By Margo Kirchner
 
A judge denied JusticePoint’s motion for a preliminary injunction to maintain its contract providing services to low-income individuals facing citations in Milwaukee Municipal Court.
 
Milwaukee County Circuit Judge J.D. Watts issued his ruling in writing after hearing arguments on Thursday afternoon. He stayed his decision for a month to allow JusticePoint time to appeal and ask the court of appeals for a longer stay.
 
JusticePoint has run Milwaukee’s Municipal Court Alternative Services Program (MCAP) since 2015. Some of the organization’s staff have worked on the MCAP for four decades.
 
The goal of the MCAP is to help low-income municipal court defendants comply with alternatives to forfeiture payments (such as community service) and find needed social services like mental health or drug abuse treatment. JusticePoint is paid by the city for running the MCAP; those using the MCAP services pay nothing.
 
In spring 2023, Milwaukee Municipal Court officials told JusticePoint that judges were troubled by how JusticePoint was sharing citations with Legal Action of Wisconsin attorneys who represented municipal court defendants. The citations are public records that the attorneys would be entitled to receive upon request. JusticePoint stated at a public meeting in June that the practice of sharing citations was discussed with city officials years ago and no one objected to it until recently.
 
In May, city officials notified JusticePoint that its contract would terminate effective July 11. The city cited a contract provision allowing termination for “convenience.” Otherwise, the contract would have continued through Dec. 31, 2023, with a remaining one-year renewal allowing extension through 2024.
 
JusticePoint sued the city on July 10, moving for a temporary restraining order and preliminary injunction to keep the contract in place. JusticePoint alleged that the termination on short notice without a right to cure violated the Wisconsin Fair Dealership Law (WFDL).
 
Milwaukee County Circuit Court Judge Hannah Dugan granted a TRO on July 10, keeping JusticePoint’s contract alive until Thursday’s hearing.
 
Attorney Jeffrey Mandell represented JusticePoint at the hearing. Attorney Kathryn Block represented the city.
 
Mandell noted a lack of any evidence submitted by the city regarding the motion and walked through the WFDL statutory provisions and caselaw.
 
Under the WFDL, a dealership exists when a person or entity “is granted the right to sell or distribute goods or services” or use a trademark, and when a “community of interest” exists. Mandell argued that JusticePoint distributes city services to the individuals using the MCAP and that JusticePoint had invested in the program, meeting the definition.
 
Watts questioned Mandell about the lack of financial payment by those using JusticePoint’s services and discussed several cases regarding distribution of services.
 
The city did not dispute that a municipality may be considered the grantor of a dealership under the WFDL. Block instead focused her comments on city contracting requirements. Watts indicated that city rules on contract procurement had no bearing on whether the WFDL applied in the case. 
 
After a brief recess, Watts returned to court with a written decision finding that JusticePoint’s relationship with the city was not a dealership under the WFDL. He said that JusticePoint’s argument was “a bridge too far” regarding application of the WFDL.
 
In the written decision Watts found that JusticePoint distributes its own services, not those of the city. “The City did not have these services. The City had to go out and contract with JP to obtain them. The services that JP provided were uniquely JP’s,” he wrote.
 
He also found no community of interest between the parties because JusticePoint received no money from the individuals served. Money it invested in the contract services was done on its own behalf, not on the city’s, he said. 
 
Watts set a hearing on Nov. 8 to discuss lifting the stay of his decision if JusticePoint has not appealed and sought a stay from the court of appeals by that date. The stay means that the JusticePoint contract remains in place for another month unless JusticePoint chooses not to appeal.
 
Mandell said he needed to discuss the issue of appeal with his client.
 
Judge Molly Gena did not take office until May 1, 2023, and in a public meeting in June said she was not involved in the decision to terminate JusticePoint’s contract. Milwaukee Municipal Court Administrator Sheldyn Himle stated publicly in June that the decision to terminate the contract was made by the two other Milwaukee municipal judges, Phil Chavez and Valarie Hill. 
 
The city in its brief on the motion for preliminary injunction said no other vendor is in place to take over from JusticePoint. The city said it was “confident that another competitive procurement” will draw other vendors and that “[i]n the interim, Judges are able to make direct referrals to social service agencies without the need for a vendor intervening in the process.”

Updated

​The 2020 crime victims’ amendment to the Wisconsin Constitution stands. The Wisconsin Supreme Court has rejected Wisconsin Justice Initiative’s challenge to the amendment.

WJI challenged the amendment, known as "Marsy's Law," on the grounds that the question put to voters for approval on the April 2020 ballot failed to properly inform them of the amendment’s contents and, in fact, misled them about the elimination of state-law rights of those accused of crimes. In addition, WJI argued, more than one ballot question was needed because the amendment had multiple parts, WJI argued.

The Wisconsin Supreme Court disagreed, through a majority decision and multiple concurrences. Justice Brian Hagedorn wrote on behalf of the court. Justice Ann Walsh Bradley dissented. (Details on the decision to follow in a separate blog post.)

Attorney Dennis Grzezinski, representing the plaintiffs, responded to the decision. “The trial court, in a careful and well-reasoned decision, had found the ballot question to be inadequate to inform Wisconsin voters of the contents of the amendment, and we were hopeful that that decision would be affirmed by the Supreme Court,” he said. “WJI and the individual plaintiffs are disappointed by the Supreme Court’s decision.”

WJI and four individual plaintiffs brought the case in December 2019 and won at the trial-court level. In November 2020, Dane County Circuit Court Judge Frank D. Remington declared that the April 2020 ballot question used to pass what is known as “Marsy’s Law” failed to fully and fairly inform the public of the essential components of the amendment, misstated the contents and impact of the amendment, and improperly encompassed more than one subject, in violation of constitutional requirements. Remington stayed his decision pending appeal, so the changes went into effect.

Attorney General Josh Kaul appealed Remington’s decision to District III of the Wisconsin Court of Appeals, located in Wausau. Kaul appealed on behalf of himself, the Wisconsin Elections Commission, its chair, and then-Secretary of State Douglas LaFollette.

The case skipped from the Court of Appeals to the Wisconsin Supreme Court on certification by the District III panel of judges. In certifying the appeal, the court of appeals remarked that the case involved “significant questions of state constitutional law, the resolution of which will have a sweeping effect on our criminal justice institutions and those operating within them, including victims, defendants, prosecutors, defense attorneys, law enforcement officials, and our courts.”

The Supreme Court heard oral argument on September 6, 2022, and issued its decision on May 16, 2023.

“WJI agrees with Justice Ann Walsh Bradley's dissent,” said WJI executive director Margo Kirchner. “The Supreme Court has given the Legislature permission to frame and word referendum questions that leave out important information for voters and even mislead them. The Wisconsin Constitution is the foundation of our state’s laws; changes to it should not occur on the basis of insufficient and misleading ballot questions.”

WJI is disappointed with the outcome, but also with how the majority reached it, said Kirchner. The court decided an issue that the parties never argued in the trial court or on appeal. The court threw out the legal standard from a century-old case, which the state defendants did not challenge, and created a new standard. The parties were not asked to re-brief the case under the new standard. 

During the three years the victims' rights amendment has been in effect, it has created significant challenges for criminal courts and their participants, said WJI president Craig Johnson, a criminal defense attorney and another plaintiff in the case.

"Unfortunately, the Court's decision does not fully recognize the chaos and confusion that this amendment has ushered into the day-to-day workings of our criminal courts,” said Johnson. “The amendment is a story of arguably good intentions that produced confusing and unanticipated results.”

​“Further appeals can be expected, as various aspects of Marsy's Law are challenged in trial courts,” said Johnson. “I don't think we've heard the final verdict on Marsy's Law."

In addition to WJI and Johnson, plaintiffs in the case included criminal defense attorney Jerome Buting, attorney Jacqueline Boynton, and former Wisconsin Sen. Fred Risser.

By Margo Kirchner

Russ Feingold and Peter Prindiville are raising concern about the movement toward a constitutional convention and progressives’ failure to take the movement seriously. 

The two discussed constitutional amendments and the contents of their book, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It, with Mike Gousha at an “On the Issues” event at Marquette University Law School on Tuesday.

Feingold is president of the American Constitution Society and a former U.S. senator from Wisconsin. Prindiville is a Washington, D.C., attorney and fellow at the Stanford Constitutional Law Center.

Article V of the Constitution sets forth two ways to amend the document: (1) a proposed amendment supported by two thirds of both houses of Congress, or (2) “on the Application of the Legislatures of two thirds of the several States,” a convention. 

Either path requires subsequent ratification by the legislatures or conventions of three-fourths of the states.

Since the signing of the Constitution in 1787, only 27 amendments have been ratified, with 10 of those a part of the bill of rights in 1791. As noted by Feingold at the event, there has not been a new proposed and ratified amendment for over 50 years.

No constitutional convention has ever occurred.

However, state legislatures have been quietly passing applications for one.

The Wisconsin Legislature passed a joint resolution in January 2022 calling for a convention to curtail the federal government. Its application for a convention was the subject of a recent dispute between legislators and Secretary of State Doug La Follette about mailing the resolution to federal officials.

At the On the Issues event Feingold and Prindiville called any Article V convention dangerous for several reasons.

First, the Constitution provides no rules on how such a convention would be held, they said. The Constitution does not clearly state how delegates are appointed, they said. Nor does it indicate what the parliamentary rules would be or whether anything higher than majority vote would be required to pass new language. “There are no rules for this,” Feingold stated, while Prindiville added that there are is no prescribed forum to resolve disputes that may occur—nothing indicates that the Supreme Court would have any involvement, for instance.

Feingold and Prindiville pointed out that Article V does not provide for involvement of “We the People.” Delegates could be chosen by legislatures, with no citizen involvement, vote, or approval. Feingold noted that the governor “has nothing to do with this.” It’s just the legislatures, and gerrymandered legislatures may not reflect the will of the people, he said.

Also, nothing in the Constitution restricts what gets discussed or reworked at a convention. Except as to equal voting in the Senate (specifically noted in Article V), everything could be “on the table” and “fair game,” Feingold and Prindiville said. Nothing in the Constitution provides a means for reining in what gets discussed and decided at a convention, they said.

A “runaway convention” could include lawyers altering language and rights that would have a profound effect, they warned. Prindiville identified as an example possible elimination of federal-court jurisdiction over civil rights cases. 

Then there is the issue of the groups currently pushing for a convention—groups that Feingold and Prindiville say are well funded and aim to gut the federal government.

In addition to state legislatures’ under-the-radar applications for a convention, various groups pushing for a convention have been holding mock events, grooming people to be convention delegates. According to Feingold, the “far right is very good at long-term planning.”

Feingold and Prindiville warned that Americans need to take this movement seriously. Progressives cannot assume that Article V will not be used, they said. Article V is in the Constitution and needs to be discussed and debated now, they said. They want to make amending the Constitution a topic of political debate and even discussion at the dinner table.

Feingold said that those who may call him alarmist have not learned from history. He pointed to the lack of importance given to the “archaic” Second Amendment for years as an example.

To progressives who may support a convention to eliminate the electoral college or proclaim that corporations are not people, Feingold again pointed to the lack of involvement by “the people” in the convention process and the likely control by legislatures and well-funded interest groups.

In addition to raising concern about the movement toward a convention, Feingold and Prindiville propose a way forward by altering Article V to make amendment easier and available to the people rather than just legislators. Feingold noted that the U.S. Constitution is one of the hardest to amend, and Prindiville noted that even George Washington admitted that the Constitution as first ratified had flaws. ​

By Margo Kirchner

First of two parts

The capture and escape of Joshua Glover in southeastern Wisconsin in 1854 sparked an abolitionist outcry and an attempt by the Wisconsin Supreme Court and Legislature to nullify federal slavery law.

Two years earlier, Glover had escaped from slavery in St. Louis and established a life in freedom in Racine, but federal deputy marshals captured him in his home under the Fugitive Slave Act of 1850. Outraged citizens of Milwaukee and Racine broke Glover out of jail and sent him on the Underground Railroad. Glover eventually reached safety in Canada.

Although Glover departed Wisconsin by mid-April 1854, his legal impact here had just begun. His escape from custody led to a struggle between state and federal authorities and the state’s defiance of the U.S. Supreme Court. 

Benammi Stone Garland purchased Glover, then known only by his first name, on January 1, 1850, on the steps of the St. Louis Courthouse. In May 1852, Glover escaped from Garland’s farm and crossed the Mississippi River to Alton, Illinois. Garland placed a reward notice in a Missouri newspaper on May 19, 1852, and ran the notice for about two weeks.

Glover traveled about 350 miles to Racine, arriving in late spring or early summer. Racine was a bustling community of 5,000 people due to its trading post, harbor, and plank road to Janesville. About 60 Black or mixed-race adults were recorded in the city’s 1850 census.

Glover found a job at a sawmill on the Root River a few miles out of town. He chose his last name and had his own home, where he lived freely for two years. 

Wisconsin’s antislavery movement was active by the early 1850s. The Burlington Liberty Association, the first antislavery society in the state, had been around since 1844. Sherman Booth published an abolitionist newspaper in Milwaukee called the Free Democrat. Chauncey Olin published the abolitionist American Freeman newspaper in Waukesha. The Underground Railroad (UGRR) stopped in Waukesha and elsewhere. And, as described by authors Ruby West Jackson and Walter T. McDonald, Racine was a “hotbed of abolitionist sympathizers.”*

Clayborn Benson, executive director of the Wisconsin Black Historical Society, said in a recent interview that abolitionists were motivated by several reasons. Some opposed slavery on religious grounds, while others opposed slavery for political purposes as part of the developing Republican Party. Some were European immigrants with ancestors who had been enslaved, while “free-soilists” did not want to compete against the South’s unpaid labor when it came to agriculture. 

Although Wisconsin’s antislavery movement was vigorous, Blacks nevertheless were not close to being treated equally with Whites. They had the right to assemble and act as jurors, said Benson. But Blacks were still denied the right to vote, and Whites did not want Blacks living nearby. In 1850 Milwaukee, about 100 Blacks lived in a city of 20,000.

Political battles raged in the nation over slavery in territories and newly formed states. Sentiment ran strongly in Wisconsin against slavery and its reach northward, and there was strong opposition  to returning  escaped slaves who had become Wisconsin residents. Many people in Wisconsin wanted “no part of enslavement,” said Benson.​

Slavery’s reach from the South, however, found support in the U.S. Constitution and federal law.
Article IV, section 2 of the U.S. Constitution provided that a slave in one state would not be discharged from service by escaping to another state and would be delivered back to his or her owner on demand. The Fugitive Slave Act of 1793 established a process for slave owners to reclaim runaway slaves, but in southern eyes it did not have teeth.

As part of the Compromise of 1850 between northern and southern states, a new fugitive slave act beefed-up the rights of slave owners to recover escaped slaves. A slave owner could obtain a court order in his home state confirming the status of a slave, then proceed to find and arrest the escapee with the assistance of federal marshals. A U.S. commissioner, rather than a regular district judge, could determine the fate of the person. Notably, the commissioner received a larger fee for sending a fugitive to slavery than for releasing him or her. The alleged fugitive slave was denied a jury trial or any other opportunity for testimony or defense. Moreover, the act created criminal penalties for citizens who helped escaped slaves or interfered with their return.

This is the first of two posts about Joshua Glover. Read the second one here.


The Fugitive Slave Act of 1850 “brings fire” to northern abolitionists and made them determined to help fugitives reach Canada, said Benson. Wisconsin politics included disagreements regarding whether the state had to defer to the federal government’s efforts to enforce the 1850 act. From 1850 to 1860 “there is turmoil,” Benson said. 

Garland remained intent on reclaiming Glover under the 1850 act. He somehow learned that Glover was in Wisconsin and provided a St. Louis court with proof of his ownership and Glover’s escape. The court ordered Glover’s removal from Wisconsin. 

Garland arrived in Milwaukee in early March 1854 with a St. Louis police officer and the Missouri court order. He swore out an affidavit and presented his paperwork to U.S. District Judge Andrew G. Miller, who issued a warrant for Glover’s arrest. 

Deputy U.S. Marshal Charles Cotton accompanied Garland and the St. Louis police officer to Racine, where they were joined by another federal deputy marshal.

Garland and the officers surprised Glover at his home on Friday, March 10, 1854. After a physical struggle the officers subdued Glover and led him away in shackles. Several reports indicate that Glover was bruised and bloodied during the capture.

Possibly because of the small size of the Racine jail or the abolitionist forces in Racine, the captors transported Glover to Milwaukee County’s larger and stronger jail located in Courthouse Square (now Cathedral Square). ​

By Margo Kirchner and Gretchen Schuldt

WJI is launching a project to fill some of the holes of Wisconsin legal history. 

We're looking for the people and events that played significant but largely overlooked roles in the state's legal development. 

There are likely many holes that can be filled; we just don’t know about them yet because the people and events have been deleted or relegated to the background for decades or longer. Their stories need to be told so we have a more comprehensive view of Wisconsin legal history.
​
This project was inspired by the absence of diversity in the four murals, completed in 1915, that hang in the State Supreme Court. 

They depict historic events and that's all well and good, but the only mural that includes people of color depicts a murder trial where the defendant is a Native American and the person being celebrated is a White male judge, one with a somewhat cloudy historical reputation. 

The other murals celebrate events that occurred in different times and places.

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This mural represents Roman law, showing Caesar Augustus Octavius presiding over the trial of a soldier; the scene depicts all White men. ​

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There are a lot of people and historic events not recognized in the Supreme Court art. The murals are definitely a product of their time.

But it's a different time now. 

We want to hear about the great variety of people and events that shaped Wisconsin legal history. 

The people don’t have to be lawyers, but they must have played a significant role in advancing the cause of justice in Wisconsin. A plaintiff in a civil rights lawsuit could qualify, for example, or a defender of consumer rights, or someone who broke down a legal barrier so others could succeed. 

We also are looking for the significant events that brought about positive change in Wisconsin law or in Wisconsin’s legal system, whether those events occurred in or outside of a courtroom.

​White people, Black people, Brown people, men, women, children. Protests, court decisions, orations – let's hear about them!

We will publish information about these folks and events on our blog; funding willing, WJI eventually will transform the information into a book and make it available to the public. We also have various events in mind to celebrate these unsung characters and occasions.

Please help us identify people and events that deserve more recognition for their place in Wisconsin’s legal history. You can send as much information as you want, but at minimum we need:

-The name of the person / identity or name of event
-A picture, if available
-A brief description of the person or event and the person or event’s impact on Wisconsin law or legal history
-Where we can find out more about the person or event

We are closing this phase of the project on Nov. 15.

Please send the information to [email protected] or mail it to WJI, P.O. 
Box 100705, Milwaukee, WI 53210