There were 45,486 state court criminal convictions for marijuana possession from through 2010 through 2019.
Check out the county-by-county breakdown, along with trends, here.
The data is from Wisconsin Circuit Court Access system via the Milwaukee County District Attorney's Office. Catch our earlier post here.
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.
The case: Applegate-Bader Farm, LLC v Wisconsin Department of Revenue
Majority: Justice Patience Roggensack (26 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca Dallet, and Jill Karofsky.
Dissent: Justice Brian Hagedorn (10 pages)
Not participating: Justice Annette Ziegler
We conclude that administrative agencies must consider indirect, as well as direct, environmental effects of their proposed rules when deciding whether to prepare an EIS. Therefore, Applegate met its threshold burden even though it alleged only indirect environmental effects of the rule. On review of the Department's decision not to prepare an EIS, we conclude that the Department failed to develop a reviewable record that demonstrates that it made a preliminary investigation and reached a reasonable conclusion about the environmental consequences of its action. Therefore, the Department failed to comply with WEPA. Accordingly, we reverse the court of appeals' decision that concludes to the contrary.
Applegate operates a farm in southern Wisconsin on approximately 11,000 acres of land. Roughly 2,000 of those acres are enrolled in a federal Wetland Reserve Easement (WRE) ("easement") through the Agricultural Conservation Easement Program (ACEP). Applegate's easement is permanent, and therefore it is unable to use the land subject to the easement for agricultural purposes. This action arises out of a 2015 revision of Wis. Admin. Code § Tax 18.05(1)(d) and the effect that that revision had on landowners with certain conservation easements....
(State law allows agricultural land to be taxed at a generally lower rate than other types of property, which must be taxed uniformly. In 2015, the state adopted a rule limiting the types of land subject to an easement that qualified for the agricultural rate. Applegate's 2,000 acre easement did not qualify. – WJI)
As it relates to Applegate's WEPA (Wisconsin Environmental Policy Act) claim, Applegate alleged the following:
206. The final rule order excluded wetlands covered by the ACEP and WRE and completely removed agricultural use value assessment from wetlands enrolled in the Stream Bank Protection program...; the Conservation Reserve Enhancement program...; and the Non-point Source Water Pollution Abatement program....
207. The Department ignored and/or failed to consider evidence in its possession from the Department of Natural Resources that the exclusion and removal of wetlands in agricultural conservation easements from Tax 18.05(1)'s definition of "agricultural use" causes farmers to destroy sensitive wetlands by placing cows within the wetlands to achieve use value assessment.
208. The Department further ignored and/or failed to consider evidence in its possession from the [Department of] Natural Resources that the exclusion of WRP/WRE easements from Tax 18.05(1) is causing property owners to not enroll their wetlands into the federal program.
209. The removal and exclusion of wetlands conserved in agricultural easements from agricultural use value will result in the further destruction, degradation and loss of wetlands in this State.
210. The exclusion and removal of wetlands conserved in agricultural easements from agricultural use value has and will continue to have a significant effect upon the environment, thus, necessitating compliance with WEPA, Wis. Stat. [§] 1.11....
215. The Defendants failed to fulfill their independent duties under WEPA, Wis. Stat. § 1.11, to evaluate the environmental impact of excluding permanent conservation easements from Tax 18.05(1)(d) and failed to consider [the] full range of reasonable alternatives to minimize adverse social, economic and environmental impacts to the Plaintiff, state taxpayers, the effect on the State's wetlands and associated wildlife.
216. The final decisions (and non-decisions) of the Defendants relative to the passage of Tax 18.05(1)(d) were arbitrary, capricious, erroneous and contrary to law under WEPA...
The court granted the Department's motion for summary judgment on the WEPA claim, holding that Applegate failed to allege facts that supported its claim of environmental effect of the rule....
(The Court of Appeals upheld the ruling. – WJI)
The court of appeals read our decision in Wisconsin's Environmental Decade, Inc. v. DNR to obviate the need for an EIS for indirect environmental effects. Because Applegate's claims of environmental harm were all indirect, the court held that it had not raised a bona fide WEPA claim....
The court of appeals was incorrect. As we have consistently held, agencies must consider both direct and indirect environmental effects of their major actions to determine whether those effects will have a significant effect on the human environment. Accordingly, we conclude that Applegate met its threshold burden under WED III, and we therefore address the record underlying the Department's negative-EIS decision.
As WEPA is based principally on the National Environmental Policy Act (NEPA), we may look to federal law in our quest to interpret WEPA's requirements. Under NEPA, "effects" include both direct and indirect effects, and indirect effects are defined as those that "are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable." Especially pertinent to this case, "[i]ndirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems." Similarly, federal courts have long held that federal agencies must consider both direct and indirect environmental effects of major agency actions when determining whether to prepare an EIS.
Despite what we thought was clear direction, the court of appeals read part of our decision in (Wisconsin Environmental Decade) as requiring a WEPA petitioner, such as Applegate, to allege that an agency action must have direct environmental effects in order to raise a bona fide WEPA claim. Specifically, the court of appeals concluded that "Applying WED [IV] here, it is clear that [Applegate's] theory of indirect effects of (the tax code) on how farmers use easement program lands cannot, on its own, give rise to a bona fide claim under WEPA." The court of appeals misread WED IV....
We were not referring to indirect environmental effects, but rather, we were referring to indirect, nonenvironmental effects.... However, that holding does not undermine the principle that indirect environmental effects may on their own become "significant" and necessitate an EIS.
Having confirmed that indirect environmental effects are to be considered in deciding whether to prepare an EIS and that Applegate has made sufficient allegations to constitute a bona fide WEPA challenge, we now consider the two-step review that we apply to negative-EIS decisions. Once again, the steps are: (1) whether the agency has developed a reviewable record, and (2) whether the record reveals that the agency's determination not to prepare an EIS was reasonable. We conclude that, for the reasons discussed below, the Department failed the first step of this analysis. It did not develop a record from which we may conclude that its negative-EIS decision was reasonable. ...
We have, on several occasions, concluded that an agency's record was satisfactory despite the record not having the specific information or investigation that the petitioner would have preferred....However, in each of those cases, the record revealed that the respective agency's decision was well reasoned and considered both the relevant environmental effects and the consequences of those effects. Such a record was not developed here.
The Department's rulemaking record spans just over 800 pages. The Department argues that this record is sufficient to permit judicial review of its negative-EIS decision. We disagree. Upon a review of the record we notice documents and information that would signal to an agency that its action may have environmental effects and that it may need to take a "hard look" at those potential effects. However, what is not present within this administrative record is any agency discussion of the environmental effects of the rule. Nor is there any discussion, memoranda, e-mail, transcript or other documentation that explains the Department's rationale behind its negative-EIS decision. Without anything in the record that demonstrates the Department's reasoning for its negative-EIS decision, we are unable to conclude that the Department satisfied the first step of our required review....
We conclude that administrative agencies must consider indirect, as well as direct, environmental effects of their proposed rules when deciding whether to prepare an EIS. Therefore, Applegate met its threshold burden even though it alleged only indirect environmental effects of the rule. On review of the Department's decision not to prepare an EIS, we conclude that the Department failed to develop a reviewable record that demonstrates that it made a preliminary investigation and reached a reasonable conclusion about the environmental consequences of its action.
The majority concludes administrative agencies must consider both direct and indirect environmental effects when deciding whether to prepare an Environmental Impact Statement (EIS) under the Wisconsin Environmental Protection Act. I agree. I part ways with the majority, however, because Applegate-Bader Farm, LLC (Applegate) did not assert a bona fide challenge, and therefore the Department of Revenue (DOR) was not required to prepare an EIS.
To raise a bona fide challenge, Applegate must credibly allege that the rule change would significantly affect the environment's status quo prior to the change. Applegate's allegations do not come close to credibly alleging that the policy under the new rule as compared to the old rule would cause significant environmental impact. I respectfully dissent because I conclude that the rule amendment was not promulgated in violation of WEPA....
How is the judiciary to determine when an action might have a significant effect on the environment such that an EIS is required? State and federal courts analyzing this kind of language have understood this statutory call to leave significant room for agency discretion. To that end, this court adopted the following approach for so-called negative-EIS determinations:
We are of the opinion that the test of reasonableness should be applied to review a negative threshold decision under WEPA. Complete de novo review would be akin to treating the entire question of significant environmental effect as one of law. Where a question of law is presented, the reviewing court of course will determine the question independently regardless
of the standard by which the agency's overall decision is to be tested. However, the question whether there is present in a given case a major action significantly affecting the environment will in general be a matter of both law and fact. . . . [Wis. Stat. § 1.11(2)(c)] contemplates the exercise of judgment by the agency, but that judgment must be reasonably exercised within the limits imposed by the Act.
This reasonableness standard has governed review of WEPA claims ever since.
Moving beyond the statutory command, we went further...and mandated a process for the express purpose of enabling judicial review. Namely, an agency must create "a reviewable record reflecting a preliminary factual investigation covering the relevant areas of environmental concern." We then review that record to determine whether the agency made a "reasonable judgment" that no EIS is needed. This court recognized, however, that an agency need not undertake a preliminary investigation for every single major agency action. We observed that some alleged environmental challenges would be so "patently trivial or frivolous" that an agency may reasonably conclude no preliminary investigation is required to pass them over; searching judicial review in that circumstance would be inappropriate. Id. at 424. We explained that where it is clear that an action will not significantly affect the quality of the human environment, no bona fide challenge is made and an agency may reasonably decide not to conduct any further investigation.
DOR has not challenged this framework here, and I accept these basic principles. Nonetheless, it is worth candidly observing that the preliminary investigation requirement is a judicial creation, not a statutory mandate. While the desire for courts to have something to work with is understandable, and perhaps necessary, this judicially-imposed preliminary procedure is a means to review compliance with actual statutory commands, and should be understood in that light.
This case raises the question of whether a bona fide claim was made, thus requiring a preliminary investigation. In my view, the majority's approach to this requirement is too strict, and insufficiently attentive to the fact that we're a judicially-created step removed from the statutory requirement itself. Again, WEPA requires an EIS for major actions significantly impacting the environment, not a preliminary investigation into whether an EIS is required....
Additionally, as a matter of consistency with the statute, a bona fide challenge should also demonstrate that the agency knew or should have known of the significant environmental effect at the time it considered the major action. Unless the agency is presented the information during the rulemaking process, it may not learn of the alleged effect until long after the rule has been promulgated. WEPA does not require invalidation of already-promulgated rules based on information about the environment that was not known, constructively or otherwise, before the rule was adopted. Therefore, the bona fide challenge requirement should demand credible allegations that the agency knew or should have known of the particular and potentially significant environmental effects alleged in the challenger's complaint.
In this case, Applegate's complaint references documents found in the rulemaking record, but it nevertheless falls short of stating a bona fide challenge. Even assuming DOR knew of Applegate's allegations during the rulemaking process, these allegations, as articulated in the majority's citation to Applegate's complaint, do not rise to the level where DOR needed to prepare an EIS or even investigate further....
Nowhere does Applegate explain how the 2014 amendment to § Tax 18.05 altered...baseline environmental condition(s) (or for that matter how DOR should have evaluated such an effect). Therefore, I conclude Applegate failed to state a bona fide WEPA challenge.
Milwaukee County cannabis convictions drop; disparities persist in Milwaukee and state
By Gretchen Schuldt
Criminal cannabis convictions dropped significantly in Milwaukee County and the state over a 10-year period, but racial gaps remain, according to a new report by the Milwaukee County District Attorney's Office.
And the statewide decline largely was driven by what happened in Milwaukee County, according to the report.
While the number of cannabis arrests dropped dramatically in Milwaukee County from 2010 through 2019, the state's arrest numbers remained steady, peaking in 2018 at 17,428.
Statewide, "arrests for possession of marijuana have not decreased below 14,000" per year during the decade, the report said.
Overall, the number of marijuana possession arrests in Milwaukee County dropped 60%, from 4,785 to 1,927 from 2010 to 2019, according to the data. That is a decline of 2,858 arrests.
"Arrests now represent ~ (about) 13% of overall state arrests (down from ~33%), with ~16% of Wisconsin's population," the report said.
The number of convictions in the county declined 94% over the same time period, the report said. There were 1,285 convictions in 2010 and just 96 in 2019, a decline of 1,189.
The drop in Milwaukee County convictions drove a statewide decline over the decade, the report said. Convictions for marijuana possession dropped statewide from 5,108 in 2010 to 4,021 in 2019, a decline of 1,087, or 21%.
"Notably, 2018 conviction trends without Milwaukee saw 10-year highs," the report said. "And felony convictions only decreased ~3% instead of a ~43% decrease."
Still, racial disparities persist. Black people in 2019 were 3.2 times more likely than Whites to be arrested in Milwaukee County for marijuana possession only, without other crimes attached, according to the report.
The gaps were far larger in some other counties, the report said.
"The worst disparities in Wisconsin are in Ozaukee County (34.9 more likely) and Manitowoc (29.9 more likely)," the report said.
Statewide, according to an earlier ACLU study, Black people were 4.2 times as likely to be arrested for pot possession than Whites.
The new study, by District Attorney John Chisholm and researcher Brendan DuPont, is based on state circuit court records and FBI arrest data. The study is part of the office's efforts with the National Institute of Corrections Evidence-Based Decision Making Initiative to improve decision-making.
"We focused on diverting or declining cases, like possession of marijuana, away from the justice system when appropriate," the report said.
In 2015, Chisholm's office implemented a policy to not prosecute non-violent individuals who possess 28 grams (just under an ounce) or less of marijuana, the report said.
Chisholm said in an interview that his office is unlikely to charge marijuana possession cases unless there is another issue, such as impaired driving, possession of a firearm while impaired, or an associated crime of violence.
Chisholm favors cannabis legalization and regulation.
The policy does not mean that possession cases are not prosecuted at all or that the arrests just disappear.
"I suspect a lot of them are sent to municipal court," Chisholm said.
Municipalities in the state have the option of prosecuting marijuana possession cases in municipal courts, where offenses are punishable by forfeitures are considered civil, not criminal matters.
Counties other than Milwaukee County account for much of the racial disparities in convictions, according to the report.
"In 2019, Milwaukee County had 69% of the state's Black population, but only 8% of its marijuana possession convictions," the report said. "Ninety-two percent of Black marijuana possession convictions occur outside Milwaukee County, despite the rest of Wisconsin representing only 31% of the Black population."
Statewide, Black people had 14 convictions per 10,000, while the White conviction rate was 3.27 per 10,000. Black people were 4.3 times more likely than White people to be convicted, according to the report.
In Milwaukee County, both races were less likely to be convicted than elsewhere, but the disparity was larger. The Milwaukee County conviction rate in 2019 was .11 per 10,000 residents for White people and 1.7 per 10,000 for Black people, about 15.5 times higher than for Whites.
In 2010 Black people statewide were 9.5 times more likely to be convicted in marijuana possession cases. Black people then had 39.23 convictions per 10,000, compared to White people with 4.1 convictions per 10,000.
The study did not fully examine other racial groups due to a lack of reliable data. It did say, though, that convictions in marijuana possession-only cases for American Indians or Alaskan Natives hit a 10-year high in 2019.
By Margo Kirchner
The state relied on the wrong legal standard in arguing that the “Marsy’s Law” ballot question approved by voters a year ago was proper, the Wisconsin Justice Initiative said in a new court filing.
“Marsy’s Law” is a victims’ rights amendment approved by voters in April 2020. The amendment itself is more than twice as long as the U.S. Bill of Rights. It was presented to voters, however, as a single, short question on the ballot.
WJI and four individuals successfully challenged the amendment in Dane County Circuit Court, arguing that the ballot question violated constitutional requirements. On Nov. 3, Circuit Judge Frank D. Remington agreed, finding that the ballot question failed to fully inform voters of the changes being proposed, was inaccurate and affirmatively misleading, and encompassed more than one amendment so multiple questions were needed.
Remington declared the amendment invalid due to the ballot question’s defects. However, he stayed the effect of his ruling in case the defendant state officials appealed, which they did on Dec. 2, 2020.
Attorney Josh Kaul appealed on behalf of the Wisconsin Elections Commission and its chair, Ann Jacobs; Secretary of State Douglas La Follette; and himself. Kaul filed the appeal in District III of the Court of Appeals, which is located in Wausau.
Attorney Dennis Grzezinski, representing the plaintiffs, argued in his appellate response brief that Remington was correct and his ruling should be affirmed.
“What is at stake in this case is the right of Wisconsin voters to be properly informed, and to not be misled by a ballot question when voting on proposed amendments to the Wisconsin Constitution,” Grzezinski wrote.
After pointing out errors the defendants made regarding the legal standard the court should apply, Grzezinski homed in on important language the amendment deleted from the state Constitution.
Prior to April 2020, the Wisconsin Constitution’s victims’ rights section provided that victims must be given “an opportunity to attend court proceedings unless sequestration is necessary for a fair trial for a defendant.” Marsy’s Law deleted the italicized phrase. Further, the prior language concluded with the sentence that “[n]othing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.” Marsy’s Law deleted that sentence as well.
By striking the first provision the amendment “deleted a defendant’s right to have a victim witness sequestered, and it deleted the only reference in the state Constitution to a defendant’s right to a ‘fair trial....’ Striking the final sentence...altered the balance between victims’ rights and the rights of the accused under the State Constitution....”
The Wisconsin Constitution specifies that if two or more amendments are submitted to voters, they must be submitted in such a way that voters may consider each amendment separately.
The Marsy’s Law ballot question asked voters to approve an amendment “to give crime victims additional rights” beyond those already in the Constitution. Voters were not presented with a second question asking whether they also approved of the reduction in the rights of an accused.
WJI and the other plaintiffs argued that a second question was constitutionally required because, as Remington wrote, “[s]ubtracting from the defendants’ rights is fundamentally different than adding to victims’ rights.” In fact, the plaintiffs argued, three questions were required, because Marsy’s Law also contains a third subject creating a victim’s right to Supreme Court mandatory review of any circuit court decision.
Walker's judges: Gregory Gill Jr.
"Walker's judges" is our effort to present information about former Gov. Walker's appointees to the bench who are still serving as judges. The information is taken from the appointees' own judgeship applications. We also are posting "Evers' judges."
Outagamie Circuit Judge Gregory Gill Jr. now is running for the District III Court of Appeals bench against attorney Rick Cveykus. Election Day is April 6. We posted Cveykus' responses to WJI's judicial candidate questionnaire earlier. Gill did not provide responses.
Gill's former law firm, Gill & Gill, generally represented management in "all phases of labor and employment law," according to a firm flyer attached to his judicial application. More recently, during his current campaign, Gill received attention for campaign donations he received from conservative Republican donors Richard Uihlein, and John Menard. He is running as a textualist and judicial conservative.
Name: Gregory B. Gill Jr.
Appointed to: Outagamie County Circuit Court
Appointment date: September 2011
Law School – Marquette University Law School
Undergraduate – University of Wisconsin-Madison
High School – Xavier High School
November 2010-December 2010 – Special prosecutor, Calumet County District Attorney's Office
2005-present – attorney, Gill and Gill
American Bar Association
Wisconsin Bar Association
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Worked in the Outagamie County DA's office and clerked for Federal Judge William Griesbach before going into private practice.
In my current practice, my litigation efforts have focused on civil matters. I have defended matters at levels ranging from the administrative forum up and through the Federal District Court. In addition, I have also prosecuted matters at the administrative, State and Federal level. The litigations have been primarily employment related, including issues such as contract and discrimination matters. On occasion, I have also been involved in criminal defense work. However, said work has been a very minimal portion of my practice.
Number of cases tried to verdict or judgment: 4; non-jury, 2; arbitration, 4+; administrative bodies, 40+
Cases on appeal: Aside from appeals involving Unemployment Compensation matters, there have been two cases which I played a significant role in the appellate process.
Two most significant cases:
In 2006, I served as the lead/co-counsel in Barbara Bigalke v. Neenah Foundry,... a case before the Honorable William C. Griesbach. The case involved allegations of a violation of an individual's rights under Title VII of the Civil Rights Act of 1964. The case was significant based upon the legal and factual issues, whereas, the argument of my client Neenah Foundry, was that the Plaintiff was an independent contractor as opposed to an employee, and therefore was not subject to the protections afforded by the Civil Rights Act of 1964. The court agreed with my client.
The second case of significance was Kathleen Jawson v. Hoffmaster, Inc....This case involved an individual claiming that her rights had been denied under the Family Medical Leave Act (FMLA). As a result of the Company's denial of her FMLA rights, the Complainant in this case, Kathleen Jawson, was terminated. The significance of this case comes in the fact that through my firm's efforts, we were able to successfully right a wrong that had occurred to an individual. While there were other cases in which I and my firm have been able to assist those who have been aggrieved, in this instance, the case had to go though multiple hearings including an appeal to the Circuit Court for Manitowoc County to reach a favorable result. I was the primary brief writer on this case.
All previous runs for office: None
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None
All judicial or non-partisan candidates endorsed in the last six years: Supreme Court Justice David Prosser, Outagamie Circuit Judges Mark McGinnis, Nance Krueger, Michal Gage, and Mitchell Metropulos.
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:
Valley Kids Foundation – volunteer
Wisconsin Mock Trial Competition – volunteer
Boys & Girls Clubs of the Fox Valley – volunteer
Why I want to be a judge – For as long as I can remember, the law has been a part of my life. My father has been practicing lawyer for over 35 years and likewise my grandfather before him was an attorney.
It has been instilled in me that the law should be utilized in a fashion to help people. My father once told me that you need to take advantage of opportunities to help people when they come along because such opportunities don't come along every day. Since beginning my practice, I have tried to adhere to those values instilled in me by my father and grandfather.
In this instance through my experience in the legal profession and the ability to surround myself with quality attorneys and judges, I have seen the good that can come from being part of the judiciary. While I feel very blessed and fortunate to be able to work in a practice with my family, I have also had a desire to maximize the amount of good I can do with my law degree. I believe that as a circuit court judge, I will have the opportunity to serve my community, the State of Wisconsin and to help individuals and positively influence lives, Thus, I feel that the opportunity to be able to help serve my community on a broader basis compels me to seek this appointment.
"I believe the worst conduct of the Wisconsin State Supreme Court is to engage in judicial activism." – Outagamie Circuit Judge Gregory Gill Jr.
Best or Worst U.S. or Wisconsin Supreme Court decision in the last 30 years
To label a single case as "the worst" is a near impossibility. What is an easier task, however, is to identify what I feel is the worst action of the Wisconsin State Supreme Court: I believe the worst conduct of the Wisconsin State Supreme Court is to engage in judicial activism.
-Perhaps one case that exemplifies such conduct, as well as any other case in recent history, is that of Crystal Lake Cheese Factory v. The Labor and Industry Review Commission....
In this case, an individual was terminated based upon a Company's inability to
accommodate a disability, which consisted of, among other things, the employee being resigned to a wheelchair. Prior to the injury, amongst other things, the employee was required to gather orders, perform administrative duties, weigh, label and box cheese, as well as other various assignments....Subsequent to the injury, the Plaintiff was rendered unable to perform several duties of her job which included lifting heavy boxes of cheese, or reaching cheese stored on a high shelf.
Despite the fact that the Plaintiff was unable to perform many functions of the job, the Supreme Court nonetheless concluded that the Company was wrong in failing to accommodate the Plaintiff. The Court then went one step further and indicated that a reasonable accommodation would be to have job assignments shifted amongst other employees as a means to accommodate the employee. The Court then justified this position by manipulating previous decisions issued by LIRC.
The net effect of the decision of the Supreme Court was to expand the law and create a new means of accommodating an individual with a disability. The accommodation necessitates that employers consider significantly modify job descriptions for injured and non-injured
individuals. As noted by Justice Prosser in his dissent, "In all, LIRC' s interpretation of Sec.
111.34, as adopted by the majority, is highly questionable and imposes an unreasonable burden on Wisconsin businesses. Section 111.34 cannot be read to require that an applicant or an
employee only be able to perform "some" or "most" of the necessary responsibilities of the job."
It is decisions like this that usurp the function of the Legislature and reform acceptable statutory law.
While this is certainly not the only example of judicial activism, this is clearly a case
which exemplifies the types of judicial decisions which I believe represent the worst decisions issued by the Wisconsin State Supreme Court.
Attorney Rick Cveykus and Outagamie Circuit Judge Greg Gill, Jr. are competing for the District III Court of Appeals seat being vacated by Judge Mark Seidl, who is not seeking re-election.
Election Day is April 6.
Cveykus has been a lawyer with Cveykus Law Office since 2008 and is now managing partner.
Gill was appointed to his post by former Gov. Scott Walker. He received attention for campaign donations he received from conservative Republican donors Richard Uihlein, and John Menard. He is running as a textualist and judicial conservative.
WJI asked each of the candidates to answer a series of questions.
Gill did not respond.
Cveykus' answers are presented here as submitted. The questions asked are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.
Cveykus' resume is here and his campaign website is here.
Why do you want to become a judge?
I have spent the last 14 years of my life as an attorney helping people through some of the most difficult times in their lives. I’ve served as a legal advocate, professor at UW-Madison, mock trial teacher at the local high school, County Bar President, wills for veterans program partner, and board member with UW Alumni Scholarships and residential counseling services.
I am currently managing partner at Cveykus Law in Wausau, where I have built a broad practice in criminal law, family law, and small claims. I’m running because we need and deserve judges that make their decisions based on legal arguments rather than politics. It is time to bring independence to our judiciary and serve all in northern Wisconsin. Honesty, fairness, and
transparency are what I’m all about and I will bring those characteristics to the bench.
This Court will set the standard on a woman’s access to healthcare, to clean water and air, to
criminal justice reform, and this judge will be the one that delivers the deciding vote more often than not. I’m running because we need judges that care about all of Wisconsin, and will do all in my power to honor that commitment.
Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty
years and explain why you feel that way.
The list is near impossible to address but the ones that strike the closest to home seem to be the ones that address equal access to justice. Here I would note a string of cases that all had a
lasting impact, Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558
(2003), and Bostock v. Clayton County, 590 U.S. ___ (2020) .
The issue at play in Romer was if Colorado could pass Amendment 2 which forbid any local
government body from engaging in any action that would find homosexuality to be a protected class of citizens, the argument was that this did not take away any rights of homosexual citizens but was merely legislation to guarantee that they could not get any more special treatment than a other citizens would. The Court struck it down noting that the problem with the logic of the State was that the ability to petition your government for protected status was the item that was being removed. Basically if you are a non-suspect class in Denver, while it is true that you are not afforded special protection, you had the ability to make your case to the government that given the current circumstances the government should address that, whether it be based on sex, religion or nationality. What had been removed here was for the first time while any other group could petition their local government for the first time people of a single community would be removed from the ability to even request it. Note this was not an argument that they must get special treatment, no municipality was required to offer any, but simply that like every other citizen, you could not close their ability to petition their government and argue that protection was needed. Lawrence was an extension on this saying we should not make criminal laws solely based on the fact that you do not share the moral view of the majority, that criminal punishment
requires more than moral distaste for your lifestyle and Bostock continued that protection into the workplace.
Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.
Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2016), is a case that quickly comes to mind, not
because of the far-reaching implications as applied, but because of the message it can send.
Specifically the case was about the fact that if an officer seized you without an adequate legal
basis, but after that illegal seizure they discover that you have a warrant for your arrest any
evidence derived from that seizure will remain admissible. To some, this might seem fair and the thought would be you should just avoid having a warrant in the first place. However, the officer illegally detained the subject before they even knew about the warrant. Therefore, an officer would have an incentive to detain folks without cause because maybe they will get lucky and you will end up having a warrant. We are ill advised to set a reward structure that would encourage violations that chip away ever so slightly at the monumental promises of the Constitution.
In my view, our justice system has rightfully given a monopoly on use of force to law
enforcement, but the Court needs to be the one that sets guideposts on how that monopoly can rightfully be used within the limits of the Constitution.
Describe your judicial philosophy.
All lawyers start with the text of the Statute, and where it is not ambiguous it is our job only to
apply it. However when a Judge starts by telling you they are only a strict constructionist they are likely lying to you to earn your vote. For example The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,...” The Constitution makes no exception to that statement, yet I can’t walk up to you on the Street and say, “Give me your wallet or I will shoot you.” Quite often every judge has to take into account both historical understanding and
legislative intent but it makes for a fine campaign line to act as if we do not. What it has devolved into is simply claiming any ruling you dislike being one that is evidence of an “Activist Judge'' on either side, with no intellectual honesty to the position.
I want to do my best to be honest about my position that where the law is clear and
unambiguous that it is a judge’s job to simply apply the law, and in most cases that is exactly
where we must start. But there are thousands upon thousands of attorneys out there coming up with new arguments and new issues that may not have been addressed in the statute. When that occurs, candidates can either lie to you and claim it doesn’t exist and we simply apply the law like a computer or we can be honest and claim when those days come we have to look to historical understanding of the statute, to legislative intent, to analogy to similar issues, and to obtaining an equilibrium that addresses current day realities with the promises of liberty encapsulated in the Bill of Rights. The second one is harder to say and therefore harder to place on a campaign button, but in reality it is the honest answer that we should be educating our voters about rather than just hoping they never really call us on doing so. Next time you meet someone that claims to only be a strict constructionist ask them where in the First Amendment the ability to abridge, fighting words, or True Threats, or Obscenity, or incitement to Imminent lawless action, from the freedom of speech is spelled out in the document. Most times they will find a way to obfuscate rather than answer. We should call on our judges to be better and more honest than that.
Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.
I was the lead attorney in State v. Bowers, is a case that addressed the implications of the
current Wisconsin Misconduct in public office statute, in whether a Police Officer can be legally
charged for violating a Sheriff Created employee handbook rule, and what action is in excess of
an officers “legal authority” when there is no definition in the Statute. This has been a long, but
absolutely fascinating case between the issues with the search, the Separation of Powers
argument, the statutory construction, and the standard for an interlocutory appeal. I was also the defense attorney in the case of State v. Dreyfus was a major felony Jury Trial in Shawano
County that addressed concerns with witness credibility and the intricacies of jury deliberations
and keeping a clean record for appeal that will add complexity to a Jury Trial.
SCOW orders release of sex offender database DOC tried to shield in curious ways
By Gretchen Schuldt
The Department of Corrections must turn over a database containing information about sex offenders that a defense lawyer contends could show the state has been overstating how likely sex offenders are to commit future sexual violence, the State Supreme Court ruled, 4-3, this week.
Justice Rebecca Dallet's opinion for the majority recounts how far DOC officials went to block lawyers for Anthony Jendusa from getting the information.
Among other things, the Department of Corrections' legal counsel twice advised its staff not to turn over a database containing information about state sex offenders, despite a subpoena and then a court order requiring the agency to do so, Dallet wrote. A DOC psychologist testified he failed for more than a year to open an email that could potentially undercut his evaluation methods. And a DOC research committee said Jendusa could have the information, but then never provided it.
Dallet was joined in her opinion by Justices Ann Walsh Bradley, Brian Hagedorn, and Jill Karofsky. Justice Annette Ziegler dissented, joined by Justices Rebecca Grassl Bradley and Patience Rogensack.
Ziegler said state statute prohibited Jendusa from having access to the database because "neither the State nor Jendusa claimed they would introduce the raw data at trial."
Jendusa contends the database of Wisconsin offenders is key to demonstrating that Christopher Tyre, a DOC psychologist, used the wrong base from which to calculate the chances of repeated sexual violence.
The lawyers contend that using a base of Wisconsin offenders, rather than Canadian and Danish offenders, in a risk assessment tool used by the state, could significantly reduce the reoffense likelihood scored by his client, Anthony James Jendusa.
In fact, when Tyre finally gave a summary of the data in the email, the "preliminary (Wisconsin) base rate was roughly one-third of the base rate he relied on to predict Jendusa's recidivism risk," Dallet wrote.
(Tyre testified in November 2018 that in addition to his regular DOC job, he had made about $120,000 from the state performing private evaluations for the state in other sex offender commitment cases, Jendusa's appellate lawyer, Assistant State Public Defender Dustin C. Haskell, said in a brief.)
The risk assessments are critical in determining whether sex offenders should remain incarcerated under civil commitments after their prison terms end. A finding that the state has overstated the likelihood of reoffending could have a major impact on civil commitment proceedings for other sex offenders.
Kenneth Gray was at a house where he sold cocaine when he took a silver gun from his pocket, pulled the trigger once, and killed a man.
It was Dec. 30, 1995. Gray was 14 years old.
The victim was an adult drug dealer angry that young Gray was working in a Milwaukee neighborhood the man considered his own.
Gray, still in prison, now is 40. He has been incarcerated for almost twice as many years as he was alive when he committed his crime. His 30-year sentence ends in 2026. He is hoping to be paroled before then.
Here is what then-Assistant District Attorney Carol Kraft said in 1996 at Gray's sentencing for first-degree reckless homicide. Gray was 15.
He, up until he became involved in the drug trafficking...by all the information that I had, wasn't the type of child who had involved himself in these kind of activities and who would have been expected or – I guess one would have predicted to become involved in the events that occurred that day....
Unlike so many people we see, who at the age he came to the criminal justice system have long rap sheets, have many contacts with the police, Mr. Gray was not one of those people. Mr. Gray also doesn't appear to have come from a family where this would have been expected. And I'm sure that this is probably difficult for his mother who has supported him through this as anyone.
Gray's prison life hasn't been smooth. He's had dozens of disciplinary infractions, some of them serious. He's been transferred back and forth between institutions. But now, he says, he wants to get out and go to college, maybe get his pilot's license. He likes to write, and he wrote about his experiences for WJI. He talks about his mandatory release date in the piece below. That is a presumptive parole date that come two-thirds of the way through a prison sentence. The Department of Corrections, however, can decide to keep a person in its care beyond that date.
By Kenneth Gray
Here I sit, 4½ years past my mandatory release date (19 July 2016). This is after I've served 22 years of a 30-year sentence that was given to me at the age of 15 years old.
The judge forecast I'd be released early, before 20-year mark MR set by legislation, based upon overcrowdedness of the prison as well as my age. However, the Wisconsin Parole Commission has had other ideas.
When I was first locked up, after juvie and being waived into adult court, I was sent back to Juvie Hall because I was too young to be shipped to the Big House. There I spent 10 months in segregation because by law I was an "adult," yet couldn't be in the general population with other adults. Once I turned sweet 16, off to prison I went.
I have committed 'violations of trust' against the community, its people, and my family with utter disregard for any consequence.
And for that reason I'm on this bus, with this seeming only one-way ticket to prison. There were four of us all under the age of 21. We all possessed a certain level of trepidation. We were "fresh meat," first-timers like me. Others had small stints in juvie for a couple months, but this trip here we all "kissed the baby."
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.
The case: State v. Decarlos K. Chambers
Majority: Justice Annette Ziegler (17 pages) for a unanimous court.
Because we conclude that (Decarlos) Chambers' counsel never conceded his guilt during closing arguments, Chambers'...claim fails. Accordingly, we affirm.
On January 17, 2017, the State filed a criminal complaint against Chambers. The complaint alleged two counts. The first count alleged that Chambers committed first-degree reckless homicide with a dangerous weapon, as a party to a crime....The second count, possession of a firearm by an adjudicated delinquent, alleged that Chambers possessed a firearm despite being adjudicated delinquent of an act that would constitute a felony....
On August 14, 2017, Chambers' jury trial commenced....The State requested that the court instruct the jury as to the lesser-included offense of second-degree reckless homicide. Chambers did not object. Chambers' trial counsel requested time to discuss the proposed jury instructions with Chambers prior to the court finalizing those instructions. After a discussion off the record, Chambers' trial counsel confirmed that Chambers agreed with the proposed jury instructions, including the instruction for second-degree reckless homicide....
As part of her closing argument, Chambers' trial counsel (attorney Ann Bowe) stated that because "whoever shot [Kyle Weary]" did so "at night, in the dark, in the rain, a distance away," the jury "should consider" second-degree reckless homicide. She concluded the closing argument by insisting that because there was reasonable doubt based on the evidence, the jury "should find [Chambers] not guilty...."
(The jury convicted Chambers on both counts. – WJI)
On December 12, 2018, Chambers filed his motion seeking postconviction relief. In this motion, he claimed that his trial counsel conceded his guilt against his expressed intent to maintain absolute innocence, contrary to the new rule the United States Supreme Court announced in McCoy (v. Louisiana). Specifically, Chambers argued that when his trial counsel stated that the jury "should consider" second-degree reckless homicide, it was a concession of his guilt on the lesser-included offense. Because this error is structural, Chambers asserted that he must receive a new trial to remedy the error. The circuit court denied Chambers' postconviction motion, holding that Chambers' trial counsel never conceded his guilt at trial....
By Gretchen Schuldt
Crime victims and witnesses at least 60 years old would able to give their testimony in criminal court cases ahead of the trial and possibly over the phone, under a bill approved by the state Senate.
While some groups applauded the bill, Aaron Nelson, the president of a statewide lawyer's organization, said it is unconstitutional because allowing testimony by phone or video violates a defendant's right to confrontation. The bill has other flaws, as well, he said.
The bill, Senate Bill 18, would require a judge, at the request of the prosecutor, to hear within 60 days the testimony of an "elder" victim or witness and to preserve it in case something happened to the person.
"The ability to recall certain details is critical to the outcome of court cases," State Sen. Patrick Testin (R-Stevens Point), author of the bill, said in written testimony. "As degenerative brain diseases increase in senior populations, the system must be able to respond to the unique needs of an elderly victim's ability to testify."
Under the bill, now pending in the Assembly, the defendant would be required to be present during the testimony and the victim or witness would be subject to cross-examination.
The bill would allow the victim or witness to testify by phone or video if they have a good reason to do so, and would mandate that the recorded testimony be admissible against a defendant.
It also also would require a judges to work to ensure a speedy trial "in order to minimize the length of time the elder person must endure the stress of the elder person's involvement in the proceeding," the bill says.
But Nelson, head of the Wisconsin Association of Criminal Defense Lawyers, said the the bill is "certainly problematic."
"The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony."
"The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony." – Aaron Nelson, WACDL president
If the State Public Defender's Office cannot find a lawyer for an indigent defendant, the judge in a case has the power to appoint a lawyer at county expense. Many judges do not want to do that because of the costs to the county, and defendants can sit in jail, unrepresented, for weeks or months. The early testimony and the defendant's constitutional right to a lawyer would force judges to make the appointments.
Nelson cited three other concerns about the bill in addition to whether it is constitutional – it grants older victims and witnesses a semi-right to a speedy trial, which may deprive the defense of time needed to investigate the case and prepare a case; it does not allow a defense lawyer the same right to file a motion to preserve testimony as it grants a prosecutor; and it mandates that the preserved testimony be admissible against a defendant, but does not do the same for testimony that is favorable to a defendant.
"Some of these may be drafting issues, rather than ill intent," Nelson said, ""but they need to be fixed."
Backers of the bill, in written testimony, said it would benefit the victims or witnesses.
"Involvement in these types of court proceedings can be very stressful," said Janet Zander, advocacy and policy director for the Greater Wisconsin Agency on Aging Resources. "Court proceedings that drag on and have multiple continuances can create needless stress which can trigger trauma symptoms in both victims and witnesses."
And Michael Bruhn, public policy director for the Alzheimer's Association - Wisconsin, said that "we have witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify against in the case."
Help WJI advocate for justice in Wisconsin