The Cap Times: Judge tells Vos, Gableman to immediately release records of election review or explain to the court why they aren't.
Politico: U.S. Supreme Court to hold special session on vaccine requirements.
Wisconsin State Journal: Former judge Brett Blomme sentenced to nine years in prison for child porn.
The Kansas City Star: Missouri trooper released a fugitive because of a state law prohibiting enforcement of some federal gun laws.
(The state law)declares “invalid” many federal gun regulations that don’t have an equivalent in Missouri law. These include statutes covering weapons registration and tracking, and possession of firearms by some domestic violence offenders.
Local departments are barred from enforcing them, or risk being sued for $50,000 by private citizens who believe their Second Amendment rights have been violated. Police are also prohibited from giving “material aid and support” to federal agents and prosecutors in enforcing those “invalid” laws against “law-abiding citizens” — defined as those who Missouri law permits to have a gun.
Pennsylvania Capital-Star: The slow undoing of the Sixth Amendment.
Several years ago, U.S. Supreme Court Justice Anthony Kennedy said plea bargaining determines “who goes to jail and for how long. It is not some adjunct to the criminal justice system. It is the criminal justice system.”
That is in spite of what President John Adams declared more than two centuries ago, ‘‘[r]epresentative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle, and fed and clothed like swine and hounds.’’
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Milwaukee Journal Sentinel: No pay raise for Milwaukee County's DA, legislators decide.
Committee co-chairman Sen. Chris Kapenga, R-Delafield, said the committee pulled Milwaukee County's raise back because of the $1,000 bail amount recommended by Chisholm's office for a violent offender who went on to kill six people and injure more than 60 in Waukesha's Christmas Parade in late November.
Politico: Those several thousand federal inmates released during COVID may not have to return to prison after all.
Lawfare: Speak up, Merrick Garland!
But nearly a year into his tenure as attorney general, though much of the criticism of (Merrick) Garland has been unfair or at least premature, the attorney general does have something to answer for: his relative silence.
The Washington Post: The most dangerous conservative judges are not on the U.S. Supreme Court.
In their book “How Democracies Die,” scholars Steven Levitsky and Daniel Ziblatt argue that one major way radical parties and leaders erode democratic governments is by capturing the judiciary and other ostensibly neutral institutions (such as the media). This is happening to America’s judicial branch right now. Any effort to strengthen America’s democracy must deal with these radicalized lower-level, GOP-appointed judges.
WPR: COVID is making the corrections officer shortage worse than the bad it already was.
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By Margo Kirchner
The Wisconsin Court of Appeals said Tuesday the State Supreme Court should decide the fate of the victims’ rights constitutional amendment known as Marsy’s Law that voters approved last year.
A District III Court of Appeals panel on Tuesday certified the appeal to the Wisconsin Supreme Court because Wisconsin Justice Initiative’s challenge to the amendment involves “significant questions,” the answers to which “will have a sweeping effect on our criminal justice institutions and those operating within them.”
WJI, three individual voters, and Sen. Fred Risser successfully challenged the wording of the ballot question presented to voters for amendment approval. Dane County Circuit Judge Frank Remington ruled in November 2019 that the question failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject. He stayed his ruling pending appeal, which allowed the question to appear on the ballot.
Marsy’s Law, WJI President Craig Johnson said Tuesday, “runs the risk of negatively affecting the constitutional rights of the accused in a way that the original proponents always denied was their intention. Yet that's the stark reality, and voters were never informed about this. The ballot question did not explain the issue fully and fairly, and left people to vote in the dark."
Johnson also is an individual plaintiff in the case.
The Supreme Court now must choose whether to decide the appeal itself (skipping the Court of Appeals) or tell District III to consider the matter first.
The District III panel judges were Lisa K. Stark, Thomas M. Hruz, and Jennifer E. Nashold, who usually occupies a seat on the District IV appeals court. Tuesday’s 20-page explanation of the certification was issued without an identified author.
The appeals court said that certification would speed up the important final decision. It would be in the best interests of those involved in the criminal justice system and Wisconsin voters generally “to have a timely and final decision on the sufficiency of the ballot question producing the amendment to our state constitution,” the court wrote.
The appeal has been fully briefed before District III since early April 2021.
Attorney General Josh Kaul appealed the trial court’s judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The defendants chose to venue the appeal in District III.
Dennis Grzezinski, lawyer for the plaintiffs, noted the court of appeals’ summary of WJI’s arguments that the ballot question was misleading and legally insufficient, “which led the Circuit Court to rule that the proposed amendments to the Wisconsin Constitution were not validly ratified.”
“We look forward to having the Wisconsin Supreme Court address these issues,” said Grzezinski.
WDJT: Wisconsin Attorney General Josh Kaul joins amicus brief in support of DACA.
“DACA has created opportunities for hundreds of thousands of people,” said Attorney General Josh Kaul. “I’m proud to stand in support of this enormously successful program that has benefited communities across the country.”
According to a release from the AG Kaul's office, the policy has enabled hundreds of thousands of grantees to enroll in colleges and universities, complete their education, start businesses that help improve our economy, and give back to our communities as teachers, medical professionals, and entrepreneurs.
Jacobin: How dark money bought Amy Coney Barrett's seat on the U.S. Supreme Court.
The New York Times: This bill could save the lives of formerly incarcerated people.
The Medicaid Re-entry Act, one of the many policy proposals thrown into limbo with the collapse of the Build Back Better Act this weekend, seeks to smooth this transition. The legislation would clear the way for states to use Medicaid to provide coverage for inmates up to 30 days before the inmates’ scheduled release. Currently, a provision of the Social Security Act known as the Medicaid inmate exclusion prohibits any federal health coverage for inmates of jails, prisons and detention centers. (There is a narrow exception for those requiring an outside hospital stay of more than 24 hours.)
Brennan Center for Justice: The right to an attorney: Theory v. practice.
Few people realize, however, that their constitutional right to a lawyer is limited in a number of significant ways. When the Supreme Court first recognized a constitutional right to counsel in 1963 in its landmark ruling in Gideon v. Wainwright, the justices did not require states to provide any particular remedy or procedure to guarantee that indigent defendants could fully exercise that right. They left the details to the states and, predictably, some states took the guidance more seriously than others.
Many criminal defendants are accused of relatively minor crimes that don’t trigger a right to counsel. Other suspects are accused of serious crimes in jurisdictions that have such poor indigent defense systems that the legal representation afforded them is ineffective or even worthless due to underfunding and lack of support from legislators.
Courthouse News Service: Minor league teams challenge baseball's anti-trust exemption.
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Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized.
The Case: Waukesha County v. E.J.W.
Majority/Lead Opinion: Justice Ann Walsh Bradley (17 pages), joined by Justices Rebecca F. Dallet, Brian Hagedorn, and Jill J. Karofsky
Dissent: Justice Annette K. Ziegler (16 pages), joined by Justices Patience D. Rogensack and Rebecca Grassl Bradley
The petitioner, E.J.W., appeals an appeals court decision extending his involuntary mental health commitment and finding that his request for a jury trial was not timely.
We conclude that E.J.W.'s jury demand was timely. Wisconsin Stat. §51.20(11)(a) does not limit the filing of a jury demand to only the first time that a final hearing is set. Rather, we determine that when a final hearing is rescheduled, the statute allows a jury demand to be filed up until 48 hours prior to a rescheduled final hearing.
Accordingly, we reverse the decision of the court of appeals.
E.J.W. was initially committed on April 15, 2014, for a period of six months. The circuit court determined that he was mentally ill, dangerous, and a proper subject for treatment. Shortly before the expiration of the initial commitment, the circuit court extended E.J.W.'s commitment for a period of 12 months, and his commitment was subsequently extended four additional times.
On February 7, 2019, Waukesha County (the County) filed a petition to again extend E.J.W.'s commitment, which was set to expire on March 12, 2019. A notice sent to E.J.W. and to the Office of the State Public Defender indicated that the final extension hearing was scheduled for March 5, 2019, at 1:15 p.m.
The March 5 hearing did not proceed as scheduled. Instead, at the hearing E.J.W. stated that his appointed attorney was unprepared and had never called him. E.J.W. requested that his counsel withdraw from representation and that the court appoint him new counsel. The circuit court granted E.J.W.'s request for new counsel and adjourned the hearing until March 12, 2019, at 1:15 p.m.
Additionally at the March 5 hearing, the County raised the fact that E.J.W. had not filed a jury demand and asked the circuit court to make a finding that E.J.W., by the failure to file such a demand, had waived his right to a jury trial....In response to the County's argument, E.J.W. orally demanded a jury trial. After hearing argument on March 5, the circuit court declined to rule on E.J.W.'s oral demand.
The State Public Defender's Office appointed a new lawyer for E.J.W., and the lawyer filed a jury demand. The judge turned it down on March 11, 2019, stating that the final extension hearing had been set for March 5, and E.J.W. did not meet the deadline to request a jury trial. The law requires a jury trial request be made at least 48 hours before the scheduled final hearing.
At the March 12, 2019 final hearing, the circuit court reiterated its ruling from the prior day. It stated, "Regarding the time set for hearing, the Court does find that the date was set as a week ago and that is the time that triggers that 48- hour notice...."
E.J.W. and the county eventually reached an agreement for an eight-month extension of E.J.W.'s commitment.
When questioned by the circuit court, E.J.W. explained that he was entering this agreement "because I am going to lose no matter what."
E.J.W. appealed, and the appellate court affirmed Waukesha County Circuit Judge Paul R. Bugenhagen Jr.
The County argues that this case is moot. It contends that the subject commitment order is long expired, and two subsequent extension orders have been entered by the circuit court since its expiration.
E.J.W. responds that the case is not moot because of the collateral consequences that outlast the commitment order itself. He specifically cites the restriction on his right to possess a firearm, potential liability for the costs of his care, the loss of legal rights, and the restriction of his employment options. If the case is moot, E.J.W. further argues that several recognized exceptions to mootness apply and that the court should nevertheless address the merits of his contentions....
Assuming without deciding that this case is moot, applicable mootness exceptions indicate that we should address the merits.2 First, this case presents an issue that is of great public importance, particularly to members of the public subject to commitments. Second, the issue is capable of repetition yet evades review due to the short timelines that attend ch. 51 commitment proceedings....Accordingly, mootness does not serve as an obstacle to our review of the merits of the issue raised in E.J.W.'s petition for review.
Our analysis in this case centers on the meaning of the statutory phrase, "time set for final hearing."5 E.J.W. argues that the adjournment of a final hearing resets the 48- hour deadline for filing a jury demand. In other words, he contends that the phrase "time set for final hearing" does not mean "first time set for the final hearing" and that the March 12 date was a "time set for final hearing" just as much as the March 5 date was.
On the other hand, the County asserts that 1:15 p.m. on March 5 was the only "time set for final hearing" to which the statute refers. It contends that once 48 hours before that time passed without a jury demand, no rescheduled hearing date could "revive" E.J.W.'s waived right to a jury trial. In the County's view, E.J.W. is asking the court to rewrite "time set for final hearing" as "time the final hearing is held." The County further argues that E.J.W.'s interpretation creates an opportunity for manipulation and delay of final hearings, which would cause the County to have to reschedule witnesses on short notice....
At first blush, both parties' interpretations may appear reasonable, but guided by the above principles, we agree with E.J.W.'s reading of the statute. Beginning with an examination of the language of the statute, there is no restriction in the phrase "time set for final hearing" that limits its meaning to the first time set for the final hearing. Here, there were two final hearings set and both had a "time set for final hearing." The first scheduled final hearing was adjourned and rescheduled, which simply means there was a new "time set for final hearing."
E.J.W.'s interpretation also fits in with the context of Wis. Stat. § 51.20(11)(a) and ch. 51 as a whole.
The law's context in the statutory scheme indicates that the legislature has determined that a minimum of 48 hours' notice is sufficient for the circuit court to secure the presence of jurors and the County to prepare for a jury trial in a mental health commitment case. Had a timely jury demand been filed prior to the March 5 time set for hearing, the circuit court and County would have had at least 48 hours' notice to secure a jury and prepare. With the jury demand timely filed before the March 12 time set for hearing, the circuit court and County likewise received at least 48 hours' notice. There is no additional hardship placed on the circuit court and no prejudice to the County in accepting the jury demand for the rescheduled hearing because in both cases the minimum advance notice they would receive is exactly the same.
Chapter 51, which governs involuntary mental health commitments, provides procedural and substantive protections to the person subject to a possible commitment.
It is consistent with these provisions to read the statute as providing another such protection to a person subject to commitment——the protection of a jury trial.7 The County's reading would restrict jury trials, contrary to ch. 51's contextually manifest purpose to afford due process protections including jury trials....
The County's concerns about potential manipulation do not alter our conclusion. Specifically, the County argues that E.J.W.'s position would allow individuals to manipulate timelines and delay final hearings, risking the unavailability of witnesses at hearings that are rescheduled on short notice.
The Washington Post: The pain of delayed justice continues long after courts shut down for COVID.
Worth Rises: Prison labor is exploited deep into the supply chain.
While PIECP )Prison Industry Enhancement Certification Program) is a federal program, it is overseen by the National Correctional Industries Association (NCIA), a member-based private association of prison administrators and corporations. In other words, those benefiting from PIECP worksites are also responsible for monitoring their own compliance with the program’s legal guidelines.
NCIA lists 74 corporate members, starting with mega-conglomerate 3M (NYSE: MMM), which is a corporate plus member, the highest level membership available at the association. Other recognizable brands include packaging and adhesives manufacturer Avery Dennison (NYSE: AVY), office furniture manufacturer Dauphin, and Burlington Industries, owner of the iconic Burlington Coat Factory.
The Washington Post: The alternative to U.S. Supreme Court expansion is surrender.
Now comes the deluge. The radicalism of this 6-3 majority is obvious. It has been well-documented most recently by my Post colleague Ruth Marcus, Slate’s Dahlia Lithwick and Linda Greenhouse in the New York Times. As they have warned, the extremism, the indifference to precedent, the twisting of the law, the imposition of ideology by judicial fiat — it’s all likely to get much worse.
Liberals, progressives and moderates who value the rule of law can wring their hands and sit back while this court carries us all back to the 19th century. Or they can say: Enough.
Daily Beast: President Biden's judicial appointments are making progressives happy.
“They are killing it, and that’s an understatement,” says Dan Goldberg with Alliance for Justice. “For progressives, it’s a great year for judges.”
GazetteXtra: COVID the top killer of law enforcement officers in 2020 and 2021.
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Law & Crime: Appellate judges criticize "heavily prejudicial" prosecution testimony in Harvey Weinstein trial.
NBC: Rittenhouse trial spurs interest in court-watching programs.
"You need watchdogs," (Simone) Levine said. "The main problem that we see with criminal courts is there's a huge difference between insiders and outsiders. The insiders are always trying to keep the outsiders out, so we educate the outsiders on what really happens in criminal court so that they can take the courts back."
The Hill: Congress to take up marijuana reform in the spring.
NBC: States make headway on criminal justice reform after Congress doesn't.
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The New York Times: Judge rejects Sackler family bankruptcy settlement that let them avoid lawsuits over opioids.
The judge, Colleen McMahon of the U.S. District Court for the Southern District of New York, said that the settlement, part of a restructuring plan for Purdue approved in September by a bankruptcy judge, should not go forward because it releases the company’s owners, members of the billionaire Sackler family, from liability in civil opioid-related cases.
Although the Sacklers did not file for personal bankruptcy protection, they had made immunization from opioid claims an absolute requirement in exchange for contributing payments amounting to $4.5 billion to the agreement.
But the bankruptcy code, Judge McMahon said, does not explicitly permit a judge to grant such releases, which she called “the great unsettled question.”
CNN: U.S. Supreme Court Justice Neil Gorsuch sends Texas abortion law case to appeals court instead of a district court less likely to agree with him.
"Last week's decision already made it unlikely that providers would be able to resume offering abortions in Texas after any time soon," said Steve Vladeck, a CNN legal analyst and a professor of law at the University of Texas School of Law. "Today's order will only increase that delay, especially if the Court of Appeals certifies a question to the Texas Supreme Court rather than returning the case to the district court," he said.
WXOW: Wisconsin appeals court refuses to reinstate frac sand pit permit.
Law & Crime: Man gets longest sentence thus far in Jan. 6 Capitol riot.
AP: Court upholds Trump administration ban on gun bump stocks.
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By Gretchen Schuldt
A bill to allow courts to strip away the parental rights from incarcerated people was ripped in public testimony by people who said it could well be unconstitutional and could cause more harm than good.
The bill, AB627, could create new pressures on the court system and delay getting permanent homes for children, according to the Department of Children and Families.
The bill was introduced by State Rep. Barbara Dittrich and State Sen. Duey Stroebel as part of a package of bills that Dittrich claimed was designed to seek "both the best welfare of the child while ensuring parents’ rights are upheld."
Many who testified at a public hearing on the measure earlier this month did not think it would do either of those things.
The bill would allow courts to take parental rights from anyone sentenced to at least four years in prison.
DCF, which in a fiscal estimate warned of the potential delays in finding permanent homes, also submitted testimony opposing the bill.
"First, parental incarceration is already a factor that may be considered in a TPR, and adding a ground making parental incarceration on its own a sufficient basis to terminate parental rights could raise constitutional concerns," the agency said.
Elements of the bill may be "unconstitutionally vague, leading to significant litigation.," the agency said. The testimony was submitted by Deputy DCF Secretary Jeff Pertl; Division of Safety and Permanence Administrator Wendy Henderson; Legislative Advisor Amanda Merkwae; and attorney Rachel Nili of the DCF Office of Legal Counsel
The bill would allow a judge to determine whether a parent is likely to be incarcerated for "a substantial period of the child's minority," the officials said.
"This language essentially asks the fact-finder to speculate as to whether the parent is going to re-offend and be incarcerated again in the future once they are released without outlining how one would predict whether it's likely a parent will be incarcerated for a substantial period," they said.
The bill also would disproportionately affect children of color, who are overrepresented in the child welfare system, they said.
"Finally," they said, a "significant bond and relationship may exist or can be formed between an incarcerated parent and their child.
Incarcerated parents continue to exercise responsibility by "maintaining contact through letters, phone calls, and visitation, and being emotionally available for their child, and the parent may reunify with their child and continue parenting them upon release."
The Ho-Chunk Nation Legislature said the bill would "result in a disproportionate impact on Indian families. American Indians represent a disproportionate rate of those incarcerated in Wisconsin. In 2013, Wisconsin had the highest rate of American Indians incarcerated in the country. And those rates do not seem to be going down."
"The Indian Child Welfare Act (ICWA) requires that active efforts be provided to prevent the breakup of an Indian family..." the Ho-Chunk testimony said. "Yet, over and over conditions recommended from county social workers for incarcerated parents are essentially nothing.... Instead of making it easier to terminate parental rights, the system should be enhanced on the prevention side. When a parent is incarcerated, they are the easiest to locate and work with. This is an optimal time to work with them on parental safety."
The State Public Defender's Office noted that a four-year-or-greater sentence could change or be reversed on appeal.
"There is no mechanism to allow for a termination to be undone if a person successfully appeals the criminal case," said the testimony submitted by Adam Plotkin, SPD's legislative liaison. "And even if there were, this will have unnecessarily created trauma for the child."
The bill also would allow the termination of parents incarcerated now even though they had no way of knowing that their imprisonment could lead to the loss of their children.
"This raises constitutional due process issues in terms of not having provided notice in the prior case that is now leading to termination based on this new ground," SPD said.
"AB 627 would do nothing to help parents or families," Legal Action of Wisconsin said in prepared testimony. "Rather, it would break families apart, create additional punishments on parents already incarcerated, and violate parents' constitutional substantive due process rights while removing judicial discretion and adding additional stress to already overburdened systems."
"While we respect and understand the concern for the safety and well-being of vulnerable children, we do not believe that TPR based on incarceration supports survivors of violence and their children," End Domestic Abuse Wisconsin said. "In fact, we are concerned that this legislation would do more harm than good.
"We understand that perpetrators of violence present a danger to children and that custody and placement decisions should be made in such a way that incorporates the significant adverse effects that proximity to an abusive parent has on the child's health and well-being. However, we also know that survivors of violence often accrue criminal records due to victimization and experience incarceration. As a result, abuse victims may be 'likely to be incarcerated for a substantial period of time.' "
Registering against the bill were the ACLU of Wisconsin, Community Advocates, Disability Rights Wisconsin, End Domestic Abuse Wisconsin, the League of Women Voters of Wisconsin, Wisconsin Association of Family and Children's Agencies, the Wisconsin Coalition Against Sexual Assault, and the Wisconsin Council of Churches.
No organization or individual registered in favor of the bill.
Milwaukee Journal Sentinel: President Biden nominates Milwaukee County Circuit Judge William Pocan to federal bench.
CNN: President Biden set to pass Trump in first-year judicial nominees.
Slate: Will blue states adopt constitutional vigilantism?
On Wednesday, Florida Gov. Ron DeSantis announced that he would push a bill called the “Stop WOKE Act” allowing parents to use the Texas vigilante lawsuit mechanism to seek a “private right of action” to sue teachers who teach “CRT.” And over the weekend, California Gov. Gavin Newsom suggested his state would copy Texas’ newly blessed scheme of issuing bounties against abortion providers and instead target sellers and manufacturers of certain types of guns. Both laws would deputize private citizens to sue fellow citizens to enforce laws that might otherwise face judicial scrutiny.
Prior to S.B. 8, Republican legislators in a number of states used similar schemes to wage their culture war. For example, as Scott Pilutik reported in Slate in September, Tennessee passed a law allowing lawsuits against schools over transgender bathrooms and Florida passed a law allowing lawsuits against schools for allowing transgender athletes to compete. And Kentucky has passed a version of the measure DeSantis proposed targeting “Critical Race Theory,” while Missouri is allowing lawsuits by anyone who thinks they are being unlawfully denied a gun. These laws existed in a legal gray area until last week’s SCOTUS decision. Now, legislators appear free to write this novel enforcement mechanism into their laws without fear of judicial intervention (though, as others have noted, it’s unlikely this hyperconservative court will apply this standard consistently between red and blue states).
CNN: U.S. Sen. Elizabeth Warren calls for expanding the U.S. Supreme Court.
"With each move, the court shows why it's important to restore America's faith in an independent judiciary committed to the rule of law," Warren wrote in an opinion article published by The Boston Globe. "To do that, I believe it's time for Congress to yet again use its constitutional authority to expand the number of justices on the Supreme Court."
The Democrat wrote that she did not "come to this conclusion lightly" or because she disagreed with a particular decision but that she came to the conclusion because she believes "the current court threatens the democratic foundations of our nation."
ABA Journal: Appeals court upholds using inmate's Comedy Central interview in his death penalty trial.
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