By Alexandria Staubach Wisconsin Court of Appeals District 2 last week reversed Wisconsin Supreme Court hopeful and Waukesha Circuit Court Judge Brad Schimel’s decision siding with Elmbrook School Board leaders on open meeting violation allegations. Elmbrook School Board members Scott Wheeler and Jean Lambert face fines after the three-judge panel unanimously ruled in favor of plaintiff Leanne Wied. ![]() Presiding Judge Mark D. Gundrum wrote for the panel, joined by Judges Shelly A. Grogan and Maria S. Lazar. The appeals court found that the school board operated under a “cloak of secrecy” in filling a vacant school board seat during COVID. Gundrum characterized the case as “an excellent example of the real-world impact of failing to adhere to open meetings law requirements.” In 2020, the school board sought to fill a vacancy during a meeting held by Zoom during the pandemic. Four candidates, including Mushir Hassan and Wied, vied for the job. During the meeting, Wheeler asked each board member to rank their first and second choices by email and send him their preferences. The email votes did not constitute formal votes but were intended to narrow the field, Wheeler said. According to Gundrum's opinion, no candidate received enough votes to be the first choice of four or more of the candidates. Nevertheless, Wheeler presented Hassan and Wied as the candidates for the board to consider. He did not announce or subsequently volunteer the results of the email vote. Ultimately the board was deadlocked three to three. Wheeler consistently voted for Hassan. On a third vote between Hassan and Wied, board member Glen Alliger, who had previously voted for Wied, switched his vote to Hassan. Before receiving all votes, Wheeler announced “We’ve got four votes for Mushir (Hassan) and two votes for Leanne (Wied),” which Wheeler said constituted a “consensus.” In fact, another member had also switched, but from Hassan to Wied, so the board was still deadlocked three to three. Wheeler then called for a formal vote, which Hassan won with five votes and one member abstaining. At no point were the results of any email votes read aloud or published in the online meeting to the entirety of the board or the public. Further, Wheeler never corrected the email vote tally, which after the meeting he characterized as an oversight. The actual numbers were disclosed only through subsequent open records requests, which produced the emails. Wied sued Wheeler and Lambert, alleging violations of the open meeting laws and another claim against the school district. Schimel sided with the defendants in circuit court. The court of appeals found that Schimel incorrectly removed Wied as the plaintiff because she had a “personal interest” in the case after having initiated a different suit against the district. Schimel also had found that Wheeler and Lambert’s actions did not constitute an “intent to hide something.” In reversing, the appeals court wrote that “Board members sharing their preferences with Wheeler in a manner that hid the same from the public and other board members was concealment that was initiated and invited by board president Wheeler.” Gundrum wrote that “the secrecy of Wheeler’s process allowed him to erroneously announce his own preferred candidate, Hassan, as having received four email preferences to advance for the subsequent up-or-down vote, and no one was in a position—at the time when it mattered, as opposed to after Hassan had already been selected, voted on, and seated as a new board member—to monitor the process.” Wheeler and Lambert remain on the Elmbrook school board with terms expiring in April 2026 and April 2027, respectively. Hassan's term ended in 2024.
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Chief Justice Roberts decries defiance of judgments but fails to address his court's ethics issues1/2/2025 By Margo Kirchner
In his year-end report on the federal judiciary, Chief Justice John Roberts discussed the increase in calls to defy court orders and opinions, but glaringly absent was any recognition of the role his own court’s ethical failings play in that dangerous trend. Roberts noted that after the Brown v. Board of Education case some state governors sought to defy desegregation orders, but the Eisenhower and Kennedy administrations stood behind the judges, and for decades afterward even unpopular court decisions were followed. "Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected,” Roberts wrote. At least one commentator thinks Roberts aimed these comments at JD Vance. In just one paragraph near the end of his report did Roberts suggest that federal judges themselves play a part in the public’s willingness to abide by court orders, but he then tied judges’ duties to abiding by separation of powers principles. He made no mention of possible harm to the court’s authority related to justices’ failures to adopt enforceable ethics standards or publicly report gifts of luxury trips from wealthy individuals. Roberts wrote: “The federal courts must do their part to preserve the public’s confidence in our institutions. We judges must stay in our assigned areas of responsibility and do our level best to handle those responsibilities fairly. We do so by confining ourselves to live ‘cases or controversies’ and maintaining a healthy respect for the work of elected officials on behalf of the people they represent. I am confident that the judges . . . and the corresponding officials in the other branches will faithfully discharge their duties with an eye toward achieving the ‘successful cooperation’ essential to our Nation’s continued success.” Roberts’ report focused on judicial independence. He cited, in addition to defiance of court orders, three other “areas of illegitimate activity” that threaten judicial independence: violence against judges, intimidation of judges, and disinformation. In discussing recent violence against judges, he noted the murders of state judges in Wisconsin and Maryland in response to adverse rulings by those judges. In Wisconsin, retired Juneau County Circuit Judge John Roemer was murdered in 2022 at his home in New Lisbon by a man whom he had sentenced 17 years earlier. Roberts discussed attempts to intimidate judges through doxing (the publishing of addresses and phone numbers online) and, “regrettably,” statements by public officials suggesting bias by judges as the basis for court rulings. Roberts said he was grateful for the work of federal and state legislators to sponsor legislation to protect judges’ personal information and of marshals and other law enforcement officers to keep judges safe. In Wisconsin, three acts signed into law in March 2024 are aimed at protecting judges’ personal information and reducing intimidation of judges. Regarding disinformation, Roberts suggested increasing civic education on a national scale and taking protective measures against hostile foreign actors. By Alexandria Staubach Last week the Wisconsin Court of Appels ruled in favor of a severely diminished and long-suffering man who fought an order for forced medication to restore his competency for trial. The appeals court vacated the trial court’s involuntary medication order, finding that the trial judge failed to ensure that the plan for the man’s forced medication was sufficiently individualized to him. The appeals court held that trial courts must consider whether “under the particular circumstances of each individual case, the State has an important interest in bringing that defendant to trial.” In the case before it, the state did not. Further, said the appeals court, until an order for involuntary treatment issues, an accused remains eligible for bail; the mere raising of the issue of competency does not end bail eligibility. ![]() District 1 Judge Sara Geenen wrote for the three-judge panel, which included Presiding Judge M. Joseph Donald and Judge Pedro Colón. The appeals court reversed the order of Milwaukee County Circuit Court Judge Milton L. Childs. In its decision, the appeals court relied heavily on Sell v. United States. In Sell, the U.S. Supreme Court identified a four-factor test to determine whether an accused person’s constitutionally protected liberty interest can be outweighed by the state’s interest in forcibly medicating the person to regain competency to stand trial. The Sell factors are 1) the state’s “important” interest in proceeding to trial; 2) whether forcibly medicating the individual will significantly further that important interest; 3) whether forced medication is necessary to further that interest; and 4) the medical appropriateness of the medication. The appeals court found that Childs failed to consider the “special circumstances [that] undermine the importance of the State’s interest” in bringing J.D.B., referred to by the court as "Jared," to trial for battery to a law enforcement officer. Jared was 19 when he experienced an episode of psychosis that resulted in his alleged assault of an officer. The court described Jared’s multitude of underlying conditions, which include “partial left-side paralysis, a lumbering gait, compromised speech and cognitive abilities all stemming from a traumatic brain injury sustained from a self-inflicted gunshot wound when he was eleven years old.” Jared was diagnosed with schizophrenia and major neurocognitive disorder. Geenen described a one-paragraph criminal complaint stating that police responded to a call at Jared’s homein Milwaukee on Aug. 22, 2022, after his mother reported he was threatening to get a gun and kill everyone in the residence. Jared allegedly made threatening remarks to the responding officers and, while officers were arresting him, punched one officer in the face and threatened to kill that officer. Officers took Jared to a health care facility, which did not admit him. According to Geenen, where Jared was for the next four days was unclear. On Aug. 27, 2022, Jared was booked into the Milwaukee County Jail. At Jared’s first court appearance, on Aug. 31, 2022, his competency was raised as an issue, and the trial court ordered a competency examination. The competency exam occurred more than a month later, on Oct. 11, 2022. On that same day, the trial court found Jared incompetent to stand trial and ordered him into Department of Health Services custody. However, DHS did not take Jared into custody for another 106 days, during which time he remained in jail. According to Geenen, a 90-day commitment review was conducted while Jared remained at the jail. In January 2023, Jared was taken to the state psychiatric hospital in Mendota. Although he was then voluntarily taking medication, Jared allegedly swore and “spit at staff, urinated and defecated in his room, and continued to exhibit symptoms of schizophrenia,” Geenen wrote. By early April 2023, Jared was refusing medication. On April 11, 2023, Dr. Mitchell Illichmann initiated a request for involuntary medication with the trial court. The appeals court found that the forced medication plan Illichmann proposed failed to address many of Jared’s underlying conditions, omitting that he suffered from diabetes and was on a seizure medication. Without specifying duration or sequence, Illichmann’s proposed plan simply identified seven different oral antipsychotics the hospital would try. The plan recommended that if the oral medications did not work, another antipsychotic should be administered by injection. The plan also suggested another injected medication for agitation. The appeals court noted that at the hearing where Illichmann testified about the necessity of involuntary medication, there was no mention, question, or detail provided about “how often a dose of any particular mediation would be administered,” and no evidence or indication regarding the maximum amount of a particular medication to be administered in a given period of time. Illichmann testified at the hearing that he tried to discuss each of the seven oral medications in the plan with Jared, but Jared responded only that he did not feel he needed the medication. Childs found sufficient cause and ordered involuntary medication. Jared appealed, and the court of appeals stayed Childs’ order pending appeal. Geenen wrote in the appeals court’s subsequent decision that the “circuit court concluded that the first Sell factor, a requirement that the State have an important interest in prosecution, was satisfied because Jared was charged with a serious crime—assault of a law enforcement officer. However, Childs’ inquiry should not have stopped there, Geenen wrote. The trial judge was obligated, but failed, to consider whether any “special circumstances lessen the State’s interest in prosecution.” Both the potential for future civil commitment and length and duration of Jared’s pretrial detention should have mitigated and ultimately undermined the state’s interest in prosecution, Geenen wrote. She said “the facts highlighted in the complaint, considered in the context of Jared’s mental health diagnoses and the fact that he was seen at Aurora Health Center for ‘homicidal thoughts’ on the date of the alleged offense, generally support an NGI [not guilty by reason of insanity] defense and suggest that the alleged offense resulted from a mental health crisis that is currently being addressed through civil commitment proceedings.” “In this case there are distinct, non-speculative possibilities for Jared’s future commitment” that lessen the state’s interest in bringing Jared to trial, wrote Geenen. “Jared’s pretrial detention is also a relevant special circumstance,” Geenen wrote. Jared was not considered for bail but should have been, she said. The state argued that defendants become “ineligible for bail the moment competency is raised.” The court of appeals disagreed, finding that “the plain language of the statues makes clear that it is only after the circuit court orders the defendant committed for treatment and suspends the proceedings that a defendant loses his or her eligibility for bail.” Jared was detained almost two months without due process protections regarding bail, wrote Geenen, noting that “this statutory violation is significant, and it lessens the importance of the State’s interest in prosecution.” The appeals court also considered the timing of Jared’s relocation from jail to Mendota for restoration of competency. Jared was ordered to commitment in October 2022 but not transferred for treatment until more than three months later. “This, in our view, is a significant period of time that is incongruous with constitutional demands," Geenen wrote. Finally, regarding Jared’s medical plan the court expressed “serious doubts as to the adequacy of the explanations given to Jared of the advantages, disadvantages, and alternative to the medications proposed in the plan.” Geenen highlighted a lack of evidence that Illichmann ever told Jared about maximum dosages, the interaction of the drugs with his diabetes and seizure medication, or the cumulative effect of any combination of drugs. As a result, the trial court’s findings as to the sufficiency, warning, appropriateness, and necessity of forced medication were “clearly erroneous," Geenen said. “Because the circuit court determines whether the plan is sufficiently individualized and medically appropriate, the court must be provided a ‘complete and reliable medically informed record’ from which to make those findings,” and “because the record in this case is wanting in many critical respects” Jared’s proposed treatment plan was not adequately individualized, the appeals court held. A state appellate procedure rule that should alleviate some of the circumstances Jared faced took effect recently. The rule adopted by the Wisconsin Supreme Court and effective July 1, 2024, governs prejudgment orders in criminal defendant competency cases, which include treatment to restoration and involuntary medication. Key provisions of the new rule include expedited time for parties to request transcripts and file briefs and for the court of appeals to render a decision, short but automatic stays of involuntary medication orders, expedited procedures for defendants to move the court of appeals for a continued stay, and anonymity in court filings. More about the new rule can be found here. By Alexandria Staubach
Now banned in California courtrooms and potentially on its way out in Colorado, Hawaii, Minnesota, and New York, excited delirium syndrome would seem to be questionable and out of vogue, but in at least one Wisconsin courtroom recently, police showed continued reliance on it to defend their actions. Excited delirium syndrome has been described as a mental state of agitation, combativeness, aggression, and apparent immunity to pain. The term or syndrome has been used for decades to justify violence against criminal suspects, who often end up brutalized by law enforcement, but it has largely been discredited in the medical community. At an August excessive-use-of-force trial in the Eastern District of Wisconsin federal court before Judge Pamela Pepper, counsel for five Green Bay police officers raised excited delirium as part of their defense. Attorney Jasmyne Baynard told the jury that plaintiff Terrell Wendricks displayed “superhuman strength” when the officers attempted to detain him inside an apartment in August 2018. Defendant Aaron Walker redoubled Baynard’s claim in his trial testimony when he described anomalous behavior by Wendricks. Walker said Wendricks seemed to “gather strength” as officers deployed tasers, pepper spray, batons, and the “c-lock” restraint technique. Wendricks displayed “excited delirium,” said Walker, who offered no medical credentials and relied on his training and experience to bolster the theory. Although a 2009 position paper by the American College of Emergency Physicians (ACEP) concluded that excited delirium was a “real syndrome,” the paper was withdrawn in October 2023. The ACEP reversed its earlier conclusion, saying “The term excited delirium should not be used among the wider medical and public health community, law enforcement organizations, and ACEP members acting as expert witnesses testifying in relevant civil or criminal litigation.” In January, California became the first state to ban the use of excited delirium. The legislation was supported by the California Medical Association, which said the controversial diagnosis received “fresh scrutiny” in the wake of George Floyd’s 2020 death, and followed the American Medical Association’s 2021 decision to oppose the use of excited delirium as a medical diagnosis. Colorado followed, passing a law in August that proscribes training law enforcement office in use of the term, other than to educate about its history. The new law also prohibits law enforcement from using the term in any incident report and bans a coroner from using excited delirium as a cause of death on a death certificate. The Colorado bill took effect on Aug. 7. Minnesota introduced a bill in February (HF 4118) that specifically prohibits use of excited delirium as a defense for officers' use of force and prohibits law enforcement agencies from training officers on the detection or use of excited delirium. It further prohibits law enforcement officers from receiving credit for any continuing education course that includes training on the detection of excited delirium or use of the term. The bill is still pending in the Minnesota Legislature. Asked for Milwaukee County's position on the questionable syndrome, Dr. Wieslawa Tlomak, chief medical examiner, directed WJI to the National Association of Medical Examiners (NAME), which accredits her office. NAME’s public position on excited delirium is that “although the terms ‘Excited Delirium’ or ‘Excited Delirium Syndrome’ have been used by forensic pathologists as a cause of death in the past, these terms are not endorsed by NAME or recognized in renewed classifications . . . . Instead, NAME endorses that the underlying cause, natural or unnatural (to include trauma), for the delirious state be determined (if possible) and used for death certification.” The use of excited delirium to justify use of force isn’t problematic just in a civil suit. The implications on the street are worse. A 2024 investigative report by the Associated Press in collaboration with the Howard Center for Investigative Journalism and FRONTLINE found that at least 94 people died between 2012 and 2021 as a result of being given sedatives and restrained by police—practices allegedly justified by excited delirium syndrome, according to the AP’s findings. The situation is further exacerbated by excited delirium’s biased application to Black and brown people. In a May PBS Wisconsin interview, Dr. Julie Owen, a psychiatrist and Medical College of Wisconsin professor who has researched the subject, said, “usually, there’s a skewing of the use of this term with young men, young men of color, and young men of color who probably, at a later phase of examination, are found to be utilizing some sort of what we call sympathomimetic or a stimulant-like substance.” The AP investigation included a Black Eau Claire man, Demetrio Jackson, who died in police custody after being given a sedative as a form of restraint. Meanwhile, Wisconsin’s instances of police encounters that turn fatal are on the rise. By Alexandria Staubach The Wisconsin Court of Appeals recently held that the right to counsel attaches during Milwaukee County’s written probable cause process, meaning a defendant has the right to counsel for any subsequent critical stages of prosecution. ![]() Chief Judge Maxine White wrote for the three-judge District 1 panel in State v. Robinson, joined by Judges Sara Geenen and Pedro Colón. When a person is arrested without a warrant in Milwaukee County, judges and court commissioners routinely find probable cause, order detention, and set bail using an all-paper review process. The paper probable cause process, named a “CR-215” process for the form used by judges and court commissioners to make the finding, details the officer’s basis for arrest. Based on the officer’s narrative, a judge or court commissioner checks a box to indicate whether they believe probable cause for arrest exists. Percy Robinson was arrested on Dec. 19, 2017, for bank robbery. Within 48 hours, a Milwaukee County circuit court commissioner reviewed a CR-215, found probable cause that Robinson committed the offense, and set bail at $35,000. On Dec. 22, law enforcement conducted an in-person lineup. The lineup included Robinson, and the bank teller identified him as the person who committed the robbery. No attorney was present on Robinson’s behalf. The State then issued a criminal complaint against Robinson for robbery of a financial institution. Robinson was convicted following a jury trial. He appealed, arguing, among other things, that he received ineffective assistance of counsel because his trial attorney failed to challenge the lineup identification, which occurred without counsel present after his right to counsel had attached. The court of appeals agreed about the right to counsel, concluding that “Milwaukee County’s CR-215 process signals a ‘commitment to prosecute,’” and that the Sixth Amendment right to counsel attaches during that process, creating a right to counsel for any later "critical stages" of prosecution. “The initiation of judicial criminal proceedings is far from a mere formalism,” White wrote. “(T)he CR-215 process shifted Robinson from a person under investigation to the accused in the criminal justice system. Therefore, it is reasonable that the shift arising out of the CR-215 process attaches Sixth Amendment guarantees.” The state argued that Robinson’s right to counsel had not attached during the CR-215 process because Robinson was not physically present when the CR-215 form was evaluated and signed by the circuit court, and the process consequently lacked necessary formalities. The court rejected the argument. “The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote. “An ‘accusation filed with a judicial officer is sufficiently formal, and the government’s commitment to prosecute it sufficiently concrete, when the accusation prompts arraignment and restrictions on the accused liberty to facilitate the prosecution.’ By that point it is too late to wonder whether he is accused within the meaning of the Sixth Amendment, and it makes no practical sense to deny it,” White wrote. The court then found that an “identification lineup occurring after the probable cause determination and bail setting, such as the CR-215 process, is a critical stage of the prosecution,” with a right to counsel. While Robinson’s appeal ultimately failed on other grounds, the court, citing U.S. Supreme Court law, recognized that when a conviction “’may rest on a courtroom identification’ that was ‘the fruit of a suspect pretrial identification which the accused is helpless to subject to effective scrutiny at trial, the accused is deprived of that right of cross-examination which is an essential safeguard to his right to confront the witnesses against him.’” Counsel’s presence, not participation, “’is relied upon to prevent unfairness and lessen the hazards of eyewitness identification at the lineup itself,’” wrote White, citing Wisconsin Supreme Court law. Going forward, an accused will have the right to counsel for any critical stage after a CR-215 finding. When and whether an accused’s right to counsel attached during the CR-215 process had been the subject of state and federal litigation since at least 2009. Federal courts in Wisconsin had held that a right to counsel attaches after the CR-215 process is complete, but no consistent answer had been developed by state courts. The Robinson court concluded that the law is now settled on the matter. By Alexandria Staubach Milwaukee County Circuit Court has a new mental health docket, which its creators hope will streamline the civil and criminal aspects of cases where competency is at issue. ![]() Judge Mark A. Sanders will preside over the new docket, which started accepting cases this month. The docket is designed to address a significant backlog of cases that deal with competency and to incorporate and possibly expand the capacity of the current mental health treatment court. Legal competency is the ability of someone who has been charged with a crime to appreciate the charges and consequences and to participate in their defense. The new court got its start through the Milwaukee Community Justice Council (CJC), which comprises Milwaukee-area criminal justice agencies and local governments working collaboratively to “ensure a fair, efficient, and effective justice system that enhance(s) public safety and quality of life in our community,” according to its website. WJI recently discussed the new court with Chief Judge Carl Ashley, who chairs the CJC; Milwaukee County Chief Deputy District Attorney Kent Lovern, who co-chairs the CJC’s Mental Health Committee (and is running unopposed for district attorney in November’s election); and Tom Reed, vice-chair of the CJC and regional attorney manager of the Wisconsin State Public Defender’s Office. “It is not possible to overemphasize that the mental health docket is a reflection of deep concern at every level that individuals with mental health issues end up with the police and in jails, in situations that are not equipped to deal with these issues,” said Reed. “We envision phases,” said Ashley. He told WJI that he hoped the new docket will grow to further address the significant needs of those charged with criminal offenses and simultaneously dealing with mental disease. The COVID-19 pandemic resulted in a significant backlog of cases, said Ashley. He told WJI, he believed the court could improve outcomes and efficiencies, especially in competency cases. Ashley, Reed, and Lovern all told WJI that mental health is a significant issue in court efficiency. Each noted the desire for individuals with significant mental health issues to achieve just outcomes, while acknowledging that arriving at those outcomes requires significant time and resources from the court. Apart from improving efficiency for individuals that have been charged, the new docket will have a “corollary benefit,” said Lovern. He said the new docket will let other courts move at an improved pace. Ashley, who others indicate led the effort in engineering the new docket, said the court will initially deal only with cases in which competency, not guilty by reason of mental defect, or restoration to competency is an issue. Sexual assault and homicide cases will be excluded from the new docket; those cases will remain in other specific courts. The new docket is distinct from the mental health treatment court. The circuit court has had a mental health treatment court for more than 10 years, deemed “the longest pilot project ever” by Lovern. The current mental health treatment court program is small and voluntary. “It’s really not the fit for every case” Lovern told WJI. It is designed to connect participants with mental health treatment, community services, and “appropriate dispositions” to criminal charges relative to the seriousness of the participant’s mental illness and severity of the offense, Lovern said. Reed said the treatment court is designed to deal with individuals who display a significant mental illness and could benefit and improve with long-term intensive work and supervision. The new docket is also designed to help the whole court system run more efficiently, said Ashley. If an individual is found not competent, it may be that they can be restored through treatment either out of custody (conditional release) or in custody at Mendota, a state-run mental health facility. In cases where competency is an issue the court must first establish a lack of competency by hearing, which often requires the testimony of medical professionals, and then act upon that fact. One objective for the new court is to give the civil system, plus service providers and medical professionals, a dedicated court to deal with, Ashley said. “There are significant delays in just the competency path; some of those delays have to do with the state hospital not having enough beds,” Reed told WJI. However, “other problems arise,” too. “Every criminal court has to deal with competency, and the result is ‘yes,’ time tied up in hospitalization, but a lot of time is also tied up in the process,” he said. “If felony courts can move faster to other cases, it can free up other court time,” said Lovern. Reed highlighted that a single docket for competency cases may result in a single team of people—court providers, district attorneys and public defenders—who are better positioned to think upstream, “to understand the familiar faces, see who is cycling through and trapped in unproductive cycles.” “We have to get in there, then see what we can do,” said Ashley. By Alexandria Staubach Earlier this month, Dane County Circuit Judge Jacob Frost declared part of Act 10—the 2011 statute that gutted collective bargaining rights—unconstitutional, finding that the law’s application to some public safety groups but not others had no rational explanation and therefore violates equal protection rights. ![]() Frost found the provisions of the act related to collective bargaining modification void. (The full order is here.) Equal protection arguments arise under federal and state constitutions when similar people are treated differently. Act 10 significantly diminished collective bargaining rights for everyone but select government employees deemed “protective occupation participants.” This classification included government workers like police but excluded some similar groups like the Capitol police. Whether the statute violates equal protection hinges on whether the state had a “rational basis” for determining who fell into the protective occupation classification, Frost said. Act 10 did not provide a definition for “protective occupation participants.” Instead, it relied on another Wisconsin statute that defined “protective occupation participants” who receive state benefits. Under that statute, there are 22 groups in the protective occupation classification. The groups “cover a variety of categories of work—law enforcement, fire fighters, and, oddly, motor vehicle inspectors,” Frost noted. The Legislature chose only seven of those 22 groups for protection in Act 10. Frost found that the Legislature failed to explain why just those seven groups of workers would essentially be exempt from the restrictions on collective bargaining implemented under Act 10. “No explanation presented to or thought of by the Court can explain why those 7 groups are in but the other public safety type groups are put in the general employee category,” Frost said. “(T)his is the purpose of rational basis review—to ensure there is an explanation that makes rational sense as to why a group is treated differently and who is in the group,” he wrote. “(T)he Legislature did not define the bounds of who is in the public safety group with words or explanation. It only did so by naming the specific employees put into the public safety group. Because the Court cannot come up with any policy that explains why these 7 groups of employees are included but other similar employees are excluded, the classification lacks a rational basis,” Frost said. Frost said the Legislature “absolutely has authority to define the public safety group and set the bounds of who is included as long as there is a rationale for it and the bounds apply fairly to all who fall within them.” A group of labor organizations filed the equal protection lawsuit in Dane County in November 2023. The defendants—state agencies and officials who oversee Act 10 enforcement—and the intervening Legislature asked Frost to dismiss the case on the grounds that the issues raised were decided in two prior cases, which deemed the law constitutional; implications for the state’s budget and the amount of time elapsed since Act 10’s enactment prejudice the state; and the law does not violate equal protection. Federal courts and the Wisconsin Supreme Court have previously found the law constitutional, but Frost said those cases and arguments were different. A case filed in federal court in 2013 by a (mostly) different group of labor organizations sought to invalidate Act 10 for violating the equal protection clause of the U.S. Constitution. Frost found that the plaintiffs before him challenged Act 10 under the Wisconsin Constitution. “(T)hough the state and federal arguments surely have similarities they are not the same,” he said. Frost concluded that the prior federal case was not binding on Wisconsin courts because “Wisconsin’s Supreme Court has developed a 5 factor test to apply to certain equal protection challenges,” which the federal appeals court “never discussed or applied.” In 2014, labor organizations again unsuccessfully challenged Act 10, but in state court. They argued that Act 10 violated equal protection under the Wisconsin Constitution because it treats employees who chose union representation differently from those who chose not to be represented by a union. Frost wrote that “this is entirely different” from the question of whether Act 10’s protective occupation classification violates equal protection. Frost disposed of the prejudice argument by saying that the Legislature had failed to demonstrate any prejudice other than the ordinary inconvenience and disruption of litigation. “Those costs also would exist no matter when the law[suit] was brought,” he wrote. “(S)imilarly, if Act 10 were overturned, the effect on budgets would have occurred right after the law’s passing the same as it does now.” The defendants are likely to appeal Frost’s decision once it has been fully litigated, and it is likely to be another case that ends up before the Wisconsin Supreme Court. Recently, a host of cases in the Supreme Court have sought to overturn Wisconsin law on controversial topics—from the 2023 case that led to redistricting, to this month’s decision by the Wisconsin Supreme Court that absentee ballot boxes are allowed, to a case on whether the state constitution protects a right to abortion. Wisconsin Court of Appeals OKs resurrection of dismissed conviction in impaired-driving case6/26/2024 By Alexandria Staubach The Wisconsin Court of Appeals recently allowed the Rock County Circuit Court to resurrect a conviction previously dismissed under the “single-conviction provision” in Wisconsin law. The single-conviction provision permits prosecutors to pursue multiple counts that arise out of a single incident and fall into the three categories prohibiting operating a motor vehicle under the influence of an intoxicant or other drug. Under the provision, if a defendant is convicted of multiple impaired-driving offenses for the same incident, all but one is dismissed so a single conviction remains for purposes of sentencing and counting convictions. District IV of the Court of Appeals held that dismissal of a parallel count can be reversed if the offense chosen for the sentence is later thrown out on appeal. The dismissed count can be revived and then provide the basis for a new sentence. ![]() Judge Brian Blanchard wrote for the court, joined by Judges Rachel Graham and Jennifer Nashold. A Rock County jury found Carl Lee McAdory guilty of two eighth-offense driving-while-intoxicated charges arising out of the same incident: (1) operating a motor vehicle while under the influence of one or more controlled substances (“OWI”), and (2) operating a motor vehicle with a restricted controlled substance (“RSC”). The OWI offense required the state to prove that McAdory’s driving was actually impaired by drugs or alcohol, while the RSC charge was a strict liability offense, meaning the state merely had to prove McAdory had consumed drugs and was operating a motor vehicle, regardless of whether the drugs affected his driving. Though found guilty on both counts, under the single-conviction provision McAdory could be sentenced on only one. At sentencing, the state asked the court to dismiss the RSC charge and sentence McAdory on the OWI charge. Judge Karl Hanson did so. McAdory appealed his OWI conviction to District IV of the Court of Appeals and won. The appeals court reversed the OWI conviction for violation of McAdory’s right to due process. Hanson had permitted a modified jury instruction as to the OWI offense, which, coupled with arguments raised in opening and closing arguments by the prosecution, resulted in a “reasonable likelihood that the State was effectively relieved of its burden to prove that McAdory was ‘under the influence’ of cocaine and marijuana while driving,” wrote the court. The appeals court sent the case back to circuit court “for a new trial on the [OWI] offense.” The appeals court was not asked to and did not address the merits of the dismissed RSC charge. McAdory did not get a new trial on remand, however. Instead, the prosecutor asked Hanson to reopen the judgment, dismiss the OWI conviction, reinstate the RCS conviction, and sentence McAdory on the RSC charge. McAdory argued that the court lacked the authority to reinstate the dismissed count and that reconviction would violate protections against double jeopardy (the legal theory prohibiting multiple prosecutions for the same incident). Hanson agreed with the prosecutor, entering a new sentence and judgment on the RSC charge. McAdory again appealed. He argued that Hanson exceeded his authority when he ignored the appellate court’s order for a new trial, nothing in state law authorized reinstatement of the RCS charge, and the second RCS conviction (following dismissal of the first) violated double-jeopardy protections. (WJI wrote about McAdory’s appeal here shortly after it was filed.) The appeals court found that nothing in Wisconsin law prohibited reinstatement of the RSC count. Although the single-conviction provision does not explicitly address the procedures to be used to accomplish the result of a single conviction, a prior Court of Appeals opinion “interpreted the single-conviction provision to mean that ‘the defendant is to be sentenced on one of the charges, and the other charge is to be dismissed,’” Blanchard wrote. In McAdory’s case that was what the prosecutor requested at the first sentencing hearing and what the prosecutor requested on remand—sentencing on one count and dismissal of the other, Blanchard said. “(T)he only reasonable interpretation is that the single-conviction provision implicitly authorizes circuit courts, in the procedural posture here, to accomplish the intended goal of a single conviction in this way,” Blanchard wrote. “(I)t would be unreasonable to interpret the single-conviction provision to mean, as McAdory contends, that the court’s post-trial dismissal of the guilty verdict on the RCS count in order to satisfy the provision was necessarily permanent, regardless of subsequent events in the case.” Further, “in enacting the single-conviction provision the legislature is presumed to have been aware of the postconviction and appellate relief potentially available to defendants in criminal cases, specifically in the form of potential reversal of individual counts of conviction,” Blanchard wrote. Blanchard said the court’s decision comported with language from the Wisconsin Supreme Court that impaired-driving convictions “terminate with one conviction for all purposes,” because even through the second appeal McAdory’s case had not yet terminated. The court found no double jeopardy problem. Read the full opinion here. By Alexandria Staubach
Earlier this month the Wisconsin Court of Appeals upheld the Wisconsin Department of Justice’s denial of Scot Van Oudenhoven’s handgun purchase application based on an previous misdemeanor domestic violence conviction that had been expunged under Wisconsin law. The decision reinforces the narrow effect of expungement on criminal convictions in Wisconsin, where they are difficult to obtain and of limited effect. Expungement seals a criminal court file but has no impact on the conviction itself. Judge Gregory B Gill Jr. wrote for District III appeals court. He was joined in the opinion by Judges Lisa K. Stark and Judge Thomas M. Hruz. Van Oudenhoven was convicted of battery as an act of domestic violence in a 1994 Calumet County case. In 2019, a Calumet County Circuit Court judge granted Van Oudenhoven’s petition for expungement. In 2022, Van Oudenhoven attempted to purchase a handgun in Wisconsin. The Wisconsin Department of Justice (DOJ) denied the purchase based on his misdemeanor battery conviction. After Van Oudenhoven exhausted administrative remedies with the DOJ, he sought judicial review in Winnebago County Circuit Court. Judge Teresa S. Basiliere affirmed the DOJ denial. Federal law prohibits the sale of firearms to individuals who have been convicted of offenses related to domestic violence, but among the exceptions are misdemeanor cases. Possession is permitted where the misdemeanor conviction has been “expunged or set aside.” On appeal, Van Oudenhoven argued that expungement under Wisconsin law has the same force and effect as “expunged or set aside,” which phrase is not explicitly defined under federal law. Van Oudenhoven argued that the U.S. Supreme Court provided a common understanding of the phrase when it said in Logan v. United States that “expungement,” “set-aside,” “pardoned,” and “civil rights restored,” “describe[] a measure by which the government relieves an offender of some or all of the consequences of his [or her] conviction.” Because Van Oudenhoven’s expungement removed “some” consequences of his conviction, the Calumet County court “expunged or set aside” his conviction, he argued. The Court of Appeals rejected Van Oudenhoven’s argument that his conviction had been “expunged or set aside.” “The terms expunged, set aside, pardoned, and restoration of civil rights all, by definition, require state action that removes the prohibition on an individual from possessing or receiving a firearm under federal law,” wrote Gill. “The state procedure in question must completely remove all effects of the conviction at issue,” he said. Wisconsin’s expungement law does not remove the effects of conviction; “the statue merely removes evidence of the conviction from court files,” said Gill. Current state law permits expungement for an offense with a penalty of six years or less, as long as the offense was not a violent felony, the person was under 25 years old and had no prior felony record, and the person requested expungement at the time of sentencing. If all conditions are met, a subsequent court may grant a request for expungement after the person has successfully completed their sentence. During the last decade, several bills have been introduced to reform Wisconsin’s expungement and pardon laws. Last session, one bill seemed poised for success. Senate Bill 38/Assembly Bill 37 received broad support, with organizations on both sides of the aisle registering in favor, from the conservative group Americans for Prosperity to the ACLU. The bill also had a bipartisan group of 63 co-sponsors. Although the bill successfully made its way through the Assembly, it ultimately failed to get a vote from the Senate. “Expungement is an issue that has been before the Legislature and the Supreme Court for several years, yet, despite extensive study and discussion, there have been few changes made,” wrote the State Bar of Wisconsin in support of the bill. “Without expungement, every sentence is a life sentence,” it said. Some legislators remain undeterred. Rep. Tip McGuire (D-Kenosha) told WJI “It has unfortunately been a long, difficult road for the expungement reform bill. However, every session brings in new legislators and a fresh chance for us to get on the same page and recognize the importance of getting this done.” “Too many people in our state have trouble finding work or housing because of low-level crimes they committed many, many years ago when they were quite young. I’m hopeful we can properly strike a balance between public safety and rightfully giving people a second chance to build a life and a career for themselves,” McGuire told WJI. According to a 2018 Wisconsin Policy Forum report, an estimated 1.4 million individuals in Wisconsin have criminal records that may hinder their ability to find employment. In Milwaukee County, 30,638 cases closed between 2006 and 2017 technically meet the current restrictive eligibility criteria but have not been expunged, said the report. In 2020, the Court of Appeals held that even minor, technical violations of community supervision rules will bar expungement. By Alexandria Staubach Time-sensitive functions of the Milwaukee County Circuit Court are moving to children’s court in the Vel R. Phillips Juvenile Justice Center during the Republican National Convention (RNC). “The courthouse is already difficult to get to” said Chief Judge Carl Ashley in an interview with WJI. He anticipates that security checkpoints, crowds, and the unavailability of parking will dramatically intensify with the 50,000 people expected to participate in RNC activities. WJI talked with Ashley and Chief Court Administrator Stephanie Garbo about the court’s plans during the convention, which runs July 15 through July 18 in downtown Milwaukee. Garbo is helping to orchestrate the move to children’s court, which is located west of I-41 at 10201 W. Watertown Plank Rd. Garbo, like other Milwaukee-area officials, is organizing essential functions in and around the security footprint of the RNC without a complete picture of the U.S. Secret Service’s plans for the area. Garbo said a full outline of anticipated changes to court operations is yet to be announced but is expected in the coming weeks. Some of the changes Garbo anticipates include:
The Milwaukee County Jail will remain accessible to visitors and attorneys, but visitors will likely have to pass through intensified security to get to the building. As court plans remain in flux, Garbo encouraged anyone with court business the week of the convention to monitor Milwaukee County’s convention website, which will contain the most up-to-date information as the convention approaches. At a press conference in February, Mayor Cavalier Johnson also announced a city convention website, but as of today, both websites largely contain placeholders for plans that are still being developed and encourage the public to check back soon. The courts are not the only county functions likely to experience reorganization during the RNC. The county anticipates changes to several bus routes that ordinarily penetrate the RNC’s security zone. Currently, the county website for the RNC informs riders that “the security plan for the 2024 RNC is still in development – as soon as its finalized, riders will be alerted to impacts on bus routes” and “changes to the RNC’s security perimeter may happen on short notice.” Milwaukee County Courthouse. Photographs by Alexandria Staubach.
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