By Margo Kirchner
The U.S. Court of Appeals for the Seventh Circuit this week reinstated claims brought by two Iowa teens who alleged they were subject to excessive isolation and force when they were housed in Wisconsin’s Copper Lake youth prison for girls.
The suit named as a defendant the Iowa official who oversaw placement of Iowa youth in the Wisconsin facility. The opinion was written by U.S. Circuit Judge Joel M. Flaum, who was joined by U.S. Circuit Judges Daniel A. Manion and Ilana Diamond Rovner.
Iowa closed its female youth facility in 2014 and contracted with Wisconsin to house at Copper Lake girls found delinquent in Iowa courts. Iowa paid Wisconsin $301 per day per child.
Iowa declared Laera Reed and Paige Ray-Cluney delinquent and sent them to Copper Lake in 2015. The girls were 16 at the time.
Ray-Cluney says she spent five months in isolation from the end of June until December 15, 2015. Reed says that between August 2015 and February 2016 she spent between 64 and 74 days in isolation.
According to Reed and Ray-Cluney, isolation meant spending 22 hours per day in a seven- by ten-foot concrete cell. The cells were stained with urine and contained only a metal cot and thin mattress. A thick cage covered the one window, reducing the light passing through.
During their limited daily release from the cells, the girls were allowed only to shower, use the restroom, exercise for 15 minutes, clean their rooms, use 15 minutes to write a letter, or sit in chairs by themselves without speaking. They received little or no educational instruction.
Both girls attempted suicide.
In August 2017 Reed and Ray-Cluney sued Wisconsin’s Administrator of Juvenile Corrections and several Wisconsin officials associated with Copper Lake. In addition, Reed and Ray-Cluney sued Charles Palmer, director of the Iowa Department of Human Services.
Reed and Ray-Cluney filed their separate lawsuits in the U.S. District Court for the Western District of Wisconsin, alleging constitutional violations arising from excessive use of isolation cells and excessive force. They also alleged intentional infliction of emotional distress and negligence. Reed added violations of the Iowa constitution.
The Seventh Circuit appeal involved only the claims against Palmer relating to Copper Lake’s isolation cells. The plaintiffs did not allege that Palmer knew about any use of excessive force.
According to the complaints, Palmer contracted with Wisconsin to use the Copper Lake facility, retained legal custody of both plaintiffs, monitored and received reports about plaintiffs’ confinement at Copper Lake, and knew or should have known about Copper Lake’s use of isolation cells. Nevertheless, say the plaintiffs, Palmer failed to remove them from Copper Lake or ensure that Copper Lake properly trained and supervised its staff.
In district court, Palmer moved to dismiss based on qualified immunity. U.S. District Judge Barbara B. Crabb agreed with Palmer and dismissed all claims against him. Reed and Ray-Cluney appealed.
The plaintiffs’ claims against the Wisconsin defendants were not affected by Palmer’s dismissal.
Qualified immunity protects public officials from civil liability unless their conduct violated a clearly established constitutional right that a reasonable person would have known about, the Seventh Circuit said in its opinion. The doctrine balances the need to hold public officials accountable for their irresponsible conduct and the need to protect them from liability when they perform duties reasonably.
Qualified immunity does not protect a public official from suit if a plaintiff shows that the official violated a constitutional right and that right was clearly established at the time of the challenged conduct. To be clearly established, the law must “be sufficiently clear that every reasonable official would have understood that what he is doing violates that right,” said the Seventh Circuit.
Judge Crabb believed that even taking the facts alleged in the complaints as true, no law clearly established what action was required of someone in Palmer’s position.
The Seventh Circuit held that dismissal was premature. It noted that because the qualified immunity defense depends on the facts of each case, dismissal at an early stage (before discovery) is unusual. Plaintiffs are not required to allege in their complaints detailed facts that anticipate or defeat a qualified immunity defense. Instead, said the court, the plaintiffs need to allege only enough facts to “present a story that holds together.”
The Seventh Circuit recognized that under an Eighth Amendment cruel-and-unusual-punishment test based on culpable and serious denial of life’s necessities, the plaintiffs’ allegations held up. The court pointed to a 1974 case involving use of corporal punishment and tranquilizing drugs at a juvenile institution and noted a recent case out of New York holding that juvenile isolation is likely unconstitutional under the Eighth Amendment.
Likewise, the Seventh Circuit found that plaintiffs’ allegations met the requirements of a more lenient Fourteenth Amendment due-process test for pretrial detainees. Under Supreme Court caselaw from the early 1980s, restrictions on liberty are permitted only if reasonably related to legitimate government objectives and not for punishment.
Thus, said the court, under either test case law clearly established that Palmer’s alleged conduct could violation the Constitution.
Crabb had found that unlike the officials in prior cases, Palmer did not himself oversee use of the isolation cells or operate the institution in which alleged abuse occurred. But the Seventh Circuit found that Palmer’s separation from the institution at issue and his lack of personal involvement in placing the girls in isolation did not alter the need for remand. The Seventh Circuit pointed to the special relationship created when a state removes a child from parental custody and to prior case law defining the right of a child in state custody not to be handed over to a custodian that the state knows is a child abuser.
On remand, Palmer may reassert other defenses to the case, including his argument that the Wisconsin federal court lacks personal jurisdiction over him. Further, Palmer may obtain qualified immunity on summary judgment if the facts fail to support the plaintiffs’ allegations regarding the extent of their isolation or Palmer’s level of involvement and knowledge.
“In the meantime, however,” said the Seventh Circuit, “this case is one that would greatly benefit from a more robust record.”
By Gretchen Schuldt
Outagamie Circuit Judge Mark McGinnis insulted a defendant and dropped the Fbomb from the bench during a hearing held partly to determine whether the judge would purge the contempt of court finding he earlier issued against the man.
Brian D. Mitchell, sentenced to six months in jail because he rolled his eyes in front of McGinnis, angered the judge again when next they met in court. Mitchell rolled his eyes again. And he picked up some papers, which also angered the judge.
The hearing started off well enough but went downhill rapidly after the conversation turned to contempt. McGinnis wanted Mitchell to write an apology, orally apologize in court, and pay a $5,000 fine before the judge would purge the contempt finding. Mitchell was impoverished enough to qualify for representation by the State Public Defender's Office.
Mitchell was represented at the hearing by attorney Gary J. Schmidt. Mitchell was not represented by a lawyer when McGinnis first issued the contempt finding. McGinnis already had granted attorney Daniel Muza's request to withdraw.
Mitchell, of Milwaukee, was charged with human trafficking. The case was eventually dismissed.
Below are excerpts from the June 23 hearing transcript:
McGinnis: I will find today that the written apology was appropriate and satisfies one of the purge conditions. I thought that was the written document that you were talking about before, Mr. Sargent. ... Okay. So Mr. Mitchell?
McGinnis: Mr. Schmidt said you wanted to address that issue.
Mitchell: Yes. It's my understanding that I was to give a publicized, verbal apology, which I intend to do. I would, first, like to apologize, I mean, to you, judge, your honor, for my suspension on my outburst, and the disrespectful manner in which the Court took it in, the disrespect to the Court that day. I apologize for, I mean, being – – my contemptuous behavior that day on June 6 in the courtroom.
As I wrote you in the letter, I intended to apologize and that I actually learned my lesson from that and that I didn't think it would be in my best interests. I thought I would satisfy the Court in a different manner rather than lockup conditions.
McGinnis: Anything on that, Mr. Sargent?
Sargent: No, your Honor.
McGinnis: Mr. Schmidt?
Schmidt: Nothing on that point. I think my client has a cash bond, but I think also the Court had sentenced him to six months in the jail on the contempt. So we would ask the Court to lift the six months if he's able to post the cash bond. Then he has that opportunity. Otherwise that's taken away from him.
McGinnis: I believe there were three purge conditions, right? The third purge condition has to do with paying a $5,000 amount.
Sargent: That's correct.
McGinnis: I'm just going on memory.
Sargent: That's correct.
McGinnis: What is the cash bond amount, Mr. Schmidt?
Sargent: $15,000, judge. Sorry.
McGinnis: What I think needs to be done, Mr. Mitchell is the following. It's something I think you need to either appreciate or, if you don't appreciate it, at least understand, that is, you know, in this society every day we deal with individuals who are unhappy, disgruntled, emotional, and it's not just defendants. It's attorneys. It's victims, witnesses, police officers; and in order to have a system that runs efficiently or smoothly and is done in a way – – do you need time to get rid of those documents?
McGinnis: You notice that disrespect that you are showing me in the last 35 seconds? You get that, right?
McGinnis: Okay. It's not showing up on a transcript but that's the type of disrespect that shouldn't exist in a courtroom. And I only say that, Mr. Mitchell, because like I told you last time, I'm going to be the guy who sentences you if you lose, and you know, you don't make – – it's not in your best interests to carry on the way you carry on. That's okay. You can do it if you want. You can roll your eyes when I am talking. You can purposely look away, and you can look at me and give me the fuck-you look, right, that you have been giving me for the last minute and that's fine. That's just who you are.
"I'm going to be the guy who sentences you if you lose, and you know, you don't make – – it's not in your best interests to carry on the way you carry on." – Outagamie Circuit Judge Mark McGinnis
But what you did the last time here, the disrespect and what I thought and I characterized as an aggressive, inappropriate way, which is different than what you are doing right now, which is contemptuous behavior; and it can't be tolerated by you or by attorneys or by anybody else who comes in here or else this is just going to turn into a complete circus.
The last time when you were here and what I was saying before is every day it happens to various degrees, and over 12 years of doing this you just kind of let some of it go kind of like I did for those first 35 seconds when you were doing this today. Those first 15 seconds I'm going to let you disrespect. Then it carried on for 20 or 25 seconds. Eventually I say no, this isn't acceptable; and I'm not saying you have to respect me because you won't and you haven't and that's all right; but you have to respect the environment and the fact that this is a courtroom and there are rules for people to follow and that's what you continue to violate.
"You can roll your eyes when I am talking. You can purposely look away, and you can look at me and give me the fuck-you look, right, that you have been giving me for the last minute and that's fine. That's just who you are." – McGinnis
And so before you disrespected me today for this last couple minutes with the way you are looking and the way you are carrying on, I was going to waive that $5,000 purge condition. I thought maybe your apology was genuine. I thought what you had written was sufficient. That's what I said, but it's clear that those are just words and that you don't really mean, and it's an intention that you continue to hope to carry on in the courtroom, which tells me that you don't understand what your role is here.
So the contemptuous behavior that happened last time and the purge conditions that I provided will continue. You have satisfied two out of the three conditions. The third condition will remain the same. Anything else, Mr. Sargent?
Sargent: No, your honor. Thank you.
McGinnis: Mr. Schmidt?
Schmidt: I guess I could advise the Court of one other matter which is probably going to come up soon. I did obtain a copy of the transcript from the hearing on June 6. There should be a copy in the Court's file. ... On the – – on the transcript on the bottom of the page 6 there's a discussion between the defendant and the Court.
The defendant states, "You have a problem, the way you talk to people."
And the court states, "Okay, good. Someday I'm going to sentence you."
Then the defendant says, "Probably."
The court says, "That's going to be a problem"
The defendant, "Maybe."
The Court, "– – for you that day."
My client has asked me to file a motion to ask the court to recuse himself because of that statement. So I probably will be filing a motion based on that section of page 6 and we probably have to schedule a hearing to come back on that in the future.
McGinnis: Go ahead and file it. Maybe include the conversation that we had today because I talked to him about it as well, and you might delay the trial. So you go ahead and file it. When you file it, the State will have 30 days to respond. When they respond, I'll do the research and I'll make my decision.
Obviously at first blush I don't think it's an issue. I will highlight those reasons. I am sure you have some legal authority, Mr. Schmidt, that you can cite; I just know Mr. Mitchell understands today, when I said that to you, at the time of sentencing we take into consideration everything we know, everything we've observed including your character. As I said again today, things you do at a hearing, the way you conduct yourself we're not blind to.
"He obviously isn't that bright of a guy. That's just the reality for him." – McGinnis
So the fact that I will tell you that at a hearing I think is not only appropriate, I think it's best because hopefully a person like you who is smart – – I'm not suggesting that you are – – or that you care – – and I'm not suggesting that you do care – – you would change your behavior or your conduct and you would handle yourself in a different way.
Mr. Mitchell, as he's picking up his papers right now and continues to show that disrespect and is looking away and rolling his eyes and acting in a way that he has for the last couple hearings – – He obviously isn't that bright of a guy. That's just the reality for him. Whether that means I could be fair or that I have some bias against him, whether it's perceived or it's real, I think the record is clear as to what the facts are.
So file your motion. Make sure you support, the legal authority. The State has 30 days from whenever that's filed. I'm not sure I'm going to waste my time with a motion hearing on it; but once it's filed, I will read it. If I think it's necessary to have a hearing, I will. Otherwise it will just rule on it at the appropriate time. Anything else Mr. Sargent?
Next week: The case falls apart.
By Gretchen Schuldt
Outagamie Circuit Judge Mark McGinnis last year kept a defendant jailed for 42 days for contempt of court for rolling his eyes, shuffling papers and giving McGinnis, in the judge's own words, a "fuck-you look."
The contempt finding against Brian Mitchell was eventually overturned by a state appeals judge. Mitchell's lawyer on appeal, Joseph Ehmann, said Mitchell merely was reacting in frustration to comments McGinnis made.
A Court of Appeals panel last month overturned a prison sentence McGinnis handed down in a different case. The appeals panel ruled McGinnis showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison.
McGinnis did something similar but not identical in the Mitchell case. He told Mitchell during a pre-trial hearing that he better keep in mind that McGinnis would be the one to eventually sentence him.
McGinnis originally sentenced Mitchell to six months for the contempt but offered to purge the finding if Mitchell apologized in writing and orally in court and paid a $5,000 fine. Mitchell was poor enough to be represented by the State Public Defender's Office.
McGinnis let Mitchell out after 42 days. The human trafficking charge against Mitchell was dismissed less than a month later.
The action leading up to the jailing played out during two days of hearings. Below is an excerpt from the transcript from the first day.
During this June 6, 2017 hearing, Mitchell is accompanied by attorney Daniel Muza, who has just withdrawn from the case and no longer represents Mitchell. The defendant is without a lawyer.
This section begins after McGinnis cautions that Mitchell's request for a speedy trial means that there are factors that his lawyer might not have enough time to prepare.
Mitchell: I highly understand.
McGinnis: I'm not done talking yet.… There is a likelihood, a good likelihood, that that case will need to be rescheduled and pushed to a later date. Do you understand that?
Mitchell: yes. I – – I will feel that's a conflict.
McGinnis: I'm not sure what that means.
Mitchell: I would like it at the earliest convenient on the calendar dates, my jury trial. I want to, I intend, will exercise my right to exercise a speedy trial. If my attorney can't cooperate with that, it's a conflict of my interest.
McGinnis: How come it's a conflict of your interests? ... And if you're attorney is on vacation, for example, on that date – –
Mitchell: I understand that.
McGinnis: You must not.
Mitchell: I can sign a stipulation with my attorney. I mean, saying that I understand that it will probably put them in less effective -- It wouldn’t put me in the best defense, but that’s just my decision. Me and my attorney could probably come to some type of an agreement on that.
McGinnis: You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing.
Mitchell: No. I -- I asked him to.
McGinnis: It wasn’t a question for you. Okay. So you use terms that don’t make sense, which is okay. Then when we try to explain things to you, you appear or you seem to want to know everything; and then you seem to make more comments that don’t make sense. So I’m not interested in trying to really have a conversation with you where you and I both agree.
Mitchell: Me neither. Me neither.
"You’re obviously very confused. That’s probably one of the reasons Mr. Muza is withdrawing." – Outagamie Circuit Judge Mark McGinnis
McGinnis: I’m just telling you the reality of something.
McGinnis: Okay. I want you to understand today.
Mitchell: I understood that already.
McGinnis: I wasn’t done asking the question. For some reason you have a problem with interrupting people when they are talking. You can roll your eyes. It’s really impressive.
Mitchell: You have a problem the way you talk to people.
McGinnis: Okay, good. Someday I’m going to sentence you.
McGinnis: That’s going to be a problem --
McGinnis: -- for you that day.
McGinnis: Maybe. For your sake you’d better hope it doesn’t happen because I have a pretty good memory of it and if it --
Mitchell: I’m innocent so I don’t worry about your sentencing.
McGinnis: You might be innocent. You might not have to worry about it. That’s fine.
Mitchell: All right then.
McGinnis: Are you done rolling your eyes?
"Someday I’m going to sentence you. ... That’s going to be a problem...for you
A few moments later, after another brief exchange, Mitchell urged McGinnis to proceed with the hearing.
McGinnis: I am trying, but you are interrupting and creating nonsense by rolling your eyes and other antics.
Mitchell: That’s not interrupting if I am rolling your (sic) eyes. I can roll my eyes.
McGinnis: No, you can’t roll your eyes, sir. I am going to find you in contempt of court for your conduct today, for the disrespect to the Court. Is there anything you’d like to say before I impose a consequence for that?
McGinnis: I’m going to sentence you to six months in the Outagamie County Jail in lockup. That sentence begins today. You may purge that contempt by writing an apology letter to me.
Mitchell: I will.
McGinnis: And, secondly, by appearing here in court and making a verbal apology.
Mitchell: I will.
McGinnis: And by paying a fine of $5,000. If you purge that contempt by doing those three things, then that contempt is purged and you’re no longer sitting. Otherwise you will sit for six months in lockup. Anything on that issue, sir?
McGinnis: Okay. So you can keep rolling your eyes and then I will keep giving you six months, or you can grow up and handle yourself the way that people are supposed to handle themselves in court. Do you have any questions about that?
Mitchell: Do I get appointed an attorney? Can I?
McGinnis: I asked if you had any questions about that?
Mitchell: Can I argue that?
McGinnis: Argue what?
Mitchell: The sentence you just gave me, your charge.
McGinnis: You can do anything you want you can keep rolling your eyes if you want, like you said. You told me a couple minutes ago you can roll your eyes. Sure you can go ahead and roll your eyes. That I can go ahead and do what I want to do.
Next: Another hearing, and the judge drops the Fbomb from the bench.
By Gretchen Schuldt
More than 400 Racine Correctional Institution inmates were waiting to see a dentist as of July, and 23 of those had waited more than 40 weeks, according to a state budget request.
Fifty-seven inmates on the list were waiting for "essential services" and 41 were waiting for dentures.
Dental care at the prison is "inadequate," the request said.
The Department of Corrections detailed the need for improved dental services at RCI in the 2019-21 budget request it submitted to Gov. Scott Walker, who has not visited a state prison during his years in office.
The department is seeking 27 new positions to staff the new $8 million health services unit at RCI scheduled to open in April 2020. The department also is seeking $1 million in fiscal 2020 and $2.8 million in fiscal 2021 to pay for the new positions.
The share of new staff that would go to dental services is fairly minimal - a 60 percent full-time equivalent dentist, a 60 percent full-time equivalent dental assistant, and a 20 percent full-time equivalent dental hygienist.
Those position should, however, help the institution "rectify the inadequate dental care that inmates receive as a result of long delays" in getting treatment, the request said.
Wisconsin is not alone in struggling to meet inmate dental needs. Standards vary from state to state and agency to agency, according to a report by The Marshall Project.
"Even before their incarceration, prisoners are likely to have unmet dental needs, research shows," The Marshall Project reported. "While in prison, they have a constitutional right to dental care, but the courts have offered little guidance on the services that institutions must provide. If a tooth or gum problem is causing more than minimal pain, facilities are required to treat it, said David Fathi, director of the ACLU National Prison Project. 'Even a few days of untreated dental pain is not allowed.' ”
Also included in the budget request for the new facility is funding for guards, nurses, and medical assistants.
The new unit, triple the size of the existing one, will allow DOC to better meet health care needs, the request said.
As of May, it said, "41.6 percent of RCI’s inmates had a mental health condition and 7.7 percent of inmates had a severe mental illness. ... Additionally, the DOC believes that the inmate population will continue to age going forward, which will further increase the need for expanded health services to inmates. "
With the smaller facility and smaller staff used now, staff members "currently struggle to consistently monitor chronic conditions," the request said.
There are seven to 10 offsite medical visits every day, and about one of those is a trip to the local emergency room.
"These offsite treatments not only have greater medical costs but also require at least one security staff member to accompany inmates on trips out of the institution," the request said.
Adding the requested staff would allow for improved preventative care for inmates, it said.
"Inmates’ chronic conditions, such as HIV, diabetes, and hypertension, would be less likely to worsen while they are incarcerated and less likely to result in expensive hospital visits," the request said.
Improved on-site health care also means fewer off-site trips for corrections staff, it said.
If the prison does not get the additional staff, it will have to rely on contracted help and limited-term employees, who are employees who sign on for short stints and do not plan to stay. Contracted and limited-term employees are harder to recruit and have higher turnover than full-time employees, the request said.
Relying on contracted and limited-term employees also would reduce the benefits of the new building as they "provide less continuity of care to patients due to their higher turnover and they are often less experienced than FTE staff," the request said.
By Margo Kirchner
Negligent – even reckless – horseback-riding facilities in Wisconsin are immune from liability for harm they cause customers, the U.S. Court of Appeals for the Seventh Circuit confirmed last week.
The decision addressed two cases. In the first case, Holiday Stables employees sent Judy Dilley out on a horse without instructions or a helmet, even though Dilley had told a staffer she lacked prior horseback-riding experience. The employees also failed to adjust her stirrups.
On the trail, Dilley told the guide riding in front of her that she did not have hold of the reins of her horse, Blue. The guide told her not to worry because Blue, who often carried small children, knew where to go.
After about 20 minutes, Blue attempted to pass the guide’s horse, which kicked at Blue. Blue reared, throwing Dilley to the ground.
Dilley suffered a head injury, fractured ribs and vertebra, and punctured lung.
In the second case, Abigail Brown sued over multiple leg fractures sustained during a riding lesson. Brown took her own horse, Golden Gift, to Country View Equestrian Center in Monroe for the lesson. During the lesson Country View’s instructor allowed a second rider and horse to enter the arena, knowing that the second horse was high spirited. The second horse sped off, bucking and colliding with Golden Gift, tossing Brown from her horse.
Both women were from out of state and so sued in federal court. They lost there and appealed.
The court interpreted the state’s equine-immunity law that, with some exceptions, protects trail operators and riding instructors from paying a rider for injuries.
U.S. Circuit Judge Diane Sykes wrote for the Seventh Circuit panel, joined by Circuit Judges Joel Flaum and David Hamilton.
Under the statute, a person or facility renting out horses or receiving pay for riding lessons is generally immune from civil liability if a participant is injured due to “an inherent risk” of the equine activity.
Holiday Stables employees sent Judy Dilley out on a horse without instructions or a helmet, even though Dilley had told a staffer she lacked prior horseback-riding experience.
"Inherent risk" means “a danger or condition that is an integral part of equine activities” and includes collisions between animals, the unpredictability of a horse’s behavior or reactions to its surroundings, and the potential of a person participating in the activity to act negligently.
Dilley argued that because negligence of a trail operator is avoidable, it is not an “integral part” of horseback riding and thus immunity does not arise. The Seventh Circuit rejected her argument based on the statute’s text.
The court also rejected Dilley’s alternative argument that her case fit a couple exceptions to immunity. One exception permits recovery of damages when a trail operator provides a horse “and fails to make a reasonable effort to determine the ability of the person to engage safely in an equine activity or to safely manage the particular equine provided.”
Dilley argued that the exception applies when the operator “fails to . . . safely manage” a horse, while Holiday argued that the exception applies only when an operator fails to assess “the ability of the person . . . to safely manage” the horse.
With no Wisconsin Supreme Court interpretation of the language on the books, the Seventh Circuit predicted how the state’s high court would rule. Declaring the task “not difficult,” the Seventh Circuit agreed with Holiday’s interpretation.
The exception does not affect immunity for the trail operator’s negligent management of a horse, said the court.
During the lesson Country View’s instructor allowed a second rider and horse to enter the arena, knowing that the second horse was high spirited.
Further, the court added, nothing in the statute suggests that immunity is lost when an operator fails to periodically review how a rider is doing; the exception concerns only the time when the rider is matched with the horse.
Brown argued the same exception, but lost because she rode her own horse. The exception applies only when an operator or instructor provides the horse.
“[I]t strikes us as entirely reasonable that a rider who owns his own horse should bear the risk of a mismatch between his riding ability and his horse’s temperament,” Sykes wrote.
Dilley also argued unsuccessfully that Holiday’s conduct was reckless, satisfying an exception for “willful or wanton disregard for the safety of the person.”
The court, though, said the word “reckless” was not in the statute, as it was in other state laws. Even when an operator should be aware of a strong probability of harm and acts anyway, immunity applies, Sykes said.
The court offered no sympathy for the unsuccessful plaintiffs, as courts sometimes do when ruling against them. Instead, the panel wrote a few parting words about the roles of court and legislature.
Said the court: “The immunity statute and its exceptions necessarily entail policy judgments about how much exposure to liability is too much in this sphere of recreational activity. Unless the statute admits of no rational justification, it’s not our job to second-guess how Wisconsin’s legislature has drawn these lines.”
By Gretchen Schuldt
An Outagamie Circuit Court judge showed improper bias when he indicated before hearing any sentencing arguments that he would send a defendant to prison, a State Court of Appeals panel ruled Tuesday.
The ruling does not reflect on the four-year sentence Circuit Judge Mark J. McGinnis ultimately handed to Emerson D. Lamb, Appeals Judge Thomas M. Hruz wrote for the District III panel.
"However justified Lamb’s prison sentence may have been, we cannot ignore the constitutional requirement that Lamb be sentenced by an impartial tribunal," Hruz wrote. "Our adherence to this fundamental precept of due process compels us to reverse Lamb’s conviction."
The court ordered that Lamb be sentenced again by a different judge.
Hruz was joined in his opinion by Appeals Judges Lisa K. Stark and Mark A. Seidl.
Lamb originally was charged with two counts of felony bail jumping, one count of battery by a prisoner, and one count of disorderly conduct. He was charged as a repeater in each instance.
He eventually pleaded guilty to one count of battery by a prisoner as a repeater, and the other counts were read in. The judge ordered a pre-sentence investigation, and Lamb was released on bond.
He failed, however, to keep his appointment with the PSI writer and expressed a desire to withdraw his plea.
During a hearing, Lamb said he was wrongly charged with two counts of bail jumping and called the district attorney a "criminal," then left the courthouse, Hruz wrote. McGinnis issued a bench warrant for Lamb's arrest. He was eventually taken into custody.
At his sentencing hearing, Lamb said he no longer wished to withdraw his plea and to skip the PSI because prosecutors agreed to recommend a sentence of probation.
''I feel like I could potentially benefit from, you know, maybe being on probation," Lamb said. "Also, there’s the possibility of leaving today, so I just --"
"Not really," McGinnis said. "Okay. Just thought I’d tell you that so you don’t have any false hopes. I mean, there’s a possibility, but it’s probably not going to happen. Do you understand that? Yes?"
Lamb said he understood.
McGinnis continued, "I don’t want you waiving your rights thinking something that might happen that maybe isn’t going to happen. So now that you know that it probably isn’t going to happen that you’re going to get out today, do you still want to proceed with sentencing and not argue on your request to vacate the pleas or to withdraw the pleas and to waive your right to have a PSI?"
Lamb said he did.
"You’re going to prison today because we’re sick and tired of you."
McGinnis heard from the district attorney, Lamb's attorney, and Lamb himself. Then the judge himself spoke.
"Well, just so there’s no surprise, I mean, you are going to prison today," he said. "I’m making that decision, and I think it needs to be communicated to you clearly without keeping you on edge as I tell you what’s going to happen, and you’re going to prison today because we’re sick and tired of you."
Lamb had several chances at probation, but kept committing crimes, McGinnis said, adding that he did not "know many people with as low of character as you have."
McGinnis sentenced Lamb to two years in prison and two years on extended supervision.
McGinnis' comments "reveal, by a preponderance of the evidence, a serious risk of actual bias because a reasonable lay observer would interpret them as prejudging Lamb’s sentence," Hruz wrote.
The timing of the judge's comments was important because they occurred before sentencing arguments and before Lamb had a chance to speak on his own behalf, Hruz said.
Wisconsin judges are required to consider several factors when passing sentence harsher than probation. They include the need to protect the public, the gravity of the offense, and the defendant’s rehabilitative needs, Hruz said.
McGinnis’ statements "failed to account for any of these sentencing factors and objectively show a 'serious risk' that he had already made up his mind about what kind of sentence Lamb would receive," Hruz said.
By Gretchen Schuldt
The State Public Defender's Office is proposing to increase from $40 to $70 per hour the rate it pays private bar attorneys to represent defendants who cannot afford to hire attorneys.
It is at least the office's 19th formal attempt to increase the $40 per hour rate since 1999, according to information provided earlier by the State Public Defender's Office (SPD).
The $40 rate, which is the lowest in the nation, "is impeding the SPD’s ability to recruit and retain private bar attorneys who consistently accept appointments and provide effective representation," the agency said in its 2019-21 budget request. "It also has a direct impact on county expenses through increased jail costs and costs for appointment of counsel at county expense."
The pay increase, which would take effect July 1, 2019, would cost $33.2 million over the biennium.
The agency suggested as an alternative that the pay raise be delayed until Jan. 1, 2020. That would reduce the cost to $25.3 million, the SPD said in its budget request.
Hank Schultz, a lawyer who has been heavily involved in working for a private bar pay increase, said the proposal is a stop-gap measure that does not address the basic problem.
"In a few years we'll be in the same place we are now," he said in an interview. "This is not a meaningful, long-term solution."
SPD appoints lawyers when its own caseload is too great, or when it has a conflict. When it cannot find a lawyer willing to take a case at $40 per hour, which is occurring with increasing frequency, judges are supposed to appoint lawyers at county expense. Some judges already are paying $100 per hour or more for those lawyers, Schultz said.
The minimum rate for court-appointed lawyers is $70 per hour.
In some counties, defendants remain in jail while they await appointment of counsel by either the SPD or a judge. Some judges proceed with hearings even if no lawyer is available. An 18-year-old inmate in the Wood County Jail hanged himself last month after trying to represent himself at a preliminary hearing – no lawyer was there to help him.
The Wisconsin Association of Criminal Defense Lawyers asked the State Supreme Court earlier this year to increase the $40 rate, but the Court, while acknowledging the rate was too low, declined to act, instead deferring to the Legislature. The court did agree to increase the rate paid to court-appointed lawyers from $70 to $100 per hour, but delayed implementation until Jan. 1, 2020.
"Considering the $40 rate and the cost of operating a law practice, it is unsurprising that there are fewer attorneys willing to accept SPD appointments," the Public Defender’s Office said in its budget request.
The $40 rate is not enough to cover the average attorney's overhead costs, SPD said, and other attorneys used by the state and federal governments are paid more.
"Defense attorneys are paid $140 per hour for noncapital federal cases," SPD said. "The Office of Lawyer Regulation uses outside counsel in some disciplinary matters and pays them $70 per hour."
Finding lawyers to represent clients in the northern part of the state is especially challenging, SPD said.
Bayfield County cases are now assigned to out-of-county lawyers 99 percent of the time, SPD said. In fiscal 2012, Ashland County appointed 28 percent of cases to out-of-county private attorneys; by 2017, that number had risen to 73 percent.
By Margo Kirchner
After multiple hearings and studies, the Wisconsin Supreme Court has denied a long-pending petition seeking appointment of counsel for low-income people in civil cases that affect the litigants’ “basic human needs.”
Unlike defendants in criminal cases, litigants in civil cases generally do not have any right to counsel.
Back in September 2013, John Ebbott and Thomas Cannon, then the executive directors of Legal Action of Wisconsin and the Legal Aid Society of Milwaukee, respectively, asked the Court to fund a pilot project testing the appointment of counsel in civil cases and to adopt a new court rule requiring appointment of counsel in civil cases when “necessary to ensure a fundamentally fair hearing in a court proceeding that will affect the litigant’s basic human needs.” Basic human needs included “sustenance, shelter, heat, medical care, safety, and child custody and placement,” Ebbott and Cannon said.
The Court had denied a similar rule petition previously, saying that “the effect of the proposal on circuit courts and counties is largely unknown but may be substantial.” The Wisconsin Access to Justice Commission (WATJC) later developed a pilot project to test civil appointments, but the State Bar of Wisconsin declined to fund it.
The WATJC, a nonprofit organization created by the Wisconsin Supreme Court at the request of the State Bar of Wisconsin, aids the Court in expanding access to the civil justice system for unrepresented, low-income Wisconsin residents. Providing civil legal aid can assure fairness for those involved in the justice system, reduce court costs, and strengthen communities, according to the organization.
The 2013 petition sought funding of the pilot project by the Supreme Court.
The Court discussed the petition at an open administrative rules conference in December 2013 but held off decision at that time.
The WATJC, in an October 2014 letter from its then-president, retired Milwaukee Municipal Court Judge James Gramling, suggested that if the Court chose not to fund and implement the pilot project it could ask the Wisconsin Legislature to create a legislative study committee to examine “the costs, benefits, scope, and revenue options” of an appointed-counsel plan for low-income litigants in civil cases involving basic human needs.
The Court discussed the petition again in December 2014. Then, over a year later, in January 2016, the Court formally requested creation of a study committee. The Joint Legislative Council agreed, creating the Study Committee on Access to Civil Legal Services.
The Committee met from July 2016 through February 2017 and after consideration of the issue recommended three bills, which the Joint Legislative Council passed on to the Legislature. One bill encouraged several state agencies to allocate federal block grant money for civil legal aid to qualified individuals. Another proposed creation of an interagency council to evaluate how improved access to civil legal services could further the goals of the agencies. And the third allowed district attorneys and their deputy and assistant district attorneys to provide pro bono legal services to low-income persons or to nonprofits as long as the services did not conflict with the interests of the attorney’s county — presumably increasing the number of attorneys providing legal services to the poor.
The bills were introduced in the 2017-18 legislative session, but died.
The Court, in its order this month, said the conclusion of work by the Joint Legislative Council study committee made it appropriate to dismiss the rule petition.
No pilot program, no rule change, no legislation from the study committee’s work.
“The Court’s order brings this petition to a conclusion — but not the effort to give low-income litigants a shot at a fair result in court,” Gramling said in an email. He remains on the commission and – full disclosure – is a WJI Board member. “Our Commission will continue to present ideas to the Supreme Court for ‘expanding access to the civil justice system for unrepresented low-income Wisconsin residents’ — the mission given us by the Court when it created the Commission.”
By Gretchen Schuldt
A federal appeals court on Friday reversed the $6.7 million verdict against the county awarded in a lawsuit brought by a woman who was raped by a corrections officer in the Milwaukee County Jail.
The Seventh Circuit Court of Appeals panel found that former Corrections Officer Xavier Thicklen was acting outside the scope of his duties for the county when he raped the woman and forced her to perform oral sex on him.
The court threw out the jury verdict only against the county. Thicklen also was named as a defendant. The verdict against him still stands.
The three-judge panel, in an opinion written by U.S. Circuit Judge Daniel A. Manion, said U.S. District Judge J.P. Stadtmueller should have relied on what he believed the Wisconsin Supreme Court would do when he ruled on a county motion to dismiss the case against it because Thicklen acted outside the scope of his job; instead, Stadtmueller relied on one of his own decisions and let the lawsuit move forward.
Manion referred to the the Wisconsin Supreme Court's standard as "time-worn."
"Conduct is not in the scope if it is different in kind from that authorized, far beyond the authorized time or space, or too little actuated by a purpose to serve the employer," he wrote.
Manion was joined in the decision by U.S. Circuit Judge Amy Coney Barrett and U.S. District Judge Robert W. Gettleman.
Thicklen, the corrections officer, resigned from his job when his activities came under investigation. He eventually pleaded guilty to felony misconduct in office for providing the inmate with contraband and calling her grandmother, and served three days in the House of Correction. He did not attend the three-day federal civil trial.
Thicklen raped the woman in the jail when she was 19 and eight months pregnant. Four days after she gave birth, he demanded she perform oral sex, according to testimony. There was additional sexual contact as well.
After running through previous Seventh Circuit interpretations of scope of duties, Manion wrote, "even when viewing the evidence in the light most favorable to (the woman) and the verdict, we hold no reasonable jury could find the sexual assaults were in the scope of his (Thicklen's) employment. ...The evidence negates the verdict."
Milwaukee County trained Thicklen not to have sex with inmates and how to avoid invitations to have sex with inmates, Manion wrote.
"The undisputed facts and reasonable inferences point ineluctably to the conclusions that Thicklen’s abhorrent acts were in no way actuated by a purpose to serve County," Manion wrote. "He raped (the inmate) for purely personal reasons, the rapes did not benefit County but harmed it, he knew the rapes did not serve County, and the rapes were outside the scope."
Manion expressed sympathy for the woman who, with the county's dismissal from the case, "loses perhaps her best chance to collect the judgment. But (the law) does not make public employers absolute insurers against all wrongs."
"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications.
Name: Laura A. Crivello
Appointed to: Milwaukee County Circuit Court
Appointment date: March 13, 2018 (up for election spring 2019)
Law School – Marquette University
Undergraduate – UW-Milwaukee (earlier attended Belmont University, Nashville, TN)
High School – Mary D. Bradford High School, Kenosha, WI
Recent legal employment:
1995 - present – Assistant district attorney, Milwaukee County District Attorney’s office
Courts of the State of Wisconsin
U.S. District Court-Eastern District
State Bar of Wisconsin
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Assistant district attorney for 23 years. Cases handled include traffic, misdemeanors, children in need of protective custody, firearms, domestic violence, gangs, community prosecution, drugs, and homicide cases.
Number of cases tried to verdict or judgment: Jury, 100+; non-jury, 100+; arbitration, no answer given,; administrative bodies, 5+.
Cases on appeal: 20+
Three most significant cases:
East Side Mafioso Investigation and Prosecution – Back in 2014, the heroin epidemic was coming into full swing. The east side of Milwaukee was experiencing an increase in violence and overdoses. HIDTA decided to target a gang with a history of violence who was accurately believed to be supplying this area with this poison. This gang called themselves the East Side Mafioso. Our goal was to not only eliminate the suppliers, but to also to see if we could do something to help the people addicted to heroin. Our investigation developed into a … State run wiretap which spun into two other successive wiretaps resulting in six lines that were ultimately tapped.
On the day of the take down, HIDTA executed ten search warrants which resulted in the seizure of eleven firearms, $21,000 in U.S. currency, nine assorted vehicles, approximately one half kilogram of heroin, one half kilogram of cocaine, as well as substantial amounts of cocaine base and marijuana. Furthermore, forty-five individuals were arrested … We also were able to place many of the users who were selling to support their habit into drug treatment court. …I know we saved lives by putting the supplier in prison for extensive periods of time and I know we saved the lives of a number of the addicts which I why I know this investigation and prosecution were significant.
Violent Crime Tint Crew (Blessed Team/Big Money Addicts)
In 2015, heroin dealers modified how they sold heroin in Milwaukee County. The market changed from drugs being sold from stash house (a closed market) to drug being sold out of tinted out cars (an open market). These individuals worked off of phones which were shared by groups. … These dealers loved social media and tended to post video clips of themselves driving through the community with vast amounts of drugs, firearms with extended magazines and stacks of money. …
Our investigation was a multi-jurisdictional effort that resulted in approximately twenty higher level suppliers being arrested, prosecuted, and ultimately placed in prison. Confidential informant information, controlled purchases of drugs, under-cover buys, multiple search warrants, and other lawful means were utilized to build cases … One of the most frustrating parts of the whole investigation was that as soon as one member was arrested, we would seize the phone. This group was technically advanced enough to realize that the phone line was what provided the money, so they would port the phone line to a different device immediately after an arrest … We decided to employ a tactic that had never been used in the United States. A warrant was drafted which ordered the phone company to freeze all data going into and out of a particular line that was utilized by the BMA, thereby rendering the line useless for a thirty day period. …We were thereby able to disrupt the drug trafficking continuum and hopefully save some lives. Since this was accomplished, I have heard from prosecutors and law enforcement across the United States seeking copies of our documents to replicate what we did in Milwaukee to affect the heroin trafficking trade on our soil.
Willie Jordan and Mario Wood – In 2014, I was aware of a homicide that occurred where the victim was found with duct tape, pistol whipped, beaten, shot in the head and dumped in an alley. The suspect for this crime was Willie Jordan. He was charged with False Imprisonment by a different prosecutor. On the day of trial, the case was dismissed. I had followed this case and watched this matter transpire … and it didn’t feel like justice was served.
Then in December of 2015. I learned of a young stripper who was the girlfriend of Willie Jordan who had been bound with duct tape, pistol whipped, beaten, branded repeatedly with a red hot fork, injected with heroin – twice and left for dead. The perpetrator before stealing the victim's dog, turned on the gas on the stove causing great risk to the entire neighborhood. ...Ultimately, the victim's relative found her near death and called the paramedics. The case was initially reviewed as an overdose. No evidence was taken from the scene. ...
The reviewing prosecutor ultimately no processed the case because she felt the victim was uncooperative and her medical records reflected that she had marijuana in her system. There was no physical evidence to corroborate her statement due to the case not being properly investigated and the perpetrators wearing gloves. … Again, I felt that justice had not been served. Six weeks after the incident, I decided to meet with the victim. ...
[Despite difficulties the victim ultimately testified..]
The victim’s testimony was the most powerful testimony I have ever heard. … Ultimately, the jury convicted Jordan of Attempted 1st degree Intentional Homicide, False Imprisonment, Armed Robbery, and Delivery of Heroin. Jordan is presently serving an 80 year sentence in the Wisconsin Prison System broken down into 50 years of initial confinement followed by 30 years of extended supervision. …
All previous runs for office: NA
Pro bono legal work in the last five years: Due to my position, I am unable to do pro bono legal work.
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: NA
All judicial or non-partisan candidates endorsed in the last six years: NA
Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: Redacted
WJI note: Nicholas J. Korger, assistant legal counsel in Gov. Scott Walker's office said in a cover letter accompanying applications submitted by Crivello and two other judicial appointees that "certain information for one applicant is redacted due to ongoing security concerns." While Korger did not identify the applicant, it is presumably Crivello.
Why I want to be a judge – I am seeking where I may do the greatest good. For the last twenty three years, I have sought to do what is right and what is just. I have tried to be fair and to the best job that I could do. I have prayed for remedies or made recommendation as to what I believe is just. I am turning fifty this year, and I am at that point in life where I am ready to be the person making the decision, not just the person asking for the right thing to be done.
I also believe that I would be a good judge. I am well studied and experienced. I have a proven track record of trying hard cases and prevailing. I also try the right cases for the right reasons. I have demonstrated that I exercise sound judgment and I am devoted to seeking justice. I believe that the law was created for the common man and the law should apply equally to all. I believe that the law should be carried out in a fair and impartial manner. … I belief in speaking the truth even if your voice shakes and accepting responsibility. ... I believe I possess the qualities that I would want in a judge…compassion, humility, and common sense.
I consider myself to be conservative in my judicial philosophy. I do not believe that someone is placed on the bench to legislate from this platform or to have their personal agenda fulfilled. – Milwaukee County Circuit Judge Laura A. Crivello
Best United States or Wisconsin Supreme Court opinion in the last thirty years – State of Wisconsin v. Charles Matalonis (2016)
I enjoyed the case … authored by Justice Annette Ziegler. Here, the Supreme Court reversed an unpublished court of appeals decision that reversed Matalonis’s conviction in Kenosha County Circuit Court for manufacture/delivery of THC.
This case involved officers making contact with Matalonis’s brother, Antony, who was battered and bloody. When officers spoke to Antony, his accounts were inconsistent. A trial [sic] of blood was followed to Matalonis’s residence, where officers observed blood on the door and heard banging sounds coming from the inside. Upon knocking, Matalonis answered the door, at which time officers observed blood on the floor. Subsequently, the officers advised that they wanted to ensure that no one else was injured. Matalonis let the officers into the house.
Upon walking through the house, officers observed blood on the wall leading upstairs and on a locked door. Marijuana and drug paraphernalia were also observed. After obtaining a key, police entered the locked room and found a marijuana plant and a grow operation.
The Supreme Court found that the community caretaker doctrine made admissible the evidence recovered from the room. …
This decision abounds with common sense. When law enforcement was confronted with inconsistent stories, a blood trial, odd noises, and smears of blood through a house, it would be reasonable for law enforcement to believe an injured person may be present based on these objective factors. There was no indication that law enforcement conducted an investigation or sought evidence. Law enforcement acted reasonably in seeking to care for the community which is what they are charged to do.
The dissent was authored by Justice David Prosser and joined in by Justices Shirley Abrahamson and Anne (sic) Walsh Bradley. The dissent argued that the community caretake exception was expanded in this case beyond what was intended, without any compelling justification. This argument fails in that the objective facts presented to law enforcement provided the reasonable basis for the bona fide community caretaker function. Justice Abrahamson then wrote a separate dissent complaining that because this case was argued before Justice Bradley joined the court, the court should have not have decided the case without first determining whether it should have been reargued. This argument seems trivial and more about personalities than about the matter at hand.
Worst Wisconsin or US Supreme Court decision – State v. Mitchell (1992)
One of my least favorite cases issued by the Wisconsin Supreme Court is State v. Mitchell … This was a case that arose out of Kenosha County from an incident that occurred on October 7, 1989. Here, the Supreme Court declared unconstitutional a state statute which enhanced the penalty for a defendant if the victim was chosen on the basis of race, religion, color, disability, sexual orientation, national origin or ancestry. Ultimately, on June 11, 1993, the United States Supreme Court reversed the Wisconsin Supreme Court finding that the Wisconsin statute providing for enhancement of the defendant’s sentence whenever he intentionally selects his victim based on race did not violate the defendant’s free speech rights by purporting to punish his biased belief, and the statue was not overbroad.
The facts underlying this case involved Mitchell, a 19 year old black man, that instigated an attack against a fourteen year old white child after discussing a scene from the movie “Mississippi Burning” where a white man beat a young black boy who was praying. Mitchell and approximately ten others observed the fourteen year old approach an apartment complex, at which time Mitchell said “you all want to fuck somebody up? There goes a white boy; go, get him.” Mitchell pointed at the victim. The victim was beaten to the point that he remained in a coma for four days and suffered extensive injuries including possible permanent brain damage. The question before the court was whether an increase in Mitchell’s sentence based on his bigoted motives violated his First Amendment rights? The First Amendment states: “Congress shall make no law…abridging the freedom of speech.” This Amendment protects not only speech but thought as well.
In a unanimous opinion drafted by Justice Rehnquist, the Court found that the Wisconsin statute paralleled the antidiscrimination laws which had been found to comply with the First Amendment. The Court reasoned that the consequences for the victim and the community tend to be harsher, when a crime victim is chosen based on race. Thereby, when the Wisconsin statutes increased the sentence for such crimes, it wasn’t punishing the defendant for his beliefs, but rather for the predicted ramifications of the crime. Ultimately, the Court reasoned that the Wisconsin statue did not violate the First Amendment because an average person’s bigoted comments would be used against him in a legal proceeding so infrequently that he or she would not feel forced to suppress them. Thus, there is no chilling effect and the statute is not overbroad.
Judicial philosophy – I consider myself to be conservative in my judicial philosophy. I do not believe that someone is placed on the bench to legislate from this platform or to have their personal agenda fulfilled. A judge should not enforce views as to what is desirable public policy over following historical precedents. A judge’s roll [sic] is to construe as objectively as possible the Constitution of the United States and the law’s that pertain to the matter. The Constitution is an amazing document that forms the basis for our legal system. Every day, I argue relative to different amendments and how different people interpret the amendments. I believe that the Constitution should be construed in the light of the drafters’ intent.
I also believe in historical precedents. The law should apply equally to all. In order for this to transpire, all people need to believe that the courts will follow the laws that are in place. By following precentral (sic) authority there is a guide in place as to what each member of society may do or not do. If a judge chooses to place his or her own views above precedential authority, then that judge would be creating chaos for the members of that community and the laws would no longer apply equally to all.
When looking at statutes, I am a strict constructionist. The clear reading of a statue should act as a road map. If there is a vague or confusing portion, then legislative intent should be reviewed. I believe in judicial restraint. Judges should hesitate to strike down laws, unless they are clearly unconstitutional.
Describe any other information you feel would be helpful to your application – Redacted
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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