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.
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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." By Gretchen Schuldt
A bill that would make public more information about Parole Commission decisions and require that victims get more advance notice of parole hearings has passed both houses of the Legislature and awaits action by Gov. Evers. The bill, Assembly Bill 47, would require the Department of Corrections to post on its internet site the names of people granted parole, denied parole, and returned to prison following the revocation of parole. It also would require the department to post monthly and yearly total numbers of those granted and denied parole and returned to prison following parole revocation. The yearly totals would be categorized by the crime of conviction; the sex, race, and age of the person convicted; and the location of conviction. Victims would be notified by mail at least 90 days in advance of the hearing, a substantial increase from the three weeks' notice now required. The Legislature amended the bill to remove several changes that were originally included. The bill, as adopted, maintains the commission's authority to go into closed session to consider applications for probation, extended supervision, or parole. The original bill eliminated that authority. The adopted bill also does not require public notices of the commission's meetings to be published on the DOC's website and include the names of individuals being considered for parole. The Senate vote on the amended measure was 28-5. A chart showing the vote is below. The Assembly did not take a roll call vote on the amended measure, but concurred in its adoption. Legislative update: stripping courts of power, obscenity charges for teachers, eliminating defenses6/26/2023 By Gretchen Schuldt Chief circuit court judges would be stripped of their power to appoint judges to preside over many cases involving businesses, under a bill pending in the state Legislature. That power would shift to the chief judge of the state Supreme Court, who would only have to "consider" recommendations from the chief judges of the state courts' administrative districts, according to the Republican-backed measure. The bill is a significant legislative intrusion into the internal workings of the court system. Another Republican bill would put teachers and school officials at risk of arrest under the state's obscenity laws and strip from them the immunity they now enjoy if their violations occur in their capacity as employees or officials. And a bill backed by Democrats would eliminate common defenses in criminal cases if a crime allegedly was motivated by issues related to sexual orientation or gender identity. More detail about the bills is below. A chart showing the sponsors of each is at the bottom of this post. SB275/AB 280 – Business courts The chief justice of the state Supreme Court would hand-pick circuit court judges across the state who would hear commercial cases, under this bill. Judicial assignments at the circuit court level now generally are decided at the lower court level. The chief justice, in appointing commercial docket judges, would "consider" but not be bound by recommendations from chief judges of administrative districts. The bill also would leave the decision to create specific commercial courts up to the chief justice, who would act on the recommendations of the director of state courts, an unelected bureaucrat. At a minimum, under the bill, the chief justice would be required to appoint four judges for business cases in each of the court system's second, third, fifth, eighth, and 10th administrative district. Judges hearing commercial cases also could hear other types, according to the bill. Wisconsin courts administrative districts "The commercial court docket is designed to operate within the framework of the existing state court system with minimal impact on the balance of court operations," the bill states. "It is intended to leverage judicial expertise in commercial law and disputes with commercial litigants' desire to tailor case management practices best suited for resolving substantial business disputes fairly and expeditiously." The Supreme Court, at the direction of then-Chief Justice Patience D. Roggensack, established a commercial court pilot program in 2017 and directly appointed the judges who heard those cases. Retired Dane County Circuit Judge Richard Niess criticized it, saying "the (judicial appointment) process largely bypasses the voter-controlled and otherwise random judicial assignment of cases. It creates a two-tiered court system — one controlled by business interests and one for everybody else." Roggensack "stacked" a committee she appointed to develop the court "with lawyers representing business interests," Niess wrote. "The committee included no labor or consumer advocates, no one representing the viewpoints of the public, and no one speaking for the other stakeholders in our circuit court system." "The committee included no labor or consumer advocates, no one representing the viewpoints of the public, and no one speaking for the other stakeholders in our circuit court system." Under the bill, which would expand the business courts, commercial docket judges would have jurisdiction over a wide variety of cases, including cases involving the internal governance or internal affairs of business organizations.
The specialty courts would hear cases involving laws governing partnerships, business corporations, cooperatives, banks, savings and loans, and other fiduciaries. They would also hear cases involving allegedly improper business conduct, including unfair competition; private suits alleging violations of the state mark-up law for gasoline or tobacco; deliberate injury to a business; wrongful interference with a business; non-compete clauses; confidentiality agreements; business mergers and consolidations; securities law and securities fraud; intellectual property rights; trademarks; trade secrets; copyright; patent rights; franchise law; the state Fair Dealership Law; sales representative commissions; some Uniform Commercial Code claims exceeding $100,000; receivership cases of more than $250,000; and commercial real estate construction disputes exceeding more than $250,000. The bill would make some case types ineligible for the new dockets. They include small claims, governmental actions seeking to enforce laws or regulations, most cases involving consumer transactions, landlord-tenant disputes, domestic relations, civil rights, taxes, some arbitration issues, construction (except for the commercial disputes above), and environmental claims. SB305/AB308 – Targeting teachers with obscenity statute Public and private school employees would lose their immunity from prosecution under the state's obscenity laws, under a Republican-backed bill in the Legislature. Currently, the law protects from prosecution employees, board members, or trustees of some educational institutions and libraries, as long as they are acting within the scope of their jobs. The obscenity statute explains the reason the immunity was granted: The Legislature "finds that the libraries and educational institutions ... carry out the essential purpose of making available to all citizens a current, balanced collection of books, reference materials, periodicals, sound recordings and audiovisual materials that reflect the cultural diversity and pluralistic nature of American society. The legislature further finds that it is in the interest of the state to protect the financial resources of libraries and educational institutions from being expended in litigation and to permit these resources to be used to the greatest extent possible for fulfilling the essential purpose of libraries and educational institutions." The bill would make elementary, secondary, and tribal school employees and officials subject to prosecution. The immunity still would apply to employees and officials of libraries, technical colleges and tax-exempt colleges and universities. The obscenity statute makes it a crime to import, print, sell, possess for sale, publish, exhibit, play, or distribute any obscene material; to produce or perform in any obscene performance; to distribute, exhibit, or play any obscene material to a person under the age of 18 years; or to possess with intent to distribute, exhibit, or play to a person under the age of 18 years any obscene material. First-offense violations of the statute are punishable by forfeitures of up to $10,000, and every day the obscenity violation continues is be a new violation. Under state law, “Obscene material" is any writing, picture, film, or other recording that: 1. The average person, applying contemporary community standards, would find appeals to the prurient interest if taken as a whole; 2. Describes or shows sexual conduct in a patently offensive way; and 3. Lacks serious literary, artistic, political, educational or scientific value, if taken as a whole. The law also prohibits prosecutions without the express permission of the attorney general. SB307/AB307 – Eliminating defenses Defendants in criminal cases would be unable to plead they acted in self defense or were provoked into committing their alleged criminal actions if the action stemmed from learning or knowing about the alleged victim's gender identity or expression or sexual orientation or the potential disclosure of those factors. The defense elimination would apply in situations where the victim "made a romantic or sexual advance without use or threat of force or violence toward the defendant or in which the victim dated or had a romantic or sexual relationship with the defendant," according to the Legislative Reference Bureau explanation of the bill. It would apply, too, when the alleged victim dated or had a romantic or sexual relationship with the defendant. The bill also would eliminate the ability of a defendant to plead not guilty by reason of mental disease or defect if the state were brought about by the factors listed above. By Gretchen Schuldt
A rare mix of Democrats, Republicans, law enforcement, and the state Public Defenders Office came together this month to support a bill that would prohibit minors from being charged with prostitution. Thirty-one people in favor of the bill appeared at a public hearing and another 10 registered in support. No one appeared or registered in opposition. The measure, Assembly Bill 48/Senate Bill 55, would bring the state in line with federal law, which recognizes children engaged in commercial sex acts as victims, not criminals, State Sen. LaTonya Johnson (D-Milwaukee) said. It also would align with laws in Illinois, Minnesota, and Michigan, she said. "My hope is that it will make it easier for law enforcement and child welfare authorities to convince these children that they have done nothing wrong and are in no way responsible for the horrific acts they were forced into by their traffickers," she said. "Sexually exploited children exist in my district and in your district," State Rep. Jill Billings (D-La Crosse) told the Assembly Committee on Criminal Justice and Public Safety. "The trafficking of children is happening in urban areas, rural areas, and has been reported in all 72 Wisconsin counties." State Sen. Jesse James (R-Altoona) said the average age a girl enters the sex trade is 12 to 14 years old. For boys, he said, it is 11 to 13 years old. "At times, there is a disconnect between the language we use and how we treat victims in the legal system," the state Public Defender's Office said in testimony. "A person under 18 years of age in the State of Wisconsin is presumed to be unable to give consent to engage in a sex act. In most circumstances a person under the age of 18 may not legally enter into a contract. Both are required under the legal definition of prostitution. More importantly, children engaging in sex acts for money are forced or coerced by the traffickers to engage in these acts. Treating children as delinquents/criminals only furthers the process of victimization." "This bill would prevent the prosecution or adjudication of individuals under the age of 18 for acts of prostitution, recognizing that they are often coerced, manipulated, or forced into these situations," said Donelle Hauser, president and CEO of Lad Lake. The organization said it has been working with underage victims of trafficking for more than 10 years. "By reframing the approach to address the underlying victimization rather than perpetuating a cycle of punishment, we can help these young individuals escape the exploitative environment and provide them with the necessary tools and support to rebuild their lives." "Child victims of sex trafficking are indeed victims — these are minors who cannot consent to sex and have been exploited and deserve to be protected," said Nila Grahl, Manager of Children's Wisconsin's Racine & Kenosha Child Advocacy Centers in written testimony. "Youth victims of sex trafficking need supportive health care, services and support — not fear of being charged with a crime. Unfortunately, sometimes the juvenile justice system is the only place youth are engaging with formal systems." "Treating sex-trafficked children as delinquents or criminals is self-defeating and harmful," the Wisconsin Coalition Against Sexual Assault said in testimony. "The current approach increases distrust of law enforcement and child protective services, which hinders efforts to prosecute those responsible for child sex trafficking. Most importantly, the isolation of detention and the stigma of being treated as a delinquent serve only to exacerbate individuals’ feelings of guilt and shame, ultimately re-traumatizing child victims." The bill is pending in committees in the Assembly and Senate. By Gretchen Schuldt
The state must pay for a Kenosha county-built or designated residential facility for people on supervised release from civil commitments, the state Court of Appeals ruled last week. The three-judge panel found the state made "a critical and pervasive error" in its brief by mischaracterizing Circuit Judge Bruce E. Schroeder's order "as requiring the State to 'buy or build a residence to house sex offenders.'” The District II appellate judges were Mark D. Gundrum, Shelley A. Grogan, and Maria S. Lazar. "The court’s orders did no such things," their unsigned opinion said. "They clearly identified Kenosha County as the entity responsible for all facets of the construction or placement of the contemplated structure .... The state's obligation under the orders was merely to pay whatever expenses the county incurred in construction or placement." Schroeder issued his order in December 2021, after the county was unable to find appropriate housing for two men – Dale H. Peshek and Levin LeDoux – found to be suitable candidates for supervised release from their civil commitments as sexually violent persons. The order was straightforward: IT IS HEREBY ORDERED that the County of Kenosha is to construct or place a structure on the grounds of the Kenosha County Detention Center sufficient to meet their requirements under § 980.08(4)(dm), Wis. Stats., to identify an appropriate residential option. IT IS FURTHER ORDERED that all expenses related to the construction or placement shall be borne by the State of Wisconsin and the County is to report back to the Court within 120 days of the date of this order as to the status of the construction or placement. The state argued on appeal that it was protected through sovereign immunity, the idea that the state can decide when it can be sued for damages. "The State’s sovereign immunity arguments cannot withstand scrutiny," the panel wrote. The issue is not about money damages; it is about the state's statutory responsibility to treat sex offenders, the judges said. "(I)t should come as no surprise to the State that such a commitment carries with it financial obligations which it may not dodge under the guise of sovereign immunity," the panel said. In addition, the judges said, the case does not involve a lawsuit against the state; instead, it is a part of the two men's commitment proceedings. The appeals court also rejected the state's argument that a 2017 change in the commitment law shifted the responsibility for identifying residential placement to counties. While that is correct, "the State fails to explain why this legislative change to the manner of locating a residence for persons found eligible for supervised release matters to the narrow funding question at issue in this appeal. ...DHS must pay for any programs or facilities necessary to place a person on supervised release." The state's contention that there is inadequate funding to pay for the housing also was rejected by the panel. The state Supreme Court previously has ruled that "circuit courts could order the creation of facilities necessary for supervised release — adding that the necessary facilities could be ordered 'regardless of cost,'" the panel said. "We fail to see why those budgetary complications should control here," it said. By Gretchen Schuldt
The Milwaukee County Sheriff's Department's policy of routinely deleting interrogation recordings after 60 days is unreasonable and "demonstrates bad faith through official animus," the state Court of Appeals said this week. The three-judge panel for the District I appellate court affirmed Milwaukee County Circuit Judge Danielle L. Shelton's ruling suppressing Robert Lee Banks' confession to cocaine possession. The panel included Appellate Judges William W. Brash III, M. Joseph Donald, and Maxine A. White. "Although we may hope that all cases flow smoothly through the justice system in time for a law enforcement officer to retrieve a recording in under sixty days, this evidence retention policy is unreasonably short," the panel said in an unsigned opinion. Banks was the passenger in a car stopped by a sheriff's deputy for improperly passing a car on the right. Neither Banks nor the driver had a valid driver's license, so the deputy decided the vehicle should be towed. During a consensual search of the car, the deputy found a 9mm handgun. Both Banks and the driver were convicted felons and the deputy arrested them. During the subsequent personal search, the deputy found 2.53 grams of cocaine on Banks. The deputy also found more drugs in the car. Banks was read his rights and, during a recorded interview, admitted to possessing the cocaine found on him. Banks was charged with possession of cocaine as a second or subsequent offense. Banks sought the video recording during discovery and the deputy eventually "informed the state that the videos were unavailable," the panel said. The deputy said he was unaware that the video would be deleted in 60 days unless he exported it. Banks sought dismissal of the case based on the destruction of evidence. He alleged the written summary of the interview was inaccurate and incomplete and the destruction of the video meant he could not use it to dispute the Sheriff's Department's version of events. The state opposed the motion, arguing the there was nothing to show the deputy knew of anything in the video that could potentially help Banks and deliberately tried to hide it. "The State asserted there was no bad faith, and at worst, it was negligent to not preserve the video recordings," the panel said. Shelton "concluded that while Banks had not shown 'that law enforcement deliberately attempted to suppress' the video recordings, there was a 'concession by the state of a policy that allows for the automatic purging of this type of evidence [which was] a clear display of official animus toward a defendant’s due process rights,' ” the panel said. Shelton granted Banks’ motion to exclude the deputy's testimony about the interrogation interview. The panel in affirming the decision, found the recordings were potentially exculpatory. While Banks did not show an intent by the state to deprive Banks of helpful evidence, state law requires preservation of adult felony custodial interviews, the panel said. "The statute does not contain a preservation requirement, but it would be illogical to compel the state to record custodial interviews without providing a means for defendants and the state to access that information," the judges said. In addition, they said, the recording requirement leads to the reasonable inference that "the interviews themselves would be accessible during criminal investigations and prosecutions" and a policy that inhibits that access "defeats that purpose." |
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