Marquette University Law Professor Jason Czarnezki argued way back in 2005, before Supreme Court elections got really ugly, that electing judges may not be the best way to go.
"I haven't changed my mind," Czarnezki said in an interview this week. "I think I feel more strongly than I did before."
Czarnezki's 2005 paper, "A Call for Change: Improving Judicial Selection Methods" focused on the Wisconsin Supreme Court, but he said during the interview that judicial selection at all levels needs improving. A merit-based appointment system may be the best option, he said.
The authors of the Wisconsin constitution felt that elections would not compromise judges' independence because, Czarnezki wrote, "judges would be elected by diverse citizens from large geographic areas with little political stake in the results."
He added: "Where Wisconsin's constitutional drafters truly erred in their analysis and in preferring an electoral system was in failing to understand the practical effects of election itself on judges."
Elected judges behave differently than appointed judges do, said Czarnezki, now a law professor at Pace University in New York City. Judges facing election, even if they originally were appointed to their jobs, "become even more harsh and sentence people at a greater rate" than do appointed judges, he said during the interview.
On the State Supreme Court, he wrote in his 2005 paper, "justices appointed by the governor were fifty percent more likely to vote for a criminal defendant's claim than they would be in later elected terms, or if they had been elected to their first term. On the other hand, those justices who immediately faced electoral pressures and were elected in the first term are sixty percent more likely to vote against a defendant's claim in the first term."
Judges don't necessarily worry that a particular ruling may offend public opinion, he said. They worry that someone will use a decision against them during their campaigns. "In other words," Czarnezki wrote, "judicial independence is sacrificed because the cost of a controversial decision may be to stir up a contestable and provocative issue for a future opponent."
The passage of a decade didn't change judges' behavior. The Brennan Center in December 2015 released a report on the impacts of elections on criminal cases. It found found, among other things, that the more often TV ads are shown during an election, the less likely state supreme court justices are, on average, to rule in favor of criminal defendants and the closer judges are to election, the longer the sentences they hand down in criminal cases.
Another analysis, by Reuters, found that elected justices in death penalty states were far less likely to reverse death penalty sentences than were justices who were appointed.
The state's open records law survived a
"This review raises a single question that was well stated by the court of appeals," Justice Shirley Abrahamson wrote for the majority. "Is a district attorney an "employee" as that term is used in...(state law)...such that the district attorney may maintain an action for notice and pre-release judicial review of records?"
On such technical issues do laws thrive or get gutted. In this case, for now, the law lives on.
Abrahamson noted in her decision that the open records law is not always easy to read or decipher,
"Nevertheless, by analyzing the public records law step by step, we can resolve the present case...," she wrote. "After analyzing the public records law and the parties' arguments, we conclude, as did the court of appeals, that a district attorney holds a state public office and is not an "employee" within the meaning of (the statute)."
The case stems from a State Department of Justice investigation into allegations about Vilas County District Attorney Albert Moustakis. The DOJ found that the allegations were unsubstantiated.
The Lakeland Times, a regional newspaper, filed a request with DOJ for records related to the investigation. and other documents about complaints against Moustakis and correspondence between Moustakis and DOJ.
DOJ, as a courtesy, notified Moustakis that it was going to release the records to the Lakeland Times. Moustakis went to court to block the release. He lost, but appealed. He lost in the State Court of Appeals, too.
A win for Moustakis would have allowed independently elected officials to delay the release of records about themselves. As applied to justices on the Supreme Court, which has yet to even rule on whether the open records law applies to them, a Moustakis victory might well grind to a halt the release of any records -- who would conduct a judicial review if Supreme Court justice's challenged a decision to release records?
During oral arguments before the court, some justices were rather openly hostile to the way DOJ handled the records request and treated Moustakis.
Abrahamson was joined in her decision by Justices Ann Walsh Bradley, Rebecca G. Bradley, and David T. Prosser.
Chief Judge Patience Roggensack concurred in part, but wrote that she would have reinstated Moustakis' claim because she believed he was entitled to statutory notice and, if he sought it, judicial review before the records were released. Roggensack was joined in her opinion by Justice Michael J. Gableman and Annette K. Ziegler.
The case is not over. Moustakis is pursuing two other claims related to the records release. The Supreme Court did not consider those; they are pending in circuit court.
Five Supreme Court justices who received significant political and financial support from Wisconsin Manufacturers & Commerce should have done the right thing and recused themselves from Friday's decision upholding Wisconsin Department of Public Instruction independence from Gov. Scott Walker.
Instead, the WMC 5 -- Rebecca G. Bradley, Michael J. Gableman, David T. Prosser, Patience D. Roggensack, and Annette K. Ziegler -- participated in the decision.
THE WMC 5
And the credibility of the State Supreme Court dropped just a bit more, settling somewhere well below ground level.
Gableman wrote the majority decision, going against his gray masters at WMC, and Prosser concurred. Bradley, Roggensack and Ziegler dissented, supporting the business lobby.
None of them should have heard the case. Getting that much money and support from participants in this case was a conflict for the WMC 5 is a conflict before it ever came to a decision. It's far too easy to believe that Bradley, Roggesack, and Ziegler delivered in exchange for payment; and it is very hard to not to speculate, given how beholden Gableman and Prosser both are to WMC, why they crossed their benficiary -- was it really the merits of the case? It's impossible not to wonder what is going on in that big, dark shadow that WMC casts.
WMC, along with the Metropolitan Milwaukee Association of Commerce and School Choice of Wisconsin, submitted a brief in the case supporting the pro-Walker forces. They were represented by the conservative Wisconsin Institute for Law and Liberty.
The court in 2010 changed its ethics rules so that justices do not have to recuse themselves based on endorsements or campaign contributions they get from parties involved in a case.
WMC is a big player in Supreme Court races -- big enough to prompt Gableman and Bradley to leave in the middle of oral argument make an appearance at a WMC political event.
It's not clear how much Bradley, elected to a full 10-year term in April, benefited from WMC's deep pockets, though the group was vocal in its support of her. The Wisconsin Democracy Campaign suggested that WMC may have funneled funds through a new group, the Wisconsin Alliance for Reform, which is not required to reveal its funding sources.
Other spending is clearer. WMC spent $2.25 million in support of Gableman in his 2008 race; spent $2.5 million on behalf of Ziegler in 2007; kicked in another $2 million or so to support Prosser; and $1 million to assist Roggensack.
This is how you become a criminal in Wisconsin: put a picture of a naked baby on a greeting card and try selling it on Etsy.
There. Wasn't that easy?
You just committed a felony.
Leonardo DaVinci would be a criminal in contemporary Wisconsin, if he really did paint the Madonna Litta and got a bit o' cash for it. It's got a nude baby, after all.
And hey, Wisconsin parents? Until this year, you could take that adorable naked-butt pic of your kid and submit it to a modeling agency if you hoped to get a contract, but now that would make you a felon.
That's because Wisconsin's anti-pornography law prohibits not only porn, but any "intimate representation" -- including nudity -- of a child used for commercial gain. Parents used to be exempt from some of the prohibitions, but are no more, thanks to revisions that took effect last month. Violation of the law is a class I felony, punishable by fine not to exceed $10,000 or imprisonment not to exceed 3 years and 6 months, or both.
The law, said University of Wisconsin Law Professor Howard Schweber, a First Amendment expert, "is pretty broad. It would include artists who paint or photograph children bathing, for example, if there is an expectation that the artwork will eventually be offered for sale."
Imagine getting busted for selling a portrait of a nude baby. Maybe it is art to most of the world, but pornography to the local district attorney, (who apparently never has Googled "newborn photography"). You could go to prison, or maybe you will be acquitted. Then public records will simply show that you were accused, but not convicted, of violating child pornography laws. Think that's not a life-changer?
It is OK if parents give away cute naked-butt pictures of their kids, but speech is a little less free if there is any sort of compensation involved. The law prohibits anyone, including parents, from capturing, possessing, making, distributing, or exhibiting a representation depicting the child...for the purpose of sexual arousal, gratification, humiliation, degradation, or monetary or commercial gain." (Emphasis added)
Never thought the Republican-dominated State Legislature and Gov. Scott Walker would automatically equate pornography with capitalism. Will wonders never cease.
Back in the 1990s, when fears of coming waves of "super predator" criminals gripped the nation, states -- including Wisconsin -- adopted laws allowing serious juvenile offenders to be tried as adults.
The "super predators" never arrived.
The waiver laws stayed.
Now Wisconsin's waiver law is snagging people like TDM, a 15-year-old boy with a history of status offenses and petty crime who was busted for breaking into a gas station and stealing cigarettes, then giving a false name to a police officer.
Kenosha County Circuit Judge David P. Wilk held a waiver hearing where only a single social worker testified. Wilk waived TDM into adult court. TDM (that is how he is identified in the decision) appealed. The waiver was upheld last month by District 2 Appeals Court Judge Mark Gundrum.
Only a single social worker testified during TDM's waiver hearing, according to Court of Appeals records. TDM now faces a longer sentence, access to fewer social services, an adult criminal record that will cripple his prospects, and, according to research, a greater chance of becoming a repeat offender than if he had been retained in juvenile court.
Is this what the waiver laws were really intended to do? When Gov. Tommy G. Thompson signed the revamped, tougher juvenile code in 1995, he specified the type of crime the state was targeting.
"No more kid-glove treatment," Thompson said, according to the Milwaukee Journal Sentinel. "If you commit a violent crime in Wisconsin, your birthday won't protect you any more." (Emphasis added.)
Newer research shows that incomplete brain development in teens may contribute to delinquency. The research, "indicates the juvenile brain is still maturing in the teen years and reasoning and judgment are developing well into the early to mid 20s. It is often cited as state lawmakers consider scaling back punitive juvenile justice laws passed during the 1990s," ABC News reported.
TDM got the brunt of the law without getting the benefit of the deeper understanding of brain development.
This kid was no saint. He was in trouble before he got busted for the gas station job. He already had been adjudicated delinquent for possession of marijuana and criminal damage to property. He did well in a restricted setting, but messed up when he was released. He was place on house arrest, but earned some limited freedom from that.
He met with the social worker hours before the September 2015 gas station job and was "polite," but "shut down," according to the social worker.
TDM allegedly fathered a child. He was expelled from school for continued behavior problems. He disappeared for three months in 2014. The social worker those three things were more indicative of an adult lifestyle than a juvenile lifestyle.
TDM's lawyer argued that TDM's alleged fathering of a baby was a sign of immaturity and not maturity; the social worker admitted on cross-examination that she did not know if TDM got support or food from his mother when he was on the run. She also testified that he did not have his own apartment or driver's license, never held a job and relied on his mother for "sustenance," according to Gundrum's decision.
The social worker acknowledged "this was more 'childlike' than adult in nature," Gundrum wrote.
The social worker also testified that the Kenosha County Division of Children and Family Services would have more than two years to provide services to TDM if he stayed in children's court and that could be enough time; and that the division hadn't tried treatment foster care, residential treatment or juvenile corrections placement.
Gundrum agreed that allegedly fathering a child pointed to an adult lifestyle and discounted TDM's lawyer's argument that no one knew where TDM stayed or who helped him during his three month disappearance.
"Even if TDM did benefit from some assistance from his mother while he was not residing at home for three months, so do many young adults," Gundrum wrote. "The point is, he had left the nest and was making his home elsewhere than with his mother for that period of time."
TDM did well when he was in a restricted setting, Gundrum wrote, and went on to predict the future. Treatment and opportunities offered thus far were unsuccessful "suggesting a continuation down a similar path would likewise be unlikely to succeed with reforming TDM."
Appeals Court Judge Mark Gundrum, considered a favorite for a State Supreme Court appointment, as a legislator mocked an agreement designed to end inhumane conditions and inmate abuse at the supermax prison in Boscobel.
From the Jan. 5, 2002 Milwaukee Journal Sentinel:
The prison's name should be changed to "something like the `Jon Litscher Kittens and Rainbows Suites,' " if the settlement is approved, said Republican Rep. Mark Gundrum of New Berlin. Litscher is the secretary of the Department of Corrections, which reached the tentative settlement this week with attorneys for inmates who had sued the state over conditions at the ultra-secure prison in western Wisconsin.
"Everyone loves kittens and rainbows, so with that name we should all feel warm and fuzzy toward the worst rapists and murderers in Wisconsin," Gundrum said, adding that the prison could even become a nice site for "our next family vacation."
The settlement's "coddling" provisions called for the appointment of a monitor for two years, and banned the confinement of seriously mentally ill prisoners at the prison. It provided inmates with more time out of their cells, regulated cell temperatures and reduced night-time lighting in the cells. It also called for improved dental and medical care and a significant reduction in the use of restraints and electronic control devices.
The class action lawsuit, filed in federal court, alleged that excessive use of force at the Supermax was a common occurrence and that staff shocked inmates with weapons that often left burn marks on the skin. It also alleged that mentally ill inmates were not given adequate health care. The suit also alleged that inmates' solitary confinement virtually 24 hours a day violated their constitutional rights.
Another person who thought locking mentally inmates in their cells 24 hours a day was being too soft? Gov. Scott Walker, then a state legislator. Walker said the settlement would "coddle hard-core criminals who simply refuse to behave themselves," according to the JS.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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