Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized.
The case: Marilyn Casanova v. Michael S. Polsky, Esq.
Majority: Justice Rebecca Grassl Bradley (26 pages), for a unanimous court.
After the Atrium, a senior-living facility, defaulted on debt service payments to a group of bondholders, the facility filed a petition for receivership. The court-appointed receiver sold the Atrium's assets, generating more than $4 million in proceeds. According to the receiver, the Atrium owed the bondholders more than $6 million, secured by a valid mortgage lien on the Atrium's estate. Many of the Atrium's residents claimed they were entitled to the proceeds of the sale because, under their residency agreements, they were owed reimbursement of the entrance fees they paid to the Atrium. The circuit court concluded the bondholders' mortgage lien was superior to the residents' entrance fee claims. The court of appeals reversed, applying M&I First National Bank v. Episcopal Homes Management, Inc. to deem the residents' claims superior to the bondholders' lien.
Before this court, the residents concede the bondholders possess a valid, perfected mortgage lien on the Atrium's estate, but the residents argue (1) the bondholders contracted away the superiority of their mortgage lien, and (2) Episcopal Homes grants entrance fee claims superiority. We disagree and hold: (1) Under Wis. Stat. § 128.17, the bondholders' mortgage lien is superior to the residents' contract claims; (2) the bondholders did not contract away the superiority of their lien; and (3) Episcopal Homes does not apply to the proceeds from the sale of real property with a properly perfected mortgage lien. We therefore reverse the decision of the court of appeals.
The Atrium of Racine, Inc. was a nonprofit corporation that owned and operated a 76-unit senior-living facility. In 2002, the Atrium sought to build an assisted-living home called Bay Pointe. To finance the project, the Atrium contracted with the Elderly Housing Authority of the City of Racine (the Authority) to issue bonds. ...
The bonds to finance construction eventually were held by Bank One Trust Company, a trustee for a group of about 800 investors. Various contracts were signed by different parties.
.... As required by securities regulations, the bond underwriter prepared an Official Statement summarizing the material terms and conditions of the bond issuance as well as the risks of investing. Because the Official Statement is not a contract, it was not signed by any party, nor was it incorporated by reference into any contract.
Bank One purchased $8,050,000 in Atrium bonds from the Authority under the Trust Indenture, which assigned to Bank One (as Bondholders' Trustee) the Authority's Mortgage lien on the Atrium's estate. ... No party disputes the bondholders possess a properly perfected mortgage lien on the Atrium's estate.
Before moving into the Atrium, each resident signed a residency agreement requiring the resident to pay an entrance fee ranging from $40,000 to $238,000. Collectively, Atrium residents had paid over $7.5 million in entrance fees at the time this suit started. Upon moving out of the Atrium, each resident's entrance fee would be partly refundable when a new resident moved into the Atrium and paid an entrance fee. ... Once a new fee was paid, the Atrium used that money to refund the entrance fee paid by the former resident. Entrance fees were deposited in the Atrium's general operating account – commingled with the funds for day-to-day expenses – rather than a segregated account.
This suit arose when the Atrium defaulted on its debt service payments to the bondholders. ...
The receiver notified the Atrium's creditors and other interested parties of his appointment and requested they file their verified claims with the circuit court. Residents individually filed proofs of claim for refund of entrance fees collectively totaling more than $7 million. ...
The bondholders filed their own proof of claim for $6,264,620.65. The receiver noted the bonds were "secured by first position properly perfected security interests and mortgages" and determined the Atrium owed the bondholders' trust more than $6,097,000. As for cash in the Atrium's estate, the receiver found only two accounts, neither holding funds sufficient to continue operating the Atrium – or to pay the debt owed to the bondholders. The first account was a "general operating account" containing $80,795.11; the second was a "Resident Trust Account" containing less than $3,000. According to counsel for the receiver, the Resident Trust Account "did not have entrance fees deposited" into it. Instead, it held "some minimal amount of funds that [were] paid by the residents for various services at the debtor's facilities[.]"
The receiver eventually sold the Atrium for $5.5 million, with the money to go to the bondholders.
The residents lost in circuit court, appealed, and the appeals panel reversed the circuit court. The bondholders and the receiver then turned to the Supreme Court.
Relying on provisions of the Financing Documents and the Official Statement, the residents assert the bondholders contracted away the superiority of their Mortgage lien. Certain provisions, they argue, subordinated the bondholders' Mortgage lien to the contractually required repayment of the residents' entrance fees. We disagree.
Section 706.11(1) provides that when "[a]ny mortgage executed to a state or national bank" "has been duly recorded, it shall have priority over all liens upon the mortgaged premises and the buildings and improvements thereon . . . filed after the recording of such mortgage" with exceptions only for certain categories of liens under which the residents' entrance fee claims undisputedly do not fall.
The residents argue the bondholders consented in the Financing Documents and the Official Statement to the subordination of their Mortgage. Although "[i]t is true that a subordination can be incorporated" into any contract the Official Statement is not a contract and the Financing Documents do not contain any provision subordinating the bondholders' Mortgage.
The residents contended that the bondholders waived primacy in financing documents, including the Official Statement.
Because the Official Statement is not a contract, it is incapable of containing a subordination agreement. It is not an agreement at all, in whole or in part. The residents contend the Official Statement must be "controlling" because there is no other explanation for why it exists. To the contrary, it exists because the government says it must. The residents accurately argue the Official Statement serves as a notice to investors of investment risks and "what claims might be superior to theirs," but nothing in the Official Statement actually subordinates the bondholders' Mortgage.
Other provisions on which the residents rely likewise merely acknowledge superior claims might exist. ... The key word in these provisions is "may." Like "subject to," this word does not subordinate the Mortgage. It most naturally conveys only "a possibility." In effect, these provisions merely convey there is a possibility Permitted Liens could be superior to the Mortgage lien. Possibilities are not realities; the residents never attempted to create liens on the Atrium's real property, and these provisions do not subordinate the bondholders' secured lien to the residents' unsecured claims for entrance fees.
The residents next rely on Episcopal Homes – a court of appeals decision not binding on this court. ...
In Episcopal Homes, the circuit court granted summary judgment in favor of the DeKoven development residents and imposed a constructive trust against the entrance fee account. The court of appeals affirmed, concluding DeKoven had contracted with each resident as landlord and tenant; accordingly, the court deemed the rental agreements leases. Based on the language of the rental agreements, the court concluded the entrance fees were effectively security deposits under Wisconsin Administrative Code governed by the public policy espoused in the administrative code. Because Wisconsin Administrative Code prohibits using standard forms to place additional conditions on the return of security deposits, the court determined any subordinating provisions in the rental agreements were unenforceable.
The appeals court agreed.
Episcopal Homes is inapplicable to the facts of this case. In Episcopal Homes, the court of appeals exercised equitable powers against a segregated account containing funds traceable to the residents' payment of entrance fees. In contrast, the residents of the Atrium seek to usurp a first priority lien on the proceeds from the sale of real property. Whatever equitable powers courts may possess, nothing in law or equity authorizes courts to disrupt the statutorily prescribed priority of secured lenders.
The residents' argument for extending Episcopal Homes beyond a segregated account of entrance fees not in receivership to reach the materially distinct proceeds from the sale of real property subject to a perfected mortgage lien asks this court to disregard the plain language of chapter 128. We have no legal authority to do so.
By Gretchen Schuldt
Most of the provisions in a bill doubling fines for reckless driving will affect few people, according to the Wisconsin Department of Transportation.
There were just 124 total convictions statewide under three provisions of the reckless driving statute in 2021, according to a DOT memo.
And for a fourth, the most common offense, the Legislature does not set the penalty most people actually pay – that is done by the state Judicial Conference.
The Assembly vote approving the bill was 85-12. A chart showing individual representative's votes is at the bottom of this post.
In first-offense reckless driving cases, the most common kind, the Legislature sets the range of the financial penalties, but the Judicial Conference sets the default amount that appears on the ticket. That is the amount that people pay without going to court.
The bill doubles the minimum forfeiture for first-offense reckless driving from $25 - $200 to $50 - $400. While the amount on the ticket assumedly would increase from the Judicial Conference's $200 to $400 to remain on the high end of the scale as it is now, the actual amount "could remain unchanged," DOT said.
There were 1,624 first-time reckless-driving convictions statewide in 2021, according to the memo. If the $400 amount is adopted by the conference, revenue statewide would increase by an estimated $324,800.
Another section of the bill would double the forfeitures for reckless driving involving a railroad crossing, from $300 - $1,000 to $600 - $2,000. The amount generally listed on tickets is $300. There were just two convictions statewide in 2021, generating $600 in revenue. Doubling the forfeiture would generate an additional $600 statewide, DOT said.
The fines for reckless driving, second and subsequent offense, would increase from $50 - $500 to $100 -$1,000.
"However, due to second and subsequent offenses being criminal cases, the fines levied by the courts may vary widely," DOT wrote. The additional penalty of up to one year in jail is unchanged.
Their were 99 convictions statewide under that statute in 2021.
The bill also would double the fines for causing bodily harm through reckless driving, from $300 - $2,000 to $600 - $4,000. Again, those cases are criminal cases and fines could vary widely, DOT said. There were just 23 convictions for the crime in 2021.
The bill would also increase the maximum incarceration time from one year to two years in the county jail or house of correction.
Those who are convicted of causing great bodily harm while driving recklessly would face longer prison terms. Right now, the maximum penalty is 3½ years and a $10,000 fine; the bill increases that to six years in prison and a $10,000 fine. The DOT did not include conviction figures for that offense.
The bill also imposes a $435 driver improvement surcharge and a $50 safe ride surcharge for reckless driving convictions. Based on 2021 figures, the surcharges could increase total revenue for the two programs by about $850,000.
In Waukesha County, incumbent Circuit Judge Fred Strampe is challenged by Attorney Cody Horlacher. Election day is April 4. Absentee and early voting are underway.
Strampe received his law degree from the University of Wisconsin Law School. Gov. Tony Evers appointed him to the bench in November 2022. Prior to his appointment, he was an attorney at the Borgelt, Powell, Peterson and Frauen law firm.
Horlacher received his law degree from Marquette University Law School. His Wisconsin Bar listing indicates that he works for Horlacher Law LLC.
WJI asked each of the candidates to answer a series of questions. The questions asked are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.
Strampe answered WJI's questionnaire, and his answers are printed as submitted, without editing. Horlacher did not respond to the questionnaire.
Why do you want to become a judge?
I currently serve the people of Waukesha County as a Judge in Branch 7 of the Waukesha Circuit Court. Each day in my courtroom, I enforce the Rule of Law in a way that is equitable and leaves all parties understanding that the process was fair.
I began my professional life serving our Country and I want to continue my professional life serving the people of Waukesha County and Wisconsin. As a young man, I was prepared for the rewards and challenges of serving as a junior officer in the Army. My 25 years as a litigator prepared for the rewards and challenges of serving as a Circuit Court Judge. The mission of my alma matter, The United States Military Academy, is to “develop leaders of character for a lifetime of service to the Country.” By serving as a Circuit Court Judge, I am continuing my service to our State and our Country.
Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.
I believe Daubert v. Merrell Dow Pharms., Inc, 509 U.S. 579, (1993), which was adopted in Wisconsin by Sec. 907.02(1), Wis. Stats., and Siefert v. Balink, 2017 WI 2, has a great impact on the people of Wisconsin, even if few people know about it. When Wisconsin adopted the Daubert Standard, a great deal of authority was transferred from the Jury to the Circuit Court Judge. Under Daubert, the Circuit Court must determine if an expert’s opinions are reliable. While the Court repeatedly indicates that the Circuit Court is not taking the place of a Jury, a party whose case is dismissed because their expert was ruled unreliable will certainly disagree. Although Daubert and Seifert list numerous factors the Court can consider, the Siefert Court stated, “the trial court may consider some, all, or none of the factors.” Siefert, Para 64. The Siefert Court explains that the Trial Court should not accept expert testimony just because the expert is qualified. Seifert, Para 75. However, the Court goes on to explain that the reliability standard can be satisfied by the witness’s “personal knowledge and experience.” Siefert, Para 78. The Supreme Court of Wisconsin ends its analysis by deciding that a Circuit Courts decision to admit, or exclude, expert testimony will only be reversed if the Circuit Court abused its discretion. Seifert, Para. 93.
The standard adopted in Seifert gives the Circuit Court tremendous power in any case that requires expert testimony. In many cases, at least one party will have a reason to challenge the other side’s expert. Once challenged, the Circuit Court can exclude the testimony based on “all, some, or none,” of the relevant factors identified in Daubert and Siefert. If there is a plausible reason to exclude the evidence, the Circuit Court’s decision will survive appeal.
Because of the broad authority Circuit Court Judges have, to exclude or admit expert testimony, the selection of Judges may be more important than the people of Wisconsin know. The significant power granted to the Circuit Court relating to expert testimony could have a positive or negative effect on the people of Wisconsin. Many citizens of Wisconsin do not know the Circuit Court has this much control over expert testimony. Because of this, Circuit Court Judges must carefully analyze any challenges to expert testimony. Expert testimony should be excluded when the testimony is clearly unreliable. If expert testimony is excluded, the Circuit Court should make a record explaining why the testimony was excluded, so the people of Wisconsin understand why the expert was not allowed to testify.
Describe your judicial philosophy.
Our system of government only works if we have strong, independent, and impartial Judges committed to the rule of law. Circuit Court Judges must be fair and impartial without preconceived agendas or goals.
Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.
Local Government Property Insurance Fund (“LGPIF”) v. Lexington Insurance Company
I represented LGPIF. This case involved a fire that occurred at the Milwaukee County Courthouse in July of 2013. LGPIF insured Milwaukee County and determined that the fire was a covered loss. LGPIF paid over 17.4 million dollars for this loss and sought to recover a portion of this amount from its reinsurer, Lexington. Lexington refused to pay the loss claiming the damages were the result of an electrical failure, which was not a covered loss. LGPIF filed suit to recover the reinsurance benefits contained in the insurance policy issued by Lexington. Along with Co-counsel Barbara O’Brien, I was responsible for all written discovery, expert retention, depositions, and pre-trial motions. My involvement focused on the damages sustained at the courthouse and the competing expert opinions regarding the cause of the loss and the resulting damage. The matter settled just before trial.
Holder et. al. v. Fraser Shipyards
I represented Capstan Corporation, the owner of Fraser Shipyards. This matter involved four related cases with 70 plaintiffs. All the plaintiffs were shipyard workers at Fraser Shipyards in Superior, WI. They were exposed to hazardous levels of lead while preforming work on the HERBERT C. JACKSON, a great lakes freighter owned by Interlake Steamship Company. While each worker had different alleged injuries, most of the workers claimed traumatic brain injuries resulting in memory and processing problems, along with some physical injuries from the lead exposure. Plaintiffs claimed that Fraser Shipyard, Capstan and Interlake knew that lead paint on the vessel would be disturbed by Fraser's work and took no preventative measures to protect the workers. I took over the representation of Capstan a few months before the Holder case was set for trial. I was responsible for investigating the loss, written discovery, depositions, expert retention, procedural motions, discovery motions, motions in limine and pre-trial submissions. The Holden case settled less than one week before trial was set to begin. The other three cases settled after significant discovery.
Stuart v. Mortle
I represented Mortle Trucking. Mortle performed snow and ice removal services at the clinic where Ms. Stuart's Doctor worked. Ms. Stuart slipped and fell in the clinic's parking lot after a snow event. She sued Mortle and the property owners claiming that the parking lot was negligently maintained. Ms. Stuart claimed significant back injuries from the fall. She had over $400,000 in past medicare expenses and claimed over $500,000 for future medical expenses. Additionally, Ms. Stuart had a 20 year history of back issues. In December, 2021, the case was tried by Judge Chris Foley in Milwaukee County. After a five day trial, the jury concluded that Mortle was not negligent.
Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.
My legal practice was focused on civil litigation. I appeared in Circuit Courts throughout Wisconsin and the Eastern and Western District Courts. I handled all phases of civil litigation from the initial pleading through trial. The majority of my time was spent on investigations, depositions, document analysis, discovery, settlement discussions and pre-trial motions. My legal specialty was trial practice. I also had extensive experience with claims at assisted living facilities, insurance coverage issues and product liability claims, along with most types of personal injury cases, with an emphasis on traumatic brain injuries.
As part of my work for Assisted Living Facilities and Day Care providers, I handled several cases involving the Division of Hearings and Appeals. These appeals involved orders to close a facility, revocation of licensing, need for a plan of correction, and requests to reduce fines. I participated in pre-hearings and scheduling/status conferences with Administrative Law Judges.
I mediated hundreds of cases all over the State of Wisconsin and represented parties in arbitrations approximately 15-20 times. I was also appointed by the defense as an Arbitrator approximately 10 times. None of these cases proceeded to a full arbitration.
Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?
Do you support requiring a justice or judge to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so, why? What contribution limits would you set?
Wisconsin has some of the weakest recusal rules in the nation. I support strengthening those rules in an open, transparent process. The judicial code states that “a judge must recuse himself or herself whenever the facts and circumstances the judge knows or reasonably should know raises reasonable question of the judge's ability to act impartially.” Judges should consider the appearance of bias in cases in which significant donors to their campaigns are involved.
What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?
Significant shortages of prosecutors, public defenders, and private bar attorneys willing to take on public defender cases are causing delays which have a negative impact on everyone in the Criminal Justice System including victims, families, and defendants.
Provide any other information you feel would be helpful to potential voters deciding for whom to vote.
My opponent is a former State legislator who is unqualified to be a judge. According to CCAP, he has handled exactly one case in Circuit Courts. He signed a letter to then VP Mike Pence on January 5, calling for the disruption of the transition of power, citing unfounded claims of election irregularities. He has been endorsed by the most extreme anti-choice groups in Wisconsin, one of which opposes contraception and would ban abortions without exceptions.
Wisconsin Supreme Court candidate Daniel Kelly was ranked "not qualified" by 74% attorneys who had an opinion, while 86% said his opponent, Milwaukee County Circuit Judge Janet Protasiewicz, was "qualified," according to a Milwaukee Bar Association poll.
Kelly was rated "qualified" by just 26% of respondents who had an opinion; Protasiewicz was rated "not qualified" by 14%.
The MBA surveys its members about Milwaukee County judicial candidates every year before the spring election. Members are asked whether candidates are qualified or not qualified. Members also may respond that they have no opinion.
The table below shows poll results among all the candidates for judicial seats from participating attorneys who expressed an opinion.
All of the races for the Milwaukee County Circuit Court bench are uncontested. No candidate in those races received a "qualified" rating below 80%.
In the District I Court of Appeals race, which encompasses Milwaukee County, 90% of respondents considered Bill Brash qualified, while 67% said challenger Sara Geenen was qualified.
In the Milwaukee Municipal Court elections, incumbent Branch 3 Judge Phil Chavez does not have an opponent. For Branch 2, Molly Gena, managing attorney for Legal Action of Wisconsin's Milwaukee office, is running against Lena C. Taylor, a state senator, for an open seat. In that race, 95% of respondents with an opinion said Gena was qualified, while just 27% said Taylor was qualified.
In Sheboygan County, Judge Daniel Borowski is not running for reelection. Cassandra Van Gompel and George Limbeck vie for the open seat.
Election day is April 4. Absentee and early voting are underway.
Van Gompel, a local attorney manager with the State Public Defender, received her law degree from Marquette University Law School. Her resume is here.
Limbeck, an attorney with Limbeck Law Office, received his law degree from Washington University School of Law (St. Louis). His resume is here.
WJI asked each of the candidates to answer a series of questions. The questions asked are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments. The answers are printed as submitted, without editing or insertion of “(sic)” for errors.
Van Gompel provided her resume and responded to the full questionnaire. Limbeck provided his resume and responded to part of the questionnaire. WJI has reached out to him again to obtain a complete response and will revise this post if he submits it.
Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized.
The case: State of Wisconsin v. Oscar C. Thomas
Majority/Lead Opinion: Justice Patience D. Roggensack announced the mandate of the court and delivered a partial majority opinion (34 pages) that was joined by Chief Justice Annette K. Ziegler and joined in part by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca F. Dallet, Brian Hagedorn, and Jill J. Karofsky.
Concurrence: Dallet (10 pages), which reflects the majority opinion of the court on the issue of confrontation; joined by Walsh Bradley, Grassl Bradley, and Karofsky.
Concurrence: Hagedorn (2 pages).
The state switched its argument during litigation, according to Roggensack's and Hagedorn's writings. The state first argued that a DNA report was used by the prosecution to impeach Thomas's defense expert. Later it argued the report was used during cross-examination and closing argument to show the truth of the matter it concerned.
For people most interested in the confrontation issue, WJI recommends reading Dallet's concurrence first, as it is the majority opinion of the court and her writing is clear.
(Joined by Walsh Bradley, Grassl Bradley, Dallet, Karofsky, and Ziegler)
We accepted two issues for review. First, whether Thomas's confession of sexual assault was corroborated by a significant fact, and we conclude it was. This opinion is the majority opinion for the discussion of corroboration. Second, whether the cross-examination of Thomas's expert witness by use of a Wisconsin Crime Lab report ("the Report") that was not in evidence and whose author did not testify violated Thomas's confrontation right. Four justices conclude the Report's contents were used for their truth during cross-examination, thereby violating Thomas's right of confrontation. Justice Dallet's concurrence is the decision of the court for the confrontation issue. Six justices conclude Hemphill (v. New York) precludes admission of evidence to correct an allegedly misleading impression created by the defendant, and seven justices conclude that any error related to the Report was harmless. Accordingly, we affirm the court of appeals.
Thomas was arrested in 2006 for strangling to death his wife, Joyce Oliver-Thomas. He was charged with first-degree intentional homicide, first-degree sexual assault, and false imprisonment. (Roggensack says in a footnote that the couple was divorced, but reconciled without remarrying. The decision refers to them as married, though this was not technically true at the time of Oliver-Thomas's death.) A jury convicted Thomas on all counts.
Thomas's first appeal failed in state courts, but he filed a federal habeas petition and the Seventh Circuit Court of Appeals granted him a new trial. In 2018, a jury again convicted him on all counts, and Kenosha County Circuit Judge Bruce E. Schroeder sentenced him to life in prison. Thomas appealed again and lost in the state court of appeals.
(Joined by Ziegler)
.... Specifically, the court of appeals concluded there was sufficient corroborating evidence of the sexual assault confession, and denial of the postconviction motion was appropriate. The court of appeals also concluded the Report's DNA evidence was "inadmissible hearsay," causing a Confrontation Clause violation when it was used erroneously during trial and during the State's closing argument. However, the court of appeals concluded that the error was harmless.
In its briefing to us, the State did not argue that the Report could be used for the truth of its contents. Rather, it set the issue up as: "[W]hen Thomas's expert gave testimony directly contradicting the lab report on which he relied, it was an implied waiver of Thomas's right to confront the author of the lab report." However, Dr. Williams did not say he "relied" on the Report, but rather, that he "reviewed" the Report along with hundreds of other pages of material relative to this case. Nevertheless, the State veered from the argument it raised consistently below that the prosecutor used the Report to impeach Thomas's defense expert. Instead, at oral argument the State argued that we should analyze the Report based on the contention that its contents were properly used during cross-examination and during closing argument for the truth of the matters asserted therein.
Thomas gave contradictory statements to the police, which involved him smoking crack before Oliver-Thomas's death. In one, Thomas said he and Oliver-Thomas, after she complained repeatedly of chest pain during the day, fell off the bed while they had sex. Thomas left the building for a time afterwards and found his wife on the floor when he returned. In another, Thomas said Oliver-Thomas at first asked him to stop with his sexual advances, but then consented to sex. In this version, too, they fell to the floor. Thomas said he had his left arm up around his wife's neck while they had sex. The two got back into bed, but fell out again. Thomas said he again had his arm around her neck. He left the apartment and returned to find Oliver-Thomas lying face down on the floor. Thomas said he tried to lift her, but lost his grip twice and Oliver-Thomas's face hit the bed or floor each time.
(Joined by Ziegler, Walsh Bradley, Grassl Bradley, Dallet, Hagedorn, and Karofsky)
While the State does not, and need not, offer corroborating evidence of every element of the crime of sexual assault, the State has offered corroborating evidence for a "significant fact" of Thomas's statements given to police. Thomas's downstairs neighbor testified she heard an argument between a man and woman, and the woman screamed, "Stop, stop, I love you, I love you." The neighbor also testified she heard something big hit the floor, the sound of furniture moving, and silence. She then heard the apartment door open, and a person she identified as Thomas walked out.
(Joined by Ziegler only)
The Confrontation Clause of the Sixth Amendment of the United States Constitution prevents the admission of testimonial hearsay when the declarant is absent from trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. ...
Thomas called just one witness at trial – Dr. Williams, a medical examiner. On direct examination, Dr. Williams testified that "in allegations of violence resulting in death," he looks for "an exchange of trauma, an exchange of evidence" between the victim and accused. When asked specifically, Dr. Williams replied that he did not see signs of a struggle or of defensive wounds. In his opinion, abrasions on Ms. Oliver-Thomas's face could have resulted from emergency CPR or from engaging in face-down sex on the floor, consistent with Thomas's statements.
On cross-examination, the state challenged Dr. Williams's characterization that there were no signs of an exchange of trauma.... Documents submitted prior to trial indicate Dr. Williams reviewed the Report, among other things, in preparing his testimony. Thomas urges us to conclude that the details elicited on cross-examination of Dr. Williams violated his confrontation right.
[T]he State's use of the Report to impeach Dr. Williams on cross-examination did not violate Thomas's confrontation right. The State challenged Dr. Williams's conclusion that there was "no exchange of evidence" by referencing the report that Dr. Williams had reviewed, which showed DNA exchanges under the fingernails of Thomas and Ms. Oliver-Thomas. Stated otherwise, by drawing attention to the "exchange" of DNA between Thomas and Ms. Oliver-Thomas, the State attempted to undermine Dr. Williams's opinion that Ms. Oliver-Thomas's cause of death could have been accidental. The degree to which the State succeeded in limiting the usefulness of Dr. Williams's testimony was then considered by the jury together with all of the evidence in deciding Thomas's guilt. Although we recognize Thomas could have asked for limiting instructions that the jury not consider the Report's contents for their truth because testimony about the contents of the Report was not admitted for substantive purposes, he made no such request. We conclude the State's questioning on cross-examination relevant to the Report did not violate Thomas's right to confront the Report's author when used to impeach Dr. Williams's opinion.
.... [T]he State views the Report at issue in Thomas's conviction as belonging to a "narrow category of evidence that a defense expert relied on and gave factually inaccurate testimony about." ... [I]n the State's view, Thomas elicited testimony that "flatly contradicted" the Report. Because "he made 'a tactical choice' to put the [R]eport in play," he "waived his confrontation right as to that [R]eport."
.... However, if the State wanted to use the Report for its truth, the State was required to introduce and authenticate the Report and then subject its author to cross-examination by Thomas in accordance with the Sixth Amendment. ... The information the State elicited from Dr. Williams on cross-examination for impeachment purposes did not transform the Report into admissible hearsay. ...
We conclude the State's reliance on hearsay evidence that was used to impeach Thomas's expert's opinion was improper during closing arguments because the Report then was used for the truth of the statements therein. As stated earlier, the facts or data upon which an expert bases her opinion may be introduced ... but only for the limited purpose of assisting the factfinder in determining an expert's credibility. Evidence brought in for that purpose does not transform into admissible hearsay for subsequent use at trial.
Furthermore, after defense counsel objected, the prosecutor incorrectly assured the judge that, "[T]he evidence supports this theory, Your Honor. We have testimony of the scratches on her face. ... Her DNA is found under his fingernails." It was therefore erroneous to permit the prosecutor's statement in closing argument because the DNA evidence in the Report was not properly admitted as evidence for its substantive content.
The harmless error query does not reduce to a mere quantum of evidence, but instead, whether absent the hearsay/Report it is clear beyond a reasonable doubt that a rational jury would have found Thomas guilty. Here, we conclude that the State offered sufficient evidence for a rational jury to determine Thomas sexually assaulted and intentionally took the life of his wife. All of the observations of physical injury to Ms. Oliver-Thomas are consistent with the jury's conclusion that Thomas's interactions with her were not consensual and were intentional. Accordingly, we conclude that the state has met its burden to show that the error was harmless.
I conclude that the State violated Thomas's Sixth Amendment rights. The State sought the DNA evidence described in the Crime Lab report for its truth at trial. That much is clear from the prosecutor's closing argument to the jury. And the State confirmed that the DNA evidence was offered for its truth throughout briefing and during oral argument in this court. For that reason, the DNA evidence in the Crime Lab report was testimonial hearsay; it was an out of court statement, prepared "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial," and offered by someone other than the declarant for the truth of the matters asserted. Because the author of that report was not available for cross-examination, admitting testimony about it therefore violated the Confrontation Clause. Nevertheless, because that Confrontation Clause violation was harmless, I conclude that Thomas's convictions should stand.
Thomas's forensic expert, the sole defense witness at trial, testified on direct examination that he did not see any defensive wounds or "signs of a struggle" on the victim. This was important because Thomas argued that he killed the victim accidentally. During cross-examination, the State asked Thomas's expert if he reviewed reports from the Wisconsin Crime Lab in reaching his conclusions. This was the first time the Crime Lab report and the DNA evidence contained in it came up at trial, and defense counsel objected to any questioning about the contents of the report. The circuit court overruled the objection, however, and allowed the State to ask Thomas's expert about the report because he reviewed it before reaching his opinion. The prosecutor then asked the expert about the report's finding that Thomas's DNA was under the victim's fingernails at the time of the autopsy. After looking at the report, Thomas's expert said "[y]es, this appears to be an analysis that shows that the DNA found under the fingerprints [sic] was obviously a mixture. You are going to have [the victim's] DNA, but also evidence of DNA from Oscar Thomas." He also confirmed that the victim's DNA was found under Thomas's fingernails. Thomas's expert dismissed those conclusions, however, explaining that Thomas and the victim were married, and "[a] finding of the DNA, they could be scratching each other's back. I mean, there is no evidence of trauma on him to support the fact that she was struggling." The report was never admitted into evidence.
The State's actions would have been permissible if, as the majority/lead opinion hypothesizes, it was done only to impeach Thomas's expert during cross-examination. But the record, and the State's briefing and presentation at oral argument, all establish that the evidence was offered for the truth of matters contained in the report – that the victim's DNA was under Thomas's fingernails and Thomas's DNA was under her fingernails. That was why, when the circuit court told the prosecutor to confine his closing arguments to the evidence, he responded – in front of the jury – that "[w]e have testimony of the scratches on [the victim's] face. We have testimony that it could have been caused by DNA. Her DNA is found under his fingernails." The only "testimony" about DNA was Thomas's expert's answers about the Crime Lab report's findings during cross-examination. And if there was any remaining question about the purpose of eliciting that testimony, it was answered in briefing and at oral argument in this court, where the State consistently asserted that Thomas impliedly waived his right to confront the author of the Crime Lab report when his expert's testimony contradicted the report's contents.
Nevertheless, the majority/lead opinion insists that the State used the evidence during cross-examination not for its truth, but only to impeach Thomas's expert's credibility. That is correct, in the majority/lead opinion's view, since the State's briefing "did not argue that the report could be used for the truth of its contents." But the majority/lead opinion misunderstands the State's position. Its argument that Thomas impliedly waived his confrontation right only matters if the report was used for its truth. After all, the Confrontation Clause only prohibits the introduction of testimonial hearsay, and hearsay is, by definition, an out of court statement that is "offered in evidence to prove the truth of the matter asserted." Thus, the State's consistent position before us is that it did not violate the Confrontation Clause when it sought to establish the truth of the Crime Lab report's findings through Thomas's expert's testimony on cross-examination.
The problem with that position is that the Confrontation Clause "prohibits the introduction of testimonial statements by a non-testifying witness, unless the witness is 'unavailable to testify, and the defendant had had a prior opportunity for cross-examination.'" Crime lab reports are testimonial statements because they are "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." And for that reason, the conclusions reached by such reports may be admitted for their truth at trial only if the person who prepared the report is subject to cross-examination.
That wasn't the case at Thomas's trial. Instead, through its questioning of Thomas's expert, the State was able to elicit DNA evidence from the Crime Lab report without affording Thomas the opportunity to confront the analyst who prepared that report – a straightforward Confrontation Clause violation.
The State tries to sidestep that violation by arguing that Thomas impliedly waived his right to confront the analyst who prepared the Crime Lab report when his expert witness "relied on" the DNA evidence in that report and then "gave factually inaccurate testimony about" it. This argument is based on the direct testimony of Thomas's expert that he did not see any defensive wounds or "signs of a struggle" on the victim. The State claims that was inaccurate because the DNA evidence showed that Thomas's DNA was under the victim's fingernails (and her DNA under his). And for that reason, the State did not violate the Sixth Amendment by establishing the facts contained in the report through cross-examining Thomas's expert.
This argument, however, mirrors an evidentiary rule the United States Supreme Court recently held was unconstitutional in Hemphill v. New York. That rule allowed evidence that would otherwise violate the Confrontation Clause to be admitted when the defendant "opened the door;" that is, when the defendant created "a misleading impression that requires correction with additional materials from the other side." The Court rejected that rule because the Sixth Amendment's text "'does not suggest any open-ended exceptions from the confrontation requirement to be developed by courts.'" ...
.... Yet that is what the State asks us to conclude: that the DNA evidence contained in the Crime Lab report "was reasonably necessary to correct [the] misleading impression" created by Thomas's expert's testimony that he did not see any defensive wounds or "signs of a struggle" on the victim. But adopting the State's position would defy Hemphill – something we cannot do. Accordingly, Thomas did not impliedly waive his Confrontation Clause right, and admitting testimony about the contents of the Crime Lab report without affording him the opportunity to confront its author violated the Sixth Amendment.
Nevertheless, the error was harmless, Dallet said.
Here, it is clear beyond a reasonable doubt that the admission of the DNA evidence did not contribute to the guilty verdict. To be sure, the DNA evidence was used as support for the State's theory that Thomas intended to kill the victim and, conversely, to rebut Thomas's theory that the death was accidental. And admittedly, the DNA evidence was somewhat useful in that regard as it bolstered the State's narrative that Thomas scratched the victim's face with his free hand while choking her to death. But the evidence wasn't necessary to support that theory since the State's case was already strong without it. The jury heard testimony from the medical examiner about injuries to the victim's face, neck, tongue, and lips, all of which were consistent with Thomas violently and intentionally strangling the victim. Additionally, the jury also heard from Thomas's neighbor, who awoke to a loud argument in the middle of the night and a woman screaming "[s]top, stop, I love you, I love you." She then heard a loud noise, furniture moving, and silence.
.... I agree with my colleagues that any alleged Confrontation Clause violation was harmless. But I do not join their analysis of the Confrontation Clause issues for two reasons.
First, it is unclear how to analyze and categorize the State's use of the report. In response to Thomas's postconviction motion and his appeal, the State argued the DNA evidence was used for impeachment purposes. However, in briefing and at argument before us, the State asserts, and Thomas agrees, that the DNA evidence was admitted for its truth during cross-examination. Justice Roggensack's opinion concludes that the DNA evidence was properly used to impeach the defense expert – relying on the parties' prior arguments. By contrast, Justice Dallet's opinion relies on the State's current representation, despite the fact that is not how this issue was litigated or represented below. This is unusual, to say the least, and forms a questionable foundation upon which to opine on these matters.
Second, the confrontation issues in this case are novel and factually complicated. They center on how to treat a report not admitted into evidence that is nonetheless reviewed by a testifying defense expert. May the contents of such a report be explored on cross-examination by the State? To what end? The United States Supreme Court, whose decisions we are principally applying in this area of law, has not addressed this question. With little guidance from the Supreme Court in this still emerging area of law, and because this case is sufficiently resolved on harmless error, I would not wade into these uncharted waters at this time.
Rather than forge our own path on the State's use of the evidence, or analyze a novel area of federal constitutional law where the United States Supreme Court has left much unaddressed, I would simply conclude the Confrontation Clause errors Thomas alleges, if they are errors at all, were harmless. Thomas is not entitled to a new trial and his convictions should be affirmed. I respectfully concur.
By Gretchen Schuldt
Legislators are proposing to change the school strip search law to make much of girls' breasts available for inspection while restricting school officials' ability to touch or look at certain body parts covered by underwear. Also pending: One bill to toughen the penalties for felon in possession of a firearm and another allowing traffic enforcement via cameras in Milwaukee.
A table showing the sponsors of each of the bills is at the bottom of this post.
Senate Bill 111/Assembly Bill 108 – Girls' breasts up for grabs in school strip-search proposal
The underwear-clad "private areas" of students' bodies would be off limits to searches by school officials, under a Republican-backed bill, but most of girls' breasts would be fair game.
It is now a misdemeanor for school officials or their agents to conduct strip searches of students. A strip search is "a search in which a person's genitals, pubic area, buttock, or anus, or a female person's breast, is uncovered and either is exposed to view or is touched by a person conducting the search."
The bill would change the prohibited conduct to searches in which a student's "private area" is uncovered and either is exposed to view or is touched by the searcher. "Private area" is defined as the "naked or underwear-clad genitalia, anus, buttocks, or female areola or nipple." The areola is the pigmented skin around the nipple.
The bill, according to its language, would leave the rest of the breast available for a strip search.
Senate Bill 106/Assembly Bill 58 – Minimum mandatory sentence for felon in possession
Some people convicted of felon in possession of a gun would face harsher penalties, including a mandatory minimum of five years in prison and a longer maximum prison sentence, under a bill pending in the state Legislature.
The Assembly's Criminal Justice and Public Safety Committee last week recommended approval of the bill by a 10-5 vote (see the table below).
The measure would impose the mandatory minimum of five years of incarceration and five years of supervised release on those previously convicted of a violent felony who are found guilty of felon in possession. It also would raise the maximum prison term for those people to 7½ years in prison and five years of supervised release.
The bill originally applied the five-year minimum to all people convicted of felon in possession, whether or not the previous felony was violent. The original bill also did not increase the maximum penalty.
Registering against the bill were the ACLU of Wisconsin and Wisconsin Gun Owners Inc. Registering in favor were the Badger State Sheriffs' Association, the Milwaukee Police Association, the National Rifle Association of America, and the Wisconsin Chiefs of Police Association.
Senate Bill 107/Assembly Bill 85 – Speeding and stop light camera enforcement in Milwaukee
Milwaukee could use cameras to ticket egregious speeders and stop signal violators, under a bill pending in the Legislature.
The bill also would allow the city to use cameras to identify those who "fail to stop properly" at red traffic signals.
Law enforcement is now not allowed to use radar plus photos to catch speeders. The bill would allow just Milwaukee to use those methods to ticket the owners of vehicles driven at least 20 mph over the speed limit.
It would not be a defense for owners ticketed through cameras to claim they were not driving the car at the time of the violation. Allowable defenses would include, according to the Legislative Reference Bureau summary of the bill,
The Milwaukee Police Department would receive any forfeitures collected through the use of the cameras.
Many of the same provisions, including allowable defenses, apply to the proposed use of red-light cameras. There is no provision for a 90-day period of issuing warnings rather than tickets, however.
The use of red-light cameras would be limited to high-crash areas and to no more than five intersections in any aldermanic district.
By Gretchen Schuldt
The definition of "serious harm" in a bill designed to impose cash bail on more people is so broad it encompasses "nearly all possible situations," a representative of the State Public Defender's Office told an Assembly committee recently.
"Serious harm" as defined in Assembly Bill 54 includes "personal physical pain or injury, illness, any impairment of physical condition, or death, including mental anguish or emotional harm."
The definition includes terms not found elsewhere in state law, said Adam Plotkin, SPD's legislative liaison.
"Personal pain" or "injury" "could be broadly and differently interpreted to mean that even minor pain could be considered grounds to set cash bail," he said.
Plotkin testified at a public hearing on the bill held before the Assembly's Judiciary Committee. The committee last week recommended recommended, 6-1, adoption of the bill.
The measure is a companion to a proposed amendment to the state constitution that voters will consider in the spring election. That proposed amendment, marketed as a "reform," would allow judges more discretion in determining who must post cash bail to be released from pre-trial custody.
The proposed amendment would require judges to consider four new factors when determining whether cash bail should be imposed. They are the seriousness of the alleged offense, whether there is a past conviction for a violent crime, the need to protect members of the public from serious harm, and the need to prevent the intimidation of witnesses.
The bill would define as "violent crimes" offenses such as criminal damage to property, criminal trespassing, disorderly conduct, or violation of an injunction, Plotkin said.
"These...seem to go well beyond the stated intent of the amendment of focusing on violent crimes," he said.
The definitions "undermine the presumption of innocence and present issues related to excessive bail under the 8th amendment," he said. " ‘Excessive’ isn’t just a high cash bail amount, it’s a sum total of the impact. A low-level charge combined with even a low level of cash bail amount that is prohibitive of release can be excessive."
Plotkin also warned of the impacts to the court system if the bill is adopted.
"This will increase the pretrial jail population and the number of people who have non-monetary conditions imposed," he said. "It will increase the number of speedy trial demands. Both of these changes will place a significant burden on an already overtaxed criminal justice system."
The Wisconsin Chiefs of Police Association testified in favor of the bill.
"As members of law enforcement, we have witnessed violent offenders who were released from custody before the reports of their crimes were even completed. We have also heard from victims of crimes, who ask us in fear of how they can remain safe when their attackers are already back out on the streets," the organization said in prepared testimony.
Registering in favor of the bill were Americans for Prosperity, the Milwaukee Police Association, the Wisconsin Chiefs of Police Association Inc., and the Wisconsin State Lodge Fraternal Order of Police.
Registering against the bill was the ACLU of Wisconsin.
By Gretchen Schuldt
Republican legislators are proposing to block from voting more people with felony records. The bill is heavily weighted against people struggling with poverty. Also introduced recently were more bills calling for new or harsher penalties.
The sponsors of the individual bills are shown in the table at the bottom of this post.
Senate Bill 69 /Assembly Bill 76 – Disenfranchising more people
A bill that would likely disenfranchise thousands of additional people convicted of felonies is garnering opposition from a variety of civil rights and voting organizations.
State law now restores voting rights to people with felony records after they complete their terms of incarceration and probation, parole, or extended supervision. The Republican-sponsored bill would require that a person with a felony conviction also "must have paid all fines, costs, fees, surcharges, and restitution, and have completed any court-ordered community service, imposed in connection with the crime," according to the Legislative Reference Bureau summary.
The bill also would require the state Elections Commission to notify those affected when their voting rights are restored. Currently, the Department of Corrections provides the notification.
All Voting Is Local Action, ACLU of Wisconsin, Common Cause in Wisconsin, Wisconsin Conservation Voters, and the Wisconsin Democracy Campaign have registered against the measure. The Democracy Campaign called it a "modern-day poll tax."
Senate Bill 72/Assembly Bill 78 – Increasing penalties for crimes against adults at risk
An "adult at risk" is defined in Wisconsin statute as "any adult who has a physical or mental condition that substantially impairs his or her ability to care for his or her needs and who has experienced, is currently experiencing, or is at risk of experiencing abuse, neglect, self-neglect, or financial exploitation."
This bill would increase the penalty for any second-degree sexual assault against an adult at risk from a maximum of 40 years in prison and/or a $100,000 fine to 60 years in prison.
The bill also would allow increased penalties for other crimes against adults at risk. If the penalty is a year or less in prison, it could be increased to two years. A maximum penalty of up to 10 years could be increased by four years, and a maximum of more than 10 years could be increased by up to six years. Penalties that now apply to physical abuse of an elder person would apply to abuse of an adult at risk.
All of the increased penalties would apply whether or not the perpetrator knew the victim was an adult at risk.
The bill also would allow freezing the assets of a person accused of a financial crime against a person at risk. Assets worth the full amount of the amount at issue could be subject to the freeze "for purposes of preserving the property for future payment of restitution to the crime victim."
The bill also would allow an adult at risk seeking certain types of restraining orders to appear in court by phone or by audiovisual means rather than in person.
Senate Bill 73/Assembly Bill 79 – Prostitution surcharge
Judges would impose a $5,000 surcharge on people convicted of patronizing or soliciting prostitutes, pandering, or keeping a place of prostitution, under this bill. The money would be used for treatment and services for sex-trafficking victims and for law enforcement related to internet crimes against children. The bill does not indicate how the money would be divided between those categories.
Senate Bill 101/Assembly Bill 68 – Higher penalty for drug-induced homicide
The Assembly's Criminal Justice and Public Safety Committee has recommended approval of this bill, which would raise from 40 years to 60 years the maximum prison time for making or supplying certain drugs that lead to the death of another person (known as the "Len Bias" law). The vote was 13-2, as follows:
By Amy Rabideau Silvers
I am a Menominee Indian. That is who I was born and how I have lived. I am tall like the trees that blanket my reservation in northern Wisconsin, and my skin is brown like their bark. Although I have not lived there in years, my roots grow deep in that rocky soil. That soil has anchored me during tumultuous times. I have roots elsewhere—geographically, ancestrally, and intellectually—and they too produced and nurtured the person I have become. But my taproot is Menominee.
Ada Deer began her memoir — Making a Difference/My Fight for Native Rights — with those words. Now 87 and living in the Madison area, she is most proud of helping to restore tribal status and rights for her people, and helping other tribes.
As a girl and young woman, Deer saw her mother, Constance “Connie” Wood Deer, fight congressional efforts to terminate the Menominee tribe and end its historic relationship with the federal government. The Menominee, poor but with rich timber resources, were considered a prime candidate for the new policy called termination.
“Termination sought to end federal supervision, dissolve reservations, and assimilate individual Indians into the American mainstream,” Ada Deer wrote. “Termination involved abolishing tribal governments, allotting tribal land to individuals, removing the protections of trust status, closing the tribal rolls, and divesting of tribal resources.”
Despite a flawed vote and later challenges, the Menominee Termination Act was passed by Congress and signed by President Dwight Eisenhower in 1954. Termination was set for 1958, with the date later delayed until 1961, when it became a reality.
Deer remembers the shock of realizing that, legally, she and her people were no longer members of a federally recognized tribe.
“One day we were Indian, and one day we were not,” Deer said, speaking in an interview with the Wisconsin Justice Initiative. “People did not understand what termination was. It was a cultural, economic and political disaster.”
“We thought of ourselves as an Indian tribe and as Menominee people, but Congress had taken away our status as Indians without informed consent,” she wrote in her memoir. “Termination left Menominees wondering who they were. It was a period of confusion, despair, and frustration.”
In anticipation of termination, the state created Menominee County from the former Menominee Reservation land.
After termination, complicated legal arrangements meant families that had long lived on reservation land — land held in common by the tribe — had to buy their homes and pay taxes. Many lost their homes. Many jobs at the tribe’s lumber mill were cut, with new supervision geared toward profit-making, not sustaining the forest and its people. That forced families to leave what had been Menominee land. Against the wishes of many tribal members, a legal trust began working with a development company, building homes and selling land to nontribal members.
In some ways, legal termination and its ramifications were not unlike other troubling chapters of Menominee history. In the 19th century, the federal government tried to force the tribe to move farther west. Chief Oshkosh refused, finally signing a treaty in 1854 that guaranteed the tribe’s right to Wisconsin reservation land. Decades later, Menominee leaders rejected the idea of allotment, which called for individual plots of land, instead insisting on the right to hold their land in common.
Other policies born of prejudice brought their own social consequences and suffering. Joe Deer, Ada’s father, was a student at a Catholic boarding school, where children were punished for speaking their native language or using their Indian names.
Ada Deer grew up mostly on the reservation, the oldest of five children born to Joe and Connie Deer. The family lived in a log cabin on the bank of the beautiful Wolf River. They did not have indoor plumbing, electricity or a telephone. Joe worked at the tribal lumber mill, also hunting and fishing for his family.
Her mother, a white woman, was a nurse who came from a well-to-do Philadelphia family with Quaker roots. While never a member of the Menominee tribe, she was an outspoken rabble-rouser who lived most of her life on the reservation. She took her young children to the meetings where the daily life of the tribe and later its fate were debated.
“She was a leader and she was a fighter,” said Deer.
“You were put on this earth for a purpose,” Deer’s mother would tell her. “You are here to help people. You are here to help your people.”
Finding her purpose
To do that, Deer decided she needed all the education she could get. In 1957, she earned a bachelor’s degree in social work, the first Menominee to graduate from the University of Wisconsin-Madison. She next went to Columbia University, becoming the first American Indian to earn a master’s in social work.
Deer loved social work but later felt drawn to make a difference on a more macro policy scale, especially for her people and other Indian tribes. She began law school at UW-Madison but soon decided that the problem of termination was more important. She listened and learned at gatherings of Menominee people.
“It struck my heart that we could lose our land, and it all came together what it meant,” she told WJI. “People were suffering. People were dying. There was no medical care.”
In interviews and her memoir, Deer said that around 1970 she reached out to Joseph Preloznik, director of Wisconsin Judicare, previously involved in tribal legal issues. In meetings with Preloznik, she realized that if the situation was created by an act of Congress, a law was needed to “uncreate” the problem.
“We have to change this,” she declared. “What can we do?”
“You have to get a law through Congress,” replied Preloznik.
For Deer, her people’s difficulties suddenly had a path to a different kind of future. Preloznik also joined meetings with Menominee people. Listening sessions included tribal people living in Milwaukee and Chicago, and they led to the creation of a grassroots group called DRUMS, short for Determination of Rights and Unity for Menominee Shareholders, the name proposed by Deer’s sister.
Deer suggested the word restoration for the new concept of reversing termination.
DRUMS received assistance from the Native American Rights Fund, which assigned attorneys Charles Wilkinson and Yvonne Knight to the case. And when the tribe needed someone to live and lobby in Washington, Deer agreed to represent her people.
Supporters came to include Sens. Gaylord Nelson and William Proxmire from Wisconsin, and Sen. Ted Kennedy.
As a lobbyist, Deer took advantage of any opportunity to talk restoration legislation. Once while on an airplane flight, she spotted John Conyers Jr., a Michigan congressman and a founder of the Congressional Black Caucus. She strode up to his first-class seat, introducing herself and the subject of tribal restoration.
“I’m working on the repeal of termination,” Deer told him. “This is the Menominee Restoration Act, and it is as important to Menominees and to Indians nationwide as Brown v. Board of Education was to you.”
“Come to my office,” he replied. The Black Caucus joined the bill, which gained near unanimous support in both houses.
A legal victory — and historic first
Almost 20 years after Congress voted for termination, the Menominee tribe was officially reborn. The Menominee Restoration Act was signed into law by President Richard Nixon on December 22, 1973.
“The Menominee Restoration Act was the first time that a tribe’s legal status was restored after being terminated,” said NARF attorney Wilkinson, speaking to the Wisconsin Justice Initiative.
While many were involved, Deer is considered the driving force behind the success.
“Ada was the leader,” Wilkinson wrote in the foreword to Deer’s memoir. “The adoption of the Menominee Restoration Act announced the end of termination and the beginning of the tribal self-determination era. Without question, the single most important person in this transition was Ada Deer.”
Deer was elected the first woman to chair the tribe, serving from 1974 to 1976, helping her people chart a new course and reestablish relations with federal, state and neighboring governments.
Deer served in other roles during her working life, including as a lecturer with the American Indian Studies program and the School of Social Work at UW-Madison, returning to serve as American Indian Studies director.
Called to service in Washington
In 1993, appointed by President Bill Clinton, she became the first American Indian woman to direct the Bureau of Indian Affairs. On her watch, the federal government established government-to-government relationships with 226 Alaska Native villages and tribes, expanded self-governance to many other tribes, and approved the recognition of four tribes.
She recalled in her memoir how, during a Senate Appropriations Committee hearing, Sen. Slade Gorton, a Republican from Washington state, asked her how long these welfare payments to Indians were going to continue.
“Excuse me, Senator,” Deer replied. “These are not welfare payments. As you know, this country was built on Indian land with Indian resources, and treaties lay out the nation’s obligations to Indians, and treaties are the supreme law of the land. These are permanent obligations and will continue.”
“I could hear the air being sucked out of the room,” she wrote. Connie Deer’s daughter was not going to let the welfare myth go unchallenged.
In the case of the Menominee, tribal homeland once encompassed 10 million acres. Twentieth century descendants had fought to restore the tribe’s claim to some 235,000 mostly forested acres.
“Few individuals have had as profound an impact on U.S. Indian policy as Ada has had,” wrote Theda Perdue, the historian and friend who, says Deer, co-authored the memoir.
Running like a Deer
Deer also ran for public office, twice for Wisconsin secretary of state, as well as for Congress against then-State Rep. David Clarenbach (the subject of another WJI Unsung Hero feature and someone she described as “a good guy”) in the 1992 Democratic primary. She beat Clarenbach but lost in the general election.
Her campaign slogan was “Nothing Runs Like a Deer.” When the John Deere company threatened to sue, the campaign said go ahead. Company officials apparently reconsidered how it would all look because no lawsuit materialized.
More recently, she served as a consultant on the American Indian exhibit at Chicago’s Field Museum. While no longer as active, Deer remains interested in social issues, including mass incarceration, adequate substance abuse treatment, and protecting the environment. Education and involvement, she said, remain the true paths to social justice and change.
“There are many opportunities to serve,” said Deer. “I want everyone to get a decent education and get involved, depending on their interests. And vote. I think every citizen should vote, and it should be an informed vote. We should appreciate our country and all that it offers.”
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