By Gretchen Schuldt No, mowing the lawn does not require a call to Digger's Hotline three days before that first blade is cut, according to a State Court of Appeals decision. Such a requirement would "lead to absurd results," District III Court of Appeals Judge Mark A. Seidl wrote for a three-member panel. He was joined by Appeals Judges Lisa K. Stark and Thomas M. Hruz. The decision means that Polk County won't have to pay for the damage its workers did to two pieces of equipment owned by Lakeland Communications Group LLC while the workers were mowing along a highway right-of-way. Under previous court rulings, counties are protected from liability for any mowing mishaps for which they are responsible. Lakeland, in its effort to collect $1,791.21 in damages, alleged that the county was negligent because it did not contact Digger's Hotline at least three days before mowing, as state law requires for excavation work. The requirement gives utilities time to mark the locations of underground equipment so it is not damaged during excavation. Lakeland argued that the county's mowing operation was excavation because vegetation on the ground was moved or removed. Polk County Circuit Judge Jeffery L. Anderson, in rejecting Lakeland's small claims complaints, ruled that "excavation" did not mean mowing the grass or trimming the trees. It means actual moving of dirt and earth, he said.
The appeals panel agreed. The Legislature, in adopting the Digger's Hotline law, did not include the word "vegetation," which it easily could have done, Seidl wrote. "Lakeland’s expansive interpretation would create ambiguity and impose wide-ranging consequences if adopted," he wrote. If simply moving material that is on the ground constitutes excavation, as Lakeland contended, "then anyone planning to rake leaves or mow a lawn would be required to call Digger’s Hotline" Seidl said. Such a requirement, as the Wisconsin Counties Association said in a friend of the court brief, “would result in a flood of inquiries” to Digger’s Hotline, impose "an additional utility tax on Wisconsin's citizens," and would force significant changes to public mowing operations, Seidl said.
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By Gretchen Schuldt Andrea wrote bad checks. She wrote them frequently, according to the Monroe County district attorney's office. A criminal complaint said her bad checks included $155 (including a $23 tip) to The Hair Gallery; $53.89 to a Kwik Trip; $47 and $30.19 to the Tomah Mini-Mart; $455 to the Tomah Cash Store; $42.27 to the Tomah Phillips Pharmacy; and $46.12 to Casey's General Store. By the time the DA's office finished writing them all up, Andrea faced 26 counts of misdemeanor theft by misrepresentation. Part 1 is here. But Andrea faced an even bigger problem. She was out on bond in two earlier cases – a misdemeanor possession of drug paraphernalia charge in Monroe County and two counts of issuing worthless checks in La Crosse County. A condition of each of those bonds was that Andrea not commit any crimes while her cases were pending. Violation of her bond conditions could be charged as new crimes – misdemeanor bail jumping. Based on her two pending cases, the Monroe County district attorney's office added 31 counts of bail jumping to the 26 counts of theft. Andrea now faced 57 criminal charges. Her maximum potential jail exposure jumped from 19.5 years to almost 43 years. And then the DA's office did what prosecutors around the state do – it reached a plea deal. Andrea pleaded guilty to five counts of misdemeanor theft and six counts of misdemeanor bail jumping. The remaining 46 counts were dismissed. She was sentenced to a total of 77 days in jail and three years probation. Monroe County Circuit Judge David J. Rice stayed a sentence of 60 days in jail on each count. Defense lawyers long have complained that felony and misdemeanor bail jumping charges are used to coerce defendants into pleading guilty to other charges. A new paper in the Wisconsin Law Review suggests that is indeed the case. Felony bail jumping occurs when a person out on bond on a felony charge violates the conditions of that bond. Misdemeanor bail jumping occurs when a person out on bond on a misdemeanor charge violates the conditions of that bond. A bail jumping offense may not by itself be a crime. Missing a court date, violating a local ordinance, or having a drink could all be bail jumping offenses if bond conditions prohibit those things. Misdemeanor bail jumping carries a maximum penalty of nine months in jail and a $10,000 fine; felony bail jumping carries a maximum penalty of six years in prison and a 10,000 fine. For her Law Review paper, author Amy Johnson analyzed the relationship between the disposition of bail jumping charges in the state and the disposition of other charges in the same cases. She considered the bail jumping cases "leveraged" to get plea agreements if at least one of the bail jumping charges was dismissed and defendants pleaded guilty to at least one of the underlying charges. Johnson considered cases closed at the county level from 2000 to 2016. In 2000, she found, 59 percent of cases (2,447 of 4,120) of bail jumping cases may have been leveraged; by 2016, that figure had risen to 66 percent, (5,864 of 8,841). Looked at another way, the number of potentially leverage plea bargained cases jumped 140 percent from 2000 to 2016, from 2,447 to 5,864. Johnson cautions that dismissed bail jumping charges along with a pleas to underlying charge do not conclusively prove that the bail jumping charges were used to coerce the plea. There are many other reasons charges are dismissed, she said. "However, when the percentage of bail jumping charges dismissed in cases where the defendant pled to other charges reaches 70, 80, or nearly 90 percent the correlation between the dismissal of bail jumping to the plea to other charge becomes hard to ignore, particularly when dismissal rates of other charges are significantly lower," she wrote. In Iowa County, for example, 85 percent of bail jumping cases closed in 2016 may have been leveraged; in Chippewa County, the figure was 83 percent; in Eau Claire County, 80 percent; in Dane County, 78 percent; and in Milwaukee County, 55 percent. In only 25 cases statewide were all bail jumping charges dismissed without a plea on other charges, Johnson wrote. That, she said, is "another data point that appears to support the inference that bail jumping is used as leverage." Supreme Court united in denying raises for some lawyers; divided on approving them for others7/11/2018 By Gretchen Schuldt The State Supreme Court spoke in three different voices when it decided to give court-appointed lawyers a raise to $100 an hour from $70 starting in January 2020, The Court was united, though, in refusing to give lawyers appointed by State Public Defender's Office (SPD) any raise at all. Those lawyers are paid $40 per hour to represent indigent clients, the lowest rate in the nation. The court recently released its order on appointed lawyer pay. It was in response to a petition seeking the raise for court-appointed lawyers, plus a $100-per-hour-rate for SPD-appointed lawyers. The court said it had the power to increase the rate for the former group, but did not want a fight with the Legislature over a raise for the latter. Justices Ann Walsh Bradley and Shirley S. Abrahamson concurred and dissented with parts of the Court's order, saying the raise for court-appointed lawyers should begin sooner. Justices Daniel Kelly and Rebecca G. Bradley dissented, saying the Supreme Court should not even should not grant raises to court-appointed lawyers because the power of the purse belongs to the Legislature. So first, a few excerpts from the section of the unsigned order demurring on the raises for SPD-appointed lawyers. Chronic underfunding of the Office of the State Public Defender (SPD) has reached a crisis point. *** Most attorneys will not accept SPD appointments because they literally lose money if they take these cases. Consequently, the SPD struggles to find counsel who will represent indigent criminal defendants. *** The threshold question is whether this court has the authority to declare a legislative mandate "unreasonable." ...This court has traditionally exercised great care to avoid controversy with the legislature. We are highly mindful of the separation of powers and do not engage in direct confrontation with another branch of government unless the confrontation is necessary and unavoidable. ... We thus decline to use our administrative regulatory process to undermine a legislative enactment. We are, however, deeply concerned about the impact of prolonged underfunding of the SPD on our duty to ensure the effective administration of justice in Wisconsin. We agree that the consequence - significant delays in the appointment of counsel - compromises the integrity of the court system and imposes collateral costs on criminal defendants and their families, and on all citizens of this state: jobs lost, additional expenses incurred, and justice denied. We have a constitutional responsibility to ensure that every defendant stands equal before the law and is afforded his or her right to a fair trial as guaranteed by our constitution. We hope that a confrontation in the form of a constitutional challenge will not occur and trust that the legislature will work with the courts, the SPD, the petitioners, the counties, and other justice partners to ensure adequate funding for the SPD that is urgently needed to forestall what is clearly, an emerging constitutional crisis. *** The A.W. Bradley / Abrahamson concurrence / dissent was just two paragraphs long. They supported a raise for court-appointed attorneys, but wanted it sooner. "I would make the increase effective July 1, 2018," A.W. Bradley wrote. "I would not unduly delay the effective date of this change." Kelly was much more verbose in his dissent, which clocked in at more than 10 pages. He was joined by R. G. Bradley. Some brief excerpts follow. Compensation for attorneys appointed by the court to represent indigent criminal defendants is absurdly inadequate. The petitioners have established this proposition to an almost metaphysical certainty, which is no mean feat for a question of economics. The solution seems pretty simple——pay more. And it would be that simple if we shared the power of the purse with the legislature, there were no limits to financial resources or competing demands for them, and the money used to pay the attorneys belonged to the court. As it is, none of those conditions is true. So when we tell Wisconsin's counties to pay for the attorneys we appoint, we are trespassing on authority that belongs to others. *** We know, and have known for over two-hundred years, that the power of the purse belongs to the legislature, not us.
*** So our constitution, our cases, and the wisdom of the Founders all tell us that only the legislature may make appropriations. But when we tell counties to pay the attorneys we appoint, we are exercising that power. *** I am not insensible to the fact that Wisconsin's judiciary has been ordering counties to pay for appointed counsel for almost as long as we have been a State. Such a lengthy history is due considerable respect. ...But the judiciary cannot expand its authority into the legislative domain through adverse possession,1 or the legislature's long acquiescence. *** We should honor the wisdom of the Founders, and relinquish this incursion on legislative prerogatives. This would fix the error we have entertained for an exceedingly long time, but it will not fix the very real problem the petitioners brought to us. They speak truly when they say there is a constitutional crisis on the horizon. The evidence that indigent defendants are being held in jail for extended periods of time for want of counsel is deeply disturbing. The constitution may have something to say about the predicament of such defendants; it would be unfortunate if a declaration on that question were necessary. *** By Gretchen Schuldt The number of criminal bail jumping charges resolved in the state jumped 134 percent from 2000 to 2016 and the number of those charges dismissed soared 170 percent, according to a new Wisconsin Law Review paper. In 2000, bail jumping accounted for 7 percent of criminal charges adjudicated in the state; in 2016, that figure was 17 percent. The data suggest that bail jumping charges are used to induce defendants "to plead to their original charge rather than to punish them for violating their bond conditions," Amy Johnson wrote in "The Use of Wisconsin's Bail Jumping Statute: A Legal and Quantitative Analysis." Johnson's conclusion, buttressed by her quantitative findings, is something that defense lawyers also have argued based on their courtroom experiences. Felony bail jumping occurs when a person out on bond on a felony charge violates the conditions of that bond. Misdemeanor bail jumping occurs when a person out on bond on a misdemeanor charge violates the conditions of that bond. A bail jumping offense may not by itself be a crime. Missing a court date, violating a local ordinance, or having a drink could all be bail jumping offenses if bond conditions prohibit those things. Misdemeanor bail jumping carries a maximum penalty of nine months in jail and a $10,000 fine; felony bail jumping carries a maximum penalty of six years in prison and a 10,000 fine. The charges and penalties mean that a person charged with, for example, a felony that carries a two-year maximum sentence could face an additional six years in prison if they violate their bond in any way. There were 11,567 bail jumping misdemeanor and felony charges adjudicated in 2000 and 27,042 in 2016, an increase of 15,475. Of those resolved charges, 7,385, or 64%, were dismissed in 2000; by 2016, dismissals increased to 19,946, or 74% of bail jumping cases resolved. The 74 percent figure "is particularly informative considering that for all other fully adjudicated charges in 2016 the percentage dismissed was a significantly lower 47.32% (61,852 of 130,713 charges)," Johnson wrote. Johnson's paper, published as a comment, called for state courts to embrace reforms that "prevents extreme numbers of bail jumping charges. Doing so would reduce the leverage effect that prosecutors have without eliminating it entirely." The courts’ past and current interpretations of the bail jumping statute has “led to an increase in bail jumping charges, absurd consequences, and potential sentences to the charged crimes,” she wrote. “The result is that defendants are at a marked disadvantage when negotiating plea deals.” The Wisconsin Supreme Court, for example, has held that a defendant can be charged with multiple counts of bail jumping for violating a single bond. Johnson, as an example cited the example of a J.E., a composite of clients in actual cases she worked on during a 2016 legal internship. J.E., she said, is an alcoholic homeless man who got into a disturbance with another man on Madison’s State Street. Both men were charged with disorderly conduct; both admitted to being under the influence of alcohol. J.E. was granted a signature bond, but as conditions of that bond, was ordered to maintain absolute sobriety and to stay away from State Street. A few weeks later police arrested an intoxicated J.E. on State Street. He was charged with two counts of misdemeanor bail jumping. J.E.’s potential imprisonment suddenly jumped from a maximum of three months to a maximum of 21 months, Johnson wrote. “Ultimately, J.E. agreed to a plea deal that would dismiss the bail jumping charges if he pled guilty to the disorderly conduct….,” Johnson wrote. “Even if he was acquitted of the disorderly conduct, he would still have been subject to the bail jumping charges, and the likelihood of conviction resulting from those charges was too great for him not to take the plea.” Johnson graduated this spring from the University of Wisconsin Law School. Before she enrolled, she was an IT project manager and analyst for more than 20 years. During that time, she managed large software projects and gained considerable experience analyzing data. She said she got interested in the bail jumping topic when she read a State Supreme Court bail jumping decision, State v. Anderson. The court held that it was fine and dandy to issue multiple criminal charges for multiple violations of a single bond. In her paper, Johnson said that then-Justice Janine Geske, in a dissent, "points out a variety of scenarios where a detailed set of bond conditions that are violated could result in punishments that far exceed the initial crime." She continued: "This seems particularly outrageous when many conceivable conditions, like not drinking or not being in a certain area of town, are not criminal acts in and of themselves. A defendant with one criminal felony count could end up with punishment for violating bail conditions that far exceed the punishment for the crime itself." Geske’s dissent, Johnson said in an email, “rang very true based my anecdotal observations while working with clients that had bail jumping charges. I was curious about whether she was right or not.” Johnson’s planned paper “turned into a research project that took hundreds of hours," she said. Johnson analyzed Wisconsin Consolidated Court Automation Programs (CCAP) data for the years 2000 through 2016. The data included more than 1.6 million cases and 3.2 million charges. Statewide, disorderly conduct was the most frequently resolved offense in 2000, while misdemeanor bail jumping – charged when the underlying crime is a misdemeanor – was the fifth most common charge. Felony bail jumping was the tenth most commonly adjudicated crime. "Combined, bail jumping was third overall but the number of bail jumping charges was less than half of the number of disorderly conduct charges," she wrote. That changed dramatically by 2016. "Disorderly conduct was first," she wrote. "Misdemeanor and felony bail jumping were second and third, respectively. However, combined, bail jumping was the number one charge in Wisconsin, ahead of disorderly conduct by over 5,000 charges." The number of cases with multiple bail jumping counts loaded on to them also have increased, Johnson wrote.
In 2000, 23 percent of bail jumping cases closed had more than bail jumping charge; in 2016, the percentage was 35 percent. "Were Justice Geske’s assertions in her dissent in Anderson correct?" Johnson wrote. "Has the bail jumping statute and its interpretations resulted in a large number of bail jumping charges and an excessive exposure to penalties? The CCAP data suggests that she was indeed correct." |
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