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By Alexandria Staubach
The price of goods sold to individuals incarcerated in Wisconsin prisons is rising, yet the nominal pay earned by the incarcerated remains unchanged and is effectively decreasing. Wisconsin Department of Corrections contracts obtained by Wisconsin Justice Initiative through an open records request show that a sole provider, Union Supply Group, Inc., of California, has held an exclusive contract since 2019 to sell goods to those in Wisconsin prisons. While state law places time limits on sole source providers, and Union Supply’s term limit expired in May 2024, the DOC sought and received a six-month extension from the governor, meaning the contract should terminate on Nov. 30. Although WJI does not know what sales total in the six-month period, the soon-to-expire contract extension is capped at $12 million in goods sold inside. Other documents obtained by WJI show that the DOC takes a 10% cut of all sales to the incarcerated. WJI obtained a list of prison canteen prices from 2020 through 2024 for all DOC facilities plus three Department of Health Services facilities. The price sheets show that while some essential goods (such as feminine hygiene products) remain stable over time, many other items have increased in price. A 10-pack of instant oatmeal cost $2.14 in 2020 but is $3.57 in 2024. Summer sausage is up 42 cents over 2020’s price, and 4.5 ounces of chicken cost $1.33 more this year. In an interview with WJI, Marshall Jones, who is serving a sentence in a DOC facility, discussed the rising prices. Jones used ramen noodles as an example. At the beginning of his incarceration in 2004, Jones could buy a packet of ramen for 11 cents, but the price has steadily climbed. Now, 20 years later, it costs 60 cents. Jones also said the food served in prison is not enough to subsist—that he’d “be in trouble” if he had to rely only on DOC meals, which he says are high in carbohydrates and deficient in nutrients and protein. A meal can be as simple as two pieces of toast, six ounces of hot or cold cereal, and milk, Jones said. DOC provides less than the bare essentials, Jones said. Everyone gets three meals, tissues, state-issued clothing, tennis shoes, bedding, a tiny bar of soap, and a tiny tube of toothpaste, plus a single stamped envelope every two weeks. Everything else is on the incarcerated person’s dime, including laundry and detergent. DOC recently implemented a laundry service, which Jones pays for with a laundry card that costs $2.50 for five washes. Extra expenses are not limited to supplemental food. A single naproxen (generic Advil) costs 26 cents, and a single tampon is 33 cents. Pricing also suggests racial bias. Makeup is available for purchase, but 1 ounce of Cover Girl foundation in “ivory” is $6.65, while 1 ounce in “deep chocolate” is $8.33. With individuals paying for everything from their own laundry to supplemental food, seemingly small increases in prices can make a huge difference in the quality of their already austere life. Yet, while prices are up, wages are down. Hourly rates are measured in cents, not dollars, and 20 years of stagnated wages, together with price increases, cause significant harm. Since Jones’ sentence began in 2004, the number of high paying jobs has decreased through reclassification. The highest paying jobs have often been reclassified as lower paying ones. Jobs are rated on a tiered system, Jones said. People who are “unassigned,” meaning they do not work or go to school, get a universal basic income of $0.05 per hour, per work day. Someone working on a degree is paid $0.12 per hour. Rates increase up to Tier 5, which pays $0.42 an hour. Tier 5 jobs generally require extra security clearance and might be more public facing. DOC has full discretion over rates of pay for work within its institutions, while the Bureau of Correctional Enterprises controls pay for those employed by the Prison Industries Board. Jones reports that BCE jobs can pay up to a dollar an hour, but the positions are few and far between (consistent with BCE’s annual reporting reviewed by WJI). In 2023, BCE employed only 384 workers, while the total prison population surpassed 22,000 individuals. On its website, BCE says its mission “is to enhance public safety by providing jobs and training to help persons in our care develop marketable skills and gain work experience in financially viable businesses.” However, one of its most prevalent programs provides manual labor in agriculture. BCE runs a dairy and three farms with more than 2,000 acres of land. BCE employees can be paid incentives in addition to hourly wages, but incentives “may not be set at a rate that would cause a deficit on operations,” according to analysis by the Legislative Reference Bureau. Notably, per the BCE’s 2023 annual report, the organization made $34.6 million in sales while paying only $684,870 in wages for 677,148 hours worked by the incarcerated. Jones has been incarcerated for more than 21 years. In that time, he has held all manner of jobs, including those in the top tier. “It used to be that a guy could survive off a wage,” Jones said. “Not anymore, a person can’t manage unless they have outside support.” Two factors drive this change, Jones said, with the first being those rising prices and the second being deductions by the institution for fines and fees, which are given priority for payment. Deductions for those can total as much as 60% of an individual’s earnings if they still owe court costs and restitution. Then there’s a set-aside for the release account. A release account is the money DOC deducts and holds for the incarcerated person to use upon release. Individuals must contribute to this account until it maxes out at $5,500. Jones completed his restitution payments in 2017, but 10% still comes off the top of his check for his release account. He told WJI that he’s almost set aside the full release account amount—but he questions why, as he’s serving a life sentence.
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"Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Milton L. Childs
Appointed to: Milwaukee County Circuit Court Appointment date: Oct. 29, 2019 (elected 2020 to term ending Aug. 1, 2026) Education: Law School – Marquette University, Milwaukee, Wisconsin Master of Business Administration – Keller Graduate School of Management, Milwaukee, Wisconsin Undergraduate – Xavier University of LA, New Orleans, Louisiana High School – Milwaukee Trade and Technical High, Milwaukee, Wisconsin Recent legal employment: July 2009-present – Attorney manager, Wisconsin State Public Defender, Wauwatosa, Wisconsin February 2007-July 2009 – Assistant state public defender, Wisconsin State Public Defender, Racine, Wisconsin June 2006-February 2007 – Attorney, Childs Law Office, Glendale, Wisconsin September 2004-June 2006 – Assistant state public defender, Wisconsin State Public Defender, Sheboygan, Wisconsin Military service: 1984-1992 – Department of the Navy, Branch - United States Marine Corps. Highest Rank - E-5/Sergeant, Discharge - Honorable Bar and administrative memberships: State Bar of Wisconsin U.S. District Court for the Eastern District of Wisconsin General character of practice: I am currently an Attorney Manager for the WI Public Defender in the Milwaukee Juvenile and Mental Health. My practice is broken into 4 areas. 1. I represent juveniles and adults under Chapter 51, involuntary commitments. This includes individuals on initial commitments, extensions and redetentions. 2. I represent adults under Chapter 54/55 - guardianships and protective placements. 3. I represent adults on termination of parental rights cases. 4. I manage the mental health team - other staff attorneys and private bar attorneys that represent our Chapter 51, Chapter 54/55 and TPR clients. Also as manager, I attend meetings within the judicial system and within the community and I am a resource for other attorneys across the state in the area of mental health. Describe typical clients: 1. Many of my Chapter 51 clients are individuals that had been living pretty normal lives in the community, but for some reason stopped taking their medication or maybe they were never on meds, but their illness has reached a point that they need assistance. 2. My typical Chapter 54/55 client is an aging adult that is going through dementia or a degenerative brain disorder. They are at a point where they can no longer care for themself. 3. My typical TPR parent is a young female in her 20s or 30s, with some AODA issues, a victim of domestic violence and struggling with poverty. Many do not have the support system in place that so many other parents have. Number of cases tried to verdict: Jury: 70+, Court: 80+, Administrative: 40+ 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: In 2010 I was introduced to a 14 year old boy that was being charged with 2 counts of 1st degree sexual assault of a child and 1 count of exposing genitals. He was one of the first of many clients that I would begin to represent that was from a failed adoption. His adopted parents no longer wanted him, so he had no family or support. His birth mother was not able to care for him at that time. He would spend the next three years in the juvenile justice system, bouncing around from several residential treatment centers and finally ending up in Lincoln Hills. He did not pick up any additional charges during the next three years. He completed his sex offender treatment, but the facilitators felt that he was not putting as much into his lessons as they felt he could have. In October 2013, two months before his 18th birthday, we had a hearing requesting that the court permanently stay his sex registration. ADA Amanda Kirklewski was requesting that he register, but was leaving the amount of time up to the court. I was requesting a permanent stay. Judge Rebecca Bradley ordered lifetime registration taking into consideration some of the following: the ages of the victims, where the incidents took place (in church) and the probability that he would reoffend. This was the first lifetime registration that anyone in our office could remember being ordered. He was released from Lincoln Hills on his 18th birthday, December 30, 2013 and dropped off at the Milwaukee Rescue Mission in downtown Milwaukee. This case continues to remind me of the importance of the work that I do with juveniles and how decisions that so many juveniles make at a young age can affect them the rest of their life. In 2013 - 2015, I had an opportunity to represent a deaf TPR father. The case was scheduled in front of Judge Mark Sanders. The ADA was Elisabeth Mueller and the GAL was Deanna Weiss. This case educated all of the legal parties about the deaf community and the proper use of interpreters in the court system. I was also able to confront many of my biases and my ignorance about members of the deaf community. After completing this case, I have had the opportunity to work with several organizations within the deaf community and participate in the Legal interpreter Training Institute as they train and prepare new interpreters. Experience in adversary proceedings before administrative bodies: 1. When I was in private practice, I appeared before several administrative judges representing individuals in unemployment compensation hearings and parole/probation revocation hearings. 2. As an Assistant State Public Defender, I have represented individuals in parole/probation revocation hearings. Describe your non-litigation experience (e.g., arbitration, mediation). 2015 - 2017 - Equal Employment Opportunity & Affirmative Action Officer for the WI State Public Defender - The position involved investigating, mediating and resolving employment and discrimination complaints Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None Previous runs for public office: [None listed] All judicial or non-partisan candidates endorsed in the last ten years: Joseph Donald, Wisconsin State Supreme Court, 2015 Paul Rifelj, Milwaukee County Circuit Court Judge, 2016 Danielle Shelton, Milwaukee County Circuit Court Judge, 2018 Rebecca Kiefer, Milwaukee County Circuit Court Judge, 2018 Professional or civic and charitable organizations: Tabernacle Community Baptist Church, music director, current WI Association of African American Lawyers, past board of director member, current National Association of Criminal Defense Lawyers, current State Bar of Wisconsin, Board of Governors, Diversity /Inclusion Oversight Committee, 2015-2017 Civic Music Association of Milwaukee, board member, 2015 WIAA Basketball official, current (over 20 years) American Legion, Post 455, current (over 20 years) Significant pro bono legal work or volunteer service: No significant pro bono legal work or volunteer service. Quotes: Why I want to be a judge: Becoming a judge was not one of my goals in life when I was younger. There are times I still do not believe that I am a lawyer. I dreamed of giving back to my community by either creating a business or becoming a teacher. I became a teacher. I had the opportunity to teach for a number of years and I really enjoyed it. My students were the ones that encouraged me to become a lawyer. They would share with me their challenges at home, in their community and in the courtroom. I became an advocate for them; providing support, even coming to court on a few occasions to speak on their behalf. I begin to read law books, cases and the State statutes. I then decided to go to law school to get a better understanding of the law, with the goal of becoming a true legal advocate for the community. My goal was to learn as much as I could and then to share my education with the community. My reason for wanting to serve the people of Wisconsin as a judge is similar; to educate and serve my community. As a judge, I would remain involved in Milwaukee County; educating people of the laws, the changes that are occurring in the laws, make them aware of their rights and encourage them to participate in all areas of the political process. I would work with entities, across the county, and listen to their concerns, issues and recommendations to improve the judicial system. Additionally, I would work hard to reconnect the judicial system and the community. There is a strong disconnect and distrust, all across the county. This divide appears to be continuing to grow. Many citizens throughout the county feel that they have no voice; they feel isolated and ignored. Many citizens are looking for those on the bench for leadership. I have had the opportunity to appear in front of some great judges across the State. These judges were not afraid to apply the law properly. They were not afraid to hold people accountable, but still show respect to all of the litigants involved. These judges visit schools, senior citizen centers, churches and other place to hear from their constituents; and not just during election time. My goal would be to do the same. I am very concerned that many of the judges in Milwaukee County are disconnected with the people that come in front of them - in all areas of the law. 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. I believe that the Wisconsin Supreme Court Case, In the Interest of Jerrell C.J., 2004 WI App 9, 269 Wis.2d 442, has had a significant positive impact on the people of Wisconsin. Prior to this case being decided, law enforcement jurisdictions across the State were inconsistent in juvenile interrogations. Most did not record interrogations. Additionally, many of the parents of my juvenile clients would be shocked (and still are) when I would tell them that the police does not have to contact them or allow them to be in the room when they interrogate their child. Requiring police to electronically record all juvenile interrogations provided some protections to juveniles. The decision also explained the benefits from recording juvenile interrogations: (1) it will provide courts with a more accurate and reliable record of the juvenile's interrogation, (2) it will reduce the number of disputes over Miranda and voluntariness issues for juveniles, (3) it will protect the individual interest of police officers wrongfully accused of improper tactics, (4) it will enhance law enforcement interrogations of juveniles, and (5) it will protect the rights of the accused. Two or three judges whom I admire and why: One judge that I admire is Judge James Bolgert in Sheboygan County. A few months after graduating from law school, obtained a position in the Sheboygan County Public Defender's Office. I was advised how conservative the judges were in Sheboygan, except for Judge Bolgert. I was also advised that he was not afraid of going below the prosecutor's recommendation (and even at times going below the defense attorney's recommendation). However, my respect and admiration for him was for the way he treated the defendants. He would allow the defendants an opportunity to tell their story and explain how they ended up in the situation that they were in. He gave first time offenders the benefit of the doubt, but would be a little harsher on probation violators. During sentencing, he took into consideration the person's history, or lack of history, their support system, their mental health or AODA, as well as other factors. As a new attorney, he was patient with me. He understood the caseload of public defenders, so he would allow public defenders to appear at 8:30, before private attorneys. This helped me to create a good habit of getting to court early. He also had a month orange book club. He would meet with attorneys from across the county once a month during the lunch hour to review new cases that came out. This was also helpful to meet in staying current with new case law. The second judge that I admire is Judge John DiMotto in Milwaukee County. A number of years ago Judge DiMotto rotated to the TPR calendar at Children Court. He had a reputation of knowing the law extremely well and he expected attorneys that appeared before him to know the law and be prepared. He did not disappoint me. I learned so much in the area of civil law in those two years. He was approachable. The proper role of a judge: The proper role of a judge is to interpret the law and be an impartial decision maker. Judges must be fair and treat all parties equal, removing any bias. They must be firm, but humble. They must be able to communicate effectively, but with the right temperament  By Alexandria Staubach Milwaukee County’s 2025 budget shows how recent state legislation helped improve revenue, but analysis shows that spending is increasing even more. Last week, Milwaukee County unanimously adopted its 2025 budget. With reserves shored up by new taxes, the budget seems positive. Recent state legislation known as Act 12 permitted the county to raise Milwaukee County’s sales tax from 0.5% to 0.9% in 2024. However, the Wisconsin Policy Forum’s annual review warns that “the fiscal stability produced by Act 12 is likely to be short lived.” Budget gains anticipated from the tax for 2024 fell short of projections and are quickly gobbled up by required spending on law enforcement. In the 2025 budget, $161.1 million will be spent on public safety alone. According to the Forum’s review, year-over-year increases in costs demonstrate “if these trends continue—that public safety expenditure pressures will consume much of the annual revenue growth promised by Act 12, or all of it in years like 2025 when sales tax growth is modest.” The Forum warns that “unless new strategies are developed to control annual cost increases in the public safety function, the future impact of Act 12 in helping resolve the county’s structural deficit may be eclipsed.” Among the biggest beneficiaries of 2025’s budget is the Milwaukee County Sheriff’s Office, which according to the Forum’s review will receive “the largest percentage increase of any functional area in the budget besides non-departmental expenses.” A new $5 million have been allocated to the sheriff’s department, bringing its 2025 budget to $64.7 million. According to the Forum, that’s a 42.2% increase over 2021. The sheriff’s office funding will cover nine new bailiff positions plus $800,000 for salary and benefit increases under a new labor agreement with the Milwaukee Deputy Sheriffs' Association. Another $2.1 million are allocated for overtime expenses, as the department continues to struggle with staffing shortages. The Community Reintegration Center will see a boost to its budget, from $60.2 million in 2024 to $65.5 million in 2025. Here, too, $1 million has been allocated for overtime, as the center also struggles with staffing shortages, which reached 36% in 2022. $4.1 million is attributed to rising healthcare and food-service contract costs. The budget adds $2.7 million to the court system, some of which will fund eight new full-time positions in children’s court. A separate $1.7 million is allocated to pay attorneys taking cases that would otherwise be eligible for service from the State Public Defender’s Office, but for which that office has a conflict. Operating costs and costs allocated to acquiring or maintaining land, buildings, and equipment also foreshadow significant expenses moving forward. According to the review, the 2024 budget allocated $9.4 million dollars to start a much-needed project to replace the county’s decaying Safety Building. The 2025 budget includes another $6 million directed at planning and design of the new courthouse building, plus an authorization to transfer an additional $5 million if necessary. Another $23.7 million is anticipated for the same project in 2026, all before a shovel hits the ground. “Future short comings will be exacerbated by much needed but unprecedented spending to build a new criminal courthouse” in the coming years, the Forum review said.
The SCOW docket: Police extended a traffic stop beyond the time allowed for caretaker concerns11/18/2024 Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed headings, citations, and footnotes from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.  Hagedorn The case: State of Wisconsin v. Michael Gene Wiskowski Majority: Justice Brian Hagedorn (16 pages), joined by Justices Ann Walsh Bradley, Rebecca Grassl Bradley, Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz Concurrence: Hagedorn (24 pages), joined in part by Grassl Bradley and Protasiewicz Concurrence: Protasiewicz (8 pages), joined by Walsh Bradley Dissent: Chief Justice Annette Ziegler (14 pages) The upshot We conclude that Officer Simon's seizure of Wiskowski violated Wiskowski's rights under the Fourth Amendment. Officer Simon did not possess reasonable suspicion to conduct the stop. And even assuming Officer Simon initially engaged in bona fide community caretaker activity when he stopped Wiskowski, he unlawfully prolonged the stop and began an investigation without reasonable suspicion. We therefore reverse the court of appeals decision and remand to the circuit court with instructions to vacate the judgment of conviction and grant the motion to suppress. The facts Michael Wiskowski fell asleep (at 1:00 p.m.) in a McDonald's drive-thru lane behind the wheel of his truck. An employee knocked on his window to wake him up and called the police. Officer Devin Simon was about a minute away when he received a call from dispatch regarding the incident. He headed to the scene and watched a truck matching dispatch's description pull out of the drive-thru and make a proper turn. Officer Simon then pulled Wiskowski over. Wiskowski explained that he was tired because he had just finished a 24-hour shift. Although Officer Simon did not notice any signs of impairment or criminality, he felt something was off, and prolonged the stop to determine whether he had grounds to investigate further. Officer Simon ultimately ordered Wiskowski out of his truck, at which point Wiskowski manifested signs of intoxication, leading to an arrest and charges. Wiskowski moved to suppress the evidence discovered during the stop. The circuit court denied the motion, concluding that the stop and further investigation were justified as a permissible "community caretaking function." The court of appeals agreed .... *** Wiskowski eventually pled no contest to one count of operating a motor vehicle under the influence as a fourth offense. He appealed the judgement of conviction, arguing that the circuit court erred in denying his motion to suppress. The court of appeals affirmed on the same community caretaking grounds. Wiskowski then petitioned this court for review. Wiskowski argued to the Wisconsin Supreme Court that the traffic stop was unlawful under the Fourth Amendment, which prohibits unreasonable searches and seizures. The state argued two grounds in response: that the stop was a permissible investigatory stop supported by reasonable suspicion and that the stop consisted of permissible community caretaker activity. The state had not raised the reasonable suspicion argument in the court of appeals. The guts One type of intrusion deemed reasonable under the Fourth Amendment is an investigatory stop. This temporary infringement on personal liberty must be supported by reasonable suspicion—that is, in view of the whole picture, whether a reasonable police officer would reasonably suspect that criminal activity is afoot. While reasonable suspicion doesn't demand much, it does demand more than a hunch. And that is all we see here. It is true that falling asleep in a drive-thru during the day could be a sign someone is impaired. It is also black-letter law that officers need not rule out the possibility of innocent behavior to initiate a traffic stop. But by itself, without any additional indicators of impairment, we conclude this is too speculative to amount to reasonable suspicion. By the time Officer Simon arrived, Wiskowski was driving normally out of the drive-thru and onto the road. Officer Simon did not observe nor were there any reports of erratic driving. Wiskowski did not commit any traffic violations, and there were no other clues suggesting he was operating his vehicle while intoxicated. Other than falling asleep, no one reported any other kind of problematic behavior or indications of impairment during his visit to McDonald's. Midday drowsiness standing alone, without any other indicators of impairment, is simply not enough. Reasonable suspicion may be a low bar, but it's not that low. The State's contention that Officer Simon's traffic stop was supported by reasonable suspicion fails. The State also argues that Officer Simon's seizure of Wiskowski during the traffic stop was justified as a permissible community caretaker activity. The line of community caretaker cases is rooted in the recognition that law enforcement work is multifaceted. Officers wear multiple hats. Sometimes they are acting to enforce the law by investigating and stopping illegal activity. Other times they act to protect property or help "a member of the public who is in need of assistance." This is what we have called the community caretaking function. These diverse strains of law enforcement action sometimes blend together. An officer might aid someone in need and at the same time have a hunch something illegal occurred or observe evidence that gives rise to a criminal investigation. Yet when analyzing the permissibility of a seizure in the community caretaking context, we have emphasized that officers act as community caretakers when, viewed objectively, they engage in activities "totally divorced from the detection, investigation, or acquisition of evidence" of a crime. Hagedorn then discussed United States Supreme Court caselaw that created a three-step analysis. The first step, that a seizure occurred, was undisputed. Step two asks as an initial matter whether the officer was engaging in a bona fide community caretaking function. This means we examine whether this was an objective effort to assist a member of the public in need that was "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Even if the answer is yes, however, that is not enough on its own to determine whether the seizure was lawful. The third step goes further. Tracking the Fourth Amendment's command, courts must balance the various interests to determine whether the exercise of that community caretaking activity was reasonable. We ultimately determine that, assuming without deciding Officer Simon had a bona fide community caretaking justification when he stopped Wiskowski, the continuation of the stop was unreasonable under the facts of this case. So we focus our analysis there. *** In this case, key to our analysis is whether and when it is reasonable to extend a seizure undertaken for community caretaking purposes once an officer resolves the reason for the stop. The general rule across jurisdictions—and we agree—is that a seizure should not be extended beyond its initial justification absent some other justification that emerges, like reasonable suspicion. *** Applying (United States Supreme Court) principles to this case, we conclude that even if the original stop was a bona fide community caretaking activity, Officer Simon unreasonably extended the stop beyond its original justification. Officer Simon initially stopped Wiskowski to perform a welfare check and ensure he was safe to drive. But after their first conversation, nothing reinforced continued concern on that basis. In Officer Simon's telling, Wiskowski was "acting normal." Officer Simon asked Wiskowski about falling asleep in the drive-thru and received a reasonable explanation. Wiskowski did not show signs of sleepiness during their interaction. And Officer Simon did not see signs of a medical emergency. At that point, the public interest or exigency that may have existed was resolved; Officer Simon had no community caretaking justification to prolong the stop. Yet Officer Simon did prolong the stop. He held Wiskowski there as he endeavored to determine whether he had enough to justify a criminal investigation. Wiskowski was clearly not free to leave, despite the welfare-based justification for the initial stop failing to reveal further concern. Under the facts of this case, Wiskowski was in no additional need of assistance. This means Officer Simon had no community caretaking justification to extend the stop, and should have allowed Wiskowski to leave. It is true that when the community caretaking concern dissipated, Officer Simon could have continued Wiskowski's detainment if facts emerged during their initial conversation that gave rise to reasonable suspicion. Indeed, Officer Simon's focus turned to criminal investigation as he probed for a reason to pull Wiskowski out of his car. But Officer Simon did not smell alcohol on Wiskowski and did not observe any other evidence of possible impairment. Having nothing more than a thought that "something was kind of going on that maybe [he] wasn't seeing in the car"—i.e., a "hunch"—Officer Simon detained Wiskowski well beyond the stop's justification. If Officer Simon, armed solely with a report that a driver fell asleep in a drive-thru, did not have reasonable suspicion when he stopped Wiskowski, reasonable suspicion certainly did not materialize following an initial encounter revealing no new evidence of impaired driving.  Hagedorn concurrence Hagedorn first discussed the rules regarding raising arguments not raised in the appeals court, then turned to the community caretaker doctrine. Our cases addressing this doctrine do not derive from an independent analysis of the Wisconsin Constitution's text or history. Rather, we rely on United States Supreme Court precedent. To that end, our cases point back to a United States Supreme Court case, Cady v. Dombrowski, as the origin of this doctrine. Just a few terms ago, however, the Supreme Court held that the Fourth Amendment does not grant officers a broad community caretaking license to search homes. The Court further cast at least some doubt about whether the community caretaker doctrine is a standalone category through which police conduct should be analyzed. If that's true, the doctrines our cases use to address this kind of law enforcement action may be due for a reassessment. My aim in this writing is to start the conversation by briefly telling the story of how the community caretaker doctrine came to be, surveying where it stands now, and raising questions that this and other courts may need to address in future cases. *** Our cases—and those in other states—paint a clear picture. After four decades, the community caretaker functions of police recognized in Cady expanded from its original application to automobile inventory searches into a broad doctrine. Courts utilized this framework to permit all kinds of noncriminal searches and seizures, both on the road and in the home. These doctrinal developments marched forward in the lower courts with little to no direction from the United States Supreme Court. That changed in 2021. *** In a brief, unanimous opinion (in the Caniglia v. Strom case), the Court reiterated that officers are sometimes permitted to enter the home and its curtilage without a warrant, such as when rendering emergency aid. The First Circuit's community caretaking rule, however, went beyond anything the Court had recognized. Cady involved the search of an impounded vehicle, not a home. And the Cady court "expressly contrasted its treatment of a vehicle already under police control with a search of a car 'parked adjacent to the dwelling place of the owner.'" This distinction between vehicles and homes placed Cady's use of the phrase "community caretaking" into its proper context. The Court had used the phrase to explain why frequent traffic accidents and disabled vehicles often require the police to perform noncriminal "community caretaking functions," such as aiding motorists. This recognition that officers perform a variety of noncriminal tasks as part of their duties was exactly that—"a recognition that these tasks exist, and not an open-ended license to perform them anywhere." ... *** So where does that leave us now? First, Caniglia appears to mean that Wisconsin cases permitting home entries under community caretaking are no longer good law—at least insofar as they rely on community caretaking to justify the intrusion. It remains to be seen whether other doctrines might lead to the same outcome. More generally, Caniglia also suggests that the Supreme Court is uncomfortable with community caretaking as a broad category authorizing warrantless searches and seizures. However, it seems equally clear that the Court is not abandoning the proposition that some searches and seizures by law enforcement conducted to aid citizens, protect property, and ensure safety are permissible under the Fourth Amendment. Therefore, we may soon need to address whether to formally abandon community caretaking as a separate, freestanding doctrine through which warrantless searches and seizures should be evaluated. If we do so, courts may need to wrestle with whether functions we might now categorize as "community caretaking" may be better understood or evaluated under other doctrines, such as emergency aid or exigent circumstances . . . . In addition, it's possible some of the more expansive understandings of community caretaking in Wisconsin and elsewhere may need to be circumscribed. This is especially true where the need for the search or seizure is less urgent or could be accomplished through other means. Given this newfound uncertainty, both this court and the court of appeals must work to ensure our decisions have a firm foundation in United States Supreme Court precedent. While this case does not ask us to resolve these questions, I write here to highlight them so the discussion can begin.  Protasiewicz Protasiewicz concurrence I concur with the majority opinion. I write separately to address confusion in the law regarding a respondent's ability to argue alternative grounds for affirming the court of appeals in its response brief. The State seems confused because it erroneously cited (one section of a rule) regarding petitions for cross-review to justify waiting until its response brief to argue reasonable suspicion. And this court has sown confusion by, in some cases, ignoring (a second section of the rule) and improperly holding respondents to rules that govern only petitioners. The court should clarify the law on these matters. Protasiewicz then discussed the text of the rule provisions. While the rules governing a respondent’s presentation of issues for this court’s review seem clear enough, the court and the State in this case have stumbled over them. *** Discussion of caselaw regarding the rules and two cases in particular that Protasiewicz said merit clarification by the Supreme Court. . . . I agree with the State that a response brief may raise alternative grounds for sustaining the court of appeals result. The State may do so even if the alternative ground was not raised in the lower courts. Like it or not, that is "well-established law in Wisconsin." But the respondent proceeds at its own risk. This court is not required to address arguments presented for the first time in a respondent's brief.  Ziegler The dissent
Wiskowski was arrested and charged with operating a motor vehicle under the influence of an intoxicant and with a prohibited alcohol concentration that was nearly 10 times over his legal limit. In the middle of the day, Wiskowski placed his order at a McDonald's drive-through and then did not appear at the window to pick it up. He evidently fell asleep at some point between ordering and the pick-up window. Understandably, the McDonald's employee who found him slumped over the steering wheel was concerned and called the police. Law enforcement responded within a minute or so and ultimately determined that Wiskowski, who had been convicted three prior times for drunk driving, was again drunk driving. Well over his legal limit, he was charged a fourth time. The entirety of the interaction with law enforcement at this traffic stop was just over eight minutes. Most likely, the average traffic stop is longer than this eight minute inquiry. But the majority concludes that the evidence against Wiskowski must be suppressed because the officer inquired a bit too long. Apparently, after Wiskowski explained that he fell asleep because he was tired, the police were no longer community caretakers and had to let him drive on. The majority does not say how long is too long, but they know it when they see it. The majority opinion addresses traditional community caretaker and extension of stop principles. The majority opinion also opines that the officer could not have had reasonable suspicion to believe Wiskowski was drunk driving. Under the totality of the circumstances, the officer's conduct was reasonable. I dissent, because, among other things, this case does not develop the law and is at most error correction. Our court should not accept review merely to correct error. *** The majority opinion does not engage in law development. It restates established principles to a fact specific situation. The current law is (1) that officers can engage in community caretaking; (2) that a traffic stop cannot be unnecessarily extended; and that an officer must have reasonable suspicion to stop a vehicle. The majority applies well-established law to the specific facts of this case. While the United States Supreme Court recently considered the community caretaker warrant exception in Caniglia, the majority does not rest its opinion on that case. Notably, the majority does not adopt that analysis, nor does it in any way alter the community caretaker exception to the warrant requirement. Perhaps it does not because the facts of Caniglia, which involved entry into a home, differ from those here—a vehicle stop. Indeed, while Caniglia may have further refined the community caretaker doctrine and some of my colleagues may wish to further consider the community caretaker doctrine in Wisconsin, the majority opinion merely applies previously accepted doctrine regarding an extended stop. *** Under the facts of this case, law enforcement responded to a named informant's call about a driver asleep behind the wheel of his vehicle, in a McDonald's drive-through, in the middle of the day. Law enforcement arrived shortly thereafter on scene and observed a vehicle matching the named informant's description, exiting the drive-through. The driver, who according to the named informant had been sleeping a moment prior, was now operating his vehicle out of the parking lot and back into traffic. Law enforcement was not required to "rule out the possibility of innocent behavior" or make "other innocent inferences" to explain this unusual behavior. Rather, the officer based his decision to initiate a traffic stop on the "totality of the circumstances" present at the time. Reasonable suspicion demands no more. The majority seems to make much of the fact that the officer testified that he did not initially smell the odor of intoxicants and somehow the stop lasted a bit too long. The majority rests its community caretaker conclusion on the officer asking and requiring too much of Wiskowski in his exchange with him, extending the stop beyond what is necessary for the community caretaker function. The majority sheds little light on what rule law enforcement should follow in the future other than the Wiskowski stop was a bit too long. In other words, this case is very fact-dependent. If the officer testified that he stopped the vehicle for a traffic violation, such as Wiskowski not using a turn signal, the majority analysis would likely be different. Officers also can base a vehicular stop upon a call from an informant, whether unknown, or as in this case, known. If just a bit earlier in this stop the officer smelled intoxicants or witnessed slurred speech or stumbling, the majority likely would not reach the same conclusion. Here, the majority says, this information came to the officer too late even though it was within minutes. The majority essentially manufactures a two-part stop out of what is one continuous inquiry. This officer did not unreasonably extend this stop. The officer's observations occurred within a fairly short time period and his inquiry was reasonable under the circumstances. After all, the touchstone of the Fourth Amendment is reasonableness. *** The circumstances surrounding the stop do not demonstrate that the officer used a high degree of overt authority or force, nor was there an extensive intrusion into a private space. In fact, the average speeding or traffic stop would likely take about the same amount of time—perhaps more. In short, the officer had reasonable suspicion to stop Wiskowski, the officer was acting as a bona fide community caretaker, and the traffic stop was not unreasonably extended. Unfortunately, our court's review of this fact-specific case fails to provide a clear rule for law enforcement. No law is developed. Long established law about reasonable suspicion is misapplied, even though its application to the case at issue should militate against suppression of the evidence. Under the totality of the circumstances, the officer's conduct was reasonable. By Alexandria Staubach In Milwaukee, the numbers of vehicle pursuits by police and resulting collisions are up, but only 48% of police chases result in apprehension of a subject. The numbers come from last week’s findings by the Milwaukee Fire and Police Commission’s Audit Unit, released at a presentation to the commission on Nov. 7, following the unit’s first-ever examination of vehicle pursuits by the Milwaukee Police Department. The study showed that nearly 80% of all vehicle pursuits occur in response to reckless driving. Recommendations from the audit suggest that the MPD internal affairs department is failing to timely address and review the appropriateness of vehicle pursuits and that a “Vehicle Pursuit Committee,” similar to the MPD’s Use of Force Committee, be created. The study found vehicle pursuits to be inherently dangerous, characterized by the U.S. Department of Justice as “possibly the most dangerous of all ordinary police activities.” Nevertheless, the audit found that nearly 99% of vehicle pursuits were justified. In conjunction with the audit, the Fire and Police Commission also released its annual report on police pursuits. The audit sampled and analyzed some of the report's 1,081 instances—a record high—of MPD vehicle pursuits in 2023. Thirty percent of all pursuits in 2023 resulted in a crash, and in at least once instance police clocked speeds of 117 miles per hour. Commissioner Ruben Burgos noted that while most officers who engaged in vehicle pursuits initiated just one chase, “there are 21 officers with more than 15 pursuits.”  Slide presented to commissioners at the Nov. 7 meeting, showing number of vehicle pursuits per police driver. While the percentage of crashes has somewhat decreased over time, the volume of police pursuits resulting in crashes has increased dramatically since 2017.  Table from the 2023 Milwaukee Fire and Police Commission's vehicle pursuit report. Police pursuits are governed by MPD’s Standard Operating Procedure 660. Public outcry over police pursuits that resulted in injury and crashes in 2010 resulted in a restricted version of the SOP that reduced an officer’s authority to engage in police pursuits. That policy culminated in an all-time low for pursuits in 2012 of just 50 instances, per the annual report. In 2017, though, MPD expanded officers’ ability to pursue vehicles in response to reckless driving. That policy remains in effect today. While the current SOP technically lists just five circumstances under which officers can initiate a pursuit, it also includes the following caveat: “Members may initiate a vehicle pursuit for either (1) reckless driving observed by the member prior to the initiation of a traffic stop or (2) if the suspect vehicles flees while driving in a reckless manner after an attempted traffic stop for any state law or ordinance violation.” Earlier this summer, the policy was reined in to prevent chases where the suspected crime was drug dealing. “I guess we can see the data changing over time, and some of it is related to the terms of the pursuit policy, but a lot of it is also related to what is happening on the street,” said Commissioner Miriam Horwitz. The Legislature recently enacted harsher penalties for reckless driving. Last month, Milwaukee City Attorney Evan Goyke announced enhanced civil penalties for reckless driving.  Photograph of George Heriot De Reef from a report of the Semi-Centennial Celebration of Negro-Freedom, courtesy of the Wisconsin Black Historical Society. By Amy Rabideau Silvers For a man who made headlines in his day, George Heriot De Reef remains a somewhat elusive figure. News items and scholarly mentions provide clues to who he was and what was important to him, not unlike piecing together an incomplete puzzle. De Reef was an attorney, one of the few African American lawyers to practice law in Wisconsin early in the 20th century. He was involved in a host of civic organizations, including serving as president of the Milwaukee chapter of the National Organization for the Advanced of Colored People. And he steadfastly challenged institutional practices—from civil service to jury service—that he believed did not treat citizens in an equal way under the law. The news articles, in keeping with the times, inevitably identified De Reef by race. George De Reef, colored attorney, yesterday became the first of his race ever to seek a judicial post in Milwaukee County …. The problem of appointing a probation officer to work among negroes is not settled to the satisfaction of George De Reef, negro attorney …. Charles Mullineaux, negro, whose trial on the charge of murdering William Jackson, negro, started Tuesday in municipal court, changed his plea of not guilty on advice of his attorney, George De Reef, negro, and pleaded guilty to fourth degree manslaughter. The attorney’s name was spelled in assorted ways, but for the purposes of this article, we’ll (mostly, except in quoted material) use the spelling on his tombstone at Forest Home Cemetery in Milwaukee. Noteworthy chapters included his challenge to the status quo on jury service. De Reef contended that Black residents should be eligible to serve in Milwaukee County courtrooms, and the barrier officially fell in 1919. “Black residents began serving on juries in the county after Milwaukee attorney George DeReef documented that no Black residents had been chosen out of more than 3,000 jurors in the past decade,” according to a timeline compiled by the City of Milwaukee’s Office of Equity and Justice. (It notes that in 1921 Wisconsin passed legislation to allow women of all races to serve on juries. That followed the 1920 passage of the Nineteenth Amendment to the U.S. Constitution, giving women the right to vote.) “Shall We Be Jim Crowed?” De Reef was also involved in a legal battle on a Milwaukee County civil service position for a Black probation officer to supervise offenders in the Black community. “The problem of appointing a probation officer to work among negroes is not settled to the satisfaction of George De Reef, negro attorney, who filed an amended complaint in circuit court Thursday in his suit to prevent the county civil service commission from creating such a special position for negroes only,” reported The Milwaukee Journal in 1930. The problem, De Reef explained in assorted news accounts, was that such a position would be a step toward segregation and establish a “vicious precedent” for other exclusions.
Photographs of Aug. 14, 1930, clippings from (L) The Milwaukee Journal and (R) the Milwaukee Sentinel. Photographs by Amy Rabideau Silvers. “We don’t want this resolution to pass the county board because it is unconstitutional and, if it is not, we don’t want it because it ought to be,” De Reef said. “I claim the board of supervisors has no more right to bar white men from this job than it has to bar black men.” One story on a community meeting noted that “negroes were called to the meeting by leaflets asking the question, ‘Shall We Be Jim Crowed?’” De Reef and another Black attorney represented J.S. Bennings, of the Wisconsin Equal Rights League, in challenging that posting as “exclusive” to Negro applicants. While a temporary injunction was in place, the Civil Service Commission changed the posting to allow white applicants as well, but did not change who the successful applicant would be supervising. Circuit Judge John J. Gregory ultimately commended the attorneys for defending the constitutional rights of their race and for their foresight in questioning what they termed “arbitrary class legislation,” but found the civil service’s plan to be constitutional. As such situations arose, not everyone in the Black community agreed with De Reef and the no-Jim Crow stance. “These institutional developments represented a northern variant of what Howard Rabinowitz has called, in the southern context, ‘from exclusion to segregation,’” wrote Joe William Trotter, Jr., in Black Milwaukee/The Making of an Industrial Proletariat 1915-1945. Rabinowitz was a professor known for his writing on segregation. “Milwaukee blacks increasingly accepted segregated services as preferable to the pattern of de facto exclusion,” Trotter continued. “As part of his active involvement in the Milwaukee NAACP, he vigorously fought manifestations of segregation in the city’s public institutions,” Trotter wrote. “In 1919, for example, he staunchly opposed the organization of a black Soldiers and Sailors Club for veterans of World War I.” Personal and family history De Reef was born in 1869 in Charleston, South Carolina, to Joseph Moulton Francis De Reef and Georgina Oldfield Heriot De Reef. Accounts, including in Trotter’s Black Milwaukee, describe him as a descendant of a prominent slave-holding family. Generations of De Reef ancestors are listed as owning slaves, part of an often mixed-race “colored” elite before the end of the Civil War. George De Reef’s obituary in 1937 gave the family history a more neutral spin, saying that he was “Born in Charleston, S.C., of a family that had been in the United States for 150 years.” The short obituary announced his death at the Milwaukee County hospital after a long illness. He was 67. De Reef first studied for the Episcopalian ministry but later went to Howard University in Washington, D.C., graduating from the law school in 1905. De Reef practiced law in Washington and served as clerk of the municipal court there. He arrived in Milwaukee in 1913, “becoming one of the first Negro lawyers to practice in Milwaukee,” according to the obituary.  Photograph of an advertisement in the Wisconsin Weekly Blade, courtesy of the Wisconsin Black Historical Society. “He eventually came to Milwaukee and put his mind to solving some of the problems of Black people,” said Clayborn Benson, founder and executive director of the Wisconsin Black Historical Society. “He practiced law throughout the state, in Madison, Racine, Oshkosh, Kenosha.” Indeed, there were few Black lawyers in Wisconsin for most of his professional life. By the 1930 U.S. Census, he was one of only three Black male lawyers in Wisconsin—A.B. Nutt and James Weston Dorsey were the others. Mabel Raimey was the only Black woman to practice law, according to an article by law professor J. Gordon Hylton of Marquette University. “It was DeReef more than any other single attorney who left his mark upon the social, economic, and political life of blacks during the period,” said Trotter in his book. “His career vividly reflects ways in which the ideology of self-help and racial solidarity overlapped with an emphasis on racial protest and integration.” Many civic roles In other professional matters, De Reef became a founding officer in the Columbia Building and Loan Association, launched by Ardie and Wilbur Halyard. The first African American financial institution in the state, it opened in 1925 to give members a place to invest their funds and acquire home and business loans, according to Black Milwaukee. De Reef served as vice president for the Community Drug Store, described as the most important retail establishment for the community, and the only store of its kind owned and operated by Blacks in the state. He was co-editor and part-owner of the Wisconsin Weekly Blade, and a member of the Milwaukee Negro Business Association. Another news account mentioned that De Reef served as chairman of the committee seeing off 79 “colored selectmen” for what would become known as World War I.  Image of clipping in the Aug. 2, 1918, Milwaukee Sentinel. Photograph by Amy Rabideau Silvers. The men left with the prayers of the community, charged with doing their part for country and race. “Play your part; acquit yourselves like men, so when the history of the world is written it may be said the American negro was ready to lay down his life for democracy,” declared the pastor, J.O. Morley. “And when you return, may you find a new America, free from mobocracy, the Jim Crowism of the past and the prejudice from which you have suffered at times.” A courthouse fight De Reef made news of a less sedate nature after another attorney apparently poached his clients, with a headline reading: “‘Case Stolen,’ Lawyer Hits/Negro Attorney Gives Client’s New Counsel a Punch.” The fight occurred in a Safety Building corridor—not a courtroom—and involved De Reef defending his right to defend his client, according to one newspaper account. “Only one blow was struck Wednesday; that being from the fist of George De Reef, negro attorney, on the nose of Harold A. Baume, who, De Reef claims, ‘stole’ his case. … “De Reef claims that Baume has been in the habit of stealing his cases. A week ago in district court De Reef said he discovered his name scratched from the record in the case of Joe Brazzell, negro charged with assault, and that of Harold A. Baume substituted. De Reef called the attention of Judge A.J. Hedding to the substitution and mentioned ‘ambulance chasing.’ “‘That isn’t ambulance chasing, George,’ the court replied. ‘That’s just plain grand larceny.’” For the record, Baume and his “injured feature” retired to the washroom. When the case was called, De Reef was the attorney of record. And yet more civic and civil activities De Reef spoke out in other venues, including as dozens of so-called vagrants were rounded up in 1923. “Negroes Not Wanted in Milwaukee, Wis.,” read the headline in The Winston County Journal in Mississippi.  News of the vagrancy case in Milwaukee in The Winston County Journal, Sept. 7, 1923, page 1. A total of 39 people were arrested during “a general cleanup … in the west side negro district staged by three squads of detectives,” the report read. “Police say more than 100 negroes a week have been coming from the South to Milwaukee.” Twelve were released, with the remaining 27 sentenced as vagrants, none represented by counsel. “We do not want men of your kind in Milwaukee,” Judge Michael Blenski said. “I am not taking exception to your race but to your actions. You are vagrants who came noth (sic) expecting to find a soft living. “I am going to give you a chance to work for the county for 90 days and at the end of this time you will have 90 minutes to get out of town. Write all your friends down in the south and tell them about it.” De Reef, identified as a member of the Milwaukee Urban League and president of the local NAACP, reportedly said that the organizations did not object to the arrest of vagrants or miscreants but hoped that Milwaukee would not class all negroes as vagrants. He was also a member of the Free Masons, Benson said. “The Masons took a leading role in helping people migrate up here to Milwaukee,” Benson said. “The Free Masons and the Masonic Temple were encouraging and supporting them in that endeavor.” Another news account reported on De Reef's appearance at a hearing before the state Assembly’s Judiciary Committee. “Charges that several automobile insurance companies forced negroes to disguise their racial identities in order to obtain policies were made … by George De Reef, representing the National Association for the Advancement of the Colored Race. “His statement was made in giving approval to the Rubin bill providing prosecution for companies refusing to sell insurance to a person because of race or color,” according to the Milwaukee Sentinel. De Reef was long active in Republican Party politics, running for the Wisconsin Assembly in 1924. He made headlines as he took out nomination papers as a candidate for the new branch No. 9 of the circuit court in 1934, but later decided to withdraw from that race. He was not elected to public office. He was appointed to head the state committee organizing the Semi-Centennial Celebration of Negro-Freedom, a national exhibition held in Chicago in 1915 in honor of 50 years of freedom following the end of the Civil War.  Image of the report of the Semi-Centennial Celebration of Negro-Freedom, courtesy of the Wisconsin Black Historical Association. “The members of both the commission and committee endeavored to secure the active co-operation of the colored race of Wisconsin in producing appropriate exhibitions and demonstrations that were typical of negro talent and genius in their different industrial, economic and professional pursuits in this state,” read a report on the event. The Wisconsin delegation included 100 children from St. Benedict the Moor School, which taught Black children. Wisconsin’s Black population then totaled 2,900 people, according to the report. And there is yet one more piece of evidence on what kind of man De Reef was. His name appears in a newspaper advertisement decrying the Wisconsin congressman who did not vote for a national anti-lynching bill in 1922.  Photograph of an NAACP Advocate publication in 1922, courtesy of the Wisconsin Black Historical Society. “That took a lot of courage to call out a congressman who did not support the anti-lynching bill in Washington, D.C.,” said Benson. “The KKK was very active in Wisconsin—Madison, Fond du Lac, Appleton—in the 1920s to 1935, 1940, holding parades and gatherings out in the open. “He is an important man. Period,” Benson said. “He took on issues and he was everywhere.”  De Reef's grave in Forest Home Cemetery in Milwaukee on Oct. 12, 2024, after WJI Executive Director Margo Kirchner uncovered it and cleared away the grass and dirt.  This project is supported by grants from   By Alexandria Staubach The Wisconsin Court of Appeals recently clarified that a defendant’s dangerousness is not a permissible basis for involuntary medication to return the person to competency. Any request for involuntary medication based on a person's danger to self or others must occur under commitment statutes and proceedings. An order for involuntary medication to restore a person to competency for court proceedings must instead satisfy the “Sell factors,” named after a U.S. Supreme Court case. The state must show that (1) the state has an important interest in proceeding to trial; (2) forcibly medicating the individual will significantly further that interest; (3) forced medication is necessary to further that interest; and (2) the medication is medically appropriate.  Geenen Judge Sara Geenen wrote for the three-judge District 1 panel, which included Presiding Judge M. Joseph Donald and Judge Pedro Colón. The court’s decision reversed an involuntary medication order issued by Milwaukee County Circuit Court Judge David C. Swanson regarding defendant N.K.B.
N.K.B. allegedly struck a nurse and kicked a law enforcement officer while admitted to a psychiatric hospital in January 2023. She was charged with misdemeanor battery and obstructing an officer. The issue of N.K.B.’s competency arose, and the court ordered an evaluation. In March, the circuit court found N.K.B. incompetent to aid in her defense and ordered restoration at Mendota Mental Health Institute. But despite the Court’s order that N.K.B. be removed from the general jail population for restoration, she remained there for an additional three weeks, during which time she allegedly slapped a nurse. N.K.B. was charged again, this time with a felony for battery by a prisoner. At her April 2023 hearing on the felony, her competency was again raised. The court ordered another evaluation and another hearing on her competency to stand trial. Prior to that hearing, the Department of Health Services had requested an order for involuntary medication. The request was accompanied by a report and individualized treatment plan prepared by Dr. Kevin Murtaugh, who said involuntary administration of medication and treatment was needed because N.K.B. posed a risk of harm to herself or others. Psychologist Jenna M. Krickeberg then filed an evaluation report finding N.K.B. was incompetent. On April 26, 2023 the Court held a competency hearing at which both Krickeberg and Murtaugh testified. Krickeberg said N.K.B was incompetent because she suffered from mental illness and lacked the capacity to aid, assist, or cooperate with counsel and failed to appreciate the court proceedings and charges against her. Krickeberg recommended inpatient treatment with medication at Mendota. She said N.K.B. could likely be restored to competency and that restoration was “far more likely” with medication. Murtaugh testified that involuntary medication was necessary. He told the circuit court that he had explained to N.K.B. the advantages and disadvantages of medication, their side effects, and alternatives. He stated that N.K.B. did not provide “meaningful engagement” and that she was not responsive, cursing at the doctor and asking to be left alone. Murtaugh told the court that N.K.B. was also not competent to refuse medication because she could not express an understanding of the benefits and risks of medication. Following the hearing, the circuit court granted DHS’s request for involuntary medication of N.K.B. The circuit court based its decision on an application of the Sell factors. N.K.B filed a notice of appeal and sought to stay the involuntary medication order. The court scheduled a supplemental hearing and granted N.K.B.’s motion to stay until that date. DHS asked the court to reconsider its order to stay involuntary medication because N.K.B. was a danger to herself and others. At the supplemental hearing on May 4, 2023 the circuit court found that dangerousness was an alternative standard separate from the Sell factors for ordering involuntary medication. The circuit court again ordered involuntary medication, saying that caselaw, including Sell, “authorized the courts to involuntarily medicate incompetent defendants based on a finding of dangerousness.” The circuit court expressly abandoned any reliance on the Sell factors for ordering involuntary medication, stating “the Sell factors do not apply here.” In its opinion, the court of appeals disagreed with the state’s argument that caselaw permitted involuntary medication based on a finding of dangerousness when the incompetent person was committed solely for restoration of competency, without parallel proceedings under other commitment statutes specifically authorizing dangerousness as a basis for involuntary medication. Although pertinent U.S. Supreme Court caselaw “acknowledges the existence of alternative grounds to order involuntary medication and instructs courts to explore those grounds before turning to the trial competency question,” that language does not eliminate the need to follow Wisconsin statutes to do so, the court said. For an order directing involuntary medication based on dangerousness, the decision to forcibly medicate must be predicated on the Wisconsin statutes addressing dangerousness, not those concerning restoration to competency for legal proceedings, the court said. Supreme Court caselaw did “not create independent judicial authority to involuntarily medicate defendants committed (for restoration) based on dangerousness.” No parallel commitment proceedings were commenced against N.K.B. that would have allowed involuntary medication based on dangerousness. Because the proceedings about N.K.B.’s competency occurred solely under rules regarding restoration to competency for court proceedings, the circuit court could order involuntary medication only using the Sell factors, which it did not do, the court held. This is the second recent opinion by the District 1 Court of Appeals regarding involuntary medication. In September, the court evaluated whether the seriousness of an offense can be considered under the Sell factors. "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Theresa A. Beck
Appointed to: Jefferson County Circuit Court Appointment date: July 26, 2024, to term ending July 31, 2025 Education: Law School – Marquette University, Milwaukee, Wisconsin Undergraduate – University of Wisconsin-Whitewater High School – Lake Mills High, Lake Mills, Wisconsin Recent legal employment: May 2010-present – Assistant district attorney, Jefferson County, Jefferson, Wisconsin January 2009-May 2010 – Attorney-partner, Beck & Kiewit, S.C., Jefferson, Wisconsin June 2000-December 2008 – Associate attorney, Monogue & Witt, S.C., Jefferson, Wisconsin Bar and administrative memberships: State Bar of Wisconsin General character of practice: ln my current role as an Assistant District Attorney I am assigned juvenile delinquency, criminal (misdemeanor and felony), and criminal traffic referrals. My practice includes the responsibility for reviewing and making charging decisions, litigating pre-trial motions, negotiating offers to resolve cases and representing the State and or County at trial. In juvenile, criminal misdemeanor and criminal traffic cases, I am responsible for representing the State or County in appellate matters. My practice previously included the prosecution of Chapter 48 cases, including Children in Need of Protection and Services and Termination of Parental Rights cases, between 2010 through 2019. Describe typical clients: In my capacity as an Assistant District Attorney, the client is both the State of Wisconsin and Jefferson County. The cases involve prosecution of criminal, traffic and juvenile matters on behalf of those entities. My current areas of specialty are criminal and juvenile law. While in private practice, my specialty was family, and juvenile law I also was appointed by the courts as a GAL tasked with representing the best interests of children in custody matters. Number of cases tried to verdict: approximately 85-90 cases 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: (1) State v. Terrance Curtis, Jefferson County Case No. 15CF359 . . . . This is a First-Degree Reckless Homicide case that originated in 2015. The matter involved the death of a young child in a rural Jefferson County residence. I was assigned the case by the District Attorney, Susan Happ after the matter was charged. I was the sole prosecutor for the case, through pre-trial litigation, trial, and all post conviction litigation. The appellate work on this file was handled by the Wisconsin Department of Justice Appellate Division, as the case made its way from the Court of Appeals to the Supreme Court, where it was affirmed and remanded back to the Circuit Court. After exhausting his appellate issues, the defendant recently filed a Motion under Section 974.06 requesting a new trial. The matter is currently inactive, pending an evaluation by the State Public Defender's Office and the filing of a responsive brief by defense counsel. Two of the primary issues at trial and in post-conviction practice have been "Denny" third party evidence and a dispute over the victim's cause of death. The trial was significant for a number of reasons. The evidentiary issues were complex during the trial. Specifically, the allegation that a third party within the home was responsible for the child's death and that the injuries sustained by the victim were caused by a fall rather than multiple blunt force trauma injuries. The testimony at trial relied heavily on scientific/technical opinions by the medical examiner. The defense expert at trial, attempted to opine as to cause and manner of death, despite lacking sufficient credentials to render those opinions. The trial involved conflicting experts on a variety of issues. This matter was tried to a jury in a weeklong trial that resulted in a conviction and a significant prison sentence. Given the severity of the crime, the technical nature of the evidence, the sheer number of witnesses, and exhibits as well as the impact on the victim's family; this matter is one of the most significant trials of my career thus far. #2) State of Wisconsin v. Mark Salgado, Jefferson County Case No. 18CF118 . . . . This matter is an Attempted Homicide, Kidnapping and Substantial battery case involving a multi hour standoff with law enforcement at a local motel. The primary defense argument was that this incident was mental health related, namely it was a botched self-harm episode, rather than an intentional attempt to harm the victim. The defendant entered a not guilty & NGI plea during the pre-trial phase of the case. A subsequent evaluation of the defendant did not support the claim of NGI. The defendant maintained his NGI plea despite the lack of support by the court appointed evaluator. Defense counsel did not seek to retain their own expert to address NGI matters, their strategy appeared to be to cross examine the State's expert vigorously at trial. Just prior to the commencement of the trial, the defendant elected to waive his right to a jury and proceed to a bench trial in 2019. After the State's evidentiary presentation, the defendant withdrew his NGI plea and elected to testify in his own defense. One of the significant issues addressed prior to and during the trial was the defense strategy of not retaining their own NGI expert. The Court was required to address whether an NGI claim could be substantiated based solely on the cross examination of the court appointed evaluator, without additional expert testimony. Issues of who had the burden of persuasion and production of evidence were highlighted by the Court related to the NGI aspect of the case. The trial court took extra precautions to ensure that the defendant understood the proceedings, given his NGI claim. At the conclusion of the trial, the defendant was found guilty on all the charges and later sentenced to prison. The convictions were later affirmed by the Court of Appeals and the Supreme Court denied the Petition for Review. There is no current motion practice before the trial court. Experience in adversary proceedings before administrative bodies: None Non-litigation experience (e.g., arbitration, mediation): None Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None Previous runs for public office: None All judicial or non-partisan candidates endorsed in the last ten years: Joann Miller, Jefferson County Circuit Court, Br. 3, 2015 Jennifer Weston, Jefferson County Circuit Court, Br. 1, 2009 Susan Happ, Attorney General, 2014 Professional or civic and charitable organizations: Council for Performing Arts in Jefferson County, executive committee secretary, May 2004-June 2010 Campus Guardians of Wisconsin, board member, February 2024-present Significant pro bono legal work or volunteer service: My primary volunteer service has been with the State Bar High School Mock Trial Tournament during the previous 8 years. I became a volunteer for the Juneau regional tournament, volunteering annually in the competition. My roles have been everything from being a score sheet runner, acting as a performance judge and a presiding judge for competitions. Quotes: Why I want to be a judge: The justice system is a vital component to our society. Circuit Court judges are the gatekeepers of the legal system, and they must confront a large and diverse case load. This significant responsibility should be fulfilled by judges who have experience in multiple areas of the law, who have excellent interpersonal and administrative skills, and by individuals who can maintain an even judicial temperament. In addition to addressing the courtroom aspects of the position, a judge must be able to successfully interact with other judicial system stakeholders, to ensure the court system is running smoothly. Citizens who come before the courts are best served by judges who have practical experience in the law. A judge who can quickly understand and narrow the issues to be decided, apply the rules of evidence to arrive at a conclusion that is lawful, and fair to the parties involved, provides the best outcome. This approach also promotes efficiency in calendar management, to ensure cases are resolved promptly, and the parties can reach finality without unnecessary delay. In the previous 24 years, I have taken part in various aspects of the justice system, allowing me to accumulate the skills necessary to fulfill the duties of a judge. As a private practice attorney and a prosecutor, I have gained experience in multiple areas of law, including family law, juvenile law, guardian ad litem work, criminal law, civil litigation, and probate law. I have litigated my entire career in the circuit courts of Jefferson County. This experience has provided me with an understanding of how the circuit court system functions in Jefferson County. I have established relationships with many of the stakeholders involved in the legal system. As a lifelong resident of Jefferson County, I have developed relationships with many individuals who live in the area, providing an opportunity to fine tune my interpersonal skills, and to gain the trust of individuals who need legal assistance. The system will benefit from someone who can hit the ground running, is familiar with the existing framework of the County, and has the necessary skills to fulfill the obligations of the position. I believe that my experience, and my existing relationships within the system, and my temperament make me an ideal candidate to fulfill the obligations of the role of a circuit court judge. Decisions by the Wisconsin Supreme Court or U.S. Supreme Court which have impacted the people of Wisconsin: Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) The United States Supreme Court decision to overturn Roe v. Wade after 49 years of well settled law impacted the citizens of Wisconsin by removing a conduit to reproductive care. The legacy of the decision created uncertainty for patients and medical providers in Wisconsin and all over the United States. The removal of the protections of Roe has impacted the reproductive rights of our citizens today in a negative manner. After Roe was overturned, the state was left with the 1849 law, which contains no exceptions, and is significantly outdated. The law was authored before issues such as alternative conception methods were even contemplated. Subsequent legal challenges to the law such as the December 2023 ruling from Dane County, has done little to alleviate the uncertainty around reproductive care. The Dane County decision is working its way through the appellate courts, leaving the matter unresolved. Many medical professionals have expressed fear of losing their license or being prosecuted for providing care to their patients. Individuals who need medical care may be forced to seek these services outside of the State. They face potential barriers of locating a physician or clinic to perform the services, increased costs, and the inability to utilize insurance coverage. The politics of this decision has impacted a vital relationship in society, namely the relationship between a doctor and a patient. Until there is some legal resolution to this issue, or the law is revisited, medical professionals will be hampered from providing care for patients, and it may discourage doctors from continuing the practice of medicine in Wisconsin, leaving fewer options for patients. Two or three judges whom I admire and why: (1) Chief Justice Shirley Abrahamson Although no longer with us, Chief Justice Abrahamson left a long-lasting legacy on the Wisconsin legal system. Her dedication to educating the public about the legal system and its role in society was remarkable. From her tenure as a law professor through her time on the Wisconsin Supreme Court, she devoted her life to the education of individuals on the rule of law and fought to increase accessibility to the legal system. Her support of pro se litigant clinics is one example. Justice Abrahamson recognized a need to address the growing percentage of self-represented parties. She recognized that providing the necessary tools to self-represented individuals allowed the system to function more effectively and increased public confidence. This approach allows stakeholders to fulfill their obligations. Specifically for judges, they can maintain their neutrality, and decide cases based solely upon the facts and the law. These contributions to the enhancement of the functioning of the legal system benefit everyone. Justice Abrahamson spent much of her time trying to improve the justice system. Her efforts to educate litigants on procedure and thus improve accessibility to the justice system have promoted confidence in a system that is often complex and difficult to navigate. Justice Abrahamson’s efforts showed a devotion to law that is admirable. 2) Former Jefferson County Circuit Court Judge-Jacqueline Erwin Judge Erwin was a presiding judge in Branch 3 of the Jefferson County Circuit court system for twenty-two years. She retired from the bench in January 2013. During her tenure on the bench, Judge Erwin exhibited many admirable qualities which helped her fulfill her obligations as a judge. She is smart, tough, and fair. She worked hard and expected others to do the same. Judge Erwin was well versed in the law, and she worked extremely hard to remain up to date as the body of law changed. In areas of the law where she had not previously practiced, she did her research. She took notes, she prepared her files, and she was always ready to address her caseload in an efficient and prompt manner. She was constantly striving to be a better judge. She expected the same level of commitment from the lawyers and litigants who appeared in her courtroom. She expected all parties to conduct themselves in accordance with legal and moral ethics and to maintain professionalism in her court. She challenged me and others to be better lawyers. In her decisions, Judge Erwin was tough, yet fair. Her decisions were rarely overturned on appeal. When I think of the qualities a judge must possess to effectively fulfill the obligations of the position, Judge Erwin personifies all of them. Those qualities of a strong intellect, a desire to continue learning, a strong sense of ethics and professionalism and compassion and empathy are all qualities that I strive to exemplify every day. The proper role of a judge: Circuit Court judges are the gatekeepers of the legal system. Their responsibilities include presiding over proceedings, maintaining order in the court, and ensuring the prompt administration of justice. A judge must also always maintain impartiality and decorum. Judges must be educated in multiple areas of the law and have a working knowledge of the rules of criminal and civil procedure as trial court judges preside over diverse types of proceedings. One of the primary duties of a judge requires the determination of the admissibility, and relevance of evidence offered by the parties. A judge should ensure that for all hearings there is a proper record kept of the proceedings. Judges should ensure that all parties have a chance to be heard and present their evidence and arguments. Once the parties have fulfilled their duties, it is incumbent upon the judge to apply the law, and exercise appropriate discretion, rendering a prompt decision to the parties, setting forth the basis for their decision, on the record, or in writing. In a hearing involving a jury, the judge also acts as a director of the proceedings to ensure that the jurors are informed of their duties and their general needs are addressed during their duty. A judge must ensure that a jury is properly instructed on the law and ensure that the jury only hears relevant and non-prejudicial information. A judge also needs to have excellent interpersonal skills, as they are dealing with the litigants, lawyers, victims, jurors, other magistrates and court personnel on a daily basis. A judge should always ensure that professional courtesy is maintained and should expect courteous behavior of those who appear in court. |
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