 Inside the Milwaukee County Courthouse. Photograph by Gretchen Schuldt. By Heidi von Helms* and Margo Kirchner
Due to AmeriCorps funding cuts made by the Department of Government Efficiency, the Milwaukee County Courthouse navigator program is gone, and its absence is already affecting courthouse staff and visitors. A recent court victory by Wisconsin and other states challenging the cuts to AmeriCorps funding may not be enough to bring it back. For the past two years, courthouse navigators walked individuals to the department or courtroom they were looking for. The courthouse complex consists of three buildings, each with at least two entrances, and it is easy for members of the public to get lost and confused. With the navigators’ help, fewer people were wandering the halls and trying to figure out on their own what they needed to do and where to go, which made the lives of visitors and courthouse staff easier. When the program’s funding through AmeriCorps grants and volunteers terminated suddenly on April 25, the program was shut down. Now, the courthouse remains as convoluted as ever. A single staff member remains at the information desk on the ground floor, but that person cannot leave to escort people to offices or courtrooms and cannot guarantee that a visitor makes it to the right place. The AmeriCorps information desk and navigator program began in 2023 through the Milwaukee Justice Center (MJC) at the courthouse. MJC staff, who provide legal assistance at the courthouse, noticed they were answering many questions unrelated to the law or courtroom procedure—like where to find parking or which floor has the paternity testing center. MJC staff also found that after they helped people understand and complete legal forms, many of those helped never went through with filing the forms, possibly due to fatigue, confusion or frustration regarding different offices in the courthouse. Someone needed to answer the public’s questions, but the MJC’s desk was intended for legal help, so the MJC launched the navigator program with AmeriCorps grant funding and personnel. The program was a vital resource for the community. Mark Guzman, the former director of the AmeriCorps program at the courthouse, spoke with Wisconsin Justice Initiative before his position terminated at the end of May. He said his AmeriCorps staff members unexpectedly lost their jobs and volunteer stipends after the DOGE cuts. Many of the navigator program’s AmeriCorps volunteers were from out of state and had moved to Milwaukee to work at the courthouse. Wisconsin recently won a preliminary injunction in a multi-state case challenging the federal government’s AmeriCorps cuts. A federal judge on June 5 found that the government violated the Administrative Procedure Act by not providing notice and opportunity for comment before making the changes. The judge ordered the administration to immediately reinstate grant funding and AmeriCorps personnel, if they are able and willing to return. The injunction was "to restore the AmeriCorps-funded programs in the plaintiff states to the status quo before the grants were terminated and programs closed on April 25, 2025," she wrote. Federal government attorneys told the court in a June 10 status report that they had notified grant and project sponsors in the plaintiff states "to stop any closeout activities that may have been initiated (and) resume incurring costs on applicable grants." The injunction is a preliminary one; the case continues and an appeal may be filed. But even if the trial court's injunction stands and becomes permanent, lack of time and clarity on reversing course currently weigh against the navigator program’s reinstatement. Mary Ferwerda, chief deputy clerk for Milwaukee County Circuit Court, told WJI this week that “returning back to where we were is a practical issue with lots of questions, not the least of which is future funding and the risks inherent in moving forward without a legal process entirely complete.” Because AmeriCorps volunteers were “exited from service,” they may not be allowed to return to that same term of service, Ferwerda said. Right now it is unknown what the national AmeriCorps office may allow, she said. Further, the grant year was set to end Aug. 31, with the volunteers’ last day on Aug. 15. “This is not a lot of time for people to try to make up the currently seven weeks of hours they missed in order to qualify for their education award and does not consider the work required to bring back exited members, if allowed to do so.” Guzman’s layoff as of May 30 makes the prospect or reinstating the program even more difficult. Because the AmeriCorps participants were volunteers, not employees, former navigator staff members could not receive unemployment. AmeriCorps received $400 million of funding each year and had one of the best returns-on-investment for a government agency. It provided millions of Americans with disaster relief, economic opportunities, environmental services, and education. It helped hundreds of thousands of young people begin their careers in public service. Following the budget cuts, important programs all over the country were pared back or dissolved, including Milwaukee’s own courthouse navigators and help desk program. It is unclear whether the recent court win will bring them back to life. *Heidi von Helms in a summer intern at Wisconsin Justice Initiative.
0 Comments
Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized.  Karofsky The case: LeMieux v. Evers Majority: Justice Jill Karofsky (12 pages), joined by Justice Ann Walsh Bradley, Rebecca Dallet (except for five paragraphs), and Janet Protasiewicz Concurrence: Dallet (4 pages) Dissent: Justice Brian Hagedorn (20 pages), joined by Chief Justice Annete Ziegler and Justice Rebecca Grassl Bradley Upshot We uphold the 2023 partial vetoes, and in doing so we are acutely aware that a 400-year modification is both significant and attention-grabbing. However, our constitution does not limit the governor's partial veto power based on how much or how little the partial vetoes change policy, even when that change is considerable. As our precedent recognizes, the governor's constitutionally-vested, quasi-legislative role defeats "any separation of powers-type argument thta the governor cannot affirmatively legislate by the use of the partial veto power." Indeed, the governor's reliance on his partial veto authority to potentially increase taxes without legislative approval is neither new nor unique in our partial veto jurisprudence. Background The Wisconsin Constitution provides that every two years the legislature is to pass a biennial budget. This budget establishes the level of revenue to be derived from taxes and other sources, as well as authorized expenditures. The process begins with the governor presenting the legislature with an executive budget bill. The executive budget bill then proceeds through the legislature’s multi-step review and report process involving the joint committee on finance and legislative fiscal bureau. The legislature then submits its bill to the governor. Before signing the bill into law, the governor may partially veto parts of the bill. Subsequently, the legislature may vote to override the governor’s partial vetoes by a supermajority. This process was followed for the 2023–25 biennial budget. First, the governor presented his 2023–25 executive biennial budget bill, which included three educational revenue limit increases . . . . Next the legislature reviewed the governor’s proposed budget bill and made modifications. Senate Bill 70 provided for a $325 per pupil revenue limit increase for both 2023–24 and 2024–25, without a subsequent inflationary index. Then the governor exercised his partial veto power, deleting portions of 2023 Senate Bill 70. As related to this matter, the governor deleted entire words and some numbers . . . The result . . . authorized a $325 per pupil revenue limit increase from 2023–2425, extending the provision by 400 additional years. . . . The senate subsequently voted to override the partial vetoes, but the assembly declined to vote on the override. Consequently, the effort to override the governor’s vetoes failed. The law went into effect and this original action followed. Per Hagedorn, the plaintiffs are two taxpayers. Guts In challenging the 2023 partial vetoes, petitioners do not ask us to overrule our precedent. Petitioners agree that the partial vetoes at issue satisfy the principles we have applied in our previous cases. Instead, petitioners bring two novel challenges. First, they contend that the 2023 partial vetoes violate the state constitution because the governor did not veto the bill “in part” when he extended a duration of time, as 402 years is not part of two years. Second, petitioners maintain that the 2023 partial vetoes violate the constitution because that provision prohibits the governor from striking digits to create new numbers. *** Over the past 90 years, our precedent has established four principles that we have applied to “deletion vetoes,” the traditional partial veto in which the governor strikes text: Deletion veto principles 1. The governor’s deletion vetoes are constitutional as long as the remaining text of the bill constitutes a “complete, entire, and workable law.” 2. The governor may exercise deletion vetoes only on parts of bills containing appropriations within their four corners. 3. The governor’s deletion vetoes may not result in a law that is “totally new, unrelated or non-germane” to the original bill. 4. The governor may strike “words, letters, or numbers.” But “the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.” Nor may the governor “create a new sentence by combining parts of 2 or more sentences of the enrolled bill.” Separate from deletion vetoes, there is one scenario in which the governor may exercise “write-in” vetoes by striking certain text and then writing in different text: Write-in veto principle The governor may strike an appropriation amount and write in a smaller appropriation amount. *** Karofsky writes that Evers' partial veto at issue in this case complies with the four deletion veto principles. The following three paragraphs were not joined by Dallet. Having addressed all four deletion veto principles, we turn to petitioners' request to apply the . . . write-in veto principle here. Petitioners ask that we invalidate the 2023 partial vetoes because under a prior case, the 402-duration created by these partial vetoes is not "less than" and thus not "part" of the legislatively-approved two-year duration. Even though 402 years are clearly more than two, the prior case does not apply here. In a prior case we evaluated the unprecedented scenario in which the governor decreased an appropriation amount from $350,000 to $250,000 by deleting “350,000” and writing in “250,000.” We determined that this write-in partial veto was constitutional under the very narrow facts presented in that case. . . . We concluded that because the write-in veto was only to an appropriation amount, and $250,000 is less than $350,000, $250,000 was part of $350,000 for purposes of the constitution. *** Here, we are tasked with evaluating a change in years, not appropriation amounts, which plainly falls outside a prior case’s holding and analytical principles. Petitioners fail to reckon with that case’s explicit boundary and do not attempt to equate appropriations with durations. As significantly, petitioners do not ask that we overrule or revisit our precedent. Therefore, we do not extend the write-in veto principle to the 2023 partial vetoes. *** Joined again by Dallet. Turning to whether the governor impermissibly deleted digits, the plain meaning of “word” does not include numbers written out using digits, and the plain meaning of “letters” does not include digits. By way of example, all agree with petitioners that the number “ten” is a word written with letters. However, when we write the number “10” using digits, we have used no letters. Simply put, letters and digits are not interchangeable for purposes of the pertinent constitutional provision. This has not demonstrably changed since 1990 when this provision passed. *** The bottom line is that the partial vetoes were within the bounds of the constitution. But the legislature is not without recourse. It has multiple options at its disposal, including: Future budget bills: Unlike an appropriation amount typically spent during the biennium in which the funds were appropriated, the 2023 partial vetoes affect revenue limits 400 years into the future. Accordingly, the legislature may address those partial vetoes during the 2025–27 biennial budget process, or in a subsequent biennial budget. Constitutional amendment: The legislature has the power to introduce a constitutional amendment. In the past 35 years, the people of Wisconsin have twice amended the constitution to limit the governor’s partial veto power. . . . Legislative drafting: Legislators may draft bills separate from appropriation bills to avoid the governor’s partial veto. And, legislators may anticipate the governor’s use of her or his power when crafting appropriation bills.  Dallet Concurring I agree with the majority/lead opinion’s conclusion that the partial vetoes at issue in this case do not violate . . . the Wisconsin Constitution. I write separately, however, because I have a different understanding of Petitioners’ argument that those partial vetoes are unconstitutional . . . and why that argument should be rejected. Accordingly, I join all but five paragraphs of the majority opinion. The constitution authorizes the governor to approve appropriation bills “in whole or in part . . . .” Petitioners argue that the partial vetoes at issue here exceeded the governor’s authority . . . because he did not approve “part” of the original bill. They cite to two prior cases for the assertion that the ordinary meaning of “part,” at least when applied to numbers, is “something less than a whole.” They claim that applying that definition in this case requires us to determine whether, as a matter of “substance rather than form,” the governor’s partial vetoes approved “something less than [the] whole” of what the legislature passed. And because the substantive effect of those vetoes was to increase the two-year duration the legislature passed to a 402-year duration it never contemplated, the governor’s partial vetoes did not approve something less than the whole of what the legislature passed. Petitioners’ argument has some support in the reasoning of a prior case. Indeed, one reason we cited for upholding the veto at issue in that case—crossing out a $350,000 appropriation and writing in $250,000—was that the result of the veto was substantively “part” of what the legislature originally passed. As we said then, $250,000 is “part” of $350,000 because it is “something less than” $350,000. That case’s use of this reasoning, Petitioners contend, demonstrates that there is a threshold requirement, imposed on all partial vetoes by the constitution, that the result of the veto must be substantively “part” of the original bill. Petitioners’ substantive-part analysis should be rejected, however, because it cannot be squared with the rest of our cases interpreting the constitution, none of which Petitioners ask us to overturn. We have long held that the only test . . . for whether a veto approved “part” of a bill is simply whether the veto results in a complete and workable law. Thus while Petitioners argue that their substantive-part analysis is separate from, and in addition to, the “complete and workable law” requirement, our case law in fact holds that if the veto results in a “complete and workable law,” then the veto approved the original bill “in part.” But even more importantly, our cases have repeatedly emphasized that a partial veto may affirmatively change the policy of the original bill. As we said in a 1976 case, “the constitutional requisites . . . fully anticipate that the governor’s action may alter the policy as written in the bill sent to the governor by the legislature.” In other words, the governor may, through a partial veto, change the bill’s substance. To date, the only limitation we have placed on the governor’s ability change the substance of a bill via partial veto is that a partial veto may not “result in the creation of totally new, unrelated or non-germane provisions.” While this limitation does require the substance of the post-veto text to be related in some way to the substance of the pre- veto text, it does not require the post-veto substance to be “part” of the pre-veto substance. *** In sum, I reject Petitioners’ argument that the constitution requires the result of a partial veto to be substantively “part” of what the legislature originally passed because it is incompatible with our long- standing approach to the constitutionality of partial vetoes . . . . And perhaps for the same reasons, even the dissent does not adopt Petitioners’ position. Instead, the dissent argues that we should revisit all of our case law under these provisions of the constitution, at least since 1935. Although I am open to revisiting our . . . jurisprudence, this case is not a “clear opportunity” to do so. Petitioners do not ask us to overturn any of our prior decisions, let alone reimagine completely our approach . . . . Accordingly, because upholding the partial vetoes in this case is consistent with our precedent, I respectfully concur.  Hagedorn Dissent
How does a bill become a law? According to the majority, one option looks like this: The legislature passes a bill in both houses and sends it to the governor. The governor then takes the collection of letters, numbers, and punctuation marks he receives from the legislature, crosses out whatever he pleases, and—presto!—out comes a new law never considered or passed by the legislature at all. And there you have it—a governor who can propose and enact law all on his own. This fantastical state of affairs did not appear all at once. The people of Wisconsin gave the governor the power to partially veto appropriation bills 95 years ago. But as governors pushed the boundaries over the last half-century, this court largely responded by throwing up its hands. And now, what the constitution calls the power to “approve[] in whole or in part” has transformed into the monarchical authority of one person to create brand new laws from scratch. Instead of reading what the bills actually say, and construing the partial veto power accordingly, this court treats bills presented to the governor as simply a set of alphanumeric ingredients from which the governor can cook up whatever he pleases. One might scoff at the silliness of it all, but this is no laughing matter. The decision today cannot be justified under any reasonable reading of the Wisconsin Constitution; the majority does not suggest otherwise. Yet when presented with a clear opportunity in this case to reboot our mangled jurisprudence, the majority responds by blessing this constitutional monstrosity, all the while pretending its hands are tied. The cases the majority relies on make a mockery of our constitutional order. This is a mess of this court’s making, and it is long past time for us to fix it. *** Our founders were intentional about placing the legislative power in the hands of the legislature. They designed the Wisconsin legislature to be the institution most animated by, representative of, and responsive to the people. This representative design was meant to “unit[e] a disparate group of people into one society” by providing a collective “mechanism for bringing together, negotiating, and resolving the different interests.” Following the pattern of the federal constitution, the Wisconsin legislature is the institution “by which the body of the people can act; the only way in which their opinions can be known and collected; the only means by which their wills can be united, and their strength exerted.” In other words, by vesting the power to legislate in the legislature, the Wisconsin Constitution situates the power to make laws in “the collective wisdom of the people and their representatives.” *** The veto power is an aberration from and exception to the default constitutional structure. A veto gives the governor a powerful voice in whether a legislative proposal becomes law. This function is not naturally within the power to execute the law. Rather, it serves as a limit on the legislature’s vested power to make law. Alexander Hamilton similarly described the president’s veto in Federalist No. 73 as a “qualified negative” meant to check legislative power. The delegates to the Wisconsin Constitutional Convention of 1846 were clear that “the governor’s powers should be limited and the primary lawmaking power should reside with the legislature,” while acknowledging a narrow exception for the gubernatorial veto. In that way, the “veto is simply one of the instances in which our framers broke off a small piece of power that naturally belongs in one branch and put it in another.” But this quasi-legislative power to veto is still at root the power to influence legislation by subtraction, not addition. All laws—policy proposals that have been formed into legal commands and instructions in a bill—must come from the legislature. And while the governor may reject bills presented to him, he may not affirmatively design them on his own. This is Wisconsin’s constitutional design. *** Hagedorn then discusses how the supreme court strayed in prior caselaw. So how should the court handle the 402-year “veto”? By doing what the majority suggests, but never does: “’focus on the constitutional text, reading it reasonably, in context, and with a view of the provision’s place within the constitutional structure.’” Once we do so, it is clear that the Governor’s “veto” in this case is not a veto at all, but merely gubernatorial lawmaking that is repugnant to our constitutional structure. As we have explained, a “veto” is a power of negation. It allows the governor to do nothing more than to reject laws that the legislature has proposed. The fundamental nature of a veto does not change just because the governor can veto “part” rather than all of an appropriation bill. The partial veto simply means that the governor can now reject policy proposals contained within an appropriation bill instead of being forced to reject it in its entirety. As a power to “reject,” it may assuredly change aspects of the legislature’s collection of policy prescriptions; the legislature may get most of its proposals, but not all of them, enacted into law. But what the partial veto clause does not do is establish a second lawmaking branch of government. The governor has no constitutional power to create new proposals that did not originate with the legislature or go through the constitution’s lawmaking process. An appropriations bill is not merely “a potpourri of individual letters, an alphabet soup if you will,” as the majority assumes. It contains draft statutes reflecting specific policies that have been considered and voted on by the legislature. This is what the constitution commands with all laws. So when the governor rejects part of an appropriations bill, the policy proposals that remain after the governor exercises his partial veto must still have been created and approved by the legislature in the first instance. Once again, we cannot lose sight of the constitution’s structure. The legislative power is vested in the legislature. And the constitutional amendment giving the governor power to partially veto appropriation bills did not change this. Here, when the bill left the legislature’s hands, it permitted school districts to exceed their base tax revenue for two years, the 2023–24 and 2024–25 school years. By striking out numbers, words, commas, and some hyphens, the governor rewrote the bill to say that districts could increase their revenue by those amounts from 2023 through 2425. The legislature never proposed extending the increase through 2425. This simply was not a policy proposal considered and voted on by both houses of the legislature. This is not a policy that was presented to the governor for approval. And contra the majority, we are permitted to read the words in the bill and make sense of them, not just consider the bill an alphabet soup of options. Thus, after the governor exercised his “veto,” there was something in the bill that did not originate from the legislature, was never subject to lawmaking procedures, and was not presented to the governor. This is plainly unconstitutional. It is true that the petitioners here do not explicitly ask us to . . . formally roll back the missteps of our prior cases. But where the governor’s actions are so out of step with the constitutional order, and where we are asked to apply the constitution, “the principle of stare decisis should yield to a result consistent with the plain meaning of the words within the amendment.” Instead of treating the fractured legal framework with another quick fix of judicial epoxy, it is time to raze it to the ground. By Alexandria Staubach
Milwaukee Municipal Court continues to dodge its obligation to record hearings by proposing an insufficient new policy in response to a court order. Milwaukee County Circuit Judge David Borowski rejected the municipal court’s proffered new policy but clarified some of the municipal court’s responsibilities. Borowski held in December 2024 that the municipal court and its judges had consistently failed to comply with statutorily imposed recording requirements for hearings on motions to reopen as well as hearings addressing a defendant’s ability to pay. Such hearings must be recorded so an appellate court can review them. Borowski placed the municipal court under his supervision and ordered the municipal court to comply within 90 days. He reserved the right to hold hearings every three to six months to monitor compliance. Over the years, Milwaukee Municipal Court developed several different categories of hearings and limited recordings to only what it called “indigency hearings,” even though judges regularly took up a defendant’s ability to pay in other hearings as well. Borowski found in December that names of court proceedings are an invention of Milwaukee Municipal Court and the court could not avoid recording requirements through its naming system. He ordered the municipal court to “fully implement” policies and procedures to electronically record every hearing in which “(1) a decision is made as to a motion to reopen a case (regardless of whether said motion is made orally or in writing, regardless of the label or category assigned to said hearing, and regardless of the ultimate result of the hearing) and (2) a determination is made as to the defendant’s ability to pay a judgment due to poverty (regardless of the ultimate result of the hearing).” In March 2025, Milwaukee Municipal Court submitted to Borowski a plan that purported to bring it into compliance but failed to address key components of his December order. The policy Milwaukee Municipal Court submitted again only applied to “indigency hearings.” Further, it shifted the burden of recording from the municipal court to the court’s bailiffs and said the municipal court would no longer grant “motions to reopen based on pleadings alone but rather schedule a hearing,” as a result of Borowski’s decision. Milwaukee Municipal Court sought clarification from Borowski because it thought his December decision was “reasonably susceptible to more than one interpretation,” asking Borowski to point out the “specific circumstances requiring a hearing in open court” that would trigger the recording requirement. Last week, Borowski found that the proposed policy Milwaukee Municipal Court presented “lacks sufficient clarity to ensure compliance with the Court’s Decision and Order.” He directed the municipal court to develop a new policy that “must explicitly require electronic recording of ALL of the following”:
The new order forbids the municipal court from placing the obligation of recording on bailiffs. “Court staff may be responsible for turning on the recorder, but the policy and procedure must clarify that any recording must be made at the direction of the judge,” Borowski wrote. Milwaukee Municipal Court has 14 days to develop a new policy, Borowski said. Borowski noted that nothing in his December order requires Milwaukee Municipal Court to hold a hearing on a written motion or when a judge would otherwise dispose of a matter by written order. “Judge Borowski’s April 21, 2025 order is very clear guidance to any municipal court that is still unsure which hearings must be electronically recorded,” said Susan Lund, attorney for the plaintiff who brought the case challenging Milwaukee Municipal Court’s recording procedures. The SCOW docket: Arrest-record discrimination includes terminations based on municipal charges4/18/2025 Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The “upshot” and “background” sections do not count as part of the 10 paragraphs because of their summary and necessary nature. We’ve also removed citations from the opinion for ease of reading but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which are also italicized. Dallet The Case: Oconomowoc Area School District v. Gregory L. Cota Majority: Justice Rebecca Frank Dallet (15 pages), joined by Justices Ann Walsh Bradley, Brian Hagedorn, Jill Karofsky, and Janet Protasiewicz. Concurrence: Protasiewicz (6 pages) Dissent: Chief Justice Annette Kingsland Ziegler (3 pages) Dissent: Justice Rebecca Grassl Bradley (7 pages), joined by Ziegler Upshot This case raises two questions. First, does the Wisconsin Fair Employment Act’s definition of arrest record—specifically the phrase “any . . . other offense”—include non-criminal offenses, like municipal theft? Second, if so, did the Labor and Industry Review Commission (LIRC) correctly conclude that the Oconomowoc Area School District engaged in arrest-record discrimination when it terminated the Cotas? We answer “yes” to both questions and thus reverse the court of appeals’ contrary decision. Background Gregory and Jeffrey Cota were members of the District’s grounds crew and, as part of their duties, recycled scrap metal for the District. The Cotas, along with coworker Garret Loehrer, brought scrap metal to a local processor, which paid with cash or checks made out to “cash.” The person who received the money from the processor would give it to Gregory, who would then pass it along to his supervisor, Matt Newman. Between 2012 and 2014, the Cotas made multiple complaints about Loehrer’s work performance to supervisors. . . . On one such occasion, Jeffrey Cota asked a supervisor if Loehrer had turned in money from a recent scrap-metal delivery. The money had been turned in, but the supervisor reported the inquiry to Loehrer. In response, Loehrer accused the Cotas of retaining some of the District’s scrap money. Loehrer asserted that, approximately two years prior, he and the Cotas had delivered scrap metal to the processor but had kept the payment and split the money among themselves. The District’s Director of Human Resources, Pam Casey, began a formal investigation into the allegations. Casey interviewed employees and reviewed documents related to the scrap-metal transactions. She determined that $5,683.81 originally paid to Loehrer and the Cotas had not been received by the District. But conflicting accounts given by Loehrer, the Cotas, and other employees prevented Casey from determining who was responsible for the missing funds. . . . Accordingly, Casey recommended turning over the investigation to local police, explaining that “[e]mployment-related disciplinary decisions can be better made following the conclusion of any criminal investigation.” The District took no other investigatory action after turning the matter over to the police. The Town of Oconomowoc Police Department opened its own investigation into the missing funds. . . . Despite investigating for 11 months, however, the police did not discover any new information related to the Cotas. Even so, the Cotas were cited for municipal theft. The investigating detective explained in her report that she based the citations exclusively on Loehrer’s allegation that the Cotas had split scrap money with him on one occasion—the same allegation that had given rise to the District’s investigation. The detective’s report further stated that she was unable to prove any additional allegations against the Cotas. Approximately one year after the Cotas were cited for theft, the assistant city attorney informed the District that he believed he could obtain convictions and that he also believed the case could be settled. The Cotas did not agree to settle. The next day, the District terminated the Cotas’ employment. The District sent the Cotas termination letters, drafted by Casey, stating that the District had “learned” that the Cotas “were, in fact, guilty of theft of funds from the School District” and that they had lied about this during the District’s internal investigation. The municipal citations against the Cotas were ultimately dismissed. The Cotas never pleaded guilty to or were convicted of municipal theft. The Cotas filed claims of arrest-record discrimination with the Department of Workforce Development, Equal Rights Division (DWD). Following an evidentiary hearing, an administrative law judge found that the Cotas failed to establish that the District had unlawfully discriminated against them. The Cotas appealed to LIRC, which reversed, concluding that the District terminated the Cotas’ employment because of their arrest records in violation of the Act. The circuit court affirmed LIRC's decision, but the court of appeals disagreed and reversed. Guts An employer generally may not terminate an employee because of the employee’s arrest record. "Arrest record" is defined as including "information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority." To understand the parties’ arguments, we begin by explaining the distinction between criminal and non-criminal offenses. Under Wisconsin law, offenses punishable by fine, imprisonment, or both are crimes, while offenses punishable only by a forfeiture are non-criminal. Non-criminal offenses range from minor infractions, like failing to use a turn signal, to more serious violations, like a first operating-while-intoxicated (OWI) offense. Additionally, in Wisconsin, all crimes are classified as either felonies or misdemeanors. Some other jurisdictions, however, do not classify crimes in this way. The District argues that the phrase “any . . . other offense” in the arrest record definition refers only to criminal offenses under the laws of jurisdictions that do not classify crimes as either felonies or misdemeanors. Under this interpretation, the Cotas are not protected by the Act, since they were cited for a non-criminal offense. By contrast, the Cotas and LIRC assert that “any . . . other offense” includes both criminal offenses from jurisdictions that do not classify crimes as either felonies or misdemeanors and non-criminal offenses under Wisconsin law. We agree with the Cotas and LIRC. The ordinary meaning of the phrase “any . . . other offense” includes violations of both criminal and non-criminal laws. Indeed, this is how the term “offense” is consistently used throughout our statutes, and nothing in the structure or remaining text of the statute at issue suggests a narrower meaning. Furthermore, interpreting “any . . . other offense” to include non-criminal offenses serves the Act’s express statutory purpose of “protect[ing] by law the rights of all individuals to obtain gainful employment and to enjoy privileges free from employment discrimination because of . . . arrest record. . . .” Finally, the exceptions to the Act’s general prohibition against arrest-record discrimination provide additional support for our interpretation. *** The District focuses narrowly on the exceptions applicable only to criminal charges, arguing that we should infer from them that the general prohibition on arrest-record discrimination similarly applies only to criminal offenses. But we must read statutes in context, “not in isolation but as part of a whole. . . .” Taken together, these exceptions demonstrate that “any . . . other offense” includes both criminal and non-criminal offenses. . . . *** Because we hold that “any . . . other offense” in the statute at issue includes non-criminal offenses, we turn to the second issue before us: whether LIRC correctly concluded that the District terminated the Cotas because of their arrest records, in violation of the Act. The answer to this question turns on the District’s motivation for terminating the Cotas, which is an issue of fact. *** Substantial evidence supports LIRC’s conclusion that the District was not motivated to act by its internal investigation, despite Casey’s testimony before DWD that she formed a personal belief in the Cotas’ guilt during the investigation. Indeed, Casey’s report summarizing the results of the investigation stated that the District was not able to determine who was responsible due to conflicting allegations, and Casey testified before DWD that those same conflicting allegations prevented her from making final employment decisions at the close of the investigation. When referring the matter to the police for further investigation, the District’s attorney told the investigator that the District could not conclude who was responsible, and Casey testified before DWD that this was a true statement. Finally, Casey also testified that while she was suspicious of the Cotas during the internal investigation, she was not suspicious enough to fire them. Substantial evidence likewise supports LIRC’s conclusion that the District’s decision to terminate the Cotas was motivated by arrest-record information. Before DWD, Casey testified that three new pieces of information came to her attention between the close of her internal investigation—when she was not ready to fire the Cotas—and her decision to fire them nearly two years later. That new information included: (1) that the Cotas were cited for municipal theft, (2) that the assistant city attorney told Casey he believed he could convict the Cotas and (3) that the assistant city attorney told Casey he anticipated reaching a settlement with the Cotas that included restitution. And Casey admitted that these three pieces of information caused her to terminate the Cotas. All three are components of the Cotas’ arrest records. Accordingly, substantial evidence supports LIRC’s conclusion that the District was motivated by arrest-record information when it terminated the Cotas. The District nevertheless argues that it is protected by a legal defense recognized in a prior case because its decision to terminate the Cotas was motivated at least in part by Casey’s belief in the Cotas’ guilt formed during the internal investigation. According to the District, caselaw permits employers to terminate employees because of their arrest records as long as the employer also concludes from an internal investigation that the employee engaged in unacceptable conduct. In other words, the District argues that as long as it did not terminate the Cotas exclusively because of their arrest records, it did not violate the Act. We reject this argument for two reasons. First, the District mischaracterizes the holding of the cited case, in which an employer effectively discharged an employee after the employee admitted, in response to a question posed by the employer, that he had committed an offense. . . . The case holds simply that an employer who does not rely on arrest-record information when making a discharge decision does not discriminate against an employee because of their arrest record. Second, the case does not apply because LIRC found that the District did rely on arrest-record information when making its discharge decision, and we must accept this finding because it is supported by substantial evidence. This remains true even though the District argues that Casey’s testimony about her personal belief in the Cotas’ guilt supports a different conclusion about the District’s motive. LIRC weighed the evidence relevant to the District’s motive and found that the District was motivated by the Cotas’ arrest records. This finding is supported by substantial evidence, and therefore must be accepted.  Protasiewicz Concurrence In today’s decision, the court follows the law where it leads, but we arrive at a strange result. I write separately to call attention to the oddity of this outcome and to recommend that our statutes better accommodate employers who are victims. I agree with the majority that the statute at issue includes non-criminal offenses and that LIRC correctly concluded the District fired the Cotas because of their arrest records. But as a result of today’s decision, the District may not fire employees who it suspects stole from the District. That is no way to treat the victim of an offense. In the Wisconsin Fair Employment Act (“the Act”), the legislature balances a couple of interests. Surely, the legislature seeks to protect employees. To that end, the Act prevents “employment discrimination because of” arrest record or conviction record, among other things. But the legislature also protects employers’ interests in some instances. The legislature created exceptions that allow employers to sometimes take employment action in the context of an employee’s arrest record or conviction. For example, an employer may suspend an employee when the employee is subject to a “pending criminal charge” if “the circumstances of the charge substantially relate to the circumstances of the particular job.” In another example, an employer may fire an employee who “has been convicted” of an offense under “circumstances . . . which substantially relate to the circumstances of the particular job.” This case calls for another exception to protect employers when an employer is a victim. Here, the District was a victim, which makes this case different than many cases of arrest record discrimination. *** . . . We are left with a strange result. The District was the victim of an offense and suspected its employees did it. It could have fired the employees, but instead asked law enforcement to investigate. Because law enforcement investigated, the employees had an arrest record which limited the District’s ability to fire the employees. In the end, under today’s decision, the District may not fire the employees that it believes stole from the District. Our statutes should not hamstring employers who are victims that way. An employer should be allowed to take employment action when it is the victim of an offense and suspects an employee did it, even when it relies on information from law enforcement. Nevertheless, I must follow the law as it stands, and I agree with the majority. The text of the statute at issue includes non-criminal offenses, and LIRC correctly concluded that the District fired the Cotas because of their arrest records. But this case highlights how our statutory scheme breaks down when an employer is the victim of an offense and seeks law enforcement intervention. I urge the legislature to address this unjust situation.  Ziegler Ziegler dissent The court’s decision sends a message to employers across the state: If the employer believes one of its employees may have committed a crime—say, stealing from that employer—based upon its own internal investigation, it should quickly fire the employee rather than have its suspicions confirmed by a full investigation by law enforcement. The court’s decision forecloses an employer from firing such an employee even when the employer’s suspicions about the employee’s conduct are confirmed by law enforcement’s investigation. Maybe this case is an example of the “old adage” that “bad facts make bad law,” but the upshot of the court’s decision is directly at odds with the legislatively enacted purpose of the statutes at issue. These statutes were enacted to protect employees from unwarranted termination. But today’s opinion will ensure the opposite: Employers can no longer give their employees the benefit of the doubt, allowing law enforcement to confirm their suspicions, because that could mean the employer will risk liability under the law. Accordingly, I dissent. The Wisconsin Fair Employment Act (the Act) bars employers from engaging in certain forms of employment discrimination. With some exceptions, an employer may not “discriminat[e]” against an individual “on the basis of . . . arrest record[s].” The statute provides that discrimination includes “terminat[ing] from employment . . . any individual . . . because of” an individual’s arrest record. In turn, “arrest record” is statutorily defined as including, but not being limited to, “information indicating that an individual has been questioned, apprehended, taken into custody or detention, held for investigation, arrested, charged with, indicted or tried for any felony, misdemeanor or other offense pursuant to any law enforcement or military authority.” *** The legislature affirmatively and expressly declared the purpose and policy of the Act; it is to protect employees from termination under a variety of circumstances, including when an employer wishes to terminate an employee because that employee has an arrest record. . . . The court’s decision contravenes the legislatively stated purpose of the Act. Here, had the employer not given the employees the benefit of the doubt and asked law enforcement to investigate that which the employer had already determined, and instead fired the employees before law enforcement determined the employees should be charged, the employer would not be liable. If the employer fired the employees earlier, no liability would have attached because no arrest records would have existed. Simply stated, waiting to have law enforcement confirm the employer’s suspicions meant that the employer was liable. So, instead of protecting the employment of employees, the Act, as the court interprets and applies it, promotes the premature firing of employees suspected of committing offenses. Stated otherwise, the court renders the Act self-defeating in factual situations like these. *** The wrongful deference the majority gives to LIRC’s factual findings in this case demonstrates the unlikelihood that courts will reverse a finding by LIRC that an employer terminated an employee because of the employee’s arrest record. Here, the facts demonstrate that the employees were terminated because they stole from the employer, not because they had arrest records. But the majority upholds LIRC’s erroneous finding all the same. While the court might be technically correct that merely having an arrest record is insufficient to trigger liability under the Act, under circumstances presented in a case like this one, the mere existence of an arrest record seems to be sufficient for LIRC to find an employer liable. Employers will act accordingly and fire their employees after an internal investigation, even if the investigation is inconclusive, before law enforcement gets involved. Employers cannot risk the possibility that LIRC will make the inference—which after today’s opinion will be all too easy to make—that the employer fired its employee because of the employee’s arrest record, not the employer’s prior internal investigation. No doubt, the court’s decision is a victory for Gregory and Jeffrey Cota. But the decision may ultimately prove to be a defeat for employees across Wisconsin. The stated purpose of the Act is to protect employees from unwarranted termination. Here, the employees were terminated because they stole from their employer. Yet, according to the majority, the employer’s hands were tied when it came to terminating them. Had the employer terminated the two employees sooner, there would be no arrest records and the employer would face no liability. The outcome of this case turns the stated purpose of the Act upside down— pushing employers to terminate employees as quickly as possible to avoid the risk of liability under the Act. The legislature did not intend the statute to operate in this manner.  Grassl Bradley Grassl Bradley dissent
The majority mistakes a conclusion of law for a finding of fact. Whether an employer unlawfully terminated an employee based on his arrest record is a conclusion of law, as LIRC’s Order properly denominated it. . . . Whether the facts found by an agency “fulfill a particular legal standard is a question of law, not a question of fact.” By misapprehending a question of law for one of fact, the majority sidesteps its responsibility to declare the law and effectively endorses LIRC’s misinterpretation of the governing statute to shield employees from any adverse employment consequences for their malfeasance. Even if the issue of whether the District fired the Cotas based on their arrest records presented a factual question, no reasonable person would conclude the District fired the Cotas for any reason other than the fact the Cotas stole from their employer. It is preposterous to suggest the District fired the Cotas based on their status as persons with arrest records. Nothing in the law compels this court to reward the offenders and punish the victim. Only the majority’s tacit approval of LIRC’s crabbed reading of statutory law produces this farce. The Wisconsin Fair Employment Act (“the Act”) prohibits employers from discriminating against individuals “on the basis of” their “arrest record,” among other bases such as race or sex. Termination of employment constitutes a discriminatory action the law prohibits if taken “on the basis of” an arrest record. LIRC concluded the District terminated the Cotas on the basis of their arrest records because the District waited to fire them until law enforcement created arrest records validating the District’s conclusions. This hyper-literal construction of the Act contradicts the statute’s textually manifest purpose and assigns the law an unsound meaning. *** Even under the majority’s misguided framework of examining the record for substantial evidence supporting LIRC’s decision, there is no evidence the District unlawfully discriminated against the Cotas. No evidence, much less substantial evidence, suggests the District fired the Cotas “solely because of” their arrest records. Nothing in the record suggests the District fired the Cotas because of the “particular class to which” the Cotas belong: individuals with arrest records. Everything in the record points to the District firing the Cotas for the obvious reason that the Cotas stole from the District. *** In this case, the arrest records came about only after Casey believed the Cotas stole from the District and then referred the matter to law enforcement. After completing her investigation, Casey concluded “there can be no question that some employment action (and perhaps criminal action) is necessary here, in view of the evidence that this investigation has produced.” Only then did the District refer the matter to law enforcement. Casey later testified “the independent police investigation . . . resulting in the issuance of the municipal theft citations, further corroborated in my mind the fact that these individuals were not forthright and had lied during our investigation and had taken proceeds from the sale of scrap metal.” The record confirms the Cotas’ arrest records merely corroborated conclusions the employer had already drawn. *** Nothing in the Act compels LIRC to penalize an employer for waiting to terminate an employee until law enforcement corroborates the employer’s conclusion that an employee stole from the employer. The Act prohibits an employer from terminating an employee “on the basis of” his arrest record, but an employer can certainly terminate an employee because he stole from the employer. The court of appeals confirmed that interpretation in a prior case and LIRC has applied it repeatedly. In this case, LIRC adopted a new, narrow, and strict construction of the Act, ignored its context and textually expressed purpose, and rejected decades of cases interpreting the law correctly. The majority refuses to apply the obvious meaning of “on the basis of” and instead improperly defers to LIRC’s legal conclusion, mischaracterizing it as an issue of fact. While the court may be bound by LIRC’s findings of fact, it is supposed to independently interpret the law. Although the court could correct LIRC’s error of law and apply the Act’s actual meaning to the facts as found by LIRC—the most efficient disposition of this litigation—at a minimum the court should remand the matter to LIRC to decide the case under the correct interpretation of the law. Instead, the majority carelessly embraces LIRC’s misunderstanding of a statute that prohibits categorical discrimination against individuals merely because they have an arrest record. Nothing in the text of the law protects employees accused of committing crimes against their employers. The majority’s improper deference to LIRC’s misinterpretation of the Act will perversely incentivize employers to fire employees without investigating accusations or suspicions against them, lest law enforcement’s later involvement trigger the indemnity the majority confers on employees suspected of misconduct. Nothing in the law necessitates this ludicrous situation, which is of the majority’s own making. I dissent.
By Margo Kirchner Twelve judges will change assignments in Milwaukee County Circuit Court effective Aug. 1, 2025. Chief Judge Carl Ashley announced new assignments on March 31. Because of the court’s size, its 47 judges are separated into divisions to handle one type of case. Divisions include criminal felony, criminal misdemeanor, children, family, and civil, with specialties within some of the divisions. The court’s guidelines about rotations indicate that judicial rotations are based on a judge’s length of service in the present division and various judges’ requests, among other things. Judges who have served more than six years normally spend about four years in a division. Newer judges normally serve two to three years in a division and then are moved so they experience more areas of law. Assignments to small claims court are generally just one year unless the judge volunteers to remain. However, the chief judge makes the final assignment decisions based on the needs of the court as a whole and considerations such as a judge’s seniority, background, and expertise, plus stakeholder feedback. Assignments to problem-solving courts, such as drug-treatment court, take into account a judge’s additional specialized knowledge and training. Problem-solving courts include collaborative work and use of various interventions to treat defendants while still holding them accountable. Here are the announced 2025 rotations:  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.  Gundrum 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. 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.  Geenen 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.  White 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. |
Donate
Help WJI advocate for justice in Wisconsin
|
RSS Feed