By Alexandria Staubach An employer wants him, he has the skills to do the job, and he passed the required courses and test required for a mortgage-lending-originator license. Yet he is barred from obtaining that license—and related employment and career—because of felony convictions for conduct unrelated to the financial industry or matters of trust. “Collateral consequences” are the various restrictions that affect people convicted of crime even after they have served their sentences. Such restrictions can impact access to employment, licensing, and housing, and myriad other things. They may not directly relate to the crime of conviction, and they can apply without consideration of the person’s rehabilitation or risk. The struggle to find employment after a felony conviction is well documented and studied. A September 2023 report conducted by the Internal Revenue Service states “that (criminal) records may be preventing about one third of working-age males from contributing to the formal economy.” The same study found negative effects on employment prospects “even in cases where charges did not lead to convictions.” WJI recently sat down with a formerly incarcerated person who is putting in serious work to obtain gainful employment, to discuss the roadblocks he has faced in a system that just won’t get out of his way. ![]() Stuart Parker Arthur, 26, grew up in south central Wisconsin. When he was in his late teens, he relocated to Missouri to work for his biological father in his business. Shortly after Arthur arrived, he threw a large party. Arthur was young. The police came. The police found drugs. The police found a gun. According to Arthur, the drugs were trace quantities of cocaine and the gun was disassembled. Missouri court records indicate that on Jan. 26, 2019, Arthur was charged with possession of a controlled substance other than marijuana, a Class D felony, and unlawful use of a weapon, a Class E felony. Missouri felonies are graded on an A-E scale, with Class E felonies carrying the least significant penalties. Arthur told WJI he felt his best option was to take a plea deal that avoided a prison sentence because his then-fiancée was pregnant with their first child. Court records indicate that Arthur pleaded guilty to the two charges on July 25, 2019, and received a suspended sentence, meaning the charges would ultimately be dismissed if he successfully completed five years of supervised probation. Arthur told WJI that his fiancée suffered from a drug addiction and in the winter of 2020, after the birth of their child, she overdosed in a hotel room on a combination of drugs including fentanyl and heroin. “It happens a lot more than people think,” said Arthur. Arthur said he went to the hotel room with his infant child and met with police. The overdose was fatal. Initially, Arthur was not charged with any crime. Court records do not reflect any probation violations, either. Six months later, on June 27, 2020, Arthur was charged with endangering the welfare of a child involving drugs, as a result of bringing his child to the scene of his fiancée’s drug overdose. “I had completed drug rehabilitation” pursuant to his supervised probation, said Arthur. “I voluntarily went to inpatient treatment to deal with potential relapse from the grief,” he told WJI. Consistent with the new charges, court records of July 15, 2020, reflect the first violation of probation filed in his original case. Nearly two years later, on May 2, 2022, Arthur pleaded guilty to the child endangerment charge, again feeling the pressure of having a child on the way and hoping to avoid a lengthy prison sentence. On the new charges, Arthur was sentenced to 120 days of inpatient treatment while incarcerated and two years of supervised probation that included random blood, breath, and urine testing, despite any indication that ongoing drug use was an issue. Court records reflect no subsequent probation violations, and he was discharged from probation on the child endangerment charge as of May 28, 2024. However, as a result of the second offense, his earlier drug and gun possession suspended sentence was revoked and a new sentence was imposed. He served 120 days of additional incarceration and was sentenced to another five years of supervised probation. Supervision on the drug and firearm case will terminate in August 2027, though they could terminate as early as winter of 2025 with time credits for good behavior, said Arthur. Arthur told WJI he has otherwise met the obligations of his sentence. Following release, Arthur relocated to Wisconsin, where his mother lives. Among other stipulations, Arthur was required to obtain housing and employment. He initially found work as a car salesman. But he was unable to find housing (look for part 2 on the housing issue). Because he could not find housing, Arthur reached out to a mortgage lender with the hope of eventually purchasing a home. In the process, he discovered he was good at deciphering what he needed to qualify and what rates and programs would be available to him. “I had done my homework,” Arthur said. Sue Foley, Arthur’s mortgage lender, also thought he had a knack for the work. She remains “impressed by his efforts to turn his life around.” “His credit score is in the 700’s, he owns a home” Foley told WJI. Foley encouraged Arthur to come work for her at Nations Lending, even though they had never hired anyone with a felony conviction. She believed he could be licensed in Wisconsin if they could get him through her company and its attorneys. In Wisconsin, the license for a mortgage loan originator is obtained through the Department of Financial Institutions (DFI). According to the Nationwide Multistate Licensing System (NMLS), the license is required of anyone who takes or negotiates the terms of a residential mortgage loan. According to NMLS, the license requires completion of 20 hours of precertification training and passage of a test. Wisconsin law further requires that "(a)n applicant shall not have been convicted of, or pled guilty or no contest to, a felony in a domestic, foreign, or military court during the 7-year period preceding the date of the application or, for a felony involving an act of fraud, dishonesty, breach of trust, or money laundering, at any time preceding the date of the application. This paragraph does not apply with respect to any conviction for which the applicant has received a pardon." However, the Wisconsin Fair Employment Act (WFEA) prohibits discrimination against individuals and “certain licensed activities” on 14 protected traits, including records of arrest or conviction. Storm Larson, a Madison based employment attorney, wrote in an article in Wisconsin Lawyer that employers and licensors have “leeway to consider an employee’s record of conviction” and “the general rule is that conviction records cannot be considered in making an employment decision unless ‘the circumstances of the [the conviction] substantially relate to the circumstances of the particular job or licensed activity’” (emphasis in original). The Wisconsin Supreme Court in a 2022 decision muddied the waters and caused employer and licensors to deploy a “fact-intensive inquiry into the circumstances of the job and conviction itself,” wrote Larson. Now, “the supreme court specifically notes that the length of time between the conviction and the application for employment can be relevant to determining the likelihood of recidivism,” he wrote. Previously that was not a factor. Despite the law and the costs, Arthur completed the necessary course work and testing to obtain his license. He applied at Nations Lending and was hired by the firm. When Arthur submitted his license application to DFI, Nations Landing backed him. Arthur supplied additional letters of support from his employers at two car dealerships. Foley told WJI that Arthur even obtained a letter of support from the warden of the Missouri prison where he had been incarcerated. Nevertheless, DFI rejected Arthur’s license application because of his felony convictions. DFI wrote that its legal staff had reviewed case law about the WFEA and that the law governing licensure for mortgage loan originators “does not give the Division discretion to consider those facts and circumstances, unless the crimes have been expunged or pardoned or are older than seven years.” “(E)ven if the Division could consider those facts and circumstances for these offenses, it would not find licensure appropriate at this point given the recency of the offenses. Your subsequent life changes are more consistent with holding a position of financial trust, but establishing a longer post-offense track record is required to provide adequate assurance that the applicant meets the requirements for licensure,” DFI wrote. Arthur attempted to dispute DFI’s decision, but there is no formal appeal process under Wisconsin law. Ultimately, on May 29, 2024, Arthur withdrew his application so it would not later show up as a denial. “They’re making me give up a job that that I am good at, a job that could give me a better life,” Arthur told WJI. “There are people who want something better when they get out of prison,” said Foley. “We shouldn’t throw away the baby with the bath water.” WJI reached out to DFI and spoke with the agency’s Chief Legal Counsel, Matthew Lynch. Lynch said DFI has no official position and that the agency cannot comment on specific cases. Lynch acknowledged the tension between state licensing requirements and WFEA. Lynch told WJI that in his analysis, federal law drove Wisocnsin’s adoption of the statue governing mortgage lending and sets minimum requirements, including the provision requiring seven years between conviction and licensure. According to Lynch, states that run afoul of the federal standards would be subject to federal intervention and control over licensing in the area. Lynch said the “agency would be happy to take another direction but it would likely run afoul of federal law.” Lynch further told WJI that his analysis of the legislative intent behind the mortgage lender licensing statue also drives their decision making. In 2013 the Legislature added language to the mortgage licensing statue that permits them to use the discretion described in WFEA for convictions that have been expunged or pardoned, Lynch said. The 2013 addition “can’t make sense” if the agency had the ability to use the mitigation factors under WFEA in every case, he said.
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By Alexandria Staubach
For the past decade, one individual has screened all judicial complaints in Wisconsin. He is equipped with unilateral authority to determine what complaints merit further investigation. Whether initiated by a litigant, member of the press, or other interested party, a complaint about a judge goes to the Wisconsin Judicial Commission as an “initial inquiry.” According to the commission’s most recent annual report, in 2023, there were 644 reports of judicial misconduct or disability. Most of these inquiries were resolved solely by the commission’s staff, which includes the commission’s executive director and a paralegal. Attorney Jeremiah C. Van Hecke has served as executive director since 2013. “Commission staff reviews all allegations against judicial officials to determine whether they are within the jurisdiction of the Commission and are not patently frivolous or unfounded. Allegations that do not meet these criteria may be administratively dismissed by the Commission’s Executive Director with an appropriate referral, when possible,” says the 2023 report. Of the 644 initial inquiries in 2023, all but 42 resulted in dismissal by staff. Wisconsin law does not provide a mechanism for appeal of such dismissals. According to the 2023 report, “a sample” of the dismissed inquiries are reviewed by the commission’s screening committee. In an email, Van Hecke verified to WJI that “there is not an appeals process regarding the dismissal of an initial inquiry made to the Commission,” and “(o)nce a year, the Commission's chair appoints Commission members to the Screening Committee, which reviews a random sample of decisions made by Commission staff regarding initial inquiries for appropriateness and consistency.” According to Van Hecke, “initial inquiries include, but are not limited to, complaints of judicial misconduct filed with the Commission. They could also include initial substantive contacts that do not result in the actual filing of a complaint." He added that “(t)o the extent that initial inquiries amount to a complaint against a judicial official,” dismissal decisions regarding those inquiries are primarily made” by him as executive director, though on occasion some are addressed by the Screening Committee. All Wisconsin judges, from the Supreme Court to former judges who serve in a reserve capacity and municipal judges, are subject to the Code of Judicial Conduct. Since 1978, the commission has existed as an independent agency within the judicial branch to oversee adherence to that code. Court commissioners also came under the commission’s jurisdiction in 1992. The Judicial Commission consists of nine members: one circuit court judge, one court of appeals judge, and two attorneys, all appointed by the Supreme Court, plus five nonlawyer members nominated by the governor and appointed with the Senate’s consent. Initial inquiries are confidential by law unless the judge who is the subject of a complaint waives confidentiality. Under Wisconsin law, if an individual or entity “breached the confidentiality of the investigation, the commission may dismiss the allegation, admonish the person or take other action.” Last year, former state courts’ director Randy Koschnick made national headlines after going public with a complaint he filed against four Wisconsin Supreme Court justices, including then-newly elected Justice Janet Protasiewicz, related to his firing. Three of the justices wrote a letter to the commission accusing Koschnick of a publicity stunt and criticized the commission for failing to admonish Koschnick for going public. So what happens to initial inquires that survive Van Hecke’s screening? The commission opens an investigation and requests more information from the judge or others. The executive director then prepares a report for the commission to consider. The complaint can be dismissed at that point, too, based on what the inquiry shows, whether the complaint involves a disappointed litigant questioning the merits of a judge's decision, whether the allegation involves a single and minor violation, or whether the judicial official has already taken corrective action or no longer holds office. Of the 42 cases that survived Van Hecke’s screening in 2023, 33 were dismissed after preliminary investigation. If the commission decides the matter should continue after preliminary investigation, the judge is notified and permitted to respond. The commission may then dismiss the complaint or initiate a public disciplinary action in the Wisconsin Supreme Court. In the public disciplinary action the commission presents its case to a three-judge panel (including at least two appeals court judges), and the panel reports its conclusions and recommendations to the Supreme Court for final decision. Since 1978, only 34 complaints have resulted in public disciplinary cases. Just two public disciplinary cases have occurred in the last five years. Prior to his appointment as Judicial Commission executive director in 2013, Van Hecke was a Milwaukee County assistant district attorney. By Alexandria Staubach
Earlier this month the Wisconsin Court of Appeals upheld the Wisconsin Department of Justice’s denial of Scot Van Oudenhoven’s handgun purchase application based on an previous misdemeanor domestic violence conviction that had been expunged under Wisconsin law. The decision reinforces the narrow effect of expungement on criminal convictions in Wisconsin, where they are difficult to obtain and of limited effect. Expungement seals a criminal court file but has no impact on the conviction itself. Judge Gregory B Gill Jr. wrote for District III appeals court. He was joined in the opinion by Judges Lisa K. Stark and Judge Thomas M. Hruz. Van Oudenhoven was convicted of battery as an act of domestic violence in a 1994 Calumet County case. In 2019, a Calumet County Circuit Court judge granted Van Oudenhoven’s petition for expungement. In 2022, Van Oudenhoven attempted to purchase a handgun in Wisconsin. The Wisconsin Department of Justice (DOJ) denied the purchase based on his misdemeanor battery conviction. After Van Oudenhoven exhausted administrative remedies with the DOJ, he sought judicial review in Winnebago County Circuit Court. Judge Teresa S. Basiliere affirmed the DOJ denial. Federal law prohibits the sale of firearms to individuals who have been convicted of offenses related to domestic violence, but among the exceptions are misdemeanor cases. Possession is permitted where the misdemeanor conviction has been “expunged or set aside.” On appeal, Van Oudenhoven argued that expungement under Wisconsin law has the same force and effect as “expunged or set aside,” which phrase is not explicitly defined under federal law. Van Oudenhoven argued that the U.S. Supreme Court provided a common understanding of the phrase when it said in Logan v. United States that “expungement,” “set-aside,” “pardoned,” and “civil rights restored,” “describe[] a measure by which the government relieves an offender of some or all of the consequences of his [or her] conviction.” Because Van Oudenhoven’s expungement removed “some” consequences of his conviction, the Calumet County court “expunged or set aside” his conviction, he argued. The Court of Appeals rejected Van Oudenhoven’s argument that his conviction had been “expunged or set aside.” “The terms expunged, set aside, pardoned, and restoration of civil rights all, by definition, require state action that removes the prohibition on an individual from possessing or receiving a firearm under federal law,” wrote Gill. “The state procedure in question must completely remove all effects of the conviction at issue,” he said. Wisconsin’s expungement law does not remove the effects of conviction; “the statue merely removes evidence of the conviction from court files,” said Gill. Current state law permits expungement for an offense with a penalty of six years or less, as long as the offense was not a violent felony, the person was under 25 years old and had no prior felony record, and the person requested expungement at the time of sentencing. If all conditions are met, a subsequent court may grant a request for expungement after the person has successfully completed their sentence. During the last decade, several bills have been introduced to reform Wisconsin’s expungement and pardon laws. Last session, one bill seemed poised for success. Senate Bill 38/Assembly Bill 37 received broad support, with organizations on both sides of the aisle registering in favor, from the conservative group Americans for Prosperity to the ACLU. The bill also had a bipartisan group of 63 co-sponsors. Although the bill successfully made its way through the Assembly, it ultimately failed to get a vote from the Senate. “Expungement is an issue that has been before the Legislature and the Supreme Court for several years, yet, despite extensive study and discussion, there have been few changes made,” wrote the State Bar of Wisconsin in support of the bill. “Without expungement, every sentence is a life sentence,” it said. Some legislators remain undeterred. Rep. Tip McGuire (D-Kenosha) told WJI “It has unfortunately been a long, difficult road for the expungement reform bill. However, every session brings in new legislators and a fresh chance for us to get on the same page and recognize the importance of getting this done.” “Too many people in our state have trouble finding work or housing because of low-level crimes they committed many, many years ago when they were quite young. I’m hopeful we can properly strike a balance between public safety and rightfully giving people a second chance to build a life and a career for themselves,” McGuire told WJI. According to a 2018 Wisconsin Policy Forum report, an estimated 1.4 million individuals in Wisconsin have criminal records that may hinder their ability to find employment. In Milwaukee County, 30,638 cases closed between 2006 and 2017 technically meet the current restrictive eligibility criteria but have not been expunged, said the report. In 2020, the Court of Appeals held that even minor, technical violations of community supervision rules will bar expungement. By Alexandria Staubach Time-sensitive functions of the Milwaukee County Circuit Court are moving to children’s court in the Vel R. Phillips Juvenile Justice Center during the Republican National Convention (RNC). “The courthouse is already difficult to get to” said Chief Judge Carl Ashley in an interview with WJI. He anticipates that security checkpoints, crowds, and the unavailability of parking will dramatically intensify with the 50,000 people expected to participate in RNC activities. WJI talked with Ashley and Chief Court Administrator Stephanie Garbo about the court’s plans during the convention, which runs July 15 through July 18 in downtown Milwaukee. Garbo is helping to orchestrate the move to children’s court, which is located west of I-41 at 10201 W. Watertown Plank Rd. Garbo, like other Milwaukee-area officials, is organizing essential functions in and around the security footprint of the RNC without a complete picture of the U.S. Secret Service’s plans for the area. Garbo said a full outline of anticipated changes to court operations is yet to be announced but is expected in the coming weeks. Some of the changes Garbo anticipates include:
The Milwaukee County Jail will remain accessible to visitors and attorneys, but visitors will likely have to pass through intensified security to get to the building. As court plans remain in flux, Garbo encouraged anyone with court business the week of the convention to monitor Milwaukee County’s convention website, which will contain the most up-to-date information as the convention approaches. At a press conference in February, Mayor Cavalier Johnson also announced a city convention website, but as of today, both websites largely contain placeholders for plans that are still being developed and encourage the public to check back soon. The courts are not the only county functions likely to experience reorganization during the RNC. The county anticipates changes to several bus routes that ordinarily penetrate the RNC’s security zone. Currently, the county website for the RNC informs riders that “the security plan for the 2024 RNC is still in development – as soon as its finalized, riders will be alerted to impacts on bus routes” and “changes to the RNC’s security perimeter may happen on short notice.” Milwaukee County Courthouse. Photographs by Alexandria Staubach.
By Alexandria Staubach
Today the Milwaukee Common Council passed an ordinance restricting movement and property within the Republican National Convention (RNC) “security footprint” zone. While coolers and nonplastic water bottles will be prohibited, all guns not otherwise prohibited by state law are OK. Newly prohibited items include those commonly associated with acts of civil unrest, at times taking that definition beyond its logical conclusion. The ordinance bans everything from tennis balls and canned goods to bicycle locks. The list contains 27 categories of prohibited items, but Police Chief Jeffrey Norman will have the last say, as the ordinance also provides a catch-all provision prohibiting anything he deems to present a “clear and present danger.” Last week, at a special meeting of the city’s Public Safety and Health Committee, Ald. Robert Bauman, whose district includes the security footprint zone, introduced a version of the ordinance that would have kept firearms out. The committee had no appetite for that version, with Common Council President José G. Pérez and Alds. Sharlen Moore and Scott Spiker voting no. Ald. Peter Burgelis voted in favor. Ald. Lamont Westmoreland abstained. Had the proposed ordinance prevailed, any attempt to keep legal firearms out of the RNC would have violated state law, said newly elected City Attorney Evan Goyke in a letter to the committee last week. Goyke pointed out that a Wisconsin statute bars the city and all local governments “from prohibiting the possession or carrying of legal firearms.” The RNC, taking place in Milwaukee in July, and the Democratic National Convention, taking place in Chicago in August, are designated National Special Security Events (NSSEs) by the U.S. Department of Homeland Security (DHS). NSSEs include large-scale events where DHS anticipates the attendance of dignitaries; which are of political, historical, or significant symbolic significance; and which are “likely to draw the attention of terrorists or other criminals, particularly those interested in employing weapons of mass destruction,” according to the DHS website. Once an event has been designated an NSSE, the U.S. Secret Service “assumes its mandated role as the lead federal agency for the design and implementation of the operational security plan,” says the DHS website. On July 28, 2020, shortly after Milwaukee was announced as host for this year’s RNC, the Common Council passed an ordinance precluding all persons “without the required credentials” from entering or being in the security zone during times to be designated by the Secret Service and Milwaukee Police Department. The ordinance also puts time and place restrictions on counterprotests, which are the subject of a recent ACLU lawsuit against the city. Many details regarding who and what will be permitted in the security zone remain a mystery, with the RNC set to kick off in just over a month. By Alexandria Staubach
The Milwaukee Police Department on Monday amended Standard Operating Procedure 660 governing police pursuits. The change narrows the conditions for officers to pursue a suspected “mobile drug dealer,” meaning a drug dealer operating out of a vehicle. The policy previously permitted pursuit whenever “occupant(s) of the vehicle are engaged in drug dealing proximate in time to the initiation of the vehicle pursuit.” Under the new version, pursuit is “limited to only incidents in which the observed drug dealing is directly related to a substantive drug investigation or long term investigation,” and then only when a suspect “flees while driving in a reckless manner” and after an attempted stop or a refusal to stop. Review of SOP 660 comes in response to the second-longest pursuit in 2023, which extended 49.9 miles, lasted 55 minutes, and resulted in recovery of a small quantity of narcotics, said MPD Assistant Chief Craig Sarnow during testimony before the Milwaukee Common Council’s Public Safety and Health Committee last week. “We continuously look at this to hone in because there is a risk to the community every time we engage in a pursuit” and “we have seen very tragic endings,” said MPD Chief of Staff Heather Hough at last week’s hearing. In 2010, following four incidents in which third parties were injured, MPD adopted “one of the most restrictive policies in the nation,” which “essentially handcuffed” MPD, said Sarnow. In 2017, at the direction of the Fire and Police Commission, the policy was relaxed to its current state following an uptick in reckless driving, Sarnow said. The 2017 changes “took the hand cuffs off,” and “pursuits have gone up significantly,” he said. MPD statistics show that 14% of all vehicle pursuits in 2023 resulted in crashes, up 30% from 2022. Hearing such policy updates is new for the council's committee and follows the Legislature’s adoption of Act 12 last summer. The act largely stripped the Fire and Police Commission of authority to set policies for the police and fire departments, transferring that power to each department’s chief. The Common Council has taken the position that it retains oversight authority and can veto policy by a two-thirds vote, although that position is under review by the city attorney’s office. “We’re the only game left,” said Public Safety and Health Committee Chair Ald. Scott Spiker. When questioning the change to SOP 660, Spiker seemed at odds with MPD. “Hands will be tied now in a way that they weren’t before,” said Spiker. “Has the world changed enough since (2017) that we should now make a different judgment?” he asked. “What we’re talking about is what officers may do,” said Leon Todd, executive director of the Fire and Police Commission, at the committee hearing. “It doesn’t mean they always can, always will, or always should.” The commission also considered the change to SOP 660 and was unanimous in finding it “reasonable and positive,” said Todd. According to MPD statistics, vehicle pursuits occur most frequently between 7:00 p.m. and 9:59 p.m. on Mondays, Tuesdays, and Wednesdays. Densely populated MPD District 1, which encompasses a five-square-mile area of downtown and the East Side, saw an 83% increase in pursuits from 2022 to 2023. But District 6, on the far southside of Milwaukee, saw a 72% decrease in pursuits from 2022 to 2023. Most pursuits in 2023 occurred in District 7 on the northwest side of Milwaukee (262 pursuits, up 19% from 2022); District 2 on the near southside (253 pursuits, up 25%); and District 3 on the west side of Milwaukee (246 pursuits, up 54%). By Alexandria Staubach
The Milwaukee County Board of Supervisors recently enacted an ordinance designed to make public testimony at standing committee meetings easier and more accessible. While the ordinance is not mandatory, the Board of Supervisors said it hopes the ordinance will establish a best practice and procedure for public comment. The chairperson of any standing committee is now charged with placing agenda items on which members of the public have registered to speak in front of items on which no one has registered to speak, applying the same time limits on commentary “regardless of the content of (public) testimony,” and reading comments received virtually into the record of the meeting before voting on a given agenda item. The ordinance comes in response to a 2021 committee meeting at which a resolution creating a “right to counsel” for Milwaukee County residents facing eviction or foreclosure was considered. Some members of the public were forced to wait more than six hours to speak, as agenda items garnering no public comment were considered first. In addition to approving the county’s annual budget (adoption generally takes place in early November), the county's nine standing committees establish what programs and services will be offered by the county. This spring’s election resulted in the election of four new supervisors: Justin Bielinski (16th District), Jack Eckblad (4th District), Sky Z. Capriolo (15th District), and Anne O’Connor (1st District). If you live in Milwaukee County you can find your supervisor here. By Alexandria Staubach The Wisconsin Court of Appeals recently rejected a new Fourth Amendment warrant exception for canine searches, but different facts could lead to a different result in the future. The state argued in the case that an “instinct exception” permits canine searches that naturally extend into a vehicle during a traffic stop if the canine conducts the search “instinctively,” meaning without an officer’s direction, assistance, or encouragement. The appeals court concluded that regardless of whether an instinct exception to the warrant requirement exists in Wisconsin, the state failed to establish a necessary element of any such exception—that the canine act unprompted. The appeals court remanded the case to Sawyer County Circuit Court with an order to grant Ashley Campbell’s motion to suppress. ![]() District III Judge Gregory B. Gill wrote for the court, joined by Judges Lisa K. Stark and Thomas M. Hruz. Campbell pleaded no contest to possession of marijuana after Judge John M. Yackel denied her motion to suppress the marijuana found during a warrantless search of her vehicle. Yackel accepted the state’s argument for the instinct exception, which had not otherwise been adopted in the state of Wisconsin. Trooper Mitchell Kraetke initiated a traffic stop of Campbell’s vehicle after noticing that the vehicle did not have a front license plate and the passenger was not wearing a seat belt. As Kraetke stopped the vehicle, he called for Sergeant Al-Moghrabi to arrive with his canine to assist. After initially talking with Campbell and her passenger, Kraetke conducted a record check and discovered that Campbell’s license was suspended for failure to pay a forfeiture. Her passenger’s license was revoked due to a prior conviction for operating a motor vehicle while intoxicated. Al-Moghrabi arrived, talked briefly with Kraetke and then approached Campbell’s vehicle. He asked Campbell and her passenger if there was any illegal contraband in the vehicle, and both responded there was not. Al-Moghrabi then ordered both individuals out of the vehicle. Campbell did not close her driver’s side door when she exited, and it remained open. Kraetke then met with Campbell and her passenger behind the vehicle to discuss the traffic infractions. Meanwhile, Al-Moghrabi retrieved his canine from his squad car and walked the dog to the hood of Campbell’s vehicle, allowing the dog to “scan” it. “Scanning,” meant that al-Moghrabi allowed the canine to sniff independently instead of identifying certain areas of the vehicle for the dog to check. The canine’s leash had slack. Dashboard camera video from the trial court showed that Al-Moghrabi walked from the hood of Campbell’s vehicle, around the open driver’s side door, and up to the door’s entrance. Al-Moghrabi then stopped and allowed the canine to enter the vehicle. Al-Moghrabi was not pulling the leash or attempting to get the canine to exit the vehicle at any point. Al-Moghrabi testified that the dog began “sniffing intently at” a purse on the floor of the vehicle. According to Al-Moghrabi intent sniffing indicates an alert. The dog exited the vehicle and Al-Moghrabi repeated the steps. He walked the canine up to the door’s opening, stopped, and allowed the canine to enter the vehicle. Al-Moghrabi testified that on the canine’s second entry, it again began “sniffing intently” at the purse. Al-Moghrabi returned the dog to his squad car then searched the purse, finding marijuana inside. “(R)egardless of whether an ‘instinct exception’ to the Fourth Amendment’s warrant requirement exists when a canine ‘searches’ a vehicle, the exception does not apply under the facts in this case to excuse the State’s obligation to obtain a warrant prior to searching Campbell’s vehicle,” wrote Gill. “Here, the canine did not instinctively enter Campbell’s vehicle because the officer had full control of the canine and implicitly encouraged it to enter through the driver’s side door. We therefore conclude that even if the instinct exception were to be recognized in Wisconsin, the exception would not apply to the canine’s searches in this case,” Gill wrote. Jurisdictions recognizing the instinct exception have split on whether reasonable suspicion that narcotics be present is required prior to the dog’s unprompted alert. The state argued in Campbell’s case that no independent basis for reasonable suspicion that narcotics are present is required. By Alexandria Staubach
On Wednesday, a Dane County Circuit Court judge heard oral arguments on whether she should dismiss a case challenging two cash-bail constitutional amendments passed by voters in April 2023. The lawsuit asks the court to toss the results of the election on procedural grounds. The plaintiffs allege that the Legislature and Wisconsin Elections Commission (WEC) failed to timely file the Republican-backed resolutions calling for the voter referendums, so the questions should not have appeared on the ballot. One amendment expanded the situations in which cash bail could be imposed, while the other expanded conditions for release on cash bail. Notably, in the same year that Wisconsin voters expanded cash bail, Illinois became the first state to abolish it. The plaintiffs are WISDOM—a statewide network of mainly faith-based organizations—and EXPO Wisconsin. Both groups work to end mass incarceration. They “advocated strenuously” against the amendments, according to court filings. WISDOM and EXPO allege they were deprived of opportunities to organize against the resolutions. State law requires the Legislature to file ballot questions “with the official or agency at least 70 days before the election,” making the deadline for the Apr. 4, 2023 election Jan. 25, 2023. The lawsuit involves questions about who the appropriate “official or agency” is and the stricture of the 70-day rule and whether substantial compliance is enough. WISDOM and EXPO allege the law required the Legislature and WEC to submit ballot questions to county clerks and the Milwaukee County Board of Election Commissioners (MCBEC), as the entities who prepare ballots, on or before the deadline. The ballot questions were not received by county clerks and MCBEC until Jan. 26, 2023. Oral arguments occurred before Judge Rhonda L. Lanford at the summary judgment stage of litigation. Plaintiffs maintain that procedural impropriety motivates the suit. “Those who run our elections have to follow the law,” said Jeff Mandell of the LawForward law firm, which represents EXPO and WISDOM. WEC’s attorney, Charlotte Gibson, argued that the plaintiffs lack standing to bring the lawsuit and that the Legislature substantially complied with the requirements for filing. The 70-day deadline is “not mandatory,” she said. “The gerrymandered Wisconsin Legislature must respect the proper procedures for amending the state constitution,” and “attempts to push through constitutional amendments without the established legislative process are yet another example of legislative overreach,” said Mandell after oral arguments. Many working to end mass incarceration remain strongly opposed to the amendments. "The problem with the recent constitutional and statutory changes on bail is they move us away from an evidence-based system and more toward a system in which the charged offense drives the bail decision,” said criminal defense attorney Craig Johnson (who also is WJI’s board president). “Even a person accused of a serious offense maintains a presumption of innocence. If the evidence shows they carry a low risk of re-offending or missing court, they should be entitled to release. We always have to keep in mind that holding people on cash bail unnecessarily can cost them their jobs, their housing and their families. The cash bail system also unfairly impacts indigent and low-income defendants," Johnson told WJI. The nonprofit LawForward began in 2020 “with a mission of protecting democracy,” according to the firm’s website. Since then it has been involved in litigation regarding voting rights and ballot access, redistricting, and election administration, among other issues. By Alexandria Staubach
Last week, conversations about elections loomed large at the Capitol in Madison, involving all three branches of government. Judicial branch On May 13, the Wisconsin Supreme Court heard oral arguments in Priorities, USA v. Wisconsin Elections Commission, a case that could restore the use of drop boxes in Wisconsin after they were banned by the Wisconsin Supreme Court in 2022. Oral arguments hinged on the question of whether state law makers and the law itself effectively banned the use of drop boxes by omitting them from a set of mandatory requirements applicable to absentee ballots. Chicago attorney Misha Tseytlin represented the Wisconsin Legislature as he has in numerous other high stakes cases, including Wisconsin’s most recent redistricting case. Tseytlin argued that “two years ago the Court made this decision,” so the court should be precluded from making any determination in the new case. Justice Janet Protasiewicz highlighted that the Legislature was not part of the case decided two years ago and at the time took a position “assuring federal and state courts that drop boxes were permitted” and “safe and secure.” Plaintiffs Priorities USA and Wisconsin Alliance for Retired Americans argued that the court’s prior interpretation of the law places an unnecessary restriction on casting absentee ballots and in practice is “unworkable.” They argued that under the court’s prior decision municipal clerks and voters are unable to decipher what they can and cannot do. According to the plaintiffs, the law only mandates specific minimum requirements and does not state every possible option for the return of ballots to clerks, leaving such decisions to the Wisconsin Elections Commission (WEC) historically. Justice Rebecca Grassl Bradley asked several times how clerks should be limited in their discretion and what prevented them from administering elections in “whatever way they choose.” WEC’s attorney, Faye Hipsman, responded that regardless of the use of drop boxes, clerks remain bound by all other election statutes, including statutes that require them to “conduct elections that are proper and secure.” Advocates for drop boxes held rallies around the state on the day of the oral arguments. At a rally in Milwaukee, ACLU-Wisconsin Deputy Advocacy Director James Stein said that “Drop boxes make it easy for folks to drop off their ballots hassle-free." He said that “for rural voters who have to drive far and wide to vote on election day, voters in large cities who have limited ballot return options, voters with disabilities, and voters who work long hours or have caregiving responsibilities that make it difficult to return a ballot to a single clerk’s office during shortened hours in the middle of the work day, drop boxes are essential. For voters who receive their absentee ballots late, drop boxes are critical for making sure their ballot can get returned in time to be counted." Stein noted how widespread drop box access was associated with extraordinary voter participation in 2020 and that in the 2022 general election over 760,000 Wisconsinites (almost 30% of voters in that election) cast their ballots absentee. “By fighting for ballot drop boxes, we're fighting for the very soul of our democracy," he said. At a rally in Madison, ACLU-Wisconsin Campaign & Political Manager Conor Miller said, “Over the past decade, we have witnessed several attacks on the fundamental right to vote. . . . “Enough is enough.” Executive branch On May 14, Gov. Tony Evers signed an executive order calling for a special election in the 4th Senate District to fill the seat of Sen. Lena Taylor. Taylor resigned as state senator following her appointment to Milwaukee County Circuit Court in January. The special election will take place on July 30. A primary will occur on July 2 if necessary. Legislative branch On May 16, the Assembly Committee on Campaigns and Elections and the Senate Committee on Shared Revenue, Elections, and Consumer Protection held a joint informational hearing about measures currently in place and investigations that may occur in the future to ensure election integrity. The committees' purpose was to “remove any conjecture that may be out there about what is occurring with elections,” said Rep. Scott Krug (R-Nekoosa). He added that the committee would continue to hold public hearings throughout the summer despite inconvenience to its members, to avoid “another 2020.” The committees heard testimony from the Department of Transportation regarding voter identification cards issued under current law. Ashley Reichert and Lida Tollefson, county clerks in Washington County and Rock County, respectively, discussed systems implemented in their jurisdictions to ensure election integrity. Fond du Lac District Attorney Eric Toney advised the committees that he was unaware of any significant voter fraud. Toney said his office has prosecuted only three voter fraud cases since 2020 and indicated that, at times, voter fraud is a crime that people do not necessarily know they are committing. For instance, persons under felony supervision may vote believing their rights have been restored. Testimony centered around three issues central to the committees: (1) non-citizen voting (2) voting by persons ineligible due to felony convictions, and (3) voting by persons who have been deemed incompetent to exercise the right to vote. Rep. Donna Rozar (R- Marshfield) inquired about the possibility of a shared database of incompetent voters. Tollefson and Reichert indicated that such information is provided by the WEC only to municipalities where incompetent individuals reside. They acknowledged the hypothetical possibility that a person who has been deemed incompetent could move to another municipality and be permitted to vote absent a readily available statewide list. Although not discussed at the hearing, the scenario raised by Rozar is the subject of a lawsuit making its way through the courts, Wisconsin Voter Alliance v. Kristina Secord. Wisconsin Voter Alliance (WVA) brought two failed lawsuits seeking to overturn the results of 2020 presidential election. The Walworth County registrar denied WVA’s open records request for notices sent to election officials (as required by current election law) when a court determines a person is incompetent. Walworth County believes the notices are not subject to disclosure under public records law. WVA argues that the public has an interest in the information, as shown by alleged discrepancies between notices issued to the WEC and the volume of notices published on WEC’s website. A Walworth County Circuit Court judge dismissed the case. The Wisconsin Court of Appeals reversed, ordering the records released, though with birthdates and case numbers redacted. In March, the Supreme Court agreed to review that ruling. |
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