supreme Court concluded that a life sentence without parole for a 14-year-old does not “categorically constitute cruel and unusual punishment," and that Ninham’s sentence was not unduly harsh and excessive. The U.S. Supreme Court refused to review the case.
Ninham, like Walker, is arguing the sentencing judge did not adequately consider his youth at the time of the crime. The state is arguing that the U.S. Supreme Court decision was concerned with mandatory life sentences, not those imposed at the discretion the presiding judge. The appeals court said it reached a similar conclusion in a decision in another case.
The appeals panel also said it does not have the authority to disregard the earlier Wisconsin decisions upholding life-without-parole sentences for juveniles. That is true, the panel said, "regardless of advances in the science of brain development or other relevant research."
Sentencing courts "would benefit greatly" from guidance on how much weight to give the factors identified in the US Supreme Court decisions and to what extent “the prospect for the juvenile’s rehabilitation takes precedence over other legitimate sentencing considerations, such as general deterrence," the appeals panel said.
The Republican proposal to toughen revocation rules for people under Department of Corrections supervision and to build a new prison to house the additional inmates snared by the new rules could be far more expensive than has been publicly discussed, according to records.
The measure was approved by the Assembly and is awaiting action by the State Senate. No Democrat voted for the proposal, although State Rep. Jason Fields (D-Milwaukee) did not cast a vote. Republican Adam Jarchow (R-Balsam Lake) voted against it, and David Murphy (R-Greenville) and Shannon Zimmerman (R-River Falls) did not vote.
The focus has been on one scenario presented by the DOC, which comes with an estimated price tag of $57 million per year in additional costs after tougher revocation rules would be fully implemented. But the department worked up other estimates that put possible costs far higher—up to $201 million more per year.
And while the Assembly version of the bill would authorize $350 million in borrowing, interest payments likely would add at least $100 million to that price tag and possibly much more, depending on the length of the financing and the interest rate.
Prison bonding cost scenarios
Finally, the proposal would financially burden counties, most of which would be forced to hold in local jails, at county expense, those recommended for revocation while they await their revocation hearings and decisions. That process could take at least 60 days. The increased costs could well translate into increased property taxes or, because of levy limits the state places on counties, reduced services in other areas.
"Essentially, this bill is an unfunded mandate to Wisconsin county jails," Iowa County Sheriff Steve Michek said in testimony prepared for the Assembly Committee on Corrections. Michek testified on an earlier version of the bill on behalf of the Badger State Sheriffs' Association and the Wisconsin Sheriffs and Deputy Sheriffs Association.
"There is a cost to this proposal and we ask that it be addressed before the bill advances further," he said.
The proposal, originally sponsored by State Sen. Leah Vukmir (R-Brookfield), would require DOC to recommend revocation of supervision for anyone charged with a new violent misdemeanor or any felony. DOC estimates the bill would result in 2,135 new revocation recommendations per year.
In 2016, 92% of revocation recommendations were eventually affirmed, and the average length of subsequent imprisonment was 39 months, according to DOC.
If the share of additional revocation recommendations ultimately approved remains at the current 92%, the bill will cost an estimated $100.9 million to $201.4 million per year when it is fully implemented, depending on the average term of imprisonment.
If the approval rate for the additional recommendations falls to 72%, the bill will cost an estimated $79.1 million to $161.8 million; at a 52% revocation rate, it would cost $57.3 million to $117 million.
Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
Name: Robert J. Shannon
Appointed to: Portage County Circuit Court
Appointment date: Aug. 24, 2015 (elected to a six-year term in April 2016)
Law School – Marquette University
Undergraduate – University of Wisconsin-Stevens Point
High School – None listed on application
1989 - 2015 – Litigation attorney and partner, Anderson, O’Brien, Bertz, Screnes & Golla, Stevens Point, Wisconsin
US District Court for the Eastern District of Wisconsin
US District Court for the Western District of Wisconsin
Supreme Court of the United States
Civil Trial Counsel of Wisconsin
Served briefly Board of Governors
Served as President, Potage (sic) County Bar Association
Legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings: Early in my career I litigated non-felony criminal matters and represented applicants and defended employers in administrative and workers compensation proceedings. During the last 20 years, my practice was concentrated specifically in civil litigation defense.
Number of cases tried to verdict or judgment: Jury 10 (estimated); non-jury 20 (estimated); arbitration 10 (estimated); administrative bodies, 10 (estimated).
Cases on appeal: As I have recently retired, I do not have access to past client records maintained by the firm. I cannot recall specifically all of the matters in which I appeared on appeal as my appeallate (sic) practice was limited.
Two most significant cases in which you were involved:
Over the course of 26 years, I have litigated hundreds of cases many of which have involved very serious personal injuries, wrongful death actions and products liability cases. Significant cases like these often represent life-altering events for the litigants. To the child of a deceased motorist, the spouse of a seriously burned employee or the executive management of a small manufacturing company whose product is alleged to be defective and causal of a serious injury or significant property damage, their case is the most important one they will ever be involved in and, many times, represents the only contact they will ever have with the court system. Each litigant deserves trial counsel that is competent, respectful and diligent and they have a right to expect nothing less from the court. I am confident that I could translate my experience in the private practice of law to service of the public as a judge.
Prior judicial experience: None
All runs for elective office: None
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None
Judicial or non-partisan candidates that you have publicly endorsed in the last six years: Wisconsin Supreme Court Justices Annete Zeigler (sic) (Annette Ziegler) and David Prosser
Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application.
General Counsel and Board Member of the University of Wisconsin Stevens Point Institute Review Board; Director, CAP Services of Central Wisconsin, Co-Director of Finance Pacelli Panacea for Stevens Point Area Catholic Schools; Director, Stevens Point Youth Baseball Association; Board Member, Portage County Courthouse Security Committee; Counsel and Board Member, City of Stevens Point Community Development Block Grant Committee.
Describe any significant pro bono legal work in the last five years: Rainbo Lodge Inc. General Counsel, President, Director and Board of Trustees.
Why I want to be a judge – Portage County's remaining judges- Tom Fluguar (sic) (Tom Flugaur) and Tom Eagon, have significant experience in litigation of criminal cases. Judge Fluguar (sic) served as in the Public Defender's office for many years prior to his election and Judge Eagon was elected for multiple terms as Portage County District Attorney. With the addition of my 26 years of civil litigation experience, the Portage County Circuit Court would become one of the most experienced small county judicial systems in the state. I can be of nearly immediate service in handling the caseload of our retiring judge, can help to reduce delay of matters pending before the court and minimize the necessity of utilizing reserve judges to address matters calendared before the Branch II court. I would consider it a very high honor to assist in the prompt and competent administration of justice in Portage County- the place where I was born, practiced my profession and raised my family.
An expanding view of a court's inherent and discretionary authority to adapt the common law to comport with an individual's broader desire for promotion of public policy or fundamental fairness many times leads to neither. – Portage County Circuit Judge Robert J. Shannon
Best United States or Wisconsin Supreme Court opinions in the last thirty years
(Shannon referred readers to the "worst case" question below.)
Worst United States or Wisconsin Supreme Court opinions in the last thirty years – Collins v. Eli Lilly
There have been numerous examples which prove that neither state nor federal courts should actively engage in social engineering. Our Supreme Court has struggled with this issue as have most other courts. I believe that a judge must be constantly vigilant in examining his or her rationale in order to avoid the temptation of utilizing the bench for the promotion of his or her personal beliefs or opinions. The danger is strongest in the appellate courts where large measures of discretionary authority exist and where interpretation of existing common law is regularly required however the danger exists even for a trial judge. An expanding view of a court's inherent and discretionary authority to adapt the common law to comport with an individual's broader desire for promotion of public policy or fundamental fairness many times leads to neither. Illustrative is the Wisconsin Supreme Court's 1984 decision in Collins v. Eli Lilly 116 Wis. 2d 166 in which the court discarded decades of existing common law in response to it's (sic) perception of the existence of a public need. The court held, in essence, that where a compelling need exits, otherwise axiomatic common law requirements such as proof of causation-in-fact may be ignored and that liability in damages against a party may result in the absence of proof that the party was responsible for manufacturing the medication which allegedly injured the plaintiff. The "risk contribution doctrine" which attributed liability to all existing manufactures (sic) based on a defendants (sic) market volume at or near the time of injury, required that a trial court disregard the established law relating to issues of legal cause and pervaded the state's common law for decades. Particularly troubling in that decision was the court's express encouragement that it would consider extending the doctrine to cases where similar problems existed in identifying a party which could be held responsible for the harm caused. In fact, in Thomas v. Mallet, 2005 WI. 129, the court accepted it's (sic) own invitation and used the doctrine to impose liability on a similar "risk contribution basis" against manufacturers of lead-based paint- some of whom had not manufactured or distributed any leaded paint for 30 years or more. The tension and uncertainty resulting from these decisions persisted for more than 2 decades and was heightened by a legislative effort to restrict expansion of the doctrine which resulted in being veto'd (sic) by Governor Doyle. The issue was finally resolved in 2011 with the amendments to sec 895.046 and 895.047 Wis. Stats. I believe the better approach is expressed in cases such as Crossett v. Goelser, 177 Wis. 455 (1935) which cautions extreme caution in recognizing new common law or adopting the law of other jurisdictions and reminds us that the legislature is better suited to consider and decide issues involving public policy and social change.
Judicial philosophy – I believe that the purpose of our legal system is best served by adherence to existing precedent and that major changes to that precedent through the common law is not within the legitimate authority of a judge, particularly a trial court judge. Continued utilization of the common law to achieve or advance a broader societal imperative leads to delivery of ad hoc justice and promotes disrespect for the law. If law is to be valuable to society, it must be restricted to it's (sic) original purpose- to deter conduct harmful to society and to protect the rights of individuals. The deterrent effect of any legal system is weakened when administration of justice is neither predictable nor prompt. I believe that the goal of a judge must be the equal and unbiased application of the law and that a judge's personal opinions, political or otherwise, should never form the basis of his or her administration of justice.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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