By Margo Kirchner Advocates converged on the Capitol in Madison on Thursday to lobby for an end to life-without-parole sentences for juveniles and a parole opportunity for all juvenile offenders currently sentenced to life or extreme terms of years. Organized by the Wisconsin Alliance for Youth Justice (WAYJ), the lobby day consisted of a panel discussion in the morning and meetings with legislators and legislative staff members during the afternoon. Contemplated legislation would allow someone sentenced to life or a life-equivalent term of years at age 17 or younger to petition for parole after 15 to 20 years, depending on the crime of conviction. The proposed legislation would not release anyone automatically. It would create an opportunity for parole consideration. The petition would go back to the sentencing court for consideration rather than to the parole commission. Supporters discussed the need to provide hope for incarcerated juvenile lifers and motivation for them to make necessary changes in their lives and behavior during custody. Preston Shipp, senior policy counsel at the Campaign for the Fair Sentencing of Youth (CFSY), moderated the panel addressing why Wisconsin should end life-without-parole sentences for juveniles. Shipp noted that 28 states plus the District of Columbia have abolished life-without-parole sentences for youth. Illinois, Minnesota, and New Mexico passed their bans just this year; Texas did so 10 years ago. Shipp noted that the recidivism rate for juvenile lifers released on parole is just 1%. Wisconsin Justice Initiative board member Roy Rogers was one of five panelists. Rogers was sentenced to life and entered adult prison at age 16. Based on eligibility set by his sentencing judge, Rogers became eligible for parole after 26 years. He was granted parole in 2021, after about 28 years in custody. Rogers discussed how his life turned around soon after he entered prison when he joined the “Reach Out” program at Columbia Correctional Institution. He says that the Reach Out redemption group and Jesus Christ saved him. Through the group he began advising other youth on how to avoid the mistakes he made and how to avoid prison. Today, Rogers is a data solutions processor for a marketing experience company as well as a pre-entry and re-entry liaison for The Community, a nonprofit helping to prepare and assist those released from prison in adjusting to life outside. He is also a church musician. He continues to counsel and mentor at-risk youth. Craig Sussek, another panelist, discussed his entry into the Wisconsin prison system as a teenager and his view of himself then as a worthless person with nothing to lose. That outlook led to prison behavior issues. Sussek’s turnaround began when the woman he shot visited the prison to meet him. She told him that he had been a kid who made a bad decision and that she forgave him. She said she believed his life had value that he was worthy. Sussek was released on parole a few years ago. He obtained a job quickly after his release and recently married. He noted how he is on his “third life”: life before prison, life in prison, and life now. Panelist Mary Rezin, whose mother and brother were murdered by two teens in 1999, discussed her advocacy on behalf of the younger teen, who was 16 at the time of the crime. Rezin initially viewed him as a “monster,” but after 16 years of mourning, anger, and depression she contacted a restorative justice program at the University of Wisconsin Law School to see if she could meet with him. The program prepared the two separately for about a year and then facilitated a meeting. Rezin found that he was a changed person, far from the person she remembered or imagined. He had been on drugs and alcohol at the time of the crime and was misled by an 18-year-old as to where they were going and what would happen there. Rezin now advocates for his release. She said she now views him as someone who made bad mistakes as a teenager, as many people do. She believes he has been rehabilitated and that 24 years is enough punishment. Ellie Reid, whose father was murdered by her then-16-year-old brother, discussed the complicated existence of being a victim of a heinous crime as well as a family member of the juvenile lifer who committed it. She discussed how the question needs to be “who has this person become?” Her brother, still in prison, became a welder and trains therapy dogs. Donnell Drinks, leadership development and engagement coordinator for CFSY, rounded out the panel. Drinks, from Pennsylvania, was sentenced to death, which was later reduced to life. He was 17 at the time and spent 27 years in prison before his release, following rehabilitation in prison. He discussed how juveniles in prison can mature into people who can help society, who come out with a purpose and who can help children today avoid bad decisions. Shipp opined that imposing life-without-parole sentences on children places all the blame on the children while taking blame off of society for failing those children. When Shipp asked Rogers and Sussek what they need from the community today, they noted the need for mental health understanding and emotional support. Rogers pointed to his desire for people to ask more than surface questions about his wellbeing. He is trying to do that for those who are getting out of prison. Sussek noted how he and others who have been released from prison “go through things we don’t tell you about.” Following the talk and a lunch break, organizers walked panelists and about 40 attendees through messaging, handouts, and tips for their lobbying efforts. Messaging and handouts included information regarding the end of life-without-parole sentences in other states and the nationwide movement toward treating convicted children differently than adults. Organizers also announced that over the lunch hour Sen. Jesse James (R-Altoona) and Rep. Todd Novak (R-Dodgeville) agreed to sponsor the proposed legislation. Panelists and attendees then spent two hours meeting with legislators and legislative staff in offices at the Capitol. Some system-impacted attendees, visiting the Capitol for the first time, marveled at the building and expressed how they never imagined they would be there. Executive director Margo Kirchner joined Rogers for the WAYJ lobby day on behalf of WJI. In a series of cases, the U.S. Supreme Court has accepted science regarding adolescent brain development and the differences between children and adults regarding impulse control and culpability. The court has pared down the use of life without parole for juveniles and discussed constitutional protections that limit sentencing a child a child to die in custody. For those under age 18, the supreme court has banned the death penalty, life-without-parole sentences for non-homicide crimes, and mandatory life-without-parole sentences. Photographs by Margo Kirchner and Roy Rogers
0 Comments
The SCOW docket: Giving the Legislature free rein on constitutional amendments, part 2 (the dissent)10/25/2023
As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size. Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about. Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've 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 and emphasis added by the opinion writer, all of which also are italicized. The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al. Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part by Justices Rebecca Frank Dallet and Jill J. Karofsky Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley Concurrence: Hagedorn (9 pages), joined in part by Dallet Dissent: Walsh Bradley (14 pages) ![]() The dissent Ballot question challenges have been few and far between in the history of our state. Such a challenge reached this court in State ex rel. Ekern v. Zimmerman (1925). There, the court established a test for our review of a ballot question challenge: "it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." Yet rather than respecting the precedent of a nearly century-old unanimous opinion, the majority charts a new course not requested by either party. Instead of applying the test established in Ekern, the majority conjures its own test, never before stated, much less applied. Specifically, the majority sets forth that "[a] ballot question could violate [the] constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment." In addition to being created by the majority from whole cloth, this new test is unnecessary for the simple reason that we already have a test from Ekern. The majority arrives at its newly discovered test by tossing precedent to the wind and engaging in an unconvincing search for the "original meaning" of the state constitution's command that the legislature "submit" a proposed amendment to the people. As Justice Dallet's concurrence aptly explains, the endeavor of divining the "original meaning" of a constitutional provision is largely a futile endeavor. But even setting this aside, the majority's analysis rests on an infirm foundation. It erroneously dismisses the Ekern test, and instead creates and applies a newly-minted test, resulting in an overly permissive approach that risks giving the legislature carte blanche in crafting ballot questions. I would follow our precedent set forth in Ekern. Applying the Ekern framework, I determine instead that the ballot question here failed to convey "every essential" of the amendment as is required. From the ballot question only, voters would have no idea that the proposed amendment diminishes the rights of criminal defendants in addition to bolstering the rights of crime victims. In my view, the diminution of a defendant's rights previously protected by law, constitutes an "essential" element of the amendment. Because the ballot question failed to accurately represent an essential element of the law to the voters who approved it, I respectfully dissent. *** This court in Ekern set forth what the parties refer to as the "every essential" test. It requires that a ballot question "must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment." As the court of appeals observes in its certification in the present case, this court has not expanded on what it really means for a ballot question to include "every essential" and this case presents an opportunity for the court to explain and apply this court's statement in Ekern. But instead of taking that opportunity, the majority simply dispenses with Ekern. In the majority's view, the "every essential" test is no test at all, but is instead just an "explanatory statement." Such a characterization would be news to the court in State ex rel. Thomson v. Zimmerman (1953), who noted (although did not decide) a controversy over whether a ballot question "fairly comprised every essential of the amendment." And it most certainly is news to the parties here, who both argued their positions in terms of the "every essential" framework Ekern set forth. *** Of note is that no party here asked us to overrule Ekern. Indeed, WEC argued within the confines of Ekern that the ballot question at issue provided "every essential" of the amendment. We have thus been provided no special justification for overruling Ekern. As such, I would maintain the Ekern test. Doing so not only respects the precedent established by the courts who came before us, but in this case furthers the aims of democratic governance. Making sure that a ballot question includes "every essential" of an amendment ensures that the public is informed and can "vote intelligently." This is critical to maintaining a democracy. *** . . . (T)he ballot question here fails. I begin my analysis with the essential fact, recognized by the circuit court, that the victim's rights amendment does more than just increase the rights of crime victims. The majority fails to acknowledge this. Instead, it opines: "all of the provisions of Marsy's Law relate to expanding and defining victim's rights and tend to effect and carry out this general purpose." Several provisions of the amendment do, in fact, decrease the rights afforded to criminal defendants. For example, the amendment limits the rights of criminal defendants in the following ways:
*** Shouldn't the voters be informed that a constitutional amendment diminishes the rights of criminal defendants before voting on it? In light of these provisions, it is apparent that the amendment serves dual "purposes," both expanding the rights of victims and diminishing those of the accused. By any definition of the word, such a change is an "essential" aspect of an amendment. Accordingly, a voter would need to be informed of the change before voting "intelligently." Its lack of inclusion has the significant potential to mislead voters as to the consequences of their votes. *** . . . (T)he ballot question is the only text that all voters are guaranteed to see. Those voters who do not research a proposed amendment beforehand will see the ballot question, and only the ballot question, prior to casting their vote. This gives the framing provided by the ballot question considerable power in shaping how voters think about and understand the question presented. That ballot question language possesses this power to frame the issue in turn dictates that the language provide an accurate picture of the measure that is placed before the voters. To this end, we should maintain the vitality of judicial review in the ballot question context, rather than essentially surrendering our responsibility for judicial review to the legislature. Democracy works best when voters are fully informed. The majority opinion takes a step backward in this endeavor. As we await opinions from the Supreme Court of Wisconsin's new term, we will go back to a few decisions from last term and crunch them down to size. Note: This one is a little different. WJI's "SCOW docket" pieces generally include decisions, dissents, and concurrences all in one post. This time, with this case, we are doing it in three: first the decision, then the dissent, then the concurrences. Why? Because this package of writings is extremely important for future ballot questions regarding state constitutional amendments. Besides that, the SCOW decisions are unusually long – 111 pages in all, not counting the cover sheets. Plus, it's a case that WJI cares a lot about. Instead of allowing each writing justice 10 paragraphs, we are giving the majority opinion writer 18 and each other opinion writer 15. Other than that, the rules remain the same. The "upshot" and "background" sections do not count as part of the paragraph restrictions because of their summary and very necessary nature. We've 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 and emphasis added by the opinion writer, all of which also are italicized. The case: Wisconsin Justice Initiative, Inc., et al. v. Wisconsin Elections Commission, et al. Majority opinion: Justice Brian Hagedorn (42 pages), joined in full by Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley, joined in part (seven paragraphs at the end on the multiple-question issue) by Justices Rebecca Frank Dallet and Jill J. Karofsky Concurrence: Grassl Bradley (14 pages), joined by Ziegler and Roggensack Concurrence: Dallet (32 pages), joined in full by Karofsky, joined in part by Justice Ann Walsh Bradley Concurrence: Hagedorn (9 pages), joined in part by Dallet Dissent: Walsh Bradley (14 pages) ![]() The upshot We . . . hold that WJI's challenges to Marsy's Law fail. The ballot question was not submitted to the people in violation of the process outlined in the Wisconsin Constitution. Therefore, absent challenge on other grounds, the amendment has been validly ratified and is part of the Wisconsin Constitution. *** Through the Wisconsin Constitution, the people of Wisconsin have given the legislature broad authority to determine how proposed constitutional amendments may be submitted to the people for ratification. WJI argues that the ballot question for Marsy's Law was constitutionally deficient under Article XII, Section 1 on multiple grounds. We disagree. We conclude that the ballot question was not fundamentally counterfactual such that voters were not afforded the opportunity to approve the actual amendment. Rather, Marsy's Law was validly submitted to and ratified by the people of Wisconsin, as the constitution requires. WJI further argues Marsy's Law should have been split into more than one amendment, each receiving a separate vote. However, the constitution did not require that here. We conclude the amendment had the single general purpose of expanding and protecting victims' rights, and all provisions of the proposed amendment furthered this purpose. For these reasons, WJI's constitutional challenges to the ratification of Marsy's Law do not succeed, and we reverse the circuit court's judgment to the contrary. Background When the Wisconsin Constitution was adopted in 1848, it included a process enabling amendments — an act the people of Wisconsin have seen fit to do almost 150 times. A proposed amendment must be approved by a majority of both houses of the legislature in two successive legislative sessions. Once it passes that test, the proposed amendment is submitted to the people. If a majority vote yes, it becomes part of our constitution. A victim's rights amendment termed "Marsy's Law" by its sponsors (a term we also use in this opinion) was ratified by the people in April of 2020. In this case, Wisconsin Justice Initiative, Inc. and several citizens (collectively "WJI") argue that Marsy's Law was adopted in violation of the process spelled out in the constitution. . . . . The relevant constitutional text governing the claims here is found in Article XII, Section 1. It provides that the legislature has a duty "to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." And, "if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately." The Legislature in consecutive sessions passed a joint resolution setting forth the Marsy’s Law amendment, which among other things, expanded the definition of "victim," provided that enumerated victims' rights vest at the time of victimization and must "be protected by law in a manner no less vigorous than the protections afforded to the accused," eliminated language stating that victims could be barred from the courtroom before testifying if "necessary to a fair trial for the defendant," provided that victims may refuse discovery requests made by an accused, eliminated a provision from the prior victims' rights constitutional provision that "(n)othing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law," and created rights for victims to seek appellate court review of certain decisions. The legislature directed that this amendment, informally known as "Marsy's Law," be submitted for ratification at the April 7, 2020 election. The legislature determined that the ballot question should state as follows: "Question 1: Additional rights of crime victims. Shall section 9m of article I of the constitution, which gives certain rights to crime victims, be amended to give crime victims additional rights, to require that the rights of crime victims be protected with equal force to the protections afforded the accused while leaving the federal constitutional rights of the accused intact, and to allow crime victims to enforce their rights in court?" Several months before the April election, WJI brought suit against the Wisconsin Elections Commission (WEC) alleging the ballot question failed to satisfy the requirements of the Wisconsin Constitution. WJI sought declarations that the ballot question violated Article XII, Section 1 of the Wisconsin Constitution on various grounds, and requested both a permanent injunction and a temporary injunction preventing submission of the question to voters while the litigation was pending. The circuit court denied WJI's motion for a temporary injunction, and Wisconsinites ratified the amendment at the April 7, 2020 election by a vote of 1,107,067 to 371,013. Several months later, the circuit court granted declaratory judgment in favor of WJI, concluding the ballot question failed to meet all the requirements with respect to content and form. The circuit court, on its own motion, stayed judgment pending appeal. WEC appealed, and the court of appeals certified the appeal to this court, which we accepted. WJI argued before the Supreme Court that the ballot question for Marsy's Law violated the Wisconsin constitutional requirements for amendments by failing to contain "every essential" of the proposed amendment as required by prior Wisconsin Supreme Court caselaw, in particular by failing to state that the definition of "victim" was being expanded and that the constitutional rights of those accused of crime were being diminished. Further, WJI argued that the ballot question misstated the contents of the amendment and was misleading because it stated that victims' rights would be equal to the rights of an accused, while the language of the amendment actually provided that victims' rights could exceed the rights of an accused. Further, the question told voters that the federal rights of an accused would remain intact, misdirecting voters and failing to tell them that state constitutional and statutory rights of an accused were being eliminated. WJI's argument on these points relied on Wisconsin Supreme Court cases from 1925 (Ekern) and 1953 (Thomson), which no party to the case, including the defendants-appellants in their briefs to the Supreme Court and lower courts, had questioned. Finally, WJI argued that Marsy’s Law contained more than one amendment, requiring multiple ballot questions. The guts
Just as the purpose of statutory interpretation is to determine what the statutory text means, the purpose of constitutional interpretation is to determine what the constitutional text meant when it was written, commonly called the original public meaning or original understanding. Although constitutional language is at times written with less precision, that fact does not fundamentally change the nature of our charge. We must similarly focus on the constitutional text, reading it reasonably, in context, and with a view of the provision's place within the constitutional structure. Other sources such as the debates and practices at the time of adoption, along with early legislative enactments, may prove helpful aids to interpretation. Just as we leave policy choices to the legislature in statutory interpretation, we must leave policy choices to the people in constitutional interpretation. *** This court has doubled down on this approach in recent years. In State v. Roberson, for example, we overruled our prior decision in State v. Dubose, which had adopted new requirements for the admissibility of out-of-court identification evidence under the Wisconsin Constitution. We did so, however, not based on the policies reflected in this decision, but based on our assessment of the "original meaning of the Wisconsin Constitution." We recognized that while state constitutions may provide further protection to citizens than the federal Constitution, "the question for a state court is whether its state constitution actually affords greater protection." Critically, we held, "A state court does not have the power to write into its state constitution additional protection that is not supported by its text or historical meaning." *** Our constitutional analysis begins with the text. As relevant to this dispute, following initial adoption in the legislature and other procedural requirements, the constitution requires "the legislature to submit such proposed amendment or amendments to the people in such manner and at such time as the legislature shall prescribe." This language commands only two things: First, the amendment must be "submitted" to the people; and second, it must be done in the manner and at the time prescribed by the legislature. . . . Hagedorn then discusses how in the early years after adoption of the Wisconsin Constitution, ballot questions were submitted as simple up or down votes. Thus, no ballot question in the first 22 years after the constitution was adopted contained any substantive description of the amendment at all. So far as we can tell, no one questioned the validity of this process. If in fact the constitution requires the content of a proposed amendment to be included in the ballot question, the inescapable conclusion is that every one of these amendments was submitted to the people in an unconstitutional manner — with no one batting an eye. That is highly unlikely. The overwhelming, indeed, uniform teaching of the text and history surrounding Article XII, Section 1 of the Wisconsin Constitution is that an amendment only needs to be submitted to the people for ratification. It need not — as a constitutional prerequisite — contain any kind of description of the amendment's substance. Hagedorn then discusses how the Legislature beginning in 1870 added a general subject area to the ballot question and in 1874 presented a longer, more substantive question to voters, "immediately followed by a return to ballot questions without subject matter." The first case to address the manner of the legislature's submission to the people occurred in 1925. The question before this court in Ekern was whether the legislature complied with the constitution when it delegated the drafting of a ballot question to the secretary of state. We held that this was permissible. The constitution requires that the legislature determine the "manner" of submission to the people, and we concluded this language was broad enough to encompass directing the secretary of state to determine the content of the ballot question. Although extraneous to the issue in the case, the court engaged in an extended digression regarding the content and design of ballot questions. Because this language is the genesis for the proposed "every essential" test we are asked to breathe life into in this case, we quote the discussion at length and in context: ". . . . Had the framers of the constitution intended that the legislature should prescribe the form, it might easily have done so by using a few additional words, or it might have so worded the provision that the idea of form would have been necessarily included by implication. This, however, was not the case, and it is highly probable that the framers had in mind the vital distinction existing between matters of substance and matters of mere form. Had the legislature in the instant case prescribed the form of submission in a manner which would have failed to present the real question, or had they by error or mistake presented an entirely different question, no claim could be made that the proposed amendment would have been validly enacted. In other words, even if the form is prescribed by the legislature it must reasonably, intelligently, and fairly comprise or have reference to every essential of the amendment. This demonstrates quite clearly the fact that the form of submission is after all a mere form, and that the principal and essential criterion consists in the submission of a question or a form which has for its object and purpose an intelligent and comprehensive submission to the people, so that the latter may be fully informed on the subject upon which they are required to exercise a franchise." (Emphasis added by Hagedorn.) Reviewing this discussion, the "every essential" language does not read as a separate test. Rather, it comes as an explanatory statement (phrased as "[i]n other words") for the comment that the real question, not an entirely different question, must be submitted to the people. Therefore, an effort to infuse constitutional significance into this language is not an accurate reading of Ekern on its own terms. The relevant discussion in Ekern simply does not set forth a substantive, explainable "every essential" test at all. And why would it? The content of the ballot question was not challenged and was not at issue. There was no need to create, much less apply, a new substantive constitutional test. Therefore, we do not understand Ekern as adopting or creating a new, undefined, and strict constitutional test for detail and accuracy in constitutional amendment ballot questions. Rather, Ekern's discussion is best read as affirming the unremarkable proposition that the real question of the amendment must be submitted to the people. This is consistent with the constitutional requirement that a proposed amendment must be "submitted" in order to be validly ratified. Where a question is not the real question at all, such a proposal cannot be said to be submitted to the people. *** The ballot question in Thomson stated that, if approved, "the legislature shall apportion senate districts along" certain municipal lines — using mandatory language. The problem, we explained, is "the actual amendment . . . has no such mandate at all and under it the legislature is uncontrolled except that the territory inclosed shall be 'contiguous' and 'convenient.'" The question given to the voters was the opposite of what the amendment actually provided. We concluded the question was misinformation and not "in accord with the fact." We cited Ekern and concluded that the "question as actually submitted did not present the real question but by error or mistake presented an entirely different one." Accordingly, there was "no valid submission to or ratification by the people." To this day, Thomson remains the only case in state history where a constitutional amendment was deemed invalid because it was not "submitted" to the people. *** Hagedorn then states that these principles of law follow from his discussion of the ballots and caselaw. First, Article XII, Section 1 does not require any substantive discussion of the amendment in the ballot question submitted to the people. No explanation or summary is constitutionally commanded. Second, the constitution requires that the amendment be "submitted" to the people for ratification. We held in Thomson, borrowing language from Ekern, that an amendment has not been "submitted" to the people when the ballot question fails to present the real question or is contrary to the amendment itself. In other words, voters have not been given the opportunity to vote for or against a proposal when the ballot question is fundamentally counterfactual. When a ballot question is factually inaccurate in a fundamental way, it cannot be said that the amendment was actually submitted to the people for ratification. But given the unique facts of Thomson and the broad authority given to the legislature in the constitution, this requirement is narrow and will be triggered only in rare circumstances. Third, this court has never, in a single case, developed or applied an "every essential" test for review of proposed constitutional amendments. Nowhere in our two cases that use this language have we established, defined, or utilized such a test. And finally, because it is our solemn obligation to follow the original meaning of the constitution, we will not design, invent, or breathe life into the so-called "every essential" test without a constitutional command to do so. Insofar as the content of a proposed ballot question is concerned, the relevant constitutional question is whether the proposed amendment was, at a basic level, submitted to the people for ratification. A ballot question could violate this constitutional requirement only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment. These principles in hand, we examine WJI's argument that the ballot question at issue here failed to satisfy this constitutional requirement. *** First, WJI argues that the ballot question fails because it does not mention the new section creating a constitutional definition of a "victim." In an amendment of this length and complexity, the legislature had to make choices of what to include and how to phrase it. We must give significant deference to the legislature in making these choices because the constitution affords the legislature substantial discretion in submitting an amendment to the people. While the legislature could have decided that more be said, WJI's legal argument depends on its erroneous contention that the constitution demands a more exacting review of the legislature's choices. It does not. A constitutional definition of "victim" fits comfortably within the statement that crime victims are given certain or additional rights, as the ballot question states. Nothing here is fundamentally counterfactual such that voters were not asked to approve the actual amendment. Second, WJI contends the ballot question failed to correctly capture how the rights of the accused would change. It offers several arguments in this regard. WJI asserts the ballot question is misleading because it requires "that the rights of crime victims will be protected with equal force to the protections afforded the accused," while the text of the amendment says victim rights will "be protected by law in a manner no less vigorous than the protections afforded to the accused." While the parties debate the import of this wording choice, we again emphasize the deference owed to the legislature in explaining the proposal to the people. Minor deficiencies in a summary (and all summaries will, by necessity, be incomplete) do not give rise to the kind of bait-and-switch we struck down in Thomson. This does not rise to the level of a fundamentally counterfactual question such that voters were not asked to approve the actual amendment. WJI additionally suggests the ballot question is misleading because the amendment reduces the rights of the accused. Prior to Marsy's Law, Article I, Section 9m stated, "Nothing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law." Marsy's Law struck this sentence and added: "This section is not intended and may not be interpreted to supersede a defendant's federal constitutional rights or to afford party status in a proceeding to any victim." WJI says the ballot question was misleading because this change in its view could reduce the rights of the accused in some situations, yet voters were told "the federal constitutional rights of the accused" would be left intact. We once again return to the relevant question: the issue is not whether the amendment was explained, but whether it was "submitted" to the people. Nothing in the constitution requires that all components be presented in the ballot question. The constitution leaves the level of detail required to the legislature, which may impose more or less requirements on itself. The failure to raise an issue in a summary or describe it with precision does not amount to the kind of wholesale inaccuracy of Thomson or suggest the amendment was not submitted to the people. This as well does not rise to the level of a fundamentally counterfactual question such that voters were not asked to approve the actual amendment. *** Hagedorn then turns to the issue of whether multiple ballot questions were required. Our most recent formulation of the test was in . . . a case challenging the adoption of Article XIII, Section 13, governing marriage. There, we articulated the test as follows: "It is within the discretion of the legislature to submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose. The general purpose of an amendment may be deduced from the text of the amendment itself and from the historical context in which the amendment was adopted. And all of the propositions must tend to effect or carry out that purpose." Applying this test, we concluded a single amendment was appropriate because "the general purpose of the marriage amendment is to preserve the legal status of marriage in Wisconsin as between one man and one woman. Both propositions in the marriage amendment relate to and are connected with this purpose." The parties do not dispute that this is the governing test. And we see no reason to question the textual and historical analysis . . . . Employing this test, we have no difficulty concluding Marsy's Law did not violate the constitutional prohibition on submitting multiple amendments as one. The amendment broadly protects and expands crime victims' rights. This is plain from the text and history of its adoption. In so doing, it amends only Section 9m of Article I. Even if WJI is correct that it will impact those accused of crimes as well (an issue we need not decide), all of the changes relate to the same, general purpose of expanding and protecting the rights of crime victims. All of the propositions are aimed at this goal, and tend to effect or carry this out. We hold that WJI's challenge to Marsy's Law on the ground that it was required to be submitted as separate constitutional amendments fails. By Alexandria Staubach While jury service is touted as one of the highest forms of public service an American can perform, it’s difficult to find a person who will admit they enjoy it. Jury duty has a reputation for being inconvenient, and time-consuming. It generally comes at a significant personal expense and involves a mind-numbing number of hours spent waiting. Finally, it’s a little intimidating and at least a bit uncomfortable. Read: If you’re excited to sit in judgment of another person’s actions it’s unlikely any lawyer really wants you on their jury. Nevertheless, under Wisconsin law, jurors are eligible for up to five days of service within a month or until any case they have been seated on is over. You can serve as a juror for only one month in a four-year period. The pay is abysmal, especially if you’re missing work and your employer isn’t compensating you. Within 30 days of your service, a half day will earn you $17, a full day, $25. As a lawyer I’ve been on the other side of a jury plenty of times arguing my case, but I’ve never been called for jury duty. I was to report for service on Monday, Oct. 16, at 8 a.m., but the day began well before then. Unless you’re taking public transportation or getting dropped off, you’ll need to locate and pay for long-term parking. No location is particularly close, and none is particularly affordable. The cheapest option, which is often full, is a half-mile’s walk and $10 a day. This is somewhat compensated for by the fact that Milwaukee County's courthouse is beautiful. The neoclassical building was completed in 1931 and includes Beaux-Arts details with sculptures and truly interesting tile and marble work. It is on the National Register of Historic Places. While it retains much of its charm, it also holds the grit of having dispensed nearly 100 years of justice. There is a significant security line around 8 a.m., and it is bustling with attorneys, witnesses, family, observers, and jurors all sharing the same crowded hall to enter. I disarmed myself of my cell phone, keys and laptop to proceed through the metal detector. Once through, I made my way to the third-floor jury management room, where I began my day as a potential juror. While the wait was often long, everyone interacting with jurors is incredibly kind — so respectful, so appreciative. As if to silently say, “it’s the least we can do.” After two hours of reading, people watching, and chatting with my fellow compatriots in limbo, at 10 a.m. my name was called. Sheriff’s deputies lined us up by assigned number in the hall outside jury management and marched us like ducks from the main courthouse to the Safety Building, traversing a city block and several flights of stairs in a group of 30. The Milwaukee County Safety Building is a sky bridge and world apart from the courthouse. The Safety Building was originally constructed in 1929 and housed the central police station, city and county court, city and county jails and the county sheriff. In the 1990s the county moved their detainees to a newer facility, paving the way for the Safety Building to house additional courtrooms and legal offices. This part of the building is distinguished from its neoclassical counterpart by its wholly custodial aesthetic. We arrived at the courtroom of the Hon. Jeffrey A. Wagner and again lined up by assigned number. Wagner took the bench in 1988 and his tenure predates the Safety Building’s courtrooms. Standing in line, we waited in the hall to be called, but 20 minutes later we were dismissed as the scheduled trial received a continuation. There was a large collective groan and everyone waddled back to jury management. I resumed my seat and was soon called for another potential trial. We lined up again by assigned number and were guided back over the river and through the woods to the Safety Building (I cannot over emphasize how long this walk is), this time to the courtroom of the Hon. Laura A. Crivello. Crivello was appointed to the bench in 2018 and elected in the spring of 2019. She served as an assistant district attorney from 1995 until then. She runs a tight ship. When we arrived in Crivello’s courtroom we were seated by number. The space was cramped with 30 prospective jurors, two people at the defendant’s table, two people at the prosecution’s table, a court reporter, two clerks, and a bailiff.
The judge introduced the parties and the charges. The defendant was charged with two counts of recklessly endangering safety and one count of felon in possession of a firearm. I was surprised to see he was dressed in an orange jumpsuit and was “pro se” (representing himself). On multiple occasions Crivello explained that these were his choices, and his choices alone. Next came questioning called “voir dire,” which Crivello informed the panel meant “to speak the truth.” Crivello asked about disabilities, hearing, our collective ability to remain objective, and any experiences with the criminal justice system that might make us unfit for this jury. Despite grumbling outside the courtroom, every prospective juror was fully on board to participate. No one attempted lame excuses about why they couldn’t be there; no one cited dubious bias that would prevent them from participating. Having conducted many jury trials as a lawyer, I was surprised and impressed by the genuine and full responses given to the judge. Then we broke for lunch, which included an additional hour of unanticipated waiting. When we finally returned to the courtroom, the defendant had changed out of his jumpsuit and put on a dress shirt and slacks. We were each asked to stand and tell the court our first name, occupation, marital status and spouse’s occupation, the name and age of any children, where in the county we resided, and a hobby. Once everyone had completed this, the state was permitted to ask questions of individuals. There was significant follow-up for those in the medical field – whether they’d dealt with trauma and gunshot wounds – curious given a lack of charge for assault or anything resulting in bodily injury. Finally, the defendant asked us questions. Instead of asking questions of individuals, he asked the group whether we would be fair to him, whether we would hold it against him that he was representing himself, and whether we thought we could make the effort to understand him, even though everyone else in the courtroom was professionally trained. On more than one occasion Crivello corrected him or reminded him what was and was not permissible, cutting him short whenever he asked to make a record. With that, we were excused from the courtroom. Next came a final stretch of waiting. I suspect from experience that the defendant was likely permitted to make whatever record he wanted and the parties then haggled over who would be kicked for cause (because they indicated they could not be unbiased or had some other impediment to service) and who would be each side’s peremptory strikes (Wisconsin law permits each side to eliminate four jurors without reason). Fourteen jurors (twelve impaneled and two alternates) were selected from the first 26 of us. I was last in the box, number 30, so the math to be selected was never in my favor. That was it. We were released and again sent back to jury management at 4 p.m. Jury duty is a lot of waiting, and nearly everyone complained. For most people it’s also a lot of wondering about the many conversations taking place behind closed doors. In the end, though, I enjoyed it and I suspect – deep down – a lot of other people did too. The stakes are high. Everyone treats everything with reverence and respect. In an age when that’s difficult to come by, it was refreshing to know that decorum and civil duty live on in the Milwaukee County Courthouse, at least on this day. "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. Grammar mistakes and 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: Mark A. Huesmann Appointed to: La Crosse County Circuit Court Appointment date: July 6, 2023 (effective July 31, 2023, to a term ending July 31, 2024) Education: Law School – University of North Dakota, Grand Forks, North Dakota Undergraduate – University of Wisconsin-Milwaukee High School – Sheboygan Falls High, Sheboygan Falls, Wisconsin Recent legal employment: April 2020-present – Municipal court judge, Coulee Region Joint Municipal Court, Onalaska, Wisconsin August 2013-present – Teaching professor, business law, University of Wisconsin-La Crosse January 1996-present – Attorney/owner, Huesmann Law Office, LLC, (earlier Huesmann Law Office, S.C.), Holmen, Wisconsin Military service: I enlisted in the Army Reserve in 1986. I completed ROTC in college and was commissioned in 1990. I was mobilized for a year in 2003 (Fort McCoy) and was deployed to Afghanistan and other areas in the Middle East in 2010-2011. I retired as a lieutenant colonel in July, 2014. Discharge: Honorable. Highest Award Received: Bronze Star Medal. Bar and administrative memberships: State Bar of Wisconsin U.S. District Court for the Western District of Wisconsin Minnesota State Bar (voluntarily lapsed in 2013) General character of practice: I am a general practice trial attorney and have tried civil and criminal cases in both Minnesota and Wisconsin. Practice areas include, but are not limited to: criminal defense, civil litigation, family law, trusts and estates, guardianship, bankruptcy, real estate, and business law. Describe typical clients: I practice in a small town and clients have run the gamut from public defender appointments to business planning and consultation. My law practice is general and the client base is broad and diverse. Number of cases tried to verdict: Approximately 18-20 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: Portage County Case 19-CF-259 – The incident occurred in 2012 and the defendant was charged with 2nd Degree Sexual Assault in 2019. This case is significant as it was charged under the Sexual Assault Kit Initiative (SAKI) project. It presented the intersection of complicated issues related to race, sexual assault, and delayed prosecution. The defendant was a Black man accused of raping a white woman in a rural Wisconsin county. I represented the defendant (through SPD) for three years and filed significant pretrial motions. Two weeks prior to the August 2022 trial date, significant conflict developed with the client and I had to withdraw as counsel. The SPD appointed new counsel and defendant was finally acquitted in April, 2023. The successor defense attorney (Gary Kryshak) credited my pretrial work on the case with defendant's ultimate acquittal. Coulee Region Joint Municipal Court – As municipal judge, our court encountered a difficult 13-year-old juvenile … with a disturbing pattern of behavior. Between March - December 2021 [redacted] accumulated 12 different citations some of which involved threats of violence related to knives and guns. The juvenile demonstrated a complete disregard for law enforcement, failed to show for mandatory court dates, and had numerous open citations. I view municipal court as an early intervention tool for juveniles and my goal is to identify at-risk children and connect them to services in the community. This cannot be accomplished when neither the juvenile nor the parents show for court. The enforcement mechanisms through municipal court are few and limited. Through research, I discovered that circuit court sanctions can be used for juveniles who continue to violate municipal court orders. Accordingly, I petitioned the circuit court to impose additional sanctions such as juvenile detention or electronic home monitoring. This had never been done in La Crosse County, but I obtained the support of the court to proceed with that course of action. This approach allowed all concerned to develop a compliance plan for [redacted] I learned that sometimes a judge should explore different avenues for problem solving. In the Matter of R.M. (Attorneys Mark A. Huesmann and Michael J. Cohen), Great Lakes Cheese, Inc. GLC (Attorney Erik Eisenmann), and Holmen Cheese, LLC (Attorney Robert E. Shumaker) – This is not a case where a lawsuit was filed. It involved an employee (R.M., a food scientist) who left GLC in 2021 to work for a competitor, Holmen Cheese. The employee did not have a non-compete, but the former company threatened litigation based on the idea the former employee might reveal or use proprietary information in the new job. I had been teaching about non-competes and circumstances surrounding those for years. This case presented interesting facts. Eventually, we employed a subject matter expert as co-counsel (Cohen) and the case resolved favorably for the client. The matter took months to resolve, and it raised a host of possibilities for causes of action from both the employee, the gaining employer, and the former employer. It was significant being part of a group of attorneys engaging in the problem-solving process and using informal ADR to resolve a complex problem that appeared destined for expensive litigation. Experience in adversary proceedings before administrative bodies: I have represented clients in worker's compensation, unemployment compensation, probation revocation, and Social Security disability hearings. Describe your non-litigation experience (e.g., arbitration, mediation). I have officiated approximately 70 wedding ceremonies. Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: I managed Judge Todd W. Bjerke's first judicial campaign in 2007 in which an incumbent judge was defeated. Previous runs for public office and appointments: Coulee Region Joint Municipal Court judge, elected 2020 La Crosse County Court commissioner, appointed 2013 La Crosse County Board, defeated 2003 Holmen School Board, elected 2002 and 2005 All judicial or non-partisan candidates endorsed in the last ten years: Judge Janet Protasiewicz, Wisconsin Supreme Court, 2023 (financial support) Professional or civic and charitable organizations: 2002-2008 and 2018-present – Holmen Area Foundation, board member and past president 2022-present – Study Committee on Policing, committee member 2010-2019 – La Crosse Area Veteran Mentor Program, legal counsel and board member Significant pro bono legal work or volunteer service: Study Committee on Policing. One of 18 members appointed by the La Crosse County Board of Supervisors to study issues and make recommendations related to policing in the county. Appointed in 2022 and work is ongoing. I served as legal counsel for the La Crosse Area Veteran Mentor Program and that work included obtaining 501(c)(3) status for the same. Between 2000-2002 I was one of two La Crosse Regional High School Mock Trial coordinators overseeing the annual tournament. Quotes: Why I want to be a judge — My parents grew up in Germany under the Nazi regime and Adolph Hitler. They immigrated to America in the mid-1950s. I was raised in a small town in rural Wisconsin. My parents could not afford to send me to college, so 1 joined the Army and the GI Bill helped me get an education. My parents saw the worst of government, and I saw the best of it. My parents escaped a system of oppression and inequality so I could have better opportunities. This background informs who l am. A fair and impartial system of justice is the last line of defense from totalitarianism. This idea was inculcated in me from a young age. I want to become a judge to ensure that everyone - regardless of their station in life - receives dignity and respect as well as equality and equity. I have worn different hats thus far in my career: municipal judge, court commissioner, lawyer, soldier, academic, and business owner. I have been privileged to meet people from many different, walks of life. The people I have met all want and demand the same thing - a system of justice that encourages accountability and positive outcomes for society. I want to help achieve those goals. My work with families going through trauma - whether in the context of family law, criminal defense, or juveniles appearing before the municipal court, has provided me with a deeper understanding of the human condition. I have seen the positive and transformative effects of properly addressing the crises surrounding mental health and addiction. I believe in the approach of treatment courts. Focusing on these areas ensures accountability for offenders and considers the impacts on victims. I was a founding member of our Veterans' Court Initiative, which resulted in the creation of the La Crosse Area Veteran Mentor Program and then the La Crosse Area Veterans Court. We are taking greater strides in Wisconsin towards addressing these issues. But significant disparities still exist in our legal system for the Black, Indigenous, and People of Color members of our community, those who identify as LGBTQIA, and how victims of crime are treated. I embrace these positive changes toward fundamental fairness and equality, and 1 want to further that work by serving the people of La Crosse County and the State of Wisconsin as a circuit court judge. As a general practice attorney, I have enjoyed diverse experiences in the law. That background has greatly aided my work as a municipal court judge. I am intellectually curious and would enjoy the challenges of being a circuit court judge. I have spent a lifetime helping people and want to continue that service to my community and the State. 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. The case of Mayo v. Wisconsin Injured Patients and Families Compensation Fund, 383 Wis. 2d 1, 914 N.W.2d 678 (Wis. 2018) has had a negative impact on the people of Wisconsin. Mayo upheld a cap on non-economic damages in medical malpractice cases and reversed a Court of Appeals decision that found the cap "unconstitutional on its face because it ... impos[es] an unfair and illogical burden only on catastrophically injured patients, thus denying them the equal protection of the laws." With its decision in Mayo, the Wisconsin Supreme Court overturned Ferdon v. Wisconsin Patients Comp. Fund, 284 Wis. 2d 573, 2005 WL 125, 701 N.W.2d 440 (Wis. 2005). The issue of 1egislative caps on non-economic damages has a history stretching back to 1975. Since that time, the Wisconsin Supreme Court has weighed in twice and may revisit the issue a third time. The upshot is whether statutory caps on non-economic damages in medical malpractice cases violates equal protection laws. The issue could be resolved if the legislature would simply allow juries to determine the appropriate amount of damages in medical malpractice cases. We impanel juries for civil cases under the Seventh Amendment. Those juries have two primary purposes: determine questions of liability and establish the appropriate level of damages for that liability. Regulating how much a jury can award under the Mayo scenario represents a usurpation and unwarranted intrusion into the powers of the judicial branch and raises a host of Constitutional questions. America has been trending towards corralling more people into binding arbitration and then limiting damages when those litigants can actually access the courts. It represents a concerted effort to diminish the power of a jury to hold bad and wealthy actors accountable and Mayo is illustrative in that regard. The case has other, far-reaching impacts as it established the rational basis standard would henceforth be used for analyzing the constitutionality of government legislation under similar challenges. Two or three judges whom I admire and why: Chief Justice Shirley S. Abrahamson. While a law student at the University of North Dakota, the Law Women’s Caucus brought Chief Justice Abrahamson to speak at the annual Helen Hamilton Day recognition. Being one of the most recognized progressive female jurists in the nation, this was particularly noteworthy and important as North Dakota was and remains a conservative state. Her presentation and question and answer session impressed an entire room of young, future lawyers. Chief Justice Abrahamson's life accomplishments preceded her. Her address to the law school was remarkable and served to inspire the work I would do as an attorney. Eleven years later I had the privilege of appearing before her as I argued a case to the Wisconsin Supreme Court. State v. Haines, 261 Wis.2d 139, 2003 WI 39, 661 N.W.2d 72 (2003). I met her several times since law school. Chief Justice Abrahamson was erudite, her legal reasoning was inciteful, and she was inspirational. Judge Todd W. Bjerke. Judge Bjerke has been a trusted friend and mentor for my entire legal career. We began our relationship as adversaries: he was an assistant district attorney, and 1 was a defense attorney. He was the consummate professional prosecutor and approached his work with an even hand and firm grasp of the facts and law. That personal and professional respect led to me managing his first successful judicial campaign and we defeated an incumbent judge. Judge Bjerke's deliberative approach and his willingness to consider all viewpoints was very evident to me during his judicial campaign. He has brought those same attributes to the bench. I was appointed as one of his court commissioners at his investiture. Judge Bjerke and I are both veterans and share a passion for helping troubled veterans involved with the court system. This led to us working together in forming the Veterans' Court Initiative, which resulted in the creation of the La Crosse Area Veteran Mentor Program and the La Crosse Area Veterans Court. While attorneys and parties might not always agree with his decisions, they leave the courtroom understanding his reasoning and methodology. Judge Bjerke takes pains to ensure everyone receives careful and thoughtful treatment. I will emulate that approach. He is a considerate man with the highest degree of personal and professional integrity. The proper role of a judge: Perhaps the most important and proper role of a judge is to listen. Early in my career, a more experienced attorney asked if I wrote out all my questions for a witness. l did. She told me not to do that and said, “When you write out the questions, the focus will be more on making sure you are checking those questions off the list, and you are not really listening to what the witness says. Have an outline or jot some notes and as you ask the questions, you are more attuned to what the witness is saying, and everything then revolves around those answers.” That advice was instructive. but also got to a deeper point: good listening is an art that must be practiced diligently. Some of the most consequential work by a judge is evaluating what is said in the courtroom. Lives depend on the judge receiving that information, properly. What makes an effective judge is personal restraint. Much is presented and your job is to sift and winnow. A judge must apply as much objectivity as possible to things and avoid the tendency toward subjective conclusions. Therefore listening - and a good dash of humility - is vital. It takes discipline and self-regulation. Being a judge is not just about making decisions - it also brings the power of possibilities. It is about marshaling the resources and opening doors that can only be done through a court order. Whether that is treatment, tools for intervention, or using punishment as deterrence, this is within the proper purview of a judge. No other position in our society allows for that sort of gatekeeping, authority, and allocation of assets. The public is best served by a judge understanding how to properly utilize this host of options. By Margo Kirchner
A judge today refused to dismiss a challenge to the constitutional bail amendments approved by voters in April 2023. Dane County Circuit Court Judge Rhonda L. Lanford issued her decision from the bench at the end of oral arguments during a Zoom hearing. Plaintiffs EXPO Wisconsin and WISDOM claim that the Wisconsin Legislature failed to follow proper procedure for placing referendum questions on the ballot because the Legislature delivered the questions to the Wisconsin Elections Commission rather than to Wisconsin county clerks. A state statute requires that the Legislature file all proposed constitutional amendments or other referendum questions “with the official or agency responsible for preparing the ballots for the election no later than 70 days prior to the election.” The challenge is about who or what is “the official or agency responsible for preparing the ballots.” If plaintiffs are correct and county clerks are deemed responsible for preparing the ballots, the Legislature missed the 70-day deadline. The parties agree that the Legislature delivered the questions to the Wisconsin Elections Commission 75 days before the April 4, 2023 election, but the county clerks received them only 68 days before the election. Defendants include the Wisconsin Elections Commission and its members and administrator. The Wisconsin Legislature intervened in the case as a defendant. At issue are two ballot questions for amending the state constitution regarding pretrial release and bail. One question asked voters to approve expanded use of conditions imposed on an accused person released before trial. The second question asked voters to allow a court to consider various new factors in imposing cash bail on a person accused of violent crime. A third, advisory, question is challenged as well. That question asked voters whether able-bodied, childless adults should be required to look for work to be eligible for public benefits. Plaintiffs filed their case in January 2023 and sought to keep the questions off the April ballot. Lanford denied the plaintiffs’ motion for temporary restraining order in February, allowing the questions to go to voters. Voters approved the amendments and the advisory question. The plaintiffs seek a declaration that the voting results regarding the questions are invalid and that the state constitution has not been amended. The elections commission and its members argued in their motion to dismiss that the plaintiffs lack standing, that regarding statewide referendum questions the elections commission is the responsible agency for preparing ballots, and that, even if not, strict compliance with the 70-day deadline was not required. The Legislature argued that the court lacks authority to opine on the Legislature’s interpretation and application of the delivery and timing statute—that whether the Legislature complies with its own procedural rule is a matter for the Legislature alone, not the courts. The Legislature then echoed the commission’s arguments that the commission is the proper recipient of statewide referendum questions and that delivery to the commission substantially complied with the statute. The Legislature added that invalidating the results of the election for “what was, at most, a minor procedural error” would be an extraordinary remedy. When deciding a motion to dismiss, a judge must look at the facts alleged in a complaint, assume they are true, and view them in the light most favorable to the plaintiff. Lanford found that “the law does support plaintiffs’ assertions in their brief.” The decision did not address the merits of the proper party for receipt of statewide ballot questions. That issue will be addressed through a motion for summary judgment, with supporting affidavits as evidence. Plaintiffs are to file their motion for summary judgment and supporting materials by Jan. 5, 2024, with full briefing by all parties to be completed by the end of February. Lanford set a hearing on the motion for summary judgment for March 19, 2024. ​Senate committee takes up bills that would criminalize suspended driving and impound vehicles10/12/2023 By Alexandria Staubach
Speakers recently debated the merits of two bills that would turn operating a vehicle on a suspended license into a crime and cause for vehicle seizure. On Oct. 3, the Senate Committee on Judiciary and Public Safety heard testimony on SB 404 and SB 410. SB 404 increases the penalties for operating while suspended. Currently, most operating-while-suspended violations are forfeiture violations handled in municipal courts. SB 404 would turn even first offenses into misdemeanors at the very least. SB 410 would permit the state to impound vehicles as a penalty for operating while suspended. Republican proponents argued that increased penalties would combat and curb excessive repeat suspended driver offenses, while Democrats and community stakeholders contended that the bills criminalize poverty. Sen. Van Wanggaard (R-Racine), committee chair and a sponsor of both bills, testified in their favor. He fixated on the notion that repeat suspended drivers lack an effective deterrent. Driving in the state of Wisconsin is a “privilege, not a right,” he said, stressing that people must be properly licensed and registered to enjoy that privilege. Wanggaard said that the types of people engaging in revoked or suspended driving are frequently the same individuals who are reckless drivers. In his experience, he said, people subject to the ramifications of SB 404 are “not responsible individuals,” arguing that the prospect of jail would “change the game” in people’s cost benefit analysis of whether to drive while suspended. Sen. Kelda Roys (D-Madison) questioned whether the bills met their stated purpose. “If somebody is driving dangerously, we have penalties, and there should be penalties,” said Roys. She recognized that many people cited for repeated suspended driving are initially suspended for failure to pay fines or fees. “The legislature is making it very difficult to be responsible so legislators can get good headlines about being tough on crime when what we are criminalizing here is poverty and not dangerous conduct,” she said. Sen. Lena Taylor (D-Milwaukee) also questioned whether the proposed legislation targeted poor driving and criminal conduct or instead merely “contributes to a vicious poverty cycle.” She highlighted that there are other ways to achieve what the bill sponsors want. SB 404 would result in some traffic offenses being removed from municipal courts and sent to circuit courts. Adam Plotkin, the State Public Defender's legislative liaison, noted that the bill would further crowd an already overburdened criminal justice system. According to Plotkin, SB 404 is “likely to create a significant number of new cases that will require additional resources for the SPD, prosecutors, courts, jails, and others.” Plotkin cited Department of Transportation and court data that demonstrated that as many as 6,900 new cases would become criminal offenses under the law if enacted and that 67% of those cases would qualify for public defender representation. Plotkin said those cases equate to the workload of nine additional public defenders per year based on current case load standards, without an allocation for the associated cost. Community opponents of the bills stated that lack of a driver’s license is a significant barrier to employability. Sheila Sullivan, an attorney with Legal Action Wisconsin, cited data demonstrating that 42% of individuals who had their license suspended lost their job as an immediate result, and 45% of those individuals remained unemployed during the term of their suspension (often a year or more). James Gramling, a former Milwaukee Municipal Court judge and member of the 1995 Governor’s Task Force on Suspended and Revoked Drivers, also testified. (Note: Gramling is a WJI board member.) “In my view you would be creating debtors' prisons,” he said. Gramling questioned why speeding was not being criminalized if reckless conduct is truly the issue. Calling the bills “unfair and unproductive,” Grambling said that perhaps driving without a license demonstrates irresponsibility on the part of citizens, but that irresponsibility does not equate to criminality. WJI submitted written testimony against both bills, pointing out that "(t)he number-one cause of license suspensions or revocations each year, by a significant margin, is failure to pay a prior court forfeiture." Municipal judges are allowed by statute to suspend a person's driver’s license as a sanction for failure to pay municipal forfeitures. "In 2022, failure to pay prior forfeitures was the basis for 47.22% of suspensions or revocations according to Department of Transportation data. . . . The next highest reason for suspension or revocation—a poor driving record—caused only 17.22% in comparison," WJI wrote. “The vast majority of those with outstanding forfeiture debt lack the means to pay," WJI wrote. "Losing a driver’s license already inhibits one’s ability to get to and from work or school or maintain employment that requires driving. Penalizing those who drive on a revoked or suspended license with criminal penalties or impoundment of their vehicles is an excessive punishment not faced by those who are able to afford their forfeiture amounts. And it does little to nothing to keep others safe.” JusticePoint loses court fight to maintain services contract with Milwaukee Municipal Court10/6/2023 By Margo Kirchner
A judge denied JusticePoint’s motion for a preliminary injunction to maintain its contract providing services to low-income individuals facing citations in Milwaukee Municipal Court. Milwaukee County Circuit Judge J.D. Watts issued his ruling in writing after hearing arguments on Thursday afternoon. He stayed his decision for a month to allow JusticePoint time to appeal and ask the court of appeals for a longer stay. JusticePoint has run Milwaukee’s Municipal Court Alternative Services Program (MCAP) since 2015. Some of the organization’s staff have worked on the MCAP for four decades. The goal of the MCAP is to help low-income municipal court defendants comply with alternatives to forfeiture payments (such as community service) and find needed social services like mental health or drug abuse treatment. JusticePoint is paid by the city for running the MCAP; those using the MCAP services pay nothing. In spring 2023, Milwaukee Municipal Court officials told JusticePoint that judges were troubled by how JusticePoint was sharing citations with Legal Action of Wisconsin attorneys who represented municipal court defendants. The citations are public records that the attorneys would be entitled to receive upon request. JusticePoint stated at a public meeting in June that the practice of sharing citations was discussed with city officials years ago and no one objected to it until recently. In May, city officials notified JusticePoint that its contract would terminate effective July 11. The city cited a contract provision allowing termination for “convenience.” Otherwise, the contract would have continued through Dec. 31, 2023, with a remaining one-year renewal allowing extension through 2024. JusticePoint sued the city on July 10, moving for a temporary restraining order and preliminary injunction to keep the contract in place. JusticePoint alleged that the termination on short notice without a right to cure violated the Wisconsin Fair Dealership Law (WFDL). Milwaukee County Circuit Court Judge Hannah Dugan granted a TRO on July 10, keeping JusticePoint’s contract alive until Thursday’s hearing. Attorney Jeffrey Mandell represented JusticePoint at the hearing. Attorney Kathryn Block represented the city. Mandell noted a lack of any evidence submitted by the city regarding the motion and walked through the WFDL statutory provisions and caselaw. Under the WFDL, a dealership exists when a person or entity “is granted the right to sell or distribute goods or services” or use a trademark, and when a “community of interest” exists. Mandell argued that JusticePoint distributes city services to the individuals using the MCAP and that JusticePoint had invested in the program, meeting the definition. Watts questioned Mandell about the lack of financial payment by those using JusticePoint’s services and discussed several cases regarding distribution of services. The city did not dispute that a municipality may be considered the grantor of a dealership under the WFDL. Block instead focused her comments on city contracting requirements. Watts indicated that city rules on contract procurement had no bearing on whether the WFDL applied in the case. After a brief recess, Watts returned to court with a written decision finding that JusticePoint’s relationship with the city was not a dealership under the WFDL. He said that JusticePoint’s argument was “a bridge too far” regarding application of the WFDL. In the written decision Watts found that JusticePoint distributes its own services, not those of the city. “The City did not have these services. The City had to go out and contract with JP to obtain them. The services that JP provided were uniquely JP’s,” he wrote. He also found no community of interest between the parties because JusticePoint received no money from the individuals served. Money it invested in the contract services was done on its own behalf, not on the city’s, he said. Watts set a hearing on Nov. 8 to discuss lifting the stay of his decision if JusticePoint has not appealed and sought a stay from the court of appeals by that date. The stay means that the JusticePoint contract remains in place for another month unless JusticePoint chooses not to appeal. Mandell said he needed to discuss the issue of appeal with his client. Judge Molly Gena did not take office until May 1, 2023, and in a public meeting in June said she was not involved in the decision to terminate JusticePoint’s contract. Milwaukee Municipal Court Administrator Sheldyn Himle stated publicly in June that the decision to terminate the contract was made by the two other Milwaukee municipal judges, Phil Chavez and Valarie Hill. The city in its brief on the motion for preliminary injunction said no other vendor is in place to take over from JusticePoint. The city said it was “confident that another competitive procurement” will draw other vendors and that “[i]n the interim, Judges are able to make direct referrals to social service agencies without the need for a vendor intervening in the process.” Lawmakers disagree on scope and effect of bill increasing revocations of supervision, parole10/3/2023 By Alexandria Staubach
During a meeting last week of the Senate Committee on Judiciary and Public Safety, some Republican members failed to grasp the scope and implications of a bill that would increase returns to prison. SB 309 would require the Department of Corrections to recommend revocation of extended supervision, parole, or probation if an individual is charged with a crime while in the community. Crimes as defined in the bill include rule infractions of supervision terms. The bill removes discretion from parole officers to evaluate the severity of a new offense and the circumstances surrounding it. Persons who otherwise may have appropriately continued supervision would automatically be referred to an administrative law judge for hearing. Some Republican committee members insisted the bill focused on violent re-offenders. The bill’s authors, Rep. Nik Rettinger (R-Mukwonago) and Sen. Julian Bradley (R-Franklin), presented the bill for hearing at the meeting. Bradley reiterated several times that the bill was aimed at detaining violent criminals. Democrats and community members contended that the bill, in its current form, contemplates much more and will further disenfranchise those on supervision in our communities. Sen. Lena Taylor (D-Milwaukee) questioned the bill’s authors by phone, often correcting misstatements about what the bill, as written, would in fact do. Sen. Kelda Roys (D-Madison) pointed out that SB 309 was not written to target violent criminals. “You say violent criminal but the bill itself, actually is, you could be charged with any crime and immediately” revoked, Roys said. She also highlighted the bill’s price tag and a failure by the authors to allocate funds for its implementation. The Department of Corrections fiscal estimate predicted that the bill would result in an increase of 1,599 persons in the daily population of the department’s Division of Adult Institutions during the first year. Once the population is annualized, the overall population could increase by 4,673 persons after 19 months. The department projects that handling the increase would require the building of two new facilities, with a permanent increase in operation costs of approximately $209 million if the bill is enacted. Jerome Dillard, executive director of EXPO (EX-incarcerated People Organizing) Wisconsin testified in person, highlighting the many stopgaps and penalties already in place to prevent re-offense. “Under current law, DOC uses department policies, evidence-based practices, and recommendations of violating someone for their extended supervision, parole or probation,” said Dillard. “If someone is charged with a crime, they’re not just walking the street…. That’s a narrative that’s being painted that is so untrue,” Dillard went on. In light of the testimony given, it was clear from committee chair Sen. Van Wanggaard (R-Racine) that the bill is not in final form. Its authors committed to revisions that considered the testimony given. The bill's sponsors are listed in the table below. By Margo Kirchner Milwaukee County’s criminal justice system has not fully recovered from pandemic pressures, and some data results from a recent study of the county’s justice system are not easily explained, say a researcher and five local justice-system leaders. The pandemic showed how the county’s criminal justice system is an ecosystem, with changes in one area impacting other areas, several said. However, the leaders of multiple sectors of the county’s criminal justice system continue to work together to get the system back to its pre-pandemic functioning, or better, they said. Milwaukee Police Department Chief Jeffrey Norman; District Attorney John Chisholm; Tom Reed of the State Public Defender’s Office; and the current and former chief judges of Milwaukee County Circuit Court, Carl Ashley and Mary Triggiano, spoke at a Marquette University Law School Lubar Center event last week. They were joined by Wisconsin Policy Forum President Rob Henken. The speakers discussed an August 2023 Wisconsin Policy Forum report analyzing data from 2018 through 2022. The talk was moderated by Lubar Center Director Derek Mosley. Henken started with discussion of his report “Under Pressure: The Milwaukee County Justice System’s Recovery from COVID-19,” highlighting the following quantitative findings:
Henken said the causes of these results could not be pinpointed. However, his research suggested that total offenses may have increased because police were addressing during the pandemic mainly priority calls rather than conducting proactive policing activities. In addition, the number of MPD sworn officers decreased 17% (more than 300 officers) from 2018 through 2022, which may have caused the decrease in arrests, he said. Staffing declines at the district attorney’s office may have resulted in fewer charges, he said. Henken suggested that the system’s recovery from the pandemic is now impeded by workforce challenges. Norman agreed that there is “still a lot we don’t know on why we’re where we’re at.” As explanation for some of the policing data results, such as the reduced arrest numbers, he pointed to problems during the pandemic with insufficient housing for arrestees, which meant that those accused of violent felonies were held while others were released. He also noted the shifting priorities and measures from the administrations of his predecessors. While one prior chief focused on quantitative measurements of policing such as the numbers of arrests, subsequent chiefs transitioned to qualitative measurements. “Policing is an always evolving activity,” he said. Chisholm noted how the criminal justice became a funnel for societal problems — and how that funnel has been overflowing. What is happening in the community affects what is happening in the criminal justice system, too; things are connected, he said. As an example, shutting down schools during the pandemic may have related to young people stealing cars; shutting down resources for victims of domestic violence may have led to more domestic violence issues, he said. He noted that he would like to get back to “the crappy place we were in 2019,” but said there is no finger pointing between the speakers about problems such as high homicide rates — “we all share this.” Reed said the pandemic caused a problematic reduction in the number of SPD attorneys and private bar attorneys willing to take cases when the SPD has a conflict or heavy workload. Court proceedings were put on hold until an attorney could be appointed, frustrating clients, he said. Reed said that 85% of people charged with crimes qualify for appointed counsel due to poverty. Before the pandemic, the ages of SPD attorneys and private-bar defense attorneys “skewed older,” and when the pandemic hit many older attorneys chose to retire, Reed said. One reason for retirement early in the pandemic may have been that before vaccines, older attorneys were reluctant to visit clients in jails and prisons, where COVID-19 was spreading easily. The Legislature’s increase in SPD pay stabilized his staff, and the increased private bar rate (both are features of the recent state budget) helps, Reed said. His office is down to about 100 cases needing attorneys. Former Milwaukee County Chief Judge Triggiano described the leadership group she pulled together even before the nationwide COVID-19 closures in early 2020. The court initially kept employees and litigants at home but worked around the clock to bring jury trials back while keeping participants safe. Jury trials resumed in the summer of 2020. Current Milwaukee County Chief Judge Carl Ashley, who was part of that leadership group, said Triggiano’s inclusion of system representatives such as those from the DA’s office and SPD may have been unusual, but the group discussed what the system participants could do differently to handle pandemic concerns. Ashley is continuing such meetings to keep discussing how the court and system participants can operate differently to improve. He is proud of the relationships he has with the other system partners. The court has about 5,000 pending felony cases, 1,500 of which are backlog, he said. Ashley noted that “we are not going to prison our way out” of safety issues. When asked by Mosley what he needed for the MPD going forward, Norman said “more trust, from everyone,” but he acknowledged that his department needed to earn that trust. When asked by an audience member whether the elimination of the city residency requirement for MPD officers reduced that trust, Norman said that when an officer responds it should not matter where that officer lives. His officers are expected to provide their services and if they fail to, or do it with disrespect, city residents should report it to the department, he said. Reed said that he would like more honor and acknowledgment of the work by the people at the MPD, DA’s office, SPD, and court who perform their work as a calling. Even when mistakes are made, people should “know that it’s still a noble profession.” The Wisconsin Policy Forum report found that a 2021 spike in serious offenses appeared driven by motor vehicle thefts. And while homicides and motor vehicle thefts in the City of Milwaukee increased significantly between 2018 and 2022, all other serious offenses (such as larceny theft, burglary, robbery, and rape) combined dropped. Homicides in the City of Milwaukee increased from 100 in 2018 to 214 in 2022. Motor vehicle thefts in the city spiked from 4,528 in 2020 to 12,344 in 2021, then declined to 9,447 in 2022, though correction of an MPD technical error in reporting may reduce those numbers slightly, according to the report. The report also described the continuing backlog of felony cases. In March 2023 the number of felony cases in Milwaukee County Circuit Court stood at 5,032, compared with 3,512 cases at the end of December 2019. The number of pending felony cases peaked in January 2022 at 5,405. For a year or two prior to the pandemic, the median age of a felony case in the court ranged between 150 to 200 days. The median age peaked in August 2022 at 331 and at the end of December 2022 was still high at 289 days, according to the report. |
Donate
Help WJI advocate for justice in Wisconsin
|