 By Margo Kirchner
Just eight of 38 circuit court judicial races in Wisconsin this spring are contested. Notably, not one of the six Milwaukee County judges up for election is challenged. Waukesha County and Jefferson County will be campaign hot spots, though, with two contested circuit court races each. St. Croix County will have a primary on Feb. 18, as three candidates vie for the seat that opened when Judge Edward Vlack chose not to run for reelection. The Wisconsin Elections Commission's Jan. 8 candidate tracking report indicates that James Jamie Johnson, Heather Amos, and Brian Smestad are preliminarily approved for the election. Candidates had until the end of the business on Jan. 7 to file their nomination papers and enough valid signatures to get on the ballot. The Jan. 8 report shows candidates who appear to have met the filing requirements, but submissions are still subject to challenge and await official approval by the commission. The commission is scheduled to meet on Jan. 14 to finalize the list of candidates. Provided that Cortney Iverson’s submitted signatures and required Statement of Economic Interests form are approved, Jefferson County Branch 2 also will have a primary on Feb. 18, with Jennifer Weber and Iverson taking on recently appointed Theresa Beck. The top two finishers in each primary will advance to the general election on April 1. Contested races with two candidates for the April 1 election:
Three of 16 court of appeals judges are up for reelection, none challenged: Mark Gundrum in District 2, Lisa Stark in District 3, and Jennifer Nashold in District 4. You’ve likely heard about the contested race for the open Wisconsin Supreme Court seat due to Justice Ann Walsh Bradley’s retirement. Brad Schimel and Susan Crawford have been campaigning for months and have been preliminarily approved for the election. No surprise additional candidate filed nomination papers by the deadline. Wisconsin Justice Initiative will ask all candidates in contested races to complete questionnaires about their work experience, judicial philosophy, and desire to be a judge. Look for their answers in the WJI blog in February and March.
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Chief Justice Roberts decries defiance of judgments but fails to address his court's ethics issues1/2/2025 By Margo Kirchner
In his year-end report on the federal judiciary, Chief Justice John Roberts discussed the increase in calls to defy court orders and opinions, but glaringly absent was any recognition of the role his own court’s ethical failings play in that dangerous trend. Roberts noted that after the Brown v. Board of Education case some state governors sought to defy desegregation orders, but the Eisenhower and Kennedy administrations stood behind the judges, and for decades afterward even unpopular court decisions were followed. "Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected,” Roberts wrote. At least one commentator thinks Roberts aimed these comments at JD Vance. In just one paragraph near the end of his report did Roberts suggest that federal judges themselves play a part in the public’s willingness to abide by court orders, but he then tied judges’ duties to abiding by separation of powers principles. He made no mention of possible harm to the court’s authority related to justices’ failures to adopt enforceable ethics standards or publicly report gifts of luxury trips from wealthy individuals. Roberts wrote: “The federal courts must do their part to preserve the public’s confidence in our institutions. We judges must stay in our assigned areas of responsibility and do our level best to handle those responsibilities fairly. We do so by confining ourselves to live ‘cases or controversies’ and maintaining a healthy respect for the work of elected officials on behalf of the people they represent. I am confident that the judges . . . and the corresponding officials in the other branches will faithfully discharge their duties with an eye toward achieving the ‘successful cooperation’ essential to our Nation’s continued success.” Roberts’ report focused on judicial independence. He cited, in addition to defiance of court orders, three other “areas of illegitimate activity” that threaten judicial independence: violence against judges, intimidation of judges, and disinformation. In discussing recent violence against judges, he noted the murders of state judges in Wisconsin and Maryland in response to adverse rulings by those judges. In Wisconsin, retired Juneau County Circuit Judge John Roemer was murdered in 2022 at his home in New Lisbon by a man whom he had sentenced 17 years earlier. Roberts discussed attempts to intimidate judges through doxing (the publishing of addresses and phone numbers online) and, “regrettably,” statements by public officials suggesting bias by judges as the basis for court rulings. Roberts said he was grateful for the work of federal and state legislators to sponsor legislation to protect judges’ personal information and of marshals and other law enforcement officers to keep judges safe. In Wisconsin, three acts signed into law in March 2024 are aimed at protecting judges’ personal information and reducing intimidation of judges. Regarding disinformation, Roberts suggested increasing civic education on a national scale and taking protective measures against hostile foreign actors. By Margo Kirchner As of Aug. 1, 2025, Brad Schimel will either be a Wisconsin Supreme Court justice or out of the Wisconsin judiciary. Schimel is currently a Waukesha County Circuit Court judge, with a term ending July 31, 2025. On Dec. 19, he filed a “notification of noncandidacy,” confirming that he will not run for his Waukesha County seat as a back-up if he loses to Susan Crawford in the Supreme Court race. Schimel was appointed to the bench by then-Gov. Scott Walker in late 2018, following Schimel’s loss to Josh Kaul in the November 2018 attorney general race. Schimel won election to a full six-year term in April 2019. Crawford is a Dane County Circuit Court judge with a term ending July 31, 2030. She won reelection in April 2024 to a six-year term. She had won a contested race for an open seat in the April 2018 election. If Crawford wins the Supreme Court race, Gov. Tony Evers will be able to appoint a replacement for her on the Dane County bench. Schimel and Crawford are running for an open seat on the Supreme Court. Justice Ann Walsh Bradley announced months ago that she would not run for reelection and confirmed that by filing her notification of noncandidacy on Dec. 13. Other judges who have filed notices of noncandidacy and created open seats for the April 2025 election:
Nomination papers and valid signatures for April 2025 judicial candidates are due Jan. 7.
 Entry to the Wisconsin Supreme Court on Dec. 17, 2024. Photograph by Alexandria Staubach. By Alexandria Staubach and Margo Kirchner The Wisconsin Supreme Court on Tuesday voted to deny a rule change petition brought by Wisconsin Justice Initiative that sought to require municipal court judges to use professional interpreters in all municipal court proceedings. Although all justices said they believed the issue raised by WJI was important and one said she did not want to “kick the can down the road,” the court voted to refer the issue to the Wisconsin Judicial Council for its consideration, while acknowledging that the Judicial Council presently has no funding or staff. WJI’s proposed rule change would have eliminated the practice of municipal courts using a defendant's family member or friend, a police officer, Google Translate, or even other defendants present in the courtroom to interpret court proceedings for individuals who do not speak or understand English. A survey WJI conducted in August 2023 and presented to the justices during briefing showed that at initial appearances, a whopping 49% of municipal court judges who responded to the survey have defendants bring a friend or family member or use Google Translate to interpret courtroom proceedings. Even at evidentiary hearings and trials, which include testimony, 21% of municipal judges responding to the survey said they use a defendant’s friend or family member or Google Translate. Professional interpreters are currently required in municipal courts only for juveniles who meet poverty requirements. During argument on the petition Tuesday, the justices made much of the unknown scope of the problem, unknown costs associated with such a rule change, and competition with circuit courts for interpreters. While interpreters are already scarce in Wisconsin, WJI’s proposed rule mandated using such scarce resources in only very limited circumstances. WJI’s proposed rule change would have required “qualified interpreters,” meaning interpreters trained for court proceedings and who meet circuit court standards, only for evidentiary hearings and trials. Those occur in just a small percentage of the 400,000 to 450,000 municipal court cases per year—and under state statutes those qualified interpreters could appear by video or telephone. WJI attorney Parker White calculated on the fly during oral argument that such qualified interpreters would likely be needed in “less than 300 cases a year, spread over 219 courts throughout Wisconsin.” That means in less than 0.1% of municipal court cases. White and Evan Bondoc, both of the Foley & Lardner law firm, represented WJI in written briefs on the petition and oral arguments before the court. For the bulk of municipal court proceedings, municipal judges would have been allowed to use an audio or audio/visual service such as LanguageLine or Swits for interpreter services. “The vast majority would be satisfied by LanguageLine,” White told the court. According to several municipal judges, LanguageLine is simple and easy to use. WJI’s attorneys argued that it is also low cost, and the cost would be appropriate for the benefits gained by limited-English proficiency (LEP) defendants understanding their court proceedings. “Why don’t they just do that?” asked Chief Justice Annette Ziegler at the hearing. “Because it’s not required,” she then said, answering her own question. Seven organizations filed written comments supporting the petition. Five of them also appeared in person to argue their support: the ACLU of Wisconsin Foundation, Legal Action of Wisconsin, Judicare Legal Aid, the Wisconsin Hispanic Lawyers Association, and the Wisconsin Muslim Civic Alliance. Even the two organizations and one individual opposing the petition acknowledged the importance of the issue. “All parties agree that LEP individuals have a right to meaningfully participate in the proceedings brough against them,” said Bondoc during oral argument. Tim Muth, senior staff attorney for the ACLU of Wisconsin Foundation, argued that the issue raised by WJI is “a question of fundamental fairness and due process.” Susan Lund of Legal Action Wisconsin stated that “in an era of mass incarceration, . . . if we cannot meet basic fairness standards, perhaps we are not utilizing the court system appropriately.” Megan Lee of Judicare, Nancy Cruz of the Wisconsin Hispanic Lawyers Association, and Fauzia Qureshi of the Wisconsin Muslim Civic Alliance spoke in favor of the petition, highlighting the need for proper interpreter services in municipal courts. During oral arguments, Justice Ann Walsh Bradley expressed great concern for the western part of the state, noting that in some towns 50% of schoolchildren come from homes where English is not the primary language. She also highlighted large populations of individuals who do not speak English, work in agriculture, and commonly find themselves before municipal courts for operating without a license. But the court failed to find its way around the unknown costs and lack of precise data on the scope of the interpreter problem WJI presented. Justice Jill Karofsky asked repeatedly for “hard numbers,” which, because record keeping of the number of friends or family members used as interpreters is not required in municipal courts, were virtually impossible for WJI to cite. She asked Muth how to weigh the petition against the court system’s already strained interpreter resources. “There could be unintended consequences,” said Ziegler during the oral argument. At an open conference following the arguments, Justice Brian Hagedorn moved quickly to deny WJI’s petition. Justice Rebecca Grassl Bradley seconded the motion. She argued that the matter should be left for the Legislature to address. Ziegler said "there's nothing wrong with having interpreters in municipal court. Probably is a good thing." But she questioned whether it was feasible and said it was a matter for the Legislature. She later indicated her position that the petition should be denied outright. "I would do nothing further," Ziegler said. The court’s remaining justices, referred to as “the four” at one point by Grassl Bradley, wrestled with options other than denying the petition completely. Justice Janet Protasiewicz recognized that "there's an obvious need, and you look at people coming from all corners of the community to speak in favor of this." Nevertheless, she had concerns about unanswered questions and was "not in support of this today." She suggested sending the issue to a committee to review. Justice Rebecca Dallet said she did not want to deny the petition without referring the matter somewhere for additional review. Dallet recognized the importance of the problem raised by WJI and the desire for the court to do something about it. She suggested a rule recommending that municipal judges whenever possible use a professional interpreter service such as LanguageLine. "What can we do to maybe not solve the whole problem, but what can this court do? . . . Something lesser, that's still important, she said." Walsh Bradley discussed the history of the Judicial Council, its work regarding municipal courts in prior years, and its ability to recommend changes to both the Supreme Court and Legislature. Walsh Bradley said that if the court would not refer the matter to the Judicial Council she might vote to grant the petition. Karofsky said she did not like the feeling of “kicking this can down the road,” but she did not see granting or modifying WJI's proposed rule at this time. She at first hesitated sending the issue to the Judicial Council because it was unstaffed, the problem is complex, and the solution is unclear. In agreeing to a court referral she emphasized that she did not want to require the Judicial Council to take up the question but rather, as set forth in the council’s enabling statute, leave it to the council’s discretion. Hagedorn said that he wanted WJI, whose attorneys and representatives remained in the courtroom during the open conference, to know that the court indeed considers the issue of municipal court interpreters to be an important one. "I hope the petitioners understand . . . (that) we don’t think this is the right solution, but we appreciate that you raised the problem, and maybe we should see if there are other solutions to the problem," he said Following the court’s vote to deny the petition with a referral to the Judicial Council, White told WJI that he nevertheless was encouraged “to see all members of the Court recognize and grapple with the serious problems LEP individuals face in Wisconsin municipal courts today, even if we were disappointed with the Court's apparent disposition on the petition itself. Even the parties who spoke to oppose us uniformly acknowledged the need for some sort of action comparable to what we proposed. I'm hopeful our petition, and any forthcoming related work by the Judicial Council, will help close the gaps of due process and access to justice that hundreds of thousands of Wisconsinites face today." Any action by the Judicial Council could take substantial time, as it has lacked staff since 2017, when it was defunded by the Supreme Court and Legislature. Legislation will take significant effort and substantial time as well. Nevertheless, WJI intends to continue pursuing the matter, whether with the Judicial Council, the Wisconsin Legislature, or the Supreme Court in a future revised petition. “We think everyone in municipal courts, not just indigent juveniles, deserves to understand the proceedings,” said WJI's Kirchner. “Access to justice requires at its heart that the person charged with a violation accurately communicate with the judge and at the very least understand the court proceedings,” she said. “We don’t have that with friends or family members—sometimes children—or even strangers in the courtroom interpreting,” Kirchner said. In municipal courts, where almost all defendants represent themselves, “add a language barrier and you have a double disadvantage,” she said. WJI Board Member Jim Gramling, a retired Milwaukee Municipal Court judge who was involved in WJI’s prosecution of the rule petition, stated that “if you accept, as you must, that municipal courts are a component of the state court system, you wouldn’t hesitate to require interpreters.” “Providing the means for basic understanding of legal proceedings is a requirement of having a court,” he said. A written order regarding the denial of the petition and referral is expected at some point in the future. The Judicial Council was created by statute in 1951 to study the rules of court practice and procedure and recommend changes to the Supreme Court and Legislature. Its 21 members come from all three branches of government, the state's two law schools, and the State Bar of Wisconsin. (Note: WJI Executive Director Margo Kirchner is a Judicial Council member representing the State Bar.) WJI extends many thanks to White and Bondoc and the Foley & Lardner law firm for their excellent pro bono representation of WJI in this matter.
By Margo Kirchner It’s late on a Friday evening in June and four string musicians wait at the ready for something they do not want to happen: a fatal shooting in Milwaukee. They sit on call at Central Methodist Church, prepared to leave for the scene of a shooting to play classical chamber music to comfort and heal the community. Founder, music director, and violist Dayvin Hallmon frequently checks his laptop for the list of 911 calls, looking for reports of a shooting or shots fired. The other musicians talk and check their phones. One plays the piano for an hour. A stack of board games is available, though not used that night. Hallmon takes a few moments to shout at three people headed behind the shed off the church’s parking lot, telling them they are trespassing and need to leave. Violinist Churchill Caruthers has played with the ensemble since it began in 2019. Cellist Autumn Maria Reed is a composer of instrumental music in multiple genres and also plays string bass. Violinist Fatima Gomez arrived last that evening, coming from a mariachi gig. The musicians are members of the Black String Triage Ensemble. Throughout the summer, the ensemble of volunteers designates certain weekend evenings to be on call to respond to shootings in Milwaukee. On-call time can last five or six hours, to midnight or beyond. Hallmon says the ensemble is the first and only one of its kind in the world. No other city has this. The group’s mission is to use music, especially music by Black and Latin composers and artists, to address pain, foster healing, promote love, call for justice, and guard against hopelessness. For now, the ensemble focuses on playing at scenes of fatal shootings and various rallies or protests, the latter for peacekeeping purposes. They’ve played at scenes of drug overdoses and car crashes, too. In response to fatal shootings, “to speak to the life circumstances that give rise to such a horrifying event, a concert at the scene is necessary to dissipate and repel those negative forces. By being present among the people and playing music at a time when it is needed the most, we can transform the public space into a place of recovery, healing and hope for the community,” reads the group’s website. “We don’t have to live destroyed and broken,” Hallmon told Wisconsin Justice Initiative in an interview. “If there isn’t a cultural mind shift, this (violence) is going to continue,” he said. “What’s amazing to me is how everybody is burdened” by shootings—it’s not just the person shot and the person pulling the trigger, he said. Sometimes “the circumstances are so outrageous that there can be no justification for it, and law enforcement has to reckon with that. It destroys everybody,” he said.
For peacekeeping, the intent is to inject music into a tense space to deter violence. Maybe if violence holds off, we can have a moment of reconciliation, Hallmon said. The night in June thankfully passed without the need for a concert. The quartet piled into two cars (a cello and music stands take up a bit of space) around midnight to drive to the location of a possible shooting, but they found no police presence there. The musicians act as a team, driving to a scene together from their on-call site. When asked what the Black String Triage Ensemble needs most, Hallmon immediately responded with “a van,” big enough to transport cellos, basses, and people. Many of the group’s musicians, including Hallmon, do not own or have access to a car. He could have a quartet or quintet on call, but no one there with a vehicle to get them to the scene of a shooting. The ensemble planned to play peacekeeping concerts during the Republican National Convention, but they pivoted that Tuesday night, July 16, to instead play a concert at King Park, where Columbus, Ohio, police shot and killed Samuel Sharpe Jr., an unhoused man, earlier in the day. That evening, eight musicians and a clergy member gathered at Village Church MKE in downtown Milwaukee and drove to King Park just after a memorial gathering ended. Violist Miguel Barrenechea; violinists Jane Han and Christopher Washington; cellist John Hodges; and chaplain Tom Gaulke joined Hallmon, Caruthers, Reed, and Gomez. A group of people still stood at the corner of W. Vliet and N. 14th streets, with vigil candles burning. Gomez emphasized that the ensemble should play for those remaining even if others had already left. The musicians set their music stands on the sidewalk and tuned their instruments in the dark while Gaulke talked with people in the park and on the street. He explained what the musicians were doing and answered questions, some posed by media members with lanyards showing RNC credentials. Hallman told WJI that it is very helpful to have a clergy member with them to talk with the crowd, as musicians need to focus on playing. The need for flexibility and on-site adjustments is clear. The musicians do not know the conditions at a scene when they arrive. Hallmon said “anything can go down. Just because law enforcement has secured the scene doesn’t necessarily mean the drama’s done. It’s still active and live.” The group needs to find the right location for playing—a place where they can be heard but not be in the way, Hallmon said. He wants the ensemble to be present without taking up space. “The music should take up the space, not you,” he said. Timing is important. The ensemble has arrived at a scene too early, even before the medical examiner. They found people too angry then, Hallmon said. Yet several hours after a shooting is likely too late. But “there’s a point when you can be there just kind of after folks have figured out what’s happened and are wrestling to find that spot of comfort, and speak in that moment,” Hallmon said. The group usually does not play right away, instead getting a feel for the particular scene and the people there. They play a selection of classical music, jazz, soul, spirituals, blues, and tango. The music is organized into two programs based on five stages of grief, plus a sixth stage of faith. The team talks about what music should be played at the scene. “As a crew of musicians, we feel the moment together,” Hallmon said. “It’s all of those little calculations.” The ensemble does not coordinate with law enforcement. They do not ask for permission to play. People at a scene sometimes have initially objected, but then have told the group that the music was a blessing and what they needed. There’s this thing about people being ready to hear,” Hallmon said. As the octet played at King Park on July 16, several individuals prayed around lit candles along the side of the street. A helicopter circled overhead several times. A man walking by remarked that he had not seen string instruments since high school or junior high.
 Black String Triage Ensemble at the scene of the King Park shooting fatality, July 16, 2024. Photographs and video by Margo Kirchner. The idea of the Black String Triage Ensemble came to Hallmon while he was a Kenosha County Board supervisor walking around his district. Hallmon was elected to the Kenosha County Board at age 23 in 2008 and reelected several times, serving for 10 years. He represented District 7, Uptown Kenosha. Someone asked him what would happen “if a bunch of string players showed up after a crime scene and didn’t play Mozart” or “Orange Blossom Special,” he said. Hallmon ran for state office in 2012 but was unsuccessful. He moved to Milwaukee in 2018 and started Black String Triage Ensemble the next year. The ensemble is now part of a nonprofit, which includes the Black Diaspora Symphony Orchestra, a larger group of classical musicians of color joined by non-Black, non-Latinx musician colleagues (the latter group known as the Legion of the Soul). The orchestra’s repertoire emphasizes the work of Black and Latinx composers and focuses on the life experiences of people of color. The orchestra does not neglect standard repertoire, but “it’s just not the meat on the plate,” Hallmon said. “There’s enough stuff in symphonic music to tell everybody’s story.” Hallmon told WJI that before the Juneteenth concert he eagerly handed Milwaukee police officers his business card and invited them to come hear Joel Thompson’s “Seven Last Words of the Unarmed,” about the last words of seven Black men before they were shot by police. Other pieces at this year’s Juneteenth concert included Florence B. Price’s “Ethiopia’s Shadow in America,” Williams Grant Still’s “And They Lynched Him on a Tree,” and Black String Triage Ensemble musician Reed’s “Cries from OUR Soil.” (The multi-talented Reed’s composition “Brazilians” was performed by Brazil’s Orchestra Sinfonia Nacional in 2023, and her “Robin’s Eye View” was played by the Chicago Philharmonic this summer.) Each year the orchestra plays a memorial concert for missing and departed children. Other concerts have included issues of lynching and the victims of Jeffrey Dahmer. Hallmon has worked with teenagers at Riverside High School and children in programs at Milwaukee Public Schools and around the city. Elementary-age children have told him that they call their city “Killwaukee.” Hallmon believes policy reforms will not succeed in counteracting violence and recklessness. For instance, installing new traffic control barriers and curbs will not change the behavior of mischievous teenagers—it just gives them more to hit, Hallmon said. “There’s no policy in government or law to counteract” young boys stealing cars to impress girls. He sees potential in culturally relevant, trauma informed music and arts, though. Living in the inner city can create post-traumatic stress disorder, he said, and creative writing and music have worked to help veterans recover from the traumas of war. “Why can’t we apply that to the urban population?” he asked. He understands the benefits of sports, but sees a significant problem when kids in first grade say they want to be doctors or teachers but by third grade say they want to be in the NFL. Instead, being physically responsible for creating a sound, such as by placing a finger on a string and moving a bow, can “rewire your brain,” Hallmon said. Creating music can change not only the person listening, but also the musician, he said. In addition, he believes that five minutes of mindfulness via classical music played over the public address system in school each day could reduce behavioral issues. He thinks the Milwaukee Symphony Orchestra should partner with Milwaukee Public Schools and provide snippets of its recording catalog to make that happen. “Print this because it’s true,” he said. “Get it done.” Meanwhile, the ensemble and orchestra will continue to gather and to wait, hoping they will not be needed. When they are, they want their music to help move others toward healing, comfort, and conversations about violence and racism in Milwaukee. PBS created a short documentary about the Black String Triage Ensemble, available on the homepage of the group's website here.  By Margo Kirchner
In part 1 of this series, Wisconsin Justice Initiative described some general guidelines when considering constitutional amendment ballot questions. Now, on to the two specific ballot questions Wisconsin voters statewide will see in the August 2024 election. Wisconsin Justice Initiative urges “no” votes on the two referendum questions on the Aug. 13 ballot seeking amendments to the Wisconsin Constitution. The two proposed amendments relate to the governor’s spending of state and federal funds. One amendment would prohibit the Legislature from delegating its authority to control spending. The other would prohibit the governor from spending money received by the federal government without the Legislature’s approval or direction. Although the Wisconsin Legislature controls the spending of tax dollars through the budget process and has retained its right to approve funds received under block grants, Wisconsin Statute § 16.54 authorizes the governor to accept and allocate federal funds provided to the state “for the education, the promotion of health, the relief of indigency, the promotion of agriculture or for any other purpose.” With some exceptions, the statute authorizes the governor to designate the state board, commission or department to administer such funds, and the designated board, commission or department to then spend them. The statute permits the governor in his discretion to stipulate to conditions placed on the funds so long as he considers them to be in the public interest. Examples of such funds include the disbursement of federal aid after weather disasters, or, as occurred during the pandemic, federal pandemic-related money under the American Rescue Plan Act of 2021 (ARPA). The statute allows for the acceptance and use of money relatively quickly, as the governor should be able to act more swiftly than the Legislature in a crisis. Generally, the Legislature meets for about 14 or 15 months then takes several months’ break until after the next election. Further, agreement in the Legislature on use of funds would be subject to the political process. Also, the governor is responsible for and accountable to all people in the state, not just constituents in a certain district. He may have a broader perspective on a spending decision for the good of the state than those elected to look out for the interests of a smaller constituency. In the joint resolution calling for the two questions, the Legislature identified the problem it was addressing as follows (emphasis added): “Under current law under the statutes, the governor has authority to accept federal moneys on behalf of the state and to allocate federal moneys without the specific approval or participation of the legislature.” As noted in the resolution itself, the asserted problem arises from current statutes, not from constitutional necessity. Statutes can be changed through statutory amendments; constitutional provisions are not necessary. Rep. Robert Wittke (R-Racine) wrote in support of the amendments that “(b)illions of federal dollars poured into our state in the last couple of years. These supplemental federal funds were important to our state’s economic wellbeing, but only Governor Evers made the determination for allocation of all that money without legislative consideration.” The amendments will “restore a balance to how Wisconsin manages supplemental federal money we receive,” Wittke said. Sen. Howard Marklein (R-Spring Green) wrote in support that the amendments will “increase() accountability, efficiency, and transparency in the expenditure of funds received from the federal government by restoring the legislature’s role in approving those expenditures.” Marklein noted that prior to the 1930s and 1940s the Legislature had “final say over the spending of all funds in the state treasury, no matter their source.” However, as federal money became a greater share of state funds, “legislators abandoned that important responsibility” and gave authority to the governor to allocate federal funds. “I believe the only permanent solution is to have the voters in Wisconsin approve an amendment to the state constitution that will restore the legislature’s role in the allocation of federal funds,” Marklein wrote. During the 2021-2022 legislative session, Gov. Tony Evers vetoed numerous bills in which the Legislature sought to direct ARPA funding. In his veto messages, Evers stated versions of the following: I object to the bill and am vetoing it because it limits the ability to use federal funds with the flexibility necessary to confront the variety of challenges posed by recovery from the COVID−19 global pandemic and respond to Wisconsin’s changing needs over the course of the pandemic and our recovery. In Wisconsin, the role of the Governor to oversee use of federal funds under Section 16.54 of the Wisconsin Statutes is clearly established and has been in place for decades, a fact that was confirmed by legislative leadership in a letter they sent to me in April 2020. In lieu of this bill, I will continue to utilize the authority provided to the Governor under Section 16.54 of the Wisconsin Statutes to oversee use of federal funds and will allocate these funds in a manner that is transparent and consistent with both Wisconsin’s needs and federal law. Wittke’s comments and Evers’ veto statements point to the “problem” these amendments are purported to solve: the governor’s rejection of the Legislature’s attempt to control federal pandemic-related funds. When the most recent Legislature approved sending these ballot questions to voters, only Republicans voted for it. (In the Assembly, 63 Republicans voted in favor and 35 Democrats voted against; in the Senate, 22 Republicans voted in favor and 10 Democrats against.) Wouldn’t a truly good policy benefiting all Wisconsinites for decades to come have had bipartisan support? Question 1 on the August ballot reads: “Delegation of appropriation power. Shall section 35(1) of article IV of the constitution be created to provide that the legislature may not delegate its sole power to determine how moneys shall be appropriated?” Ask yourself why this is necessary. Through the state budget process, the Legislature continues to control the spending of vast amounts of state money. Regarding the delegation of power to appropriate federal money, the Legislature has not been forced to delegate its power. Prior Legislatures chose to do so. The Legislature could change the delegation of power to the governor over federal funds by changing the statute. Why does the Legislature need to prohibit in the constitution its own power of delegation? This appears to be the Legislature attempting to get around the governor’s veto of such a statutory change. Importantly, what if a future Legislature believes that it again should delegate authority to the governor or another official to spend certain money? If the ballot question passes, that future Legislature would be barred by the state constitution from doing so. Thus, this amendment can be seen as an attempt to bar future legislatures from giving power back to the governor in the event the legislature ever has a Democratic majority. Also ask how far this provision, if passed, will reach and whether its effects are known. This amendment appears to go beyond just the statute permitting the governor to direct federal funds, extending to any type of delegation. How much will the Legislature extend its reach into the other branches of government to control how executive agencies or courts spend their budgeted funds? Question 2 reads: “Allocation of federal moneys. Shall section 35(2) of article IV of the constitution be created to prohibit the governor from allocating any federal moneys the governor accepts on behalf of the state without the approval of the legislature by joint resolution or as provided by legislative rule?" This change is aimed specifically at § 16.54. Again, the change could be achieved by changing a statute rather than the state constitution. What is the Legislature’s plan for approving or making rules regarding acceptance and distribution of federal emergency aid, especially when the Legislature is not in session? Will Wisconsinites impacted while the Legislature is on break during the last 10 months of a legislative term need to just make do until the Legislature is back in session? The Legislature met just once in 2020 to address needs during the pandemic. This Legislature broke in March 2024 and is not expected to return in full until January 2025. When the Legislature returns to session, how long will Wisconsinites wait if the Legislature disagrees with the governor’s proposals and the use of funds devolves into politics? Money meant to help Wisconsinites could sit unused while people suffer. And will Wisconsin miss out entirely on federal money that has a deadline for acceptance? If the Legislature is out of session or disagrees with the governor and the deadline passes, what then? Jennifer Giegerich of the Wisconsin Conservation Voters wrote in written testimony to the Legislature before it passed these amendment proposals: The current system allows for a governor to act quickly when it is required. Voters are not asking the legislature to formally change the constitution to create a new level of oversight in these limited circumstances. While there may be a theoretical argument to be made, the reality is it will create unnecessary burden and hoops to jump through for those waiting for funds to rebuild or communities dealing with significant public health issues. On the state government website noting lobbyists’ positions on these amendments, organizations urging a “yes” vote included only the Badger Institute and Wisconsin Manufacturers & Commerce. Numerous organizations lobbied for a “no” vote, including, among others, the League of Women Voters of Wisconsin, Wisconsin Education Association Council, Wisconsin Association of Local Health Departments & Boards, Wisconsin Conservation Voters, Wisconsin Public Health Association, Wisconsin Democracy Campaign, The Nature Conservancy, Clean Wisconsin, and Wisconsin Farmers Union. For all of these reasons, WJI believes the answer to both ballot questions is "no."  The Wisconsin Constitution in the Capitol rotunda in Madison. Photograph by Margo Kirchner. By Margo Kirchner
Voters in the Aug. 13 partisan primary election will see two referendum questions on the ballot seeking approval of constitutional amendments. The proposed amendments relate to the governor’s spending of state and federal funds. One amendment would prohibit the Legislature from delegating its authority to control spending. The other would prohibit the governor from spending money received by the federal government without the Legislature’s approval or direction. Some general rules are helpful to keep in mind whenever you see constitutional amendment ballot questions, as there have been several recently with more to come (seven constitutional amendment questions just between April 2023 and November 2024). First, in a 2023 decision the Wisconsin Supreme Court gave the Legislature free rein to describe proposed amendments vaguely or misleadingly. Justice Brian Hagedorn wrote for the majority that the state constitution’s provision about amendment procedure “does not require any substantive discussion of the amendment in the ballot question submitted to the people. No explanation or summary is constitutionally commanded.” A ballot question would violate the constitution’s requirement that an amendment be submitted to the people for ratification “only in the rare circumstance that the question is fundamentally counterfactual such that voters were not asked to approve the actual amendment,” he said. In a concurring opinion, Justice Rebecca Grassl Bradley wrote that the test boils down to “Did the ballot question contain clearly false information?” She said that the “constitutional purpose of a ballot question . . . is not to educate voters.” “Voters are trusted to inform themselves,” she wrote. (WJI published portions of the justices’ opinions in blog posts here, here, and here. Full disclosure: WJI brought the case at issue, arguing unsuccessfully that the April 2020 ballot question was invalid because voters were insufficiently informed and even misled by its wording.) As a result, voters must beware and must assess proposed amendments carefully. Voters need to know what the constitutional amendments are before they walk into the polls, because the questions themselves may be confusing or misleading. Second, know that constitutional amendment referendum questions are framed and worded for a “yes.” The Legislature has passed these provisions, and the legislators who passed them want you to approve them as well. The question may make you think that voting "yes" is common sense. But what do you think about the Legislature? Do you generally agree or disagree with what it does? Third, look for other reasons why a question is on the ballot. One big reason is an attempt to get around the governor when the Legislature and governor are not from the same party. When the governor and Legislature are in accord, statutes are easier to enact. When the parties differ, the governor can block legislation through veto. Constitutional amendments bypass the governor. What is passed by the Legislature goes to the people rather than to the governor. The governor has staff to vet and analyze proposed laws; the people do not. Today, Republicans in the Legislature may be using the constitutional amendment process to accomplish policy changes in a way that avoids or essentially overrides a veto by Democratic Gov. Tony Evers. But the same could be true if the parties were reversed. Another reason for an amendment ballot question may be an effort by the Legislature to draw voters to the polls in certain elections. By focusing on attention-grabbing issues, the proposed amendment may cause certain people to be sure to vote. So look for the reason for the constitutional amendment. Is there an actual problem being fixed? If the problem isn’t clear or as set forth makes you skeptical, maybe there isn’t a problem to be fixed at all. Fourth, consider whether the state constitution should be filled with provisions that exist better as statutes than in the legal document that is the very base for state law. Constitutions often set forth broad rights, principles, and policies, while statutes get into the finer details. When those finer details are in the state constitution they take longer to reverse if unforeseen problems arise or times change. Constitutional amendments must be approved with identical language by two consecutive Legislatures and then wait for an election. Nothing requires that constitutional amendments be approved by the Legislature only after a study of the long-term impacts or the difficulty of reversing course. The April 2024 amendments changing election law come to mind, as elections officials have recently grappled with whether ballot printing can be outsourced and who exactly can work at polling locations. Look for the next post on the two specific ballot questions voters statewide will see in the August election. Read part 2 here.
By Margo Kirchner Several organizations and activists this morning called on Wisconsin legislators and the governor to return 17-year-olds to the juvenile justice system and ensure that no 10-year-olds are eligible for the adult criminal justice system. The call came at a press conference outside the Milwaukee County Courthouse organized by Rev. Joseph Ellwanger on behalf of the Milwaukee Inner-city Congregations Allied for Hope (MICAH) Transformational Justice Task Force. Ellwanger was surrounded by more than two dozen supporters of youth justice reform, including two representatives from Wisconsin Justice Initiative. Ellwanger noted that the press conference was motivated by upcoming hearings in the case of a young boy who killed his mother when he was 10 years old. Under Wisconsin law, anyone charged with first degree intentional homicide, even a 10-year-old, is charged as an adult. (WJI guest columnist Roy Rogers previously wrote about the case here.) Hearings for a "reverse waiver" to juvenile court are set for next week in the young boy's case. Several speakers at the press conference referenced research indicating that the human brain does not fully develop until around age 25. Joshua Rovner of The Sentencing Project flew in from Washington, D.C. for the press conference. He noted that Wisconsin is one of only four states that treat all 17-year-olds as adults in the criminal justice system. (Wisconsin is aligned with Georgia, Texas, and Louisiana on that point.) Similarly, Wisconsin is one of just three states that allows a child as young as 10 years old to be charged as an adult for certain crimes, he said. Regarding the pending case, Rovner emphasized that “this is an elementary school child we are talking about.” Wisconsin’s Legislature and governor need “to fix these laws,” Rovner said. Emily Coddington, associate director of the Wisconsin Association of Family and Children’s Agencies, read a statement on behalf of the Raise the Age Coalition, a group of more than two dozen nonprofit and advocacy organizations pushing for legislation returning 17-year-olds to the juvenile justice system. “Wisconsin has failed to acknowledge what 46 other states already know: that raising the age (of adult prosecution) lowers recidivism rates, responds to often neglected mental health concerns and cognitive development research, provides a restorative and rehabilitative lens to youth justice, and begins to address racial disparities in the criminal justice system,” Coddington said. “We know that youth incarcerated with adults are 34% more likely to commit future crimes than youth served in settings designed to meet their unique needs, yet we continue to charge all 17-year-olds as adults,” she said. Wendy Volz Daniels, a clinical social worker and chair of the Felmers Chaney Advocacy Board, discussed how adults held by the Department of Corrections do not receive important anger management and cognitive behavior treatment until shortly before release. Several thousand individuals are on waiting lists for substance abuse and cognitive behavior treatment. “Sending children to the adult criminal justice system ensures that they will not get the treatment and rehabilitation that is needed,” she said. “Children cannot wait,” Daniels said. “Their needs are better served in the juvenile justice system, where they will immediately receive therapy and treatment,” she said. Two system-impacted individuals, including James Price, spoke about their own experiences as youth in the adult system and how children do not belong there. Price said that he “was absolutely scared” when he was age 14 in adult court in the building he now stood before, and he had to make adult decisions as a 14-year-old. Another system-impacted man said that when he was a teen and waived into adult court he “lost anything that looked like help,” including a social worker and psychiatrist who had been helping with his anger management. The Department of Corrections (DOC) called him “an overweight kid with PTSD” when he entered the corrections system, yet he did not receive necessary treatment for 27 years, shortly before his release. Other speakers included Sylvester Jackson, chair of the MICAH Transformational Justice Task Force; Dr. Kweku Ramel Smith, a psychologist and social justice advocate; and Dr. Richard Shaw, pastor of St. Matthew C.M.E. Church and MICAH president. Jackson emphasized that the DOC is “not prepared to deal with mental health and trauma” and “we should not forget that that’s a child,” referring to the pending case. He argued that society should not accept the charging of a 10-year-old as an adult Smith discussed how the education system has different levels of ages because of the vulnerabilities caused by mismatching age with setting, and the lack of such age differentiation in the adult corrections system. Shaw noted that God shows compassion and mercy, yet under current law “we have little to no compassion and mercy on children.” “We are challenging our government, we are challenging legislators, to change this law,” he said.  Wendy Volz Daniels speaks on June 18, 2024. Photograph courtesy of ACLU-Wisconsin.  By Margo Kirchner Monday, June 17, is Wisconsin Women Lawyers Day, so proclaimed by Gov. Tony Evers to commemorate the 150th anniversary of the first woman's admission to the practice of law in Wisconsin. Lavinia Goodell was admitted to practice law at the Rock County Courthouse on June 17, 1874, following a bar exam conducted orally in a courtroom by a judge and senior lawyers. Milwaukee County will honor its women lawyers in a ceremony at 9 a.m. Monday in Room 200 of the Milwaukee County Courthouse. County Executive David Crowley and County Board of Supervisors Chair Marcelia Nicholson will recognize female deputy corporation counsel and court commissioners, the Milwaukee Justice Center director, and other female attorneys working for the county. In Rock County, a ceremony and short reenactment of Goodell’s admission to law practice is planned for 5 p.m. Monday at the courthouse in Janesville. Wisconsin Supreme Court Chief Justice Annette Ziegler is scheduled to speak, as are Dane County Circuit Judge Angela Bartell (retired), who is president of the Wisconsin Historical Society Board of Curators; State Bar of Wisconsin Executive Director Larry Martin; Green County Circuit Judge Jane Bucher; and Rachel Frost Starkey, a descendant of Goodell’s sister. Rock County Circuit Judge Barbara McCrory will preside over the ceremony. Milton Municipal Judge Kris Koeffler has coordinated the reenactment. A reception will follow at a Janesville wine bar. A committee of women attorneys has been working since mid-2023 not only to commemorate Goodell’s bar admission but also to celebrate Wisconsin women in the law more broadly. In addition to planning the Rock County event, members of the committee advocated for the governor’s proclamation and a series of articles in Wisconsin Lawyer magazine profiling current-day women in Wisconsin’s legal profession. Committee member Nancy Kopp says she came up with the idea of celebrating Goodell's admission to practice almost two years ago. “It dawned on me that there had not been a celebration in 1924 or 1974, 50 and 100 years after Lavinia became the state's first woman lawyer, and I thought it would be a shame to let the 150th anniversary pass without doing something to honor the occasion,” she told WJI. “It is very rewarding to be able to host a celebration of her admission to practice exactly 150 years after it occurred, in a courthouse that sits on the same site as the one in which she passed a bar examination,” Kopp said. Kopp first heard of Goodell in the 1970s and together with attorney Colleen Ball founded www.LaviniaGoodell.com, a website devoted to Goodell’s story and accomplishments. “I have been researching Lavinia for six years now and in addition to learning a great deal about her, I have also learned a great deal about the history of Janesville and Lavinia's contemporaries,” Kopp said. Kopp’s research into Goodell led to contact with descendants of Goodell’s sister, and several of them are expected at the Rock County Courthouse event. “While they were aware that Lavinia was Wisconsin's first female lawyer, they knew very few details about her life and have been very excited to see all the information that has come to life,” said Kopp. Committee members also have planned a special continuing legal education program on June 20 at the State Bar of Wisconsin’s annual meeting and conference. The program will discuss legal developments affecting women such as the right to practice law, the right for married women to have credit and own property in their own names, fair employment, and the Violence Against Women Act. Presenters include Wisconsin Supreme Court Justice Ann Walsh Bradley, Milwaukee County Circuit Judge Hannah Dugan, former State Bar President Diane Diel, Elizabeth Fernandez, Martina Gast, and Kopp. On Aug. 8, Old World Wisconsin will stage a reenactment of Goodell's supreme court battle with Chief Justice Edward Ryan for the right to argue before the Wisconsin Supreme Court. Back in 1874, attorneys were admitted to practice at the trial court level. Goodell found that practicing before the state Supreme Court was a separate matter. Her attempt to appeal a case to that court was rejected because of her gender. Goodell lost her petition to that court to proceed with her client’s appeal. Ryan infamously wrote in his decision denying Goodell’s application that “(t)he law of nature destines and qualifies the female sex for the bearing and nurture of the children of our race and for the custody of the homes of the world and their maintenance in love and honor. And all life-long callings of women, inconsistent with these radical and sacred duties of their sex, as is the profession of law, are departures from the order of nature; and when voluntary, treason against it.” Undeterred, Goodell found another route. She drafted a bill to prohibit gender discrimination in the practice of law, persuaded male legislators to pass it, and persuaded a male governor to sign it, opening the Supreme Court door to women. WJI profiled Goodell, her groundbreaking achievement, and her fight to argue before the Wisconsin Supreme Court in this “Unsung Heroes” post. Read more here. Earlier this year WJI called upon the Wisconsin Supreme Court and the State Capitol and Executive Residence Board to commemorate this 150th anniversary year with portraits of the court’s female chief justices and a bust of Goodell in the Supreme Court hearing room foyer. Goodell’s bust could be appropriately placed opposite Ryan’s.
Text of Evers' proclamation: WHEREAS; over 9.400 women lawyers throughout Wisconsin pay a vital role in providing legal services to the public for law firms, private corporations, banks, insurance companies, nonprofit organizations, and government agencies; and WHEREAS; on June 17, 1874, Lavinia Goodell became the first woman lawyer in Wisconsin, pioneering a path for women in the legal profession across the state; and WHEREAS; despite facing institutional barriers, including being refused admission to practice before the Wisconsin Supreme Court in 1875 based on her gender, Lavinia Goodell demonstrated unwavering resilience and advocated for legislation that prohibited discrimination on the grounds of sex in admission to practice before the Wisconsin Supreme Court, which was signed into law in 1877; and WHEREAS; over the past 150 years, countless women have entered the legal profession, contributing to the richness, diversity, and fairness of the Wisconsin and national legal system; and WHEREAS; women lawyers in Wisconsin have been instrumental in driving significant legal reforms, advocating for the rights of the underrepresented, enhancing the delivery of justice, and fostering an inclusive environment that values diversity and equality within the legal community; and WHEREAS; the state of Wisconsin recognizes the lasting impact of women lawyers on the fabric of the state's legal system and emphasizes the importance of continuing to support and promote the advancement of women in the legal profession; NOW, THEREFORE, I, Tony Evers, Governor of the State of Wisconsin, do hereby proclaim June 17, 2024, as WISCONSIN WOMEN LAWYERS DAY throughout the State of Wisconsin, and I commend this observance to all our state's residents. 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. |
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