By Gretchen Schuldt
A Rock County judge blew off an appeals court order for a new trial and instead sentenced a man on a charge that was already dismissed, according to a new appeal.
The state has not yet responded in the case.
The defendant, Carl Lee McAdory, "must now face the fact that winning one battle does not mean victory in war," Circuit Judge Karl Hanson said in granting the prosecutor's motion to reinstate the dismissed charge.
Hanson eventually sentenced McAdory to three years of incarceration followed by six years of extended supervision. Hanson also vacated the charge on which McAdory originally had been sentenced and for which a District IV Court of Appeals panel ordered a new trial.
McAdory was charged with eighth-offense operating under the influence and eighth-offense operating with a restricted controlled substance. Blood testing showed he had cocaine and marijuana in his system when he was arrested. A jury found him guilty on both counts. Because the counts duplicated each other and the law says McAdory could only be sentenced on one, the prosecutor moved to dismiss the latter charge.
In ordering a new trial, the Court of Appeals found that the state repeatedly misled the jury about what the state had to prove for a conviction on the under-the-influence charge. The law requires a showing that there were enough drugs in McAdory's system to actually impair his driving. That law is different than the restricted-controlled-substances law, which makes it illegal to drive with any detectable amount of drugs in the blood, whether or not it actually affects the person's driving ability.
In addition, Circuit Judge John M. Wood, who presided over the trial, eliminated part of the jury instructions that made clear what was required for conviction on the under-the-influence charge, according to court documents.
The appellate court noted that the Circuit Court prosecutor could have avoided the entire issue if she had dismissed the impaired driving offense and stuck with the easier-to-prove restricted-substances offense. The panel even held oral argument to discuss the dismissal of that charge.
The appeals panel sent the case back to Rock County for a new trial, McAdory's lawyer, Brent A. Simerson, wrote in a brief filed in the new appeal.
"However, a new trial was never convened," Simerson wrote. Instead, at the request of the state, Hanson vacated the under-the-influence count, on which McAdory had been sentenced, reinstated the dismissed restricted-controlled-substances conviction, and sentenced McAdory to three years in prison and six years of supervised release.
Hanson said the appellate court did not find any error in how the restricted-controlled-substances charge was handled, Simerson wrote. The judge also said that McAdory “ 'had no expectation of finality in his case when the trial court imposed a sentence only on count [one], the OWI conviction,' ” Simerson wrote.
But Hanson exceeded his authority when he ignored the appeals panel's order for a new trial, Simerson said. State law requires trial judges to do what appellate courts tell them to do. The law also requires circuit judges to schedule trials when an appellate court orders new ones, he wrote. And, as the state conceded, nothing in state law authorized the reinstatement of the charge, Simerson wrote.
"Absent a source of authority in Wisconsin law, the Circuit Court should have, instead, concluded that it did not have the authority to revisit Mr. McAdory’s judgment of conviction," he said. Instead, the court should have pursued any relief through the appeals process.
Reinstating the conviction also violated double-jeopardy protection, Simerson said. Jeopardy generally attaches after a jury is empaneled and sworn and prohibits a second prosecution for the same offense after conviction, he said.
"Under the Circuit Court’s decision, the state could wait indefinitely long before asking the Circuit Court to 'reinstate' a charge," he said. "After all, what limitations period would govern? Without an endpoint specified by law, the timing would be left to the vagaries of prosecutorial whim. All the while, the defendant would be forced to live his life in fear, worry, and frustration about when, if ever, the State might suddenly decide to file its reinstatement motion. This cannot be."
By Gretchen Schuldt
Wisconsin Supreme Court Justice Rebecca Grassl Bradley this week declared that a pending redistricting case is "rigged" while criticizing Justice Janet Protasiewicz for saying the same thing about the state's legislative maps.
Grassl Bradley made the statement while dissenting to a routine scheduling order in Wright v. Wisconsin Elections Commission, one of two redistricting cases before the court. She also took a swipe at the three other less-reactionary justices and said they would rule to give Democrats "an electoral advantage."
Wisconsin is considered one of the most Republican-favoring gerrymandered states in the country.
Here is what Grassl Bradley said in prematurely declaring the result of the case:
The outcome of this original action has been predetermined. Nevertheless, the majority forces the parties to expend considerable resources — including taxpayer money — to respond to a petition everyone knows will be granted by Ann Walsh Bradley, Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz. Despite receiving nearly $10 million from the Democrat Party of Wisconsin and declaring the maps "rigged," Protasiewicz has not recused herself from the case. These four justices will adopt new maps to shift power away from Republicans and bestow an electoral advantage for Democrat candidates, fulfilling one of Protasiewicz's many promises to the principal funder of her campaign.
In Caperton v. Massey, the United States Supreme Court decided due process required a state supreme court justice's recusal from a case because "'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable'" based solely on the justice's receipt of $3 million dollars in campaign contributions from the chairman and principal officer of a party to the action. Consistent with universal judicial ethics, the justice in Caperton had not made any statements during his campaign suggesting he had prejudged the case. This court adopted the Caperton test, holding that a circuit court judge's repeated social media interactions with a litigant in a contested paternity case pending before the judge constituted a due process violation. "To assess whether the probability of actual bias rises to the level of a due process violation, we apply, verbatim, the standard from Caperton."
The court should deny this petition without ordering a response because it relitigates claims this court only recently decided in (Johnson v. Wisconsin Elections Commission I, II, and III - WJI) and asserts claims that could have been brought in 2021. Petitioners, who were intervenor-petitioners in the original Johnson litigation, ask this court to undo its decisions in the Johnson redistricting trilogy and adopt arguments that were already made, considered, and rejected by this court. Only a change in court membership makes a do-over possible, as the litigants recognized by filing this petition three days after Justice Protasiewicz's ceremonial investiture. Entertaining these claims makes a mockery of our justice system, degrades this court as an institution, and showcases that justice is now for sale in Wisconsin. "Rigged" is indeed an apt description — for this case.
By Gretchen Schuldt
A dispute over the right of an unmarried couple to adopt a child is at the center of the first case the state Supreme Court will hear in September.
Most of the case, which bypassed the Court of Appeals, is confidential. But one document, a reply brief filed by attorneys representing the unmarried couple, is available. It names as a defendant Ashland County Circuit Judge Kelly J. McKnight, who rejected an unmarried couple's request to adopt a child. The couple, referred to as A.M.B. and T.G. in the brief, are appealing.
McKnight, wrote the couple's lawyers, John R. Carlson and Carla J. Smith, "chooses to focus first and foremost on 'protecting marriage' – an institution in which the child does not even participate."
The judge "obfuscates the core intent and interest of the legislature – the best interest of the child."
McKnight, who as a judge is a state official, is represented by Assistant Attorney General Lynn K. Lodahl.
"The Legislature makes its intent clear in the first few sentences of Chapter 48 (the Children's Code) – 'the best interests of the child or unborn child shall always be of paramount consideration," the lawyers wrote, emphasizing the key words. "A sentence with no qualifications, conditions, or exceptions."
The law identifies the secondary, qualified goal of preserving the unity of the family "whenever appropriate," they said. "And the word 'traditional' never appears anywhere in the legislative intent section."
M.M.C., as the child is called in the brief, never had a relationship with her biological father and his parental rights were terminated. There is no ability to preserve the unity of M.M.C.'s family, Carlson and Smith said.
"The legislative intent of 'preserving the unity of the family' should not be mistaken for what the Court tried to do – force two unwilling participants into a marital contract – an event that was not centered on the child or her best interest, but focused solely on a technicality that would have no effect on M.M.C.’s day-to-day life," they said.
McKnight "determined that the best interest of the child was wholly irrelevant in determining whether to approve an adoption," they said.
The law specifically allows "an unmarried person" to adopt, they said.
"If the legislature were seeking to 'promote marriage, stability for children and families…[and] protect the traditional unitary family,' it does not make sense the legislature would explicitly permit unmarried individuals to adopt under Wisconsin law," they wrote.
Oral arguments in the case are scheduled for 9:45 a.m. Sept. 11.
By Gretchen Schuldt
The inclusion of the simple, humble comma won out-of-state consumers and the state itself an important victory from the state Court of Appeals last week when the court ruled that a law prohibiting fraudulent representations applied to ads and information shown to people outside of Wisconsin.
The statute, §100.18(1), lays out who cannot do certain things and what they cannot do when trying to get members of the public to buy goods or services. Specifically, the statute says individuals and firms may not "publish, disseminate, circulate, or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in this state..." ads or information that include false representations.
The verbs in the statute focus on the advertiser's conduct, not the consumer's, Appellate Judge M. Joseph Donald wrote for the panel.
"After a comma, the statute provides that these actions may not take place 'in this state,' " he said. "The statute does not proscribe where the recipient or consumer must be or reside. Thus, based on the plain language of the statute, we conclude that the state can enforce against Wisconsin businesses that reach consumers outside of the state."
"There is a comma that separates the phrase 'before the public' and 'in this state.' If 'in this state' modified 'before the public,' then there would be no need for a comma," he wrote.
The opinion, joined by Appellate Judges William W. Brash III and Maxine A. White, overturned a ruling by Milwaukee County Circuit Judge William Sosnay. The panel ordered a new trial.
The case arose out of allegedly deceptive advertising practices by Midwest Auto Recycling and a number of related entities, referred to collectively in the opinion as "Midwest."
The firm relied heavily on the internet for its sales, Donald wrote. "To expand the business, Midwest Auto Recycling created various websites and companies...to advertise and sell the auto parts to people and businesses throughout the United States."
Those companies are also named as respondents in the case and include Remanns LLC; Quality Used Engines, LLC; Engine Recycler, LLC; Quality Used Transmissions, LLC; Engine Shopper, LLC; Engine & Transmission World, LLC; Belden Mfg, LLC; APLS Acquisition, LLC; SW Engines, LLC; SW Transmissions, LLC; and U Need Engines, LLC. Several unnamed managers of those entities also were named.
The state received hundreds of complaints about the business and sued Midwest in 2017, alleging that the company had committed fraudulent misrepresentations in marketing and selling; fraudulent misrepresentations regarding where their business was located; and unfair billing practices.
As litigation advanced, the state said it wanted to call three out-of-state customers as witnesses to testify "regarding how the engines they received did not match up with the representations that had been made," Donald wrote.
Sosnay ruled that evidence about “incidents that occurred outside Wisconsin, meaning dealing with residents of other states, is not admissible.” He also ruled the state would have to show that any Wisconsin resident who was a customer of Midwest would have had a monetary loss.
Just one in-state customer testified, along with some people associated with Midwest.
The jury found that four Midwest websites misrepresented the business locations but also found that advertisements to Wisconsin consumers were not untrue, deceptive, or misleading, and that representations in sales quotes were not untrue, deceptive, or misleading in relevant respects.
In rejecting Sosnay's interpretation of the law, Donald wrote for the panel: "As the state asserts, all Wisconsin businesses must do to comply with the law is refrain from making misrepresentations in their advertising. If Midwest has to follow the law for in-state residents, there should be no issue following the law for out-of-state residents given that both view the same websites. ... The circuit court erred when it prohibited the state from introducing evidence that Midwest made misrepresentations reaching consumers outside Wisconsin"
The appellate panel also found that the state did not have to show pecuniary loss. The state brought the suit under a statute that does not request such a showing, Donald wrote.
By Gretchen Schuldt
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
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
Brown County must dismiss felony charges against a man who sat in jail while completion of his initial court appearance dragged on for 321 days because the State Public Defender's office could not find a lawyer to represent him, the state Court of Appeals ruled last week.
Christopher S. Butler's preliminary hearing was held 21 days later even though state law requires it to be held within 10 days after the initial appearance.
When adjourning an initial appearance "solely to locate counsel for a defendant ... circuit courts and court commissioners must make factual findings on the record considering the justification for the adjournment, the possible prejudice to the defendant, and, where applicable, public interest," Appellate Judge Gregory B. Gill Jr. wrote for the three-member District III Court of Appeals panel. "The record before us lacks any evidence of such considerations."
He was joined in his decision by Appellate Judges Thomas M. Hruz and Lisa K. Stark.
The charges can be dismissed without prejudice, meaning they can be refiled.
Butler was arrested by Green Bay police after they received a report that he molested two young girls. He was arrested and placed on a probation hold. He was charged on Oct. 23, 2019, with three felonies, all as repeaters: two counts of repeated sexual assault of the same child and one count of exposing genitals to a child.
Butler's initial appearance began that day. A court commissioner, identified in online court records as Paul E. Burke, set bail at $75,000 and said he would schedule a continuation of the hearing.
"At the time, the Brown County Circuit Court’s policy was to adjourn a defendant’s initial appearance until counsel was appointed to represent the defendant," Gill wrote.
Butler remained behind bars. He had six adjourned initial appearances from Oct. 23, 2019, to April 20, 2020.
"At each hearing, an SPD attorney appeared with Butler, and he or she informed a court commissioner that the SPD was still attempting to find an attorney to represent Butler," Gill wrote.
The State Public Defender's office appoints private bar attorneys to handle cases of indigent defendants when SPD staff attorneys can't handle the cases themselves, due to things like workload issues or conflicts of interest. SPD pays the private lawyers $70 per hour, well below the going rate for lawyers. The Legislature's Joint Finance Committee has recommended increasing the pay to $100 per hour.
In February, 2020, Butler had a probation revocation hearing and an administrative judge found in his favor. His probation was not revoked. The parole hold was lifted, but Butler could not make bond and remained in jail.
In March, 2020, Butler filed a speedy trial demand on his own behalf. He argued that the court lost personal jurisdiction (a court's power over a party to a case) because his preliminary hearing was not held in a timely manner.
"The motion was never formally held or ruled on by a court commissioner or the circuit court," Gill said.
A lawyer accepted an SPD appointment to handle the case, but five days later withdrew, saying she did not know whether she could meet Butler's speedy trial demand. The commissioner warned Butler that it could take a long time to find a lawyer for him.
There were more adjourned initial appearances. Butler's bail dropped to $50,000 in May, 2020, but he remained in jail. He filed another pro se motion arguing his constitutional rights were being violated.
The prosecution filed a letter with the court that June expressing concern about how long Butler's case was on hold. There had been 12 court appearances in eight months, the state said.
In July, Brown County Circuit Judge Beau G. Liegeois held a hearing and said he would " 'troubleshoot getting an attorney appointed faster,' " Gill wrote. "The court then set another adjourned initial appearance for later that month."
At that hearing, before a court commissioner, Butler asked how long it would take to find a lawyer.
"The court commissioner (Chad Resar, per online records) responded, '[T]he only thing we can do is just see what will happen, if anyone is willing to appoint you an attorney,' " Gill said.
More hearings were held on July 16, July 23, and July 30. A lawyer finally was appointed on Aug. 13, 2020.
Butler's initial appearance was completed Sept. 8 – 321 days after he was charged. A preliminary hearing was held Sept. 29, and a court commissioner bound Butler over for trial. Butler pleaded not guilty and filed a motion to dismiss because the state failed to hold a preliminary hearing within 10 days of his initial appearance, as required by law. Liegeois denied the motion; Butler appealed.
The state argued on appeal that Butler forfeited his personal jurisdiction challenges because he did not object after his initial appearance was completed, at his preliminary hearing, or when he was arraigned.
The appeals panel rejected that contention. "Butler’s objections to personal jurisdiction, which occurred prior to the initial appearance being completed, were more than sufficient to give 'both parties and the circuit court notice of the issue and a fair opportunity to address the objection,' " Gill wrote.
A court does have inherent authority to adjourn initial appearances, as they do preliminary hearings, but must consider the justification for the relief, the possible prejudice to the defendant, and public interest, he said.
"Particularly troubling is that, at the time of Butler’s pretrial detention, the blanket policy of the Brown County Circuit Court was to continuously adjourn initial appearances until counsel was located," Gill wrote.
In addition, he said, "the court did not consider appointing an attorney at county expense, which 'might prove more compelling to private attorneys,' as they would not have to go through the SPD’s qualification process and would receive greater compensation."
Neither the judge nor the court commissioners considered the total delay in Butler's case, he said.
"Additionally, it is clear from the record that the circuit court or court commissioners failed to consider 'the possible prejudice' to Butler when deciding to continuously adjourn his initial appearance," Gill wrote. "For example, the court did not consider the potential prejudice to Butler from 'further evidence gathering by police while incarcerated and the possibility that the delay could compromise the defense or result in lost evidence.' "
The state erroneously argued that Butler "terminated" his first appointed lawyer, the panel said. That lawyer withdrew because she could not meet the speedy trial deadline and provide competent counsel. Butler did not invite the error, Gill said.
"To hold otherwise would require Butler to choose between two constitutional rights: the right to a speedy trial and the right to representation by counsel," he said.
The state also was wrong in its argument that any rights violations were harmless errors because Butler was on probation hold and then was bound over for trial, he wrote.
"We disagree that the violations in this case did not affect Butler’s substantial rights," he said. "The purpose behind conducting a timely initial appearance and a timely preliminary hearing would be frustrated if the state was allowed to simply argue that probable cause existed based upon a finding made months or years later – in this case, 342 days – without any protection to the accused beforehand."
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