Attorney General Brad Schimel had a conflict of interest in the Milwaukee residency rule case, as did Justices Patience Roggensack and Annette Ziegler. Read the WJI statement.
Justice Gableman's silly decision
The Wisconsin Supreme Court, in a case that is sure to diminish whatever respect the public still holds for it, decided yesterday that a law is just fine if it looks fair on the page, but is not fair as it actually works in the real world.
Justice Michael J. Gableman's opinion in the 5-2 decision (Justices Shirley S. Abrahamson and Ann Walsh Bradley dissented) is comical, but not funny. At issue was a law prohibiting local governments from enforcing residency rules for public employees. The question was whether Milwaukee -- which faces more harm through the loss of residency requirements than other communities do -- could keep its residency rule through "home rule," which allows local governments to make its own rules on matters of local concern.
No, said Justice Michael Gableman, writing for the majority. As long as a law looks like it treats local governments across the state equally -- even though it does not -- the state can adopt legislation superseding home rule. The mere appearance of fairness is enough.
Reality need not count, according to Gableman, "as long as the statute, on its face, uniformly affects cities or villages throughout the State."
Gableman's decision defies logic. Imagine the Legislature adopted a law that all two-legged creatures must have their wings cut off. That looks fair on its face, but in real life, people would have a lot less to worry about than birds.
Or imagine the Legislature adopted a law that all Wisconsin residents be stripped of their common sense. That looks fair on its face, and might do great harm to a great many Wisconsin residents, but Justice Gableman would have nothing to worry about at all.
The American Civil Liberties Union just sued the Solano County, California courts over the way it suspends driver's licenses because of unpaid tickets and fines without first determining whether the defendants were able to pay or "willfully" refused to pay.
Holy Wisconsin -- Milwaukee Municipal Court does that, too. It's a wonder that the courts here are so slow to fix practices they know can get them in trouble -- and why the City of Milwaukee and the state court system allow these bad practices to continue.
Here's some pieces of the California filing -- just substitute the words "Milwaukee" or "Milwaukee Municipal Court" where appropriate and you'll get the picture.
Plaintiffs bring this lawsuit to protect a fundamental principle of our justice system-that a person should not be punished simply for being poor. In California, many thousands of people have had and continue to have their driver's license suspended because they are unable to pay fines and fees related to minor traffic citations and other infractions.
Milwaukee Municipal Court suspends driver's licenses for up to a year for unpaid tickets in cases that have absolutely nothing to do with traffic violations. In Wisconsin last year, almost 200,000 driver's license suspensions -- more than half of all the suspensions statewide -- were attributable to failing to pay forfeitures, according to the State Department of Motor Vehicles. Another thousand licenses were suspended because of truancy -- some of those kids may not have even had their licenses yet.
Back to the California / Milwaukee case.
As both the federal and state supreme courts have recognized, for many, having a driver license is not a luxury, but essential in the pursuit of a livelihood. Many low wage jobs require a license. Lack of adequate public transportation means that being able to legally drive can be necessary in order to work, or to take children to school or to medical appointments, or to care for ill or disabled family members. While those who can afford to pay, do, for those who cannot, the suspension of their license for nonpayment of fines and fees constitutes nothing less than a harsh sanction solely for being poor-a punishment that paradoxically further impairs a person's ability to meet her financial obligations to the courts....
Because the Superior Court fails to provide adequate notice that individuals are entitled to an ability to pay determination with respect to their traffic fines and fees, many people who are indigent and cannot pay the staggering cost of a typical traffic ticket in California believe that it is futile to appear or otherwise contact the court. Accordingly, Defendants' practices also violate the due process rights of indigent traffic defendants whose licenses are suspended for failure to appear because they do not have adequate notice that they are entitled to relief based on their financial circumstances.
In addition, Defendant Superior Court's practices constitute a system that impermissibly classifies and punishes similarly situated persons on the basis of wealth. Those who can pay traffic tickets do, and thus avoid the extreme sanction of driver's license suspension. In contrast, those who cannot afford to pay have their licenses suspended, jeopardizing their livelihood, freedom, and ability to care for their loved ones, solely because of their indigency. Such a result violates the guarantee of equal protection under both our state and federal constitutions.
Not only do Defendant Superior Court's practices violate the law, but they also are misguided as a matter of public policy. Indeed, in its recently issued guidance, the U.S. Department of Justice urged state and local courts to "avoid suspending driver's licenses as a debt collection tool" because of the significant harm caused by license suspensions to individuals and families. As noted by the Department of Justice, "research has consistently found that having a valid driver's license can be crucial to individuals' ability to maintain a job, pursue educational opportunities, and care for families."
Hey -- you listening, Milwaukee?
A federal judge has denied the state's request to throw out a lawsuit challenging the constitutionality of the state's "cocaine mom" law that allows pregnant women to be locked up if they test positive for illegal drugs.
The suit, filed by Tamara Loertscher, alleges that she was not provided prenatal care during the 18 days she was jailed in Taylor County and that she was thrown into solitary confinement for refusing to take a urine test to confirm her already established pregnancy.
State Attorney General Brad Schimel, who already failed one attempt to get the case against the state and Taylor County thrown out, lost again. Schimel argued that Loertscher's case was moot because she moved out of state and no longer was subject to the statute, but US District Judge James D. Peterson disagreed.
The law continues to affect other women, "allegedly hundreds every year," he wrote in his decision. "
"Accordingly, the case attacks an ongoing policy that 'has not evaporated or disappeared, and, by its continuing and brooding presence, casts what may well be a substantial adverse effect on the interests of the petitioning parties,'" he wrote, quoting a relevant 7th Circuit Court of Appeals decision.
"The state defendants apparently stand ready to enforce (the law) across the state, but the proceedings are still shrouded in confidentiality, making it difficult to determine the extent of enforcement," Peterson said, concluding: "The issues in this case are still very much alive."
Peterson did dismiss some individual defendants from the case, ruling the law gave them immunity.
A divided Appeals Court panel ruled last month that handcuffed a man and placed him face down on his kitchen floor by a heavily armed SWAT team was not "in custody" and did not have to be read his Miranda rights before being questioned a bit later by armed officers.
The SWAT team left and the handcuffs were removed from the man, Brian Kilgore, before the questioning occurred, but he was not free to leave his house at the time and was ordered to stay in the living room when he tried to leave, according to the panel.
"A seizure, as compared to custody, is limited in duration and scope, and does not have the same element of coercion," District 2 Court of Appeals Judge Lisa S. Neubauer wrote, upholding the ruling by Sheboygan County Circuit Judge Terence T. Bourke that Kilgore was not in custody when he was questioned.
Kilgore eventually was convicted of second-degree sexual assault for drugging and raping a woman in a home he shared with another man. The search warrant authorized police to both search the home and get DNA samples from both Kilgore and his roommate to compare to DNA found on the victim.
Neubauer was joined in her opinion by Appeals Judge Mark D. Gundrum. Appeals Judge Paul F. Reilly, while concurring that the search warrant was valid, dissented from the finding that Kilgore was not in custody.
"I look at the objective facts from the record and see the scene of a 'police dominated atmosphere' in which a reasonable person would not have felt at liberty to terminate the interrogation and leave," he wrote in his partial dissent.
Neubauer said police questions focused first on Kilgore's roommate, who Sheboygan Police Detective Tamara Remington said during a suppression hearing was the main suspect in the case.
Remington also testified that Kilgore's interrogation took "a very long time." During it, he was very talkative and "seemed all too eager to implicate (the roommate) as best he could," Neubauer wrote. In addition, the questioning occurred in Kilgore's own home and not in the "inherently coercive" surroundings typical of an in-custody-interrogation, the judge said.
Kilgore was not allowed to leave, but he was not in custody.
While Kilgore was not free to leave, police did not tell him that, Neubauer wrote. In addition, Kilgore could leave "when the officers were done, i.e., he was not under arrest, but rather, temporarily detained," she said.
Reilly, in his partial dissent, noted that the search warrant included Kilgore as a suspect and that during the suppression hearing, Remington "changed her tune" from Kilgore being a suspect to Kilgore being a potential witness.
"In my opinion, it is illogical for the majority to agree that probably cause existed that Kilgore had drugged and raped (the victim)...while at the same time accepting Remington's revisionist testimony that Kilgore was never a suspect, only a 'potential witness,'" he wrote.
The warrant was executed by Remington and 11 other officers, including a SWAT team, he said. After the SWAT team left, at least five armed officers remained. Police never told Kilgore whether he was or was not under arrest, that any cooperation he gave was voluntary, or that he was free to leave, Reilly said.
"I place emphasis on the on the fact that Kilgore was thrown to the floor with M4 rifles pointed at his head and shackles placed on his arms, that at least five armed officers remained in the house after the SWAT team vacated, on Remington's admission that Kilgore was not free to leave during her interrogation, that Remington was not going to take the buccal swab of Kilgore until she finished her interrogation as she knew that as soon as the buccal swab was taken that Kilgore would be free to leave, and that when Kilgore tried to leave the living room he was ordered to stay where he was," Reilly wrote.
"The totality of the circumstances demonstrate that the police aggressively engaged in executing a search warrant in Kilgore's home and dominated the scene for the entire time that Kilgore was questioned," he said.
The State Department of Justice has quietly dropped the maximum 50:1 student/teacher ratio it established for firearms training required to qualify for a concealed weapons permit, according to state emergency rules rules distributed Monday.
That means a person can be fully qualified to carry a concealed weapon by attending a class with 1,000 other people. Actual shooting experience not required.
"The legality of the 50:1 requirement is being challenged in pending litigation," DOJ said in a statement explaining the decision. "In the course of that litigation, DOJ has determined that the 50:1 requirement is not enforceable under existing law and should be repealed."
The department already has stopped enforcing the class size limit, which was established by rule, the DOJ statement said.
"The public welfare requires formal repeal of the 50:1 requirement by emergency rule in order to make it clear to the public that the requirement is no longer being enforced and to promptly resolve the pending litigation with the least burden and inconvenience to the Court and the parties and with the least litigation expense to the people of the State of Wisconsin," the statement said.
Gov. Scott Walker approved repealing the class size limit. Concealed Carry, Inc. was the organization challenging the limit in court.
DOJ said in its statement the state law allowing Wisconsin residents to carry concealed weapons specifically prohibited the department from "imposing conditions, limitations, or requirements on the issuance of a CCW license that are not specifically provided for" in the statute.
Below is the rule. That language DOJ is eliminating is in bold.
TEXT OF THE PROPOSED PERMANENT RULE
SECTION 1. Jus 17.03 (8) is amended to read:
Jus 17.03 (8) "Instructor-led" means training that is conducted face-to-face individually or in groups with an instructor-student ratio that does not exceed 50 students per instructor and in which instructors actively guide students through each lesson, answer questions, facilitate discussion, and provide feedback on activities and assignments. Learner-led or self-directed learning — the delivery of learning experiences to independent learners who lead and manage their own experience, delivered via web pages, multimedia presentations, computer applications, online presentations, or similar methods — is not instructor-led.
The emergency rule is effective until Sept. 16.
Stay tuned for further challenges. The concealed carry statute also does not specify in-person instruction.
Photo by By Augustas Didžgalvis - Own work, CC BY-SA 3.0, https://commons.wikimedia.org/w/index.php?curid=22909218
We're one of four! We're one of four!
Just four states in the nation failed to adopt significant criminal justice reform legislation in the past two years -- and Wisconsin is one of them!
The other three, according to a new report by the Vera Institute of Justice, are Massachusetts, New Mexico, and Pennsylvania.
While other states embraced bail reform and found ways to help inmates re-enter society, Wisconsin increased the penalties for moving a corpse and criminalized some standard naked-baby portraits.
The good news is that there are folks on both sides of the Wisconsin legislative aisle who would like to see criminal justice reform happen. The bad news is that it hasn't happened yet.
Here is map from the Vera Institute report, New Trends in State Sentencing and Corrections 2014-2015, that illustrates Wisconsin's status as a criminal justice reform lagging outlier.
A new Wisconsin law allows police and jailers to strip search anyone held in a cell with another person, but a new US Court of Appeals decision suggests that the Legislature and Gov. Scott Walker may have outstripped the Constitution.
The 7th Circuit Court of Appeals last month overturned an Illinois judge's decision involving strip-searches of people in custody of the Kankakee County, Illinois Sheriff's Department, whether they were bound for the general population or not, and before any judge found probable cause. The judge essentially approved the practice.
Wisconsin's new law also allows strip searches of any jail inmate housed for any length of time with another person, even if the inmate never makes it to the general population. The new Wisconsin strip search policy applies to both those held on murder charges and those held for unpaid parking tickets. It says that a strip search can be performed on "a person arrested or otherwise lawfully detained or taken into custody, if the person will be incarcerated, imprisoned, or otherwise detained in a jail or prison with one or more other persons."
The law does not limit strip searches to those bound for the general population.
In the Illinois case, the Appeals Court said U.S. Supreme Court justices, in Florence vs. Burlington County, already warned against overly broad strip search policies.
if one inmate is searched, they all must be searched -- jailers may not use discretion in deciding who to strip search or how searches are conducted.
"Chief Justice Roberts and Justice Alito both concurred specifically...to warn against reading the Court's opinion to authorize automatic strip searches of people who are not bound for the general population," the 7th Circuit panel said in its opinion, written by Circuit Judge Frank H. Easterbrook. "As Justice Alito observed, many arrestees are released without going into the general population. Some are not detained beyond the time needed to post a bond; others may be held in areas devoted to arrestees whose custody has not received judicial approval."
And, the panel said, if one inmate is searched, they all must be searched -- jailers may not use discretion in deciding who to strip search or how searches are conducted.
"Florence deemed the strip-search policy reasonable precisely because every arrestee going into the general population was examined for contraband, lice, disease and gang tattoos," Easterbrook wrote in a decision joined by Circuit Judge Diane S. Sykes and District Judge Lynn Adelman, who was sitting by designation. "Searching half or two-thirds or four-fifths of the new arrivals will not prevent the introduction of lice or disease, or outbreaks of gang violence, and it cuts down on the ability of the policy to curtail contraband."
Allowing jailers to search only some new arrivals may encourage other inmates to use them to bring in contraband, including drugs and weapons, the court said.
"And searching on an arresting officer's say-so poses a risk of harassment, or letting the process be the punishment," Easterbrook said.
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