The new "Marsy's Law" victims' rights amendment to the state constitution is driving up costs for Milwaukee County at the same time state funding for victim-witness services is declining, according to District Attorney John Chisholm.
"In effect it is an unfunded mandate on the county," Chisholm told the County Board's Finance Committee during a budget hearing.
WJI, three individual voters, and Sen. Fred Risser are suing to overturn the amendment, approved by voters in April. The plaintiffs argue that the ballot question failed to fully and fairly inform the public of the essential components amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject. A decision in the case is pending.
Chisholm, during the committee meeting, said the full impact of Marsy's Law is unclear. Marsy's Law allows alleged crime victims a variety of specific rights, including the right to be involved in every court proceeding.
"To be cautious, that means they've got they've got to be notified of every single hearing," he said in an interview. That includes purely procedural hearings that do not address the merits of the case.
The right to be heard is the only new right specifically granted to alleged victims, he said. Others included in the amendment were already in state law.
County Executive David Crowley has proposed spending $224,000 to hire three victim witness advocates and a secretarial assistant to handle the additional workload Marsy's Law is generating.
"The time commitment for our victim advocates and prosecutors has risen exponentially," Chisholm said.
Meanwhile, the state reimbursement rate for victim-witness services has been dropping for years. State statute provides for up to 90% reimbursement of qualified costs, but actual reimbursements peaked at 61% in 2010-2011, according to a 2019 Legislative Fiscal Bureau paper. It now is 42%, Chisholm said.
To qualify for reimbursement, counties must provide numerous services to victims and witnesses, including notification services, compensation and social service referrals, escort and transportation services if necessary, employer intercession services, and protection services.
Victim-witness reimbursements to counties are entirely funded from surcharges levied on people convicted of crimes. The money those surcharges generate is falling increasingly short of the reimbursable expenses counties around the state are incurring.
The logical step, Chisholm said in the interview, would be to "disassociate (reimbursements) from court fees."
The county also is facing an unexpected $511,00 cut in state-administered federal funding under the Victims of Crime Acts grant, according to Chisholm and budget documents. The county is expecting about $451,000 next year, according the proposed budget. Chisholm said his office was initially informed that there would be more funding available next year, but the state decided instead to direct additional funding to nonprofit groups.
Total revenue for the District Attorney's office is expected to drop by $867,401 next year. Crowley is proposing to close the gap by increasing tax levy support by $525,479 and cutting spending by $341,922. Most of that savings would come from cutting personnel spending, although the number of full-time positions would increase by two, to 164.
The overall budget would decrease from $12,608,664 this year to $12,266,742 under Crowley's proposal, a decline of 2.7%.
The U.S. Senate last month confirmed President Trump's nomination of Brett H. Ludwig as a judge for the U.S. District Court for the Eastern District of Wisconsin, based in Milwaukee. The information below is taken from Ludwig's own submission to the Senate Judiciary Committee. This profile is similar to those WJI compiles for state judges in our "Evers' judges" and "Walkers' judges" series.
Name: Brett H. Ludgwig
Appointed to: U.S. District Court Eastern District of Wisconsin
Confirmation date: Sept. 9, 2020. (Lifetime appointment)
Law School – University of Minnesota Law School
Undergraduate – University of Wisconsin – Stevens Point
Recent legal employment:
2017-present – U.S. bankruptcy judge for the Eastern District of Wisconsin
1994; 1995-2017 – Associate and partner for Foley & Larner law firm, Milwaukee
2016-2017 – Adjunct professor, Marquette University Law School
Bar and court admissions:
Wisconsin State Bar, admitted 1994
Minnesota State Bar, 1998; gave up membership when he became a bankruptcy judge in 2017
United States Court of Appeals for the Seventh Circuit, 2014
United States Court of Appeals for the Eighth Circuit, 1995
United States District Court for the Eastern District of Wisconsin, 1995
United States District Court for the Western District of Wisconsin, 2012
Professional, business, fraternal, scholarly, civic charitable or other organizations belonged to since law school graduation: None
Elsewhere Ludwig said he was on the board of the Mequon Thiensville Education Foundation from 2014-2017 and served as vice president in 2016-2017. He also served on the Board of the Fox Point Foundation from 2002-2006 and as Board president in 2006-2006.
Military service: None
Approximate number of cases provided over that have gone to verdict or judgment: As of February 1, 2020, I have presided over more than 11,900 bankruptcy cases and adversary proceedings.
10 most significant cases:
In re Mendiola – This case involved a debtor who was a serial bankruptcy filer. He had filed five previous cases in the preceding five years, all of which were dismissed after he failed to comply with his obligations imposed by the Bankruptcy Code. In this latest case, the Chapter 13 Trustee and the debtor's mortgage creditor, U.S. Bank N.A., requested extraordinary relief to prevent further abuses of the bankruptcy system. The trustee asked the court to dismiss the case and bar the debtor from refiling for 180 days. The bank requested in rem relief from the automatic stay...to avoid having the automatic stay go into effect with respect to the mortgage property if the debtor filed yet another case. After an evidentiary hearing, I granted both motions.
In re Poivey – This Chapter 7 case involved several disputes over the treatment in bankruptcy of a debtor-wife's inheritance of mineral rights under oil and gas leases in Texas. The case involved two evidentiary hearings concerning whether the inherited mineral rights were excluded from the debtor's bankruptcy estate...and whether royalty payments from those mineral rights could be exempted by the debtor-wife's husband. I resolved the first issue in favor of the trustee and the second in favor of the debtors. The case ended with a discharge.
In re Bailey-Pfeiffer – This was a Chapter 13 case involving a recently divorced woman with several children and more than $870,000 in unsecured student loan debts, which she
wanted to repay through a Chapter 13 repayment plan. Section 109(e) of the Bankruptcy Code provides that only an individual with noncontingent, liquidated, unsecured debts of less than $394,725 can be a debtor under Chapter 13. Based on the plain terms of the statute, I ordered that the debtor must either convert the case to a chapter for which she was eligible or the case would be dismissed.
In re. Timothy Brennan – In this Chapter 11 case, a business owner sought bankruptcy protection to prevent the forced foreclosure sale of his former metal fabricating facility. After several contested hearings, I resolved a dispute over the valuation of the building and the debtor was able to confirm a Chapter 11 plan providing for the orderly sale of the real estate. The plan was ultimately confirmed, the real estate sold for $3.2 million, the secured creditor repaid, and the case closed.
In re. Bagg – This was a Chapter 7 case in which a creditor, who had been a neighbor of the
debtors, filed an adversary proceeding against them, seeking to have a debt arising from a state court tortious interference with contract judgment declared nondischargeable.... After a trial, I concluded that the creditor had not proved that the debt arose from a willful and malicious injury and thus ruled the debt was dischargeable.
By Gretchen Schuldt
The state could save about $4.1 million in public defender costs over two years by changing the way some criminal cases and non-criminal community supervision revocations are handled, according to budget documents.
The proposed changes also would free up law enforcement and judicial resources to concentrate on more serious cases, according the proposal submitted by the State Public Defender's Office.
The agency's overall two-year budget request is $233.6 million, up $14.8 million, or 6.8%, from its previous budget of $218.8 million, according to budget documents.
Indigent defendants in criminal cases qualify for SPD representation, but are not entitled to that representation in non-criminal cases, such as forfeiture cases. Those cases often are handled in local municipal courts.
Allowing more cannabis possession cases to be handled as local forfeiture violations instead of criminal offenses could save about $595,000 per year, the agency estimated. Currently, state law allows possession of marijuana to be handled as a local ordinance violation. Second-offense possession of marijuana can be charged as a felony in Wisconsin.
The Public Defender's Office is recommending the state allow first and second offenses of simple possession to be pursued as forfeiture violations and that third offense possession be considered a misdemeanor. The office has made similar recommendations in the past.
"In FY20, the SPD represented clients in 6,304 related to possession of drugs," the Public Defender's Office wrote in a budget document. The savings would be realized if a third of those cases were converted to forfeiture violations.
The state would save even more by offering an alternative to prosecution in first-offense misdemeanor disorderly conduct cases, SPD said in its budget document.
"Before issuing a criminal charge under this misdemeanor statute, the district attorney
would be required to offer the alleged first offender the opportunity to either 1) complete
a diversion program by satisfying all conditions of the program, including restitution
when applicable; or 2) pay a forfeiture under a stipulated finding of guilt of a noncriminal
ordinance violation," SPD wrote.
Diverting first-offense disorderly conduct cases could save more than $1 million per year; allowing more cannabis cases to be handled as ordinance offenses could save the about $600,000 per year.
The offers would be made to people who had not been convicted of a previous felony or of a similar offense in the previous three years.
Most defendants who receive the alternative-to-prosecution offer would take it, SPD predicted.
Most of the proposed eligible cases now, as misdemeanors, "do not result in jail time; they
are ultimately dismissed (on the prosecutor’s motion or following an acquittal at trial),
reduced to a conforming ordinance, or addressed with one or more alternatives to
incarceration," SPD wrote.
About half the agency's 7,546 cases could have been diverted if the proposal were in effect during the last fiscal year, saving $1.1 million, the agency said.
The agency also proposed:
By Gretchen Schuldt
The number of positive coronavirus cases among people incarcerated in state prisons jumped by 662 last week, the largest one-week increase since those cases began to surge in August.
There were a cumulative total of 2,274 coronavirus-positive tests in as of Friday, a 41% increase from the 1,612 cumulative cases reported just a week earlier.
Facilities reporting increases in COVID last week are below. The first column shows the total number of cases reported as of Oct. 2 and the second column shows the total cases reported as of Oct. 9. The final column shows the one-week change.
The figures show there is a growing outbreak at Oshkosh Correctional Institution and another potential outbreak at Columbia Correctional Institution. Outbreaks continued at Kettle Moraine and Dodge Correctional Institutions.
Prisons reporting increases in COVID cases during the week ending Oct. 9
Gov. Tony Evers has fallen conspicuously silent on the issue of coronavirus infections among incarcerated people and staff – 577 prison staff members have tested positive and has done little to reduce prison crowding, which makes the coronavirus more likely to spread. Adult prisons are about 19% over design capacity.
In July, WISDOM, a state social justice organization, called on Evers to take specific steps to reduce crowding.
By Gretchen Schuldt
A pandemic-inspired move to remote hearings in Milwaukee Municipal Court cases has spurred a significant increase in the number of people actually appearing, according to court officials.
"I think this is absolutely going to stay with us," Court Administrator Sheldyn Himle told the Common Council's Finance and Personnel Committee during a budget hearing last week. "We are absolutely hanging on to this."
"They're appearing from home, they're appearing from work, they're showing up," Himle said, referring to defendants.
The court introduced remote hearings by Zoom when the COVID-19 pandemic forced judges to first to shut down their courtrooms, then to strictly limit in-person appearances.
The change has been dramatic, Municipal Court Presiding Judge Derek Mosley said. There has even been a Zoom court appearance from Saudi Arabia, he said.
Before Zoom hearings began, defendants in about 75 of every 100 cases were no-shows and 25 appeared. Since then, it is the opposite, he said. About 25 of every 100 are no-shows, and the rest appear in court.
As far as improving attendance, he said, "This has probably been the greatest thing this court has done since I've been on the bench, and I'm going on 19 years."
The hearings are not streamed for the public and juveniles still must attend their court hearings in person. Mosley said the court cannot guarantee on Zoom the confidentiality the law requires for juvenile hearings.
The proposed Municipal Court budget also eliminates the $50,000 the city has given to Milwaukee Public Schools to support its successful driver's education program. City Budget Manager Dennis Yaccarino said the district could use $50,000 from the money it will realize through its successful referendum. The referendum allows a $57 million increase in the MPS revenue limit for 2020-21.
Yaccarino also said the city would examine the possibility of eliminating one of the three Municipal Court branches in 2023. The number of Municipal Court cases has dropped for several years, and the city will have about 280 fewer police officers to enforce ordinances, said Committee Chairman Ald. Michael Murphy.
The city does not want to eliminate a branch during an incumbent's term, Yaccarino said. Municipal Court Judge Valarie Hill is up for re-election in 2021, but city officials did not act soon enough under state law to cut that branch in the current budget process, Yaccarino said. The next municipal judge elections are in 2023, when both Mosley and Phillip Chavez are on the ballot.
The total proposed Municipal Court budget is $3 million, up slightly from this year's $2.9 million budget.
About 40% of people incarcerated at the Kettle Moraine Correctional Institution had active coronavirus cases as of Monday, according to Department of Corrections figures.
There were 437 active cases in the prisons' inmate population of 1,104 as of Friday.
The Oshkosh Correctional Institution reports another major outbreak with 341 active cases, according to the figures. The prison population was 1,964 on Friday, so about 17% of the inmate population had active coronavirus cases.
Overall, there have been 1,612 positive coronavirus tests in state prisons since the beginning of the pandemic. Those figures include 560 positive tests at Kettle Moraine and 360 at Oshkosh, the two highest numbers in the prison system. Some people who were ill have recovered. Some are no longer in prison.
Both Kettle Moraine and Oshkosh are medium security and both are significantly overcrowded.
"There are so many infected they have no clue what to do," an Oshkosh inmate wrote.
Gov. Tony Evers has significant power to reduce prison crowding, but has not used it.
"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. WJI also will continue to profile former Gov. Scott Walker's appointees who are still in office
Name: Larisa V. Benitez-Morgan
Appointed to: Kenosha County Circuit Court
Appointment date: Feb. 12, 2020 (She is up for election in April 2021)
Law School – University of Illinois-Chicago John Marshall Law School
Undergraduate – College of William & Mary, Williamsburg, VA
High School – Frank W. Cox High School, Virginia Beach, VA
Recent legal employment:
2008-present – Assistant state public defender, Kenosha County
Bar and Administrative Memberships:
Wisconsin State Bar Association
Illinois Bar (former member)
General character of practice before becoming a judge: Handled a wide variety of cases, including criminal, delinquency, and civil matters. Criminal cases ranged from misdemeanors to homicides; also represented clients in revocation of community supervision proceedings. Juvenile cases ranged from minor to serious offenses. Also represented clients in civil cases such as termination of parental rights, child in need of protection or services (CHIPS), juvenile in need of protection or services, mental health matters, and protective placement (Ch. 55) matters.
Earlier private practice included contract disputes, divorce, child custody placement, real estate transactions, and copyright and trademark matters.
Describe typical clients: Those who have been accused of a crime as an adult or juvenile, or are subject to mental commitment or protective placement, or are parents in a terminiation-of-parental rights proceeding.
Number of cases tried to verdict or judgment: Five jury trials, 51 court trials.
Describe 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 criminal defense attorney, my role is not only to advocate for my client, but to ensure that the laws of the U.S. and Wisconsin as well as the Constitutional protections afforded all have been followed. In 2015, it was becoming increasingly difficult to zealously advocate for my clients within time limits in CH. 51 matters. Extension hearings were set on the court calendar for one contested hearing with very little time for discovery, let alone the retaining of an expert, and an independent medical examination. The time alloted for this hearing was hardly sufficient to allow for testimony from expert and lay witnesses. Often these hearings would extend well beyond the court's alloted time on their calendar resulting in considerable backup for that court. I filed numerous motions before the court regarding lack of compliance from corporation council (sic) in regards to discovery, and the inability to conduct independent
evaluations prior to the hearing. The court ultimately ruled in my favor, and in working together (the court, corporation council (sic), defense council (sic) we were able to change the process of how we handle extension hearings for mental commitments....
I was also instrumental with one of our juvenile judges in setting up the juvenile court team. This team is represented by the stakeholders in the area of juvenile law...and meets monthly to try and resolve any issues we are seeing in how our juvenile court is operating. This group has been highly effective in that it allows everyone to see the constraints each stake holder is operating with and to develop resolutions to address concerns. As an extension of this juvenile group I was asked to participate in the Casey Foundation Judicial project. It is through the work with the Casey Foundation and our child court improvement team, that we were able to reduce the number of children placed out of home and increase the number of children that were able to be safely returned to home. Much of the success we have had in the area of CHIPS cases has been a direct result of helping the parent through the CHIPS proceedings and in meeting their conditions of return. Kenosha is one of the jurisdictions for the Pilot CHIPS program. It is the expectation that if parents have representation throughout a CHIPS action we can reduce the length of time children are placed out of home and thus, the number of children subject to a TPR proceeding.
Lastly, I am currently co-council (sic) for a young lady (Chrystul Kizer) who stands accused of a first-degree intentional homicide (of Randall Volar III), arson, OMVOC (operating a motor vehicle without the owner's consent), possession of a firearm by a felon and felony bail jumping. Despite the statue being law since 2007, the affirmative defense in this case is one of first impression in Wisconsin. (The brief asserted that the crime resulted from the defendant being trafficked for sex by the man she killed.) It is our position that our client should be entitled to use this defense. Thus far, the statutory meaning of the statute and proposed jury instructions have been submitted to the court as well as reply briefs. The issue has been argued before the court and the court's oral ruling is expected on December 9, 2019. I have selected both of these briefs as well as the proposed jury instructions as my two writing samples.
(Kenosha County Circuit Judge David Wilk limited Kizer's ability to use the defense and said it could not be used for the homicide charge. The matter is under appeal.)
Experience in adversary proceedings before administrative bodies: Handled 68 administrative proceedings related to revocation proceedings. NA
Previous runs for political office: Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: N/A
Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: NA
All judicial or non-partisan candidates endorsed in the last six years: N/A
Professional or civic and charitable organizations:
GALLA, vice president, 2003-2005
Chicago Bar Association, 2006-2014
Illinois State Bar Association, 2006-2014
Illinois Real Estate Association, 2006-2014
American Bar Association, 2006-2014
Wisconsin State Bar Association, 2006-present
Elected or appointed public offices: N/A
Significant pro bono legal work or volunteer service: Not allowed to take clients outside of job. Speaks at local schools for career day and parent occupation day. Volunteered for several work-related groups and committees.
Involvement in business interests: N/A
Other: Fluent in Spanish; filed for bankruptcy in 2008 due to medical debt.
Why I want to be a judge – I believe our laws exist to serve everyone, and that the legal profession and bench should be more reflective of the community in which they serve. While there are an increasing number of females and people of color who are becoming attorneys; myself, many of my peers, as well as members of the community would like to see a more diverse bench. A bench which is reflective of the diversity of Kenosha's population: Whites, Hispanics, African American, Bi-Racial, and LGBTQ individuals.
My love for the law and what it represents for all citizens also fuels my desire to be a judge. It is this love and respect for the law that keeps me wanting to learn more and strive for improvement. It is this passion for the justice system that allows me to see issues from a variety of perspectives, analyze and apply to the law to the facts of a given case. It is what drives me daily to give each of my clients the best legal representation I can. Becoming a judge will provide me with the opportunity to continue to serve my community, promote justice and to protect the law....
I believe the citizens of Kenosha are best served by a judge who possesses a thorough understanding of not just the courtroom and the law, but the day to day life of workers, mothers, educators, and all citizens. I possess the legal experience, educational background, work experience, and life experience, to be a capable, tenacious, well rounded and empathetic judge. This is my calling; a vocation for which I am as passionate as I will be dedicated.
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