 Entrance to the Wisconsin Senate in the Wisconsin State Capitol. Photograph by Margo Kirchner. By Alexandria Staubach The Wisconsin Senate recently voted along party lines to codify several types of specialty courts, including a controversial business court. The bill, having previously passed in the Assembly along party lines, now heads to Gov. Tony Evers for signature or veto. Treatment courts, such as drug courts and mental health courts, have long held bipartisan support. The creation of special civil courts to deal with large business and commercial case has been more controversial. Passage of the bill puts the Legislature’s stamp of approval on them. At the bill’s May 15 reading in the full Senate, Sen. Kelda Roys (D-Madison), criticized the bill as creating a “rocket docket for guys like Elon Musk,” without providing funding for any of the specialty courts, especially the treatment courts. “We don’t need a system where the powerful, the wealthy, the best connected among us get to have their own court system, their own handpicked judges, and then the rest of us can sit around and wait for our day in court to resolve really important critical matters,” said Roys. To date, specialty courts have generally been created by the courts themselves. For instance, Milwaukee County Circuit Court last summer started a specialty court for cases in which a defendant’s competency is at issue. Specific judges have been assigned to a specific type of case, sometimes with training in that legal area. AB 73 would recognize in statute the following specialty courts: adult drug treatment court, juvenile drug treatment court, operating-while-intoxicated treatment court, mental health treatment court, family dependency treatment court, veterans’ treatment court, hybrid treatment court, and tribal healing-to-wellness court. Treatment courts have long been used throughout the state. The bill also statutorily recognizes a specialized docket for commercial cases, the subject of Roys’ concern. A special court for business interests is relatively newer and will not immediately affect every county in Wisconsin. We don’t need a system where the powerful, the wealthy, the best connected among us get to have their own court system, their own handpicked judges, and then the rest of us can sit around and wait for our day in court to resolve really important critical matters. Wisconsin Sen. Kelda Roys (D-Madison) Wisconsin’s commercial courts were born out of a 2017 Supreme Court rule that characterized the specialty docket as a “pilot project.” That pilot project lasted more than seven years in only certain trial courts in the state.
Last year, the Supreme Court evaluated the pilot project and declined to extend it for another two years. The court divided along ideological lines. Referencing the same courts that were part of the pilot project, the bill provides procedures for establishing commercial courts in the following judicial districts and their corresponding counties: the second district (Kenosha, Racine, Walworth), the third district (Dodge, Jefferson, Ozaukee, Washington, Waukesha), the fifth district (Columbia, Dane, Green, Lafayette, Rock, Sauk), the eighth district (Brown, Door, Kewaunee, Marinette, Oconto, Outagamie, Waupaca), and the tenth district (Ashland, Barron, Bayfield, Burnett, Chippewa, Douglas, Dunn, Eau Claire, Iron, Polk, Rusk, St. Croix, Sawyer, Washburn). Judges would be assigned to those counties with prior or existing commercial courts by the chief justice of the Supreme Court, “after considering the recommendation of the chief judge of the encompassing judicial administrative district,” according to the bill. The bill can be retroactively applied to any county that chooses to develop a commercial court. The first district, composed solely of Milwaukee County Circuit Court, which is the busiest judicial district, was not part of the pilot program and does not currently have a commercial court. Roys at the May 15 floor session strongly supported recognition of treatment and diversion courts, saying that they were “win-win.” She suggested that the Legislature dedicate state funds to run them. “Without an appropriation, without money, programs can’t run,” she said. Recognition and funding of the treatment courts is “one step that we can take to address the shameful fact that Wisconsin incarcerates two to three times more people than our neighboring state of Minnesota, and I refuse to believe that Wisconsinites are two to three times worse than Minnesotans,” Roys said. But she proposed that the Legislature delete the provision recognizing business courts. The commercial courts do “nothing to help everyday Wisconsinites,” she said. Sen. André Jacque (R-New Franken) disagreed with Roys, saying the bill “was not about creating a rocket docket for anything” and that “these are all specialty courts that have been in operation in Wisconsin, and very successfully I might add.” Jacque sponsored the bill in the Senate, along with Sen. Van Wanggaard (R-Racine), Sen. Dan Feyen (R-Fond du Lac), and Sen. Steve Nass (R-Whitewater). In written testimony filed with the bill, Jacque said the commercial courts would “aid the effective resolution of commercial disputes and help provide more certainty for our economy.” Before declining to extend the pilot project last year, the Supreme Court held a public hearing in September 2024 at which those involved in commercial litigation overwhelmingly supported continuing the business court. Retired Judge Richard G. Ness was a rare voice against the project. Ness said at the September hearing that the program is the “creation of a solution for a problem that doesn’t exist.” He said that in his 13 years on the bench, he never encountered an inability to effectively deal with civil business cases. Justice Rebecca Grassl Bradley asked how business court differed from juvenile court, sexual assault court, probate court, criminal courts, and other civil courts. She told Ness that he was holding the commercial courts to a “very different standard” than the other specialty courts. Ness, who testified that he also spent 26 years representing big business, previously said in an op-ed for Wisconsin Watch that the project “has granted large commercial interests outsized influence over our court system’s handling of their cases, exactly as intended.”
0 Comments
The Assembly (left) and Senate (right) chambers at the Wisconsin State Capitol. Photographs by Margo Kirchner. By Alexandria Staubach
With three months of the legislative session in the rearview mirror, several bills concerning the criminal justice system have moved through committees and to a vote in either the Senate or Assembly. The rough progression of a successful bill is: introduction → referral to committee → passage by committee → vote by full chamber → transfer to the other chamber to go through the prior three steps there, too → to the governor for signature. Fora refresher on the life cycle of a bill, see here. The bills below are those that WJI is actively tracking and which have made noteworthy progress, not including the bill that would require the Department of Corrections to recommend revocation for individuals charged with new offenses. WJI recently covered that legislation in more depth, here. All summaries are quotations taken directly from the analysis by the Legislative Reference Bureau. Titles and the status description are in WJI's words. A * before the bill number means the bill is substantially similar to one introduced in a previous session that failed to pass or the governor vetoed. “AB” means Assembly Bill, while “SB” means Senate Bill. AB26/SB5 Battery to juror or witness to trial Summary: Under current law, the crime of battery is defined as intentionally causing another person bodily harm and is a Class A misdemeanor. Under current law, if the battery is a special circumstance battery—for example, the battery is committed against an individual because of the individual's status as a law enforcement officer, witness in a trial, or juror—the penalty is increased to a Class H felony. Under this bill, a threat or battery against a juror or a threat or battery against a family member of a juror is a Class H felony. Status: Passed in the Senate (28 yes, 4 no); referred to committee in the Assembly, where public hearing took place April 9. *AB29/SB6 Impoundment of vehicles used in certain traffic offenses Summary: Under this bill, in addition to the penalties available under current law for the following offenses, the vehicle used in the offense may be immediately impounded and remain impounded for 90 days or, for a violation occurring on a highway under the jurisdiction of a political subdivision, a shorter period established by the political subdivision: 1. Operating a vehicle without a license, with certain exceptions, or with a revoked operating privilege. 2. Speeding at a rate higher than 25 miles per hour above the speed limit. 3. Fleeing from a law enforcement officer. 4. Racing on a highway. Status: Neither the Assembly nor Senate has put the bill to a vote, but the bill has made its way through the committee process in both chambers and is eligible for a vote in either. *AB34/SB25 Court-issued criminal prosecutions Summary: Under current law, a district attorney has the discretion as to whether or not to issue a complaint to charge a person with a crime. Current law also provides that, if a district attorney refuses to issue a complaint against a person, a judge may conduct a hearing to determine if there is probable cause to believe that the person committed a crime and, if so, issue a complaint. Under this bill, when there is an officer-involved death, which is a death that results directly from an action or an omission of a law enforcement officer, and the district attorney determined there was no basis to prosecute the officer, a court may not issue a complaint against the involved officer unless there is new or unused evidence presented. Status: Passed in the Senate (19 yes, 13 no); referred to committee in the Assembly. *AB4/SB30 Mandatory civics education Summary: Beginning in the 2027-28 school year, this bill requires school boards, independent charter schools, and private schools participating in a parental choice program to include in their respective curricula instruction in civics that includes specific topics and pupil development goals. Status: Passed in the Assembly (52 yes, 46 no); referred to committee in the Senate. AB24/SB57 Sheriff assistance with immigration activity Summary: This bill requires sheriffs to request proof of legal presence status from individuals held in a county jail for an offense punishable as a felony. The bill also requires sheriffs to comply with detainers and administrative warrants received from the federal department of homeland security regarding individuals held in the county jail for a criminal offense. Under the bill, sheriffs must annually certify to the Department of Revenue that they have complied with each of these requirements. If a sheriff fails to provide such a certification, DOR must reduce the county’s shared revenue payments for the next year by 15 percent. The bill also requires sheriffs to maintain a record of the number of individuals from whom proof of legal presence is requested who are verified as unlawfully present in this state and a list of the types of crimes for which those individuals were confined in the jail. The information must be provided to the Department of Justice upon request, and DOJ must compile the information and submit a report to the legislature. Status: Passed in the Assembly (51 yes, 43 no); referred to committee in the Senate. AB78/SB65 Impoundment of vehicles used in certain reckless driving offenses Summary: Under current law, a political subdivision may enact an ordinance authorizing law enforcement officers to impound vehicles used in reckless driving offenses if the person cited for reckless driving is the owner of the vehicle and the person has a prior reckless driving conviction for which a forfeiture was imposed that has not been fully paid. Under this bill, such an ordinance may authorize the impoundment of any vehicle used in a reckless driving offense regardless of ownership of the vehicle or prior record of the operator. The bill also provides that a local ordinance may authorize impounding such a vehicle until outstanding fines and forfeitures owed by the vehicle’s owner are fully paid. Also under the bill, upon impounding a vehicle under such an ordinance, the law enforcement officer must attempt to determine if the vehicle has been reported as stolen, and if so, the officer or the impounding political subdivision must attempt to contact the owner. If the vehicle is reported as stolen, the vehicle must be released to the owner without the payment of a fee or charge. Status: Passed in the Assembly, vote count unavailable; referred to committee in Senate. AB73/SB80 Statutory recognition of specialized dockets for treatment courts and commercial litigation Summary: The bill recognizes in statute treatment courts, which are defined in the bill to include adult drug treatment court, juvenile drug treatment court, operating while intoxicated treatment court, mental health treatment court, family dependency treatment court, veterans treatment court, hybrid treatment court, and tribal healing to wellness court. The bill also statutorily recognizes a specialized docket for commercial cases (which portion of the bill was introduced last session as well). Status: The bill has been referred to committee in both chambers; the committees in both the Assembly and Senate have held public hearings. *AB66/SB76 Prohibition on dismissing or amending certain criminal charges and deferred prosecution agreements Summary: Under this bill, a prosecutor must get the court’s approval to dismiss or amend a charge if the charge is for any of the following: 1) a crime of domestic abuse or a violation of a domestic violence temporary restraining order or injunction; 2) theft of an automobile; 3) a crime of abuse of an individual at risk or a violation of an individual-at-risk TRO or injunction; 4) first-degree, second-degree, or third-degree sexual assault; 5) a crime against a child; 6) illegal possession of a firearm if the person has been convicted of, adjudicated delinquent for, or found not guilty by reason of mental disease or defect of, committing, soliciting, conspiring, or attempting to commit a violent felony, as defined under current law; or 7) reckless driving that results in great bodily harm. The court may approve the dismissal or amendment of such a charge only if the court finds the action is consistent with the public’s interest in deterring the commission of these crimes and with the legislature’s intent, expressed in this bill, to vigorously prosecute individuals who commit these crimes. If the court approves any dismissal or amendment in a year, the court must submit an annual report to the legislature detailing each approval. Status: Passed in the Assembly (53 yes, 44 no); referred to committee in the Senate. A similar bill was passed by the Legislature last session and vetoed by Gov. Tony Evers. AB65/SB77 Entering certain places with intent to commit battery Summary: Under current law, it is a Class F felony to enter a dwelling or certain other places with intent to steal or commit a felony therein. Under this bill, it is also a Class F felony to enter one of those places with intent to commit battery that is misdemeanor battery rather than felony battery. Under current law, the penalty for a Class F felony is a fine not to exceed $25,000 or imprisonment not to exceed 12 years and six months, or both. Under this bill, it is also a Class F felony, or a Class E felony if certain additional circumstances apply, to intentionally enter a dwelling or certain other places without consent with intent to commit any battery. Status: The bill has been referred to committee in both chambers; the committees in both the Assembly and Senate have held public hearings. *AB87/SB95 Requiring payment of restitution for restoration of the vote Summary: Under current law, a person convicted of treason, felony, or bribery may not vote unless the person’s right to vote is restored through a pardon or through completion of the term of imprisonment, including parole or extended supervision, or probation for the crime that led to the disqualification. Under the bill, in addition to completing his or her term of imprisonment or probation for the crime, a person must have paid all fines, costs, fees, surcharges, and restitution, and have completed any court-ordered community service, imposed in connection with the crime. Additionally, under this bill, if the defendant is sentenced or placed on probation for human trafficking, the court must require restitution be paid immediately and, if the defendant fails to pay immediately, the court must issue an execution against the defendant’s property. Status: Passed in the Assembly (53 yes, 43 no); the Senate committee recently held a public hearing. AB75/SB115 Collection and reporting of certain criminal case data Summary: This bill requires state DOJ to collect from the director of state courts all of the following information for each criminal case: 1) the county in which the case was filed; 2) the name of the prosecuting attorney assigned to the case; 3) the name of the court official assigned to the case; 4) the criminal charge filed; 5) the charging recommendation from the referring law enforcement agency, if applicable; 6) for each case, whether the court released the defendant without bail, upon the execution of an unsecured appearance bond, upon the execution of an appearance bond with sufficient solvent sureties, or upon the deposit of cash in lieu of sureties, or denied release, and the name of the court official who made the decision; 7) for each case for which a court required the execution of an appearance bond with sufficient solvent sureties, the monetary amount of the bond and the name of the court official who made the decision; 8) for each case for which a court required the deposit of cash in lieu of sureties, the monetary amount of cash required and the name of the court official who made the decision; 9) any other conditions of release imposed on the defendant and the name of the court official who made the decision; 10) whether any plea bargain was offered in the case; 11) whether a deferred prosecution agreement was offered in the case; 12) whether any charge relating to the case was dismissed; and 13) whether the case resulted in a conviction Status: Passed in the Assembly (53 yes, 43 no); the Senate committee held a public hearing.
Mosaics with symbols of legislation, justice, and government from the interior of the Capitol dome in Madison, Wisconsin. Photographs by Margo Kirchner By Alexandria Staubach
The Assembly’s Committee on the Judiciary held a public hearing this week on five bills, all of which seek to make the criminal legal system more punitive. In a perplexing move, legislators again introduced a bill that limits prosecutorial discretion in dismissing and amending charges for certain offenses and offering deferred prosecutions for a list of crimes. The new bill is AB-66. A similar bill made its way through the Legislature late last session but Gov. Tony Evers vetoed it. Multiple law enforcement association representatives appeared at Tuesday’s hearing to testify in favor of the bill. Considerable frustration was directed at dismissals, specifically in Milwaukee. Alexander Ayala, president of Milwaukee’s police association union said, “if it’s not put nicely, in a nice case, with all the evidence and everything, they just get dismissed,” regarding cases that include charges for felon in possession of a weapon. The charge is used as a “bargaining chip,” said Ayala, who shared concerns about rearresting the same individuals on multiple occasions. “If a case isn’t gift wrapped and perfectly presented, some people aren’t willing to put in a little extra effort,” said James Olson, testifying in support of the measure for the Wisconsin Chiefs of Police Association. When asked why he thought so many gun cases were being dismissed, Olson first said he wouldn’t speculate, but then said he has heard “prosecutorial discretion or everybody deserves another chance.” The proposed new law would not be limited to cases involving possession of a weapon after felony conviction. Even misdemeanor acts of domestic abuse and violations of temporary restraining orders would be implicated. Including those misdemeanor cases in the bill causes concern for Christian Gossett, a 23-year veteran prosecutor in Winnebago County. Gossett testified that domestic violence victims often recant their testimony. He worried that having to tell a judge and the defense all the problems with their case in open court, as the proposed new law would require, would not help anyone. “If you’re coaching a football team and you had to go tell the coach on the other team what you’re going to do, you will lose all the time,” said Gossett. “This is not manageable for prosecutors.” He highlighted the diversion work being done in his office’s domestic violence unit, which he said has a recidivism rate of just 3.9% at three years postconviction. By contrast he said traditionally 60-65% of individuals convicted of a domestic violence crime who go through the system will reoffend in 5 years. Gossett was the only person to testify in person against the bill. ACLU of Wisconsin’s executive director of advocacy, Amanda Merkwae, submitted written testimony opposing the bill. “There are a multitude of reasons why a charge may be dismissed or amended by a prosecutor, including the innocence of an individual charged with a crime, insufficient evidence for a charge to stand, or constitutional concerns with police action,” wrote Merkwae. She cautioned that “AB-66 will exacerbate the downstream social and economic harms of overcriminalization to individuals, families, and communities.” The committee also heard testimony on AB-85 at Tuesday’s hearing. That bill would require the Department of Corrections to recommend revoking a person’s probation, parole, or extended supervision for merely being charged with (not convicted of) a new crime. Revocations already make up the majority of new incarcerations in Wisconsin. In 2024, 60% of new prison admissions were for revocation, according to records published by the DOC. There were more than 8,000 revocation incarcerations in 2024 alone. Under the current scheme, an administrative law judge decides whether an individual charged with a new offense gets revoked following charges for a new offense, but revocation must first be recommended by the DOC. “It may come as a surprise, but a convicted criminal on community supervision is not immediately revoked if they’re charged with another crime,” said Rep. Brent Jacobson (R-Mosinee), the lead sponsor of both bills. In his testimony to the committee, Jacobson said 6,280 individuals who were charged with new offenses were not revoked in 2019. Without defining the cost, Jacobson argued that the price of this recidivism is high if we consider case load costs across law enforcement and the resources of the courts. However, Jacobson failed to recognize that the average cost to incarcerate an individual now exceeds $65,000 at Waupun Correctional Institution (a maximum-security facility) and $46,000 at Fox Lake Correctional Institution (a medium-security facility), per the DOC’s 2024 end-of-year reports. “A person who has been charged with a crime while on release has violated that promise of good behavior” said the bill’s cosponsor, Sen. Rob Hutton (R-Brookfield). Olson reiterated Hutton’s point, saying “I don’t know how many chances we need to keep giving people.” Sean Wilson of Dream.org spoke in opposition to the bill. “Discretion is essential to justice,” he said, adding that the legislation undermines the presumption of innocence and would “exacerbate inequalities.” Wilson cited the need for wrap-around services to promote success in reentry instead of another mechanism to ensnare people in the justice system. “The Department of Corrections already recommends revocation in the majority of cases,” Wilson said. “To add another layer where you’re mandating what they’re already doing doesn’t make sense.” Wilson called the bill a “waste of paper.” The committee also discussed:
By Alexandria Staubach On Monday, Wisconsin’s 107th legislative session kicked off with the swearing in of 34 new members, 90% of whom are Democrats. This is the first legislative session impacted by the new district maps signed into law by Gov. Tony Evers in early 2024, ending more than a decade of extreme partisan gerrymandering. Fifteen senators were sworn into office. Six are embarking on their first full term. Five of those six are women, all are Democrats, and two served in the Assembly last term. Thirty new members were sworn into the Assembly, 76% of them Democrats. The new session sees the narrowest advantage Republicans have held since 2011. The Senate includes 18 Republicans and 15 Democrats. The Assembly has 54 Republicans and 45 Democrats. The two bodies got straight to work. The Assembly took its first action of consequence, sending to committee AJR 1, a proposed constitutional amendment requiring valid photo identification to vote in an election. If the resolution passes, it will be the proposed amendment’s second trip through the Legislature. If it passes quickly, it could then appear on the April election ballot. Both chambers voted on structure and schedules. In the Assembly, Rep. Kalan Haywood (D-Milwaukee) unsuccessfully nominated Rep. Greta Neubauer (D-Racine) for speaker, as an alternative to Rep. Robin Vos (R-Rochester). Vos has served in the role for more than a decade. Haywood suggested the Assembly ditch Vos because the chamber should not be “an experimental national right-wing Republican testing ground.” He encouraged his peers to abandon “the stagnation of the status quo.” “Compromise is what will lead to productivity and results,” he said. “We’ve strayed so far from Wisconsin’s long-standing tradition of transparent government with the current leadership,” said Haywood. Vos was ultimately elected with 52 votes of the possible 54 Republican votes. Afterward, Vos gave a speech that included predictions about what will occur during this legislative session. He anticipates a tax cut “focused on those who pay taxes in Wisconsin” and emphatically stated the money set aside from any such cut would not be spent by the treasury. He vowed not to create any new government programs because “socialism, in any form does not make us more free.” Vos also said he would demand “accountability and measurable results for any funding we provide.” He predicted that the newly created Assembly Committee on Government Operations, Accountability and Transparency would “lead the way” in innovating how government operates in the state. Ceremonies took place simultaneously at the Capitol in the two legislative chambers. Justice Rebecca Grassl Bradley administered the oath of office in the Assembly. District II Court of Appeals Judge Maria Lazar administered the oath of office in the Senate. By Alexandria Staubach
On Wednesday a group of lawmakers and public sector employees met to discuss possible changes to the framework surrounding emergency detention and civil commitment of youth experiencing mental health crises. What was the Legislature's Study Committee on Emergency Detention and Civil Commitment of Minors looking to know? First, whether entities and individuals other than law enforcement should have authority to take minors into custody for emergency detention. Second, whether special emergency procedures should be developed to lower the bar for detention and commitment. The overwhelming advice from service providers was that expanding the scenarios under which children can be detained would do nothing to alleviate the underlying mental health crises that the state’s children face. Dr. Steven Dykstra of Milwaukee County’s Behavioral Health Division said expanding detention “would be a complicated journey and I don’t know that much would come out of it.” Dykstra instead encouraged the committee to recommit to expanding early intervention resources and tactics. Dystra discussed a teenage boy in Wauwatosa who was assaulting his mother. The boy’s father drove him to the police station; police in turn called Dykstra. Dykstra was able to get the youth to agree to commitment, avoiding detention and handcuffs. The boy was diagnosed with schizophrenia and responded well to medication. He went on to a modified school schedule and graduated high school. When he started at UW-Milwaukee, he met with administrators to develop a plan for his education and asked whether the school had police officers. Because of his previous crisis and because, according to Dykstra, he was not detained, he felt like he could go to the police if he had another episode. These types of interventions will result in the outcomes the committee is looking to achieve, Dykstra said. “We have lots of power to lock that kid up but very little power to address the underlying distress that drove [them] to that point,” he said. Dykstra highlighted a lack of communication between police, service providers, and families. “Systems that collect the data that demonstrate a mental health crisis … don’t communicate with one another. He said the system as currently conceived cannot connect the dots to identify when a child is on the verge of a mental health crisis, but medical professionals know that years spent in undiagnosed psychosis results in much worse outcomes. He cautioned that parents and children “don’t want to tell us about their symptoms because they’re afraid they’re going to get locked up.” Dr. Tony Thrasher, president of the Wisconsin Psychiatric Association, encouraged the committee to consider a specific modification to the laws governing commitment when schizophrenia is involved. “One situation in which we need to make it easier to hospitalize a young person [is in that] last stretch of time they are sliding toward mental psychosis,” Thrasher said. Specifically in the instance of schizophrenia, “if he’s not dangerous to anyone, I can’t make him go to the hospital, however we know that his long-term prognosis is heavily tied to dramatically different results with early intervention,” he said. “We’re very good at the defibrillation,” meaning emergency situations, said Thrasher, but “we’re missing the other 98% of how to get people well.” Sarah Henery, administrator of the Division of Milwaukee Child Protective Servies (CPS), said that not just in Wisconsin, but nationally, she has observed chronic issues, which are not acute, going unaddressed, highlighting that the state is essentially powerless in situations where a youth is not expressing an immediate desire to cause or inflict self-harm. Under current Wisconsin law, certain individuals may initiate 72-hour holds on a person who is mentally ill, developmentally disabled, or drug dependent, based on observed behavior that is dangerous to themselves or others. Juveniles may be subject to emergency detention if they are unable or unwilling to cooperate with voluntary treatment. Sen. Jesse James (R-Altoona) chairs the Legislative Council Study Committee on Emergency Detention and Civil Commitment of Minors, which examines the effectiveness of emergency detention and civil commitment laws and recommends legislation that may create more child-appropriate civil commitment procedures. Rep. Patrick Snyder (R-Schofield) is vice-chair. Other committee members include Sheila Carlson, Green Bay Police Department behavioral health officer; Jill Chaffee, vice-president of community based services for Lutheran Social Services; Maryam Faterioun, an addiction and substance abuse counselor in Waukesha; Judge Cody Horlacher of Waukesha County Circuit Court; Dr. Kristen Iniguez, a Marshfield physician who cares for children subject to abuse and neglect; Sen. LaTonya Johnson (D-Milwaukee); Sharon McIlquham, assistant corporation counsel for Eau Claire County; Rep. Shelia Stubs (D-Madison); and Katie York, deputy State Public Defender. By Alexandria Staubach
Earlier this month the Wisconsin Court of Appeals upheld the Wisconsin Department of Justice’s denial of Scot Van Oudenhoven’s handgun purchase application based on an previous misdemeanor domestic violence conviction that had been expunged under Wisconsin law. The decision reinforces the narrow effect of expungement on criminal convictions in Wisconsin, where they are difficult to obtain and of limited effect. Expungement seals a criminal court file but has no impact on the conviction itself. Judge Gregory B Gill Jr. wrote for District III appeals court. He was joined in the opinion by Judges Lisa K. Stark and Judge Thomas M. Hruz. Van Oudenhoven was convicted of battery as an act of domestic violence in a 1994 Calumet County case. In 2019, a Calumet County Circuit Court judge granted Van Oudenhoven’s petition for expungement. In 2022, Van Oudenhoven attempted to purchase a handgun in Wisconsin. The Wisconsin Department of Justice (DOJ) denied the purchase based on his misdemeanor battery conviction. After Van Oudenhoven exhausted administrative remedies with the DOJ, he sought judicial review in Winnebago County Circuit Court. Judge Teresa S. Basiliere affirmed the DOJ denial. Federal law prohibits the sale of firearms to individuals who have been convicted of offenses related to domestic violence, but among the exceptions are misdemeanor cases. Possession is permitted where the misdemeanor conviction has been “expunged or set aside.” On appeal, Van Oudenhoven argued that expungement under Wisconsin law has the same force and effect as “expunged or set aside,” which phrase is not explicitly defined under federal law. Van Oudenhoven argued that the U.S. Supreme Court provided a common understanding of the phrase when it said in Logan v. United States that “expungement,” “set-aside,” “pardoned,” and “civil rights restored,” “describe[] a measure by which the government relieves an offender of some or all of the consequences of his [or her] conviction.” Because Van Oudenhoven’s expungement removed “some” consequences of his conviction, the Calumet County court “expunged or set aside” his conviction, he argued. The Court of Appeals rejected Van Oudenhoven’s argument that his conviction had been “expunged or set aside.” “The terms expunged, set aside, pardoned, and restoration of civil rights all, by definition, require state action that removes the prohibition on an individual from possessing or receiving a firearm under federal law,” wrote Gill. “The state procedure in question must completely remove all effects of the conviction at issue,” he said. Wisconsin’s expungement law does not remove the effects of conviction; “the statue merely removes evidence of the conviction from court files,” said Gill. Current state law permits expungement for an offense with a penalty of six years or less, as long as the offense was not a violent felony, the person was under 25 years old and had no prior felony record, and the person requested expungement at the time of sentencing. If all conditions are met, a subsequent court may grant a request for expungement after the person has successfully completed their sentence. During the last decade, several bills have been introduced to reform Wisconsin’s expungement and pardon laws. Last session, one bill seemed poised for success. Senate Bill 38/Assembly Bill 37 received broad support, with organizations on both sides of the aisle registering in favor, from the conservative group Americans for Prosperity to the ACLU. The bill also had a bipartisan group of 63 co-sponsors. Although the bill successfully made its way through the Assembly, it ultimately failed to get a vote from the Senate. “Expungement is an issue that has been before the Legislature and the Supreme Court for several years, yet, despite extensive study and discussion, there have been few changes made,” wrote the State Bar of Wisconsin in support of the bill. “Without expungement, every sentence is a life sentence,” it said. Some legislators remain undeterred. Rep. Tip McGuire (D-Kenosha) told WJI “It has unfortunately been a long, difficult road for the expungement reform bill. However, every session brings in new legislators and a fresh chance for us to get on the same page and recognize the importance of getting this done.” “Too many people in our state have trouble finding work or housing because of low-level crimes they committed many, many years ago when they were quite young. I’m hopeful we can properly strike a balance between public safety and rightfully giving people a second chance to build a life and a career for themselves,” McGuire told WJI. According to a 2018 Wisconsin Policy Forum report, an estimated 1.4 million individuals in Wisconsin have criminal records that may hinder their ability to find employment. In Milwaukee County, 30,638 cases closed between 2006 and 2017 technically meet the current restrictive eligibility criteria but have not been expunged, said the report. In 2020, the Court of Appeals held that even minor, technical violations of community supervision rules will bar expungement.  Photograph of the Wisconsin State Capitol by Margo Kirchner By Alexandria Staubach
Last week, conversations about elections loomed large at the Capitol in Madison, involving all three branches of government. Judicial branch On May 13, the Wisconsin Supreme Court heard oral arguments in Priorities, USA v. Wisconsin Elections Commission, a case that could restore the use of drop boxes in Wisconsin after they were banned by the Wisconsin Supreme Court in 2022. Oral arguments hinged on the question of whether state law makers and the law itself effectively banned the use of drop boxes by omitting them from a set of mandatory requirements applicable to absentee ballots. Chicago attorney Misha Tseytlin represented the Wisconsin Legislature as he has in numerous other high stakes cases, including Wisconsin’s most recent redistricting case. Tseytlin argued that “two years ago the Court made this decision,” so the court should be precluded from making any determination in the new case. Justice Janet Protasiewicz highlighted that the Legislature was not part of the case decided two years ago and at the time took a position “assuring federal and state courts that drop boxes were permitted” and “safe and secure.” Plaintiffs Priorities USA and Wisconsin Alliance for Retired Americans argued that the court’s prior interpretation of the law places an unnecessary restriction on casting absentee ballots and in practice is “unworkable.” They argued that under the court’s prior decision municipal clerks and voters are unable to decipher what they can and cannot do. According to the plaintiffs, the law only mandates specific minimum requirements and does not state every possible option for the return of ballots to clerks, leaving such decisions to the Wisconsin Elections Commission (WEC) historically. Justice Rebecca Grassl Bradley asked several times how clerks should be limited in their discretion and what prevented them from administering elections in “whatever way they choose.” WEC’s attorney, Faye Hipsman, responded that regardless of the use of drop boxes, clerks remain bound by all other election statutes, including statutes that require them to “conduct elections that are proper and secure.” Advocates for drop boxes held rallies around the state on the day of the oral arguments. At a rally in Milwaukee, ACLU-Wisconsin Deputy Advocacy Director James Stein said that “Drop boxes make it easy for folks to drop off their ballots hassle-free." He said that “for rural voters who have to drive far and wide to vote on election day, voters in large cities who have limited ballot return options, voters with disabilities, and voters who work long hours or have caregiving responsibilities that make it difficult to return a ballot to a single clerk’s office during shortened hours in the middle of the work day, drop boxes are essential. For voters who receive their absentee ballots late, drop boxes are critical for making sure their ballot can get returned in time to be counted." Stein noted how widespread drop box access was associated with extraordinary voter participation in 2020 and that in the 2022 general election over 760,000 Wisconsinites (almost 30% of voters in that election) cast their ballots absentee. “By fighting for ballot drop boxes, we're fighting for the very soul of our democracy," he said. At a rally in Madison, ACLU-Wisconsin Campaign & Political Manager Conor Miller said, “Over the past decade, we have witnessed several attacks on the fundamental right to vote. . . . “Enough is enough.” Executive branch On May 14, Gov. Tony Evers signed an executive order calling for a special election in the 4th Senate District to fill the seat of Sen. Lena Taylor. Taylor resigned as state senator following her appointment to Milwaukee County Circuit Court in January. The special election will take place on July 30. A primary will occur on July 2 if necessary. Legislative branch On May 16, the Assembly Committee on Campaigns and Elections and the Senate Committee on Shared Revenue, Elections, and Consumer Protection held a joint informational hearing about measures currently in place and investigations that may occur in the future to ensure election integrity. The committees' purpose was to “remove any conjecture that may be out there about what is occurring with elections,” said Rep. Scott Krug (R-Nekoosa). He added that the committee would continue to hold public hearings throughout the summer despite inconvenience to its members, to avoid “another 2020.” The committees heard testimony from the Department of Transportation regarding voter identification cards issued under current law. Ashley Reichert and Lida Tollefson, county clerks in Washington County and Rock County, respectively, discussed systems implemented in their jurisdictions to ensure election integrity. Fond du Lac District Attorney Eric Toney advised the committees that he was unaware of any significant voter fraud. Toney said his office has prosecuted only three voter fraud cases since 2020 and indicated that, at times, voter fraud is a crime that people do not necessarily know they are committing. For instance, persons under felony supervision may vote believing their rights have been restored. Testimony centered around three issues central to the committees: (1) non-citizen voting (2) voting by persons ineligible due to felony convictions, and (3) voting by persons who have been deemed incompetent to exercise the right to vote. Rep. Donna Rozar (R- Marshfield) inquired about the possibility of a shared database of incompetent voters. Tollefson and Reichert indicated that such information is provided by the WEC only to municipalities where incompetent individuals reside. They acknowledged the hypothetical possibility that a person who has been deemed incompetent could move to another municipality and be permitted to vote absent a readily available statewide list. Although not discussed at the hearing, the scenario raised by Rozar is the subject of a lawsuit making its way through the courts, Wisconsin Voter Alliance v. Kristina Secord. Wisconsin Voter Alliance (WVA) brought two failed lawsuits seeking to overturn the results of 2020 presidential election. The Walworth County registrar denied WVA’s open records request for notices sent to election officials (as required by current election law) when a court determines a person is incompetent. Walworth County believes the notices are not subject to disclosure under public records law. WVA argues that the public has an interest in the information, as shown by alleged discrepancies between notices issued to the WEC and the volume of notices published on WEC’s website. A Walworth County Circuit Court judge dismissed the case. The Wisconsin Court of Appeals reversed, ordering the records released, though with birthdates and case numbers redacted. In March, the Supreme Court agreed to review that ruling. By Margo Kirchner
We continue our summary of justice-related laws passed this last legislative session, many of which created new crimes and increases criminal penalties rather than easing the number of incarcerated individuals and the harsh aspects of Wisconsin's criminal justice system. Part 1 is available here. Except for interim committee work, the Legislature has adjourned until after the November 2024 elections. Here’s more of what was signed into law. Senate Bill 314, now 2023 Wisconsin Act 224 Current law criminalizes possession of child pornography involving a real child engaged in actual or simulated sexually explicit conduct. This law adds a new felony crime for receiving, distributing, producing, possessing or accessing an obscene photograph, film, or digital or computer-generated image that appears to depict a child engaged in sexually explicit conduct even though no actual child is in the image. Senate Bill 321, now 2023 Wisconsin Act 225 The Legislature created a new crime for illegal possession of a “child sex doll,” with various levels of felony punishment based on number of dolls, repeat offenses, and past convictions for other crimes against children. A child sex doll is defined as an anatomically correct doll, mannequin, or robot with features resembling a minor child, intended for use in sex acts or to manipulate or instruct children to participate in sex acts. Manufacture, sale, transferring, advertising, and providing premises for child sex doll use are also prohibited. Senate Bill 514, now 2023 Wisconsin Act 226 This law increases the felony level penalties for fleeing an officer. It provides for mandatory minimum incarceration periods of 18 months if the violation results in great bodily harm and 30 months if the violation results in death. Senate Bill 169, now 2023 Wisconsin Act 228 This law requires the Department of Workforce Development to establish a toll-free telephone hotline and website with information to help employers interested in hiring individuals with a conviction record. The hotline staff are to provide information on available incentives and programs under state and federal law for employing individuals who have criminal conviction records. Senate Bill 722, now 2023 Wisconsin Act 229 This law requires that Department of Corrections’ training programs for correctional officers include identifying symptoms of active psychosis and reporting such symptoms to the correctional institution’s superintendent and appropriate medical personnel. In addition, the new law expands who may authorize a voluntary transfer of an incarcerated person from jail or prison to a mental health treatment facility. Previously only a physician or psychologist could do so; now a registered nurse, licensed practical nurse, or physician assistant can as well. The law requires that DOC authorize an emergency transfer to a mental health treatment facility or the Wisconsin Resource Center if there is reason to believe a person in DOC care is in active psychosis and a danger to self or others. Assembly Bill 237, now 2023 Wisconsin Act 230 Act 230 changes procedures regarding parole and extended supervision hearings and release. The law increases the notice period for victims from seven to 30 days before the parole or other release hearing, provides that a victim has the right to make an oral or written statement and present visual aids at any hearing, and requires the person being considered for parole or extended supervision release to submit to a psychological evaluation beforehand. The law also allows a police chief or sheriff where the person plans to reside upon release to share information regarding the released individual with the public, if the law enforcement officer thinks it necessary. Assembly Bill 556, now 2023 Wisconsin Act 231 Courts must expedite proceedings in criminal and juvenile matters involving a victim or witness who is an elder, meaning age 60 or older. On any motion for continuance, the court must consider any adverse impact on the well-being of an elder victim or witness. The court must also preserve testimony in criminal matters involving a victim or witness who is an elder if the prosecutor so requests. Upon the prosecutor’s motion, the court must hold a hearing within 60 days to record the elder person's testimony, with the defendant present and able to cross-examine the witness. The recorded testimony will be admissible in evidence in any later court proceedings in the case. Senate Bill 172, now 2023 Wisconsin Act 233 This law requires the DOC to contract with at least one nonprofit organization, for-profit entity, or public agency to establish a community reentry center to assist those released from incarceration with health, identification, financial, housing, employment, education, and supervision services. The DOC must prioritize contracts in counties with the highest numbers of individuals being released from incarceration. DOC staff must be present at the centers to provide case management services. Assembly Bill 965, now 2023 Wisconsin Act 234 As reported previously by WJI, this law creates a new misdemeanor crime for picketing or demonstrating at a judge’s residence with the intent to impede the administration of justice or influence the judge in the discharge of judicial duties. Assembly Bill 966, now 2023 Wisconsin Act 235 As reported previously by WJI, this law enhances privacy protections for judges. The law includes creation of a new felony for publicly posting on the internet personal information of a judicial officer or their immediate family if the intent of the posting is to create or increase a threat to the health and safety of the judicial officer or their family and bodily injury or death of the judicial officer or family member is a natural and probable consequence of the posting. Senate Bill 874, now 2023 Wisconsin Act 254 Certain sex offender registry lifetime tracking requirements and notifications are required for someone released after having been convicted :on two or more separate occasions." This law defines how prior offenses are counted for that purpose. The new law is retroactive, and the DOC must notify persons who were not subject to the lifetime tracking requirement before the bill took effect but now are. If a person fails to register as a sex offender or submit to lifetime tracking within 30 days of notice, the violation is a new felony. By Gretchen Schuldt
Little progress was made this last legislative session to ease the state’s tough criminal justice laws, while Gov. Tony Evers — who took office talking about reducing the prison population — signed several bills creating new crimes and harsher penalties. An oft-introduced bill that would have eased expungement rules and another bill that would have provided juveniles sentenced to life in prison with a chance at reduced sentences failed to get to the governor’s desk. The Legislature has no more floor periods scheduled until the next legislative session begins in January 2025. Here’s a look at what was signed into law. Senate Bill 292, now 2023 Wisconsin Act 1 The law lets municipalities adopt ordinances allowing law enforcement officers to grab up and impound a vehicle if all of the following conditions are met:
The ordinance can call for the vehicle to remain impounded until its owner pays off the earlier forfeiture and for the costs of impoundment, including “towing or other transportation costs and storage costs.” If the owner does not claim the vehicle for 90 days after the disposition of the ticket, the municipality can treat the vehicle as abandoned. Senate Bill 75, now 2023 Wisconsin Act 3 This law was enacted to implement two changes to the state constitution approved by voters in April 2023. Before the amendments, the constitution limited monetary bail to the amount needed to assure a defendant’s appearance in court or to protect members of the public from serious bodily harm. Voters approved changing the constitution’s wording from “serious bodily harm” to “serious harm” as defined by the Legislature defined it in law. The Legislature in this new law adopted a broad definition of “serious harm” after the amendments were adopted. "Serious harm" now includes damage to property over $2,500; economic loss of $2,500; or physical pain, injury, illness, any impairment of physical condition, or death, plus any related mental anguish or emotional harm. Voters also approved allowing a court to impose cash bail for those accused of a "violent crime" as defined by the Legislature, “based on the totality of the circumstances, taking into account whether the accused has a previous conviction for a violent crime as defined by the legislature by law, the probability that the accused will fail to appear in court, the need to protect members of the community from serious harm as defined by the legislature by law, the need to prevent the intimidation of witnesses, and the potential affirmative defenses of the accused.” The new law defines "violent crime" with a long list of crimes and conforms statutory law to the constitutional change. Assembly Bill 55, now 2023 Wisconsin Act 9 Prior to the new law, penalties for reckless driving ranged from a $25 forfeiture to a maximum penalty of 3½ years in prison and a $10,000 fine. The new law stiffens the penalties and adds surcharges. The penalty changes include:
People found guilty of reckless driving also will be assessed a $435 driver improvement surcharge and a $50 safe driver surcharge. Senate Bill 76, now 2023 Wisconsin Act 10 This law increases the penalty for carjacking while possessing a dangerous weapon, by use of force, or by the threat of the weapon. The maximum penalty jumps from 40 years in prison and a $100,000 fine to 60 years in prison. Senate Bill 101, now 2023 Wisconsin Act 29 The penalty for causing the death of another by the unlawful distribution of a Schedule I or II drug or their analogs, ketamine, or flunitrazepam (“roofies”), or by illegally administering or helping to administer those drugs increases from 40 years in prison and a $100,000 fine to 60 years in prison. Assembly Bill 47, now 2023 Wisconsin Act 31 Parole Commission transparency is increased under this bill. It requires the Department of Corrections to post, on the Parole Commission website, the individuals “granted parole, denied parole, and returned to prison following the revocation of parole.” DOC must post monthly and annual aggregate numbers showing:
The law mandates the agency post any guidance documents the Parole Commission uses in making parole decisions. The law allows family members of victims, who were under 18 years old at the time of the crime but who are now adults, to request notification of when the offender is requesting parole or is released on parole or supervision. The measure also increases, from three weeks to 90 days before a parole hearing, the deadline for notifying certain people that an incarcerated person has applied for parole. Assembly Bill 166, now 2023 Wisconsin Act 61 There are new actions that constitute “sexual contact” in determining crimes against children and sexual assault. Those actions include “touching by the complainant of the ejaculate, urine, or feces of any person upon the intentional instructions of the defendant, upon the use or threat of force or violence by the defendant, or upon an intentional act of the defendant.” Senate Bill 485, now 2023 Wisconsin Act 133 The definition of financial institution robbery is expanded under this law to include robbery accomplished “by creating circumstances that would cause a reasonable person to believe use of force was imminent.” The definition previously was limited to robbery “by use of force or threat to use imminent force” to take property owned or in the custody or control of a financial institution. Senate Bill 313, now 2023 Wisconsin Act 154 The penalty for failing to stop for a school bus when it is stopped and flashing red warning lights is increased under this law. The forfeiture rises from a $30 to $300 range, to $1,000. The Wisconsin Department of Transportation also must assess demerit points for any infraction. Senate Bill 460, now 2023 Wisconsin Act 159 This law adds railroad construction and maintenance areas to other areas (such as highway construction areas) where workers are at risk from traffic. The law doubles fines for certain traffic violations committed where workers are present in a railroad construction or maintenance area. Senate Bill 333, now 2023 Wisconsin Act 200 A new crime, sexual misconduct against a pupil, is created under this law. The new law prohibits certain conduct by a school employee or volunteer, including verbal conduct of a sexual nature, meaning “communications made intentionally for the purpose of sexually degrading or sexually humiliating the pupil or the actor, or sexually arousing or sexually gratifying the pupil or the actor,” according to a Legislative Council amendment memo. It also prohibits physical contact of a sexual nature. The Department of Public Instruction must revoke the licenses of those convicted of sexual misconduct. Assembly Bill 437, now 2023 Wisconsin Act 212 This law increases, from $1,000 to $5,000, the forfeiture for a fraud-involved violation of an insurance statute or rule. Senate Bill 875, now 2023 Wisconsin Act 217 Testing materials involved in detecting the drug xylazine or a xylazine analog are exempt from the definition of illegal “drug paraphernalia,” under this law. The law also provides civil and criminal immunity to anyone who distributes such testing material if a person dies or is injured as a result of the material’s administration. The person administering the testing material also is provided immunity, “except for civil liability for negligence in the performance of the act.” More to come in part 2.  Gov. Tony Evers, Wisconsin Judicial Council members, and Legislature staff members at the signing of 2023 Wis. Act 245 on Mar. 27, 2024. By Margo Kirchner
Wisconsin courts will now accept written declarations instead of notarized affidavits in civil litigation. A new law eliminates the need for a notary’s signature and stamp on various documents in civil proceedings. Rather than swearing to the truth of written statements before a notary, a person may now “declare under penalty of false swearing under the law of Wisconsin” that what they are signing is true. The law should reduce litigation costs and simplify the submission of evidence during pretrial stages of a civil case. Attorneys will not need their clients to come to an office to get signatures notarized before filing evidence on summary judgment motions. Individuals representing themselves will not need to find and pay for notary services to file affidavits of poverty or other documents. Affidavits with a notary’s signature and stamp are still accepted. The law simply gives declarations made under penalty of perjury the same effect. Called the Uniform Unsworn Declarations Act, the law brings Wisconsin in line with federal courts and several other states. The use of declarations instead of affidavits has been the norm in federal courts for almost 50 years. The new law has some exceptions. Oaths of office, depositions, and real estate documents will still require swearing before a notary. The Wisconsin Judicial Council, a state agency focused on rules of procedure in the courts, recommended the law. Judicial Council members Sen. Van Wanggaard (R-Racine) and Rep. Ron Tusler (R-Harrison) sponsored the bill and steered it through the Legislature. The Uniform Law Commission, a nonprofit and nonpartisan organization advocating for consistent laws across states, supported the bill in written testimony before Senate Committee on Judiciary and Public Safety. Gov. Tony Evers signed the law (2023 Wis. Act 245) on March 27. It went into effect on March 29. Previously, Wisconsin law did allow declarations made under penalty of perjury by persons outside of the United States. Act 245 now permits declarations by persons located within the United States as well. |
Donate
Help WJI advocate for justice in Wisconsin
|
RSS Feed