 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.
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 Milwaukee Municipal Court, one of the courts issuing arrest warrants and writs of commitment for unpaid court forfeitures and fines, says a recent report by the ACLU of Wisconsin. By Alexandria Staubach
Warrants and civil commitments persist in municipal courts across the state of Wisconsin despite widespread investigation and advocacy against the practice, according to a report published last week by the ACLU of Wisconsin. Municipal courts are permitted by state law to employ “stay to pay” contracts. Under stay to pay, those with outstanding debts spend days in jail to satisfy their forfeiture. The maximum time of imprisonment is 90 days at a minimum rate of $50 per day. Jail time is being served for offenses like contributing to truancy, operating a vehicle without a license, non-registration of a motor vehicle, loud and unnecessary noise, and even a dog running at large, the report says. The use of such jail time is common in some courts. In Waukesha, for instance, 499 warrants were satisfied by defendants serving jail time between 2023 and 2024. Meanwhile, other municipal courts do not use jail time to enforce nonpayment at all. The report describes two systems of justice: one for the haves and one for the have-nots. Those unable to pay court fines and forfeitures suffer extra penalties such as jail time. Effects of incarceration include missed wages, having to appear in court time and again to assert an ongoing inability to pay, and even loss of housing. To demonstrate the extent of possible outcomes, the report details the story of one grandmother who, after experiencing homelessness, lost a public housing opportunity because of outstanding municipal warrants for failure to pay. “Monetary sanctions trigger a long series of consequences and barriers to full societal integration for families who cannot pay, which are very different from the effects of monetary sanctions on those who can afford them” the report says. While there are legal protections for those who can demonstrate an inability to pay, having an attorney to enforce those rights is the exception rather than the norm. The report found racial inequities consistent with those well documented in the greater criminal justice system. The report shows the most significant impact to those in low-income communities of color, with 71% of warrants and 49% of commitments issued against Black defendants in Milwaukee Municipal Court between January 2023 and August 2024. In La Crosse County, where the Black population represents 1.8% of the total population, 33% of those incarcerated on municipal warrants were Black. Jailing those who fail to pay municipal forfeitures actually costs the municipality money. The jail that hosts such stay-to-pay contracts submits a bill to the municipal court that ordered the time. The report says this practice can cost a municipal court more in enforcement than a forfeiture was actually worth. The report’s recommendations include eliminating warrants and incarceration for failure to pay fines; removing old outstanding warrants, especially in jurisdictions that have stopped incarcerating people for failure to pay; appointing counsel at hearings concerning the ability to pay; and improving municipal court record keeping to make municipal court revenue generating practices more transparent. Wisconsin municipal courts generated more than $35 million in revenue in 2023, the report says. A 2018 report from the Wisconsin Director of State Courts and the National Center for State Courts also recommended reducing the use of incarceration for failure to pay municipal forfeitures. Dr. Emma Shakeshaft, the author of the ACLU of Wisconsin report, is a WJI board member. This afternoon WJI petitioned the Wisconsin Supreme Court to require trained interpreters in municipal court proceedings involving low-English-proficiency (LEP) individuals.
WJI’s proposed new rule of procedure would bring municipal courts more in line with circuit courts, which are required to use “qualified” interpreters in proceedings involving LEP individuals. Qualified interpreters must meet certain requirements regarding their capabilities and accuracy. The current rule requires qualified interpreters in municipal courts only in matters involving juveniles. Otherwise, municipal judges are allowed to ask a party to bring a friend or family member—sometimes even a minor child—to court to interpret legal proceedings. “I’ve even seen a judge ask the gallery—the defendants awaiting their own cases to be called—if anyone spoke Spanish and could interpret proceedings when a woman did not bring someone with her to court,” said WJI Executive Director Margo Kirchner. The proposed new rule for municipal courts tracks the circuit court rule, with a major difference. The proposed rule divides proceedings into 1) evidentiary hearings that involve testimony and 2) other proceedings. Qualified interpreters would be required for all evidentiary hearings, including trials. In other proceedings, such as initial appearances or status conferences, the municipal court could use a telephonic, video, or computerized service approved by the director of state courts. Interpretation of legal proceedings by untrained friends, family members, or strangers would no longer be permitted. WJI wrote in its brief supporting the petition that “LEP individuals in Wisconsin today are not receiving proper access to qualified interpreters in municipal court proceedings.” Family members and friends acting as interpreters may not be proficient in the languages being used and may have conflicts of interest. “Even assuming they are proficient, these individuals almost certainly lack professional training as interpreters, let alone the specialized legal training necessary for properly interpreting court proceedings,” WJI wrote. “The ability to understand the words of the judge and the opposing party during a legal proceeding is a crucial element of due process. Without the help of a qualified interpreter, LEP individuals cannot meaningfully participate in their own legal proceedings This deprivation of due process rights has serious legal and practical consequences,” WJI wrote. WJI added that holding proceedings without providing qualified interpreters may also amount to national origin discrimination. “Very few defendants in Wisconsin's municipal courts have attorneys. This problem is compounded for those who do not understand the language being spoken in the courtroom,” said WJI board member and former Milwaukee Municipal Judge Jim Gramling about the need for the petition. “Municipal courts handle drunk driving cases, building and health code violations, charges of disorderly conduct, vandalism, marijuana possession, assault and battery. Forfeitures can reach into the thousands of dollars. Defendants in these cases deserve full interpreter services,” Gramling said. “Every court in Wisconsin, by law, must provide full interpreter services for defendants with one exception—the 230 municipal courts which handle over 400,000 cases every year,” Gramling said. “Municipal courts fly under the radar for the public and media, but that is where many people interact with the court system. As we say in our brief, municipal court cases involve real charges and real consequences," Kirchner said. “Those charged with offenses in municipal court, just as in circuit court, should be able to understand what is said and argue their case to the judge with accurate interpretation.” The petition is part of WJI’s broader effort to improve municipal court outcomes for defendants, especially low-income and minority individuals. “Since 2016, WJI has educated the public about municipal courts, monitored municipal court proceedings, and advocated for an end to jail and driver’s license suspension in response to unpaid municipal court forfeitures,” said Kirchner. “While monitoring municipal courts, we saw the frequent use of friends and family members when interpreters were needed,” said Kirchner. WJI has published public education information to help defendants understand municipal court proceedings. The materials include a Spanish-language video and pocket guide. Under the proposed rule, interpreters would be provided at municipal expense. WJI argues that the cost is reasonable and necessary in light of the important interests at stake. WJI awaits review of the petition by the Supreme Court. By Gretchen Schuldt
A Milwaukee County judge acted with “apparent antipathy” toward a state law designed to protect businesses from unfair treatment when he ruled the law did not apply to a contract between Milwaukee Municipal Court and JusticePoint, a nonprofit that provides services to indigent defendants, the organization alleges in an appeals brief. Circuit Judge J.D. Watts “disregarded the factual record, made unsupported factual findings, and erroneously interpreted and applied the law to find that the relationship between JusticePoint and the City does not qualify as a dealership under the WFDL,” attorneys Jeffrey Mandel, Erin K. Deeley, and Rachel E. Snyder wrote on behalf of JusticePoint. The WFDL is the Wisconsin Fair Dealership Law, the 50-year-old statute designed to protect businesses from unfair and arbitrary actions by entities issuing contracts. The appeal seeks reversal of Watts’ ruling, a remand to circuit court, and a temporary injunction while the case is litigated there. JusticePoint qualifies for WFDL protection and the city must show that it met certain requirements in ending the contract, they wrote. The city must show it had good cause to end the relationship, that it issued proper notice, and that it provided JusticePoint an opportunity to correct any performance problems. “The city admits to making no effort to comply with any of these three requirements, relying instead on a ‘convenience’ clause as its sole justification for terminating JusticePoint’s contract,” they wrote. “This is patently insufficient under the WFDL.” JusticePoint’s agreement to provide Milwaukee Court Alternatives Program (MCAP) services was terminated at the behest of two of the three Milwaukee Municipal Court judges without explanation, under a “convenience” clause that allows the city to end a contract for any reason with 10 days' notice. The city notified JusticePoint of the termination in May 2023, giving the organization until mid-July to finish its work. Municipal Court officials did not name any successor provider program and said the court would seek bids sometime in the future. That meant that without JusticePoint, Municipal Court defendants would lose the assistance the organization provides for completing community service requirements, handling inability-to-pay forfeiture cases, or finding various social services. JusticePoint sued over the termination, alleging that it violated the WFDL, and Circuit Judge Hannah Dugan temporarily placed the contract cancellation on hold. Watts took over the case after that, ruling against JusticePoint after an October hearing on the matter. The city contended that, applied to a municipality, the WFDL should protect only businesses with a profit motive or a business offering, to protect public procurement law, the JusticePoint lawyers said. “Its concern was not a concrete one in this instance but an abstract fear of a potential slippery slope,” they said. The city also argued that applying the WFDL would lead the city to violate competitive procurement regulations, but “admitted this might be an illusory issue because it ‘may be accurate’ to say that the instant case has no bearing on procurement regulations.“ “Though the city maintained its consistent agreement that JusticePoint distributes city MCAP Services, the trial court at numerous points attempted to steer the city into making arguments contrary to that position — and inconsistent with the factual record,” they said. Minutes after the October hearing ended, the attorneys wrote, Watts “presented a single-spaced, 11-page written decision that disregarded the city’s arguments and the undisputed factual record, concluding instead that: 1) the relationship between JusticePoint and the City was not a dealership protected under the WFDL because JusticePoint was distributing its own, rather than the City’s, services; and 2) there could be no community of interest between the parties in the absence of a ‘joint undertaking’ and shared profitability.” Watts then prompted the city to seek dismissal of the entire case, which he granted, they said. Appellate Judge M. Joseph Donald issued a stay pending appeal, maintaining the suspension of the contract termination. At the trial court level, Watts “made a series of legal errors in applying the law to the undisputed facts of this case, fundamentally narrowing the purview of the WFDL in contravention of both statutory text and binding precedent,” the JusticePoint attorneys said. Watts held, for example, that the “WFDL cannot apply outside of conventional franchise-franchisee, profit-driven, commercial relationships,” an error appellate courts have consistently warned against, they wrote. “To the contrary, JusticePoint’s delivery of services on behalf of the City fits soundly in the ambit of the WFDL under the uncontested facts before this Court,” they said. The nonprofit qualifies for protection under the law because it has an agreement with the city, distributes city services, and shares a community of interest with the city, they said. While the city effectively conceded that JusticePoint distributed city services, Watts found differently, ruling that JusticePoint was distributing its own services. Watts found it dispositive that the city “ ‘did not have the services’ themselves and . . . Municipal Court defendants do not directly pay JusticePoint for the MCAP Services those defendants receive,” the lawyers wrote. The law does not require that, however, they said. It simply requires that a dealer sell or distribute the grantor’s — in this case the city’s — goods or services. “If WFDL protection applied only if JusticePoint was selling city services, the agency could charge a penny meeting Watts’ “atextual, invented requirement” but not making JusticePoint profitable or defraying city expenses for MCAP services, they said. Watts’ misinterpretation also would effectively block charitable nonprofits from WFDL protection if they provide services free of charge for recipients, they wrote. Watts also misread the law’s “community of interest” provision to require JusticePoint to maintain a commercial business enterprise receiving revenue and setting prices, the JusticePoint attorneys said. Under state Supreme Court precedent, a community of interest exists when there is continuing financial interest and interdependence, they said. A “ ‘continuing financial interest’ contemplates a ‘shared financial interest in the operation of the dealership or the marketing of a good or service,’ while ‘interdependence' is the ‘degree to which the dealer and grantor cooperate, coordinate their activities and share common goals in their business relationship,’ ” they wrote. Watts also “arbitrarily rejected the uncontested factual record” to find that there was "no coordination of activities” between the city and the nonprofit. He found that JusticePoint’s investments in staff and computer programming infrastructure needed to run its program were not substantial compared to its overall expenses, despite there being no evidence of overall expenses offered, the lawyers said. While JusticePoint does not charge clients for its services, it saves the city money and has a financially interdependent relationship with the city, they wrote. The city’s own goal for the program, as stated in its most recent request for proposals to operate the program, is to “ ‘ultimately reduce Milwaukee County Criminal Justice Facility and House of Correction populations and reduce the associated cost to the City of housing these offenders.’ “ The agency also works closely with Municipal Court and other city officials in its program operations, they said. By Alexandria Staubach
The Wisconsin Court of Appeals on Monday ordered that JusticePoint’s services for Milwaukee Municipal Court remain in place while litigation between the organization and the City of Milwaukee proceeds. As WJI previously reported, JusticePoint’s contract to provide Milwaukee Court Alternatives Program (MCAP) services was terminated by two of the three Milwaukee Municipal Court judges without much explanation, under a “convenience” clause. The city notified JusticePoint of the termination in May, giving the organization until mid-July to finish its work. The court did not name any successor provider for the MCAP services and has said it will seek bids at some future date. That means that without JusticePoint, municipal court defendants will lose the assistance the organization provides for completing community service requirements, handling inability to pay forfeitures, or finding various social services. JusticePoint sued the city on July 10, moving for a temporary restraining order (TRO) and preliminary and permanent injunctions to keep its contract and the program alive. JusticePoint argued that termination of its contract violated the Wisconsin Fair Dealership Law (WFDL). Milwaukee County Circuit Judge Hannah Dugan granted JusticePoint a TRO on July 10 to prevent expiration of the contract. But on Oct. 5, Judge J.D. Watts denied a preliminary injunction and dismissed JusticePoint’s case. Watts issued a 30-day stay of his decision to allow an appeal, but he refused to issue a stay that extended any longer. JusticePoint then sought continuation of the TRO by the appeals court. Justice Point will now continue to provide services to Milwaukee Municipal Court pending a decision on the appeal. The issues on appeal will require the court to evaluate whether the WFDL applies to the city’s relationship with JusticePoint. Under the WFDL, a dealership exists when a person or entity “is granted the right to sell or distribute goods or services,” and when a “community of interest” exists between the parties. JusticePoint’s argument is that it distributes city services to individuals using the MCAP and that it has invested in the program. Monday’s decision by Court of Appeals Judge M. Joseph Donald focused on the procedural aspects of granting a stay of Watts' order and evaluated three factors: 1) likelihood of success on appeal; 2) irreparable injury in the absence of stay; and 3) the existence of substantial harm to other interested parties. In examining these factors, Donald found that “JusticePoint showed more than a possibility it would prevail”; the stay was otherwise appropriate, as full-time staff could be lost and reputational harm to the program could result if the program is ultimately continued; and substantial harm could result to defendants who receive JusticePoint's MCAP services with no clear alternative to those services in place. Donald said his order will “maintain the status quo” pending a decision that will resolve the appeal. JusticePoint loses court fight to maintain services contract with Milwaukee Municipal Court10/6/2023 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.” Recibir una multa y asistir a una audiencia tribunal puede ser muy estresante e intimidante cuando no está familiarizado con el proceso. Ese estrés puede ser agravado para aquellos que no hablan inglés, ya que los procedimientos se llevan a cabo en inglés. Wisconsin Justice Initiative ha creado este video para ayudar a aquellos que hablan español y necesitan navegar audiencias tribunales municipales de Wisconsin. (Receiving a ticket and going to municipal court can be stressful and intimidating if you aren't familiar with the process. Because proceedings are held in English, that stress can be multiplied for those who do not speak English as a first language. Wisconsin Justice Initiative has created this video to help those who speak Spanish navigate municipal courts in Wisconsin.) Many thanks to the following for their support of this project:
By Gretchen Schuldt
The city of Milwaukee ran straight into the Wisconsin Fair Dealership Law when two Municipal Court judges tried to shortcut and back channel their way into firing JusticePoint, the longtime operator of a successful program to divert impoverished defendants from forfeitures and fees they cannot pay. Assistant City Attorney Kathryn Block told a Common Council committee that Municipal Court Judges Phil Chavez and Valarie Hill had legitimate cause to fire JusticePoint, but declined to say what that cause was. The two judges did not consult the city's third judge, Molly Gena, on the matter or even tell her firing the agency was under consideration. The city chose not to fire JusticePoint for cause under its contract with the agency, which would have required notice and an opportunity to cure the practices. Instead, the city terminated JusticePoint for the city's convenience without telling the agency or the public exactly what it was that JusticePoint did wrong. That decision prompted JusticePoint to take the city to Milwaukee County Circuit Court, alleging in a lawsuit that the city's manipulations violated the Wisconsin Fair Dealership Law. Circuit Judge Hannah Dugan ruled that JusticePoint had a reasonable chance of prevailing on the merits and issued a temporary restraining order blocking the contract termination until Oct. 5, when another hearing will be held. (The hearing originally was scheduled for Oct. 31.) The WFDL is almost 50 years old and was adopted partly to "protect dealers against unfair treatment by grantors, who inherently have superior economic power and superior bargaining power in the negotiation of dealerships." The city's "convenience clause" in its contract with JusticePoint would allow the city to terminate the pact for any reason with just 10 days' written notice, but a judge could find that clause a dead letter. The WFDL specifically prohibits dealership relationships from being "varied by contract or agreement. Any contract or agreement purporting to do so is void and unenforceable to that extent only." Block argued in court that JusticePoint did not qualify as a dealership because it did not charge its litigant clients for services. The U.S. Seventh Circuit Court of Appeals found way back in 1989, however, that a book distributor who did not sell goods or services to downstream customers still qualified as a dealer through its distribution activities alone. Jeffrey Mandell, in court and in JusticePoint's $5 million claim against the city, argued that JusticePoint met the required qualifications of a dealership under the law. First, he said, it has a contract with the city. JusticePoint has been providing Municipal Court Alternative program services since 2014, he said. Second, JusticePoint distributes services on behalf of the city, "assisting approximately 11,000 individuals since 2015," he wrote in the claim letter. Finally, he said, a "community of interest," which he acknowledged was a "slippery concept," exists between the city and JusticePoint. The state Supreme Court established two guideposts — a continuing financial interest and interdependence — and the JusticePoint-city relationship meets both, he said. JusticePoint has spent hundreds of thousands of dollars to run its Milwaukee program. "The city benefits significantly from JusticePoint's efforts not only inasmuch as JusticePoint fulfills the inherent purposes of the program, but also because JusticePoint increases the City's goodwill and advances prosocial causes, thereby improving the city as a whole and the Municipal Court in particular," he wrote in the Circuit Court suit. Interdependence is shown through the agency's close and continuing collaboration with city officials, he said. Under the WFDL, the city cannot terminate the JusticePoint contract without providing a 90-day notice, detailing the grounds for termination, and providing JusticePoint with an opportunity to cure, Mandell said in the suit. The city has done none of those things, he said. By Gretchen Schuldt
A Milwaukee County circuit judge on Monday granted a temporary restraining order blocking the city of Milwaukee from terminating JusticePoint's contract to operate the Municipal Court's program that steers indigent defendants to appropriate services and coordinates community service opportunities for people who qualify for alternatives to forfeitures. Circuit Judge Hannah Dugan said, among other things, that JusticePoint had a reasonable probability of success on the merits and would be irreparably harmed without the restraining order. She set a further hearing for Oct. 31 before Circuit Judge J.D. Watts. "Everything has to stay the status quo according to the contract," she said. Sheldyn Himle, chief court administrator of Municipal Court, declined to comment on the ruling. JusticePoint on Sunday filed suit against the city, alleging the manner in which it was terminated — allegedly without cause, without proper notice, and without a chance to cure any deficiency — violated state law. JusticePoint filed a $5 million claim with the city on June 30 as a precursor to the lawsuit. Two Municipal Court judges, Phil Chavez and Valarie Hill, arranged the contract termination without consulting the third judge, Molly Gena. The termination was to be effective at the end of the day Monday, July 10. The city never made public any specific allegations against JusticePoint, but said the contract was terminated for the city's "convenience." The firm's CEO, Nick Sayner, has said the only potential problem he was aware of was JusticePoint's practice of providing copies of municipal citations to Legal Action of Wisconsin attorneys representing the indigent defendants involved in the cases. Sayner has said the agreement to provide the tickets was hammered out five or more years ago in negotiations involving both JusticePoint and city officials, including representatives of the city attorney's office. When Municipal Court raised concerns about it last March, he said, JusticePoint stopped providing the citations. WJI will update this story, so check back for more on the hearing. Read our previous JusticePoint coverage here, here, and here. WJI policy analyst Gretchen Schuldt wrote about the issue for the Shepherd Express here. By Gretchen Schuldt Milwaukee Municipal Court judges are routinely violating state law in a way that "undermines" a defendant's right to appeal some cases to Milwaukee County Circuit Court, Legal Action of Wisconsin said in a new lawsuit. The suit, technically a petition for a supervisory writ, asks Circuit Judge Pedro Colon to command Municipal Court and its judges to electronically record, as required by law, every hearing held to determine inability to pay a judgment due to poverty and every hearing on reopening a case. The suit names as defendants Milwaukee Municipal Court, its chief administrator, Sheldyn Himle, and Judges Phillip Chavez, Valarie Hill, and Molly Gena. Gena, who assumed office in May, is the former managing attorney of Legal Action. Himle declined to comment. The petition was filed on behalf of a Municipal Court litigant who was unable to appeal a case because her hearings were not recorded, according to the suit. The woman appeared at a Municipal Court hearing via Zoom in September 2020, according to the suit. At that hearing, the Municipal Court judge ordered the woman, a single mother who receives Social Security disability benefits, to satisfy her outstanding debt by an installment payment plan, Legal Action attorney Susan Lund wrote. "The court must have discussed (the woman's) income and ability to pay before determining that a payment arrangement was necessary or setting the amount of her installment payments," she wrote. "The only record of this hearing, the docket, provides no information about those discussions. The record does show that if (the woman) did not pay, the court would automatically issue a warrant, a routine practice of several Milwaukee Municipal Court judges." The woman appeared at another hearing in February 2021, after a warrant was issued. "The docket reflects, 'Def told how to resolve this cs and DL susp 30% of cs 20015220 and 20015221,' " Lund wrote. "There is no further explanation of what this phrase means, much less any information about whether the judge considered all necessary factors and issues," she said. "It seems clear that there was some discussion of (the woman's) ability to pay, but there is no explanation in the docket for why the judge failed to lift the warrant when (the woman) was a recipient of means-tested public assistance." Under state law, recipients of such public assistance automatically are presumed unable to pay, and a judge must suspend or extend payment or consider community service as an alternative. The woman appeared in another case that same day. The docket for that one states, “ 'Def given information of 30% being $82 to terminated DL suspension,' " according to the suit. "Once again, the Court failed to record the hearing, though money and ability to pay must have been discussed," Lund wrote. "Once again, the docket provides no information about what law or facts the judge considered during the hearing or why the judge decided not to lift (the woman's) driver’s license suspension." The woman owes a total of $428 in three cases, the petition says. In two cases, Municipal Court listed, as an alternative to payment, "Commitment – Consecutive for 4 days," a reference to incarceration for four days. In the other case, the Court listed as an alternative a one-year suspension of the woman's driver's license. The woman "has been notified by standard computer-generated notices that failure to pay by the due date will result in automatic enforcement of the sanctions for nonpayment," Lund wrote. (Lund said in a footnote that the woman would like to reopen two tickets, including one with an outstanding forfeiture, in the interest of justice because Municipal Court suspended her license in error. The mistake led to two separate convictions of operating after suspension, resulting in $460 in forfeitures and reinstatement fees.) The lack of recordings make appeals to Circuit Court extremely difficult, Lund said. "In a municipal court record review, a circuit court is limited in their review of the record to determining whether the evidence supports the municipal court decision," she wrote. "The circuit court also has the right to review the municipal court’s interpretations of a statute or any other conclusions of law de novo. ... Neither of those things will generally be possible without a transcript, as oral requests and oral decisions are common and indigent defendants have no right to counsel." Milwaukee Municipal Court's failure to record as required by law is not limited to the woman's cases, the petition says. "Milwaukee Municipal Court has likely failed to record hundreds of hearings over the last three years," Lund wrote. When the court fails to properly record a hearing, the court "makes a decision that is both irrevocable and unappealable. ... Once the unrecorded proceeding is over, it can never be recorded."  |
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