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"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. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Sandra Giernoth
Appointed to: Washington County Circuit Court Appointment date: Feb. 21, 2020 (effective March 28, 2020, and elected to a six-year term on April 6, 2021) Education: Law School – Marquette University, Milwaukee, Wisconsin Undergraduate – Carroll College, Waukesha, Wisconsin High School – Watertown High, Watertown, Wisconsin Recent legal employment: July 2019-present – Deputy district attorney, Washington County District Attorney’s Office October 2010-July 2019 – Assistant district attorney, Washington County District Attorney’s Office May 2009-October 2010 – Associate attorney, Kim & LaVoy, Wauwatosa, Wisconsin Bar and Administrative Memberships: State Bar of Wisconsin U.S. District Court for the Eastern District of Wisconsin General character of practice: I currently serve as a prosecutor, specifically the Deputy District Attorney, in the Washington County District Attorney's Office. I represent the State of Wisconsin in misdemeanor and felony criminal cases, juvenile cases, CHIPS matters, and civil forfeiture actions. I represent Washington County in ordinance violations. Describe typical clients: Since obtaining my law degree, I have practiced exclusively in criminal law. For approximately sixteen months I practiced criminal defense with Kim & LaVoy and represented clients charged with crimes and forfeitures and in injunction matters. Since joining the Washington County District Attorney's Office, I have represented the State of Wisconsin and Washington County in criminal, traffic, and forfeiture proceedings. My entire practice consists of litigation. Number of cases tried to verdict: 44 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: State of Wisconsin v. Michael Kemmeter I represented the State of Wisconsin in State v. Kemmeter, Washington County Circuit Court case 11CF434. …The State charged Michael Kemmeter with Physical Abuse of a Child – Recklessly Cause Great Bodily Harm for causing fractures in both arms of [redacted]. The criminal complaint was filed on November 11, 2011, and a three-day jury trial occurred October 8, 2012, through October 10, 2012. This case is a significant accomplishment for me in a number of respects. First, at the time I charged the case, I had been a prosecutor for a little over a year. By the time the case proceeded to trial, I had been a prosecutor for a little under two years. Attorney [Alex] Flynn was (and is) a formidable and experienced defense attorney; on paper I appeared out matched. As a young prosecutor, this case felt like a test of my skill, potential, and abilities, and it very much was. Second, Wisconsin Statutes section 907.02 had recently been amended to adopt the Daubert standard for expert testimony, and the defense filed a Daubert challenge to my expert's opinion. It was my first Daubert hearing, and I believe the first Daubert hearing for my office. In that regard, I was navigating uncharted territory. Third, the subject matter—child abuse—is complex and relies heavily on expert testimony. This case was my first significant endeavor into presenting significant expert testimony to a jury. I also faced the challenge of cross-examining an opposing expert offering competing conclusions. Fourth, I dealt with complicated victim dynamics in that [the child’s] mother … opposed the prosecution and did not believe the expert’s conclusion that Kemmeter had inflicted harm. … She was a reluctant but necessary witness for the State, but did not subscribe to the State's theory. Not one single victim sat on the State's side of the courtroom. I learned the importance of a cohesive trial theory, and in this case it had to reflect the reality that no victim was asking the jury to hold the defendant accountable. In sum, this case—and the litigation it involved—was in many ways a test of my measure as an attorney and specifically, as a prosecutor. I certainly gained confidence in my trial skills, but more importantly, what I learned set the bar for how I would handle every case to come thereafter. State of Wisconsin v. Bartelt I represented the State of Wisconsin in State v. Bartelt, Washington County Circuit Court case 13CF276, filed July 18, 2013. …The State charged Daniel J. H. Bartelt with First-Degree Intentional Homicide for causing the death of a nineteen-year-old young woman who was found deceased in her Hartford, Wisconsin residence, on July 12, 2013. I participated heavily in the initial investigation, including authoring affidavits to support search warrants and advising law enforcement regarding legal issues that arose during the investigation. … Once charged, this case involved significant litigation, including Motions for Severance, to Suppress Evidence, and to Change Venue. The jury trial occurred August 11, 2014, through August 19, 2014. The State introduced multiple types of forensic evidence at trial, including DNA, fingerprint, forensic pathology, and computer forensic analysis, which necessitated myself and District Attorney Bensen becoming well-versed in these areas. This case is significant to me as I tackled many unique legal challenges and complicated forensic evidence. On a personal level, [redacted] was a beloved member of Hartford whose death was shocking and left the rural community of Hartford shaken. It was an honor to have represented the community in seeking justice … and to have helped her family navigate through the criminal justice system. Implementation of Washington County Drug Treatment Court Throughout 2019 I have participated as a team member on the Washington County Drug Treatment Court Implementation Team. In early 2019, the judges of the Washington County Circuit Court agreed to pilot an Opiate Drug Treatment Court. As the member of the District Attorney's Office who handles the largest portion of drug cases, I have served, along with DA Bensen, on the implementation team, which has been tasked with developing a pilot Drug Treatment Court in Washington County. As a member of this team, I have participated in grant applications and developing policies and procedures for the drug court. I have also worked to develop partnerships with other community stakeholders to incorporate services and resources into the drug court. Washington County has been substantially affected by the opiate crisis, and the drug treatment court presents an opportunity for the criminal justice system to partner with community stakeholders to bring resources to Washington County to address the treatment needs of drug-addicted criminal defendants while offering the community protection through the monitoring and accountability of the drug treatment court. I am proud to be part of the team that is working to bring this important resource to Washington County. My participation on this team reflects my interest in bringing resources to the Washington County justice system to use as alternatives to incarceration. Experience in adversary proceedings before administrative bodies: In private practice, l represented clients at administrative hearings held by the Department of Transportation regarding consequences for alleged operating while intoxicated offenses. Since becoming a prosecutor, on one occasion I appeared at an administrative hearing before the Department of Transportation that was related to a pending criminal case for which I was the assigned prosecutor. Describe your non-litigation experience (e.g., arbitration, mediation). To date, my practice has consisted entirely of litigation. However, I have extensive experience in negotiating stemming from the thousands of criminal cases I have prosecuted. In my role as a prosecutor, I strive to reach a fair resolution to both sides, which requires a meaningful exchange of information. an assessment of the strengths and weaknesses of each side's position, and exercise of professional judgment. I believe these skills are applicable to non-litigation legal experience such as arbitration and mediation. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Not applicable Previous runs for public office: Not applicable All judicial or non-partisan candidates endorsed in the last ten years: Todd K. Martens, Washington County Circuit Court, 2010 and 2017 Significant pro bono legal work or volunteer service: Through my membership in Emerging Leaders of Washington County, I have engaged in volunteer service at non-profit agencies in Washington County and United Way of Washington County. This volunteer service has most recently consisted of: donating and collecting personal care supplies and housing supplies for Karl's Place, a homeless program in Washington County; collecting school supplies for United Way's annual school supply drive; serving as team lead for the annual United Way of Washington County Campaign Kick-Off Event; fundraising via the Emerging Leader's Charity Golf Outing that benefits the United Way Campaign; serving as discussion facilitator at On The Table, an annual event to address community issues. I currently serve as a board member on the Board of Directors for United Way of Washington County, a board member on the Froedtert West Bend Community Hospital Board of Directors, as Co-Chair for Emerging Leaders of Washington County, and as a committee member for the Kettle Moraine YMCA Membership and Program Committee. I currently do not engage in pro bono legal work due to the nature of my employment. Quotes: Why I want to be a judge -- The opportunity to serve as a Circuit Court Judge in Washington County aligns with my strong desire to positively contribute to the community in which I live and allows me to use my education and skill set to do so. My decisions to obtain a law degree and practice criminal law were purposeful, and in the nearly ten years I have served as a prosecutor I have fortunate that my employment has allowed me to positively impact my community. Serving as a Circuit Court Judge in Washington County would be an opportunity to continue that journey by a means that represents a new professional endeavor. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. Gill v. Whitford is an important decision to the people of Wisconsin because it effects the value of every citizen’s vote. While the United States Supreme Court did not decide the issue of partisan gerrymandering of Wisconsin districts because it remanded to the district court on the issue of standing, Gill represents an opportunity to create a workable definition of unconstitutional partisan gerrymandering. The United States Supreme Court’s decision to remand the case on the issue of standing had a short-term negative effect on the people of Wisconsin insofar as the present district boundaries survive. However, future decisions of both the district courts and the United States Supreme Court in Gill and similar cases that address partisan gerrymandering are important to prevent the partisan watering down of an individual citizen’s vote. Two or three judges whom I admire and why: Honorable Todd K. Martens – Washington County Circuit Court Branch III I admire the Honorable Todd K. Martens, who I consider a professional mentor. I have known Judge Martens in a professional capacity for over ten years, and I admire his legal abilities and service to Washington County. I first met Judge Martens in 2008 when he served as Washington County District Attorney; I was a second-year law student at Marquette and had been assigned to his Office for an internship. During that internship I had the opportunity to observe how then-DA Martens lead the District Attorney’s Office and practiced as a prosecutor. I admired his leadership, his extensive knowledge of criminal law, and his litigation skills. In the sixteen months I practiced as a criminal defense attorney I handled several cases with the Washington County District Attorney’s Office, some of which were specifically with then-DA Martens. Switching from his intern to an adversary was a character-building experience, but once on opposite sides I gained a deeper perspective of the importance of candor and credibility between opposing attorneys. In 2010, then-DA Martens was appointed to the circuit court and I was hired by District Attorney Bensen as the newest Assistant District Attorney in the Washington County District Attorney’s Office. In the past nearly ten years, I have appeared before Judge Martens in hundreds of cases. As a judge, I admire his decisive nature and mastery of the law and procedure. He runs an efficient courtroom in which those who appear are expected to be prepared and productive. I have also witnessed and admire his community engagement outside the courtroom. In sum, I admire Judge Martens’ leadership in Washington County, his legal skills, and service as a prosecutor and judge. Justice Rebecca Dallet – Wisconsin Supreme Court I met Justice Dallet in my third year of law school as she was my professor in Trial Advocacy at Marquette University Law School. At that time Justice Dallet, a former prosecutor in the Milwaukee District Attorney’s Office, had recently become a court commissioner, and was actively campaigning for election to the Milwaukee County Circuit Court. Thereafter I have witnessed her service as a judge and ultimately as a Justice on the Wisconsin Supreme Court. Justice Dallet represents an individual who I have admired from afar because of her continual pursuit of professional development and service to both her immediate community and the State of Wisconsin. Justice Sandra Day O’Connor – United States Supreme Court (1981-2006) I admire Justice Sandra Day O’Connor as the first female justice appointed to the United States Supreme Court and an authentic, moderate, and candid jurist who played an integral role in a number of Supreme Court decisions during her twenty-four years on the Court. After retiring from the Court, Justice O’Connor has engaged in her community through programs aimed at civic awareness. Her commitment to educate and engage the public in civics aligns with my opinion that an informed and engaged citizenry is best for all. The proper role of a judge: The proper role of a circuit court judge is to interpret the law as written and apply it to the facts of a case to render a decision. Judges are not permitted to interpret the law to advance a social or political agenda. Circuit Court judges are responsible for a number of decisions that are vested heavily in an exercise of professional judgment. In this regard, a judge must employ a strong sense of judgment grounded in the law and based on reason, prudence, and common sense. A circuit court judge also has a role within both the legal community and the community at large. Especially within a close-knit county such as Washington County, a circuit court judge serves to shape the nature of the legal community practicing in the jurisdiction. The way in which a judge conducts himself or herself within the courtroom, their procedures and practices, and the manner in which they engage with the parties and lawyers have a great effect on the norms of the jurisdiction. A circuit court judge also serves a natural leadership role within the community at large by bringing attention to needs and issues of the justice system, raising public awareness and engagement, and by actively seeking resources to improve the justice system.
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 By Alexandria Staubach The Wisconsin Court of Appeals recently rejected a new Fourth Amendment warrant exception for canine searches, but different facts could lead to a different result in the future. The state argued in the case that an “instinct exception” permits canine searches that naturally extend into a vehicle during a traffic stop if the canine conducts the search “instinctively,” meaning without an officer’s direction, assistance, or encouragement. The appeals court concluded that regardless of whether an instinct exception to the warrant requirement exists in Wisconsin, the state failed to establish a necessary element of any such exception—that the canine act unprompted. The appeals court remanded the case to Sawyer County Circuit Court with an order to grant Ashley Campbell’s motion to suppress.  Gill District III Judge Gregory B. Gill wrote for the court, joined by Judges Lisa K. Stark and Thomas M. Hruz. Campbell pleaded no contest to possession of marijuana after Judge John M. Yackel denied her motion to suppress the marijuana found during a warrantless search of her vehicle. Yackel accepted the state’s argument for the instinct exception, which had not otherwise been adopted in the state of Wisconsin. Trooper Mitchell Kraetke initiated a traffic stop of Campbell’s vehicle after noticing that the vehicle did not have a front license plate and the passenger was not wearing a seat belt. As Kraetke stopped the vehicle, he called for Sergeant Al-Moghrabi to arrive with his canine to assist. After initially talking with Campbell and her passenger, Kraetke conducted a record check and discovered that Campbell’s license was suspended for failure to pay a forfeiture. Her passenger’s license was revoked due to a prior conviction for operating a motor vehicle while intoxicated. Al-Moghrabi arrived, talked briefly with Kraetke and then approached Campbell’s vehicle. He asked Campbell and her passenger if there was any illegal contraband in the vehicle, and both responded there was not. Al-Moghrabi then ordered both individuals out of the vehicle. Campbell did not close her driver’s side door when she exited, and it remained open. Kraetke then met with Campbell and her passenger behind the vehicle to discuss the traffic infractions. Meanwhile, Al-Moghrabi retrieved his canine from his squad car and walked the dog to the hood of Campbell’s vehicle, allowing the dog to “scan” it. “Scanning,” meant that al-Moghrabi allowed the canine to sniff independently instead of identifying certain areas of the vehicle for the dog to check. The canine’s leash had slack. Dashboard camera video from the trial court showed that Al-Moghrabi walked from the hood of Campbell’s vehicle, around the open driver’s side door, and up to the door’s entrance. Al-Moghrabi then stopped and allowed the canine to enter the vehicle. Al-Moghrabi was not pulling the leash or attempting to get the canine to exit the vehicle at any point. Al-Moghrabi testified that the dog began “sniffing intently at” a purse on the floor of the vehicle. According to Al-Moghrabi intent sniffing indicates an alert. The dog exited the vehicle and Al-Moghrabi repeated the steps. He walked the canine up to the door’s opening, stopped, and allowed the canine to enter the vehicle. Al-Moghrabi testified that on the canine’s second entry, it again began “sniffing intently” at the purse. Al-Moghrabi returned the dog to his squad car then searched the purse, finding marijuana inside. “(R)egardless of whether an ‘instinct exception’ to the Fourth Amendment’s warrant requirement exists when a canine ‘searches’ a vehicle, the exception does not apply under the facts in this case to excuse the State’s obligation to obtain a warrant prior to searching Campbell’s vehicle,” wrote Gill. “Here, the canine did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door. We therefore conclude that even if the instinct exception were to be recognized in Wisconsin, the exception would not apply to the canine’s searches in this case,” Gill wrote. Jurisdictions recognizing the instinct exception have split on whether reasonable suspicion that narcotics be present is required prior to the dog’s unprompted alert. The state argued in Campbell’s case that no independent basis for reasonable suspicion that narcotics are present is required.  By Alexandria Staubach
On Wednesday, a Dane County Circuit Court judge heard oral arguments on whether she should dismiss a case challenging two cash-bail constitutional amendments passed by voters in April 2023. The lawsuit asks the court to toss the results of the election on procedural grounds. The plaintiffs allege that the Legislature and Wisconsin Elections Commission (WEC) failed to timely file the Republican-backed resolutions calling for the voter referendums, so the questions should not have appeared on the ballot. One amendment expanded the situations in which cash bail could be imposed, while the other expanded conditions for release on cash bail. Notably, in the same year that Wisconsin voters expanded cash bail, Illinois became the first state to abolish it. The plaintiffs are WISDOM—a statewide network of mainly faith-based organizations—and EXPO Wisconsin. Both groups work to end mass incarceration. They “advocated strenuously” against the amendments, according to court filings. WISDOM and EXPO allege they were deprived of opportunities to organize against the resolutions. State law requires the Legislature to file ballot questions “with the official or agency at least 70 days before the election,” making the deadline for the Apr. 4, 2023 election Jan. 25, 2023. The lawsuit involves questions about who the appropriate “official or agency” is and the stricture of the 70-day rule and whether substantial compliance is enough. WISDOM and EXPO allege the law required the Legislature and WEC to submit ballot questions to county clerks and the Milwaukee County Board of Election Commissioners (MCBEC), as the entities who prepare ballots, on or before the deadline. The ballot questions were not received by county clerks and MCBEC until Jan. 26, 2023. Oral arguments occurred before Judge Rhonda L. Lanford at the summary judgment stage of litigation. Plaintiffs maintain that procedural impropriety motivates the suit. “Those who run our elections have to follow the law,” said Jeff Mandell of the LawForward law firm, which represents EXPO and WISDOM. WEC’s attorney, Charlotte Gibson, argued that the plaintiffs lack standing to bring the lawsuit and that the Legislature substantially complied with the requirements for filing. The 70-day deadline is “not mandatory,” she said. “The gerrymandered Wisconsin Legislature must respect the proper procedures for amending the state constitution,” and “attempts to push through constitutional amendments without the established legislative process are yet another example of legislative overreach,” said Mandell after oral arguments. Many working to end mass incarceration remain strongly opposed to the amendments. "The problem with the recent constitutional and statutory changes on bail is they move us away from an evidence-based system and more toward a system in which the charged offense drives the bail decision,” said criminal defense attorney Craig Johnson (who also is WJI’s board president). “Even a person accused of a serious offense maintains a presumption of innocence. If the evidence shows they carry a low risk of re-offending or missing court, they should be entitled to release. We always have to keep in mind that holding people on cash bail unnecessarily can cost them their jobs, their housing and their families. The cash bail system also unfairly impacts indigent and low-income defendants," Johnson told WJI. The nonprofit LawForward began in 2020 “with a mission of protecting democracy,” according to the firm’s website. Since then it has been involved in litigation regarding voting rights and ballot access, redistricting, and election administration, among other issues.  Photograph of the Wisconsin State Capitol by Margo Kirchner By Alexandria Staubach
Last week, conversations about elections loomed large at the Capitol in Madison, involving all three branches of government. Judicial branch On May 13, the Wisconsin Supreme Court heard oral arguments in Priorities, USA v. Wisconsin Elections Commission, a case that could restore the use of drop boxes in Wisconsin after they were banned by the Wisconsin Supreme Court in 2022. Oral arguments hinged on the question of whether state law makers and the law itself effectively banned the use of drop boxes by omitting them from a set of mandatory requirements applicable to absentee ballots. Chicago attorney Misha Tseytlin represented the Wisconsin Legislature as he has in numerous other high stakes cases, including Wisconsin’s most recent redistricting case. Tseytlin argued that “two years ago the Court made this decision,” so the court should be precluded from making any determination in the new case. Justice Janet Protasiewicz highlighted that the Legislature was not part of the case decided two years ago and at the time took a position “assuring federal and state courts that drop boxes were permitted” and “safe and secure.” Plaintiffs Priorities USA and Wisconsin Alliance for Retired Americans argued that the court’s prior interpretation of the law places an unnecessary restriction on casting absentee ballots and in practice is “unworkable.” They argued that under the court’s prior decision municipal clerks and voters are unable to decipher what they can and cannot do. According to the plaintiffs, the law only mandates specific minimum requirements and does not state every possible option for the return of ballots to clerks, leaving such decisions to the Wisconsin Elections Commission (WEC) historically. Justice Rebecca Grassl Bradley asked several times how clerks should be limited in their discretion and what prevented them from administering elections in “whatever way they choose.” WEC’s attorney, Faye Hipsman, responded that regardless of the use of drop boxes, clerks remain bound by all other election statutes, including statutes that require them to “conduct elections that are proper and secure.” Advocates for drop boxes held rallies around the state on the day of the oral arguments. At a rally in Milwaukee, ACLU-Wisconsin Deputy Advocacy Director James Stein said that “Drop boxes make it easy for folks to drop off their ballots hassle-free." He said that “for rural voters who have to drive far and wide to vote on election day, voters in large cities who have limited ballot return options, voters with disabilities, and voters who work long hours or have caregiving responsibilities that make it difficult to return a ballot to a single clerk’s office during shortened hours in the middle of the work day, drop boxes are essential. For voters who receive their absentee ballots late, drop boxes are critical for making sure their ballot can get returned in time to be counted." Stein noted how widespread drop box access was associated with extraordinary voter participation in 2020 and that in the 2022 general election over 760,000 Wisconsinites (almost 30% of voters in that election) cast their ballots absentee. “By fighting for ballot drop boxes, we're fighting for the very soul of our democracy," he said. At a rally in Madison, ACLU-Wisconsin Campaign & Political Manager Conor Miller said, “Over the past decade, we have witnessed several attacks on the fundamental right to vote. . . . “Enough is enough.” Executive branch On May 14, Gov. Tony Evers signed an executive order calling for a special election in the 4th Senate District to fill the seat of Sen. Lena Taylor. Taylor resigned as state senator following her appointment to Milwaukee County Circuit Court in January. The special election will take place on July 30. A primary will occur on July 2 if necessary. Legislative branch On May 16, the Assembly Committee on Campaigns and Elections and the Senate Committee on Shared Revenue, Elections, and Consumer Protection held a joint informational hearing about measures currently in place and investigations that may occur in the future to ensure election integrity. The committees' purpose was to “remove any conjecture that may be out there about what is occurring with elections,” said Rep. Scott Krug (R-Nekoosa). He added that the committee would continue to hold public hearings throughout the summer despite inconvenience to its members, to avoid “another 2020.” The committees heard testimony from the Department of Transportation regarding voter identification cards issued under current law. Ashley Reichert and Lida Tollefson, county clerks in Washington County and Rock County, respectively, discussed systems implemented in their jurisdictions to ensure election integrity. Fond du Lac District Attorney Eric Toney advised the committees that he was unaware of any significant voter fraud. Toney said his office has prosecuted only three voter fraud cases since 2020 and indicated that, at times, voter fraud is a crime that people do not necessarily know they are committing. For instance, persons under felony supervision may vote believing their rights have been restored. Testimony centered around three issues central to the committees: (1) non-citizen voting (2) voting by persons ineligible due to felony convictions, and (3) voting by persons who have been deemed incompetent to exercise the right to vote. Rep. Donna Rozar (R- Marshfield) inquired about the possibility of a shared database of incompetent voters. Tollefson and Reichert indicated that such information is provided by the WEC only to municipalities where incompetent individuals reside. They acknowledged the hypothetical possibility that a person who has been deemed incompetent could move to another municipality and be permitted to vote absent a readily available statewide list. Although not discussed at the hearing, the scenario raised by Rozar is the subject of a lawsuit making its way through the courts, Wisconsin Voter Alliance v. Kristina Secord. Wisconsin Voter Alliance (WVA) brought two failed lawsuits seeking to overturn the results of 2020 presidential election. The Walworth County registrar denied WVA’s open records request for notices sent to election officials (as required by current election law) when a court determines a person is incompetent. Walworth County believes the notices are not subject to disclosure under public records law. WVA argues that the public has an interest in the information, as shown by alleged discrepancies between notices issued to the WEC and the volume of notices published on WEC’s website. A Walworth County Circuit Court judge dismissed the case. The Wisconsin Court of Appeals reversed, ordering the records released, though with birthdates and case numbers redacted. In March, the Supreme Court agreed to review that ruling. This afternoon WJI petitioned the Wisconsin Supreme Court to require trained interpreters in municipal court proceedings involving low-English-proficiency (LEP) individuals.
WJI’s proposed new rule of procedure would bring municipal courts more in line with circuit courts, which are required to use “qualified” interpreters in proceedings involving LEP individuals. Qualified interpreters must meet certain requirements regarding their capabilities and accuracy. The current rule requires qualified interpreters in municipal courts only in matters involving juveniles. Otherwise, municipal judges are allowed to ask a party to bring a friend or family member—sometimes even a minor child—to court to interpret legal proceedings. “I’ve even seen a judge ask the gallery—the defendants awaiting their own cases to be called—if anyone spoke Spanish and could interpret proceedings when a woman did not bring someone with her to court,” said WJI Executive Director Margo Kirchner. The proposed new rule for municipal courts tracks the circuit court rule, with a major difference. The proposed rule divides proceedings into 1) evidentiary hearings that involve testimony and 2) other proceedings. Qualified interpreters would be required for all evidentiary hearings, including trials. In other proceedings, such as initial appearances or status conferences, the municipal court could use a telephonic, video, or computerized service approved by the director of state courts. Interpretation of legal proceedings by untrained friends, family members, or strangers would no longer be permitted. WJI wrote in its brief supporting the petition that “LEP individuals in Wisconsin today are not receiving proper access to qualified interpreters in municipal court proceedings.” Family members and friends acting as interpreters may not be proficient in the languages being used and may have conflicts of interest. “Even assuming they are proficient, these individuals almost certainly lack professional training as interpreters, let alone the specialized legal training necessary for properly interpreting court proceedings,” WJI wrote. “The ability to understand the words of the judge and the opposing party during a legal proceeding is a crucial element of due process. Without the help of a qualified interpreter, LEP individuals cannot meaningfully participate in their own legal proceedings This deprivation of due process rights has serious legal and practical consequences,” WJI wrote. WJI added that holding proceedings without providing qualified interpreters may also amount to national origin discrimination. “Very few defendants in Wisconsin's municipal courts have attorneys. This problem is compounded for those who do not understand the language being spoken in the courtroom,” said WJI board member and former Milwaukee Municipal Judge Jim Gramling about the need for the petition. “Municipal courts handle drunk driving cases, building and health code violations, charges of disorderly conduct, vandalism, marijuana possession, assault and battery. Forfeitures can reach into the thousands of dollars. Defendants in these cases deserve full interpreter services,” Gramling said. “Every court in Wisconsin, by law, must provide full interpreter services for defendants with one exception—the 230 municipal courts which handle over 400,000 cases every year,” Gramling said. “Municipal courts fly under the radar for the public and media, but that is where many people interact with the court system. As we say in our brief, municipal court cases involve real charges and real consequences," Kirchner said. “Those charged with offenses in municipal court, just as in circuit court, should be able to understand what is said and argue their case to the judge with accurate interpretation.” The petition is part of WJI’s broader effort to improve municipal court outcomes for defendants, especially low-income and minority individuals. “Since 2016, WJI has educated the public about municipal courts, monitored municipal court proceedings, and advocated for an end to jail and driver’s license suspension in response to unpaid municipal court forfeitures,” said Kirchner. “While monitoring municipal courts, we saw the frequent use of friends and family members when interpreters were needed,” said Kirchner. WJI has published public education information to help defendants understand municipal court proceedings. The materials include a Spanish-language video and pocket guide. Under the proposed rule, interpreters would be provided at municipal expense. WJI argues that the cost is reasonable and necessary in light of the important interests at stake. WJI awaits review of the petition by the Supreme Court. 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 necessary nature. We've deleted footnotes and headings. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them if helpful. Italics indicate WJI insertions except for case names, which are also italicized. The case: A.M.B. v. Circuit Court for Ashland County Majority: Justice Rebecca Grassl Bradley (23 pages), for a unanimous court Concurring: Grassl Bradley (12 pages), joined by Chief Justice Annette Kingsland Ziegler and Justice Brian Hagedorn Concurring: Justice Rebecca Frank Dallet (7 pages), joined by Justices Ann Walsh Bradley and Janet Protasiewicz Concurring: Justice Jill J. Karofsky (7 pages)  Grassl Bradley The upshot A creature of statute, adoption confers legal rights and duties on adopted children and their adoptive parents. The legislature has made policy choices regarding the circumstances under which children may be adopted and by whom. A.M.B. is the biological mother of M.M.C. and wishes to have her nonmarital partner, T.G., adopt M.M.C. Under the adoption statutes, T.G. is not eligible to adopt M.M.C. because T.G. is not A.M.B.'s spouse. A.M.B. and T.G. allege the legislatively drawn classifications violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in denying T.G. the right to adopt M.M.C. and in denying M.M.C. the right to be adopted by T.G. Because the adoption statutes do not restrict a fundamental right or regulate a protected class, we consider whether any rational basis exists for the legislative limits on eligibility to adopt a child. Among other legitimate state interests, promoting stability for adoptive children through marital families suffices for the statutes to survive this equal protection challenge; therefore, we affirm the circuit court. Background A.M.B. is the biological mother of M.M.C. and maintains a cohabitating, nonmarital relationship with her male partner, T.G. After more than a decade in a relationship with A.M.B., T.G. has become a father figure for M.M.C. and has assumed a variety of parental duties for her. The parental rights of M.M.C.'s biological father have been terminated. Based on T.G.'s fatherly bond and relationship with M.M.C., T.G. filed a joint petition with A.M.B. to adopt M.M.C. Prior to the adoption hearing, the county department of human services generated a "Home Study Report," which included a background check of T.G., a review of T.G.'s relationship with M.M.C., and an interview with M.M.C. The interview with M.M.C. revealed she did not have a meaningful relationship with her biological father and views T.G. as her father. The report concluded with a recommendation to grant the adoption. On June 20, 2022, the circuit court held a hearing on the adoption petition. At the outset, the court raised concerns over its authority to grant the petition given the criteria for adoption under applicable statutes, despite having determined the adoption would be in the best interests of the child, M.M.C. The circuit court cited this court's decision in Georgina G. v. Terry M., which the circuit court summarized as precluding "an adoption to a third party who is not the spouse of the parent." Because T.G. was not married to A.M.B., the circuit court determined T.G. was not statutorily eligible to adopt M.M.C. and denied the adoption petition. A.M.B. and T.G. appealed. The case bypassed the court of appeals on its way to the Supreme Court.  The guts Chapter 48 of Wisconsin Statutes establishes legal adoption and specifies the circumstances under which a child may be adopted as well as who is eligible to adopt. Under the statutes, a child who is present in the State of Wisconsin when the adoption petition is filed may be adopted under any of the following four scenarios: (1) the parental rights of both parents have been legally terminated; (2) both parents are deceased; (3) the parental rights of one parent have been terminated and the other parent is deceased; or (4) "[t]he person filing the petition for adoption is the spouse of the child's parent with whom the child and the child's parent reside." Subsection (4) applies only if the child's other parent is deceased or his parental rights have been terminated. Colloquially called the "stepparent" exception, this provision permits a stepparent to adopt his spouse's child while the spouse's parental rights remain intact. The adoption statutes additionally identify three classifications of individuals who may adopt an eligible child: "A husband and wife jointly," "either the husband or wife if the other spouse is a parent of the minor," or "an unmarried adult." The statutes do not allow two unmarried adults to jointly adopt a minor. Nor do the statutes permit a nonmarital partner to adopt his partner's child. Omitting those categories of unmarried individuals from the list of eligible persons who may adopt means the law does not qualify them as adoptive parents." . . . *** The court discussed why the adoption statutes do not implicate a fundamental right under federal or state constitutions and do not affect a protected class of individuals. If a fundamental constitutional right is not at stake and a protected class is not disadvantaged by the statute, the court applies rational basis review. A "relatively relaxed standard," rational basis review reflects the court's respect for the separation of powers and recognizes "the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one." In applying rational basis review, the court will uphold the statute provided the classification bears a rational relationship to a legitimate government interest. *** The state has a legitimate interest in ensuring children are adopted into "safe and stable families." The state may achieve this goal by encouraging married couples to adopt children and the legislature recognized the essential link between marriage and the welfare of children in "The Family Code." Marriage in the State of Wisconsin creates a legal bond between two persons who "owe to each other mutual responsibility and support." This legal bond creates a series of rights and obligations between the two individuals, dissolvable only by death or divorce. Wisconsin law imposes on each spouse "an equal obligation" in accordance with financial ability "to contribute money or services or both which are necessary for the adequate support and maintenance of" the couple's "minor children and of the other spouse." The state deems "[t]he consequences of the marriage contract" to be "more significant to society than those of other contracts." Unlike a nonmarital relationship, the legal union between two individuals through marriage cannot be terminated impulsively or spontaneously; the law requires a court proceeding to terminate the contractual relationship. If a child already has a legal parent, the state reasonably concludes it would be more beneficial for that child to be adopted into a marital family, rather than by an unmarried partner of the child's legal parent. As the state argued in its brief, the fact that marriage requires legal proceedings to terminate provides "some level of assurance" the adoptive stepparent "will remain committed to the family unit and the child’s upbringing." A child joining a family with married parents enjoys a greater likelihood of a financially stable upbringing compared to a household with two unmarried parents. In the event of a divorce, Wisconsin statutes create a presumption guaranteeing both marital partners leave the relationship on financially equivalent footing. This presumption "effectuates the policy that each spouse makes a valuable contribution to the marriage and that each spouse should be compensated for his or her respective contributions." Nothing comparable exists for unmarried couples. If an unmarried partner decides to sever the relationship, he may freely leave without an equal division of financial assets, to the financial detriment of the remaining parent and the adoptive child. Rational basis review is a "low bar" for the government to clear in an equal protection challenge. In this case, the state has met this burden because it is reasonable for the legislature to have concluded that a married couple would provide a more secure and financially stable home environment for adoptive children than an unmarried couple. While A.M.B. and T.G. may provide a safe, stable, healthy, and loving home for M.M.C., the judiciary is powerless to craft an exception to the adoption law on a case-by-case basis. "A legislative classification satisfies rational basis review if any conceivable state of facts could provide a rational basis for the classification." Petitioners cannot overcome the rational basis for the classifications established in the adoption statutes. Wisconsin has a legitimate interest in preferring the stability and security of a marital household for the upbringing of adopted children. The statute's classifications for whom may adopt a child reflects the state's interest in preferring stable and financially secure households for adoptive children. Petitioners argue the state draws an arbitrary and irrational distinction by permitting a single, unmarried adult to adopt a child but not a cohabitating, unmarried partner. We disagree. The legislative classifications bear a rational basis because the state may reasonably prefer a child to be adopted by a single, unmarried adult rather than be placed in foster care or another impermanent living arrangement. Because a child with one parent has permanency, the state has a legitimate interest in restricting adoption to the child's stepparent, who is more likely to provide a stable family and better outcomes for the child. Allowing married couples to adopt but not unmarried couples is consistent with the "public policy" of the state "to promote the stability of marriage and family." By allowing married couples to adopt but not unmarried couples, the state provides a benefit to married couples not afforded to unmarried couples. States "have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities." Precluding an individual from adopting his nonmarital partner's child merely makes marriage a basis for the adoption right, a classification rooted in our nation's history. Limiting adoption to married couples and single adults is neither irrational nor arbitrary because the state has legitimate reasons for the legislative classifications established . . . . Under rational basis review, the court does not judge the wisdom of the legislative classifications. Instead, we must uphold the statute's classification if there exists some rationale to justify it. In establishing eligibility to adopt or to be adopted, the legislature chose to prioritize the stability of marriage for adopted children with one parent, while preferring an unmarried adoptive parent to impermanency for a child with no parents. A rational basis exists for these legislative policy choices. We hold that the statutes do not violate the Equal Protection Clause because they serve the legitimate state interest in promoting the adoption of children into stable, marital families. Grassl Bradley concurrence For most of the history of the United States, constitutional-rights litigation occurred predominantly in state courts and centered on state constitutional rights. It's no wonder why. The individual rights protected by the United States Constitution did not originally apply to the states. Regardless, all individual rights protected under the Constitution originated from the guarantees of liberty embodied in state constitutional provisions. Even the practice of judicial review—the main vehicle by which citizens vindicate their liberties—originated in state courts. Invoking state constitutional rights, however, has been out of vogue for some time. Such claims have sometimes been relegated to "second-tier status," and an afterthought in legal briefs. Many commentators have noted the decline in the centrality of state constitutional claims as the United States Supreme Court federalized constitutional rights during the Warren Court era. Over the course of the twentieth century, and especially in the 1960s, the Court incorporated most federal constitutional rights against the states through the Fourteenth Amendment. As incorporation occurred, the Court also developed expansive—and novel—interpretations of the Constitution. As Justice William Brennan put it, the Court "fundamentally reshaped the law of this land" by "nationaliz[ing] civil rights." As a result, the relevance of state constitutions appeared to fade. Litigants stopped arguing their cases under state constitutions. Some state courts interpreted their state constitutions in lockstep with the federal courts' interpretation of the Federal Constitution. In recent years, a newfound interest in asserting state constitutional rights has emerged, which, in theory, should benefit individual liberty. State constitutional rights are just as important and worthy of protection as federal constitutional rights. And this court has a duty to enforce the rights protected under the Wisconsin Constitution. Not all arguments for enforcing state constitutional rights are rooted in text, history, and tradition; some stem from disappointment with the outcomes in certain United States Supreme Court decisions. Negative reaction to the Burger, Rehnquist, and Roberts Courts' reluctance to "innovate" new federal constitutional rights, triggered a resurgence of interest by litigants and legal commentators in asking state courts to fill the gap. For example, in two famous law review articles, Justice William Brennan urged state courts to "step into the breach" created by the Court, and argued that "activist intervention[s]" into democratic governance are less problematic when done by state courts. The pressure on state courts to intrude on the democratic process has intensified with the Court's landmark decisions in Rucho (gerrymandering) and Dobbs (abortion). Channeling the spirit of Justice William Brennan, Justice Rebecca Dallet argues this court should abandon its past practice of construing Article I, Section 1 of the Wisconsin Constitution to provide substantially identical protections as the Fourteenth Amendment. Instead, she invites litigants to ask this court to invent constitutional rights: "[T]he lack of settled case law [discussing Article I, Section 1] should be encouraging to litigants. It is up to us—judges, lawyers, and citizens—to give effect to the fundamental guarantees of Article I, Section 1." As a pivotal part of her call for activism, Justice Dallet claims this court has embraced a "pluralistic approach" to constitutional interpretation in which this court "balance[s] the majority's values against the values that should be protected from society's majorities." Nothing could be further from the truth or more corrosive to our democratic form of government. It is not for judges to superimpose their values on the constitution. The Wisconsin Constitution's text "is the very product of an interest balancing by the people," which judges cannot "conduct for them anew" in each case. The balance struck by the people of Wisconsin, as embodied in the constitution, "demands our unqualified deference." What the constitution does not say is as important as what it says. If the constitution itself does not bar majorities from passing certain laws, there is no lawful basis for judges to say otherwise. Nothing in the constitution authorizes judges to void laws that violate some judges' sense of what ought to be. There is a good reason jurists "seldom endorse[]" the views espoused by Justice Dallet openly: They contradict "the basic democratic theory of our government." Justice Dallet attempts to conceal her call for an antidemocratic power grab with the illusion of inclusive language. She intimates that future generations must each decide for themselves what the constitution means in their time: "It is up to us—judges, lawyers, and citizens—to give effect to" the constitution's words today. When the president of Wisconsin's 1848 convention said "the pages of our constitution . . . abound[] in the declaration of those great principles which characterize the age in which we live," he did not mean to characterize the constitution as an empty vessel into which each generation may pour its prejudices and aspirations. He meant exactly what he said. The new constitution embodied the values and principles of that time, and those principles were to remain fixed and endure throughout the ages: "[The Wisconsin Constitution] abounds in the declaration of those great principles which characterize the age in which we live, and which, under the protection of Heaven, will—nay, must—guard the honor, promote the prosperity, and secure the permanent welfare of our beloved country." Justice Dallet ultimately advocates for the discredited "practice of constitutional revision" by a committee of four lawyers who happen to form a majority on the court. Should a majority of this court—four lawyers—decide to imbue the constitution with modern meanings divorced from the constitutional text and the history and traditions of this state, they will rob the people of Wisconsin of their most important liberty: "the freedom to govern themselves." Although living constitutionalism is often couched in the rhetoric of flexibility and a purported need to adjust for a changing society, in practice it presents a grave threat to democracy by thwarting the people from passing legislation to accommodate changing views. Living constitutionalism invites lawyers donning robes to decide all the important issues of the day, removing their resolution from the political process altogether and depriving the people of any say in such matters. "In practice, the Living Constitution would better be called the Dead Democracy." Justice Dallet's invitation to reimagine the constitution's text with a so-called "pluralistic approach" flies in the face of this court's established method of constitutional interpretation and should be rejected. As with statutory interpretation, the goal of constitutional interpretation is to ascertain the meaning of the constitutional text as it would have been understood by those who adopted it. Judges lack any authority to "rewrite the Constitution to reflect the[ir] views and values." As stated by Justice Cassoday in 1890: "It is no part of the duty of this court to make or unmake, but simply to construe this provision of the constitution. All questions of political and governmental ethics, all questions of policy, must be regarded as having been fully considered by the convention which framed, and conclusively determined by the people who adopted, the constitution, more than 40 years ago. The oath of every official in the state is to support that constitution as it is, and not as it might have been." *** Any argument construing Article I, Section 1 of the Wisconsin Constitution to protect an asserted right must be grounded in the constitution's actual text and history. "Certainly, states have the power to afford greater protection to citizens under their constitutions than the federal constitution does." But it cannot simply be assumed that the Wisconsin Constitution provides more protection for an asserted right than the Federal Constitution: "[T]he question for a state court is whether its state constitution actually affords greater protection. A state court does not have the power to write into its state constitution additional protection that is not supported by its text or historical meaning." This court has stated many times that "[i]n interpreting a constitutional provision, the court turns to three sources in determining the provision's meaning: the plain meaning of the words in the context used; the constitutional debates and the practices in existence at the time of the writing of the constitution; and the earliest interpretation of the provision by the legislature as manifested in the first law passed following adoption." Litigants asserting a right under Article I, Section 1 must ground their arguments in those considerations—not policy or subjective moral judgments. Our constitution and our commitment to a democratic form of government demand nothing less.  Dallet Dallet concurrence I agree with the majority's conclusion that the adoption statutes are rationally related to a legitimate state interest, and therefore do not violate M.M.C.'s or T.G.'s rights under the Equal Protection Clause of the Fourteenth Amendment. For that reason, I join the majority opinion. I write separately to address petitioners' alternative equal protection challenge under Article I, Section 1 of the Wisconsin Constitution. Our constitution was written independently of the United States Constitution and we must interpret it as such, based on its own language and our state's unique identity. When we do so, there are several compelling reasons why we should read Article I, Section 1 as providing broader protections for individual liberties than the Fourteenth Amendment. We cannot simply assume—as petitioners seemingly did in this case—that these different constitutional provisions mean the same thing. *** (W)e have a long history of interpreting our constitution to provide greater protections for the individual liberties of Wisconsinites than those mandated by the federal Constitution. For example, we concluded that the Wisconsin Constitution guarantees the right to counsel at the state's expense in criminal cases more than 100 years before the United States Supreme Court recognized the same right in Gideon v. Wainwright. More than 40 years before Mapp v. Ohio, we held that suppression was the appropriate remedy for unlawful searches and seizures under our constitution. And we have also said that when police deliberately violate a criminal defendant's Miranda rights, our constitution requires that the evidence be suppressed, even if the Fourth Amendment doesn't require the same. More recently, we have endorsed the view that "[t]he Wisconsin Constitution, with its specific and expansive language, provides much broader protections for religious liberty than the First Amendment." *** Even a cursory review of Article I, Section 1 of our constitution and the Fourteenth Amendment indicates that the clauses have different meanings. Article I, Section 1 states, in its entirety: "All people are born equally free and independent, and have certain inherent rights: among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed." Compare this with the Fourteenth Amendment which provides in pertinent part that "No State shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Aside from two shared words—"life" and "liberty"—Article I, Section 1 and the Fourteenth Amendment are worded in dramatically different ways. Article I, Section 1 protects more than the enumerated rights of "life, liberty, or property." It declares unequivocally that all Wisconsinites have "inherent rights," a phrase that was written "to be broad enough to cover every principle of natural right, of abstract justice." Whereas the Fourteenth Amendment's protections extend only to those rights "so rooted in the traditions and conscience of our people as to be ranked as fundamental," the inherent rights contemplated by Article I, Section 1 are not so limited. Moreover, Article I, Section 1 begins with the clear and expansive declaration that all people are "born equally free and independent." As we said over a century ago, "[t]oo much dignity cannot well be given to that declaration." By contrast, the Fourteenth Amendment contains a narrower guarantee of "equal protection of the laws." *** Notwithstanding the many reasons to interpret our state constitution differently than the federal Constitution, litigants often overlook state constitutional claims, or fail to develop them fully. This case is a perfect example. Although petitioners argued that the adoption statutes at issue violate Article I, Section 1 of the Wisconsin Constitution, they offered little more than a citation to that section as support. Otherwise, the parties' briefs focused solely on the Fourteenth Amendment and federal precedent, and ignored the Wisconsin Constitution entirely. That omission is somewhat understandable. Lawyers are surely more familiar with the extensive case law interpreting the Fourteenth Amendment. By comparison, our case law regarding Article I, Section 1 is sparse. But we must break this self- perpetuating cycle whereby lawyers fail to develop state constitutional arguments because they lack clear legal standards, which further prevents courts from developing clear legal standards. In a way, the lack of settled case law should be encouraging to litigants. It is up to us—judges, lawyers, and citizens—to give effect to the fundamental guarantees of Article I, Section 1. And in doing so, I agree with what Justice Dodge wrote more than 100 years ago, when he said that Article I, Section 1, should "not receive an unduly limited construction."  Karofsky Karofsky concurrence
I agree with the majority that A.M.B.'s constitutional challenge merits rational basis review and that the challenged adoption statutes have a rational basis under the law. Rational basis review presents a low bar for the state to clear. We need only to conceive of a single rational connection between the statutes and a legitimate state interest in order for us to uphold the statutes' constitutionality. Here it is rational for the legislature to connect marriage to relationship longevity, then relationship longevity to household stability, and finally household stability to the child's best interest. Because there is a conceivable logic behind those connections, the statutes have a rational basis. But in this case, the logical threads begin to shred under the weight of any sincere scrutiny. Here, we are left with the inescapable fact that the legally rational statutes prevented an adoption that all agree would have been in A.M.B.'s best interest. This incongruent outcome exemplifies the specious connection between the statutes and their stated goal of promoting a child's best interest. At first glance the connection may seem neatly knitted together; however, closer inspection reveals nothing more than a fraying tangle of dubious assumptions, circular reasoning, and outdated values that fail to reflect the practical realities of modern family life. I write separately to call out these three fraying threads that form an ever weakening connection between our adoption statutes and the goal of a child's best interest. I urge the legislature to reform the adoption restrictions so that they truly support the best interest of every child. The first fraying thread connecting the adoption statutes to the best interest of a child is a set of dubious assumptions regarding the stability of marital families compared to non-marital families. To be clear, the state has a legitimate interest in making sure that legal decisions involving a child are made based on the best interest of that child. And there is no doubt that it is in a child's best interest to grow up in a safe and stable household. However, conditioning adoption on the marital status of the child's parent and prospective adoptive parent reflects questionable assumptions about which types of households are stable, and which are unstable. There are many different family structures that create stability for children, and the statute's one-size-fits-all approach can actively work against the benefit of a child, as it did in this case. Children can and do thrive in families with single, unmarried, or married parents. This case is an excellent example of the second category. T.G. has, by all accounts, demonstrated dedication and commitment to A.M.B. over the past decade, and for her part A.M.B. reports that she views T.G. as a father figure. There is no dispute that adoption would be in A.M.B.'s best interest. Moreover, children can and do struggle in households with married parents. Married couples may, on average, stay together in the same household longer than unmarried parents, and that may look like stability from a thousand-foot-view. But inside the home, the legal pressure for a married couple to stay together, the very thing that makes the household appear stable in a superficial sense, may sometimes lead to worse outcomes for children. More than 20% of children have witnessed domestic violence within their lifetime, often resulting in long term harm to their development. Even short of domestic violence, legally "stable" marriages may be rife with stressors for the children in those homes. Even ignoring the challenges that may arise when a married couple remains together, marriage is hardly a guarantee of relationship stability given that divorce rates have continued to rise in the United States since the Civil War. In short, using marriage as a litmus test for household stability reflects suspect assumptions about which family structures create stability, and what it means for a household to be stable in the first place. Marriage is treated as binary, where married parents check the stability box, unmarried parents do not, and all nuance is disregarded as insignificant. In cases such as this where unmarried parents provide stability, there is no tolerance for any exception. And, as a result, children suffer. The second frayed thread linking the adoption statutes to the best interest of the child goal is little more than tail-wagging-the-dog circular reasoning. It goes like this: The state grants a "constellation of benefits" to married couples related to "taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decision making authority," and more. The state then uses those benefits as justification to grant yet another benefit to married couples—here, adoption rights—reasoning that because married couples are already well-supported by the state, they are in a better position to receive the new benefit. The connection between the granting of the benefit and the state's goals is thus substantially manufactured by the state, resulting in a spiral of ever-expanding benefits to married couples, leaving alternative family structures further and further behind. Perhaps the answer then is not to limit adoption benefits to married couples on the basis that the other benefits they receive make them "safe and stable," but for the legislature to expand support for alternative family structures, making them even more "safe and stable," and (from the state's point of view) suitable for adopting children. The third unraveling thread is an outdated set of values positioning marriage as the moral center of family and society. These values sometimes lurk beneath other seemingly neutral rationales for marital benefits (such as ensuring household stability), only surfacing occasionally as a reminder to us that they are still there. Sometimes these values are front and center, serving as the main justification for a marriage-based distinction under the law. To explain what is fundamentally wrong with using this set of values to justify marriage-based laws, I turn to an 1888 U.S. Supreme Court case . . . that expounded on marriage as "the foundation of the family and of society, without which there would be neither civilization or progress." At the time those words were written, the following was true about the institution of marriage. Coverture laws subordinated married women to their husbands' legal control, eliminating their legal and economic identities. As a result, a married woman's property, earnings, and labor automatically belonged to her husband. In addition, there was no legal recourse for a married woman whose husband had sexually assaulted her, which would be true well into the 1970s in many states. And neither married women nor unmarried women had the right to vote, to exercise civic influence in order to right these wrongs. Furthermore, marriage was limited exclusively to heterosexual relationships. And, marriages between people of differing races and ethnicities were widely banned. In short, if marriage was the foundation of the family and of society in 1888, there was something rotten at the core of that foundation. Times have changed, of course, but the justification that marriage is the moral core of society and the family is as weak as it ever was. With only about half of U.S. adults in a marriage, first marriages beginning later in life, and increasing divorce rates over time, Americans are spending more and more of their adult lives unmarried. Unsurprisingly then, nearly one third of children live in a single-parent home. Yet many Americans still desire to create families. Functional, stable families continue to form as alternative family structures proliferate and garner greater societal acceptance. The notion that marriage serves as the foundation of society is at best outdated, and at worst misogynistic. It provides scant justification for laws that distinguish based on marital status. By Margo Kirchner
We continue our summary of justice-related laws passed this last legislative session, many of which created new crimes and increases criminal penalties rather than easing the number of incarcerated individuals and the harsh aspects of Wisconsin's criminal justice system. Part 1 is available here. Except for interim committee work, the Legislature has adjourned until after the November 2024 elections. Here’s more of what was signed into law. Senate Bill 314, now 2023 Wisconsin Act 224 Current law criminalizes possession of child pornography involving a real child engaged in actual or simulated sexually explicit conduct. This law adds a new felony crime for receiving, distributing, producing, possessing or accessing an obscene photograph, film, or digital or computer-generated image that appears to depict a child engaged in sexually explicit conduct even though no actual child is in the image. Senate Bill 321, now 2023 Wisconsin Act 225 The Legislature created a new crime for illegal possession of a “child sex doll,” with various levels of felony punishment based on number of dolls, repeat offenses, and past convictions for other crimes against children. A child sex doll is defined as an anatomically correct doll, mannequin, or robot with features resembling a minor child, intended for use in sex acts or to manipulate or instruct children to participate in sex acts. Manufacture, sale, transferring, advertising, and providing premises for child sex doll use are also prohibited. Senate Bill 514, now 2023 Wisconsin Act 226 This law increases the felony level penalties for fleeing an officer. It provides for mandatory minimum incarceration periods of 18 months if the violation results in great bodily harm and 30 months if the violation results in death. Senate Bill 169, now 2023 Wisconsin Act 228 This law requires the Department of Workforce Development to establish a toll-free telephone hotline and website with information to help employers interested in hiring individuals with a conviction record. The hotline staff are to provide information on available incentives and programs under state and federal law for employing individuals who have criminal conviction records. Senate Bill 722, now 2023 Wisconsin Act 229 This law requires that Department of Corrections’ training programs for correctional officers include identifying symptoms of active psychosis and reporting such symptoms to the correctional institution’s superintendent and appropriate medical personnel. In addition, the new law expands who may authorize a voluntary transfer of an incarcerated person from jail or prison to a mental health treatment facility. Previously only a physician or psychologist could do so; now a registered nurse, licensed practical nurse, or physician assistant can as well. The law requires that DOC authorize an emergency transfer to a mental health treatment facility or the Wisconsin Resource Center if there is reason to believe a person in DOC care is in active psychosis and a danger to self or others. Assembly Bill 237, now 2023 Wisconsin Act 230 Act 230 changes procedures regarding parole and extended supervision hearings and release. The law increases the notice period for victims from seven to 30 days before the parole or other release hearing, provides that a victim has the right to make an oral or written statement and present visual aids at any hearing, and requires the person being considered for parole or extended supervision release to submit to a psychological evaluation beforehand. The law also allows a police chief or sheriff where the person plans to reside upon release to share information regarding the released individual with the public, if the law enforcement officer thinks it necessary. Assembly Bill 556, now 2023 Wisconsin Act 231 Courts must expedite proceedings in criminal and juvenile matters involving a victim or witness who is an elder, meaning age 60 or older. On any motion for continuance, the court must consider any adverse impact on the well-being of an elder victim or witness. The court must also preserve testimony in criminal matters involving a victim or witness who is an elder if the prosecutor so requests. Upon the prosecutor’s motion, the court must hold a hearing within 60 days to record the elder person's testimony, with the defendant present and able to cross-examine the witness. The recorded testimony will be admissible in evidence in any later court proceedings in the case. Senate Bill 172, now 2023 Wisconsin Act 233 This law requires the DOC to contract with at least one nonprofit organization, for-profit entity, or public agency to establish a community reentry center to assist those released from incarceration with health, identification, financial, housing, employment, education, and supervision services. The DOC must prioritize contracts in counties with the highest numbers of individuals being released from incarceration. DOC staff must be present at the centers to provide case management services. Assembly Bill 965, now 2023 Wisconsin Act 234 As reported previously by WJI, this law creates a new misdemeanor crime for picketing or demonstrating at a judge’s residence with the intent to impede the administration of justice or influence the judge in the discharge of judicial duties. Assembly Bill 966, now 2023 Wisconsin Act 235 As reported previously by WJI, this law enhances privacy protections for judges. The law includes creation of a new felony for publicly posting on the internet personal information of a judicial officer or their immediate family if the intent of the posting is to create or increase a threat to the health and safety of the judicial officer or their family and bodily injury or death of the judicial officer or family member is a natural and probable consequence of the posting. Senate Bill 874, now 2023 Wisconsin Act 254 Certain sex offender registry lifetime tracking requirements and notifications are required for someone released after having been convicted :on two or more separate occasions." This law defines how prior offenses are counted for that purpose. The new law is retroactive, and the DOC must notify persons who were not subject to the lifetime tracking requirement before the bill took effect but now are. If a person fails to register as a sex offender or submit to lifetime tracking within 30 days of notice, the violation is a new felony. By Gretchen Schuldt
Little progress was made this last legislative session to ease the state’s tough criminal justice laws, while Gov. Tony Evers — who took office talking about reducing the prison population — signed several bills creating new crimes and harsher penalties. An oft-introduced bill that would have eased expungement rules and another bill that would have provided juveniles sentenced to life in prison with a chance at reduced sentences failed to get to the governor’s desk. The Legislature has no more floor periods scheduled until the next legislative session begins in January 2025. Here’s a look at what was signed into law. Senate Bill 292, now 2023 Wisconsin Act 1 The law lets municipalities adopt ordinances allowing law enforcement officers to grab up and impound a vehicle if all of the following conditions are met:
The ordinance can call for the vehicle to remain impounded until its owner pays off the earlier forfeiture and for the costs of impoundment, including “towing or other transportation costs and storage costs.” If the owner does not claim the vehicle for 90 days after the disposition of the ticket, the municipality can treat the vehicle as abandoned. Senate Bill 75, now 2023 Wisconsin Act 3 This law was enacted to implement two changes to the state constitution approved by voters in April 2023. Before the amendments, the constitution limited monetary bail to the amount needed to assure a defendant’s appearance in court or to protect members of the public from serious bodily harm. Voters approved changing the constitution’s wording from “serious bodily harm” to “serious harm” as defined by the Legislature defined it in law. The Legislature in this new law adopted a broad definition of “serious harm” after the amendments were adopted. "Serious harm" now includes damage to property over $2,500; economic loss of $2,500; or physical pain, injury, illness, any impairment of physical condition, or death, plus any related mental anguish or emotional harm. Voters also approved allowing a court to impose cash bail for those accused of a "violent crime" as defined by the Legislature, “based on the totality of the circumstances, taking into account whether the accused has a previous conviction for a violent crime as defined by the legislature by law, the probability that the accused will fail to appear in court, the need to protect members of the community from serious harm as defined by the legislature by law, the need to prevent the intimidation of witnesses, and the potential affirmative defenses of the accused.” The new law defines "violent crime" with a long list of crimes and conforms statutory law to the constitutional change. Assembly Bill 55, now 2023 Wisconsin Act 9 Prior to the new law, penalties for reckless driving ranged from a $25 forfeiture to a maximum penalty of 3½ years in prison and a $10,000 fine. The new law stiffens the penalties and adds surcharges. The penalty changes include:
People found guilty of reckless driving also will be assessed a $435 driver improvement surcharge and a $50 safe driver surcharge. Senate Bill 76, now 2023 Wisconsin Act 10 This law increases the penalty for carjacking while possessing a dangerous weapon, by use of force, or by the threat of the weapon. The maximum penalty jumps from 40 years in prison and a $100,000 fine to 60 years in prison. Senate Bill 101, now 2023 Wisconsin Act 29 The penalty for causing the death of another by the unlawful distribution of a Schedule I or II drug or their analogs, ketamine, or flunitrazepam (“roofies”), or by illegally administering or helping to administer those drugs increases from 40 years in prison and a $100,000 fine to 60 years in prison. Assembly Bill 47, now 2023 Wisconsin Act 31 Parole Commission transparency is increased under this bill. It requires the Department of Corrections to post, on the Parole Commission website, the individuals “granted parole, denied parole, and returned to prison following the revocation of parole.” DOC must post monthly and annual aggregate numbers showing:
The law mandates the agency post any guidance documents the Parole Commission uses in making parole decisions. The law allows family members of victims, who were under 18 years old at the time of the crime but who are now adults, to request notification of when the offender is requesting parole or is released on parole or supervision. The measure also increases, from three weeks to 90 days before a parole hearing, the deadline for notifying certain people that an incarcerated person has applied for parole. Assembly Bill 166, now 2023 Wisconsin Act 61 There are new actions that constitute “sexual contact” in determining crimes against children and sexual assault. Those actions include “touching by the complainant of the ejaculate, urine, or feces of any person upon the intentional instructions of the defendant, upon the use or threat of force or violence by the defendant, or upon an intentional act of the defendant.” Senate Bill 485, now 2023 Wisconsin Act 133 The definition of financial institution robbery is expanded under this law to include robbery accomplished “by creating circumstances that would cause a reasonable person to believe use of force was imminent.” The definition previously was limited to robbery “by use of force or threat to use imminent force” to take property owned or in the custody or control of a financial institution. Senate Bill 313, now 2023 Wisconsin Act 154 The penalty for failing to stop for a school bus when it is stopped and flashing red warning lights is increased under this law. The forfeiture rises from a $30 to $300 range, to $1,000. The Wisconsin Department of Transportation also must assess demerit points for any infraction. Senate Bill 460, now 2023 Wisconsin Act 159 This law adds railroad construction and maintenance areas to other areas (such as highway construction areas) where workers are at risk from traffic. The law doubles fines for certain traffic violations committed where workers are present in a railroad construction or maintenance area. Senate Bill 333, now 2023 Wisconsin Act 200 A new crime, sexual misconduct against a pupil, is created under this law. The new law prohibits certain conduct by a school employee or volunteer, including verbal conduct of a sexual nature, meaning “communications made intentionally for the purpose of sexually degrading or sexually humiliating the pupil or the actor, or sexually arousing or sexually gratifying the pupil or the actor,” according to a Legislative Council amendment memo. It also prohibits physical contact of a sexual nature. The Department of Public Instruction must revoke the licenses of those convicted of sexual misconduct. Assembly Bill 437, now 2023 Wisconsin Act 212 This law increases, from $1,000 to $5,000, the forfeiture for a fraud-involved violation of an insurance statute or rule. Senate Bill 875, now 2023 Wisconsin Act 217 Testing materials involved in detecting the drug xylazine or a xylazine analog are exempt from the definition of illegal “drug paraphernalia,” under this law. The law also provides civil and criminal immunity to anyone who distributes such testing material if a person dies or is injured as a result of the material’s administration. The person administering the testing material also is provided immunity, “except for civil liability for negligence in the performance of the act.” More to come in part 2. By Margo Kirchner When John Remington takes his seat this month as Milwaukee County Circuit Court judge, he will be the eighth new judge joining the court during the past 12 months. And once newly elected Marisabel Cabrera takes her seat, about one-fifth of the judges on the court will have been appointed since June 2023. Cabrera’s term starts Aug. 1. For comparison, just one judge started on the court in all of 2022 and two in 2021. “Is it unusual to have this many (new judges)? Yes, no question,” said Milwaukee County Circuit Court Chief Judge Carl Ashley in an interview with WJI. Cabrera and Judge Ana Berrios-Schroeder were elected. The other seven new judges were appointed by Gov. Tony Evers to fill vacancies. (Several of the appointees then won election in April to serve new terms beginning Aug. 1.) A chart below shows the new judges and their start dates based on information provided by Ashley. Milwaukee County Circuit Court has 47 judicial seats (called branches). In lesser-populated counties, some with just one judicial seat, the judges hear all varieties of cases. But in Milwaukee County, judges are assigned to specific divisions such as felony, misdemeanor, civil, probate, children’s, or small claims court. Ashley said that historically most new judges have started in children’s or misdemeanor court. However, when a judge had prior experience in a particular area of the law, a start in another division has occurred. Becoming a judge is a transition, he said, and “We want to be supportive of the judge” during that transition. Veteran judges are always helpful for the new judges, he said. In Milwaukee County, judges generally rotate after four years maximum in a particular division. For rotations, the chief judge takes into account where the judges want to be assigned, their seniority, and other factors. Ashley said we wants to have the best judges where they are needed. “Does (the number of new judges) impact the ability to assign judges? Yes,” he said, adding that it's all part of balancing and “just something we have to adjust for.” “As one would expect, there’s a bit of a learning curve that every judge experiences as they acclimate themselves to being a judge. As chief judge that impacts how judge assignments are made, but that is the nature of the process,” Ashley told WJI. The number of new judges is not the only change that today impacts initial judge assignments to children’s court, Ashley said. Children’s court has changed as well, with nearly 10 homicide cases in children’s court in the past year, compared with perhaps one per year before then, he said. “Things have changed on both ends." Ashley noted his respect for the judges who have retired recently. “I certainly want to acknowledge our veteran judges who have served our community for decades with great skill and commitment. The legacy of their mentorship has been and will be invaluable to our newer judges,” he said. Currently, a committee led by Deputy Chief William Pocan and District 1 (Milwaukee County) Court Administrator Stephanie Garbo is studying rotation procedures for Milwaukee County Circuit Court. Ashley said the process for rotations was last assessed about 15 years ago. The committee gathered survey data and other input from attorneys, current and retired judges, and the public. The committee will soon present Ashley with recommendations for any changes to the processes and policies governing rotations.  |
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