|
By Gretchen Schuldt
A Rock County judge blew off an appeals court order for a new trial and instead sentenced a man on a charge that was already dismissed, according to a new appeal. The state has not yet responded in the case. The defendant, Carl Lee McAdory, "must now face the fact that winning one battle does not mean victory in war," Circuit Judge Karl Hanson said in granting the prosecutor's motion to reinstate the dismissed charge. Hanson eventually sentenced McAdory to three years of incarceration followed by six years of extended supervision. Hanson also vacated the charge on which McAdory originally had been sentenced and for which a District IV Court of Appeals panel ordered a new trial. McAdory was charged with eighth-offense operating under the influence and eighth-offense operating with a restricted controlled substance. Blood testing showed he had cocaine and marijuana in his system when he was arrested. A jury found him guilty on both counts. Because the counts duplicated each other and the law says McAdory could only be sentenced on one, the prosecutor moved to dismiss the latter charge. In ordering a new trial, the Court of Appeals found that the state repeatedly misled the jury about what the state had to prove for a conviction on the under-the-influence charge. The law requires a showing that there were enough drugs in McAdory's system to actually impair his driving. That law is different than the restricted-controlled-substances law, which makes it illegal to drive with any detectable amount of drugs in the blood, whether or not it actually affects the person's driving ability. In addition, Circuit Judge John M. Wood, who presided over the trial, eliminated part of the jury instructions that made clear what was required for conviction on the under-the-influence charge, according to court documents. The appellate court noted that the Circuit Court prosecutor could have avoided the entire issue if she had dismissed the impaired driving offense and stuck with the easier-to-prove restricted-substances offense. The panel even held oral argument to discuss the dismissal of that charge. The appeals panel sent the case back to Rock County for a new trial, McAdory's lawyer, Brent A. Simerson, wrote in a brief filed in the new appeal. "However, a new trial was never convened," Simerson wrote. Instead, at the request of the state, Hanson vacated the under-the-influence count, on which McAdory had been sentenced, reinstated the dismissed restricted-controlled-substances conviction, and sentenced McAdory to three years in prison and six years of supervised release. Hanson said the appellate court did not find any error in how the restricted-controlled-substances charge was handled, Simerson wrote. The judge also said that McAdory “ 'had no expectation of finality in his case when the trial court imposed a sentence only on count [one], the OWI conviction,' ” Simerson wrote. But Hanson exceeded his authority when he ignored the appeals panel's order for a new trial, Simerson said. State law requires trial judges to do what appellate courts tell them to do. The law also requires circuit judges to schedule trials when an appellate court orders new ones, he wrote. And, as the state conceded, nothing in state law authorized the reinstatement of the charge, Simerson wrote. "Absent a source of authority in Wisconsin law, the Circuit Court should have, instead, concluded that it did not have the authority to revisit Mr. McAdory’s judgment of conviction," he said. Instead, the court should have pursued any relief through the appeals process. Reinstating the conviction also violated double-jeopardy protection, Simerson said. Jeopardy generally attaches after a jury is empaneled and sworn and prohibits a second prosecution for the same offense after conviction, he said. "Under the Circuit Court’s decision, the state could wait indefinitely long before asking the Circuit Court to 'reinstate' a charge," he said. "After all, what limitations period would govern? Without an endpoint specified by law, the timing would be left to the vagaries of prosecutorial whim. All the while, the defendant would be forced to live his life in fear, worry, and frustration about when, if ever, the State might suddenly decide to file its reinstatement motion. This cannot be."
0 Comments
By Gretchen Schuldt A dispute over the right of an unmarried couple to adopt a child is at the center of the first case the state Supreme Court will hear in September. Most of the case, which bypassed the Court of Appeals, is confidential. But one document, a reply brief filed by attorneys representing the unmarried couple, is available. It names as a defendant Ashland County Circuit Judge Kelly J. McKnight, who rejected an unmarried couple's request to adopt a child. The couple, referred to as A.M.B. and T.G. in the brief, are appealing. McKnight, wrote the couple's lawyers, John R. Carlson and Carla J. Smith, "chooses to focus first and foremost on 'protecting marriage' – an institution in which the child does not even participate." The judge "obfuscates the core intent and interest of the legislature – the best interest of the child." McKnight, who as a judge is a state official, is represented by Assistant Attorney General Lynn K. Lodahl. "The Legislature makes its intent clear in the first few sentences of Chapter 48 (the Children's Code) – 'the best interests of the child or unborn child shall always be of paramount consideration," the lawyers wrote, emphasizing the key words. "A sentence with no qualifications, conditions, or exceptions." The law identifies the secondary, qualified goal of preserving the unity of the family "whenever appropriate," they said. "And the word 'traditional' never appears anywhere in the legislative intent section." M.M.C., as the child is called in the brief, never had a relationship with her biological father and his parental rights were terminated. There is no ability to preserve the unity of M.M.C.'s family, Carlson and Smith said. "The legislative intent of 'preserving the unity of the family' should not be mistaken for what the Court tried to do – force two unwilling participants into a marital contract – an event that was not centered on the child or her best interest, but focused solely on a technicality that would have no effect on M.M.C.’s day-to-day life," they said. McKnight "determined that the best interest of the child was wholly irrelevant in determining whether to approve an adoption," they said. The law specifically allows "an unmarried person" to adopt, they said. "If the legislature were seeking to 'promote marriage, stability for children and families…[and] protect the traditional unitary family,' it does not make sense the legislature would explicitly permit unmarried individuals to adopt under Wisconsin law," they wrote. Oral arguments in the case are scheduled for 9:45 a.m. Sept. 11.  By Gretchen Schuldt Gov. Tony Evers signed a bill sharply raising the penalty for first-degree reckless homicide involving drugs from 40 years in prison to 60 years in prison. The governor did not justify or explain his action in the press release announcing the signing, though he addressed reasons for signing another bill. The measure was introduced as SB101, and is now Act 29. First-degree reckless homicide is charged when someone dies of an overdose after taking drugs, virtually always voluntarily. The charge can be issued against a drug dealer or even a friend who was with the user when the user purchased the drugs. Technically, the law prohibits causing the death of another person "by manufacture, distribution, or delivery of, or by administering or assisting in administering," certain drugs. Opponents of the bill say it will prevent people who are with the victim at the time of the overdose from seeking help before death occurs because they are worried about prosecution. Evers did not address that possibility. Evers also signed a bill requiring increased transparency from the Parole Commission, including the requirement that additional statistics and information be published on the Department of Corrections' website. That bill, AB47, is Act 31. Evers was more forthcoming about his reasons for signing this bill than he was in explaining why he signed the overdose bill. “Ensuring transparency, accountability, and appropriate support and notification for victims, survivors, and their families is absolutely vital to the success of the Parole Commission and of our criminal justice system as a whole,” Evers said. Justice-related bills pending in the Legislature include those below. A chart showing the sponsors of each is at the bottom of this post. SB302/AB301 – Sexual contact lawsuits This bill would allow more time for a childhood victim of incest, sexual assault, or sexual contact to sue the alleged perpetrator. Currently, the victim must bring an action before reaching the age of 35; this bill would raise the age to 45. In addition, it would apply to all adult offenders, not just clergy members. SB313/AB313 – Failure to stop for a school bus The minimum penalty for failing to stop for a stopped school bus with flashing red lights would increase 10 times, from a forfeiture $30 to $300, under this legislation. The maximum penalty would jump from $300 to $1,000. The bill also would require the Department of Transportation to assess three demerit points against the record of a person convicted of failing to stop for a school bus. Under the demerit system, repeated traffic violations can lead to the suspension of a person's driver's license. SB314/AB315 – Possession of child pornography Under this bill, the depiction of actual children engaged in real or simulated sex no longer would be necessary to be charged or convicted of possessing child pornography. Instead, possessing pornographic images of someone who looks like a child or of computer-generated or hand-drawn pictures of children would be enough. The bill, according to the Legislative Reference Bureau, would make it illegal to knowingly receive, distribute, produce, possess, or access, with the intent to look at, obscene photographs, film, motion pictures, or digital or computer-generated images or pictures that contain a visual representation that appears to depict an actual child engaged in sexually explicit conduct although the representation does not depict an actual child. (Imagine the arguments over whether that 16- or 17-year-old looks like a child or an adult!) Violations would be punishable by up to 25 years in prison and a $100,000 fine. The bill includes a three-year mandatory minimum sentence. SB321/AB329 – Child sex dolls It would be illegal to possess child sex dolls, under this bill. Such dolls are defined as "anatomically correct doll, mannequin, or robot, with features that resemble a minor that is intended for use in sex acts, for sexual gratification, or for manipulating children into participating in sex acts, instructing children how to participate in sex acts, or normalizing sexual behavior with children," according to the Legislative Reference Bureau. Penalties for violations would vary depending on how many dolls are involved, past offenses, and past convictions for crimes against children. A first offense involving fewer than three dolls, for example, would be punishable by up to 3½ years in prison and a $10,000 fine. For a second offense involving at least three dolls, the penalty would be up to six years in prison and a $10,000 fine; for a third offense, up to 10 years in prison and a $25,000 fine. The penalties are tougher if the doll is intended to represent a specific child or if the offender has been previously convicted of intentional child abuse of a child, first-degree sexual assault of a child, sexual exploitation of a child, use of a computer to facilitate a child sex crime, or possession of child pornography. The bill also makes it a felony to provide premises for the use of a child sex doll, or to transfer, advertise, or display a child sex doll, instructions on how to create one, or materials intended to create one. The bill also prohibits intentionally making a child sex doll. Exempted from the created prohibitions under the bill are law enforcement officers, physicians, psychologists, attorneys, court officers, and others involved in law enforcement or child therapy, as long as their sex-doll activity is done in the lawful performance of their duties.  By Gretchen Schuldt Supreme Court rules don't support Chief Justice Annette K. Ziegler's complaint that the new liberal court majority ignored them when it dismissed at-will employee Randy Koschnick as director of state courts and changed the way the court runs. The Koschnick decision, Ziegler said, "was made without regard for the Constitution, case law, or Supreme Court rules." But here's what the court's own operating procedures (emphasis added) actually say: The court continually reviews its procedures to improve the efficient processing of its caseload and the effective discharge of its administrative responsibilities. Accordingly, these procedures may be changed without notice as circumstances require. It should be reemphasized that these are not rules. They do not purport to limit or describe in binding fashion the powers or duties of any Supreme Court personnel. These internal operating procedures are merely descriptive of how the court currently functions. Any internal operating procedure may be suspended or modified by majority vote of a quorum of the court. The rules say the courts director "is appointed by and serves at the pleasure of" the Supreme Court. Ziegler also said the majority's decision to set up a new committee with new administrative powers and to increase court transparency was made in an "illegitimate closed meeting." It was the then-conservative majority who in 2012 voted, 4-3, to close many Supreme Court administrative meetings. Ziegler voted in favor of secrecy. The new majority voted this week to open those meetings again. And did the majority "gut" Ziegler's constitutional authority as administrator of the court, which she alleged in a statement? In a word, no. Here's what the constitution says: "The chief justice of the supreme court shall be the administrative head of the judicial system and shall exercise this administrative authority pursuant to procedures adopted by the supreme court." (Emphasis added.) Finally, Ziegler said changes like those the court majority has announced are made "when seven members of the court convene with an agenda prepared by the Chief Justice and at a time set by the Chief Justice during the court’s business year, which is September-June." Ziegler, in other words, believes the court should consider only the rules that Ziegler likes at a time that Ziegler likes. But now the court's new four-member majority constitutes a quorum of the court and will actually have a say in how things run. The court's own procedures and the state constitution make that clear.  By Gretchen Schuldt The inclusion of the simple, humble comma won out-of-state consumers and the state itself an important victory from the state Court of Appeals last week when the court ruled that a law prohibiting fraudulent representations applied to ads and information shown to people outside of Wisconsin. The statute, §100.18(1), lays out who cannot do certain things and what they cannot do when trying to get members of the public to buy goods or services. Specifically, the statute says individuals and firms may not "publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state..." ads or information that include false representations. The verbs in the statute focus on the advertiser's conduct, not the consumer's, Appellate Judge M. Joseph Donald wrote for the panel. "After a comma, the statute provides that these actions may not take place 'in this state,' " he said. "The statute does not proscribe where the recipient or consumer must be or reside. Thus, based on the plain language of the statute, we conclude that the state can enforce against Wisconsin businesses that reach consumers outside of the state." "There is a comma that separates the phrase 'before the public' and 'in this state.' If 'in this state' modified 'before the public,' then there would be no need for a comma," he wrote.  The mighty comma. The opinion, joined by Appellate Judges William W. Brash III and Maxine A. White, overturned a ruling by Milwaukee County Circuit Judge William Sosnay. The panel ordered a new trial.
The case arose out of allegedly deceptive advertising practices by Midwest Auto Recycling and a number of related entities, referred to collectively in the opinion as "Midwest." The firm relied heavily on the internet for its sales, Donald wrote. "To expand the business, Midwest Auto Recycling created various websites and companies...to advertise and sell the auto parts to people and businesses throughout the United States." Those companies are also named as respondents in the case and include Remanns LLC; Quality Used Engines, LLC; Engine Recycler, LLC; Quality Used Transmissions, LLC; Engine Shopper, LLC; Engine & Transmission World, LLC; Belden Mfg, LLC; APLS Acquisition, LLC; SW Engines, LLC; SW Transmissions, LLC; and U Need Engines, LLC. Several unnamed managers of those entities also were named. The state received hundreds of complaints about the business and sued Midwest in 2017, alleging that the company had committed fraudulent misrepresentations in marketing and selling; fraudulent misrepresentations regarding where their business was located; and unfair billing practices. As litigation advanced, the state said it wanted to call three out-of-state customers as witnesses to testify "regarding how the engines they received did not match up with the representations that had been made," Donald wrote. Sosnay ruled that evidence about “incidents that occurred outside Wisconsin, meaning dealing with residents of other states, is not admissible.” He also ruled the state would have to show that any Wisconsin resident who was a customer of Midwest would have had a monetary loss. Just one in-state customer testified, along with some people associated with Midwest. The jury found that four Midwest websites misrepresented the business locations but also found that advertisements to Wisconsin consumers were not untrue, deceptive, or misleading, and that representations in sales quotes were not untrue, deceptive, or misleading in relevant respects. In rejecting Sosnay's interpretation of the law, Donald wrote for the panel: "As the state asserts, all Wisconsin businesses must do to comply with the law is refrain from making misrepresentations in their advertising. If Midwest has to follow the law for in-state residents, there should be no issue following the law for out-of-state residents given that both view the same websites. ... The circuit court erred when it prohibited the state from introducing evidence that Midwest made misrepresentations reaching consumers outside Wisconsin" The appellate panel also found that the state did not have to show pecuniary loss. The state brought the suit under a statute that does not request such a showing, Donald wrote. By Gretchen Schuldt A chart showing the sponsors of these two measures is at the bottom of this post. SB309/AB310 — Revocation of supervision, expunction A Republican proposal to strip the presumption of innocence from anyone on community supervision and incarcerate thousands of people has been introduced again, carrying a price tag that dwarfs that of the 2021 version of the bill. The bill also would tighten rules on expunction. The new bill, Senate Bill 309/Assembly Bill 310, would require the Department of Corrections to recommend revocation of community supervision of anyone on probation, parole, or extended supervision who is charged with any new crime. Not convicted — just charged. Enactment of the bill would permanently add an estimated 4,673 individuals to the prison population, according to Department of Corrections' fiscal estimates for both the 2021 and 2023 bills. The 2023 estimate says the cost of those additional incarcerated individuals would be $209 million per year when the bill's full impact is felt. Those figures are based on a 2022 average annual per-incarcerated-person cost of $44,400. The 2021 cost estimate projected increased operational expenditures of $171 million annually when the measure was fully implemented. Those estimates were based on a 2020 per-incarcerated-person cost of $36,200. The 2023 full-implementation operational cost estimate is $38 million, or 22%, higher than the 2021 estimate. Both the 2021 and 2023 fiscal estimates say the bill would require the construction of two new prisons. The 2021 estimate put the cost of a new 2,000-bed, medium-security prison at $450 million to $550 million; the new fiscal estimate puts the cost at $687 million to $839 million. The new high-end construction estimate is $289 million, or 53%, more than the 2021 high-end figure. Both bills were based on the same assumptions. DOC estimated in each that there would be an additional 6,280 revocation cases per year and 47% of the recommendations would be ratified by the Department of Administration's Division of Hearings and Appeals, which reviews and decides such cases. The estimate assumes that each additional revocation would result in 19 months in prison. The Hearings and Appeals Division now affirms about 87% of revocation recommendations and the average time served for those is 39 months. DOC said it is likely that a smaller percentage of revocation recommendations would be affirmed if the agency must try to revoke everyone accused of a crime. DOC said it now uses several factors to determine whether revocation is appropriate. The bill also would make expunction harder for some to achieve. Currently, a record is not expunged until a person has completed the court-imposed sentence. A person has not completed a sentence if convicted of a subsequent crime or if probation was revoked and the person has not satisfied all the conditions of probation, according to the Legislative Reference Bureau summary of the bill. Under the proposed measure, a sentence would not be completed if criminal charges are pending against the person or if the person violated any rule or condition of probation or at least a year has not passed since being put on probation. The ACLU of Wisconsin has registered against the bill. No organization or individual has registered in favor. SB291/AB300 — Protections for election workers Battery against an election worker would be a felony punishable by up to 3½ years in prison and a $10,000 fine, under a bill pending in the state Legislature. "It is true that Wisconsin already has strict criminal laws regarding assault and battery, and some may say that there is no need to specify that it is a crime to commit these acts against an election worker," State Rep. Joy Goeden (R-Hobart) said at a public hearing last month. She and co-author State Sen. Andre Jacque (R-DePere), however, believe "it is necessary to make this purposeful declaration: if you punch someone it’s a crime and yes, it is the same crime if you punch an election worker who is just doing his or her job," Goeden said. "Don’t do it." Currently, state law classifies battery as either a misdemeanor or a felony, depending on the harm caused and the identity of the target. In the latter case, for example, battery is a felony if the victim is a public officer and if the battery is designed to influence an official action or in retaliation for such an action, according to the Legislative Reference Bureau. Under the bill, any battery against an election worker of official would be a felony. The bill also would provide some other protections. It would prohibit public access to personally identifiable information of election workers and officials, except for the names of the city and state where an election worker lives. The bill also would give whistleblower protection to municipal clerks, county clerks, and election officials who witness and report election fraud or irregularities and would prohibit discipline against those workers for reporting what they reasonably believed to be election fraud or irregularities. While Brown County Clerk Patrick Moynihan Jr. said in testimony before the Assembly Campaigns and Elections Committee that the whistleblower provisions "provide reasonable assurances against any potential unlawful retribution," Protect Democracy Policy Advocate and Counsel Edgar Lin (full disclosure: Lin is a WJI Board member) raised several issues. The term "lawfully report" section, he said, should have included a process for doing so. The reporting structure is not defined in the bill, nor are deadlines set for reporting or investigating alleged irregularities. "What happens if a disgruntled employee weaponizes this protection by making a false or frivolous disclosure?" Lin asked. "Will they be required to pay attorneys fees and costs? Or even damages? What are the remedies if the employer was found liable for retaliatory action against a whistleblower?" "Without a clear process, a whistleblower event — regardless of merit — could descend into chaotic litigation, which could further undermine the confidence in our election system," he said. The word "irregularity" also needs to be better defined, he said. " 'Irregularities' is too broad without a concrete definition," he said. "It may inadvertently catch benign events that may technically be an irregularity. For example, if the post office takes a small chunk out of an absentee ballot during their handling and without any evidence of actual ballot tampering, should that be counted as an “irregularity”? "Instead of 'irregularities' ... the bad act should be grounded by existing laws, rules, regulation, and/or guidance," he said. The League of Wisconsin Municipalities and the League of Women Voters of Wisconsin have registered in favor of the bill. No organization or person has registered against it.  By Gretchen Schuldt
The city of Milwaukee ran straight into the Wisconsin Fair Dealership Law when two Municipal Court judges tried to shortcut and back channel their way into firing JusticePoint, the longtime operator of a successful program to divert impoverished defendants from forfeitures and fees they cannot pay. Assistant City Attorney Kathryn Block told a Common Council committee that Municipal Court Judges Phil Chavez and Valarie Hill had legitimate cause to fire JusticePoint, but declined to say what that cause was. The two judges did not consult the city's third judge, Molly Gena, on the matter or even tell her firing the agency was under consideration. The city chose not to fire JusticePoint for cause under its contract with the agency, which would have required notice and an opportunity to cure the practices. Instead, the city terminated JusticePoint for the city's convenience without telling the agency or the public exactly what it was that JusticePoint did wrong. That decision prompted JusticePoint to take the city to Milwaukee County Circuit Court, alleging in a lawsuit that the city's manipulations violated the Wisconsin Fair Dealership Law. Circuit Judge Hannah Dugan ruled that JusticePoint had a reasonable chance of prevailing on the merits and issued a temporary restraining order blocking the contract termination until Oct. 5, when another hearing will be held. (The hearing originally was scheduled for Oct. 31.) The WFDL is almost 50 years old and was adopted partly to "protect dealers against unfair treatment by grantors, who inherently have superior economic power and superior bargaining power in the negotiation of dealerships." The city's "convenience clause" in its contract with JusticePoint would allow the city to terminate the pact for any reason with just 10 days' written notice, but a judge could find that clause a dead letter. The WFDL specifically prohibits dealership relationships from being "varied by contract or agreement. Any contract or agreement purporting to do so is void and unenforceable to that extent only." Block argued in court that JusticePoint did not qualify as a dealership because it did not charge its litigant clients for services. The U.S. Seventh Circuit Court of Appeals found way back in 1989, however, that a book distributor who did not sell goods or services to downstream customers still qualified as a dealer through its distribution activities alone. Jeffrey Mandell, in court and in JusticePoint's $5 million claim against the city, argued that JusticePoint met the required qualifications of a dealership under the law. First, he said, it has a contract with the city. JusticePoint has been providing Municipal Court Alternative program services since 2014, he said. Second, JusticePoint distributes services on behalf of the city, "assisting approximately 11,000 individuals since 2015," he wrote in the claim letter. Finally, he said, a "community of interest," which he acknowledged was a "slippery concept," exists between the city and JusticePoint. The state Supreme Court established two guideposts — a continuing financial interest and interdependence — and the JusticePoint-city relationship meets both, he said. JusticePoint has spent hundreds of thousands of dollars to run its Milwaukee program. "The city benefits significantly from JusticePoint's efforts not only inasmuch as JusticePoint fulfills the inherent purposes of the program, but also because JusticePoint increases the City's goodwill and advances prosocial causes, thereby improving the city as a whole and the Municipal Court in particular," he wrote in the Circuit Court suit. Interdependence is shown through the agency's close and continuing collaboration with city officials, he said. Under the WFDL, the city cannot terminate the JusticePoint contract without providing a 90-day notice, detailing the grounds for termination, and providing JusticePoint with an opportunity to cure, Mandell said in the suit. The city has done none of those things, he said. By Gretchen Schuldt
Milwaukee landlord Youssef Berrada and his company filed an emergency petition Tuesday asking the state Supreme Court to declare unconstitutional a statute the state used to gain access to hundreds of documents it is using in its lawsuit against the company, Berrada Properties Management, Inc. The petition also asks the court to review an administrative rule voiding rental agreements that contain certain provisions. No statute allows the Department of Agriculture, Trade and Consumer Protection (DATCP) to declare contracts void and unenforceable, the petition alleges. Instead, the agency can only forbid or prescribe unfair and fair trade practices and business competition methods, Berrada said. The statute in question, §93.15, allows Berrada and his firm, referred to collectively as "Berrada" in the petition, to be criminally punished without judicial review for failing to comply with a DATCP civil investigation demand, the petition alleges. The law is "facially unconstitutional," Berrada alleges. The state has not yet filed a response. The statute allows DATCP to demand that business operators "file with the department, at such time and in such manner as the department may direct, sworn or unsworn reports or sworn or unsworn answers in writing to specific questions, as to any matter which the department may investigate." The third paragraph of the law prohibits failure or refusal to supply the information, making false statements, or, "except through judicial process, resist(ing) or obstruct(ing) any official or subordinate of the department in the exercise of the official's or subordinate's lawful authority." Each violation of that third paragraph is punishable by a fine of up to $5,000 and one year of incarceration. The law is unconstitutional because such a "search scheme" must allow the entity or person to be searched to have a precompliance review before a neutral decisionmaker, Berrada said in the petition. "The law is also unconstitutional because it punishes search recipients for exercising their constitutional right to refuse warrantless, unreasonable searches," Berrada attorneys Ryan Walsh, Amy Miller, and Delanie Breuer wrote in the petition. The state also needs to meet requirements for a warrant and probable cause because "the demands sought information to serve as evidence in an investigation of penal laws — which carry penalties of civil forfeitures, criminal fines, and imprisonment," the petition said. "Because Berrada responded to these demands only on pain of criminal punishment, his statements were involuntary and cannot be used against him under the Fifth Amendment and Wisconsin Constitution," the petition said. The state Department of Justice filed suit against Berrada in November 2021, alleging that he and his companies violated Wisconsin landlord-tenant law in numerous ways, including illegal provisions in leases, illegally charging tenants late-rent fees and court fees, and engaging in illegal security deposit deduction practices. Berrada and his firm also used illegal practices while remodeling occupied buildings, the suit said. Those practices, according to the complaint, included forcing tenants out of their apartments, throwing away their property, and entering apartments without proper notice. The DOJ said at the time that Berrada owned more than 170 limited liability companies that owned a total of more than 8,000 apartment units in the state. The suit, filed in Milwaukee County Circuit Court, relied heavily on information gathered through the civil investigation demands, the petition says. "The State is now using the circuit court’s authority, through the civil discovery processes, to obtain potentially hundreds of thousands of documents from Berrada, all of which are tainted by the unlawful" civil investigation demands, the attorneys wrote. Milwaukee County Circuit Judge Pedro Colon erred when he compelled Berrada to turn over "tainted evidence," the petition said. "This is a manifest error of law — a court's process cannot be used to further a constitutional violation," the petition says. Colon has indicated he will order Berrada "to turn over potentially millions of pages of tainted evidence in 30 days," the petition said. "Berrada suffers irreparable harm every day, as Berrada is now forced to expend resources and turn over more and more private documents and respond to demands for additional information — all of which is fruit of the poisonous tree that the State is forbidden from using against Berrada." By Gretchen Schuldt
A Milwaukee County circuit judge on Monday granted a temporary restraining order blocking the city of Milwaukee from terminating JusticePoint's contract to operate the Municipal Court's program that steers indigent defendants to appropriate services and coordinates community service opportunities for people who qualify for alternatives to forfeitures. Circuit Judge Hannah Dugan said, among other things, that JusticePoint had a reasonable probability of success on the merits and would be irreparably harmed without the restraining order. She set a further hearing for Oct. 31 before Circuit Judge J.D. Watts. "Everything has to stay the status quo according to the contract," she said. Sheldyn Himle, chief court administrator of Municipal Court, declined to comment on the ruling. JusticePoint on Sunday filed suit against the city, alleging the manner in which it was terminated — allegedly without cause, without proper notice, and without a chance to cure any deficiency — violated state law. JusticePoint filed a $5 million claim with the city on June 30 as a precursor to the lawsuit. Two Municipal Court judges, Phil Chavez and Valarie Hill, arranged the contract termination without consulting the third judge, Molly Gena. The termination was to be effective at the end of the day Monday, July 10. The city never made public any specific allegations against JusticePoint, but said the contract was terminated for the city's "convenience." The firm's CEO, Nick Sayner, has said the only potential problem he was aware of was JusticePoint's practice of providing copies of municipal citations to Legal Action of Wisconsin attorneys representing the indigent defendants involved in the cases. Sayner has said the agreement to provide the tickets was hammered out five or more years ago in negotiations involving both JusticePoint and city officials, including representatives of the city attorney's office. When Municipal Court raised concerns about it last March, he said, JusticePoint stopped providing the citations. WJI will update this story, so check back for more on the hearing. Read our previous JusticePoint coverage here, here, and here. WJI policy analyst Gretchen Schuldt wrote about the issue for the Shepherd Express here. By Gretchen Schuldt Milwaukee Municipal Court judges are routinely violating state law in a way that "undermines" a defendant's right to appeal some cases to Milwaukee County Circuit Court, Legal Action of Wisconsin said in a new lawsuit. The suit, technically a petition for a supervisory writ, asks Circuit Judge Pedro Colon to command Municipal Court and its judges to electronically record, as required by law, every hearing held to determine inability to pay a judgment due to poverty and every hearing on reopening a case. The suit names as defendants Milwaukee Municipal Court, its chief administrator, Sheldyn Himle, and Judges Phillip Chavez, Valarie Hill, and Molly Gena. Gena, who assumed office in May, is the former managing attorney of Legal Action. Himle declined to comment. The petition was filed on behalf of a Municipal Court litigant who was unable to appeal a case because her hearings were not recorded, according to the suit. The woman appeared at a Municipal Court hearing via Zoom in September 2020, according to the suit. At that hearing, the Municipal Court judge ordered the woman, a single mother who receives Social Security disability benefits, to satisfy her outstanding debt by an installment payment plan, Legal Action attorney Susan Lund wrote. "The court must have discussed (the woman's) income and ability to pay before determining that a payment arrangement was necessary or setting the amount of her installment payments," she wrote. "The only record of this hearing, the docket, provides no information about those discussions. The record does show that if (the woman) did not pay, the court would automatically issue a warrant, a routine practice of several Milwaukee Municipal Court judges." The woman appeared at another hearing in February 2021, after a warrant was issued. "The docket reflects, 'Def told how to resolve this cs and DL susp 30% of cs 20015220 and 20015221,' " Lund wrote. "There is no further explanation of what this phrase means, much less any information about whether the judge considered all necessary factors and issues," she said. "It seems clear that there was some discussion of (the woman's) ability to pay, but there is no explanation in the docket for why the judge failed to lift the warrant when (the woman) was a recipient of means-tested public assistance." Under state law, recipients of such public assistance automatically are presumed unable to pay, and a judge must suspend or extend payment or consider community service as an alternative. The woman appeared in another case that same day. The docket for that one states, “ 'Def given information of 30% being $82 to terminated DL suspension,' " according to the suit. "Once again, the Court failed to record the hearing, though money and ability to pay must have been discussed," Lund wrote. "Once again, the docket provides no information about what law or facts the judge considered during the hearing or why the judge decided not to lift (the woman's) driver’s license suspension." The woman owes a total of $428 in three cases, the petition says. In two cases, Municipal Court listed, as an alternative to payment, "Commitment – Consecutive for 4 days," a reference to incarceration for four days. In the other case, the Court listed as an alternative a one-year suspension of the woman's driver's license. The woman "has been notified by standard computer-generated notices that failure to pay by the due date will result in automatic enforcement of the sanctions for nonpayment," Lund wrote. (Lund said in a footnote that the woman would like to reopen two tickets, including one with an outstanding forfeiture, in the interest of justice because Municipal Court suspended her license in error. The mistake led to two separate convictions of operating after suspension, resulting in $460 in forfeitures and reinstatement fees.) The lack of recordings make appeals to Circuit Court extremely difficult, Lund said. "In a municipal court record review, a circuit court is limited in their review of the record to determining whether the evidence supports the municipal court decision," she wrote. "The circuit court also has the right to review the municipal court’s interpretations of a statute or any other conclusions of law de novo. ... Neither of those things will generally be possible without a transcript, as oral requests and oral decisions are common and indigent defendants have no right to counsel." Milwaukee Municipal Court's failure to record as required by law is not limited to the woman's cases, the petition says. "Milwaukee Municipal Court has likely failed to record hundreds of hearings over the last three years," Lund wrote. When the court fails to properly record a hearing, the court "makes a decision that is both irrevocable and unappealable. ... Once the unrecorded proceeding is over, it can never be recorded."  |
Donate
Help WJI advocate for justice in Wisconsin
|
RSS Feed