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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: Mark G. Schroeder
Appointed to: Outagamie Country Circuit Court Appointment date: March 19, 2021 (elected to a six-year term on April 5, 2022) Education: Law School – University of Wisconsin, Madison, Wisconsin Undergraduate – University of Wisconsin, Madison, Wisconsin Associate – Mid-State Technical College, Wisconsin Rapids, Wisconsin High School – Lincoln High, Wisconsin Rapids, Wisconsin Recent legal employment: May 2014-present – Family Court commissioner, Outagamie County, Appleton, Wisconsin March 2011-May 2014 – Assistant corporation counsel, Outagamie County March 2003-May 2011 – Assistant district attorney, Outagamie County Bar and Administrative Memberships: State Bar of Wisconsin U.S. District Court for the Western District of Wisconsin U.S. District Court for the Eastern District of Wisconsin General character of practice: Immediately after law school my practice was primarily civil litigation in nature while I worked with a firm then called Coyn Niess Schultz Becker & Bauer in Madison. That firm specialized in insurance defense in personal injury, medical malpractice, and worker's compensation cases. While there I also represented a few clients who were plaintiffs in personal injury cases and contractual disputes on an occasional basis as those cases came into the firm. I left that practice in part due to a desire to move into a criminal legal practice and in part due to my own experiences working in an industrial setting where coworkers were injured and on one occasion killed and my resulting personal discomfort with defending woker compensation cases. I spent a little less than nine years in criminal practice as a trial prosecutor, maintaining a primarily felony caseload for all but the first few months of that period. I spent two of those years as a sensitive crimes prosecutor working on sexual assault and child abuse trials and the balance prosecuting violent or weapons related offenses. During that time frame I participated in somewhere between 40 and 50 jury trials and was in court nearly every day. In 2011, I took a position in the Outgamie County Corporation Counsel's office, where my practice consisted of representing the County in civil litigation, mental health commitments, guardianships, child support enforcement, collections, while providing legal advice to the County Executive, the Sheriff and various county officials. During that time I was in court nearly every day. I also appeared on behalf of the County in both the Court of Appeals and on one occasion before the Wisconsin Supreme Court. Since 2014, I have served as Family Court Commissioner. I preside over family law cases, civil injunctions, small claims actions, guardianships and mental health commitments. In the past seven years I have presided over thousands of contested post judgment family law hearings and evidentiary hearings in civil injunction cases. Describe typical clients: My typical clients have ranged from insurance companies and their insured parties during my civil practice early in my career to the State of Wisconsin and Outagamie County during my years in the public sector. As a prosecutor I had frequent contact with victims of crimes, and while they were not my clients, I did often represent interests that mirrored theirs as I represented the interests of the State of Wisconsin. My areas of specialization have changed over the years as I moved into different practice areas. As a prosecutor I initially specialized in sensitive crimes prosecution and then violent and weapons related offenses, as well as conspiracy cases related to violent or weapons related offenses. While I was in the Corporations Counsel's office with Outagamie County, I specialized in mental health committment cases both at the trial level and on appeal before the Court of Appeals and the Wisconsin Supreme Court. I also advised county officials in municipal law issues. Number of cases tried to verdict: Approximately 45 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: Mental commitment of Melanie L. – 12AP99, 2013 WI 67 - Court of Appeals Dist. III, Wisconsin Supreme Court …. While I was not involved at the Circuit Court hearing, I handled the case befor the Court of Appeals and the Wisconsin Supreme Court. The issue on appeal was whether the County had met its burden of proof regarding the involuntary medication order at a hearing to extend an existing commitment. I drafted appellate briefs before the Court of Appeals without upheld the involuntary medication order. I also drafted briefs before the Wisconsin Supreme Court and appeared for oral argument on February 26th, 2013. The Court reversed the Court of Appeals on a 4-3 vote and attempted to clarify the evidence necessary and the evidentiary standard trial courts should apply in determining whether to issue an involuntary medication order. The Supreme Court ruled that the trial court applied an incorrect legal standard and that the evidence introduced at trial was insufficient to sustain the involuntary medication order. That case, and its progeny, have helped clarify for counties and committed persons the circumstances in which medication may be involuntarily administered. This cases is routinely cited by counsel and courts since it was issued and was relied upon by the Wisconsin Supreme Court as recently as October 2020. Diane M. Stumph vs. Oneida Tribe – Outagamie Case No.: 15CV1036…. This case was a harassment injunction petition brought by Ms. Stumph against the Oneida Tribe as a corporate entity, specific agencies for the Tribe including its Police Department, its Zoning Department, as well as individual officials with the Tribe including zoning officers and police officers. While harassment injunction cases are extremely significant to the litigants themselves they are rarely complex or significant from a legal perspective. In this instance, however, the Petitioner sought to enjoing the Tribe and officials of the Tribe from engaging in activities they were otherwise authorized to engage in on the allegation that the Petitioner, while she owned property within the bounds of the Oneida Reservation, was not a tribal member and was therefore not subject to tribal regulations. The case continued over multiple hearings and required repeated rulings on summary judgment motions brought on grounds ranging from procedural jurisdictional defects to sovereign immunity. It also ultimately involved analyses of whether the Tribe had unintentionally waived its sovereign immunity defense, whether Petitioner had modified the ownership structure of her business specifically to avoid regulation by the Tribe, and if so, whether that action was timely and effective for that purpose, and whether the specific officials named individually were acting in a personal or official capacity during their interactions with the Petitioner. Over the course of multiple hearings the cases against individual Respondents were dismissed on varied grounds on jurisdictional defects, summary judgment at the close of Petitioner's case, and then ultimately on my conclusion that the Tribe had not waived its sovereign immunity, that it had the authority to issue zoning orders against the Petitioner's business property, and that the individuals named were acting in their official capacities rather than as individuals. My decisions were upheld on appeal. Mental commitment of Michael H. – 2013AP1638, 2014 WI 127.… I represented Outagamie County before the trial court and the Court of Appeals in this matter which again went on for review before the Wisconsin Supreme Court. The Court in this matter attempted to clarify the evidence required for a person to be found "dangerous" pursuant to Wis. Stat. s. 51.20, and area of law it continues to attempt to develop and clarify as recently as this year. I prepared and submitted briefs for the Wisconsin Court of Appeals which then upheld the decision of the trial court. While the case was pending before the Wisconsin Supreme Court I began preparing briefs for that Court. I was appointed Family Court Commissioner before the briefs were finalized and filed and the case was taken over by a colleague in the Corporation Counsel's office. Over the course of the next few months I consulted with co-counsel on a repeated basis as he revised the briefs I had begun preparing and in anticipation of oral argument before the Wisconsin Supreme Court. The Court ultimately upheld the trial court and Court of Appeals. This case continues to be cited by courts and counsel on issues of dangerousness in mental commitment cases. Experience in adversary proceedings before administrative bodies: While in civil practice early in my career I appeared before Administrative Law Judges in worker's compensation cases on several occasions from 2002 - 2003. Describe your non-litigation experience (e.g., arbitration, mediation). I participated in court ordered mediation sessions related to ongoing civil litigation involving Brown County during a period where I was employed by their Corporation Counsel's office in 2008 before returning to criminal practice in Outagamie County. As Family Court Commissioner in Outagamie County, I serve as the department head and supervisor of the Family Court Services office with the county, which administers and conduct mediation processes in family law actions. During my time in the Outagamie County Corporation Counsels office I participated in various non-litigation legal activities including advising county officials, employees and in the negotiation and administration of Intergovernmental Agreements, parliamentarian work for the County Board, and appearing before administrative boards and agencies related to the County's involvement in Intergovernmental Agreements. 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: Jeff Froehlich, Calumet County judge, 2012 Edmund Jelinski, Winnebago County judge, 2011 Edmund Jelinski, Waupaca County judge, 2014 Carey Reed, Calumet County judge, 2021 Greg Gill Jr., Court of Appeals, 2021 Christian Gossett, Winnebago County district attorney, 2006 Professional or civic and charitable organizations: Family Court Commissioner’s Association, 2014-present, including as president Family Law Section Board-State Bar of Wisconsin, 2016-present, board member and Legislative Committee member Significant pro bono legal work or volunteer service: I manage a free legal clinic for unrepresented family law litigants in Outagamie County. As part of that work recruit and attempt to retain attorneys and paralegals for the clinic, schedule clinic sessions, reserve meeting space and perform other administrative duties for the clinic. In addition, my service on the Family Law Section Board includes meetings and work on weekends and off hours, including written and occasionally in person testimony before the legislature since 2016. Why I want to be a judge: I went to law school with the intent to work as a public servant. At one point I intended to work as a prosecutor for my entire career but when life intervened, I looked for other ways to help and serve the people in my community with the skills I’ve been given. While I am not an Outagamie County native, I have resided there for a period of 18 years and come to see it as my home, and I believe my life experiences provide commonalities with the people of various parts of my adopted home county. Like the residents of the various Outagamie County townships, I grew up in the country and lived in farm country as a child, bailing hay and picking apples for spending money as a teenager. Since 2003 I’ve lived in Appleton, the County’s largest city, near the same city park where residents come to use the public pool in Summer and sled down hills in Winter. After high school I attended a tech school not unlike Fox Valley Technical College in Appleton, and I worked swing shift in a plant for a few years afterwards to support my family, not unlike what many Outagamie County residents have done for generations in places like Kimberly and Kaukana. While I am now an attorney and a Family Court Commissioner, I believe those life experiences, provide me with experiential insights into the lives of those that come into my courtroom every day, and that insight would serve me well as a judge. It has been my great honor to serve the people of Outagamie County for the past 18 years in various ways, and it would be a culmination of decisions I made all those years ago to continue that service on the Circuit Court bench. I believe my legal experience in various areas of the law leaves me well qualified to serve the county well as a judge in ensuring access to the court system and a fair and impartial application of the law to those cases that come before me, consistent with the manner in which I preside over hearings as Family Court Commissioner. 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. While there are many cases that come to mind that I’ve relied upon and come to value as I studied and practiced law since 2002, the case I’ve chosen was a source of joy for many in Wisconsin when it was decided, including for close friends of mine whose commitment to each other was affirmed as a function of their constitutional rights in April 2015. Obergefell v. Hodges 135 S. Ct. 2584 (2015), relying and expanding on the legal principles underpinning the decision in United States v. Windsor 133 S. Ct. 2675 (2013), ruled unconstitutional any ban on same sex marriage that remained in the United States. My observation of the impacts of that decision come second hand, but it deeply affected people that I care about and others all across the State of Wisconsin. In 2010 my wife and I attended the wedding of one of our dearest friends whom we have known since our days in High School in central Wisconsin. There was a ceremony at a place of worship, a dinner and a reception, similar to the dozens of weddings I’d attended before. Unlike those weddings, this ceremony, while incredibly significant to our friend and his new husband, was legally meaningless. In the wake of the ceremony, I gave advice to my friend and his husband about legal documents they could execute to try to capture some of the same benefits that legally married couples enjoyed by the mere existence of their marriage. They took some of that advice, but ignored some as well, deeming it too troublesome or expensive to pursue further. Within a few years the issue of same sex marriage and the constitutionality of its prohibition were percolating before the United States Supreme Court first in Windsor and later in Obergefell. There were conversations between my friends and I about which way the Obergefell decision would fall in 2015, and it became obvious to me that while this committed couple did not need the affirmation of others to give their marriage meaning to themselves, there was a fear that came with knowing that the legal validity and recognition of that commitment could be reversed by political forces outside their control. Obergefell ended all of that, and the day it was released became a day of celebration for our friends. As Family Court Commissioner I have had the opportunity to preside over many marriages in my courtroom since same sex marriage became legal in Wisconsin on October 6th, 2014. By sheer numbers, most of the couples who marry in my courtroom could have married long before that date, and for them Obergefell might have little meaning, but for those who could not Obergefell meant they never had to worry whether a move to another state or the next election cycle would render their marriage a legal nullity again. It’s for that reason that I’ve chosen to Obergefell v. Hodges as a case that brought significant positive impact for many in the State of Wisconsin. Two or three judges whom I admire and why: I’ll start with Judge Richard Niess, who recently retired from the bench in Dane County after 16 years. I worked for Judge Niess when I first graduated from law school and learned quite a bit from him in that time. When he was appointed to the bench by then Governor Doyle in 2004 I was already living and working in Outagamie County and didn’t practice in front of him. As luck would have it, Judge Niess seemed to repeatedly end up on cases that gained statewide attention and over the years made rulings on topics such as voter ID laws, the need for special elections, the constitutionality of laws passed in a lame duck session in 2018, and massive open records requests brought against state agencies, sometimes by state legislators. Judge Niess handled these cases efficiently and, even knowing appeal was inevitable, issued decisions that were both prompt and well developed. I followed his career from afar based on my experience working in the firm he led after graduation and recognized his voice in his writing. His thinking was incisive and his good humor was evident both in and out of court. Over the years he spoke about how he saw the work of the judiciary that have helped me think more clearly about the manner in which I do my work as a Commissioner: “Just because you believe a lawyer is being unreasonable doesn’t mean that they don’t have a viewpoint that you should consider.” In Family Court the emotional nature of the topics involved are such that it’s not unusual for parties or their attorneys to become heated during the course of their arguments in hearings, and once that occurs it would be easy discount the possibility that aspects of their arguments could be soundly based in fact or law. Reflecting on what he’d say to new judges as he neared retirement, Judge Niess said “the most important thing for these judges to keep in mind is that they are trustees of rule of law,” Niess said. “They are fiduciaries to the public for whom they serve.” This is what I try to make the focus of my work as a Commissioner and what I try to remind myself of when the conduct I see in my courtroom starts to try my patience. When I was a new Associate Attorney in his firm long ago there were a lot of things I tried to emulate in the way Judge Niess practiced law, and, though he was somewhat surprised to hear it when we spoke before his retirement, I found myself doing the same when I became a Commissioner in 2014 and in the years since. The second person I’ll speak about is Justice Thurgood Marshall. As a history major with an interest in law, I spent a good portion of my undergraduate years studying legal history in the context of broader cultural and political history. During those years I, like many, came to admire and be continually amazed by the life and work of Justice Marshall. The impact of his work as an attorney fighting against segregation in schools and elsewhere are both obvious and profound, but his work as a Justice of the United States Supreme Court continued his work as an attorney in recognition of the equal protection clause as more than mere words, but as a fundamental mechanism for limiting attempts by governmental entities to restrict the individual liberties of the people they were intended to serve. I do not agree with all of the legal arguments and analysis that Justice Marshal in his opinions for the court or his masterfully written dissents, but I admire his reason, his legal acumen, his dedication and passion for his point of view and the power of the law to serve as a check on governmental infringement on life and liberty and a guarantor of the rights of the people. The proper role of a judge: It’s a judge’s duty to ensure access to the legal system, to provide litigants with the opportunity to be heard, and to apply the law while maintaining an impartial demeanor at all times. In preparing for this process I consulted with a number of attorneys and others whom I have met in my professional capacity and take great pride in the number of times I’ve been told over the last few weeks that they are unaware what political party, by way of example, I might tend to support with my votes. This demonstrates, I hope, the pains I have taken to maintain that impartial demeanor and exercise restraint in my comments from the bench and in my life since I was appointed Family Court Commissioner in 2014. Additionally, through my supervision of a volunteer legal clinic in Outagamie County and the Self Help Center to assist unrepresented litigants I have tried to fulfill a jurist’s duty to ensure access to the legal system during my time as a Family Court Commissioner. I believe that it is the duty of a judge to exercise restraint in the application of the law and precedent to the cases that come before them instead of taking those cases as an opportunity to try to upend existing law merely because it conflicts with my personal opinion or beliefs. These principles should be and will be the primary directives of my work as a judge should I have the privilege of serving the people of Outagamie County in that capacity. Those directives, however, only go so far, which is something I’ve come to realize over the course of my legal career. In many areas of the law statutory authority and precedent provides factors for judicial officers to weigh, but little or no instruction as to how they should be weighed against each other. An example of that is Wisconsin Statute Ch. 767.41, which lists the factors a court should consider in resolving disputes over custody and placement of a minor child and directs judicial officers to resolve them in the child’s best interests. In doing so, the law provides the judicial officer with a destination, the “best interests” of the child and tells it what categories of facts to consider, but the map on how to get to that destination remains blank. Inevitably, a judge must in those moments utilize their judgment to traverse the space between the legal factors the court must consider to the legal “destination” the law provides. A judge cannot hope for universal approval, but they can and must demonstrate clearly how the law is being applied to limit the chances that the litigants, or the general public, will view the legal process as arbitrary exercises based on the personal beliefs of a randomly selected jurist.
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 The Wisconsin Supreme Court just issued a decision in Clarke v. Wisconsin Elections Commission invalidating the current Assembly and Senate maps based on the petitioners' contiguity argument. The court ruled 4 to 3, with Justice Jill Karofsky writing the majority opinion. The court stated in pertinent part as follows:
¶3 We hold that the contiguity requirements in Article IV, Sections 4 and 5 mean what they say: Wisconsin's state legislative districts must be composed of physically adjoining territory. The constitutional text and our precedent support this common-sense interpretation of contiguity. Because the current state legislative districts contain separate, detached territory and therefore violate the constitution's contiguity requirements, we enjoin the Wisconsin Elections Commission from using the current legislative maps in future elections.8 We also reject each of Respondents' defenses. We decline, however, to issue a writ quo warranto invalidating the results of the 2022 state senate elections. ¶4 Because we enjoin the current state legislative district maps from future use, remedial maps must be drawn prior to the 2024 elections. The legislature has the primary authority and responsibility to draw new legislative maps. See Wis. Const. art. IV, § 3. Accordingly, we urge the legislature to pass legislation creating new maps that satisfy all requirements of state and federal law. We are mindful, however, that the legislature may decline to pass legislation creating new maps, or that the governor may exercise his veto power. Consequently, to ensure maps are adopted in time for the 2024 election, we will proceed toward adopting remedial maps unless and until new maps are enacted through the legislative process. At the conclusion of this opinion, we set forth the process and relevant considerations that will guide the court in adopting new state legislative districts——and safeguard the constitutional rights of all Wisconsin voters. WJI will report more on this decision but wanted to get this news out to you. Here's the full opinion, including the dissents (all 225 pages). By Alexandria Staubach Last week a bipartisan group of more than 30 lawmakers introduced a bill to end sentences of life without the possibility of parole for juveniles. The bill, Senate Bill 801, also creates new mitigating factors for a sentencing court to consider, recognizing that juveniles change and mature mentally and emotionally over time. The bill would apply retroactively to anyone currently serving a juvenile life-without-parole (JLWOP) sentence. If enacted, SB 801 would bring Wisconsin in line with 28 states already banning JLWOP sentences, including three of Wisconsin’s closest neighbors: Minnesota, Iowa, and Illinois. The bill has been referred to the Senate Committee on Judiciary and Public Safety. Ruling in Graham v. Florida, the U.S. Supreme Court held it unconstitutional for a court to impose JLWOP on non-homicide juvenile offenders; the court found that such a sentence violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In Miller v. Alabama, the U.S. Supreme Court banned mandatory life sentences for juveniles no matter the severity of the crime. SB 801 states that its purpose is to clarify that “the statutory mandatory sentence of life imprisonment without the possibility of parole or extended supervision for repeat offenders does not apply to youthful offenders,” consistent with Miller. JLWOP sentences are unique to the United States; we are the only country in the world with such a practice. According to the Campaign for the Fair Sentencing of Youth, the practice is permitted in 22 states, including Wisconsin and Michigan. In five states the practice remains on the books without active sentences. Michigan has the highest JLWOP population in the nation and recently made national headlines for sentencing 17-year-old Ethan Crumbly, who committed Michigan’s deadliest school shooting at age 15, to life without the possibility of parole. However, Wisconsin outpaces Michigan regarding overall number of youth incarcerated on life sentences with or without parole (141 compared to 65) and sentences over 40 years (73 compared to 15) as well as the total number of children in adult prisons (1,709 compared to 554), according to a 2021 report produced by the nonprofit Human Rights for Kids. The following table shows the bill's sponsors.  By Alexandria Staubach Gov. Tony Evers has been busy considering bills from the Legislature, tackling 51 bills on Dec. 6 alone. In what WJI sees as a win for the criminal justice system, Evers vetoed Senate Bill 86/Assembly Bill 57, which would have erased prosecutorial discretion to dismiss or amend certain charges without prior authorization from the court and prohibited deferred-prosecution sentences for crimes. WJI opposed the bill’s lack of clear procedure for dismissal authorization and its prohibition of deferred prosecutions in appropriate cases. Those outcomes would have increased burdens on the criminal justice system without providing appropriate resources to deal with the fallout. Voting and criminal justice legislation signed into law by Evers included the following: Assembly Bill 335 (Wisconsin Act 52) Specifies that if a candidate is convicted of certain election crimes, a court must order dissolution of the candidate’s committee and return of unencumbered campaign funds; also requires the court to appoint a new treasurer for the committee to carry this out. Senate Bill 283 (Wisconsin Act 53) Provides that if a municipality, county, or commission chooses to broadcast canvassing proceedings live in any election, including live stream or on the internet, the same entity must record the broadcast; the recording must be retained for 22 months. Senate Bill 433 (Wisconsin Act 54) Modifies current law so the requirement that presidential primary absentee ballots be sent at least 47 days in advance of the election applies only to military and overseas voters; all other voters will be sent the presidential primary absentee ballot at least 21 days in advance. Assembly Bill 36 (Wisconsin Act 58) Creates a six-month time limit for the state crime laboratories to process sexual assault kits and an expedited 60-day timeline under certain circumstances. Assembly Bill 166 (Wisconsin Act 61) Expands the definition of “sexual contact” to include instruction by a victim to touch bodily fluids with the purpose to degrade or humiliate the victim sexually or arouse or gratify the perpetrator for purposes of crimes against children and sexual assault.  In a letter dated Friday, Dec. 15, Wisconsin Justice Initiative asked Department of Corrections Secretary Kevin A. Carr to revise prison policy to allow peer video visitation for persons in DOC care who have terminal illness or are near death. A terminal-illness diagnosis often results in an imprisoned individual’s transfer to Dodge Correctional Institution (DCI). While DCI principally serves as the reception center for men entering the Wisconsin Department of Corrections (DOC) system, it also serves as the central medical unit for the male DOC population. But an incarcerated person’s removal to DCI for end-of-life care breaks bonds of friendship between incarcerated individuals that formed over years or even decades. And as WJI previously reported, DOC policy does not permit visitation, even by video conference, between two persons in DOC custody. WJI wrote to Carr as follows: Many individuals who die incarcerated have spent years if not decades of their life at another correctional facility. The friendship bonds developed in those institutions may be the most meaningful in their lives. It is inhumane to deprive people of these relationships at the end of life. While in-person visitation may be impractical and costly, video visitation is a satisfactory option available to DOC at little or no cost. Of the 21,974 persons incarcerated in the DOC as of October 31, 2023, nearly 24% were older than 50, including 44 individuals age 80 or older. As of June 30, 2023, the oldest person incarcerated at DCI was 92 years old. The incarcerated people in your care deserve dignity in death. A dignified death should include communication with one’s incarcerated peers—one’s lifelong friends. Please consider modifying DAI Policy # 309.06.01 to permit incarcerated persons with terminal illness to include their incarcerated peers on their video visitation lists or to otherwise have occasional video visits with their incarcerated peers. Copies of the letter were sent to the governor, the DCI warden, several DOC officials, and heads of pertinent legislative committees. WJI is committed to advocating for more humane conditions for those incarcerated in Wisconsin’s prisons and jails. Reducing the prevalence of lonely deaths is a low-cost way to achieve more humane outcomes for those who remain incarcerated at the end of their lives. DO YOU AGREE THAT THE POLICY SHOULD BE CHANGED? IF SO, PLEASE SIGN THIS PETITION TO SECRETARY CARR:  "Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. Italics indicate direct quotes from the application. Grammar mistakes and typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.  Name: Martha J. Milanowski
Appointed to: Vilas County Circuit Court Appointment date: Sept. 1, 2021 (elected to a six-year term on April 5, 2022) Education: Law School – University of Wisconsin, Madison, Wisconsin Undergraduate – University of Wisconsin-Madison High School – Whitefish Bay High, Whitefish Bay, Wisconsin Recent legal employment: January 2017-present – Vilas County district attorney, Vilas County, Wisconsin September 2000-December 2016 – Vilas County corporation Counsel, Vilas County, Wisconsin January 2000-August 2000 – Tribal attorney, Lac Vieux Desert Band of Lake Superior Chippewa Indians, Watersmeet, Michigan May 1998-December 1999 – Associate attorney, Johnson and Houlihan, S.C., Rhinelander, Wisconsin Bar and Administrative Memberships: State Bar of Wisconsin U.S. District Court for the Western District of Wisconsin U.S. District Court for the Eastern District of Wisconsin State Bar of Michigan (lapsed) General character of practice: As District Attorney, I prosecute violations of state criminal laws, county ordinances, delinquency matters, various referrals from State agencies and also open meetings violations. I work with victims of crime and supervise a staff of five (one assistant prosecutor, three legal secretaries and one victim witness coordinator). My office recieves referrals from five different law enforcement agencies (Lac du Flambeau Police Department, Vilas County Sheriff, Eagle River Police Department, Wisconsin State Patrol and Wisconsin Department of Natural Resources). I am a member of the Zaagiibagaa Healing to Wellness Court, a diversion court and collaboration between the Lac du Flambeau Band of Lake Superior Chippewa Indians and Vilas County Circuit Court, which meets weekly in Lac du Flambeau. Describe typical clients: I've been in the public sector for the majority of my career. Most recently I've focused on criminal prosecution. Before being elected as Vilas County District Attorney, I handled Vilas County's legal matters for over 16 years (legal counsel to the County Board and all its departments, child protective services cases, guardianships, mental and drug/alcohol commitments, zoning, child support). I worked for the Lac Vieux Desert Band of Lake Superior Chippewa Indians for just eight months in the year 2000 as their attorney (I left for a more stable position closer to home), where I provided legal counsel to the Tribal Council/Tribal government and practiced in their Tribal Court. Finally, as a young lawyer I spent almost two years as an associate with a civil litigation firm where I worked for three partners assisting them with research, depositions, arguing motions and preparing for trials. Number of cases tried to verdict: 5 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: Vilas County v. Accola, 13CV152, 2014AP2688 This was a zoning enforcement case in which the Court of Appeals upheld the Circuit Court's decision that short-term rentals of single-family dwelling units located in a single-family residential zoning district (R-1) were unambiguously prohibited under the terms of the County's zoning ordinance. The Wisconsin Supreme Court denied the Petition for Review. With the vast number of lake homes in Vilas County that also serve as second homes, the ability to rent was, and remains today, a contentious and important issue. The R-1 district is the County's most restrictive in terms of uses permitted and was the district in which the defendants' large lake home was located. Defendants were renting their home weekly, neighbors complained, the enforcement action followed. After many depositions and a motion for summary judgment, the County prevailed. It was a victory for local government and for property owners who value the residential character of their neighborhoods. However, it also provided a framework for the County to create additional zoning districts that allow certain types of rentals in a residential area, which was in my opinion a very appropriate response to this litigation. State v. Kyle Austin, 18CF15 Vilas County Circuit Court This case involved a knifing that occurred at a bar in Vilas County. I was the prosecutor on the case, which was ultimately tried to a jury. The victim intervened in a fight late one night at a bar (where many were drinking alcohol, however victim was not). Victim was stabbed by the defendant and almost lost his eye sight. My victim witness coordinator and I spent much time with the victim while the case was pending and we ended up getting a split verdict (not guilty of the substantial battery, guilty of disorderly conduct). This was my second jury trial as DA, the first one with a victim. The jury found that the defendant was justified in using self defense against the unarmed victim (as to the substantial battery). While I knew the risks associated with going to trial and had regularly talked about this with our victim, we put on the best case we could and had to trust the jury to get it right. While it was disappointing, I went away knowing that I did the best I could and that this is how the justice system is supposed to work; our victim was grateful for the effort and and for closure (he was also compensated by the Crime Victim Compensation Office for his injuries thankfully). State v. Jeremiah Solis, 17CF235 Vilas County Circuit Court In this case, the defendant, a 19 year old man with little criminal history, was convicted of Homicide by Negligent Handling of a Dangerous Weapon. I handled the case from charging decision through sentencing. The victim was also a 19 year old man, a son and brother. He was shot over Labor Day weekend in 2017 in Eagle River at an apartment where he had been hanging out with some friends, one of which was the defendant who decided to bring his newly purchased hand gun to show off. The group had been smoking marijuana that evening. The case was resolved by plea agreement, and the defendant was given an imposed and stayed prison sentence and put on probation with a year in jail (I was capped at recommending only what the presentence investigation recommended, which was exactly that). From charging decision through sentencing, this case challenged me, given the tragic and completely avoidable loss of life, and the fact that the victim's parents were hoping for the maximum sentence. On the opposite side of the courtroom we had a defendant's family who was hoping for leniency, and a defendant who never intended to kill his friend but made a horrible decision that night. I was subject to much criticism throughout the case, on both sides (not altogether uncommon for a DA). I received a thank you card from the victim's mother on Mother's Day the year following her son's death; I keep that card on my work bulletin board as a reminder of the important work we do on behalf of victims. Experience in adversary proceedings before administrative bodies: In my first position as an associate attorney I represented employees in workers compensation hearings/appeals, and as Corporation Counsel I represented Vilas County in unemployment compensation hearings and harrassment/discrimination hearings before the Wisconsin Department of Workforce Development. Describe your non-litigation experience (e.g., arbitration, mediation). Prior to Act 10 Vilas County had five unions, all of which had contracts. I was involved in both arbitrations and mediations as the County's legal counsel in matters of union negotiations/bargaining and grievances. I also was involved in mediations when I was in private practice as an associate with Johnson & Houlihan, as they would try to resolve many of their cases through mediation (personal injury). Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: N/A Previous runs for public office: Vilas County Corporation Counsel, appointed, September 2000-December 2016 Vilas County District Attorney, elected 2016 and 2020 All judicial or non-partisan candidates endorsed in the last ten years: Jill Karofsky, Wisconsin Supreme Court, 2020 Eric Toney, Wisconsin Attorney General, 2021 Professional or civic and charitable organizations: Tri-County Bar Association, June 1998-present; CLE organizer, 1999 North Woods Land Trust, founding board member, 2001-2004 Significant pro bono legal work or volunteer service: I have been a member of St. Peter the Fisherman Parish in Eagle River for over 20 years, and during that time I have served on their parish council including serving as council president and have also volunteered as a catechist and led a committee to create policy on safe and sacred environments. Throughout that time I have been a reader and a musician (both cantor and pianist/violinist/violist) and I volunteer at community events through the parish's social outreach committee. I also volunteered as a youth soccer and baseball coach during my kids' elementary school years and for the past 10 years. Quotes: Why I want to be a judge: Applying for this judicial appointment is not a decision I take lightly. I am only in the first year of my second term as Vilas County District Attorney and in many ways I feel I have so much more to accomplish. However, timing is not something one can always control and after much careful consideration I have decided to throw my hat into the mix. After dedicating the majority of my career to serving the citizens of Vilas County, becoming the judge of my County would be an honor and an opportunity to serve Vilas County citizens in a way that requires the highest level of lawyering - having the final say when difficult decisions have to be made. A judge holds the responsibility to impart justice each and every day and her decisions not only affect individuals in sometimes life-altering ways, they affect the community as a whole. My 23 years of legal practice have led me to the point where I am ready to serve in that role. Those who know me, both professionally and personally, know that I am understanding, fair, and committed to serving the good of the community. If appointed, I will use my extensive legal and life experience to make decisions that follow the law and promote justice in the court in the county I first called home in 1992 and have remained in since, other than my three years in law school. As corporation counsel for Vilas County, I was involved in many Chapter 51 civil commitments involving mental health, drug and alcohol struggles. That background can only assist me further given the interplay of these issues in many of the cases that come before the court, both in civil and criminal actions. The Court needs to address the underlying issues that contribute to many individuals finding themselves before the court, and incarceration is often not the solution. With two judges, Vilas County could look to establishing a Circuit Court-attached diversion court to further effectively address some of these issues, something that has not achievable in this one-judge county. I would work toward that effort. My experience in both civil and criminal court will lend itself well if I am to take the bench, and my legal and analytical skills along with a strong work ethic will make me a quick and eager study in the few areas of the law in which I have not practiced. As District Attorney, I advocate for the community and public safety, seeking justice in each and every case. As a judge I would be the final gatekeeper of justice, holding the responsibility to follow the law and impact the lives of all who come into contact with the Court, maintaining impartiality all the while. Throughout my career, I have always been an active listener, to my clients in private practice, to the County Board members and department heads, to victims, law enforcement officers, defense attorneys and citizens. I have always tried to proceed in whatever I'm doing by following the law and trying to achieve a just result, problem solving and in the case of criminal cases by achieving justice for the community as whole. As a Vilas County Circuit Court judge, I could continue in that fashion, using my good judgment, fairness and integrity in imparting justice from the bench. Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin. The Wisconsin Supreme Court's decision in Madison Teachers, Inc. v. Walker, 2014 WI 99, had a significant impact on the people of Wisconsin, and depending on who you ask, the decision was both celebrated and chastised. As legal counsel for a county government at the time of Act 10 and the subsequent litigation that it brought about, I watched this case closely as it had significant ramifications on both staff, HR management and County government in general. This was a divisive and controversial decision that upheld then Governor Walker's legislation regarding public sector unions and collective bargaining. The decision created incredible tension throughout the State, tension that was already present in 2011 at the time the legislation was enacted. Teachers and other government employees no longer had collective bargaining and public employers had to quickly react to put into place work rules and policy that had been handled for years by union contracts. This decision was the culmination of a legislative act that tore apart co-workers, families and governments. Proponents of the decision highlight savings that will be realized by governments and taxpayers, however those same governments, including schools and local governments, have now seen challenges associated with employee retention and recruitment due at least in part to the loss of bargaining agreement protections. With the Court upholding Act 10 in its entirety, collective bargaining in the public sector, other than for law enforcement, is tenuous at best, unless it comes back legislatively in the future. By putting an end to the legal challenges to Act 10, the finality of the decision will have a lasting impact on Wisconsin citizens. It greatly changed the landscape for public sector employees and employers alike, and it has strongly changed the conversation in the private sector as well. Ultimately it will have raised more important issues that it resolved. Two or three judges whom I admire and why: Justice Shirley Abrahamson Shirley Abrahamson became Chief Justice of the Wisconsin Supreme Court when I began my second year of law school. Having led the Court until April 2015, she became a role model for me throughout the first decade and a half of my legal career. She was appointed to the Supreme Court when I was six years old so I really cannot remember a time when she was not on the court. It was of course unfortunate to see the end of her service coincide with increased divisiveness and the controversy and subsequent litigation on how the Chief Justice is selected, however that in no way affects the overall impact of her service, her dedication to the law, her energy and enthusiasm, and her leadership on the Court. To serve as a justice for over 40 years exemplifies public service; as a public servant myself, I am very inspired by her career, her contribution, and the fact that she never stopped giving 100% as she got older and entered a third, then 4th decade on the court. She made herself accessible to law students, by teaching an occasional course at the law school. And from what I have read, she did not highlight the fact that she was the first woman justice on the court, she just saw herself as the new justice. Fast forward 45 years and it is no longer uncommon to see women on the court; they now make up the majority on the Wisconsin Supreme Court. She wrote of her judicial philosophy as simply "to examine the facts, the law, and the precedent. You apply the facts to the law and the precedent as you understand them, and you reach a decision." She broke down the complexity of what she did into a very basic, common sense approach. She used that approach in the hundreds of opinions and dissents she authored. She believed in an independent judiciary. She also worked to establish court-related volunteer programs to make the courts more accessible to people and brought high school students into the court to see their operations firsthand. Justice Abrahamson kept her intellectual and physical stamina past an age that many of us would have long since retired. She was essentially relentless with her dedication to the bench, to the law, and to making sure people's rights were protected during her service on the Court. A family member of mine who works at American Players Theater in Spring Green would see Justice Abrahamson at that theater from time to time, attending shows at their outdoor venue. One time she caught the eye of the justice and said that Justice Abrahamson noticed and then winked and smiled right back at her. She truly connected with people, both on the bench and off. Justice N. Patrick Crooks While I never knew Justice Crooks personally, my dad grew up with him and his siblings in Green Bay during the 1950s. When I was in law school, he was running for the Wisconsin Supreme Court; I learned more about him during that time due to my dad's friendship with him. I then had the opportunity to watch him while he served on the State Supreme Court. I came to greatly admire him, his general demeanor, how he became more moderate on the Court, not always predictable, and how his swing vote impacted many of the Court's decisions. When I was admitted to the Bar back in June of 1998, my dad was by my side and moved for my admission separate from the group of students being sworn in. When he did so, Justice Crooks, who was right in front of us, waved his hand and said, nonchalantly, "Hi Ralph," as if we were at a friendly small gathering between friends. That experience made the Court real to me. While Justice Crooks certainly got involved in some controversial matters during his tenure on the Court, his overall service as a justice remains admirable to me. He struck me as somewhat of a peacemaker, maintaining impartiality and striving to apply the law to the facts. The proper role of a judge: At the beginning of each day, a judge comes to work with the potential of making life-altering decisions and the opportunity to make a difference in a person's or a community's life. Ultimately, the judge makes difficult decisions when all other avenues to resolve a dispute have failed. A judge must follow the law, apply the facts to the law, and render his or her decision. At the same time, a judge must maintain decorum in the courtroom, treat all participants in the court system with respect, be fair and administer justice without partiality. When an individual comes into court, they should expect nothing less. Judges may have to reign in an attorney from time to time and must figure out ways to run their court efficiently. In court trials the judge herself must assess evidence presented, while in jury trials they ensure that the case is being conducted following the rules of the court and the rules of evidence and that the jury determines the facts. A judge must be an active listener but must also know when to move a matter along to maintain judicial efficiency. When pronouncing sentence in a criminal case, a judge must fashion a sentence that addresses the proper factors, taking into consideration the statement of the victim, the defense, the State, and using his or her discretion in such a way that promotes the goals of rehabilitation, reducing recidivism, protecting the public, and imposing the appropriate punishment. In turn the hope is that defendants will not find themselves in criminal court going forward but will ultimately return to being productive members of the community. A judge should have reverence for the rule of law and treating people fairly; each case that comes before the Court should be afforded proper attention and respect, from a small claims case to a homicide. Above all, a judge should strive to have all parties, even those who lose, leave the court knowing the rationale for the decision and confident that every effort was made to do justice.  Milwaukee Common Council unanimously approves new early voting site on Dec. 12, 2023. Photograph by Alexandria Staubach. By Alexandria Staubach The Milwaukee Common Council this morning unanimously approved a new early-voting site that will be located at N. 60th St. and W. Capitol Dr. The site replaces a popular one in the Midtown Center. In the 2020 and 2022 elections nearly 30% of the absentee ballots cast during early voting from the city of Milwaukee came from the Midtown Center site, accounting for more than 18,200 ballots in 2020 and 8,500 ballots in 2022. The Midtown Center site was described as “the most popular in the Midwest” by more than one alder, including Mark Chambers Jr., who sponsored the measure and highlighted its importance to Milwaukee’s Black and Brown communities. Chambers said the site would be ADA accessible and on a well-used bus line. He said he looks forward to another robust voting cycle. A coalition of stakeholders campaigned for the new site after Midtown Center was purchased by an Atlanta-based investor who sought more than double the rent for less square footage. Contract negotiations between the new owner and city devolved earlier this year. Today at City Hall hopes were high that the new voting site would be just as productive. “We have the opportunity to be more potent” and “we can drive even more people to this location,” said Gregory Lewis, executive director of Souls to Polls and board chairperson for Power to the Polls. At a press conference following the vote, Angela Lang, executive director of Black Leaders Organizing for Communities (BLOC), applauded the Milwaukee Common Council for its unanimous vote and “their work supporting this mission.” Calena Roberts, Wisconsin state field director for Power to the Polls, exclaimed that “one door has closed, and another has opened wider!” The coalition advocating for the new site included Souls to the Polls, BLOC, the Wisconsin Working Families Party, SEIU Wisconsin, Leaders Igniting Transformation Wisconsin, Power to the Polls Wisconsin, EXPO Wisconsin, ACLU of Wisconsin, and Wisconsin Democracy Campaign.
By Alexandria Staubach
If the Wisconsin Supreme Court decides in the pending redistricting litigation that current Wisconsin legislative maps are unconstitutional, the decision will be based on one of two legal arguments. Last week, WJI unpacked one, the contiguity argument. We now turn to the second argument: separation of powers. The court heard oral arguments in late November. At that hearing, the conservative minority of the court raised the concern that all issues currently before the court were or should have been decided in a series of cases (Johnson I, Johnson II, and Johnson III) before the court in 2021 and 2022. Redistricting in Wisconsin takes place every 10 years following the federal census; the most recent census year was 2020. In November 2021, the Republican-led Legislature passed new maps based on the 2020 census data. Gov. Evers vetoed those maps shortly afterward, and his veto was never overridden by the Legislature. Thus, those maps are said to have “failed the political process.” The adoption of new maps then fell to the Wisconsin Supreme Court, which in Johnson I said it would apply a “least change” approach, meaning the court would adopt the proposed maps that made the fewest changes to those adopted following the 2010 census. In Johnson II, the court adopted maps proposed by Gov. Evers because the administration’s maps moved the smallest number of Wisconsinites to new districts under a theory called “core retention.” Evers’ maps also created a new majority Black district in Milwaukee. In opposition to the majority’s decision, Justice Rebecca Grassl Bradley said “core retention—exists nowhere in the … Wisconsin Constitution or any statutory law” and that it was a “dangerous doctrine.” The court’s decision was challenged and reversed in the U.S. Supreme Court on the basis that the Wisconsin Supreme Court provided insufficient analysis of whether an additional Black majority district in Evers’ map was supported and permitted by the Voting Rights Act. On remand from the U.S. Supreme Court, in Johnson III, the Wisconsin Supreme Court adopted the maps submitted to the court by the Republican-led Legislature, which were the same maps vetoed by Evers. The Clarke petitioners argue that the court’s adoption in Johnson III of the same maps vetoed by the governor violated the Wisconsin Constitution’s separation of powers, disrupting the distribution of power between co-equal branches of government. In her dissent to the court’s order taking jurisdiction of the Clarke case, Chief Justice Annette Kingsland Zeigler said the argument “does not seem to warrant serious review,” and the court was “forced” to “select constitutionally compliant maps as a remedy for the [then] ongoing constitutional violation.” In this, Zeigler failed to acknowledge that the court was not bound to simply choose the maps promulgated by the Legislature. As Justice Jill J. Karofsky pointed out in her dissent in Johnson III, the court could have invited more briefing to ascertain whether the governor’s maps comported with the Voting Rights Act or asked the parties or a neutral map drawer to submit redrawn race-neutral maps. Instead, Karofsky said, the court overrode the governor’s veto, “nullifying the will of the Wisconsin voters who elected that governor into office.” While the current majority of the court did not seem overly interested in the separation of powers argument at hearing, the issue may play some role moving forward. Attorney Anthony Russomanno, representing the governor at oral argument in Clarke, principally addressed the separation-of-powers argument. The three conservative justices immediately pressed Russomano on why the issue was not raised during the Johnson litigation. Russomano argued that the separation-of-powers argument did not arise until the court adopted the Legislature’s maps at the end of the Johnson litigation. Justice Brian Hagedorn noted that the Legislature’s role is to pass law and the court passed no laws, so therefore he could not see how the court in imposing a judicial remedy could have violated separation of powers requirements. Russomano was not afforded the opportunity to respond before being redirected to discuss whether and how to address partisanship in maps. Wisconsin Justice Initiative (WJI) and the Wisconsin Fair Maps Coalition (FMC) together filed a friend-of-the-court (amici) brief in Clarke. WJI and FMC argued that Wisconsinites have no direct means to enact law and their voice rests in the governor. The imbalance of power resulting from the current legislative maps frequently permits a minority view to predominate the majority’s view, and the governor’s role is to counter act that imbalance. WJI and FMC argued that because the maps submitted by the Legislature were vetoed by the governor they “should have been ineligible for consideration” by the Johnson III court under separation-of-powers principles and the Wisconsin Constitution. By Margo Kirchner The Supreme Court of Florida on Nov. 30 held that police officers involved in shootings cannot keep their names from the public under a Florida victims’ rights constitutional provision. The constitutional provision, known as Marsy’s Law, does not guarantee to a victim a “categorical right to withhold his or her name,” the court said. Marsy’s Law has been adopted as a constitutional amendment in similar forms in several states, including Wisconsin. The Florida version provides that victims, starting at the time of victimization, have the right “to prevent the disclosure of information or records that could be used to locate or harass the victim or the victim’s family, or which could disclose confidential or privileged information of the victim.” The court concluded that protection of information that could be used to locate or harass does “not encompass the victim’s identity.” “(I)t is one thing to identify a person and another altogether to locate or harass him or her,” the court wrote. “One’s name, standing alone . . . communicates nothing about where the individual can be found and bothered.” The court noted that another constitutional provision regarding release of medical records and statutes regarding confidential informants expressly address protection of identity, while Marsy’s Law does not. In addition, an interpretation allowing withholding of identities would conflict with an accused’s rights to confront adverse witnesses at trial, said the court. The case arose from two City of Tallahassee police shootings for which officers claimed self-defense. The men shot by police did not survive. Grand juries investigated and concluded that the shootings were justified. Reporters sought the names of the officers. The city planned to release them, but the Florida Police Benevolent Association sought an injunction against release, arguing that the officers were victims of the decedents’ attacks and under Marsy’s Law could keep their names from being disclosed. Wisconsin’s version of Marsy’s Law does not contain a provision barring disclosure of information that could be used to locate or harass a victim. Wisconsin’s version instead grants victims the right to privacy. Oshkosh police and some other Wisconsin police departments with officer shootings involving self-defense claims have been citing that right to privacy as a basis for withholding officers’ names from the press and public. The Florida case is City of Tallahassee v. Florida Police Benevolent Association, Inc.   Photograph of the Wisconsin Supreme Court's courtroom by Margo Kirchner By Alexandria Staubach
Arguments at last week’s Wisconsin Supreme Court hearing in Clarke v. Wisconsin Elections Commission, the most recent case to challenge gerrymandered districts across Wisconsin, beg the question, have we been here before? In Clarke, the court agreed to hear two of five issues raised by the petitioners:
If you read or heard anything about the court’s Nov. 21 hearing, the report likely included some reference to Justice Rebecca Grassl Bradley’s position that 1) the contiguity argument presented in Clarke was already decided by the 2021-2022 Johnson cases (the last legal go-round about the current maps, which resulted in three separate opinions by the Wisconsin Supreme Court), and 2) this case wouldn’t be before the court but for its new majority. Grassl Bradley interjected at seemingly every feasible opportunity to assert that this case would not be before the court absent the election of Justice Janet Protasiewicz and threw in mention of Protasiewicz’s campaign comments that the maps are rigged. Another justice asked if Grassl Bradley was in fact arguing the case. Article IV, section 4 of the Wisconsin Constitution requires that Assembly districts “consist of contiguous territory and be in as compact form as practicable.” Numerous Assembly districts include “islands” or detached pieces that are located completely within other districts, with no physical connection. However, the detached pieces are generally annexed to a municipality that has a physical connection to other parts of the district. The question in Clarke is whether these detached pieces are considered contiguous and satisfy the Constitution's requirements. Grassl Bradley referenced, and Taylor Meehan, counsel for the Republican Legislature, cited by paragraph where and when, the contiguity argument in Clarke was disposed of in the 2022 Johnson III decision (the final Johnson opinion, in which the current maps were adopted by the court). So let’s examine Grassl Bradley’s claim that the court already decided the issue of contiguity. The word “contiguous” appears five times in the 23-page Johnson III opinion. Nearly every mention is a recitation of the requirements of the Wisconsin Constitution regarding legislative districting. According to Meehan and accepted by Grassl Bradley at argument, the Johnson III paragraph that purportedly decided the contiguity argument reads as follows: ¶70 The Legislature has satisfied the remainder of Wisconsin’s constitutional requirements. The assembly districts are contiguous and sufficiently compact. Wis. Const. art. VI, sec. 4. Both senate and assembly maps include single member districts, and assembly districts are not divided in the formation of senate districts. Wis. Const. art. IV, secs. 4, 5. In all, the Legislature’s senate and assembly maps comply with the Wisconsin Constitution. This paragraph comes at the end of the opinion but is not part of the court’s conclusion. Johnson III’s conclusion was that insufficient evidence was presented “to justify drawing state legislative districts on the basis of race,” and that the maps proposed by Gov. Tony Evers and parties other than the Legislature were racially motivated. Paragraph 70, as relied on by Meehan in arguing against the Clarke petitioners, supposedly disposes of unargued requirements of the Wisconsin Constitution simply by saying that in the court’s view, the maps at issue in Johnson III are constitutional. Is this passing reference sufficient to resolve the contiguity issue? Have we been here before? Grassl Bradley and other conservative justices are using the principle of issue preclusion to say, “yes,” contiguity has been resolved and is now barred in the new case. For issue preclusion to apply, Wisconsin law requires identity between parties in the previous case and the current case and that the issue or fact be actually litigated and determined in the previous case. In this context, identity between parties would require that the same parties or interests who initiated the Johnson case match those in the Clarke case. In Clarke, the petitioners are 19 Wisconsin voters, none of whom was a party in the Johnson case. Some of the Clarke petitioners share counsel with those in the Johnson case, but counsel are not parties. Additionally, some of the respondents, such as the Wisconsin Election Commission, are shared between the two cases, but this should not be sufficient to create “identity” of parties under Wisconsin law. Further, while maps at issue in Clarke are the same maps adopted in Johnson III, contiguity was not the issue litigated in the Johnson case. At issue in Johnson was how maps should be drawn when the legislative process failed and to what extent legislative districts could be drawn giving attention to race. Passing mention of contiguity, according to the Clarke petitioners’ brief, is not sufficient for finding that the issue was litigated under Wisconsin law, and the petitioners contend that “no party in Johnson claimed that any existing or proposed remedial districts were noncontiguous” and that “in their voluminous briefing in Johnson, the parties hardly mentioned contiguity.” The Wisconsin Supreme Court took jurisdiction of the Clarke case on Oct. 6 without mentioning issue preclusion. However, a dissent written by Chief Justice Annette Ziegler, joined by Grassl Bradley and Justice Brain Hagedorn, did. Ziegler wrote that Wisconsin law requires the petitioners in this case to “live with” the Johnson decision and that litigation involving the same maps “should not be allowed to prevail.” In a separate dissent, written with reference to Alice in Wonderland as an underlying theme, Grassl Bradley, joined by Ziegler, wrote that “(r)edistricting litigation concluded — or at least it should have — in April 2022, with this court’s selection of new maps as a remedy for malapportionment.” Whether and to what extent the now-minority conservative justices will rely on issue preclusion in any decision in the case remains to be seen, but at least in the eyes of the petitioners and the court’s current majority, we have not been here before. |
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