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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 also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. The case: State of Wisconsin vs. Quaheem O. Moore Majority: Justice Brian K. Hagedorn (12 pages), joined by Chief Justice Annette Kingsland Ziegler and Justices Patience Drake Roggensack and Rebecca Grassl Bradley Dissent: Justice Rebecca Frank Dallet (11 pages), joined by Justices Ann Walsh Bradley and Jill J. Karofsky  Hagedorn The upshot After he was pulled over for speeding, officers searched Quaheem Moore based primarily on the smell of marijuana emanating from his vehicle. The circuit court suppressed the results of that search, and the court of appeals affirmed. The State contends this was error. It argues the officers had probable cause to arrest Moore, and thus, this was a lawful search incident to arrest. We agree and reverse. Background On November 17, 2019, City of Marshfield Police Officer Libby Abel executed a traffic stop for speeding. While attempting to make the stop, Officer Abel "observed some sort of liquid fly out of the driver's window" and noticed the vehicle hit a curb while turning onto a side street. Officer Abel approached the vehicle, identified the driver and sole occupant as Quaheem Moore, and questioned him about the speeding and the liquid. During this initial contact, Officer Abel "detected an odor of raw marijuana." She called for back-up, and Officer Mack Scheppler arrived on the scene. Both officers escorted Moore out the vehicle, in between his vehicle and Officer Abel's squad car. Officer Abel performed an initial safety pat-down for weapons. She did not find any, but she did discover a vaping device. She asked Moore if it was a THC (tetrahydrocannabinols) vape, and he responded that it was a CBD (cannabidiol) vape pen. Officer Abel proceeded to question Moore. She first asked about the liquid, which she said she could still see on the side of the car and inside the window; but Moore denied throwing anything out of the window. He explained that the vehicle was his brother's rental, and that he had taken it to the car wash earlier in the day. Officer Abel next asked Moore if he had been drinking, which he also denied. Then, Officer Abel told Moore that she smelled marijuana coming from the vehicle, but he immediately expressed disbelief. Officer Scheppler confirmed that he too smelled marijuana, and later described the odor as overwhelming. Moore continued to express his disbelief and insisted that the officers could not smell marijuana on him. Officers Abel and Scheppler agreed, indicating the smell was coming from the vehicle, not from Moore. Eventually, the officers told Moore that they were going to search him based on the odor of marijuana. Officer Scheppler found only cash at first. Officer Abel then stepped away to search Moore's vehicle while Officer Scheppler and Moore chatted. Several minutes later, Officer Scheppler noticed Moore's "belt buckle was sitting a little higher on his pants" and decided to examine the zipper area. . . . Officer Scheppler ultimately found two plastic baggies containing cocaine and fentanyl in a false-pocket behind Moore's zipper. The State charged Moore with two crimes: possession with intent to deliver narcotics and possession with intent to deliver more than one but less than five grams of cocaine——both as second and subsequent offenses and as a repeater. Moore moved to suppress evidence of the cocaine and fentanyl found by Officer Scheppler, arguing the State lacked probable cause to arrest and therefore to search him. The circuit court agreed and granted the motion. The court of appeals affirmed, and we granted the State's petition for review. The guts The United States Constitution provides: "The right of the people to be secure in their persons ... against unreasonable searches and seizures, shall not be violated ....” "Warrantless searches are presumed to be unconstitutional." But there are exceptions, and the State bears the burden to prove an exception applies. One exception is a search incident to an arrest. When conducting a search incident to arrest, the officer is not required to formally arrest before the search. The "search may be incident to a subsequent arrest if the officers have probable cause to arrest before the search." "Probable cause to arrest is the quantum of evidence within the arresting officer's knowledge at the time of the arrest which would lead a reasonable police officer to believe that the defendant probably committed or was committing a crime." This requires more than a mere hunch or reasonable suspicion, but "does not require proof 'beyond a reasonable doubt or even that guilt is more likely than not.'" Probable cause is an objective test that "requires an examination of the totality of the circumstances."... *** (T)he issue presented here is, examining the totality of the circumstances, whether a reasonable law enforcement officer would believe Moore probably committed or was committing a crime. The answer is yes. When Officer Abel pulled Moore over, she watched his vehicle hit the curb and observed a "liquid fly out the driver's window"; she later saw the liquid on the side of the car as well. And when she first approached the vehicle, she smelled raw marijuana. Officer Scheppler smelled it too, and even called it overwhelming. The circuit court found both officers' testimony regarding the smell credible, stating multiple times in its decision that the officers smelled a "strong" odor of marijuana. Moore does not challenge this factual finding. Critically, Moore was the sole occupant of the vehicle. And he was in possession of a vape pen. Taken together, a reasonable officer would believe it was Moore that was responsible for the overwhelming odor of a prohibited substance emanating from a vehicle with no other passengers. The officers need not know with certainty that Moore was committing or had committed illegal activity, but they had more than enough to meet the modest bar that it was probably true. Therefore, the officers had probable cause to believe a crime was or had been committed — at the very least, possession of THC. Moore provides several counterarguments, none of which are persuasive. First, he contends that the odor of marijuana was not sufficiently linked to him because the officers did not smell it on him, only in his vehicle.... (However), “(t)he strong order of marijuana in an automobile will normally provide probable cause to believe that the driver and sole occupant of the vehicle is linked to the drug.” That leads to Moore's second counterpoint: the vehicle was not his, but his brother's rental. While this could constitute an innocent explanation — albeit, a strained one — Moore misses the legal standard. Who owned the title or signed the rental lease does not change the analysis. A reasonable law enforcement officer would still likely conclude, absent other facts not in the record, that the driver and sole occupant of the vehicle was probably connected to the illegal substance whose odor the officer clearly detected in the vehicle. Third, Moore contends that the odor of marijuana cannot be unmistakable when there are innocent explanations for it — such as the odor of CBD, a legal substance that Moore stated his vape pen was used for. The circuit court referenced this as well: "The State notes that CBD and marijuana are indistinguishable in their odor.”... While the officers might have reasonably inferred that the smell from the vehicle was CBD, that was not the only inference they could draw — they also could infer (and they did) that the smell was THC. It is black letter law that "an officer is not required to draw a reasonable inference that favors innocence when there also is a reasonable inference that favors probable cause." Therefore, while an innocent explanation may exist, we still conclude under the facts of this case, a reasonable law enforcement officer would infer that Moore had probably committed or was committing a crime. Finally, Moore notes that neither Officer Abel nor Officer Scheppler testified with respect to their training and experience to detect the smell of marijuana. He asserts that without this testimony, the State failed to establish the odor was unmistakable.... The circuit court acting as fact-finder here found the officers' testimony credible and stated repeatedly that the officers noted the "strong smell" and "strong odor" of marijuana coming from the vehicle. It made this factual finding absent specific testimony regarding the officers' training and experience. Moore does not challenge this factual finding; nor do we conclude this finding is clearly erroneous. Furthermore, the fact that the officers testified to smelling marijuana suggests they know what marijuana smells like. It could be that a fact-finder will not believe an officer's identification of marijuana absent an on-the-record statement of training and experience. The changing legal status and ubiquity of marijuana could make the lack of such evidence vulnerable to attack. But again, we do not see why such testimony would be required… There was enough here without testimony regarding the officers' training and expertise to support a finding that they smelled illegal raw marijuana.   Dallet The dissent
After pulling Moore over for speeding, police officers removed him from his car to conduct a pat-down search. They found no evidence that a crime had been committed, so Moore should have been free to go, perhaps with a speeding ticket. Instead, the officers conducted a second, more thorough search of Moore and found baggies containing cocaine and fentanyl concealed in his pants. The majority concludes that this second search was permissible because the officers had probable cause to arrest Moore on the basis that the car he was driving smelled like marijuana. I disagree; because the officers lacked probable cause to arrest Moore, the evidence they found should be suppressed. *** The majority concludes that under the totality of the circumstances, "the officers had probable cause to believe a crime was or had been committed — at the very least, possession of THC." The circumstances the majority cites for this conclusion are the following:
Almost none of these circumstances "would lead a reasonable police officer to believe" that Moore possessed THC. Hitting the curb while pulling over might be evidence the driver was impaired, but Moore was not arrested for operating while intoxicated and there is no evidence of impairment from the bodycam footage or the officers' reports. Officer Abel's testimony about a liquid spraying out of the driver's side window is immaterial as well. There is nothing in the record about what the liquid was or linking it in any way to THC. Likewise there is nothing in the record that suggests Moore's vape pen was used for anything other than CBD — a legal substance. That leaves only the smell of marijuana coming from the car Moore was driving — a fact the majority all but admits is the only support for probable cause to arrest Moore. In concluding that the smell of marijuana alone gave the officers probable cause to arrest Moore, the majority relies primarily on one 24-year old case decided when the use or possession of any amount of cannabis was illegal nationwide. *** For starters, even if the officers smelled the "unmistakeable" odor of marijuana coming from the car Moore was driving, the linkage between that smell and Moore was not particularly strong.... (T)he likelihood that an occupant is linked to the smell of marijuana in a vehicle "diminishes if the odor is not strong or recent, if the source of the odor is not near th eperson, if there are several people in the vehicle, or if a person offers a reasonable explanation for the odor." Here, it is true that Moore was the sole occupant of the car, thus increasing the probability that he was linked to the smell. But that linkage is weaker than it initially appears, since neither officer smelled marijuana on Moore once he was out of the car and because Moore explained that he was driving a vehicle his brother had rented — a fact the officers subsequently verified. More fundamentally, however, legal developments in the last 24 years may call into question (whether) marijuana is "unmistakabl[y the] odor of a controlled substance." Thirty-eight states have legalized medical marijuana and twenty-three of those have also legalized recreational marijuana. Additionally, Congress modified the Controlled Substances Act in 2018 to remove hemp and hemp-derived products from the definition of marijuana, which legalized certain hemp products nationwide. This means that virtually all adults can legally purchase hemp-derived products from local CBD stores. Hemp-derived products come in a variety of processed forms like gummies, oils, and creams, as well as in their unprocessed state as hemp flowers. And just like marijuana, hemp flowers can be smoked, vaped, or eaten. Unlike marijuana, however, hemp contains only trace amounts of the psychoactive compound THC — the main psychoactive ingredient in marijuana. Experts indicate that hemp flowers and marijuana are so similar in appearance and smell that even drug detection dogs can't tell the difference. If true, this means that when a police officer smells what they believe to be the distinctive odor of either raw or burnt marijuana, they could just as easily be smelling raw or burnt hemp. In light of the nationwide legalization of hemp, this raises the question: Should the smell of marijuana alone still justify a warrantless arrest? Courts in jurisdictions that have legalized marijuana for medical or recreational purposes have answered "no" .... Dallet then discusses cases from Pennsylvania, Maryland, and Minnesota. Although Wisconsin has not yet legalized medical or recreational marijuana, or decriminalized possession or consumption of marijuana, the reasoning in these cases demonstrates that marijuana's once-unique odor may no longer serve as the beacon of criminal activity it did a quarter-century ago. ... Wisconsinites can legally purchase, transport, and smoke or vape hemp products that experts indicate are identical to marijuana in look and smell. As such, officers who believe they smell marijuana coming from a vehicle may just as likely be smelling raw or smoked hemp, which is not criminal activity. Moreover, in virtually all of Wisconsin's neighboring states — Illinois, Michigan, and Minnesota — recreational marijuana is now legal. With that, Wisconsinites may travel to neighboring states and consume marijuana without violating any state laws. And experience teaches us that smells linger in cars, sometimes long after the item responsible for the smell is gone. In sum, ... reliance on the smell of marijuana as an unmistakable indication of illegal activity sufficient to justify a warrantless arrest may no longer ring true. All things considered, the totality of the relevant circumstances here do not add up to probable cause to arrest and thus any evidence found during the search should be suppressed. Other than the officers' testimony that they smelled raw marijuana coming from the car Moore was driving, there was no reason to believe that Moore possessed THC. The smell the officers identified was not sufficiently linked to Moore under the circumstances of this case…. For all these reasons, I respectfully dissent.
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Thomas G. Miller v. Zoning Board of Appeals of the Village of Lyndon Station Majority: Justice Rebecca F. Dallet (13 pages), for a unanimous court.  Dallet The upshot Trustee Jan Miller serves on the Village Board of Lyndon Station. She cast the deciding vote in favor of her daughter and son-in-law's application to amend the Village's zoning ordinance to rezone their vacant residential property for commercial development. A local business owner, Thomas Miller (no relation), argues that the vote violated his right to due process because Trustee Miller was partial to her daughter and son-in-law's rezoning application. We reject this argument because there is no due process right to impartial decision-makers when a legislative body like the Village Board enacts, repeals, or amends a generally applicable law like the zoning ordinance. Accordingly, we affirm the court of appeals' decision. Background Kristi and Larry Whaley own a 1.87 acre property in Lyndon Station. Although most nearby properties are zoned as commercial, their property was zoned as residential. The Whaleys contracted to sell their property on the condition that it be rezoned for commercial development. They then applied for rezoning pursuant to the Village's regular process, which proceeds as follows: The application is first sent to the Village's five-member Plan Commission for a public meeting and vote on whether to recommend the zoning change. If the Plan Commission recommends the change, the three-member Village Board then holds a public hearing at which it must consider statements by the applicant and anyone else who wants to speak. Finally, the Village Board votes on whether to amend the zoning ordinance. Trustee Miller serves on both the Plan Commission and the Village Board. She is also Kristi Whaley's mother and lived with the Whaleys during the relevant period. Shortly after the Whaleys filed their rezoning application, some residents expressed concerns that Trustee Miller had a conflict of interest. The Plan Commission (with Trustee Miller participating) voted to recommend that the Village Board approve the Whaleys' application and amend the zoning ordinance. Subsequently, the Village Board held a public hearing where Thomas Miller and others spoke against the proposed rezoning. Thomas Miller owns Miller's General Store and opposed the rezoning for several reasons, including because the prospective buyer planned to redevelop the property into a chain store that would compete with his business. Thomas Miller and other residents also questioned whether Trustee Miller had a conflict of interest that should preclude her from participating in the vote. Trustee Miller's participation was decisive in the Village Board's 2-1 vote to grant the Whaleys' application and amend the zoning ordinance. Thomas Miller appealed to the Village's Zoning Board of Appeals (ZBA) arguing that "[t]here was a clear conflict of interest involving the vote from Trustee Jan Miller." The ZBA subsequently upheld the Village Board's vote to amend the zoning ordinance. Thomas Miller went to court. Juneau County Circuit Judge William A. Sharp reversed the ZBA's decision, ruling that the Village Board vote violated due process because she was not a fair and impartial decision-maker. The Whaleys appealed, and the Court of Appeals reversed Sharp.  The guts
Thomas Miller's central claim is that Trustee Miller's participation in the Village Board's vote to amend the zoning ordinance violated his right to due process. *** In order to establish a violation of procedural due process, a plaintiff must demonstrate both: (1) the deprivation of a protected liberty interest – "life, liberty, or property" – by state action and (2) that the process he received before that deprivation fell short of the minimum the Constitution requires. We focus on the second of these two requirements because it is dispositive of Miller's claim. *** For adjudicative actions like deciding civil or criminal cases, "a fair trial in a fair tribunal is a basic requirement of due process." Thus, even though we presume that judges act "fairly, impartially, and without bias," proof of a "serious risk of actual bias can objectively rise to the level of a due process violation." This standard applies not only to formal judicial proceedings but also to "administrative agencies which adjudicate." Accordingly, when adjudicative acts are involved, procedural due process requires impartial decision-makers. When legislative actions are at issue, however, those affected by legislation "are not entitled to any process beyond that provided by the legislative process." That is because "[t]he act of legislating necessarily entails political trading, compromise, and ad hoc decisionmaking." In other words, legislators are partial to legislation all the time; indeed, they often run for office promising to use legislative power to accomplish specific policy objectives. And the primary check on legislators acting contrary to the public interest when legislating is the political process. Accordingly, because "a legislative determination provides all the process that is due," partiality on the part of legislators does not violate the Due Process Clause. *** We hold that the Village Board's vote to amend the zoning ordinance and rezone the Whaleys' property was a legislative act. The Village Board rezoned the Whaleys' property by amending the Village's generally applicable zoning ordinance. In other words, the Village Board changed the law. It did not apply existing law to individual facts or circumstances, as it would if it were making an adjudicative decision like whether to grant a variance or permit a legal non-conforming use. . . . Moreover, unlike an adjudicative decision, the Village Board's amendment to the zoning ordinance applies "prospectively, [and does] not impos[e] a sanction for past conduct." It is true, of course, that this particular amendment came about only after the Whaleys applied for the zoning change and affected only the Whaleys' property directly. But that does not alter our analysis. . . . What matters is that the Village Board made a prospective change by enacting, repealing, or amending existing generally applicable law. The Village Board's action was thus legislative in nature, and for that reason, Miller was not entitled to an impartial decision-maker. Legislative update: stripping courts of power, obscenity charges for teachers, eliminating defenses6/26/2023 By Gretchen Schuldt Chief circuit court judges would be stripped of their power to appoint judges to preside over many cases involving businesses, under a bill pending in the state Legislature. That power would shift to the chief judge of the state Supreme Court, who would only have to "consider" recommendations from the chief judges of the state courts' administrative districts, according to the Republican-backed measure. The bill is a significant legislative intrusion into the internal workings of the court system. Another Republican bill would put teachers and school officials at risk of arrest under the state's obscenity laws and strip from them the immunity they now enjoy if their violations occur in their capacity as employees or officials. And a bill backed by Democrats would eliminate common defenses in criminal cases if a crime allegedly was motivated by issues related to sexual orientation or gender identity. More detail about the bills is below. A chart showing the sponsors of each is at the bottom of this post. SB275/AB 280 – Business courts The chief justice of the state Supreme Court would hand-pick circuit court judges across the state who would hear commercial cases, under this bill. Judicial assignments at the circuit court level now generally are decided at the lower court level. The chief justice, in appointing commercial docket judges, would "consider" but not be bound by recommendations from chief judges of administrative districts. The bill also would leave the decision to create specific commercial courts up to the chief justice, who would act on the recommendations of the director of state courts, an unelected bureaucrat. At a minimum, under the bill, the chief justice would be required to appoint four judges for business cases in each of the court system's second, third, fifth, eighth, and 10th administrative district. Judges hearing commercial cases also could hear other types, according to the bill. Wisconsin courts administrative districts  Source: Wisconsin Courts System "The commercial court docket is designed to operate within the framework of the existing state court system with minimal impact on the balance of court operations," the bill states. "It is intended to leverage judicial expertise in commercial law and disputes with commercial litigants' desire to tailor case management practices best suited for resolving substantial business disputes fairly and expeditiously." The Supreme Court, at the direction of then-Chief Justice Patience D. Roggensack, established a commercial court pilot program in 2017 and directly appointed the judges who heard those cases. Retired Dane County Circuit Judge Richard Niess criticized it, saying "the (judicial appointment) process largely bypasses the voter-controlled and otherwise random judicial assignment of cases. It creates a two-tiered court system — one controlled by business interests and one for everybody else." Roggensack "stacked" a committee she appointed to develop the court "with lawyers representing business interests," Niess wrote. "The committee included no labor or consumer advocates, no one representing the viewpoints of the public, and no one speaking for the other stakeholders in our circuit court system." "The committee included no labor or consumer advocates, no one representing the viewpoints of the public, and no one speaking for the other stakeholders in our circuit court system." Under the bill, which would expand the business courts, commercial docket judges would have jurisdiction over a wide variety of cases, including cases involving the internal governance or internal affairs of business organizations. The specialty courts would hear cases involving laws governing partnerships, business corporations, cooperatives, banks, savings and loans, and other fiduciaries. They would also hear cases involving allegedly improper business conduct, including unfair competition; private suits alleging violations of the state mark-up law for gasoline or tobacco; deliberate injury to a business; wrongful interference with a business; non-compete clauses; confidentiality agreements; business mergers and consolidations; securities law and securities fraud; intellectual property rights; trademarks; trade secrets; copyright; patent rights; franchise law; the state Fair Dealership Law; sales representative commissions; some Uniform Commercial Code claims exceeding $100,000; receivership cases of more than $250,000; and commercial real estate construction disputes exceeding more than $250,000. The bill would make some case types ineligible for the new dockets. They include small claims, governmental actions seeking to enforce laws or regulations, most cases involving consumer transactions, landlord-tenant disputes, domestic relations, civil rights, taxes, some arbitration issues, construction (except for the commercial disputes above), and environmental claims. SB305/AB308 – Targeting teachers with obscenity statute Public and private school employees would lose their immunity from prosecution under the state's obscenity laws, under a Republican-backed bill in the Legislature. Currently, the law protects from prosecution employees, board members, or trustees of some educational institutions and libraries, as long as they are acting within the scope of their jobs. The obscenity statute explains the reason the immunity was granted: The Legislature "finds that the libraries and educational institutions ... carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions." The bill would make elementary, secondary, and tribal school employees and officials subject to prosecution. The immunity still would apply to employees and officials of libraries, technical colleges and tax-exempt colleges and universities. The obscenity statute makes it a crime to import, print, sell, possess for sale, publish, exhibit, play, or distribute any obscene material; to produce or perform in any obscene performance; to distribute, exhibit, or play any obscene material to a person under the age of 18 years; or to possess with intent to distribute, exhibit, or play to a person under the age of 18 years any obscene material. First-offense violations of the statute are punishable by forfeitures of up to $10,000, and every day the obscenity violation continues is be a new violation. Under state law, “Obscene material" is any writing, picture, film, or other recording that: 1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole; 2. Describes or shows sexual conduct in a patently offensive way; and 3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole. The law also prohibits prosecutions without the express permission of the attorney general. SB307/AB307 – Eliminating defenses Defendants in criminal cases would be unable to plead they acted in self defense or were provoked into committing their alleged criminal actions if the action stemmed from learning or knowing about the alleged victim's gender identity or expression or sexual orientation or the potential disclosure of those factors. The defense elimination would apply in situations where the victim "made a romantic or sexual advance without use or threat of force or violence toward the defendant or in which the victim dated or had a romantic or sexual relationship with the defendant," according to the Legislative Reference Bureau explanation of the bill. It would apply, too, when the alleged victim dated or had a romantic or sexual relationship with the defendant. The bill also would eliminate the ability of a defendant to plead not guilty by reason of mental disease or defect if the state were brought about by the factors listed above.  By Gretchen Schuldt
A rare mix of Democrats, Republicans, law enforcement, and the state Public Defenders Office came together this month to support a bill that would prohibit minors from being charged with prostitution. Thirty-one people in favor of the bill appeared at a public hearing and another 10 registered in support. No one appeared or registered in opposition. The measure, Assembly Bill 48/Senate Bill 55, would bring the state in line with federal law, which recognizes children engaged in commercial sex acts as victims, not criminals, State Sen. LaTonya Johnson (D-Milwaukee) said. It also would align with laws in Illinois, Minnesota, and Michigan, she said. "My hope is that it will make it easier for law enforcement and child welfare authorities to convince these children that they have done nothing wrong and are in no way responsible for the horrific acts they were forced into by their traffickers," she said. "Sexually exploited children exist in my district and in your district," State Rep. Jill Billings (D-La Crosse) told the Assembly Committee on Criminal Justice and Public Safety. "The trafficking of children is happening in urban areas, rural areas, and has been reported in all 72 Wisconsin counties." State Sen. Jesse James (R-Altoona) said the average age a girl enters the sex trade is 12 to 14 years old. For boys, he said, it is 11 to 13 years old. "At times, there is a disconnect between the language we use and how we treat victims in the legal system," the state Public Defender's Office said in testimony. "A person under 18 years of age in the State of Wisconsin is presumed to be unable to give consent to engage in a sex act. In most circumstances a person under the age of 18 may not legally enter into a contract. Both are required under the legal definition of prostitution. More importantly, children engaging in sex acts for money are forced or coerced by the traffickers to engage in these acts. Treating children as delinquents/criminals only furthers the process of victimization." "This bill would prevent the prosecution or adjudication of individuals under the age of 18 for acts of prostitution, recognizing that they are often coerced, manipulated, or forced into these situations," said Donelle Hauser, president and CEO of Lad Lake. The organization said it has been working with underage victims of trafficking for more than 10 years. "By reframing the approach to address the underlying victimization rather than perpetuating a cycle of punishment, we can help these young individuals escape the exploitative environment and provide them with the necessary tools and support to rebuild their lives." "Child victims of sex trafficking are indeed victims — these are minors who cannot consent to sex and have been exploited and deserve to be protected," said Nila Grahl, Manager of Children's Wisconsin's Racine & Kenosha Child Advocacy Centers in written testimony. "Youth victims of sex trafficking need supportive health care, services and support — not fear of being charged with a crime. Unfortunately, sometimes the juvenile justice system is the only place youth are engaging with formal systems." "Treating sex-trafficked children as delinquents or criminals is self-defeating and harmful," the Wisconsin Coalition Against Sexual Assault said in testimony. "The current approach increases distrust of law enforcement and child protective services, which hinders efforts to prosecute those responsible for child sex trafficking. Most importantly, the isolation of detention and the stigma of being treated as a delinquent serve only to exacerbate individuals’ feelings of guilt and shame, ultimately re-traumatizing child victims." The bill is pending in committees in the Assembly and Senate. Wisconsin legal historian Joseph Ranney joined WJI at its virtual June Salon for a fascinating talk on post-Civil War civil rights laws across the nation and in particular here in Wisconsin. Ranney is an adjunct professor at Marquette Law School and the author of several books and articles on Wisconsin and American legal history, including Trusting Nothing to Providence: A History of Wisconsin's Legal System and Wisconsin and the Shaping of American Law. He is working on a history of civil rights law in the Northern and Western states from colonial times to 1968. Ranney's talk relates to WJI's Unsung Heroes blog series on women and people of color whose impacts on Wisconsin legal history deserve more attention. Ranney discusses, among others, two men profiled in the series: Ezekiel Gillespie, who fought for the right to vote for Wisconsin's Black men, and William T. Green, who as an attorney worked to enforce civil rights. The state Supreme Court ruled Tuesday, 4-3, that police can base a search primarily on the smell of marijuana, even though the legalization of CBD and hemp means the smell could be from a perfectly legitimate source.
Justice Brian Hagedorn wrote the opinion, joined by Chief Justice Annette K. Ziegler and Justices Rebecca Grassl Bradley and Patience D. Roggensack. Justice Rebecca F. Dallet dissented, joined by Justices Ann Walsh Bradley and Jill J. Karofsky. Quaheem Moore was pulled over for speeding. Police searched him based largely on the smell of marijuana coming from the car he was driving, which he borrowed from his brother. "The circuit court suppressed the results of that search, and the court of appeals affirmed," Hagedorn wrote. "The state contends this was error. It argues the officers had probable cause to arrest Moore, and thus, this was a lawful search incident to arrest. We agree and reverse." "While an innocent explanation (for the smell) may exist, we still conclude under the facts of this case, a reasonable law enforcement officer would infer that Moore had probably committed or was committing a crime," he wrote. "All things considered, the totality of the relevant circumstances here do not add up to probable cause to arrest and thus any evidence found during the search should be suppressed," Dallet wrote in her dissent. "Other than the officers' testimony that they smelled raw marijuana coming from the car Moore was driving, there was no reason to believe that Moore possessed THC. The smell the officers identified was not sufficiently linked to Moore under the circumstances of this case. " Look for more on the case in an upcoming "SCOW docket," where we cut Supreme Court decisions down to size and hit the highlights. On Juneteenth Day, it’s important to remember that slavery is still legal in Wisconsin. The Wisconsin Constitution, even 158 years after the end of the Civil War, permits slavery and involuntary servitude for those convicted of a crime. Any crime. Wisconsin’s constitution states that “(t)here shall be neither slavery, nor involuntary servitude in this state, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.” (Emphasis added.) The U.S. Constitution provides no relief, as the Thirteenth Amendment contains similar language prohibiting slavery and involuntary servitude except for those convicted of crime. Wisconsin is one of just nine states with constitutions that still expressly permit slavery as punishment for crime, and one of 17 states that permit involuntary servitude as punishment for crime. The inclusion in the Wisconsin Constitution of slavery in any form or manner is offensive and abhorrent. The constitution should be amended to correct this significant flaw and to uphold the human dignity of all people. There should be neither slavery nor involuntary servitude in this state. Period. No slavery. No exceptions. This language has been in the state constitution since it was adopted; it has never been amended. The provision tracks a provision in the Northwest Ordinance of 1787, which applied to Wisconsin when it was a territory. For those who follow originalism as a method of constitutional interpretation, “slavery” should mean exactly what it did in 1848: the owning of people, especially Black people, as property. But under any interpretation theory, the word means forced labor for no pay. Wisconsin, once a frontrunner regarding abolition, now lags behind in the law regarding such slavery provisions. Kudos to Rhode Island, which in 1843 prohibited slavery in all forms. A growing movement is working to eliminate this remnant of America’s slavery past. Since 2018, seven states have amended their constitutions to remove slavery and involuntary servitude provisions. Four of those states did so by voters just this past November. These states include not only those often considered liberal, like Oregon, Colorado, and Vermont, but also Nebraska, Utah, and the former slave states of Tennessee and Alabama. Yes, Tennessee and Alabama are better on the slavery issue than Wisconsin. Efforts to end the exception for slavery or involuntary servitude as punishment for crime are occurring in California, Louisiana, Nevada, and Ohio. If those efforts succeed, Wisconsin will soon be one of just a handful of states with constitutions still permitting slavery or involuntary servitude in some form. There shall be neither slavery, nor involuntary servitude in this state, otherwise than for the punishment of crime, whereof the party shall have been duly convicted.” Wis. Const. art. 1, § 2 (emphasis added). In the mid-1800s, Milwaukee and Waukesha boasted abolitionist newspapers, and the Underground Railroad stopped in several Wisconsin counties. Angry citizens freed escaped slave Joshua Glover from jail and whisked him to the Underground Railroad and eventual safety in Canada. Then, in two monumental opinions, the Wisconsin Supreme Court declared the federal Fugitive Slave Act unconstitutional and defied the U.S. Supreme Court on the matter. The Wisconsin Supreme Court was the highest court in the nation to rule against slavery. One concurring justice wrote that in a slave state a Black person “may be, indeed, a chattel; but in Wisconsin he is a MAN . . . the laws of Wisconsin regard him as a person here.” Ending the exception in Wisconsin’s constitution will reject a system that demeaned Black people and treated them as property. Slavery in any form should be rejected as immoral and unjust. Our state supreme court thought so more than 150 years ago and time has solidified the belief that slavery in all forms must be rejected. Ending the constitution’s slavery exception has real meaning for those convicted of crimes. It will confirm that they are, in no way, property of the state while under its control. They maintain their humanity and dignity. Ending the exception will increase recognition of the valuable work those in the state’s “care” do as cooks, janitors, office assistants, laundry workers, printing-press workers, and in a myriad of other roles. It will increase recognition that prison labor is valuable and valued work. Sen. Lena Taylor (D-Milwaukee) in 2017 introduced a bill to amend Wisconsin’s constitution to eliminate the punishment exception for slavery, but the bill failed to pass out of a Senate committee. When Taylor talked about proposing the bill, Politifact checked her statements and concluded that “Wisconsin does have the legal authority to require inmates to work for no pay, although in practice it does so only when inmates violate prison rules.” Last week, three Democratic U.S. representatives introduced a resolution to amend the federal constitution to end the slavery exception in the Thirteenth Amendment. It’s time Wisconsin legislators act to end permissible slavery in our state. If you wish to join a coalition to pursue amendment of the Wisconsin Constitution to ban slavery in all forms and in all instances, please email [email protected].   Milwaukee Common Council's Judiciary & Legislation Committee meeting, June 12, 2023. Photo by Margo Kirchner. By Alexandria Staubach & Margo Kirchner Comments by Milwaukee Municipal Court representatives at a public hearing indicate a likely interruption of assistance for thousands of court defendants in need of social services. As part of a Municipal Court Alternatives Program (MCAP), JusticePoint aids defendants who suffer from poverty, mental health issues, and substance abuse in satisfying Municipal Court obligations. The program helps those who cannot pay forfeitures find and complete community service. It connects them to myriad services like drug treatment or housing resources. JusticePoint staff have provided such services for four decades. Milwaukee Municipal Court notified JusticePoint by letter dated May 15 that it was terminating JusticePoint's contract effective July 11. The letter said the cancelation was under a "convenience" provision of the contract. In a crowded Common Council Judiciary & Legislation Committee meeting room on Monday, Court Administrator Sheldyn Himle and Assistant City Attorney Kathryn Block faced questions about the termination. Ald. Mark A. Borkowski, chair of the committee, set the matter of JusticePoint’s MCAP on the agenda following communications from a coalition of community organizations and individuals, including Wisconsin Justice Initiative, the National Lawyers Guild, and former Milwaukee Municipal Judge Jim Gramling, expressing concern about the contract cancelation. Himle said at the meeting that the decision to terminate JusticePoint's contract was made by Municipal Judges Phil Chavez and Valarie Hill before Judge Molly Gena was elected in April. Ald. Jonathan Brostoff, attending the meeting though not a member of the committee, said he found it troubling and “fishy” that the termination came up right before the new judge was elected. Himle's statement that Chavez and Hill decided to terminate JusticePoint's contract before the April election appears to conflict with information in the termination letter, which referenced a May 5 meeting about the contract between court officials and JusticePoint and cited JusticePoint's failure to respond by May 11 with a proposal regarding unspecified concerns. In a response letter dated May 16, JusticePoint disputed that it had been given a May 11 deadline for submitting a proposal or any warning that the result would be contract termination. JusticePoint asked for reconsideration of the decision as premature. Gena took office on May 1 but was not part of a meeting with JusticePoint. Block told committee members at the outset of the hearing that the Common Council has no authority to rescind the Court’s termination of the contract with JusticePoint. She said Chavez and Hill recommended termination of the JusticePoint contract, the termination letter came from the purchasing department, and the purchasing department had the authority to terminate the contract. Himle indicated that JusticePoint will provide MCAP services through July 11, and the court “has every intention to continue its court alternatives program.” The contract will go out for a “full RFP,” said Himle. An “RFP” or “request for proposal” is a process in which the city would entertain bids and proposals for the program. Attendees at the hearing muttered that a month was insufficient time for an RFP and to get a new provider lined up. Himle said the judges have a plan. In any interim period they may make referrals for community services directly to other agencies. She did not address how the Court will ensure that the people it refers actually contact service providers, as JusticePoint does. Block added that in the short-term a "sole-source” contract may be appropriate with qualified vendors for some of the services while an RFP is in process. Brostoff voiced skepticism that services would continue without interruption. He asked Himle directly whether the court had a sole-source provider lined up; she answered “no.” Brostoff emphasized that the Common Council allocated funds for the program in its budget. He expressed serious concern over the apparent lack of a plan to prevent a disruption in services. Gena spoke at the committee hearing and confirmed she played no part in the decision to terminate JusticePoint’s contract. She said that in her time on the bench she has referred several defendants to JusticePoint for treatment or other services and that JusticePoint "does incredible work.” Referring people at in-person hearings to services immediately following their court appearances is important, Gena said. JusticePoint is located near Municipal Court in the Police Administration Building. Without the services JusticePoint offers, “these people probably really may not come back; we will lose them,” she said. She has found JusticePoint to be “vital” to what she does. While the other judges may have a plan, she doesn’t. “I do not know what I am going to do without these services," she said. She indicated she did not have the time or staff to guide defendants through the services they need. Chavez and Hill did not attend the committee meeting. Committee members referenced bases for termination of the contract for cause, but Block clarified that the reason given in the termination letter was the "convenience" provision in the contract. She said the reasons for termination under that provision could be discussed in closed session. Ald. Mark Chambers, Jr. said the termination was the result of “serious accusations” brought up by court officials against JusticePoint. But those accusations were not shared with the public. Himle and Block alluded to wrongdoing on the part of JusticePoint that could result in litigation. The potential claims or parties for litigation went unspecified. Borkowski cautioned that the committee would have to go into closed session to discuss specifics, but committee members did not want to do that. Nick Sayner, co-founder and chief executive officer of JusticePoint, addressed the only allegation of possible wrongdoing of which he was aware. He said that between 2016 and 2018 JusticePoint and City representatives engaged in several planning meetings to decide how MCAP would interact with new legal defense services provided by the City through Legal Action of Wisconsin. Part of that planning included a process of JusticePoint providing citations, which are otherwise available through open records requests, directly to Legal Action. Sayner indicated that in March the court raised concerns about JusticePoint providing citations directly to Legal Action attorneys, and JusticePoint “stopped that process immediately.” “We wholeheartedly believed that we were told by the city to make those referrals” and that JusticePoint had permission to share the citations, said Sayner. The only thing JusticePoint is guilty of is confusion regarding its role, Sayner said. JusticePoint was always willing to talk about the program design with the Municipal Court, Sayner said. He found it “shocking that it went from zero to 60 so quickly.” Ed Gordon, co-founder and chief operations officer of JusticePoint, said “we’re a little frustrated that we’re not able to respond to what the City’s allegations are.” He reiterated that JusticePoint thought sharing citations with Legal Action was an approved process, especially as the attorneys would be able to get the citations anyway. While neither Block, Himle, nor committee members confirmed that citation passing between JusticePoint and Legal Action was the serious accusation of wrongdoing, the topic came up repeatedly. “There was no perception that it was inappropriate because the same citations have been received by open records requests for years,” said Susan Lund, an attorney from Legal Action. Service providers, community advocates, and individuals who interact with JusticePoint told the committee of the importance of JusticePoint’s work and expressed worry over the sudden termination of the contract and a lapse in services. Jeanne Geraci, executive director of the Benedict Center, which provides services and advocacy for women in the criminal justice system, remarked that the Benedict Center did not have the capacity to provide services directly to the municipal court. In her organization’s experience with government contracts, if problems are uncovered through an audit or otherwise, “if something is not in compliance we generally have the opportunity to do a correction,” Geraci said. “We have never seen anything like what we are seeing happen to JusticePoint.” She encouraged the court to “take a step back” and offer JusticePoint a “transparent and just procedure” to avoid a disruption in critical services. Erika Petty, executive director of LOTUS Legal Clinic, which provides legal services for survivors of sexual violence and human trafficking, said JusticePoint offers important social services for those in crisis and that for many individuals their contact with Municipal Court may be the only opportunity to seek those services. Other speakers focused on the lack of public information about the termination. Sylvester Jackson of Believers for Change said that having two people make a decision that will affect thousands of others was wrong and that taxpayers deserve to know more. Rev. Joseph Ellwanger, from the Milwaukee Inner-city Congregations Allied for Hope (MICAH), expressed concern about how and why the termination is occurring and called for transparency and clarity. He asked the Common Council to make sure the decision doesn't occur in a closed room. Emilio De Torre, executive director of the Milwaukee Turners, suggested that the committee talk with the judges or consider putting the MCAP on a separate budget line outside of the court budget. While it was unclear at the end of the meeting what the committee would do, Borkowski said he would “seriously inquire into the matter" and consider addressing the issue again at the committee’s July 5 meeting. However, multiple committee members and Block indicated that the Common Council has no power over the termination decision. Because, as indicated by committee members and Block at Monday's meeting, termination of JusticePoint's contract appears within the control of Milwaukee Municipal Court, public concern about the termination should be directed to court officials. See https://city.milwaukee.gov/municourt.
Unclear whether services to Milwaukee Municipal Court defendants will continue without interruption6/9/2023  By Alexandria Staubach Milwaukee Municipal Court has terminated a long-term court diversion program contract without identifying a successor or a plan for continuity of services. JusticePoint facilitated the City of Milwaukee’s Municipal Court Alternatives Program (MCAP) for 40 years. MCAP staff provide information and recommendations to Milwaukee Municipal Court for alternatives to forfeitures and jail for those who are unable to pay or who need specialized services. A May 15 termination letter calls JusticePoint’s discharge a “termination for convenience.” Questions immediately arose about what will happen to the program’s clients on July 12, the day after JusticePoint's contract ends, but those questions had to await the return of a court administrator who was out of the office. “Milwaukee Municipal Court’s intervention/alternatives program will continue, just not with the current vendor,” Sheldyn Himle, chief court administrator for Milwaukee Municipal Court, told Wisconsin Justice Initiative on Tuesday. WJI asked follow-up questions about whether the court has identified a new vendor, whether the court anticipates the vendor will be able to assume services on July 12, and what will occur in the interim if not. The court did not answer these questions by the time of this blog post. Municipal citations are often issued to people experiencing poverty, mental health crisis, disability, and substance abuse issues. Many are unhoused. Many have disabilities that make navigating the court system exceedingly difficult. From 2002 to 2022, JusticePoint provided services to 61,975 individuals, resulting in 146,202 hours of community service completed and 444,984 days of jail avoided for the community and taxpayers. “I think it's important to remember that the fines levied against the clients we work with in this program were never going to be collected by the City in the first place,” said Ed Gordon, JusticePoint’s chief operating officer and co-founder, in an email to WJI. “These are not people of means choosing not to pay their fines. This isn't about a reduction of revenue to the city. In fact, it's quite the opposite — this program recognizes that those in our community who would never be able to pay their fines in the first place can be 'held accountable' for their actions by taking steps to improve their own situations. Success here, and we have four decades of data to support this, represents reducing future police and court involvement for these folks. This program saves taxpayer money and strives to improve the lives of some of the most vulnerable in our city. That is what we're losing with the elimination of this program.” In a June 8 letter to the Milwaukee Common Council and its Judiciary and Legislation Committee, former Milwaukee Municipal Judge Jim Gramling said he would like to see JusticePoint reinstated and its MCAP work continued. “They have provided excellent service to the City and its more disadvantaged citizens. Their staff has been competent and committed from my first day in court in 1986,” he wrote. Gramling noted that many municipal court defendants “are part of disadvantaged groups within our community: the poor, those addicted to drugs and alcohol, those suffering from mental health issues.” He said it was essential to him when he was judge that the municipal justice system “reach(ed) out to them at every possible opportunity to prevent them from being ground up in that system. The MCAP was the vehicle for that.” JusticePoint plans to continue to provide services through July 11. Unless the City or a new vendor provides similar services on July 12, disruption is likely for clients who have not and cannot complete community service by then, and some current clients will have no documentation for the court at their next hearing, according to JusticePoint. “JusticePoint is deeply concerned about the future of clients that have traditionally had opportunities to receive alternatives to the municipal court process,” Nick Sayner, JusticePoint’s chief executive officer and co-founder, told WJI. “We work with the most vulnerable populations in the City who receive citations usually related to unresolved social service needs. Individuals who are experiencing housing insecurity, poverty, substance use, mental health issues, and trauma are currently offered treatment alternatives, referrals, and/or community service options. As of July 11th, those options will no longer be available, and all individuals who would have been eligible for alternatives will be expected to pay their fines or be sent to collections. This process is simply unnecessarily punitive and can place people into an unrelenting system of debt collection.” WJI joined a coalition to save JusticePoint’s MCAP. The 24-member coalition includes legal and community organizations serving the most vulnerable populations in Milwaukee, often in tandem with JusticePoint’s services. “Milwaukee Municipal Court has statutory and constitutional obligations to these defendants — JusticePoint helps the municipal court comply with the law,” wrote the coalition in a letter to Milwaukee Mayor Cavalier Johnson and the Milwaukee Common Council. “It is shocking that Milwaukee Municipal Court would suddenly cancel the contract for such an invaluable program. The contract was canceled without cause and was described as a ‘termination for convenience’, with an effective date of July 11, 2023. The Court has provided no explanation for what is to happen to the hundreds of individuals currently being served by JusticePoint.” Milwaukee Ald. Mark Borkowski has scheduled a hearing before the Common Council’s Judiciary and Legislation Committee Meeting on June 12 at 11:00 a.m. in room 301-B of Milwaukee City Hall. The meeting is open to the public. The meeting agenda was recently amended to indicate the committee may also go into closed session at some point regarding the matter. Wondering how to contact the Milwaukee Common Council? Info can be found at https://city.milwaukee.gov/CommonCouncil. By Alexandria Staubach
In theory, Wisconsin law currently permits expungement of certain felony and misdemeanor convictions. In practice, expungement is rare and difficult to obtain. Senate Bill 38/Assembly Bill 37 could change that. Iterations of the bill were introduced, but failed, in past legislative sessions. However, SB 38/AB 37 has broad, bipartisan support. (WJI discussed details of the bill in a previous post here.) “We are hopeful we can reach an agreement soon, pass the bill through the Senate, onto the Assembly and Governor's desk,” said Rep. Evan Goyke (D-Milwaukee), an advocate for expungement and a co-sponsor of the bill. “What we’ve been able to do with expungement is cultivate and continue to work with a broad and bipartisan coalition that doesn’t traditionally work together. My hope is that this can be an example of what can move criminal justice reform forward in Wisconsin.” A criminal conviction has implications far beyond the conviction itself. Collateral consequences include licensing exclusions that prohibit whole categories of employment, limits on voting, inability to access educational loans, and limits on public benefits. Expungement of a criminal record results in a conviction being sealed from public records. Bill sponsor Sen. Rachael Cabral-Guevara (R-Appleton) stated in testimony to the Senate Judiciary and Public Safety Committee that expungement allows “people who have served their time . . . to fully contribute to their communities, without the discrimination of having an, albeit minor, case open to public record.” Current law is highly restrictive, and the practical effect is that very few people qualify, says Natalie Lewandowski, clinical director of the Milwaukee Justice Center’s Expungement/Pardon Mobile Legal Clinic. The current law permits expungement for an offense with a maximum penalty of six years, as long as the offense is not a violent felony, the person was under 25 years old and had no prior felony record, and the person requested expungement at the time of sentencing. A later court may then grant a request for expungement after the person has successfully completed their sentence. In 2020, the Court of Appeals held that even minor, technical violations of community supervision rules will bar expungement. In its Spring 2023 session, the Expungement/Pardon Mobile Legal Clinic assessed 60 convictions for expungement. Of those convictions, only four were found eligible for expungement, and zero were successfully expunged. Two of the four requests were denied due to probation revocations, one person ultimately failed to meet the age requirement, and one person owed a balance on court costs and fines. To date in its Summer session, the clinic has assessed 16 convictions and found only three qualified for expungement. Only one of the three was found eligible at a hearing, but expungement was nevertheless denied because of an earlier probation revocation. The pending bill eliminates the under-25 age requirement — the most exciting and expansive component, says Lewandowski. She is optimistic that SB 38/AB 37 will significantly expand access and result in more successful outcomes for clients. The clinic estimates that roughly 87% of individuals who previously obtained pardons through the clinic would now be eligible for expungement if the legislation is adopted. The bill also eliminates the requirement that the person must have asked for expungement at the time of sentencing. A sentencing court would retain its ability to grant or deny expungement, but the person could petition for expungement after successfully completing their sentence even if the matter was not addressed. Under the bill, if a petition for expungement is denied, the person could file again after two years and payment of $100. Only one expungement per person would be permitted, and a person could petition just twice per crime. The new SB 38/AB 37 specifies additional offenses that are ineligible for expungement, including traffic crimes, criminal trespass, criminal damage to a business, and violation of restraining orders in domestic abuse cases. The bill would apply the changes retroactively to convictions that occurred before adoption. A 2020 Cato Institute study of data from Michigan found that petition-based expungement policies resulted in only 6.5% of eligible individuals receiving expungements in the first five years of eligibility, people who receive expungements tended to have very low rates of recidivism, and expungement recipients exhibited better employment outcomes quickly. |
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