By Gretchen Schuldt
The state's lowest-in-the-nation pay rate for private attorneys who agree to represent indigent defendants in criminal cases would increase anywhere from $15 per hour to $30 per hour, under an Assembly bill being circulated in the State Capitol.
The new rates would range from $55 per hour to $70 per hour, depending on the difficulty and complexity of the case.
The bill, circulated for sponsors by State Reps. Ron Tusler (R-Harrison) and Evan Goyke (D-Milwaukee), also would allow the State Public Defender Board to set standards for and impose conditions upon private lawyers if they want to be appointed by the Public Defender's office to represent indigent clients.
Reasons for exclusion from appointments would include failing to meet minimum attorney performance standards; failing to comply with the Supreme Court rules of professional conduct for attorneys; and engaging in conduct contrary to the interests of clients, justice, or the state public defender. The state public defender also could exclude anyone about whom the public defender has concerns related to character, performance, ability, or behavior.
Tusler, addressing the pay issue, said that the state's $40-per-hour rate "is all-encompassing and unsustainable."
"It must cover the costs of filings, investigators, experts and other overhead costs in addition to the time an attorney must spend preparing for, and appearing in, court," he wrote in a memo to his colleagues.
The current rate "leaves attorneys barely breaking even on most cases effectively resulting in attorneys who take public defender appointments working for free," he said.
A 2015 study by the Sixth Amendment Center showed that 49.4% of public defender-appointed attorneys took fewer cases than in the past and 6.8% of survey respondents no longer took public defender appointments at all, Tusler said.
A group of lawyers filed a petition with the State Supreme Court seeking a $100-per-hour rate for private bar lawyers, but that would cost the state $31.8 million per year, Tusler said.
The $55-$70 rate envisioned in the bill would take effect Jan. 1, 2019, Tusler wrote, and would cost $19.4 million annually.
Seven states have been sued over low reimbursement rates, Tusler wrote. In Wisconsin, legislators from both sides of the aisle have raised questions and expressed concern about the state's low pay.
The Wisconsin Supreme Court in the past has declined to use its authority to provide pay raises to lawyers appointed to the Public Defender's office, though justices have said the existing rate is too low.
"Representative Goyke and I ask for your close consideration of this critical issue and help us address it before the decision is made by the Wisconsin Supreme Court without legislative input and before an ineffective assistance of counsel claim is filed as a result of our inaction to address this problem," Tusler wrote.
By Margo Kirchner
A federal judge chastised lawyers for acting “like fourth graders in a lunchroom,” but said labeling as “lunging” or “assault” a lawyer’s actions when he slammed a pen on a desk in front of a deposition witness went too far.
U.S. District Judge Pamela Pepper said she found it “shameful” that she and seven attorneys had to spend time in a hearing discussing attorney behavior.
The pen incident occurred in October, during the deposition of Corrections Officer Terina Cunningham in a lawsuit brought by Shadé Swayzer over the death of her newborn daughter, Laliah, in the Milwaukee County Jail in July 2016.
Swayzer and Laliah’s estate sue former Sheriff David Clarke, Milwaukee County, several jail employees, Armor Correctional Health Services, Inc. (the contractor providing medical services at the Jail), and several Armor doctors and nurses.
Swayzer’s lawyer, James J. Gende II, lost his temper and slammed his pen into the table in front of Cunningham and attorney Douglas S. Knott, who represents Cunningham and the county. Knott immediately halted Cunningham’s deposition and later sought a court order to prevent Gende’s participation in future depositions in the case.
Armor’s lawyer, Michael P. Russart, also moved to preclude Gende from conducting future depositions.
Knott said at a later hearing that Cunningham, the corrections officer, was shaken by Gende’s outburst and lunging. Knott argued that Gende’s conduct constituted assault and merited more than an admonishment.
Russart, for Armor, said he sought to protect his witnesses and argued that there was no “reset button” or “Mulligan” for Gende’s conduct.
Counsel for Gende, Terry E. Johnson, admitted that Gende showed a lapse in judgment but argued that barring Gende from future depositions was too severe a sanction for an incident lasting five seconds.
Pepper, in her ruling, said the lawyers’ filings in the case showed finger-pointing and snide comments in front of witnesses. Pepper said she saw an “ongoing toxic relationship” between Gende and Knott.
“Something needs to change” in their interactions, she said.
Gende, Pepper said, violated rules governing the treatment of deposition witnesses, which justified an end to additional questioning of Cunningham.
But Pepper found that barring Gende from conducting future depositions in the case would be a disproportionate sanction.
Instead, she indicated that all depositions should be videotaped. In addition, the lawyers must not argue in front of witnesses, and they are to call the court with any significant problems arising during a deposition.
She warned of greater sanctions should additional deposition problems occur and said she would monitor the attorneys’ civility. As she put it in her signed minutes of the hearing, she will, if necessary, “review every video to make certain that the lawyers were treating each other, and the witnesses, with the respect and civility the profession demands.”
In another matter related to the case, U.S. Magistrate Judge William E. Duffin this week agreed with former Sheriff David Clarke that Clarke’s 2016 personal calendar and whereabouts are not relevant to claims in the case. Duffin ruled that Clarke did not have to produce the calendar or identify his location on dates when five inmates died in custody.
Information about a crime victim's mental health that is crucial to a jury reaching a fair verdict in a criminal case would be withheld from the jury unless the victim gave permission for it to be used in court, under a bill moving forward in the State Legislature.
The Wisconsin Justice Initiative opposes the bill, which would upend the current standard for introducing a victim's mental health records into court. WJI believes the current law provides crime victims with adequate protections.
A public hearing on the bill is scheduled for 11 a.m. Thursday in Madison before the Assembly Judiciary Committee.
The existing standard, known as Schiffra-Green, was set by the State Supreme Court in 2002. It requires the defendant seeking the record to provide “a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant.
If the victim refuses permission, the defendant would be stuck, even if the records are vital to his or her case.
The standard also requires a judge to review the records in private before deciding whether to admit them as evidence.
The pending bill, Assembly Bill 570, would require the victim's permission before the judge could even review the mental health records.
If the victim refuses permission, the defendant would be stuck, even if the records are vital to his or her case.
"If the crime victim declines to disclose his or her mental health treatment records for an in camera review, the court must abide by his or her declination and must permit the victim to testify at trial," according to the bill.
The bill is sponsored by State Reps. John Spiros (R-Marshfield), Andre Jacque (R-De Pere),
Terese Berceau (D-Madison), Edward Brooks (R-Reedsburg), Jeffrey Mursau (R-Crivitz),
Todd Novak (R-Dodgeville), Warren Petryk (R-Eleva), Gary Tauchen (R-Bonduel), and
Ron Tusler (R-Harrison)
In the Senate, it is sponsored by State Sens. Jerry Petrowski (R-Marathon), Van Wangaard (R- Racine), Robert Cowles (R-Green Bay), and Luther Olsen (R-Ripon). Former State Sen. Sheila Hardsorf (R-River Falls) also was a sponsor.
Please contact your legislators and tell them to oppose AB 570! You can find out who represents you in the State Capitol here.
Inmates at Columbia Correctional Institution sleep on the floor because there are not enough beds, according to a Department of Corrections budget request.
Others are released from prison directly from a solitary confinement unit where they "are single celled, have no movement, eat in cell, recreate alone or segregated, and have very limited property."
The released inmates "not only haven’t functioned in society in some time, but they haven’t functioned in general population of the institution in some time, if ever," DOC said in its request for $25,354,000.
The State Legislature and Gov. Scott Walker said no and established a study committee to discuss the state's prison needs.
What could go wrong?
This is part 4 in our series on Wisconsin prisons, how crowded they are, and what the Department of Corrections said is needed to improve, repair, and maintain them.
Here is Part 1, Part 2, and Part 3.
And here is a link to a video of State Rep. Evan Goyke's presentation, titled "Inmate 501: Converging Problems in Wisconsin's Prison System," on the choices for Wisconsin's prison future. As he says in his accompanying publication, "Inmate 501 will be the first Wisconsin inmate sent out of state because of overcrowding in nearly 20 years. Recent prison population growth is set to exceed all available options in state. We face challenging decisions. Do we send people out of state? Do we build a new prison? Do we reform?"
Goyke votes for reform. So do we.
This primer does not really address the consequences of the crowding and physical shortcomings of the institutions – the impacts on inmates and staff. But we sure hope you will keep them in mind as you consider the price of mass incarceration.
Institution: Columbia Correctional Institution, Portage
Classification: Maximum security
Capital budget request: $25,354,000
From the request: This project would construct a new 100-cell Transitional Housing Unit next to the current housing Unit 9 building for inmates with special program needs, including inmates needing to integrate back into general population after long periods in segregation. ...
The Transitional Housing Unit will be ADA compliant and able to accommodate inmates with special physical needs, such as being confined to a wheelchair. It would be preferable that at least 50% of the cells are on ground level, and would not require the use of a lift. At a minimum, in order for CCI to be ADA compliant, 16% of the cells must be built on ground level.
The Transitional Housing Unit will have single and double cells (approximately 20% of the total cells will be double cells). It will also have programming space for group and individual programming, a dayroom for eating meals and for recreation, a food servery for preparing meal trays, an officer’s control bubble, an officer’s workstation in the dayroom, storage space for supplies/equipment, storage space to house medications, a unit laundry for inmate clothing, and office space for staff such as clinicians, social workers, and housing unit management staff.
Expansion to the RH2 building will include program/treatment areas, staff offices, no-contact visiting space, and storage. In addition, the recreation pens will be covered to allow for outdoor recreation in all seasons.
The RH2 currently does not have any programming space, or adequate treatment space. Inmates are evaluated by health services staff and psychological services staff in the dayroom providing for no means of confidentiality. There is inadequate storage space requiring supplies to be stored in the open of the dayroom. There is no office space for staff in RH2, and staff currently uses limited office space in other buildings in the institution.
The new Transitional Housing Unit will be built to allow for flexibility in programming to meet the needs of the dynamic inmate population at CCI. This includes inmates needing to integrate back into general population after long stays in restrictive housing (greater than 120 days), inmates prone to self-harm, and inmates that struggle to function in general population. This might include inmates with temporary physical limitations (possibly after surgery), inmates with serious mental health issues, or inmates with gender identity disorders.
This type of flexibility in a housing unit is a critical need at CCI for the following reasons:
Inmates are evaluated by health services staff and psychological services staff in the dayroom providing for no means of confidentiality.
The environment in RH1 can be very loud and disruptive and not conducive to overcoming thoughts or behaviors of self-harm.
Institution: New Lisbon Correctional Institution, New Lisbon
Classification: Medium security
Capital budget request: $0
Institution: Oakhill Correctional Institution, Sturtevant
Classification: Minimum security
Capital budget request: $5,042,000
From the request: This project would install high efficiency boilers in various buildings at Oakhill Correctional Institution (OCI), designed to replace the existing central boiler steam system and underground steam piping, underground condensate piping, steam traps, and condensate tanks. ... A fourth boiler was added in 2006 and is primarily used is for low pressure summer loads. Upon completion of this project, the fourth boiler will be transferred to another DOC facility that is in need of a summer boiler.
By Gretchen Schuldt
While State Sen. Leah Vukmir expressed outrage that John Doe investigators cataloged some of her personal emails and Attorney General Brad Schimel said he did not understand why they would do that, the Doe investigators were just following good protocol, according to publications on digital investigations.
"If the case ever comes to trial, the investigator presenting the case must be able to prove ... the data was not modified during acquisition or analysis (chain of custody)," forensic analyst Michael Graves wrote in The Anatomy of a Digital Investigation.
Vukrmir (R-Brookfield), a candidate for U.S. Senate, said in a statement that “The upsetting news that my privacy was violated as personal emails between my daughter and I were obtained, read and kept by those who ran the John Doe investigation is absolutely appalling. This criminal behavior is inexcusable, and the individuals involved in this belong in prison."
Vukmir's emails were seized during the John Doe investigation into Gov. Scott Walker's campaign, according to Schimel's report, which indicated investigators had a warrant.
Attorney General Brad Schimel, in his new report on his Justice Department's investigation into the Doe investigation, said that Doe seized emails included "private medical information and other highly personal information. DOJ was unable to determine why investigators ever obtained, let alone saved and labeled, over 150 very private and very personal emails between a Senator and her child. ... ”
But Adam Stone, writing for Govtech Works, said, "One final word of advice from the FBI: Keep it all."
"Without the right protections, digital files can be easily deleted, edited, even fabricated," he wrote. "So documenting a digital chain of custody is all the more important. A compromised chain can undo a legal proceeding and lay waste to years of investigation. And all a defense attorney has to do is successfully raise concerns about potential tainting of evidence – that alone is enough, let alone demonstrating actual taint."
"One final word of advice from the FBI: Keep it all."
Keith Chval, in the article How to Preserve Digital Evidence in Case of Legal Investigation, says that each item seized in an investigation should be catalogued.
He quotes Patrick Zeller, a former high-tech prosecutor and litigator: "Because digital evidence is more susceptible to intentional or inadvertent alteration or destruction than many forms of evidence, it is critical that a witness be able to offer evidence upon which the judge can conclude that the data is in substantially the same condition as when it was seized."
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
In his application's cover letter to Walker, Hagedorn wrote, "One of the great honors of my life has been serving as your top advisor on judicial appointments. Many hours have been spent seeking and promoting those that share your judicial values, those that will leave a legacy for years to come."
Name: Brian K. Hagedorn
Appointed to: District 2 Court of Appeals
Appointment date: July 31, 2015. (Elected to a six-year term in 2015.)
Law School – Northwestern University
Undergrad – Trinity College, Deerfield, IL
High School – Wauwatosa West
2011 - present – Chief legal counsel, Office of Governor Scott Walker
2010 - 2011 – Assistant attorney general, Wisconsin Department of Justice
2009 - 2010 – Law clerk, Wisconsin Supreme Court
2006 - 2009 – Attorney, Foley & Lardner
Eastern District of Wisconsin
Seventh Circuit Court of Appeals
Wisconsin State Bar
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Worked as litigator, adjudicator, and in-house general counsel.
My experience isn't complete without noting my time as a law clerk on the Wisconsin Supreme Court. While there, I assisted Justice Gableman and the Court in well over 100 cases dealing with insurance disputes, criminal procedure, administrative law, and significant constitutional cases, to name a few.
Finally, in my current role, I serve as essentially the in-house general counsel for the Walker administration. Thus, though I have not been the attorney of record, I have played a significant role in overseeing quite possibly the most significant flurry of legislation-related litigation this state has ever seen. My role included overseeing the hiring and management of outside counsel, reviewing briefs, leading strategic discussions, participating in mock arguments, and sitting at the counsel table in federal and state courts. As such, I have been a key player in many cases in state and federal courts, from the trial level to the appellate level, including multiple cases before the Wisconsin Supreme Court and the Seventh Circuit Court of Appeals. Sample litigation includes nine separate cases challenging Act 10 in Wisconsin and federal courts (we won them all); four different cases challenging the Voter ID law in Wisconsin and federal courts (we won them all); a bankruptcy/Eleventh Amendment case in federal court (pending); a challenge to a law we signed reforming administrative rules (pending); and the recent constitutional challenge to the state's new right to work law (pending). In addition, I have played a key role in multistate cases Wisconsin has participated in as a party and as amicus in courts around the country, including many in the United States Supreme Court. I have been the Governor's counselor and the key strategic and legal contact in the Governor's Office for the Attorney General on our participation in these cases. Sample cases include multistate medicaid fraud, amicus work in U.S. Supreme Court criminal procedure cases, and significant constitutional cases like the challenges to the Affordable Care Act and the President's recent immigration orders.
Number of cases tried to verdict or judgment: Jury, 0; non-jury, 10; arbitration, 1; administrative bodies, 0.
Cases on appeal: Including my work as chief legal counsel in the Office of the Governor, I have been involved in some capacity in dozens of appellate cases, though my level of involvement has varied. It is worth noting as well that I participated in well over one hundred additional appeals as a law clerk at the Wisconsin Supreme Court. ...
In my current position, as noted above, I am involved in most major litigation involving the State of Wisconsin. Notable cases include the following:
Act 10 Litigation: I oversaw the hiring and management outside counsel, and in partnership with the Department of Justice, helped lead the State's defense in all 9 cases challenging Act 10. These cases led to two decision in the Seventh Circuit--WEAC v. Walker, 705 F.3d 640 (7th Cir. 2013) and Laborers Local 236 v. Walker, 749 F.3d 628 (7th Cir. 2014), and two decisions in the Wisconsin Supreme Court--State ex rel. Ozanne v. Fitzgerald, 798 N.W.2d 436 (Wis. 2011) and MTI v. Walker, 851 N.W.2d 337 (Wis. 2014). These cases covered issues in employment law, the Fourteenth Amendment, the First Amendment, and core structural questions related to the separation of powers. I was deeply involved in strategy, editing briefs, and argument preparation.
Voter ID: I worked with the Department of Justice throughout two state court cases and two federal cases. The federal cases culminated in an opinion upholding the Voter ID law--Frank v. Walker, Lulac v. Deininger, 768 F.3d 744 (7th Cir. 2014). The same result was reached by the Wisconsin Supreme Court in the two state cases--League of Women Voters v. Walker, 851 N.W.2d 302 (Wis. 2014) and NAACP v. Walker, 851 N.W.2d 262 (Wis. 2014).
Administrative Rules: I have worked very closely with the Department of Justice in crafting our legal arguments in defense of the Governor's power to approve administrative rules promulgated by the Superintendent of Public Instruction. ...
Same-sex marriage: I worked with the Department of Justice to prepare the defense of Wisconsin marriage laws. The Seventh Circuit ultimately held that the Fourteenth Amendment to the United States Constitution prohibited Wisconsin from continuing to limit marriage to unions between one man and one woman. Baskin v. Bogan, Wolf v. Walker, 766 F.3d 648 (7th Cir. 2014).
The Governor's appointment powers: I worked with the Department of Justice in defense of the Governor's appointment powers vis-à-vis federal bankruptcy law. The Seventh Circuit issued a partial decision in Chasensky v. Walker, 740 F.3d 1088 (7th Cir. 2014) holding that the Governor enjoyed qualified immunity from the plaintiff's privacy and equal protection claims.
Significant multistate appeals I have worked on include our current challenge to the President's immigration laws (Texas v. United States, Fifth Circuit Case no. 15-40238) and the challenge to the Affordable Care Act (NFIB v. Sebelius, 132 S.Ct. 2566 (2012)). Indeed, it is fair to say I have been involved in most major multistate efforts around the country in some capacity, whether in cutting edge criminal law cases to ground-breaking cases dealing with core issues of federalism and religious freedom.
Two most significant cases:
State ex rel. Ozanne v. Fitzgerald (Wis. 2011)
I began assisting in the drafting of Act 10 not long after the Governor was inaugurated. We knew litigation would come, and come it did. But we did not expect the first legal fight to be over whether the legislature has the power to carry out its legislative role without judicial interference. Contrary to popular understanding, State ex rel. Ozanne was not about open government or even the merits of Act 10. It was about core separation of powers principles. Namely, does the Wisconsin Constitution permit a circuit court judge to tell the legislature how to follow the legislature's internal rules, and can a circuit court judge prevent a duly enacted bill from becoming law (separate distinct from the power to enjoin an unconstitutional law)? The case in circuit court was fraught with procedural irregularities; we felt our only recourse was to have the state bring an original action against the circuit court judge and the district attorney. The Wisconsin Supreme Court ultimately took the case and agreed with us that the circuit court had violated the separation of powers.
This case was important for several reasons. First, there have been few more consequential pieces of legislation in Wisconsin history. The public policy impact of this victory is hard to understate. Second, the separation of powers embodied in our Constitution is core to our freedom and to our republican form of government. The Wisconsin Constitution simply does not give the judiciary authority to act as it did. The Supreme Court recognized and remedied this, explaining that they granted the petition for original action "because one of the courts that we are charged with supervising has usurped the legislative power which the Wiconsin (sic) Constitution grants exclusively to the legislature." Id. at para. 7. Finally, this case is significant because the Court stepped into a complicated political situation to uphold the rule of law. Courts need to have the intellectual and moral courage to refrain, but also the intellectual and moral courage to step in--all of this in furtherance of their limited, but meaningful Constitutional role.
MTI v. Walker (Wis. 2014)
Following the procedural challenge to Act 10 in State ex. rel. Ozanne, a flurry of suits were filed challenging the substance. They followed two basic theories. One set of cases challenged the law on equal protection grounds, quibbling with legislative line drawing on general employees versus public safety employees, and arguing that prohibiting units of government from collecting union dues via payroll deduction violated the First Amendment. The Seventh Circuit Court of Appeals rejected these theories and upheld Act 10 in its entirety in WEAC v. Walker, 705 F.3d 640 (7th Cir. 2013). The second set of cases argued that the provisions of Act 10 collectively imposed a burdensome and unconstitutional condition upon membership in a union in violation of the unions' First Amendment speech and association rights. One case was decided in the federal courts, with both Judge Conley and the Seventh Circuit rejecting this theory (Laborers Local 236 v. Walker, 749 F.3d 628 (7th Cir. 2013)). A separate case brought in state court came to the same outcome (WLEA v. Walker, Case No. 12CV4474). The third case making the same claims, but this time finding some early success, was MTI v. Walker.
The Dane County Circuit Court struck down several provisions of Act 10 under this unconstitutional conditions theory. The case also raised significant issues regarding the Wisconsin Constitution's home rule provisions. There were many wrinkles in the case procedurally as well. We fought vigorously over a stay of the lower court ruling, and had significant disagreements over the reach of the circuit court decision. We argued that the order was a declaration applicable only to the parties; the plaintiffs argued it was the legal equivalent of a Supreme Court decision. While the case had already been accepted by the Wisconsin Supreme Court, the circuit court entertained and granted a motion for contempt against the WERC Commissioners for enforcing Act 10 against non-parties. The Supreme Court ultimately used its superintending authority to vacate the contempt order. On the merits, the Supreme Court again upheld Act 10 in its entirety.
The public confusion, procedural wrangling, and political import of every move in this case made it at once thrilling and dismaying. It was incredibly frustrating to have legal theories handily and correctly rejected in nearly identical cases nonetheless create incredible uncertainty and protracted litigation in this case for three years. But this case represents an even more incredible triumph. Act 10 was a significant and complex piece of legislation challenged at every level with nearly unlimited resources by those who were unable to defeat it at the ballot box. Every legal challenge failed in its entirety, as each should have under the law. At the end of the day, apart from the underlying policy merits, the rule of law won.
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: I was a member and later board member of the Kenosha County Republican Party from 2005-2009. In addition to various party-building activities, I assisted in various local races. In 2008, I was the county co-chair for the McCain campaign. Since taking on my role at the Governor's Office, I have, on my own time, given informal assistance and guidance to several judicial candidates.
Judicial or non-partisan candidates publically endorsed in the last six years: I do not recall all of the candidates who I have endorsed, but they include Justice David Prosser and (now Chief) Justice Patience Roggensack. I likely also gave my endorsement to several judicial appointees I met through the appointment process, but I do not know which, if any, would have listed me as having given a public endorsement.
Honors, prizes, awards received: In May 2014, I was named Trinity College alumnus of the year. I was honored at the graduation ceremony and gave brief remarks. I understand that I am the youngest award winner in the College's history. The award was given in recognition of "Outstanding Vocational Accomplishments, Community Leadership and Endeavors, and Meritorious Service and Commitment to Christ."
Memberships in bar associations and professional societies: ... I have been a member of the Eastern District Bar Association from roughly 2006-2014. I have also been a member of the State Bar Bench-Bar Committee since 2013.
In addition, I have long been a member of the Federalist Society, attending the national lawyers convention in Washington, D.C., attending local events, and helping to start the local lawyers chapter in Madison.
I do not recall all of the candidates who I have endorsed, but they include Justice David Prosser and (now Chief) Justice Patience Roggensack. – District 2 Appeals Judge Brian K. Hagedorn
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application:
I have always been involved in my local church, often in a leadership role. At my current house of worship, The Vine Church in Madison, I have taught Sunday School, served on the cleaning team, led a small group, and served as a host pastor facilitating weekly worship. My church also serves regularly at the Elizabeth House, a residential maternity and parenting program for moms-to-be. I've engaged in similar service at my prior houses of worship.
Describe any significant pro bono legal work in the last five years:
No answer given to this question. Instead, in answer to the next question regarding legal teaching or lecturing, the applicant said, “For ease, I will combine the answers” to the two questions.
Hagedorn listed speeches and lectures, including leading a Federalist Society panel discussion, “Act 10: A Postmortem,” in 2014. Other presentations included a speech on “Top Tips for Succeeding as Chief Counsel to a Governor” at a 2015 conference of top legal leaders at the state level.
Quotes: Why I want to be a judge – Broadly conceived, I believe engagement in public life through the law is my vocational calling. Central to that for me is a devotion to the rule of law, our written Constitution, and the separation of powers. A significant portion my time in the Governor's Office has been devoted to precisely these values, through litigation, management of executive branch duties, and overseeing the judicial appointment process. Promoting judges who believe in the rule of law, and have the intellectual and moral courage to live out this commitment, has been a driving passion for me. Joining the ranks of these public servants, then, is a natural extention (sic) of this vocational calling.
The appellate bench is an opportunity to serve people by upholding the rule of law. It is an opportunity to influence how law is done in our courts through excellent legal scholarship. It is an opportunity to do basic justice by ensuring, consistent with the law, that contracts are enforced, criminals are held accountable, and constitutional rights are respected. I am not pursuing this to achieve a title or career capstone. My commitment to promoting the public good through the judicial role is what drives me.
After many conversations with colleagues and mentors, I believe this role is a proper fit not only to my calling, but to my gifts as well. I love reading and writing and thinking about the law. I have, I believe, the temperment (sic) and mindset of a jurist. And I look forward to the kind of collaborative and collegial decision-making performed by an appellate panel. In short, this position seems to accord with my vocational mission, my skill set, and my interests. Few are so fortunate to have this alignment in their career path.
Best United States or Wisconsin Supreme Court opinion in the last thirty years – Coulee Catholic Schools v. LIRC (Wis. 2009)
This case, which I had the privilege of working on while clerking at the Supreme Court, concerned whether Wisconsin non-discrimination laws could apply to the termination of a teacher at a Catholic school. The Court rightly determined that both the U.S. and Wisconsin Constitutions precluded an age discrimination claim, and it did so using a legal approach I would seek to emulate.
First, the Court understood its proper role. It is not clear who would win a popular vote today in a conflict between a discrimination claim and religious freedom. But the Court's job was not to decide what was more valuable or important to society, or to balance the values. Rather, the Court's job was to determine whether the federal or state constitutions protected the religious school's power to decide how to govern itself. ...
A second notable and noble virtue of this opinion is its root in the text, particularly in its analysis of the Wisconsin Constitution. The Court states, "The authoritative, and usually final, indicator of the meaning of a provision is the text--the actual words used." … And rather than just subsuming the Wisconsin Constitution into the First Amendment, the Court lets the different and broader language speak for itself, and more firmly root its holding. ...
Worst United States or Wisconsin Supreme Court opinion in the last thirty years – Lee v. Weisman (1992)
In 1989, a principle at a middle school in Providence, Rhode Island invited a Jewish rabbi to lead a voluntary prayer at the voluntary graduation ceremony. The parents of one student objected, arguing that the First Amendment prohibited such an invitation. The United States Supreme Court agreed. As a policy matter, it is not clear to me that government-led prayers in public school are an altogether good thing. My disagreement with this case rests upon its weak jurisprudential foundations.
First, legal analysis of a constitutional provision should begin with the original public meaning of the clause itself. This case does none of that. The Establishment Clause was, at least in large part, a federalism provision leaving regulation of religion to the states. But even accepting that it has some enduring application against state and local action, it can't be read to proscribe activity the authors of the First and/or Fourteenth Amendments would have understood to be very much in compliance with the First Amendment, as Justice Scalia's dissenting opinion ably points out.
Constitutions should be read consistent with the original public meaning of its terms. – Hagedorn
Second, this case, and Establishment Clause jurisprudence generally, looks very little like law. Much of it has the symptoms of a Court discussing desireable social policy or the proper place of religion in public life, and then crafting a legal rule that makes sense in light of that policy. This is not how judges should make law; that is the legislature's job absent violation of a clear constitutional imperative. ...
Thus, the opinion may or may not reach a desireable (sic) social policy outcome. But it is not the kind of legal reasoning, either in quality or in first principles, that should mark the judicial craft. Courts are at the nadir of legitimacy when their decisions set social policy for the people without grounding it in the constitutional text the people themselves have adopted.
Judicial philosophy – A judicial philosophy must begin with a sober sense of the judiciary's role in our constitutional system. The framers of our federal and state constitutions created a tri-partite system of government; the legislative branch (generally with the consent of the head of the executive branch) makes the laws, the executive branch executes the laws duly enacted, and the judiciary declares--when cases come before it--what the law is as applied to the facts of that case.
This means that, excepting certain discretionary determinations like sentencing, personal political values should not have a place in the judicial task. Faced with litigation laden with political and policy implications, the judge must simply say what the law says. This is easy to say, but hard to do. In practice, every judge will face the temptation to allow his or her own biases--we all have them--to color a judicial determination. Resisting this temptation requires both moral and intellectual courage, as well as a healthy dose of humility and self-awareness.
This does not mean, of course, that judges are impotent and must always defer to the legislature. Indeed, the people are sovereign, and the people have adopted a written Constitution that is supreme over the statutory enactments of legislatures. A court striking down a statute as unconstitutional is inherent in the power to say what the law is. A court must declare statutes conflicting with the higher law adopted by the people in a constitution invalid; to not do so is abdication of the judicial role. The danger, of course, is that some see the constitution as primarily about "fairness" or "justice" and use it to overrule the supposedly inferior policy choices of the people. Again, the judicial branch may say what the law is when properly presented with a case, but it must resist the temptation to assume the power of judicial review with respect to legislation it simply finds personally offensive.
Finally, a judge's power to declare what the law is must be rooted in the proper interpretive tools. Statutes should be read to say what they actually say. Constitutions should be read consistent with the original public meaning of its terms. Interpretation begins, and usually ends, with a proper analysis of text, context, and structure. Lower courts should adhere to precedent. And judicially created analytical frameworks should be tethered to the text and provide clear notice and application to those it regulates.
By Gretchen Schuldt
This is part 3 of our look at state prisons, how crowded they are, and what the Department of Corrections said during budget preparation it needed to fix and maintain them. Part 1 is here; part 2 is here.
We will say this in every post because it is worth repeating: This primer does not really address the consequences of the crowding and physical shortcomings of the institutions – the impacts on inmates and staff. But we sure hope you will keep them in mind as you consider the price of mass incarceration.
Institution: Taycheedah Correctional Institution, Waupun
Classification: Women's prison
Capital budget request: $9,389,000
From the request: This project would construct a new 36,000 GSF modern style dorm housing unit, with some internal division for Alcohol and Other Drug Abuse (AODA) beds, beds for our aging population, and beds for general population inmates for a total of no less than 180 beds. Sufficient room needs to be included for the AODA programing to occur, for community service activities to continue, and for a servery and dayroom area to accommodate the dorm population.
Consideration should be given to the importance of separating the AODA program participants remaining from the other activities of the unit. DOC received a Block Grant of $150,000 which requires separation of the AODA participants from general population. Inmates participating in the AODA program typically do not have institution jobs, with their main focus on their programming needs.
AODA – Currently located in Adams Hall, which is the second oldest building at Taycheedah. Adams Hall is a 3-story brick building with general population on the 1st and 3rd floors, and a combination of general population and AODA participants on the second floor, for a total of about 170 inmates. Until recently, the second floor of Adams Hall occupied only the AODA participants. With the increase in female inmate population, the other two floors of Adams Hall have been opened with as many as 10 inmates to a room. Adams Hall was not originally constructed with indoor plumbing, rather it was retrofitted with plumbing in the cells in the 1970’s. Unfortunately, the plumbing leaks on a regular basis into areas on the first floor. Although doing their best, staff is not able to keep up with the repairs and maintenance concerns of this building. The thick walls and steam heat with no air exchange system make summers in Adams Hall often too hot to hold productive AODA groups. In the winter the hot water radiators with no controls make it equally difficult to regulate the temperature. Adams Hall also has a lack of cameras making it non-compliant with Prison Rape Elimination Act (PREA) guidelines.
The third floor of Harris Hall has deteriorated to the point it is no longer safe to occupy and the cost to renovate would be excessive. Adams Hall is also plagued with failing plumbing, failing concrete decorations on the exterior, lack of ventilation, and poor utilization of space.
Community Service and the Aging population – Currently Harris Hall is where inmates who are aging aspire to be housed. There are a limited number of beds available in this, Taycheedah’s oldest building, so a good conduct history is required to be assigned to Harris Hall. Because many of these same inmates also have an interest and skill in sewing and knitting, Community Service is currently run out of Harris Hall. The Community Service group is responsible for many of the quilts, blankets and other craft items donated back to the community via local nonprofit groups. Because of their age, health issues, and/or dependency on medical appliances, the new facility should be designed to meet current ADA standards. The design should include the ability to accommodate 20 or more inmates with physical limitations.
General Population Inmate - The current dorm is well received by the inmates housed there. The open style and social dynamic is easy to supervise and a good fit for the female offender population.
Servery – The servery must be able to accommodate both tray line service and delivery of modified medical diet prepared in Food Service and delivered to the unit. Refrigeration, proper hot storage, under the counter dish washer, hand washing, and plenty of storage will be required. The current dining facility at Prescott was designed to feed about 400 inmates; unfortunately our current population is over 800.
Unfortunately, the plumbing leaks on a regular basis into areas on the first floor. Although doing their best, staff is not able to keep up with the repairs and maintenance concerns of this building.
The female population is 200 inmates higher today than it was when the John C. Burke Correctional Center was converted to a male facility in December of 2011. The Wisconsin Women’s Correctional System has experienced a steady increase in population since December 2011; December of 2011 the population was 1,148; December of 2012 was 1,222; December 2013 was 1,230; December 2014 was 1,343; December 2015 was 1403; August 2016 (current) population is 1,360.
Both Adams Hall and Harris Hall were opened in the early 1900s. Neither building is considered accessible by today’s ADA standards. Each building has many HVAC, plumbing and exterior masonry issues. The third floor of Harris Hall has deteriorated to the point it is no longer safe to occupy and the cost to renovate would be excessive. Adams Hall is also plagued with failing plumbing, failing concrete decorations on the exterior, lack of ventilation, and poor utilization of space. Adams Hall is located on the northeast side of the institution grounds, away from the rest of the housing and many institutional services.
Construction of a new dorm will allow the DOC to replace two aging and expensive to maintain buildings. A new building will also allow for better supervision by security and better access for those with physical impairments to other institution facilities.
Adams did house a minimal amount of inmates at one time, but now it is full and the 1st and 3rd floors are staffed 24/7 with unallocated positions.
Institution: Waupun Correctional Institution, Waupun
Classification: Maximum security
Capital budget request 1: $6,981,000
From the request: This project would construct improvements that include: cell front doors, operators and locking mechanisms, ADA improvements, plumbing improvements, electrical upgrades, telephone upgrades, heating and ventilating improvements, security camera monitoring and recording improvements, and a fire suppression and smoke control system. ADA improvements for the building will be contained to those required for inmates including cells, showers and toilet facilities. Three inmate housing cells would be converted into two accessible cells, which would provide 2% of all cells required for compliance. ...
The existing fire protection system consists of a 2.5-inch fire main extending throughout the building to several Fire Hose cabinets. No fire suppression sprinkler system is currently in the building. ... The intent is to fully sprinkle, with detention sprinkler heads, the cells and inmate areas. The fire department connection will be extended outside the prison wall for easy access to the fire department. ...
Three inmate housing cells would be converted into two accessible cells, which would provide 2% of all cells required for (Americans with Disabilities Act) compliance.
The facility has a 20-ton water chiller with remote air-cooled condenser to provide tempered air to the basement. The two compressors for this unit are no longer working and the chiller is no longer in operation. ...
Additional cameras and equipment will be added as requested by the facility. Some existing cameras will be replaced with new as directed by the facility. The surveillance system will be connected to the Central Control via existing fiber backbone cabling. The Central Control existing system matrix will need to be reprogrammed for the additional cameras.
All 1960s vintage panels will be replaced with new equipment. The panel at the officer’s station cage is currently used to turn the ceiling and wall lighting on and off daily by switching circuit breakers. Breakers are not designed to be used as switches on a regular basis so new switches are required.
This building contains 59 single occupancy cells. It houses inmates with a wide range of issues including: Psychological disorders combined with behavioral instability and other needs in a "therapeutic community” environment. These inmates have an inability to function adequately within the general population. The original building was built in 1956 as a segregation unit. There was an addition to the building put on in 1982. There have not been any major upgrades to this building since it was built, nor to the addition. This is the only housing unit at WCI which has not had any of these improvements to date. A study was completed in 2011.
Capital budget request 2: $4,090,000
From the request: The DOC requests enumeration of $4,090,000 GFSB for the completion of water system upgrades for the Central Generating Plant located at Waupun Correctional Institution (WCI). ...
This project would complete the water system upgrades for the Central Generating Plant, which provides water service to the Central Generating Plant, Waupun Correctional Institution (WCI), Dodge Correctional Institution (DCI) and Burke Correctional Center in Waupun. The project would provide for the planning, design, and construction of:
• Study for site selection of the new treatment system and well location.
• New Well No. 6 and Pump House. This well would ideally be located at the northwest portion of the DCI grounds at least 1,500 feet from Well No. 5. It would be finished in the lower sandstone aquifer and be approximately 650 feet deep.
• New water treatment facility. Construct a new treatment system, ideally located near Well No. 6.
• Abandonment of Well No. 5. This includes removal of the pump, installation of tremie pipe, placement of pea gravel and grout.
• Construct backwash system at the new treatment facility located at new Well No. 6. It is assumed the conveyance piping would be a gravity sewer discharging to the Waupun sanitary sewer system north of the DCI grounds, near Beaver Dam and Lincoln Streets. Rock excavation would be required as part of this installation. Pipe size is expected to be 36-inches.
• New remote pump house for Well No. 3 and No. 4. Connect Well No. 3 and No. 4 to the water treatment facility. Rock excavation will be required for this installation. ...
Well No. 5 and the second storage tank were constructed in 2013 to meet current and future water system demands. Both are located on the west side of the DCI grounds. Well No. 5 is an 800 foot deep sandstone aquifer well cased and grouted to a depth of 200 feet. Test pumping indicates the well will be able to provide a capacity of at least 800 gpm. This well has not yet been placed in service due to water quality issues. There is no pumping station facility to deliver water to the distribution system. ...
Section NR 809 of the Wisconsin Administrative Code sets forth regulations and standards for combined levels of radium 226 (Ra-226) and radium 228 (Ra-228) in drinking water. ... Radium is a naturally occurring radioactive element found in some waters obtained from the deep sandstone aquifer which underlies much of the southern half of Wisconsin. Samples from Well No. 3 and 4 indicate radium levels in these wells are considerably below the standard. Well No. 5, however, has not been put into service due to high radium levels in the samples.
After rehabilitation water samples from Well No. 5 still indicate water quality concerns causing Well No. 5 to remain out of operation. The City of Waupun has recently agreed to provide the CGP with water in the event of an emergency at the site.
In 2015, Well No. 3, 4 and 5 were rehabilitated by chemical treatment and mechanical agitation. Portions of these wells were also partially permanently abandoned. The purpose of this work was to attempt to improve water quality by reducing concentrations of combined radium, iron, and manganese. An additional purpose was to improve water quality by reducing and controlling microbiological activity and biofilms in these wells. Iron levels in Well Nos. 3 and 5 also remain high.
Mechanical and chemical rehabilitation of Well No. 3 was completed in April of 2015. ... The bottom 100 feet of the well was permanently abandoned. Water samples taken for Well No. 3 show improved water quality levels. ...
Rehabilitation of Well No. 5 was completed in February of 2015. This rehab consisted of mechanical agitation and chemical treatment similar to what was done for Wells 3 and 4. The bottom 320 feet of this well was also permanently abandoned. After rehabilitation water samples from Well No. 5 still indicate water quality concerns causing Well No. 5 to remain out of operation. The City of Waupun has recently agreed to provide the CGP with water in the event of an emergency at the site.
Institution: Kettle Moraine Correctional Institution, Plymouth
Classification: Medium security
Capital budget request: $33,627,000
From the request: This project would provide for the planning, design, and construction of two new housing units with 200 beds each to replace six original housing units each containing 65 beds built in 1962 and expanded in the 1970’s. This will be the first of three sequential projects to replace all of the original and temporary general population housing units at Kettle Moraine Correlational (sic) Institution (KMCI). ...
The construction of KMCI began in 1960 and the facility was opened in 1962 as a Boys School with a rated capacity of 287. Over the years, the Kettle Moraine Boys School has gradually transformed into the KMCI to reflect the growth and change in DOC and now houses over 1,000 inmates. The 12 original cottages are over 50 years old and were originally constructed to house 25 youthful offenders. Ten of the units were expanded in the 1970s to increase the occupancy to 35 adult inmates. There was another increase to the number of inmates housed in them. Additional changes to the housing units and cottages have increased capacity to 50 inmates in the cottages and 65 inmates in housing units. Age, overcrowding and the conversion from juvenile to adult inmates has taken its toll on the facilities. KMCI continues to face significant repair and maintenance issues.
Maintenance on the existing buildings has been deferred to the point that significant and costly repairs are needed to continue operations. The original construction of these units does not meet current building codes. The air handling and ventilation systems are out of date and in need of serious cleaning and service. The construction of the air handling system has made it virtually impossible for this to happen without having dramatic reconstruction by expansion of the service area which is located in the attic of each unit.
All of the doors and locks are obsolete and parts and supplies are next to impossible to find. Door replacement required custom construction because they are non-standard size. The windows in the units are not detention grade and are not energy efficient. This leads to frequent breakage and a problem maintaining inmate cell room temperatures.
The hot water supply is also fed from the same central housing unit and the same problems of distribution occur. The units at the end of the complex frequently get cold water. ... some of the key issues, such as staffing efficiency and occupant safety, remain unresolved.
The hydronic heating system is controlled in one central housing unit which supplies three satellite units. This type of system is very costly to maintain and should problems occur it affects 260 inmates well-being. The hot water supply is also fed from the same central housing unit and the same problems of distribution occur. The units at the end of the complex frequently get cold water. This set up is also costly and leads to inmate climate issues related to hot water. Electrical components are now obsolete and in need of replacement. There has been some asbestos containing materials (ACM) abated over the years but the floors have a significant amount of ACM. The tiles are giving way and a large abatement project is in need to deal with floor replacement should the units not be replaced.
Estimates for renovation of existing buildings have been done, but some of the key issues, such as staffing efficiency and occupant safety, remain unresolved. The life cycle of the current structures is coming to an end as the cost of maintaining them is becoming prohibitive.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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