The case: Christus Lutheran Church of Appleton v. Wisconsin Department of Transportation

Majority: Justice Jill J. Karofsky (24 pages), joined by Justices Ann Walsh Bradley, Brian  Hagedorn, and Rebecca F. Dallet.

Dissent: Justice Patience D. Roggensack (18 pages), joined by Justices Rebecca Grassl Bradley and Annette K. Ziegler.

The upshot 

​In this case, the Wisconsin Department of Transportation ("DOT") acquired a portion of land owned by Christus Lutheran Church of Appleton ("Christus") through eminent domain. As part of that process, DOT issued a jurisdictional offer to purchase. We are tasked with determining the validity of that offer.

We uphold the circuit court's grant of summary judgment to DOT and conclude that the jurisdictional offer was valid.

Background

Christus is a nonprofit entity that owns and operates a church in Greenville that abuts State Trunk Highway 15. As part of a major project to improve and reconstruct a portion of the highway, DOT sought to acquire 5.87 acres of Christus' property and obtain a temporary limited easement of 0.198 acres.

 DOT stated that the estimated fair market value of the property to be acquired was $133,400, based on a third-party appraisal by Single Source, Inc. DOT provided Christus with an offer in that amount.

DOT's letter also included an itemized table that listed the allocations contained in the appraisal. The letter further informed Christus that if it was not satisfied with the appraisal's valuation of the property to be condemned, Christus was "eligible to obtain an additional appraisal from a qualified appraiser of [its] choice" at DOT's expense within 60 days, by December 5, 2016.

DOT called Christus' representative to encourage the church to obtain a second appraisal, explaining that "this was a complex acquisition and even if the two appraisals were close in value, it would give [Christus] assurance that nothing had been missed."

By the time of the second-appraisal deadline, Christus had not engaged in negotiations, accepted DOT's initial offer, or obtained a second appraisal at DOT's expense....Christus' attorney informed DOT that the church council would not agree to a voluntary sale.

(WisDOT conducted an internal review of the appraisal).

DOT focused on three areas that the initial appraiser considered, but ultimately did not compensate, and "items the original appraisal did not fully address," including: (1) severance damages related to the building's increased proximity to the right of way; (2) the cost to increase the parking lot to replace the loss of 26 parking spaces; and (3) the cost of "moving the retention pond."

By letter dated March 24, 2017, DOT rescinded its initial offer and provided a "final offer" in the amount of $403,200.

Christus commenced an action alleging that DOT violated the statutory requirement that a jurisdictional offer be "based" "upon" the appraisal of the property...The circuit court granted summary judgment to DOT....The court of appeals reversed the circuit court's decision, reasoning that "the jurisdictional offer in this case was not sufficiently based on the appraisal" as required by (state law) because it included a new line item for severance damages, which the initial appraisal did not contain.

The guts

A right-to-take action, which Christus filed, is used "to contest the right of the condemnor to condemn the property described in the jurisdictional offer, for any reason other than that the amount of compensation offered is inadequate."

Christus first asserts that DOT's jurisdictional offer was not "based" "upon" an appraisal, as required by (statute) because the jurisdictional offer contained several new line items, including severance damages, not found in the appraisal. Further, Christus claims that the appraisal failed to satisfy (state law's) "all property" requirement. Christus' arguments fail.

To summarize, just because there is a monetary difference between the initial appraisal and the jurisdictional offer does not mean the jurisdictional offer is not "based" "upon" the appraisal under (state law).

The initial appraisal discussed and considered severance damages, the loss of 26 parking spaces, and the loss of the current pond on the property, despite not allocating compensation for these items. A side-by-side comparison shows that no allocation decreased between the initial appraisal and jurisdictional offer. As the circuit court properly noted, most of the allocations "are relatively close in value," if not "actually identical in both offers." The significant changes between the initial appraisal and the jurisdictional offer, as a result of DOT's internal administrative revision process, included increased allocations for: (1) severance damages because of the proximity of the new right of way; (2) compensation for the cost to replace the 26 lost parking spaces; and (3) compensation to add a retention pond. Adding these new amounts to the initial appraisal valuation does not make the initial appraisal something other than a foundation for the jurisdictional offer. To the contrary, the fact that most of the allocations remained unchanged from the beginning to the end of the process demonstrates that the appraisal served as the foundation for the offer....

According to the court of appeals, because the jurisdictional offer included compensation for severance damages not found in the initial appraisal, the appraisal failed to satisfy (state law).

(The statute) defines "property" as "includ[ing] estates in lands, fixtures and personal property directly connected with lands." Damages are not included in (the) definition of "property" and we do not "read into the statute words the legislature did not see fit to write." Ultimately Christus failed to identify any portion of its property, as defined in chapter 32 (of the statutes), that the initial appraisal excluded, and therefore the offer satisfies (legal requirements).

Finally, we must explicitly reject the new requirement that the court of appeals enunciated in its opinion: "if the DOT, based solely upon its independent review of an appraisal, believes additional statutory items of just compensation warrant inclusion in the jurisdictional offer, it must obtain a new appraisal that substantiates that belief and provides an opinion as to the value of those interests."

Not only does this requirement find no support in the statutory text,  it also raises a multitude of ethical concerns. The only way for condemnors like DOT to "obtain a new appraisal that substantiates [a particular] belief" would be for DOT either to improperly direct or to coerce its in-house appraisers or third-party appraisers into acting in accordance with DOT's instructions rather than making independent assessments. Yet, Wisconsin appraisers must comply with the Uniform Standards of Professional Appraisal Practice ("USPAP").... USPAP ethics rules outline an appraiser's ethical obligation to be independent, impartial, and objective and forbids appraisers from "agree[ing] to perform an assignment that includes the reporting of predetermined opinions and conclusions."...Therefore, any appraiser who provides an estimate or opinion based on DOT's directive would be in violation of her ethical code. 

We uphold the circuit court's grant of summary judgment to DOT and conclude that the jurisdictional offer was valid because it was "based" "upon" an initial appraisal of "all property proposed to be acquired."

The dissent

Christus Lutheran contends that DOT did not make a jurisdictional offer sufficient to satisfy necessary statutory requirements and therefore, it lacks the right to condemn its property. I agree, for a number of reasons.

First, DOT did not provide Christus Lutheran with an appraisal sufficient to comply with the directive of (state law). 

(Second,) Because a jurisdictional offer is required to include severance damages which occurred here and because the jurisdictional offer must be based on a full narrative appraisal, severance damages must be a component of that full narrative appraisal. 

The majority opinion concludes that totally missing severance damages is no problem because DOT is required to pay just compensation for "property," which is different from "damages." The majority opinion asserts that the court of appeals conflated 'property' and 'damages.'" It then relates that the definition of "property" found in (statutes) does not include the word, "damages." 

Before condemnation, Christus Lutheran's church building had a 147.7 foot side yard buffer from the Highway 15 right-of-way. After condemnation, the church building would be only 9 feet from Highway 15's right-of-way. Certainly, having trucks rumble-by only 9 feet from where church services are being conducted removed a significant sound buffer and safety barrier that the land DOT is taking had provided to religious service participants. 

The majority opinion also creates facts to excuse the Single Source appraisal's failure to include any value for severance damages, parking replacement or a retention pond and its gross undervaluation for landscaping and acreage taken. It does so in part by repeatedly misstating facts. For example, the majority opinion says: "Most of the allocations in the final offer were either identical or close to the initial appraisal valuation." "[T]he fact that most of the allocations remained unchanged from the beginning to the end of the process demonstrates that the appraisal served as the foundation for the offer."

The record shows that all totaled, Single Source valued the property taken at $269,800 less than DOT's jurisdictional offer. 

I agree with the court of appeals that the jurisdictional offer was not based upon the appraisal that DOT provided. The jurisdictional offer was based upon DOT's own internal review.

The majority opinion also repeats and repeats that Christus Lutheran was told it had the right to get its own appraisal for which DOT would pay. However, that Christus Lutheran did not obtain an appraisal has nothing to do with whether DOT complied with its statutory obligations. 

(DOT) ignored fundamental statutory obligations necessary to its jurisdiction to condemn Christus Lutheran's property and, therefore, DOT lacks jurisdiction. Jurisdictional errors cannot be overlooked. 

By Gretchen Schuldt

​Penalties for crimes against anyone at least 60 years old – "an elder" –  would increase dramatically under a bill approved by the Legislature and now awaiting action by Gov. Evers.

The bill was approved despite the absence of any information about its financial impact.

Under Senate Bill 17:

• Any second-degree sexual assault against an elder would become a first-degree sexual assault and the maximum penalty would increase from 40 years in prison to 60 years in prison. It would not matter whether the offender knew the victim's age.
• There would be an entirely new crime of "physical abuse of an elder person," patterned after a law against physical abuse of a child. Penalties for violating of the new law would vary from up to 3½ years in prison for recklessly causing great bodily harm to up to 40 years in prison for intentionally causing great bodily harm. 
• Prosecutors could seek to freeze the assets of defendants in financial exploitation crime cases where the victim is an elder and the property involved is worth more than $2,500. The prosecutor could seek to freeze assets worth up to the full value involved in the alleged crime to preserve them for potential restitution to the victim.
• Maximum sentences for crimes committed against elders would automatically increase, whether or not the offender was aware of the victim's age. The sentence for any crime punishable by up to one year of incarceration could be increased to a maximum of two years; the sentence for a crime punishable by one to 10 years of incarceration could be increased by an additional four years; and the sentence for a crime punishable by more than 10 years in prison could be increased by up to six years.
• Elders seeking domestic violence, individual-at-risk, or harassment restraining orders would be allowed to appear in a court hearing by telephone or audiovisual means. They currently must appear in person.

Several organizations supported the bill, including AARP, the Alzheimer's Association, the Greater Wisconsin Agency on Aging Resources, the Outagamie County Board, and the State Bar. No organization registered against it.

"Senate Bill 17 helps to discourage bad actors from engaging in the abuse and exploitation of older Wisconsinites by increasing criminal penalties for related crimes and makes it easier for victims to file restraining orders," State Rep.  John J. Macco (R-Ledgeview) said in testimony supporting the bill. "Additionally, this bill streamlines court processes to freeze assets of a defendant, making it more likely for victims to receive financial restitution." 

​"Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. WJI also will continue to profile former Gov. Scott Walker's appointees who are still in office.

Italics indicates direct quotes from the application.

​WJI note: Much of White's description of Roper v. Simmons below is almost identical to a description published on the Campaign for the Fair Sentencing of Youth website. White  acknowledged in an interview Sunday that she erred in not citing the campaign as a source.

Her failure to do so "should not have happened," she said.

White said she was rushing to finish and submit her application very shortly before the deadline on Nov. 13, 2019. In her hurry, she said, she failed to credit the campaign.

"I should have," she said.

"I did a lot of cutting and pasting," White said. She often uses other sources when they are reflect her beliefs, she said.

"My reputation is citing," she said. "As a Court of Appeals judge, I can't say a word without a source."

Name: Maxine Aldridge White

Appointed to: Court of Appeals, District I

Appointment date: January 2020 (Elected in April 2021.)

Education:
   Law School – Marquette University Law School
   Master's Degree – University of Southern California (Public Administration)
   Undergraduate – Alcorn State University, Lorman, MS
   High School – Gentry High School, Indianola, MS

Recent legal employment:

August 2015-present –  Chief judge, First Judicial District
August 1992-present – Milwaukee County circuit judge

Bar and Administrative Memberships:
    Wisconsin State Bar
    Eastern District
    Western District
    Seventh Circuit
    United States Supreme Court

General character of practice before becoming a judge:
May 1985-August 1992: assistant United States attorney - Eastern District of Wisconsin;
appointed immediately upon graduation from Marquette Law School, becoming
the first African American woman to serve in that position and only the second one
appointed upon graduation from law school.

Represented all federal agencies before the federal courts (except IRS in non-bankruptcy
civil matters); practice areas included bankruptcy, affirmative civil litigation, and defense of the
federal agencies and interests before federal magistrate, bankruptcy, federal district courts
and the Seventh Circuit Court of Appeals

August 1991 to August 1992: Legal advisor and instructor - Federal Law Enforcement
Training Center

Describe typical clients: 
Experienced trial lawyer practicing before the federal courts as well as leading investigations conducted by federal agents – (DEA, IRS, FBI, Secret Service, federal agency Inspector Generals and Postal Inspectors); responsible for motion practice, trials – court and jury – and appellate arguments in a variety of civil, criminal and bankruptcy cases....

Lead Attorney for the Bankruptcy Unit and attorneys and Project Leader for "Project Triggerlock"  a multi-jurisdictional taskforce of federal, state and law enforcement officers and agents.

Number of cases tried to verdict: More than 300

List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years:

David Rasmussen et al, v. General Motors Corp. et al
Matter in court for motion hearing (attorneys' fees, expenses, and incentive awards)
 
Rexnord Industires, (sic) LLC, v. Jamaica Bearings Co, Inc.
Matter in court on motion hearing (jurisdiction and motion to stay)

(White did not describe the cases further, but attached decisions in two cases to the application as writing samples. She also wrote a handwritten note on the application: See writing samples as examples of 2 significant legal matters with unique issues resolved during the time I presided and decided these 2 cases – each presenting untested areas in the case law in our district).

Chief Judge significant projects:
MacArthur Foundation Grant
Improvement of Services for juvenile offenders and juvenile justice reform
Arnold Foundation Pretrial Risk Assessment and Bail reform in Milwaukee County
Chief Judges' Subcommittee on Jail for Non Payment of fines, fees and forfeitures

Presiding Judge significant projects:
Milwaukee Safe Haven for families experiencing domestic violence

Experience in adversary proceedings before administrative bodies: Reviewing Court for administrative agency decision 
​
Previous runs for political office: Elected to Milwaukee County Circuit Court, Branch 1

Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization:  Only as a candidate

All judicial or non-partisan candidates endorsed in the last ten years:
Judge JoAnne Kloppenburg, Wisconsin Supreme Court, 2016
Judge Lisa Neubauer, Wisconsin Court of Appeals Distinct II, 2019
Judge M. Joseph Donald, Wisconsin Supreme Court, 2015
Chief Justice Shirley Abrahamson, Wisconsin Supreme Court, 2008-2009

Professional or civic and charitable organizations: 
Milwaukee Bar, board member, 2007 to 2015
National Association of Women Judges, district director, 2004
Links Incorporated, Milwaukee chapter president, 1993-present
Wisconsin State Bar, conference presenter
Marquette University, board and diversity committee
Heritage Chorale of Milwaukee, board member

Significant pro bono legal work or volunteer service: 
Wisconsin Association of African American Lawyers, president, Board member and mentor
House of Peace, Inc., president, Advisory Board for 15 years
Milwaukee Chapter of Links Inc., chapter president
Assisted in designing and leading member coalition to Jamaica to deliver
National Association of Women Judges, district director
- Designed and led historic effort installing portrait of women judges in Wisconsin courthouses
- The Color of Justice 

Involvement in business interests:
Not applicable

Quotes

Why I want to be a judge – Growing up in the Deep South, I lived through times when injustice such as racial segregation was actually empowered by the law. Over time, I witnessed first-hand that the law could be guided by courageous people who challenged the law to become better. It became clear that the law, enabled by lawyers and judges entrusted with its care, has the ability to transform itself, and thereby have a transformative effect on the people that come before the court, and society at large. The law, in spite of a history of empowering so much injustice, could become the means by which lives could change. The law could become the means by which people, rich and poor, regardless of status, in controversies large and small, could at least have their voices heard, and find at least some small measure of justice. To be an arbiter of some portion of this process has been and continues to be, an honor I humbly accepted. More than that, it is a continuing obligation to which I have devoted much of my life. Through the law, we who serve the people as judges have the ability and the solemn obligation to help, to give voice, to smooth the rough road, and to resolve differences in a just manner.

Watch the WJI May 19, 2021 cannabis reform discussion with State Sen. Melissa Agard, a longtime advocate of legalizing medical and recreational marijuana use in Wisconsin.

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 a WJI insertion.

​The case: State v. Tavodess Matthews

Majority: Justice Rebecca Dallet (16 pages) for a unanimous court.

The Upshot

Section 801.58(1) entitles a party in a civil case to substitute the assigned circuit court judge if, among other things, that party files a written substitution request before "the hearing of any preliminary contested matters." Matthews filed his substitution request after the circuit court granted his motion to adjourn a scheduled probable cause hearing under Wis. Stat. ch. 980. We hold that Matthews' substitution request was timely because his motion to adjourn is not a "preliminary contested matter" per that phrase's accepted legal meaning and the circuit court heard no other such matter before Matthews filed his request.

Background

This case arises from the early stages of proceedings to commit Matthews as a sexually violent person under Wis. Stat. ch. 980....the circuit court must "hold a hearing to determine whether there is probable cause to believe that the person named in the petition is a sexually violent person...." Matthews' attorneys met with him for the first time on the morning of the probable cause hearing. That same morning, Matthews' attorneys told the State they intended to ask the circuit court to adjourn the hearing because they needed more time to prepare. As a result, the State told its sole witness not to appear. 

At the outset of the probable cause hearing, the circuit court acknowledged that the parties were "not going forward with the hearing." Matthews' counsel requested additional time to prepare, noting that Matthews had no objection to rescheduling the hearing outside of the 10-day window required under (state law). The State objected to the adjournment "for the record," but admitted that it was "in a somewhat difficult position" as it had let go of its witness for the day. Despite its "disappointment," the circuit court agreed to reschedule the hearing so long as Matthews waived his statutory right to a probable cause determination within 10 days of his scheduled release. Matthews did so, and the circuit court rescheduled the hearing...

¶The morning of the rescheduled hearing, Matthews' counsel filed a written request...to substitute the circuit court judge. (The law) provides that a party in a civil action, such as a ch. 980 commitment proceeding, may request to substitute the circuit court judge before "the hearing of any preliminary contested matters" but "not later than 60 days after the summons and complaint are filed." \ Matthews argued that his motion was timely because he filed it only 33 days after the State filed its ch. 980 petition and, since the circuit court had not actually commenced the probable cause hearing, it had not yet heard a "contested matter." The circuit court disagreed, finding Matthews' request untimely because the State's objection to Matthews' motion to adjourn rendered the matter "contested." 

The circuit court also noted that it had made the "substantive decision" to accept Matthews' time-limit waiver, so it was too late for Matthews to request a substitution. Upon review, Chief Judge Maxine A. White of the Milwaukee County Circuit Court agreed with the circuit court's determination, explaining that Matthews' time waiver constituted a preliminary contested matter.

The court of appeals accepted Matthews' interlocutory appeal and affirmed the circuit court's ruling....

The guts

Our focus here is specifically on the phrase "the hearing of any preliminary contested matters," which both parties recognize as the crux of the case....

First, that "preliminary contested matters" has a specific legal meaning, which the legislature explicitly adopted....And second, that there is no "hearing of" a preliminary contested matter until a court actually hears such a matter....

The phrase "preliminary contested matters" has a specific legal meaning referring to pretrial issues that go to the ultimate merits of the case. The roots of this meaning can be traced to the court's interpretation of a mid-nineteenth century change-of-venue statute. That statute provided that when a party requested a change of venue because of the presiding judge's "prejudice," the judge had no discretion to deny the request.

Our survey of the case law revealed that, in the judicial substitution context, a preliminary contested matter is more than just a preliminary issue over which the parties disagree (or, literally, "contest"). Rather, the phrase carries a particular common law meaning referring to a substantive pretrial matter that relates to the "ultimate issues" of the case....

Wisconsin courts have interpreted "preliminary contested matters" consistent with its accepted legal meaning. Pretrial motions that directly implicate the merits of a case, such as a motion to dismiss for failure to state a claim and a motion to compel discovery, are preliminary contested matters....

Conversely, this court, as well as the court of appeals, has held that procedural issues that have no direct effect on the merits of a case are not preliminary contested matters....

The bottom line is that whether a party has timely filed its judicial substitution request turns on what issues a circuit court has already heard. It is irrelevant whether a judge schedules to hear a preliminary contested matter or whether a party actually contests a preliminary issue. Accordingly, we hold that a party's substitution request is timely if it is made before a judge in fact hears a substantive issue that goes to the ultimate merits of the case.

Turning to the facts in this case, we conclude that the circuit court heard no preliminary contested matter prior to Matthews' filing his judicial substitution request. By the time Matthews filed his request on August 29, the circuit court had addressed only his motion to adjourn the August 15 hearing....The circuit court's decision to grant the motion had no effect on the ultimate merits of whether Matthews is a subject for commitment....

We therefore reverse the court of appeals and remand the cause for further proceedings. 

The JS has the story.

​So who pays the lawyer fees?

By Gretchen Schuldt

​A Kenosha County judge overstepped when he ordered a shoplifter to give notice of her conviction to the management whenever she entered a place that sells goods to the public, a state Court of Appeals panel ruled this week.

"That condition is overly broad and also falls into the category of shaming, which the circuit court appeared to acknowledge at sentencing," the three-judge panel wrote in an unsigned decision, invalidating the condition ordered by Circuit Judge Bruce Schroeder.

"We are not persuaded that embarrassing or humiliating defendants with a state-imposed broad public notification requirement promotes their rehabilitation," the panel said.  The panel included Appellate Judges Lisa S. Neubauer,  Paul F. Reilly, and Jeffrey O. Davis.

Markea L. Brown, 28, pleaded guilty to felony shoplifting in connection with helping to steal $2,655 worth of items from a store at the Pleasant Prairie Outlet Mall.

Schroeder sentenced her to 15 months in prison followed by two years of extended supervision. He also ordered, as conditions of her supervision, that Brown have no contact with the mall and to make the notifications of her conviction.

Brown challenged both conditions on appeal; the panel upheld the first, but struck down the second.

Schroeder told Brown the notification requirement " is 'going to embarrass you, of course,' ” the panel said. "It continued, noting that society no longer puts people in the stocks 'to be embarrassed and humiliated … but [the court] feel[s] that embarrassment does have a valuable place in deterring criminality.' ” 

While Schroeder said he wanted to give merchants the opportunity to protect against theft,  "the State has provided no legal support for the imposition of a requirement that repeat offenders must self-identify as they go about day-to-day life to personally notify any and all individual potential victims of their criminal history," the panel said. "We do not see where such a requirement would start and stop."

Brown has a history of shoplifting, according to online court records.

Brown, if required to notify store management of her conviction, could be refused service, even by those selling essential goods, such as groceries, the panel said. 

"We understand that Brown has children, and as such the consequences of the condition could impact them as well," the panel said.

The condition would result "in an overly broad ban, with consequences...that are not reasonably related to rehabilitation or protection of society," the panel said.

"It is apparent that public shaming is the second condition’s primary effect; thus, we will require it vacated."

By Gretchen Schuldt

​A bill in the State Senate that would greatly expand phone and audiovisual proceedings in criminal cases must preserve a defendant's right to reject such e-hearings in favor of "critical in-person hearings," WJI President Craig Johnson told a Senate Committee.

"Without preserving this 'opt-out' right for defendants (in criminal cases), video hearings likely will become more and more common, thus creating a culture in which defendants as well as witnesses and counsel will be expected to appear, as they have for much of the last year, via 'Zoom' and other remote technology for important fact-finding hearings," he told the Judiciary and Public Safety Committee in testimony submitted for a public hearing.

Senate Bill 219 would allow "any criminal proceeding" to be conducted over the phone or by audiovisual means "unless good cause to the contrary is shown." Currently, the law limits the proceedings that can be conducted electronically.

There are many defendants who face challenges with technology, Johnson said. 

"An elderly person or someone with cognitive limitations may not understand how to use a smart phone or computer," he said. "Someone who is poor or lives in an area without good internet or wireless service may have trouble with this technology. If a person prefers to appear in person, in a courtroom, with their lawyer, before a judge, and see and hear the proceedings, including witnesses, LIVE, they should have the opportunity and right to do so."

Low-income and rural households may have limited access to the Internet or slower speeds, he said. 

"We have seen this reflected in concerns about equal access to online education during the last year of this pandemic," Johnson said. "Increasing reliance on video conferencing in court proceedings can exacerbate this digital divide."

The Wisconsin Supreme Court, in State v. Soto, discussed the problems that could arise with video proceedings, Johnson said.

​"The opinion notes that the physical presence in a courtroom provides a setting that emphasizes the solemnity and gravity of the proceeding," he said. "The physical courtroom setting also effectively displays the power and importance of the state, as personified by the circuit court judge."

By Gretchen Schuldt

​The COVID-19 pandemic has the Milwaukee State Public Defender's Office doing what it rarely did in the past – sending out email blasts asking private bar attorneys to represent indigent defendants in criminal cases.

Those types of emails are fairly common in rural counties, where lawyers are scarce and SPD offices struggle to find enough private lawyers to take cases.

In Milwaukee County, though, there are more lawyers overall and enough have been willing to step in when SPD staff attorneys bow out of a case for reasons such as conflicts of interest or caseload issues. 

"The pandemic, I'll have to say, has really had an impact," said Tom Reed, regional attorney manager for the SPD's Milwaukee Trial Office.

The cases are often serious felonies. In one email last month, SPD sought lawyers for 15 cases involving 12 defendants. Charges included intimidating a witness, stalking, child sexual assault, and armed robbery, among others. A few days later, SPD sent an email seeking one lawyer for one case – a homicide. 

The numbers vary, but Reed said there are now generally about 30 to 40 defendants in custody for at least a week or two without representation, a much higher number than in pre-COVID times.

There are other factors to the lawyer shortage, but the pandemic looms large. When it hit, the courts essentially shut down and that had cascading impacts.

Judges, jailers, lawyers, and court officials worked to keep defendants out of the jail when they could because of concerns of COVID spread. More people charged with misdemeanors were told when to appear in court and released, rather than being booked through the jail., for example. The people held in jail were those accused of more serious crimes. There are about 150 people sitting in jail on homicide charges, Reed said.

The courts' shutdown meant backlogs built for SPD lawyers,  prosecutors, private bar attorneys, judges, and everyone else in the system. Milwaukee County Chief Judge Mary Triggiano estimates it will take 18 months to two years to clear the build-up of criminal cases.

Courts are reopening, slowly, and cases are moving forward. Private bar attorneys are needed to handle SPD cases, but those private lawyers also have to handle the cases they already have on their docket. Lawyers who were willing to work SPD cases before the pandemic simply can't handle them now

"People feel unwilling to overload their calendars," Reed said.

The pandemic also may have helped some lawyers approaching retirement age decide that it was the perfect time to pull the plug, Reed said.

In addition, "I think there were lawyers who weren't retirement age, but they did back off if they felt some vulnerabilities," he said.

Some might have had caregiving duties or their own health concerns, he said. 

The pandemic also may have made it financially more difficult for private lawyers to accept bar appointments, he said. They get $70 an hour for the work, and usually are not paid until a case is over, which can take some time.  If lawyers are under financial stress, they just might not be able to wait several months or longer for a paycheck.

The generational turnover also means there are fewer lawyers available who have the experience to ably defend a murder case or other very serious felony, Reed said. Yet it is people charged with those types of crimes who have been sitting in the jail and whose cases judges are now giving priority. 

The private bar pay has been criticized as too low, but Reed said he did not think that was a factor in the current situation.

Cases are moving now, though slowly. The SPD and private bar lawyers continue to work together, Reed said.

"Every day we're finding lawyers to take some of the cases," he said. 

"Our program relies on the strength of the private bar," he said.. "They have been good partners in seeking justice."