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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.
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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. By Gretchen Schuldt Gov. Tony Evers on Wednesday signed a bill allowing Wisconsin judges to take court action against people or businesses that post on the internet publicly available judicial officers’ personal information without the judges’ consent. Even their marital statuses could be off limits. Generally, under the First Amendment, governments cannot tell people what information they can or cannot post or share. But this law gives individual judges the private right of action to have the information removed from the Internet. Judges from around the state supported the bill in public testimony, as they did the other two bills in the three-bill package. State Supreme Court Chief Justice Annette Ziegler said the law was patterned after similar protections for federal judges and judges in other states. The governor signed all three bills in the package, including a constitutionally questionable bill, Assembly Bill 965 (now Act 234), that prohibits even peaceful demonstrations near a judge’s residence if the demonstrators are trying to disrupt the courts or influence the judge. The measure would criminalize violations, with a maximum punishment of up to $10,000 and nine months behind bars. WJI covered that bill here. The third approved bill, Assembly Bill 967 (now Act 236), exempts judicial security forms from public records disclosures. The forms are used to create security plans for judges. The internet prohibition, Assembly Bill 966 (now Act 235), requires “all persons, businesses, and associations” to “refrain from publicly posting or displaying on the Internet publicly available content that includes the personal information of the judicial officer or the judicial officer's immediate family,” according to the Legislative Reference Bureau summary of the measure. The law singles out data brokers as being included in the prohibitions. Individual judges would have to request nondisclosure, and that request would be good for 10 years. The law allows those judges to request the personal information be removed from the internet and gives the posting party 10 days to comply. Judges could seek an injunction or declaratory relief from a fellow judge if violations occur. If the filing judge wins the case, the posting person or entity “responsible for the violation shall be required to pay the judicial officer's costs and reasonable attorney fees,” the law says. Prevailing respondents in those cases would not be guaranteed the same financial compensation. The posting party would be required to “ensure that the judicial officer's personal information is not made available on any website or subsidiary website controlled by that person, business, or association; and identify any other instances of the identified information that should also be removed,” the law says. The law prohibits the sharing of information "through any medium" after a judge requests nondisclosure unless the information is voluntarily posted by the judge or immediate family member or if the judge requests the information be shared. “Publicly available content” is defined in the law as any document or record “that provides information or that serves as a document or record maintained, controlled, or in the possession of a government agency that may be obtained by any person or entity, from the Internet, from the government agency upon request either free of charge or for a fee, or in response to a public records request.” An exception would be made for information voluntarily posted on the internet by judges themselves, information the judges consent to have released, or information received legally from a federal or state government source. Immediate family members could release personal information about themselves. The government may step in under some circumstances. The legislation makes it a felony to post information if it is done to create or increase a threat to the health and safety of the judge or immediate family or if injury or death "is a natural and probably consequence" of posting the information, according to the law. Also under new law, candidates for judicial office or circulating or signing nomination papers would not have to list their names and addresses. Instead, they would file a confidential certification of residency with the Wisconsin Elections Commission. The protections apply to Supreme Court justices or former justices; municipal, circuit, tribal, reserve, and appellate judges and former judges; and court commissioners and former court commissioners. “Immediate family” is defined in the law as a judicial officer's spouse; a child of the judicial officer or of the judicial officer's spouse, including a foster child or an adult child living with the judicial officer; a parent of the judicial officer or the judicial officer's spouse; or any other person who resides at the judicial officer's residence. Personal information, as defined in the law, includes a home address; home or personal mobile telephone number; personal email address; Social Security number; driver's license number; federal tax identification number or state tax identification number; bank account or credit or debit card information; license plate number or other unique identifiers of vehicles regularly used by a judicial officer or a family member; identification of minor children; a full date of birth; employment location, including the name or address of an employer and employment schedules; and marital status. Employment information does not include information about employment by a government agency.  Gov. Tony Evers signing AB965, AB966, and AB967 on Wednesday, March 27, 2024  By Gretchen Schuldt Judges from around the state are supporting a bill that would outlaw protests at their homes, but a constitutional law professor says the measure raises First Amendment concerns. The bill would prohibit people from demonstrating near a judge’s residence if they are trying to disrupt the courts or influence the judge. The measure would criminalize violations, with a maximum punishment of up to $10,000 and nine months behind bars. The word “near” is used but not defined in the legislation, Assembly Bill 965 / Senate Bill 926. A chart showing the sponsors of the measure is at the bottom of this post. Ed Fallone, a constitutional law professor at Marquette University, said in an interview that the U.S. Constitution’s First Amendment generally does not allow a group to exist in a protected “bubble” denied to others. The bill would create such exclusive protections, he said. That amendment protects freedoms of speech and religion and the rights to peaceably assemble and petition the government for a redress of grievances. Those offering testimony in favor of the bill included state Supreme Court Justice Annette K. Ziegler and judges from St. Croix County, the District II Court of Appeals, Juneau County, the U.S. District Court for the Eastern District of Wisconsin, Dunn County, Sauk County, Fond du Lac County, Washburn County, Dodge County, Racine County, Sheboygan County, Clark County, Sheboygan County, Ozaukee County, Outagamie County, Brown County, Chippewa County, Waukesha County, Brown County, Dane County, Calumet County, Barron County, Manitowoc County, Monroe County, Door County, Milwaukee County, and Rusk County. The State Bar of Wisconsin also offered testimony in support. The bill is one of three about judges and their security concerns. Judges' written testimony on the three-bill package included discussion of security for their families and them; incidents they had experienced personally; and the June 2022 murder of retired Juneau County Judge John Roemer by a man Roemer sentenced years earlier. In some instances, multiple judges from the same county signed on to testimony in support of the bill, raising potential conflict-of-interest issues if the measure becomes law and the judges are asked to rule on related cases. The Assembly’s Criminal Justice and Public Safety Committee recommended passage of the bill, 13-2, with Reps. Dora Drake (D-Milwaukee) and Jodi Emerson (D-Eau Claire) opposed. The full Assembly approved the measure without a roll call vote. The Senate’s Judiciary and Public Safety Committee recommended approval on a 5-1 vote, with State Sen. Kelda Roys (D-Madison) opposed. The bill is pending before the full Senate. In her written testimony to the Assembly committee, Ziegler said that “Judges should not be threatened with acts of violence from people or groups who want to intimidate or harm us, push a cause, subvert the rule of law, or control the outcome of a case. That is a basic tenet of Judicial independence.” The bill is modeled on a federal statute, she said. The Wisconsin bill, unlike the federal statute, “removes the prohibition …against picketing, parading or demonstrating at, in, or near a building housing a court,” Ziegler wrote. The federal law, adopted in 1950, prohibits the same type of picketing of federal judges’ residences as the Wisconsin bill would ban. It also has raised recent First Amendment questions, especially after protests in front of U.S. Supreme Court Justice Brett Kavanaugh’s house in the wake of the Dobbs decision overturning abortion rights. Allowing courthouse picketing, which judges can easily avoid entirely, is not enough, Fallone said. “One of the aspects of your free speech right is to be heard by the person you’re expressing your opinion to,” he said. While he sympathizes with judges seeking to reduce the stress levels of their jobs, Fallone said, protections such as those proposed should be limited to specific judges in response to specific events or threats. If judges deserve special security considerations, those protections could well spread to other protest targets, thus further limiting the scope of the First Amendment, he said. Bill Sponsors   The Wisconsin Constitution displayed in the State Capitol rotunda. Photograph by Margo Kirchner. By Alexandria Staubach
Wisconsin voters in April will see two referendum questions focused on perceived voting issues. Senate Joint Resolution 78 passed the Legislature in November and will appear on the April 2 ballot as two questions about amending the state constitution. If approved by a majority of voters, the amendments would enshrine in the Wisconsin Constitution bans on private funding for election administration and the involvement of third parties in elections. The proposed amendments passed the Senate and Assembly along party lines. They passed in two successive legislative sessions as required by the state constitution’s amendment process. Constitutional amendment resolutions avoid the governor. They go directly from the Legislature to voters for approval. Rather than creating statutes, which can be changed more easily if they cause problems later, the laws become part of the document underlying all of Wisconsin's government and laws. Republican legislators introduced the resolution in response to grant money supplied by the nonprofit Center for Tech and Civic Life (CTCL) to various election offices around the country during the 2020 election cycle to alleviate the burden of COVID-19 related costs. Mark Zuckerberg, Facebook founder and tech billionaire, supplied more than $400 million to CTCL. As a result, the funds have been referred to as “Zuckerbucks.” The first question addresses those Zuckerbucks: “Use of private funds in election administration. Shall section 7 (1) of article III of the constitution be created to provide that private donations and grants may not be applied for, accepted, expended, or used in connection with the conduct of any primary, election, or referendum?” A “yes” vote will place in the state constitution a prohibition on any level of government in the state applying for or accepting nongovernmental funds or equipment for election administration. Currently, Wisconsin law does not restrict the Wisconsin Election Commission or municipalities from accepting grants or other private money to facilitate the administration of an election. The second question addresses the involvement of outside people in elections: “Election officials. Shall section 7 (2) of article III of the constitution be created to provide that only election officials designated by law may perform tasks in the conduct of primaries, elections, and referendums?” Sen. Eric Wimberger (R-Green Bay) testified about this proposed amendment to Senate and Assembly committees in October 2023. He stated that a stipulation of the CTCL grant money required third-party oversight from Michael Spitzer-Rubenstein, who then worked for the nonprofit National Vote at Home Institute. According to Wimberger, Rubenstein “orchestrated the fall election and acted as a city clerk would act, though paid by CTCL, including managing staff and having access to ballots.” Wimberger’s assertion was part of the larger tent of theories undermining Wisconsin’s 2020 election results. It was debunked by Green Bay’s city attorney, who after investigation said the city was “allowed, but not required, to receive advisory services from persons knowledgeable in various areas of election administration” and that although Rubenstein provided “best practice support” he “had no decision-making authority.” Rubenstein also provided best-practice support in Milwaukee, Racine, Kenosha, Wauwatosa and West Allis. In at least the case of Green Bay, he was hired directly by the city. Current statutory law already provides that elections are administered only by “election officials” and defines an election official as “an individual who is charged with any duties relating to the conduct of an election.” A “yes” vote on question 2 will put the restrictions permitting only election officials designated by law to administer elections into the state constitution. Elections officials include a municipal clerk, who is responsible for conducting elections in a municipality; a chief election inspector and election inspectors, or poll workers, who staff polling places on election day; election registration officials, who carry out registration duties on election day; special voting deputies, who are appointed by the municipal clerk to carry out absentee voting at qualified retirement homes; greeters, who acknowledge voters and assist in answering questions about the polling place but may not participate in any election inspector duties unless acting as a substitute; and tabulators, who aid election inspectors in counting and tallying votes after polls close. All such election officials are required to take and file an oath and record set amounts of training for every term they serve. By Gretchen Schuldt
The so-called “Parent’s Rights” bill pending in the Legislature probably does not stand a chance of getting past Gov. Evers’ veto pen, but still drew way more written public comments – 153 pages of them – than is typical for any sort of legislation. There were about 100 comments in opposition to the bill, AB510, and 17 in support. Those numbers are estimates because some of the comments, filed with the Assembly’s Family Law Committee as public hearing testimony, were included twice in the record of the hearing. WJI tried to eliminate the second inclusions, but may have missed some. The committee recommended adoption of the bill on a 6-3 party-line vote, which was followed by a 62-35 party-line Assembly vote in favor of the bill. Two Republicans, Loren Oldenburg of Viroqua, and Travis Tranel, of Cuba City, did not vote. The measure is now pending in the Senate. (The Senate companion bill is SB489). A chart showing the sponsors of the bill is at the bottom of this post. As a brief refresher, the bill would provide parents or guardians with 16 specific rights and would allow a parent or guardian to sue if any of the new rights are violated. The new rights would include the right to:
The bill would allow parents/guardians who feel one of the rights was violated to sue "a governmental body or official" and, if successful, collect up to $10,000 plus any "reasonable attorney's fees and costs." Here are excerpts from some of the submitted comments/testimony. For adoption: In recent years, many parents have become more actively involved in the education of their children. Unfortunately, public school districts have not always respected parental rights. – State Rep. Robert Wittke (R-Racine). Against adoption: This legislation proposal claims to be about parental rights, but is more truthfully about disrupting the processes, protocols, and programs of both private and public schools. It grants parents the power to interfere in the day-to-day affairs of education, dictating what educators are allowed to teach. … We assert that this bill was created with the intention of censorship and has no connection with meaningful, constructive parental involvement or engagement toward improving community life. – Rev. Breanna lllene, director of ecumenical innovation and justice initiatives, Wisconsin Council of Churches |
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