 Photo of Milwaukee City Hall by Alexandria Staubach. By Alexandria Staubach
The Fire and Police Commission’s (FPC) Oversight and Accountability Committee met last week and reviewed the results of its 2023 Citizen Complaint Report. According to the report, as the oversight authority for Milwaukee Police Department (MPD), Fire Department (MFD), and Department of Emergency Communications (DEC), the FPC provides the city with a system of investigation independent of the agency being investigated, using its board of civilian commissioners and staff. In addition to investigating those reports made directly to FPC, the commission also audits reports made directly to the agencies it oversees. While overall complaints remain on the decline from a high in 2014, troubling statistics remain. According to the report, 67% of all 2023 complaints were made by black Milwaukeeans despite comprising only 37% of the metro population, according to the most recent U.S. census data. Seven MPD employees received as many as four complaints while nine received as many as three. Police District 1 saw the most complaints by far, registering an average of 56.5 complaints per 1000 police-citizen contacts. District 1 includes the lakefront, University of Wisconsin-Milwaukee, downtown, and Summerfest grounds. Commissioner Ruben Burgos, appointed in 2022, said “of course District 1 is unique” but acknowledged that the statistics are disproportionately elevated, saying they were “nowhere near” the volume of complaints per contact seen in other districts. At the meeting, FPC staff said they reached out to District 1 for an explanation and received no response prior to the meeting. Burgos said it was a question District 1 needed to answer so, “we know that we are doing our due diligence.” Commissioner Miriam Horwitz, chair of the citizen board commissioners, suggested that District 1 including an “entertainment zone” could help explain the volume of complaints. However, according to the report, District 1 also had by far the fewest overall citizen-officer contacts. According to the report, the FPC investigated 192 distinct allegations in 2023. Of the 192, 34 were made against individuals who the FPC has no jurisdiction over, so that it investigated a total of 159. Of the 159 complaints, 13 were “sustained” or had sufficient evidence to support the allegations. In 2022 one complaint was sustained, and 11 were sustained in 2021. FPC places complaints into five general categories: “Unauthorized use of force,” which includes cases in which an employee used excessive physical force or more force than was needed under the circumstances. “Discourtesy,” which occurs when an employee uses unprofessional or inappropriate language, actions or behaviors. “Disparate treatment,” which includes inappropriate language, conduct or behavior that is based on race, religion, nationality, physical appearance, gender or sexual orientation. “Department procedures” violations, which covers deviations from standard operating procedures. “Department Services,” which includes instances where a citizen experiences an inappropriate, slow, and/or an insufficient response from an employee in response to a call or service or request for intervention. This year’s report found six substantiated complaints related to department procedures, seven related to department services and none for discourtesy, disparate treatment, or use of force. FPC used to enjoy broad power over law enforcement and procedure. However, last summer the Wisconsin Legislature passed Act 12, which dramatically changed the FPC’s authority. Under the legislation, policy making power was stripped from the FPC and given to department chiefs. However, the FPC is still charged with an annual review of both department policies and may advise the common council on recommended changes. While the FPC no longer sets policy it may make recommendations to the common council who can still suspend or modify a policy with a two-thirds vote of all its members. The changes under Act 12 only apply to “first class cities or counties,” or those with more than 750,000 people. No city in Wisconsin has a population exceeding 750,000 and Milwaukee County is the only county that meets Act 12’s population requirement. Milwaukee County has 916,205 residents according to July 1, 2023, U.S. Census data. Dane County has the next highest population with 575,347 residents.
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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 Upshot The law does not support Andrade's claim. For public employees terminable only for cause, Loudermill generally entitles a terminated employee to notice of the charges, an explanation of the evidence supporting them, and some pretermination opportunity to respond. The scope and nature of the pre-termination procedures can vary depending on the nature of the post-termination proceedings and the interests that are implicated. The Fourteenth Amendment's due process guarantees in this context are not rigid and formal; they are flexible, giving employers wide latitude on the process and nature of the notice due when terminating employees. Here, the Department notified Andrade of his conduct (the Facebook posts) and what policies this conduct violated. The Department provided Andrade an opportunity to respond to the allegations before the Chief imposed punishment. The Chief's decision to terminate was confirmed after a full administrative hearing before the Board, as well as judicial review of the Board's decision. We conclude the Due Process Clause does not require a more exacting and rigid pre-termination process than what Andrade received. Background On January 26, 2018, Milwaukee police officers arrested Milwaukee Bucks player Sterling Brown, using force and shocking him with a Taser. Officer Erik Andrade transported Brown to the police station after his arrest. Later that day, Andrade posted about the encounter on his personal Facebook page. Over the following months, Andrade posted a number of other "inappropriate, disrespectful and defamatory comments" — as the Chief would later describe them — on Facebook. Sometime later, a member of the City of Milwaukee Common Council shared Andrade's posts with the Department. The Department's Internal Affairs Division opened an investigation in May. Things escalated on June 19 when Sterling Brown sued the City, Chief Morales, and the police officers present at the scene of his arrest, including Andrade. Brown's complaint cited many of Andrade's offensive posts as an admission that Andrade and other officers could engage in "unlawful attacks and arrests of African Americans without justification" or a "fear of real discipline." That same day, the Milwaukee Journal Sentinel published an article about the lawsuit featuring Andrade's posts. The day after Brown filed the lawsuit, an officer from Internal Affairs called Andrade to inform him that they were investigating allegations he posted inappropriate content on social media. Internal affairs also sent Andrade a written notice, which he signed, that summarized several of the offending posts and referenced two Department policies (called "Core Values") that his conduct implicated. The notification further warned, "Disciplinary action may result," and set the date Andrade was "required to provide verbal responses and/or 'Memorandum' Reports(s)." On August 23, 2018, the Department officially charged Andrade with violating the same Core Values and Guiding Principles he was put on notice of prior to and during his interview….Both violations were a result of Andrade's Facebook posts that contained "inappropriate, disrespectful and defamatory comments to various memes and videos." This put the ball in the court of Chief of Police Alfonso Morales. Chief Morales had to determine whether to find Andrade guilty of the charges and what discipline to impose. The Chief had Internal Affairs reach out to the Milwaukee County District Attorney's Office and asked whether Andrade's posts would affect his credibility as a witness. They said yes. The comments diminished his credibility so severely that the office would never call him to testify. Even more, Kent Lovern, the second in command at the DA's Office, stated that the posts would fall into the category of Brady material. This means that if Andrade served as a witness in a criminal proceeding, the District Attorney's Office would be required to disclose evidence of Andrade's bias and untrustworthiness to defense counsel as impeachment evidence. September 12, 2018, almost three weeks after the Department issued formal charges, Chief Morales issued an order that found Andrade guilty of the charges and imposed discipline. The Chief suspended Andrade for 30 days without pay for "[p]osting content to a social networking site that was disruptive to the mission of the department." And for the charge of "Failure to inspire and sustain the confidence of our community," the Chief discharged him from the Department. The order did not explain the reasoning for the chosen level of discipline. The Chief's decision, however, is not the final word. Wisconsin law requires Milwaukee to establish a Board of Fire and Police Commissioners. After the chief discharges or suspends an officer for more than five days, he must file his written notice of discharge with the Board along with a complaint "setting forth the reasons for the discharge or suspension." The discharged officer then may choose to appeal the chief's decision to the Board. In that case, the Board holds a trial where the discharged officer "shall have full opportunity to be heard in defense and shall be entitled to secure the attendance of all witnesses necessary for the defense at the expense of the city." Accordingly, Chief Morales filed a complaint with the Board, listing the two violations and the punishment for each. The complaint stated that Andrade's Facebook posts were the basis for both violations. Andrade appealed the Chief's decision to the Board, and in December 2018, a hearing examiner presided over a two-day trial before a panel of three commissioners. After each side rested, the panel examined the five standards and concluded that the evidence supported both charges. The panel then moved to the second phase during which it heard evidence and arguments regarding the final two standards, including what discipline to impose. In the end, the panel determined that both the suspension and the discharge punishments were appropriate. It issued a written decision memorializing and explaining its determination on January 4, 2019. Andrade then appealed the panel’s determination in Milwaukee Circuit Court. The Honorable Jeffrey A. Conen of the Milwaukee County Circuit Court presided and upheld the panel’s decision. Andrade appealed the court's certiorari decision to the court of appeals. Relevant here, he argued that the Board did not have just cause to sustain the second charge (for which he was terminated) and that——contrary to the notice mandates of due process he was unaware prior to the hearing that his inability to testify was an issue. The Court disagreed. After reviewing the record, the court found substantial evidence to support the panel's just cause decision on the merits. In 2021 WJI Covered Andrade’s appeal, that post can be found here. The Guts The question in this case is whether the Milwaukee Police Department complied with the Fourteenth Amendment's Due Process Clause and Wis. Stat. § 62.50(13) when it terminated Andrade. Procedurally, this question comes to us via certiorari, and in this context, we limit our review to two questions: whether the Board proceeded on a correct theory of law and whether it kept within its jurisdiction. Andrade at times argues both, but he does not develop a separate argument as to why the Board exceeded its jurisdiction. Given that we have said proceeding "on a correct theory of law includes complying with the requirements of due process," we will analyze Andrade's claim on this basis and will not separately examine whether the Board exceeded its jurisdiction. We begin with the constitutional challenge. Andrade argues that the Board proceeded on an incorrect theory of law because Chief Morales violated his due process rights when he terminated Andrade without mentioning his inability to testify as a basis for the punishment. *** Andrade's basic contention is that he was not given an explanation of the evidence supporting his discharge prior to his termination. Andrade focuses on the fact that, even though Chief Morales would have disciplined him no matter what, his discipline would not have risen to the level of discharge absent the fact that Andrade could no longer testify [in court proceedings]. In his eyes, then, his inability to testify constituted evidence against him that the Chief should have disclosed prior to terminating him. Andrade argues he needed this information so that he could make any plausible arguments that might prevent the discipline. Not so. Andrade confuses the factors leading to the Chief's choice of discipline with the evidence of the violations in the first place. Chief Morales did not charge Andrade for his inability to testify. As the Chief explained, his conclusions about the policy violations differed from his decision about how to discipline Andrade. Loudermill does not require an explanation of the reasons discharge was the chosen punishment as opposed to suspension or something lesser. Rather, Loudermill just requires an explanation of the basic reasons the employee is being disciplined. Andrade proposes far more rigid, formal, and exhaustive notice requirements than Loudermill commands. Nothing in Loudermill requires an exhaustive pre-termination explanation of every fact or factor that might be considered in the disciplinary process. An employer need not detail all the consequences of an employee's misconduct, nor must it show in detail how those consequences might inform the employer's choice of discipline. The employer must simply notify the employee of the charges and evidence and give them an opportunity to respond. That's exactly what happened here. Loudermill, is a US Supreme Court decision that holds a public employee subject to termination only for cause, like Andrade, has a property interest in continued employment, which implicates due process protections. From the beginning, Andrade was told by Internal Affairs that they were investigating him for violating two identified Department policies because he posted inappropriate, disrespectful, and defamatory comments on Facebook. Investigators showed him and asked him about every concerning post. He knew that violations such as this could lead to discipline up to and including suspension and discharge. And following the investigation, the Department charged Andrade with violating the previously identified policies due to his Facebook posts. He was therefore on notice of the charges (the rule violations) and the evidence supporting them (the Facebook posts). It should not have surprised Andrade, then, when the Chief discharged him for one of the violations. Even more, Loudermill instructs that the "nature" of the post-termination review informs the "formality," "procedural requisites," and "scope" of the pre-termination process. Here, there can be no question Andrade received thorough post-termination review. After discharging Andrade, the Chief filed a formal complaint with the Board that explained the charges and evidence. The Board then held a full blown trial, giving Andrade the opportunity to call his own witnesses and cross-examine the Department's. Afterward, the Board considered seven comprehensive standards in making its "just cause" determination. The end result was a detailed, ten page written decision containing findings of fact and conclusions of law, thereby providing a robust substantive, procedural, and evidentiary check on the discipline Andrade received. After that, Andrade appealed to the circuit court, which reviewed the Board's just cause determination. These extensive post-termination procedures eliminate any doubt that Andrade had all the notice and opportunity to be heard that the Constitution requires. *** Andrade also briefly argues that Chief Morales failed to comply with Wis. Stat. § 62.50(13). This provision requires the police chief to notify the Board of a discharge or suspension greater than five days, and to include "a complaint setting forth the reasons for the discharge or suspension." § 62.50(13). Andrade contends the complaint did not do so because it failed to mention the inability to testify. *** Here, the complaint Chief Morales filed with the Board was simple, straightforward, and consistent with the statute. The Chief listed the Department policy Andrade violated for charge one, the punishment of a 30-day suspension, along with the evidence supporting the violation——the Facebook posts. The complaint also listed the Department policy Andrade violated for charge two, the punishment of discharge, along with the evidence supporting the violation——the Facebook posts. As we explain above, the inability to testify was not the conduct that violated the policies, but rather a consequence of Andrade's conduct that informed the level of punishment imposed. Therefore, the complaint submitted by Chief Morales to the Board complied with § 62.50(13).
***
Though the Board upheld the Chief's decision to terminate Andrade over his perceived inability to testify, Andrade was not provided with that information as the basis for discharge until post-termination. Through this failure, Andrade's constitutional right to due process, as guaranteed under Loudermill, was violated. Through this failure, Andrade was likewise denied the statutory procedural rights he was due as required by Wis. Stat. § 62.50(13), which required the Chief to provide Andrade with the reasons for his discharge and to do so at the same time he imposed the correlating discipline. Andrade was provided alternative reasons for discharge throughout the pre-termination process——for violation of two provisions of the Department's Code of Conduct——before he was finally provided the actual reason necessitating his discharge—— his perceived inability to testify——in the post-termination proceedings. The majority is correct that "due process guarantees in this context are not rigid and formal; they are flexible." However, the process due cannot be so flexible as to have no solid parameters or shape at all. At its foundation, procedural due process requires that the accused be provided "notice and an opportunity to respond" to the charges presented, as well as "an explanation of the employer's evidence." *** Yet, Andrade was not provided these basic requirements of due process pre-termination. The parties do not dispute the fact that Andrade had a legitimate property interest in retaining his job, as the United States Supreme Court has recognized the importance of protecting this property interest: [T]he significance of the private interest in retaining employment cannot be gainsaid. We have frequently recognized the severity of depriving a person of the means of livelihood. While a fired worker may find employment elsewhere, doing so will take some time and is likely to be burdened by the questionable circumstances under which he left his previous job. *** It is not reading Loudermill "too woodenly" as the majority asserts, to recognize that due process demands Andrade be on notice and provided with the actual reason for his termination prior to depriving him of his property interest in continued employment. Nor is it demanding more than due process requires to expect that Andrade be provided the evidence substantiating the actual reason for his termination, so as to enable him to defend himself and his interests. Andrade's perceived inability to testify was not merely a consequence of Andrade's misconduct, as the majority states. Andrade's perceived inability to testify was the "sole" reason for his termination. The Chief testified as much during Andrade's post-termination hearing in front of the Board. Accordingly, this "sole" reason for termination cannot be both a consequence of the decision to terminate and a part of the decision to terminate. Due process is "flexible" but it is not flexible on "[t]he essential requirements" of "notice and an opportunity to respond" and "the opportunity to present reasons, either in person or in writing, why [the] proposed action should not be taken . . . ." And, if the due process right "to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented," so it must be provided pre-deprivation of Andrade's property interest. Andrade was provided notice and the opportunity to respond to the charges of two specific violations of two provisions of the Department's Code of Conduct. Had those specified charges been the reason that Andrade was terminated, due process could have been satisfied. But Andrade was terminated for a third, unspecified and unnoticed reason. Andrade's fundamental due process rights were impermissibly violated. Andrade did not receive due process when he was terminated from the Department for his perceived inability to testify. Andrade was deprived of his property interest without having ever been placed on notice of the actual charge, nor provided the opportunity to respond. This deficient process fails to satisfy either the "flexible" standard relied on in Loudermill or the more demanding standard required by Wis. Stat. § 62.50(13). It is not necessary to consider the content of the offensive Facebook postings. They are distasteful and unbecoming of police officers. But due process, even when flexible, demands certain "essential requirements" be met, namely, that the accused be provided "notice and an opportunity to respond." These "essential requirements" of due process were not provided here. Due process under the statute required the Chief to provide Andrade with a complaint "setting forth the reasons" for Andrade's termination at the time that discipline was imposed. The Chief testified that the sole reason for Andrade's termination was his perceived inability to testify. Yet, that reason for termination was not provided to Andrade until post-termination. "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Scott P. Craig
Appointed to: Racine County Circuit Court Appointment date: Jan. 22, 2024, to term ending July 31, 2025 Education: Law School – St. Mary’s University, San Antonio, Texas Undergraduate – University of Texas at Austin, Austin, Texas High School – William Howard Taft High, San Antonio, Texas Special Education Certificate – NTEC (Quincy University), Oak Creek, Wisconsin (Quincy, Ill.) Recent legal employment: June 2020-present – Deputy Family Court commissioner, Racine County, Racine, Wisconsin January 2017-December 2017 – Adjunct professor, Gateway Technical College, Kenosha, Wisconsin January 2016-June 2020 – Lawyer/Guardian ad Litem, Law Offices of Scott P. Craig, LLC, Racine, Wisconsin August 2007-January 2016 – Special Education teacher, Racine Unified School District, Racine, Wisconsin Bar and administrative memberships: State Bar of Wisconsin General character of practice: My practice was primarily Guardian ad Litem (GAL) work for Racine County. In addition to that, I did family and school representation, limited scope representation, and mediation. Describe typical clients: I represented the best interest as a GAL of children, minor parents, and persons deemed incompetent. Otherwise, it was a parent in a paternity, child facing school discipline, child in an IEP meeting, or parties in a mediation. Number of cases tried to verdict: As GAL-participated in 30+ bench trials List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years: As a GAL, I participated in a child abuse injunction trial that eventually led into a dispute over custody and placement. Essentially, the mother was attempting to alienate the father from their child. The trial lasted over a year due to a myriad of factors. In the end, the recommendation I had initially made of the injunction being denied. The judge was The Honorable Faye Flancher, Mother's attorney was Greg Hodhal, and Father had Attorney Rod Koening. Experience in adversary proceedings before administrative bodies: N/A Describe your non-litigation experience (e.g., arbitration, mediation). Towards the end of my private practice I began building my mediation practice. My focus was couples who needed help with paperwork to start and complete their divorce. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Volunteered at President Obama's campaign stop in Racine – approx. 2008. Previous runs for public office: N/A All judicial or non-partisan candidates endorsed in the last ten years: N/A Professional or civic and charitable organizations: Racine County Bar Association, member, approx. 2018-2020 Racine Family Bar Association, member, 2020-present Wisconsin African American Lawyers, member, approx. 2016-2018 Significant pro bono legal work or volunteer service: Marquette Legal Clinic - House of Peace: Provided legal advice and completed paperwork for parties - family, guardianship, small claims, and landlord/tenant issues. (approx. 3 years) Marquette Legal Clinic - Milwaukee Justice Center: Provided legal advice and completed paperwork for parties - family issues (approx. 6 months) Legal Action Volunteer: Provided legal advice on consumer issues. (approx. 6 months) Racine Literacy Counsel - Tutor (approx. 1 - 1.5 years) Quotes: Why I want to be a judge: Since being in Racine I have had the honor of working with students with emotional and behavioral disabilities. Horlick High School is full of educators who are committed to welfare of the students and the community. I am proud to count myself among that group. We helped students with academics, decision-making skills, goal setting, and overcoming adversity. We made a difference in the lives of children and the future of Racine. When I got to Racine, I found a church family that showed me what service looks like. It was at that church that sparked my desire to be a servant. I served in and out of the church to help those in the community and those in need. We opened up our doors to our most vulnerable and eventually, that would be the spark that started the Hospitality Center here in Racine. I am forever grateful to be a part of that. After teaching, I was blessed with the opportunity to serve as a Guardian ad Litem for Racine’s most vulnerable population, children in the middle of custody battles, guardianships, and CHIPs actions. Through dedication and hard work, I was able to make a positive impact on the lives of children. For me, this act of service was about ensuring the future of this community is as safe as possible. It has been an honor for the last three and half years to serve the people of Racine County as a Deputy Family Court Commissioner, and I wish to continue my service by being appointed to Branch 4 in Racine County. I wish to continue my service because the State of Wisconsin and the County of Racine have given me far more than I could ever hope to give in return. I spent the first half of my life in Texas, but it is the second half of my life in Racine that has been my biggest blessing. Wisconsin has given me a home, a family, and a sense of community. I am committed to Racine County and its residents. I wish to give back to the community that has given me so much. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. A case that had a significant negative impact on the people of Wisconsin is Citizens United v. FEC. In this case, the US Supreme Court held that super PACs and corporations can spend an unlimited amount on elections. Historically, restrictions were in place to prevent corruption. The Court in Citizens United, felt unlimited spending by corporations and super PACs is permissible and avoids corruptions so long as they do not work with the campaign. Also, super PACs do not have to disclose the identities of the contributors. Prior to this ruling, PACs were allowed to donate a limited amount of money to a campaign. Citizens United concentrates political speech in the hands of the wealthiest individuals. It takes away from the concept of one person, one vote. It shifts the balance further away from voter and places the power in the hands of a select few. The voice of everyday citizens is drowned out by the chorus of money flowing into the political landscape. Wisconsin is a swing state, so it is one of the states that see some of the greatest influence from Citizens United. The voters are inundated with ads and mailers from these super PACs. The voters do not know who is behind the ads and mailers they receive. It could be wealthy individuals with agendas that differ from everyday working people. It could even be from foreign country seeking to undermine our democracy or the safety of our community. Two or three judges whom I admire and why: Thurgood Marshall has had the biggest impact on my legal journey. It started when I was in grade school. I read a biography about Thurgood Marshall. I am not sure at the time I read the book, I knew what a judge was, but the one thing I did know was that I wanted to be like him. I was not sure the route but I knew I wanted to be a judge. Moreover, he even sparked a dream of being on the Supreme Court. I was drawn to his handling cases that mattered and transforming the lives of people. I wanted to be like him and make a positive impact in the community. From the book, I got a sense of his strength and his character. It was also easy to admire his being the first person of color to serve on the Supreme Court, and his ability to do it with grace and dignity. The other judge I admire is a much lesser known judge, but no less significant in my life, my childhood priest. Father Phil Stevenson began his life prior to entering the priesthood as a lawyer. He took up the family business as a young man and it was in the military that he served as a judge. By the time he came to my church, his legal career was but a distant memory. I always admired Father Phil and in many ways looked up to him. He was a man of strength, charisma, character, and devotion. When I told him of my desire to be a judge, he told me I would need to go to law school. He then told me he went to the University of Texas at Austin. It was then and there that I decided that I was going to UT. When senior year came around, I applied to UT and began the path towards the judiciary and the path Father Phil sparked in me. The proper role of a judge: The proper role of a judge is to apply the law to the facts in a fair and impartial manner. A judge must be fair. A judge should not enter into a case with their mind up about the potential outcome. I saw the need of impartiality while working as a Guardian ad Litem (GAL). It is a unique position, because the GAL speaks with both parties. Once, a mother come in for an interview and she was quite compelling. The father came in a few days later and had a much different account of the events, but Father had evidence that disproved the veracity of Mother’s claims. I walked away with a greater sense of the importance of remaining neutral until all the facts and evidence have been presented. It can be very tempting at first blush to form an opinion, but a judge must remain open to hearing both sides before forming an opinion. While on the bench as a Deputy Family Court Commissioner, I always remain open to hearing from both sides before rendering a decision. A judge should apply the law to the facts. A judge should make a decision independent of desired results or partisan pressure. Judges should be able to make decisions that may not align with their personal beliefs. As a parent, I can understand the desire of parents to determine with whom their children spend time. Nevertheless, as a Court Commissioner, I order third party visitation when the petitioner has met the standards set out in 767.43. I do not try to make their circumstances fit my personal beliefs. I simply apply the law to the facts. The judge is to be a good communicator - listening and speaking. It is the job of the judge to make sure everyone has had an opportunity to be heard. Even though it may be the twentieth case the judge hears that day, it is the first time the parties have had an opportunity to be heard. They have waited, they have worried, and they have prayed for this moment. It is a significant moment to the parties and should be treated accordingly. I never lose sight of that when I am on the bench. With the rise of pro se parties, good communication is even more crucial. Lawyers and judges throw around terms of art that go over the heads of the parties. While on the bench, I take the time to explain a term or procedure. Even after an explanation, I will ask if anyone seeks further clarity. Court can be bewildering and intimidating and the judge has a duty to make it as accessible as possible. A judge is to maintain the decorum of the courtroom. Fairness, impartiality, and good communication are all in vain if the judge cannot maintain order in the courtroom. Parties often come to court during some of the worst times of their lives and may not always comport themselves. The judge must set the expectations of courtroom behavior. The judge must admonish when necessary but must be open to offering grace when someone was not at their best. For nearly a decade, I had stellar classroom management and maintained the decorum of my classroom. I take that same approach and sensibility when keeping the decorum of my hearing room. By Alexandria Staubach Last week the Wisconsin Court of Appels ruled in favor of a severely diminished and long-suffering man who fought an order for forced medication to restore his competency for trial. The appeals court vacated the trial court’s involuntary medication order, finding that the trial judge failed to ensure that the plan for the man’s forced medication was sufficiently individualized to him. The appeals court held that trial courts must consider whether “under the particular circumstances of each individual case, the State has an important interest in bringing that defendant to trial.” In the case before it, the state did not. Further, said the appeals court, until an order for involuntary treatment issues, an accused remains eligible for bail; the mere raising of the issue of competency does not end bail eligibility.  Geenen District 1 Judge Sara Geenen wrote for the three-judge panel, which included Presiding Judge M. Joseph Donald and Judge Pedro Colón. The appeals court reversed the order of Milwaukee County Circuit Court Judge Milton L. Childs.
In its decision, the appeals court relied heavily on Sell v. United States. In Sell, the U.S. Supreme Court identified a four-factor test to determine whether an accused person’s constitutionally protected liberty interest can be outweighed by the state’s interest in forcibly medicating the person to regain competency to stand trial. The Sell factors are 1) the state’s “important” interest in proceeding to trial; 2) whether forcibly medicating the individual will significantly further that important interest; 3) whether forced medication is necessary to further that interest; and 4) the medical appropriateness of the medication. The appeals court found that Childs failed to consider the “special circumstances [that] undermine the importance of the State’s interest” in bringing J.D.B., referred to by the court as "Jared," to trial for battery to a law enforcement officer. Jared was 19 when he experienced an episode of psychosis that resulted in his alleged assault of an officer. The court described Jared’s multitude of underlying conditions, which include “partial left-side paralysis, a lumbering gait, compromised speech and cognitive abilities all stemming from a traumatic brain injury sustained from a self-inflicted gunshot wound when he was eleven years old.” Jared was diagnosed with schizophrenia and major neurocognitive disorder. Geenen described a one-paragraph criminal complaint stating that police responded to a call at Jared’s homein Milwaukee on Aug. 22, 2022, after his mother reported he was threatening to get a gun and kill everyone in the residence. Jared allegedly made threatening remarks to the responding officers and, while officers were arresting him, punched one officer in the face and threatened to kill that officer. Officers took Jared to a health care facility, which did not admit him. According to Geenen, where Jared was for the next four days was unclear. On Aug. 27, 2022, Jared was booked into the Milwaukee County Jail. At Jared’s first court appearance, on Aug. 31, 2022, his competency was raised as an issue, and the trial court ordered a competency examination. The competency exam occurred more than a month later, on Oct. 11, 2022. On that same day, the trial court found Jared incompetent to stand trial and ordered him into Department of Health Services custody. However, DHS did not take Jared into custody for another 106 days, during which time he remained in jail. According to Geenen, a 90-day commitment review was conducted while Jared remained at the jail. In January 2023, Jared was taken to the state psychiatric hospital in Mendota. Although he was then voluntarily taking medication, Jared allegedly swore and “spit at staff, urinated and defecated in his room, and continued to exhibit symptoms of schizophrenia,” Geenen wrote. By early April 2023, Jared was refusing medication. On April 11, 2023, Dr. Mitchell Illichmann initiated a request for involuntary medication with the trial court. The appeals court found that the forced medication plan Illichmann proposed failed to address many of Jared’s underlying conditions, omitting that he suffered from diabetes and was on a seizure medication. Without specifying duration or sequence, Illichmann’s proposed plan simply identified seven different oral antipsychotics the hospital would try. The plan recommended that if the oral medications did not work, another antipsychotic should be administered by injection. The plan also suggested another injected medication for agitation. The appeals court noted that at the hearing where Illichmann testified about the necessity of involuntary medication, there was no mention, question, or detail provided about “how often a dose of any particular mediation would be administered,” and no evidence or indication regarding the maximum amount of a particular medication to be administered in a given period of time. Illichmann testified at the hearing that he tried to discuss each of the seven oral medications in the plan with Jared, but Jared responded only that he did not feel he needed the medication. Childs found sufficient cause and ordered involuntary medication. Jared appealed, and the court of appeals stayed Childs’ order pending appeal. Geenen wrote in the appeals court’s subsequent decision that the “circuit court concluded that the first Sell factor, a requirement that the State have an important interest in prosecution, was satisfied because Jared was charged with a serious crime—assault of a law enforcement officer. However, Childs’ inquiry should not have stopped there, Geenen wrote. The trial judge was obligated, but failed, to consider whether any “special circumstances lessen the State’s interest in prosecution.” Both the potential for future civil commitment and length and duration of Jared’s pretrial detention should have mitigated and ultimately undermined the state’s interest in prosecution, Geenen wrote. She said “the facts highlighted in the complaint, considered in the context of Jared’s mental health diagnoses and the fact that he was seen at Aurora Health Center for ‘homicidal thoughts’ on the date of the alleged offense, generally support an NGI [not guilty by reason of insanity] defense and suggest that the alleged offense resulted from a mental health crisis that is currently being addressed through civil commitment proceedings.” “In this case there are distinct, non-speculative possibilities for Jared’s future commitment” that lessen the state’s interest in bringing Jared to trial, wrote Geenen. “Jared’s pretrial detention is also a relevant special circumstance,” Geenen wrote. Jared was not considered for bail but should have been, she said. The state argued that defendants become “ineligible for bail the moment competency is raised.” The court of appeals disagreed, finding that “the plain language of the statues makes clear that it is only after the circuit court orders the defendant committed for treatment and suspends the proceedings that a defendant loses his or her eligibility for bail.” Jared was detained almost two months without due process protections regarding bail, wrote Geenen, noting that “this statutory violation is significant, and it lessens the importance of the State’s interest in prosecution.” The appeals court also considered the timing of Jared’s relocation from jail to Mendota for restoration of competency. Jared was ordered to commitment in October 2022 but not transferred for treatment until more than three months later. “This, in our view, is a significant period of time that is incongruous with constitutional demands," Geenen wrote. Finally, regarding Jared’s medical plan the court expressed “serious doubts as to the adequacy of the explanations given to Jared of the advantages, disadvantages, and alternative to the medications proposed in the plan.” Geenen highlighted a lack of evidence that Illichmann ever told Jared about maximum dosages, the interaction of the drugs with his diabetes and seizure medication, or the cumulative effect of any combination of drugs. As a result, the trial court’s findings as to the sufficiency, warning, appropriateness, and necessity of forced medication were “clearly erroneous," Geenen said. “Because the circuit court determines whether the plan is sufficiently individualized and medically appropriate, the court must be provided a ‘complete and reliable medically informed record’ from which to make those findings,” and “because the record in this case is wanting in many critical respects” Jared’s proposed treatment plan was not adequately individualized, the appeals court held. A state appellate procedure rule that should alleviate some of the circumstances Jared faced took effect recently. The rule adopted by the Wisconsin Supreme Court and effective July 1, 2024, governs prejudgment orders in criminal defendant competency cases, which include treatment to restoration and involuntary medication. Key provisions of the new rule include expedited time for parties to request transcripts and file briefs and for the court of appeals to render a decision, short but automatic stays of involuntary medication orders, expedited procedures for defendants to move the court of appeals for a continued stay, and anonymity in court filings. More about the new rule can be found here. By Alexandria Staubach
In honor of National Voter Registration Day and Constitution Day, WJI is highlighting two new complaints filed by Law Forward. WJI believes that fair and equitable access to the ballot box is a fundamental right of every citizen of Wisconsin. If you still need to register to vote we encourage you to do so here. The Law Forward impact litigation law firm has filed two complaints with the Wisconsin Election Commission (WEC) alleging that the Town of Thornapple and its town clerk violated state and federal law when conducting the April and August elections. The complaints seek orders forcompliance with the law for future elections. Both complaints request expedited review in time for November’s election. State and federal law require access to voting systems that permit those with disabilities to cast their ballots independently and securely. The new complaints to the Wisconsin Election Commission say Thornapple, in Rusk County, is breaking these laws after abandoning electronic voting. According to the complaints, the April election was conducted in Thornapple by paper ballot and then hand counted, with no alternative or accommodation for the visually impaired or those who otherwise cannot privately and independently vote on paper. After the April election, a July 8, 2024 letter from the U.S Department of Justice warned that Rusk County needed “at least one direct recording electronic voting system or other voting system equipped for individuals with disabilities available at each polling place.” Nevertheless, Thornapple's August election took place on paper as well. Wisconsin law provides for compliance reviews for any elector of a jurisdiction or district served by an election official who seeks to contest perceived abuses of election administration. One complaint requests a compliance review on behalf of Erin Webster, a Thornapple voter, who ran for Rusk County Board of Supervisors in the spring election and was provided a paper ballot on which her name did not appear, according to the complaint. Webster cast her ballot electronically in every prior election since 2009, and the town had otherwise used electronic voting machines. Under Wisconsin law, municipalities may elect to administer elections by paper ballot if they have populations below 7,500. Webster’s complaint alleges that the same law that permits paper ballots for municipalities under 7,500 people also prohibits reversion back to hand counting of paper ballots without the WEC’s permission, which Thornapple did not receive. The second compliance review complaint was brought on behalf of Disability Rights Wisconsin. The complaint alleges that federal and state law require a municipality to make voting accessible to voters with disabilities. Further, the complaint alleges, federal law requires any voting system to have a means to notify voters if they have selected more than one candidate for a single office, plus the opportunity to redress the error. “By ceasing to use electronic voting equipment and instead exclusively using paper ballots completed and tabulated by hand, Respondents are no longer using voting systems that are accessible for individuals with disabilities in a manner that provides the same opportunity for access and participation (including privacy and independence) as for others,” the Disability Rights Wisconsin complaint asserts. It mentions visually impaired voters and those who may struggle to fill out a ballot by hand being disenfranchised by the paper system. The Ladysmith News, a local paper in Ladysmith, Wisconsin, this summer covered the Rusk County Board’s decision to count ballots by hand. The article described a July presentation given by Mark Cook of Hand Count Road Show, supposedly a one man “subject matter expert on election vulnerabilities who had traveled the county in his camper trailer, educating folks about election systems and how they can go wrong.” According to the reporter, “a number of local governmental officials were in the audience and saw how Cook showed exactly how voting machines can be easily manipulated.” The Webster complaint is available here. The Disability Rights Complaint is available here. By Alexandria Staubach An old convent is getting new life as a “House of Studies” for men who were formerly incarcerated and are now working to obtain their college degrees. Thrive for Life has arrived in Milwaukee, hoping to achieve the same success they’ve experienced with two similar homes in New York City. The first of its kind, according to Thrive for Life, Ignacio House opened in New York City in 2019 with a novel concept: a transitional supportive learning community, exclusively for the formerly incarcerated. A dorm, with a mission. Founded by Father Zachariah Presutti, a Jesuit priest and former chaplain at Rikers Island, Ignacio House currently serves 15 formerly incarcerated men who have scholarships to one of eight partnering universities, which include Columbia and NYU. The second house of studies, Abraham House, began in 1993 as an alternative-to-incarceration program under a different provider and since 2023 has been merging into Thrive. As at Ignacio House, residents receive comprehensive continuity of care, including therapeutic and wellness resources, personal and spiritual mentorship, and individualized learning plans, while adhering to stricter house rules. According to Thrive’s website, the two houses have served more than 3,000 formerly or currently incarcerated individuals, and 100% of their resident scholars have avoided recidivism and are on track to complete a trade school program or university degree. WJI recently visited Thrive’s Milwaukee House of Studies and spoke with Christa Pipitone, soon to be the senior regional coordinator for the Milwaukee Thrive for Life program. Located in Halyard Park, the house can accommodate a house manager and up to 11 scholars, whose stays will typically range from six months to two years. To get a room, individuals who were formerly incarcerated will need to apply and be accepted. Once they’re in, Thrive for Life provides a community of people committed to its men’s success, said Pipitone. “We are continuity of care,” said Pipitone.
Like the houses in New York, in addition to providing a roof over residents’ heads, the program will help residents with every aspect of making themselves “whole” and “healed,” Pipitone said. From health services to employment, the team at Thrive is “invested in the whole person, in demonstrating to these men that people care,” Pipitone said. “We’re likely giving many of these of guys a first chance,” she said. “We want to be that for them.” Thrive’s program is faith-based but nondenominational. “It’s important to us that the scholars have some higher power,” said Pipitone, but applicants need not be Catholic or even Christian. She highlighted that the houses in New York have welcomed both Muslin and Jewish scholars and that there are no rules around faith if applicants are grounded in a “higher power.” Community service in the Halyard Park neighborhood will also be part of the experience. Scholars will be expected to engage in service projects that serve the community they’re in. Abraham House in New York, runs a local food pantry, for example. The scholars will also be expected to participate in creating community among themselves. A sit-down Sunday dinner will be expected, a Catholic mass will be held in the house’s chapel (though attendance is not mandatory), and household chores will be allocated. It is communal living with purpose, said Pipitone. Residents will be expected to maintain employment. They will sign a “covenant agreement,” the terms of which include affordable rent, charged on a sliding scale based on take home pay. Like other aspects of the program, rent is not about the money. It’s about “giving the men a track record,” a rental history they can take with them to a new landlord, Pipitone said. Pipitone hopes it won’t feel like “all work and no play.” While alcohol and drugs are off limits, “the scholars will set the tone.” She hopes it will be a place where the men want to be—where they will enjoy Bucks and Packers games and study or play games in the common areas, investing in themselves and their shared experiences as students. Pipitone told WJI that Thrive hopes to strike a balance between structure and independence. The Milwaukee House is nearly complete. Pipitone anticipates it will host its first cohort beginning in October. She is actively searching for a house manager, who will hopefully live on site and help usher in the first class, and a social worker. Thrive has a strong preference for formerly incarcerated individuals to fill these roles. She encourages those interested to reach out to her directly at [email protected].
By Alexandria Staubach
Now banned in California courtrooms and potentially on its way out in Colorado, Hawaii, Minnesota, and New York, excited delirium syndrome would seem to be questionable and out of vogue, but in at least one Wisconsin courtroom recently, police showed continued reliance on it to defend their actions. Excited delirium syndrome has been described as a mental state of agitation, combativeness, aggression, and apparent immunity to pain. The term or syndrome has been used for decades to justify violence against criminal suspects, who often end up brutalized by law enforcement, but it has largely been discredited in the medical community. At an August excessive-use-of-force trial in the Eastern District of Wisconsin federal court before Judge Pamela Pepper, counsel for five Green Bay police officers raised excited delirium as part of their defense. Attorney Jasmyne Baynard told the jury that plaintiff Terrell Wendricks displayed “superhuman strength” when the officers attempted to detain him inside an apartment in August 2018. Defendant Aaron Walker redoubled Baynard’s claim in his trial testimony when he described anomalous behavior by Wendricks. Walker said Wendricks seemed to “gather strength” as officers deployed tasers, pepper spray, batons, and the “c-lock” restraint technique. Wendricks displayed “excited delirium,” said Walker, who offered no medical credentials and relied on his training and experience to bolster the theory. Although a 2009 position paper by the American College of Emergency Physicians (ACEP) concluded that excited delirium was a “real syndrome,” the paper was withdrawn in October 2023. The ACEP reversed its earlier conclusion, saying “The term excited delirium should not be used among the wider medical and public health community, law enforcement organizations, and ACEP members acting as expert witnesses testifying in relevant civil or criminal litigation.” In January, California became the first state to ban the use of excited delirium. The legislation was supported by the California Medical Association, which said the controversial diagnosis received “fresh scrutiny” in the wake of George Floyd’s 2020 death, and followed the American Medical Association’s 2021 decision to oppose the use of excited delirium as a medical diagnosis. Colorado followed, passing a law in August that proscribes training law enforcement office in use of the term, other than to educate about its history. The new law also prohibits law enforcement from using the term in any incident report and bans a coroner from using excited delirium as a cause of death on a death certificate. The Colorado bill took effect on Aug. 7. Minnesota introduced a bill in February (HF 4118) that specifically prohibits use of excited delirium as a defense for officers' use of force and prohibits law enforcement agencies from training officers on the detection or use of excited delirium. It further prohibits law enforcement officers from receiving credit for any continuing education course that includes training on the detection of excited delirium or use of the term. The bill is still pending in the Minnesota Legislature. Asked for Milwaukee County's position on the questionable syndrome, Dr. Wieslawa Tlomak, chief medical examiner, directed WJI to the National Association of Medical Examiners (NAME), which accredits her office. NAME’s public position on excited delirium is that “although the terms ‘Excited Delirium’ or ‘Excited Delirium Syndrome’ have been used by forensic pathologists as a cause of death in the past, these terms are not endorsed by NAME or recognized in renewed classifications . . . . Instead, NAME endorses that the underlying cause, natural or unnatural (to include trauma), for the delirious state be determined (if possible) and used for death certification.” The use of excited delirium to justify use of force isn’t problematic just in a civil suit. The implications on the street are worse. A 2024 investigative report by the Associated Press in collaboration with the Howard Center for Investigative Journalism and FRONTLINE found that at least 94 people died between 2012 and 2021 as a result of being given sedatives and restrained by police—practices allegedly justified by excited delirium syndrome, according to the AP’s findings. The situation is further exacerbated by excited delirium’s biased application to Black and brown people. In a May PBS Wisconsin interview, Dr. Julie Owen, a psychiatrist and Medical College of Wisconsin professor who has researched the subject, said, “usually, there’s a skewing of the use of this term with young men, young men of color, and young men of color who probably, at a later phase of examination, are found to be utilizing some sort of what we call sympathomimetic or a stimulant-like substance.” The AP investigation included a Black Eau Claire man, Demetrio Jackson, who died in police custody after being given a sedative as a form of restraint. Meanwhile, Wisconsin’s instances of police encounters that turn fatal are on the rise. "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Bridget J. Schoenborn Appointed to: Waukesha County Circuit Court Appointment date: May 24, 2024, to term ending July 31, 2025 Education: Law School – University of Wisconsin-Madison Undergraduate – California Polytechnic State University, San Luis Obispo, California High School – St. Lucy’s Priory High, Glendora, California Recent legal employment: May 2008-present – Assistant U.S. attorney, U.S. Department of Justice, Milwaukee, Wisconsin June 2005-May 2008 – Pro se law clerk, U.S. District Court for the Eastern District of Wisconsin, Milwaukee, Wisconsin Bar and administrative memberships: State Bar of Wisconsin U.S. District Court for the Eastern District of Wisconsin U.S. Court of Appeals for the Seventh Circuit General character of practice: Serves as a Criminal Division trial and appellate attorney representing the United States in all stages of the investigation and prosecution of federal offenses with an emphasis on complex narcotics offenses and related financial crimes. Responsible for the day-to-day prosecution of narcotics trafficking offenses, including drug conspiracies, illegal internet pharmacies, money laundering offenses, and violent crime. Pre-trial preparation of prosecution memoranda, search and seizure warrant affidavits, obtaining wiretap interception orders, criminal complaints, indictments, and plea agreements. Describe typical clients: Over the past 15 years, I have specialized in various practice areas, with particular emphasis on the following: drug conspiracies; illegal internet pharmacies; gang prosecutions; dogfighting offenses; firearms violations; money laundering and structuring offenses; and cryptocurrency seizures. Number of cases tried to verdict: 6 List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years: United States v. Sanchez Vargas, et al., Case No. 20-Cr-127 (E.D. Wis.)(Hon. Pamela Pepper): In this matter, I represented the United States in all stages of the proceedings. This prosecution was based on a DEA investigation that began after an individual in Oconomowoc, who was purchasing controlled substances from an illegal internet pharmacy, committed suicide. The controlled substances, including Tapentadol, Carisoprodol, and Tramadol, were sold online without a prescription and mailed to customers across the country. Two California-based co-conspirators involved in shipping the controlled substances were convicted. This case was significant because it stopped the illegal distribution of pharmaceuticals through the website. Dates of involvement were: 2020 to 2023. Defense counsel: Gabriela Leija, Martin Pruhs, and Paul Basseliz. United States v. Gerardo Lara, et al., Case No. 21-Cr-204 (E.D. Wis.)(Hon. Lynn Adelman): In this matter, I am co-counsel in the prosecution of fourteen defendants charged with firearms violations, structuring offenses, and conspiracy to distribute crack and powder cocaine in Wisconsin and Illinois. To date, ten defendants have been convicted and sentenced. This case was significant because the conspiracy had connection to kilogram level cocaine distributors and many of the convicted defendants were career offenders who had significant criminal records. Dates of involvement are: 2021-present. Defense counsel: Michelle Jacobs, Edward Hunt, Eric Hart, Matt Ricci, Jeffrey Purnell, Kathleen Quinn, Christopher Cherella, Michael Hart, Martin Pruhs, Craig Johnson, and Angela Kachelski. United States v. Approximately 32,133.63 Tether (USDT) Cryptocurrency from Binance Account Number Ending 8770, Case No. 22-Cv-989 (E.D. Wis.)(Hon. Pamela Pepper): In this matter, the government pursued forfeiture of Tether cryptocurrency on grounds that it constituted wire fraud proceeds and was involved in money laundering. Specifically, between May 26 and May 28, 2022, A.D. provided $30,200 in U.S. currency in gift cards and Bitcoin to an individual falsely claiming that there was a warrant for victim A.D.'s arrest. The fraudster eventually converted A.D.'s money into Tether cryptocurrency, which was stored at Binance. The government tendered a seizure warrant to Binance and commenced judicial forfeiture of 32,133.63 Tether. After serving the Binance account holder via email and certified mail at his residence in India, and receiving no claim to the property, the government obtained default judgment and forfeited the asset. This case was significant because asset forfeiture enabled the return of fraud proceeds to victim A.D. Dates of involvement were 2022-2023. Experience in adversary proceedings before administrative bodies: I have not practiced before an administrative agency. However, as part of my criminal case responsibilities, I have prosecuted defendants whose terms of probation and extended supervision were revoked by an Administrative Law Judge. In connection with my civil practice, and as part of the forfeiture referral process, I am familiar with administrative law issues arising in matters handled by federal law enforcement agencies. Describe your non-litigation experience (e.g., arbitration, mediation). In the criminal context, my non-litigation experience consists primarily in reviewing, drafting, and obtaining search and seizure warrants. I have prepared hundreds of search warrants for physical locations (residences, storage units, safety deposit boxes), electronic search warrants (email and social media accounts), and Title III wiretap intercepts. In the civil context, my non-litigation experience consists of preparing seizure warrants and conducting depositions. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Not applicable Previous runs for public office: Not applicable All judicial or non-partisan candidates endorsed in the last ten years: Not applicable Professional or civic and charitable organizations: Elm Grove Police and Fire Commission, member, June 2022-present Elm Grove Woman’s Club, member, January 2022-present State Bar of Wisconsin, Diversity Clerkship Program Selection Committee, participant, 2020, 2021, 2022 Eastern District of Wisconsin Bar Association, co-chair, Criminal Committee, 2012-2018 Significant pro bono legal work or volunteer service: From approximately 2006 to 2008, I was a member of the Eastern District of Wisconsin Bar Association Pro Bono Commitee. As a part of this committee, I reviewed policies and procedures for appointing pro bono attorneys to represent pro se parties in federal court. From approximately 2010 to 2014, I was a member of the Elm Grove Junior Guild. This organization has a strong emphasis on philanthropy, and for several years I was on the Memorial Day Parade Committee, which is responsible for organizing the annual parade in Elm Grove. Quotes: Why I want to be a judge: I want to serve as a Waukesha County Circuit Court Judge because I want to be the fair and impartial person who makes the thorough, well-informed, and challenging decisions needed to guide parties through litigation. I believe that this position is a natural progression from my current public service experience. I was a law clerk for nearly three years and have served as an Assistant United States Attorney for more than fifteen years. After seeing the judiciary from the inside, helping judges and drafting opinions, and then as a litigant, appearing before numerous district court and magistrate judges to argue on behalf of the United States, I believe that serving on the judiciary is where I need to go next to serve the people of Wisconsin. My qualifications for the position of being a circuit court judge have evolved. First, as a law clerk, I was in awe of the judges I worked with and for. My clerkship helped me appreciate the many-faceted role of a judge: to engage in thoughtful decision making, to learn about new areas of the law, to consider their judicial demeanor and appreciate that they are the public face of the court system, and, most importantly for me as a young lawyer, to be conscientious. As an example, I recall Magistrate Judge Patricia J. Gorence advising me to read pro se submissions carefully, because one meritorious argument could be nestled amongst dozens of others, nearly all of which were handwritten. Then, as a prosecutor, I sought to persuade judges to accept my reasoning and recommendations. Representing the United States, I am tasked with the ultimate goal of seeking justice. Justice, I learned, does not in every case call for a severe sentence or villainizing a perpetrator. Among many things, it means treating everyone, including defendants, with fairness and respect. As an example, I recall a case in which Judge Rudolph T. Randa sentenced the defendant, who had been incarcerated much of his life, to a significant term of prison based on his possession of a firearm and fentanyl. After imposing sentence, Judge Randa wished the defendant well and ask him to visit the judge's chambers upon his release from prison. I seek to be a circuit court judge because I have learned so much, both about what works and what does not, and I want to emulate the great judges I had the privilege of working with. I aspire to the conscientiousness of Magistrate Judge Gorence, the emotional awareness of Judge Randa, the preparedness of Judge William C. Griesbach, and the intellectual rigor of Judge Lynn Adelman. With this experience in mind, I believe that I am ready to serve as a Waukesha County Circuit Court Judge. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. In Doubek v. Kaul, 2022WI931, the Wisconsin Supreme Court held that the Wisconsin disorderly conduct statute, Wis. Stat. § 947.01(1), is not a disqualifying predicate offense for purposes of carrying a concealed weapon. Doubek is important because, as the law currently stands, individuals may legally possess firearms even after having been convicted of domestic violence-related disorderly conduct, thereby exposing the public to an unacceptable risk of gun violence. Thankfully, Doubek’s dissent and the Attorney General’s proposed legislation demonstrate a desire to fix this legal loophole and reduce the risk of danger to the community. Daniel Doubek was convicted of disorderly conduct after breaking into his estranged wife’s trailer by smashing a window in the door, brandishing a 2 x 4 as a weapon, and loudly threatening her, telling her she “was dead.” When she yelled to the neighbors for help, he threatened to, “let her have it.” During this time, the couple’s four year old daughter slept nearby. Years later, Doubek successfully sought and obtained a concealed weapon license. However, in connection with a 2019 audit, the Wisconsin Department of Justice determined that he failed to meet one of the licensing requirements, namely he was “prohibited from possessing a firearm under federal or state law.” The federal law at issue, 18 U.S.C. § 922(g)(9), makes it illegal for an individual convicted of a misdemeanor crime of domestic violence to possess a firearm. Based on Doubek’s disorderly conduct conviction, the Department of Justice believed he was precluded from possessing a firearm and revoked his license. Doubek successfully argued before the Supreme Court that the disorderly conduct statute, section 947.01(1), is not a “misdemeanor crime of domestic violence” because it did not have “as an element, the use or attempted use of physical force, or the threatened use of deadly weapon.” Accordingly, he was not a prohibited person under federal law and was entitled to a concealed weapon license. The Court agreed with Doubek and the case was reversed and remanded. Although correctly decided, Doubek highlights a glaring omission in the Wisconsin Statutes. As Justice Jill Karofsky explained in concurrence, “although Doubek is legally correct, this result is as nonsensical as it is dangerous. In the realm of domestic violence, threats to kill, like the one Doubek made to his wife, more than double the risk of femicide.” And when a domestic abuse perpetrator, who has engaged in threats to kill or any other type of domestic violence, has access to a gun, the lethality risk for his victim increases significantly. Recognizing this deadly combination, Congress enacted a federal firearm ban on domestic violence misdemeanants, section 922(g)(9), limiting domestic abusers’ access to guns. On November 13, 2023, Attorney General Josh Kaul announced legislation to reorganize the crime of disorderly conduct and the definition of domestic abuse so that individuals convicted of domestic violence- related disorderly conduct offenses will be prohibited from possessing firearms, seeking to have Wisconsin join the effort to prevent this unacceptable risk of violence. Two or three judges whom I admire and why: Patricia J. Gorence, Magistrate Judge In June 2005, Magistrate Judge Gorence hired me as a pro se law clerk. The pro se law clerks worked for all of the judges in the Eastern District of Wisconsin, conducting research and writing, preparing orders and opinions, and monitoring and moving civil dockets. At the time, I was a young mother and Magistrate Judge Gorence had grown children of her own. She was the first federal female magistrate in Milwaukee. As an advocate for women’s education and employment, and my direct supervisor, Magistrate Judge Gorence played a huge role in shaping me as a young lawyer. Beyond her personal guidance, I learned from watching Judge Gorence as she encouraged parties to reach agreements but was willing to make tough decisions when they could not. She crafted thorough and well-researched opinions, explaining her decisions in practical terms. Judge Gorence wanted the parties to feel heard, and often displayed compassion and empathy, but at the same time kept the proceedings moving at a steady pace. Finally, she treated everyone in her courtroom, from her staff and clerks, to attorneys and defendants, equally and with respect. Lynn Adelman, District Court Judge From 2005 to 2008, I worked with Judge Adelman as a pro se law clerk. It was immediately clear how much Judge Adelman loves being a judge and engaging with the law. Beyond his trial court responsibilities, he often sits by designation on the Court of Appeals for the Seventh Circuit and publishes articles about legal issues that are important to him. Working as a law clerk for Judge Adelman was not easy – his high standards demanded much of my research and writing skills – but I am a better lawyer as a result. Since joining the U.S. Attorney’s Office, I have appeared before Judge Adelman hundreds of times, and often in connection with my most significant cases. For example, during the summer of 2009, I prosecuted United States v. Bowie, Case No. 07-Cr-123 (E.D. Wis.), a week-long trial with numerous cooperating defendants as witnesses and dozens of wiretap intercepts as exhibits. At sentencing, Judge Adelman agreed that the defendant and his serious crimes posed a danger to the community and imposed a sentence of 253 months’ imprisonment. In the countless sentencing hearings I have had with him since, Judge Adelman and I do not always agree about the sentencing factors, offense enhancements, or guidelines ranges. However, regardless of the outcome, I immensely respect Judge Adelman for his intellectual honesty. I always feel heard and am confident that, although I may not get the outcome I seek, he is always prepared and thoughtful, using intellect and reason to support his findings. The proper role of a judge: Wisconsin Circuit Court Judges pledge to support the constitution of the United States and the constitution of the State of Wisconsin, and to faithfully and impartially discharge their duties. It is the proper role of a judge to follow the statutory text and apply binding precedent, regardless of their personal beliefs. A judge should instill confidence in, and promote respect for, the legal system. I believe that a judge can accomplish this in the following ways. First, a judge must be as prepared as possible. This means reading the parties’ submissions and being ready to respond in court and in writing. It also means remaining present and meaningfully considering the arguments, issues, and facts raised on the record in open court. Next, a judge’s impartiality is critical. A judge must be committed to making thorough and intellectually honest decisions, and keeping an open mind until all of the issues are fully presented. Next, a judge should treat all those who appear in a courtroom fairly and equally. It is important to make litigants feel seen and heard, even though they may not receive the exact outcome they seek. The judge serves all parties in the courtroom, as well as the public outside the courtroom. This means getting to the heart of an issue quickly, making decisions, and keeping a caseload moving. Finally, a judge must be able to make difficult decisions. Many times, the parties in a courtroom are at the lowest point in their lives. Their liberty, parental rights, business, and way of life may be at stake. During these especially trying times, the parties turn to the courts to make decisions for them. A judge must be able to make thorough, well-informed, and efficient decisions.  Shoenborn (left) at her investiture on Aug. 15, 2024. Photograph by Margo Kirchner. By Alexandria Staubach The Wisconsin Court of Appeals recently held that the right to counsel attaches during Milwaukee County’s written probable cause process, meaning a defendant has the right to counsel for any subsequent critical stages of prosecution.  White Chief Judge Maxine White wrote for the three-judge District 1 panel in State v. Robinson, joined by Judges Sara Geenen and Pedro Colón.
When a person is arrested without a warrant in Milwaukee County, judges and court commissioners routinely find probable cause, order detention, and set bail using an all-paper review process. The paper probable cause process, named a “CR-215” process for the form used by judges and court commissioners to make the finding, details the officer’s basis for arrest. Based on the officer’s narrative, a judge or court commissioner checks a box to indicate whether they believe probable cause for arrest exists. Percy Robinson was arrested on Dec. 19, 2017, for bank robbery. Within 48 hours, a Milwaukee County circuit court commissioner reviewed a CR-215, found probable cause that Robinson committed the offense, and set bail at $35,000. On Dec. 22, law enforcement conducted an in-person lineup. The lineup included Robinson, and the bank teller identified him as the person who committed the robbery. No attorney was present on Robinson’s behalf. The State then issued a criminal complaint against Robinson for robbery of a financial institution. Robinson was convicted following a jury trial. He appealed, arguing, among other things, that he received ineffective assistance of counsel because his trial attorney failed to challenge the lineup identification, which occurred without counsel present after his right to counsel had attached. The court of appeals agreed about the right to counsel, concluding that “Milwaukee County’s CR-215 process signals a ‘commitment to prosecute,’” and that the Sixth Amendment right to counsel attaches during that process, creating a right to counsel for any later "critical stages" of prosecution. “The initiation of judicial criminal proceedings is far from a mere formalism,” White wrote. “(T)he CR-215 process shifted Robinson from a person under investigation to the accused in the criminal justice system. Therefore, it is reasonable that the shift arising out of the CR-215 process attaches Sixth Amendment guarantees.” The state argued that Robinson’s right to counsel had not attached during the CR-215 process because Robinson was not physically present when the CR-215 form was evaluated and signed by the circuit court, and the process consequently lacked necessary formalities. The court rejected the argument. “The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote. “An ‘accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused liberty to facilitate the prosecution.’ By that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it,” White wrote. The court then found that an “identification lineup occurring after the probable cause determination and bail setting, such as the CR-215 process, is a critical stage of the prosecution,” with a right to counsel. While Robinson’s appeal ultimately failed on other grounds, the court, citing U.S. Supreme Court law, recognized that when a conviction “’may rest on a courtroom identification’ that was ‘the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.’” Counsel’s presence, not participation, “’is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself,’” wrote White, citing Wisconsin Supreme Court law. Going forward, an accused will have the right to counsel for any critical stage after a CR-215 finding. When and whether an accused’s right to counsel attached during the CR-215 process had been the subject of state and federal litigation since at least 2009. Federal courts in Wisconsin had held that a right to counsel attaches after the CR-215 process is complete, but no consistent answer had been developed by state courts. The Robinson court concluded that the law is now settled on the matter. |
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