By Gretchen Schuldt

​What a busy April! Elections, Easter, spring vacations! All this means we fell behind with our legislative updates, so we are catching up.
                                                                                 
The Parole Commission would be required to make public information about the cases it considers and what happens to them, under a bill approved, 77-20, by the Assembly.

The commission also would be required to publicly publish statistical reports and the guidance documents it uses when considering parole applications.

All of the representatives voting against the bill were Democrats. In addition, 15 Democrats joined the Republicans to vote in favor of the bill. A chart showing individual votes is at the bottom of this post.

Issues involving the commission, "including a lack of transparency and accountability,...create a serious threat to public safety," Rep. John Spiros (R-Marshfield) said in public testimony. The commission paroled a person in 2022 without notifying the victim's family, a violation of law and the Marsy's Law victim's rights amendment to the state constitution, he said. When legislators requested information from DOC and the Parole Commission, they got different responses or were ignored.

"They do not value transparency or respect state law, and their public notices do not list individuals whose applications are to be heard, something which is standard practice for the Governor's Pardon Board," Spiros said. "The Parole Commission's meeting minutes do not Include statutorily required votes to enter Into closed session, and the Commission often fails to notify victims' families of upcoming parole hearings. Additionally, neither DOC nor the Parole Commission provide any statistics on who is being paroled."

Opponents of the bill did not speak during discussion on the Assembly floor last month. The bill, Assembly Bill 47, is pending in the Senate.

​The Assembly approved Assembly Bill 57, which would require prosecutors to seek permission from judges to dismiss certain charges against defendants, even if a prosecutor learns the defendant is innocent of the charge or believes the evidence does not support the charge.

The bill would also prohibit prosecutors from offering deferred prosecution agreements to individuals charged or who could possibly be charged with certain crimes. 

The vote was 62-35. All Republicans supported the measure. All Democrats opposed it.

For more information on the bill, check out WJI's previous post here. That bill, too, is pending in the Senate.

Finally, the Assembly approved, 62-35, a bill establishing a mandatory minimum prison term for people convicted of felon-in-possession of a firearm if they previously have been convicted of a violent felony. The original bill, Assembly Bill 58, would have mandated a bifurcated sentence that includes at least five years of initial confinement if there was a prior history of any felony conviction. An amendment, however, increases the maximum penalty from five years years in prison and five years of supervised release to a total of to 12½ years, and allows an incarceration period of up to 7½ years followed by five years of supervised release. The five-year mandatory-minimum provision and the amendment would both apply only to those whose previous records include "violent felony" convictions.

A bill that would establish much tougher sentences for those convicted of making or supplying certain drugs that lead to the death of another person (known as the "Len Bias" law) was approved by the Senate.  The maximum prison term under the bill would increase from 40 years to 60 years. The vote on Senate Bill 101 was 28-3. 

The Senate last week gave final approval to a bill doubling many penalties for reckless driving. 

The Senate vote was 30-2, with only Sens. Chris Larson (D-Milwaukee) and Diane Hesslebein (D-Middleton) voting against it. The Assembly approved the bill, 85-12, last month.

Some aspects of the bill, Assembly Bill 55, will affect few people. WJI previously reported on the bill's contents and impacts here. 

Both houses have approved a bill toughening penalties for carjacking, increasing the maximum prison penalty by 20 years, from 40 years to 60 years. The bill, Senate Bill 76, also would create a separate carjacking offense. That bill was approved by the Senate in March on a 23-8 vote. It was approved last week in the Assembly, 80-18.

The bills now await final action by Gov. Evers. Earlier this month, Evers signed a bill allowing local governments to adopt ordinances authorizing police to impound a reckless driver's vehicle if the driver owns the vehicle, has a prior reckless driving citation, and has not fully paid the forfeiture for that offense. The measure is now 2023 Act 1.

The upshot

​Citation Partners, LLC owns an aircraft which it leases to third parties, the Lessees. As part of the total amount the Lessees pay to lease the aircraft, Citation Partners charges per-flight-hour rates for aircraft repairs and engine maintenance. Those rates correspond to the amount Citation Partners spends on aircraft repairs and engine maintenance. Citation Partners argues that this portion of the lease payment is tax exempt because it is a sale of aircraft parts or maintenance. We disagree. The per-flight-hour charges for aircraft repairs and engine maintenance are taxable because they are part of the total amount of consideration the Lessees pay to lease Citation Partners' aircraft. We therefore affirm the court of appeals' decision. 

Background

​Citation Partners owns an aircraft that it leases to the Lessees. The Lessees signed a contract called the Aircraft Dry Lease, defining the responsibilities they and Citation Partners have with regard to the lease of the aircraft. The Dry Lease requires the Lessees to notify Citation Partners if the aircraft needs repairs or maintenance. If so, Citation Partners is responsible for scheduling and paying for all repairs or maintenance. It does not perform any of the repairs or maintenance itself. ​

In addition to the Dry Lease, the Lessees entered into a Side Agreement with Citation Partners that sets forth the financial terms for the lease of the aircraft. The Side Agreement includes costs-per-flight-hour that Citation Partners charges the Lessees for aircraft repairs and engine maintenance. Those charges are substantially similar to the amount Citation Partners spends when it purchases aircraft repairs and engine maintenance directly from vendors. 

In 2013, the Legislature passed Wisconsin Act 185, which expanded an existing sales tax exemption to include the sale of aircraft parts or maintenance. After the Act took effect, Citation Partners stopped collecting sales tax on the amounts it charged Lessees for aircraft repairs and engine maintenance. In 2017, the Wisconsin Department of Revenue notified Citation Partners that unpaid sales taxes were due on those amounts. 

Citation Partners appealed and won in Dodge County Circuit Court before Circuit Judge Martin J. De Vries, but the Court of Appeals reversed that decision, meaning Citation Partners was on the hook for the taxes again.

The guts
​
State statutes together state that the total amount of consideration paid for a lease – the "sales price" – is taxable, with no deduction for the lessor's costs.

                                                                                                         ***

The sum of those (per-hour flight) costs – including for aircraft repair and engine maintenance – is thus "the total amount of consideration . . . for which [the aircraft is] . . . leased" and is therefore taxable. If there were any doubt remaining as to whether Citation Partners' costs for aircraft repairs and engine maintenance can be deducted from the sales price, § 77.51(15b)(a) confirms that the "total amount of consideration" must be calculated "without any deduction" for Citation Partners' costs. 

Citation Partners argues that the payments are not taxable because they are not consideration at all. That is because, in its view, Citation Partners simply hands the money the Lessees pay for repairs and maintenance over to the vendors that provide those services. But consideration is "any act of the plaintiff from which the defendant . . . derives a benefit or advantage." And Citation Partners clearly benefits from these payments by passing along to its Lessees the costs of maintaining its aircraft. For that reason, these payments are – by definition – consideration. Additionally, accepting Citation Partners' argument that it receives no consideration from the Lessees' payments for aircraft repairs and engine maintenance simply because that payment corresponds to anticipated repair costs would render part of (the statute) meaningless. After all, if Citation Partners is right, it is not clear what (the law) means when it says that the "sales price" – the "total amount of consideration" – is calculated "without any deduction" for Citation Partners' costs. 

Citation Partners claims that the costs-per-flight-hour that it receives for aircraft parts and engine maintenance are nevertheless tax exempt. It points to two statutory exemptions related to aircraft: Wis. Stat. § 77.54(5)(a)3., which exempts the sale of "parts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10., which exempts the sale of "repair, service, . . . and maintenance of any aircraft or aircraft parts." Citation Partners argues that since the plain language of both exemptions covers the costs of aircraft repairs and engine maintenance, then "the reimbursement payments that Citation Partners receives from the Lessees are exempt from sales tax."  

We disagree because neither of these statutory exemptions applies to the payments Citation Partners receives from the Lessees. Simply put, Citation Partners does not sell its Lessees "parts used to modify or repair aircraft," or "repair, service, . . . and maintenance of any aircraft." It leases its aircraft to the Lessees. And as explained previously, the statutes already make clear that the total amount of consideration paid on an aircraft lease is taxable without any deduction for the Lessor's costs. When Citation Partners (or the Lessees for that matter) buy aircraft repairs or engine maintenance directly, those transactions are tax-exempt. But when Citation Partners passes those costs along to its customers as part of the total amount of consideration in a lease, that transaction is taxable. 

                                                                                                         ***

Citation Partners tries to circumvent the plain language of the statutes by arguing that it is the Lessees' agent when it purchases aircraft repairs and engine maintenance. And for that reason, the per-flight-hour reimbursements for aircraft repairs and engine maintenance are akin to the Lessees purchasing those repairs and maintenance directly.

An agency relationship is a "fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control." ...

Citation Partners relies on the lease documents as "provid[ing] the framework for the agency relationship." It points out that the Dry Lease makes the Lessees responsible for "inspect[ing] the Aircraft" and notifying Citation Partners if "any repair or maintenance should be completed." Additionally, the Dry Lease contains an indemnification provision under which the Lessees are "ultimately responsible for all obligations, expenses and disbursements asserted against Citation Partners arising out of the operation of the Aircraft."  

Rather than prove an agency relationship exists, the lease documents reveal the opposite. The Dry Lease states that Citation Partners – not the Lessees – "shall schedule and pay for all repairs and maintenance." And that decision is not "directed" by the Lessees just because they must notify Citation Partners of necessary maintenance upon inspection of the aircraft. Rather, the Lessees' inspection obligation is limited to confirming that the aircraft is flightworthy before using it. Likewise, under the Dry Lease, the Lessees have only limited authority to purchase repairs and maintenance up to $5,000, and are reimbursed by Citation Partners if they do so. Additionally, although the parties entered into a new Side Agreement in 2015 which states that the Lessees are "responsible for fixed and indirect operating expenses and charges attributable to the operation and maintenance of the Aircraft," including "[s]cheduled and unscheduled maintenance," nothing in that Agreement or the Dry Lease suggests that the Lessees control Citation Partners' aircraft-maintenance activities. 

                                                                                                         ***
​
​Wisconsin imposes a five percent sales tax on the sale or lease of tangible personal property like Citation Partners' aircraft. The tax applies to the total "sales price" of the lease unless there is an applicable exemption. Two such exemptions exist for the sale of aircraft parts and maintenance, but neither apply to the Lessees' payments to Citation Partners for aircraft repairs and engine maintenance. Accordingly, we hold that the total amount of consideration the Lessees pay to lease Citation Partners' aircraft is taxable, and affirm the court of appeals' decision.

Dissent 

The majority opinion never interprets §§ 77.52(2)(a)10. or 77.54(5)(a)3, (see Dallet's opinion above for her reasoning rejecting the application of these exemptions) which address aircraft repairs and aircraft parts. It skips over the plain meaning of those two statutes, and instead, it interprets Wis. Stat. §§ 77.51(15b)(a) and 77.52(1)(a), neither of which contains the word, "aircraft," nor does either statute mention aircraft parts or aircraft maintenance. ...

The plain meaning of those statutes grants Citation Partners the sales tax exemption it seeks. Because the majority opinion chooses to follow the error-strewn path of the Tax Appeals Commission (TAC), which contravenes the clear statutory direction to exempt the sales price of aircraft parts and aircraft maintenance from state sales taxes, I respectfully dissent. 

                                                                                                         ***
​
Section 77.52(2)(a)10. is broadly stated. The statute applies to "any aircraft or aircraft parts." (Emphasis added.) There is no statutory limitation on the statute's use that refers to whether the "selling, licensing, performing or furnishing" of aircraft parts or services are set out in a written agreement or performed without a written agreement. There is no limitation on whether the person responsible for that financial obligation pays the vendor directly or pays another who has paid the vendor on that person's behalf. 

                                                                                                         ***

In this matter, we are concerned about how TAC's factual findings affected its decision not to apply Wis. Stat. §§ 77.52(2)(a)10. and 77.54(5)(a)3. to the transaction under review here. As explained below, I conclude that the TAC's material factual findings that underlie its legal conclusion are not supported by substantial evidence, and therefore, TAC's decision must be set aside.

                                                                                                         ***

(U)nder the Side Agreement, the lessees are obligated to pay for repairs and maintenance of the aircraft. Therefore, Citation Partners is being reimbursed under the Side Agreement for obligations of the lessees that it paid on their behalves. 

In addition to its misreading of record exhibits, the TAC ignores the Stipulation of Facts that the parties jointly submitted. That stipulation in paragraph 3 states, "the Side Agreements and invoices to lessees expressly provided for dollar for dollar reimbursement by each of the lessees of the Aircraft of both engine maintenance cost and Aircraft maintenance cost." Notwithstanding that factual stipulation the TAC says, "That starting point, reimbursement, presupposes that each Lessee was obligated to pay for repair and maintenance such that the Lessor, in effect, paid the expenses on behalf of the Lessees. That is not what happens under these Agreements." However, reimbursement from the lessees for expenses that Citation Partners paid for the lessees is exactly what the parties represented in the Factual Stipulation that they provided to TAC, as well as under other record exhibits.

Accordingly, TAC's material factual findings are not supported by substantial evidence, and they must be set aside based on documents in the record and the Stipulation of Facts that the parties provided to the TAC. 

TAC's legal conclusions are grounded in its erroneous factual findings. As with the majority opinion, the TAC does not interpret the statutes that are at issue here. Instead, it interprets Wis. Stat. § 77.51(15b)(a), which does not mention aircraft maintenance, aircraft parts or aircraft in any regard. Nevertheless, TAC concludes that "expenditures for those repairs and maintenance parts and services are not separately exempt when incorporated into the lease payments of a subsequent lease of the entire Aircraft."

Rather, it is Wis. Stat. § 77.54(5)(a)3. that creates an "exemption" for the "sales price" of "[p]arts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10. that sets sales of "repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection and maintenance of any aircraft or aircraft parts" outside the scope of state sales taxes. Nothing in either statute changes those exemptions when an aircraft is leased. Stated otherwise, there is nothing in either statute that limits its use when obligations to pay for aircraft maintenance and parts are incurred pursuant to written documents rather than directly to the vendors.

                                                                                                         ***

Rather, it is Wis. Stat. § 77.54(5)(a)3. that creates an "exemption" for the "sales price" of "[p]arts used to modify or repair aircraft," and Wis. Stat. § 77.52(2)(a)10. that sets sales of "repair, service, alteration, fitting, cleaning, painting, coating, towing, inspection and maintenance of any aircraft or aircraft parts" outside the scope of state sales taxes. Nothing in either statute changes those exemptions when an aircraft is leased. Stated otherwise, there is nothing in either statute that limits its use when obligations to pay for aircraft maintenance and parts are incurred pursuant to written documents rather than directly to the vendors.

While Robert “Fighting Bob” La Follette may now be the more familiar name to Wisconsin ears, his wife should be regarded as an equally remarkable person in Wisconsin law and progressive politics.
 
Her name was Belle Case La Follette. In 1885, she became the first woman to graduate from the University of Wisconsin Law School, starting law school after she was already a wife and mother.
 
She earlier helped husband Bob with his studies and then with legal briefs, including one brief in the 1890s “that broke new legal ground and won his case before the state’s supreme court,” according to an article by historian Nancy Unger in the Wisconsin Historical Society’s Wisconsin Magazine of History.
 
“Justice William P. Lyon complimented Bob on the brief,” Unger explained, speaking in an interview with the Wisconsin Justice Initiative. Bob La Follette proudly and matter-of-factly told the court that his wife had written it.
 
Belle La Follette never formally practiced law, but she practiced plenty of activism. She wrote, lectured and agitated for progressive causes, including women’s suffrage, child labor reform and racial justice. In 1909, her husband began La Follette’s Weekly, later La Follette’s Magazine and now The Progressive. Belle La Follette served as its first editor and as columnist, expanding the boundaries of what was considered appropriate for women readers. Her writing was nationally syndicated as brief “Thought for the Day” articles in newspapers in 20 states.
 
“She was a tremendous voice for women’s suffrage,” Unger says. “She was instrumental in women getting the vote and changing minds.”
 
In 1912, that included testifying before the U.S. Senate Committee on Women’s Suffrage, where she declared that suffrage was “a simple matter of common sense.”
 
“You know how Lincoln defined government at Gettysburg. ‘Ours is a government of the people, by the people, and for the people,’” she said. “And are not women people?”
 
That same year, she went on one of her barnstorming tours for suffrage, giving 31 speeches in 12 days across 14 Wisconsin counties. In 1914, she spoke for 63 consecutive days in states including Pennsylvania, Ohio, Indiana and Michigan.

Belle La Follette and friends listened from the Senate gallery as the Nineteenth Amendment was approved on June 4, 1919.
 
Her next action was likely one of the reasons that Wisconsin became the first state to officially ratify on June 10, 1919. She sent telegrams to representatives back home with the news. Once ratified, then-Sen. Bob La Follette announced Wisconsin’s vote and had it read into the Congressional Record. (For the record, Illinois technically passed a resolution first, but that was found to be invalid.)
 
“And it was no mere state pride that caused me to thrill with joy when Mr. La Follette made the announcement in the Senate,” she later wrote in La Follette’s Magazine. “It was the conviction that a great service had been rendered. With Wisconsin as an example—an object lesson—ratifying so speedily, almost unanimously, the opposition was beaten at the very beginning of the race—left dashed and hopeless at the very start!”
 
The Nineteenth Amendment became law in 1920.

“And now the 17 million women of the United States are fully enfranchised,” Belle La Follette wrote in celebration. “… For the first time in American history, women may vote in every state in the Union for candidates for all offices ... and women may hold any office now held by men, whether appointive or elective.”

The new constitutional amendment meant that the University of Wisconsin’s first female law graduate could finally vote. She was 61.

A progressive family tree
 
Belle Case was born in 1859 in Summit, Wisconsin, the daughter of Anson and Mary Nesbit Case, and grew up in Baraboo. Her mother was moved by a lecture on women’s suffrage and spoke to her children about such matters. Her parents valued education, including for their only daughter. An eager and brilliant student, Belle was accepted at the University of Wisconsin, which was where she caught the eye and heart of a student named Bob.
 
After graduation, she taught for two years before agreeing to marry in 1881. At Belle Case’s request, the Unitarian minister omitted the word obey from their marriage vows.​

They were true partners in life and progressive politics. During his long career, her husband served as Dane County district attorney, congressman, private attorney, three-time governor of Wisconsin, and U.S. senator, as well as founder of La Follette’s Weekly and as a Progressive Party presidential candidate. Belle La Follette is credited with some measure of his success, sharing her progressive arguments, legal skills and political savvy through the years.
 
She was, Bob La Follette declared in his autobiography, his “wisest and best counsellor.” He also spoke of “when we were governor.”
 
“And though she did not enjoy all of the trappings that came with being a politician’s wife (she particularly hated Washington small talk), she saw great value in women becoming politically aware,” according to Unger, a professor at Santa Clara University, who has written extensively about the La Follettes, including two books that received Book of Merit Awards by the Wisconsin Historical Society. “She urged all women to recognize that the problems they thought of as personal were in fact political and therefore required women’s political activism.”
 
After her husband’s death in 1925, La Follette was asked to finish his term in the U.S. Senate, which would have made her the first woman to actually serve as senator. (Rebecca Latimer Felton, 87, of Georgia, was sworn in as a member of the Senate in 1922. She served just one day. No woman would be elected until 1932.)
 
La Follette declined and son Robert La Follette Jr. ran instead. For the ever-practical and political Belle, it made sense to have someone younger take up the family’s progressive banner. Robert Jr. served more than 20 years in the Senate; another son, Phil, was elected Wisconsin governor three times.
 
She also encouraged her daughter-in-law, Isabel “Isen” Bacon La Follette, to give her opinion of a draft platform by husband Phil as he began running for governor, according to an article by historian Bernard A. Weisberger in the Wisconsin Magazine of History. Belle La Follette did not buy Isen’s argument that she knew nothing of politics.
 
“You are an intelligent woman,” Belle La Follette told Isen. “If what Phil writes doesn’t appeal to you, rest assured it will not appeal to others.”
 
True to her convictions
 
La Follette continued her writing and speaking, advocating on a wide variety of issues for the rest of her life. For reasons of health and comfort, she gave up corsets and stays and told other women they should, too. She believed in exercise for all, including women. Women should not, La Follette contended, have to change their names when they marry.
 
She decried racial injustice, speaking before and in support of Black communities and making headlines for it. “She Defends Negroes—Wife of Senator La Follette Denounces Segregation—Says U.S. Government Errs,” read a 1914 front-page story in The Washington Post.
 
“It seems strange,” she once wrote, “that the very ones who consider it a hardship to sit next [to] a colored person in a streetcar, entrust their children to colored nurses, and eat food prepared by colored hands.”
 
Civil rights activist Nannie Helen Burroughs introduced her as “the successor of Harriet Beecher Stowe.” La Follette also supported rights and respect for American Indians.
 
La Follette especially deplored violence in all forms, from corporal punishment for children to capital punishment for crime. She was a founder of the Women’s Peace Party, which later became the Women’s International League for Peace and Freedom. Former President Theodore Roosevelt was outraged by its public stance, writing a scathing assessment of the WPP and calling it cowardly and foolish. Unger tells what happens next.
 
“Belle La Follette fired back in La Follette’s Magazine that Roosevelt assumed ‘that War is the only means of settling international differences and moreover that War is bound to settle them right. … History demonstrates that [even] imperfect and temporary plans of mediation, conciliation, and arbitration have been more effective than war in securing justice ….’”
 
“Was Christ cowardly? How long did the agitation against human slavery last before it was abolished?” La Follette wrote.

​A legacy hailed and then long forgotten
 
Belle La Follette died in 1931. She was 72. She rated obituaries in newspapers across the country, including The New York Times, which called her perhaps “the most influential of all American women who have had to do with public affairs in this country.”
 
Mostly, though, her life was told through the lens of “the little woman behind the great man,” according to Unger. “Only a few go so far as to recognize her as an important reformer in her own right.”
 
In 1993, the State Bar of Wisconsin’s charitable arm, the Wisconsin Law Foundation, began its Belle Case La Follette Awards in recognition of her accomplishments. The annual awards now honor three bar members working in Wisconsin and representing underserved populations, one each from the UW Law School, Marquette University Law School and an out-of-state law school, said Joe Forward, communications director for the State Bar.
 
La Follette was, at heart, a bit of a homebody and somewhat shy, but she believed in standing up and speaking out, something she thought all citizens should do. Perhaps more than her politician husband could, she claimed a measure of greater freedom in pushing progressive ideas, says Unger.
 
“She’s a bit like Eleanor Roosevelt,” Unger says. “She wielded tremendous influence as a journalist and public speaker, and the nation improved because she did. She didn’t pull any punches in her sweet ladylike way.” 
 ​

This project is supported by grants from

By Gretchen Schuldt
​
The story of a state prison inmate's inability to keep a Bible because it cost more than $75 was the centerpiece of a successful effort to convince a Senate committee to recommend raising the value of personal goods that incarcerated people are allowed to have.

The current limit for personal property is $75, plus $350 for electronics and musical instruments. The bill would increase the amounts to $150 for personal property while maintaining the $350 electronics/instruments limit. Those limits were set in 1994 and have not been updated since, according to State Sen. Jesse James (R-Altoona), author of the bill, Senate Bill 21.

The low personal property limit left Craig Seefeldt, incarcerated at Kettle Moraine Correctional Institution, without a Bible after prison officials refused to let him have the one his mother bought for him. It was a study Bible, leather-bound with maps, footnotes, and cross-references and it was recommended by Craig Seefeldt's pastor.

The catch: The Bible cost $105, State Rep. Paul Tittl (R-Manitowoc) told the Senate's Judiciary and Public Safety Committee last month. Tittl is Assembly co-author of the measure.

Prison officials refused to let Seefeldt have the Bible. "Furthermore, instead of returning it back to the constituent, prison staff disposed of the Bible," Tittl said.

"At the end of the day, Wisconsin’s prison system should be about rehabilitation, reform, and justice," James told the committee. "Sadly, this is just another example of government failing to keep up with the times, and, as a result, denying inmates the ability to change and grow into better citizens." 

Tittl said he discussed the issue with Department of Corrections Secretary Kevin Carr as far back as early 2019 "so you may have heard the department has been working on it. I have appreciated their efforts, but I think it’s time for us to step in and do the right thing."

Carr, in testimony, said DOC is working on revisions to the state Administrative Code to increase property value limits to align with the overall increased costs of living. Revising the code rather than enacting a statute "allows us greater flexibility for any future changes that may be needed," he said.

The committee unanimously endorsed the measure and the full Senate adopted it without a roll call. It is pending in the Assembly. The committee vote is shown below.

By Gretchen Schuldt

A bill implementing a constitutional amendment allowing judges to consider more factors in deciding whether to hold people accused of crimes in jail on cash bail was signed into law last week by Gov. Evers.

The amendment to the state constitution, approved by voters last week, and the implementation law likely will result in more presumed-innocent poor people being held in jail, while wealthier people are free while their cases are pending.

The implementation bill was approved, 67-30, in the Assembly and 21-10 in the Senate. A full tally of the votes is shown in the chart at the bottom of this post.

WJI President Craig Johnson noted the probable outcome during his public testimony on the bail amendment. "We cannot have a two-tiered justice system – one for the rich, and one for the rest of us," he said.

​And Adam Plotkin, legislative liaison for the State Public Defender's Office, warned last month that the implementation bill defines a key term so broadly it encompasses "nearly all possible situations." 

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.

Despite those cautions and others like them, Evers signed the bill last week after voters approved the state constitution amendment relaxing the standards for cash bail. The amendment did not define key terms; the bills Evers signed did that.

“The people of Wisconsin approved a companion constitutional amendment to change our state’s bail policies, and while I’m signing this bill today consistent with the will of the people, I also want to be clear that these changes alone will not solve the challenges facing our justice system,” he said.

Evers called on the Legislature to "join me in supporting evidence-based solutions that respect and protect victims and survivors, reduce recidivism, bolster our justice system workforce, and ensure our communities have the resources they need to invest in public safety services, including police, fire, and EMS.”  

Previously, cash bail was to be set only to ensure defendants in criminal cases, still presumed innocent, showed up in court. Now, under the constitutional amendment, it can be set any time a person is accused of a violent crime as set by the legislature, taking into account

• whether the accused has a previous conviction for a violent crime;
• the need to protect the community from serious harm as defined by the Legislature;
• the probability the accused will fail to appear in court;
• the need to prevent the intimidation of witnesses; and
• the potential affirmative defenses of the accused. ​​

Under the bill, "serious harm" is defined as "1) personal physical pain or injury, illness, any impairment of physical condition, or death, including mental anguish or emotional harm attendant to the personal physical pain or injury, illness, or death; 2) damage to property over $2,500 in value; or 3) economic loss over $2,500 in value," according to the Legislative Reference Bureau. 

The definition of "violent crime" is defined only by statute number in the bill. The LRB said it includes "crimes such as homicide, aggravated and special circumstances battery, mayhem, sexual assault, false imprisonment, human trafficking, taking of hostages, kidnapping, stalking, disarming a police officer, arson, felony burglary, and carjacking; crimes to which a domestic abuse or dangerous weapon penalty enhancer may be applied; the violation of a domestic abuse, child abuse, or harassment injunction; or the solicitation, conspiracy, or attempt to commit a Class A felony."

Class A felonies are the most serious type.

An amendment adopted by the Legislature added more crimes to the list: mutilating or hiding a corpse; assisting suicide; misdemeanor battery; misdemeanor battery to an unborn child; intentionally causing bodily harm to an elder person; recklessly causing bodily harm or great bodily harm to an elder person;  injury by negligent handling of dangerous weapons, explosives, or fire; abuse of residents of penal facilities; human trafficking; criminal gang member solicitation; burglary (certain circumstances); reckless physical abuse of a child; repeated acts of physical abuse against the same child (certain circumstances); or intentionally taking any vehicle from owner by use or threat of force.

The amendment also removed a few crimes from the list of those considered "violent." They include mail fraud, wire fraud against a financial institution, and extortion against a financial institution. Allegations of those crimes, however, would still fall under the new bail standards if economic losses were more than $2,500.

By Gretchen Schuldt

A case involving the odor of marijuana that could have a significant impact on when police can search people and their vehicles will be heard this month by the state Supreme Court.

At issue is whether the smell alone is a legitimate basis for a police search when the smells of illegal cannabis and legal CBD are indistinguishable.

Such odor-based searches are fine as long as the smell can be linked to a person, the state argued in its brief seeking to overturn a Court of Appeals decision that found otherwise. Besides, "unmistakable" does not necessarily mean "can't be mistaken," the state said.  

But lawyers for Quaheem O. Moore contend that those smell-based searches are not fine. "A well-established probable cause standard, even as it relates to the odor of THC, should not be lowered," they wrote in a brief. Moore is represented by Joshua Hargrove, Tracey A. Wood, and Teuta Jenozi.

The case is scheduled for argument April 19.

Moore's trip to the Supreme Court started with a traffic stop. Moore was driving a rented car he borrowed from his brother.

The officers said they could smell raw marijuana emanating from the car, but acknowledged after Moore got out of the car that they could not smell it on him personally. The officers also said they had seen Moore throw a liquid from the car while he was driving, which he denied. The liquid later was determined not to be alcohol and neither Moore nor the car smelled of booze.

Moore told officers that a vape pipe he was carrying, discovered during a pat-down for weapons, was for CBD, which is legal in Wisconsin. The officers told him they were going to search him more thoroughly based on the raw marijuana smell. They found cocaine and fentanyl in two baggies in a hidden pocket behind the zipper of Moore's pants.

He was charged with intent to deliver drugs and possession with intent to deliver cocaine, both as a repeater. His lawyer successfully sought to suppress the evidence in circuit court and the Court of Appeals upheld that decision. The officers did not, given the totality of the circumstances, including the odor, have probable cause to search Moore, the court said.

A 1999 SCOW ruling in State v. Secrist is key to Moore's case. The court, in upholding a search, said that "the odor of a controlled substance provides probable cause to arrest when the odor is unmistakable and may be linked to a specific person or persons because of the circumstances in which the odor is discovered or because other evidence links the odor to the person or persons." 

At the time, all cannabis products were illegal. Some are legal now, however. 

In the Moore case, Assistant Attorney General Jacob J. Wittwer argued in a brief, the appeals court's interpretation of Secrist is unreasonable because it "establishes a heightened standard of proof for search and arrest based on the odor of marijuana that is significantly more demanding than probable cause."

In addition, he said, "the Court of Appeals’ interpretation of the word 'unmistakable' is inconsistent with a commonly-accepted meaning of the term that is in full agreement with the Secrist decision." 

While some dictionaries define "unmistakable" as meaning something that cannot be mistaken for something else, others are not so restrictive, Wittwer wrote. Other dictionaries define it as "very distinctive," "very easy to recognize," and "not likely to be confused with something else." 

The Supreme Court should "reaffirm its holding in Secrist that the odor of marijuana may provide probable cause to arrest if it is unmistakable — that is, if it has marijuana’s very distinctive and recognizable smell such that it is unlikely to be something else — and is linked to the person or persons."

​The smell also was linked to Moore because he was driving the car and was its only occupant, Wittwer said.

In contrast, Moore's attorneys argued that "By its definition, an unmistakable odor may not be mistaken for that of any other substance. ... The state cites to no authority for the assertion that the Court should use or has ever used a word while intending to give force to a tertiary or less common understanding of the word used."

The record is "devoid" of evidence linking Moore to the smell, they wrote. The officers could not smell cannabis on Moore, and it wasn't his car.