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.
“There are no rules for this,” Feingold stated.
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.
WJI is taking a look at justice-related bills adopted during the 2019-20 session.
2019 Act 97 – This act makes battery to a nurse or to a person working under the supervision of a nurse a Class H felony rather than a misdemeanor, as was previously the case.
The misdemeanor was punishable by up to nine months in jail and a fine of up to $10,000. The felony is punishable by up to six years in prison and a fine of $10,000 or both.
It previously was a felony to commit battery against an emergency medical care provider. Act 97 expands that Class H felony to cover battery against any health care provider who works in a hospital.
"Hospital" has a broad definition under the act and includes any facility devoted to treatment of and medical care for three or more nonrelated individuals.
The law was introduced as Senate Bill 163. The companion bill was Assembly Bill 175.
The lead authors of SB 163 were Senators Dale Kooyenga (R-Brookfield) and Tim Carpenter (D-Milwaukee).
The lead co-sponsors were State Representatives Gae Magnafici (R-Dresser) and Cindi Duchow (R-Delafield).
An amendment to exempt some people with mental illness or brain damage, degenerative brain disorder, or developmental disability from the harsher penalties was defeated in the Assembly along a party line vote.
State Reps. Jonathan Brostrom (D-Milwaukee) and Rob Stafsholt (R-New Richmond) voted against the bill.
Gov. Evers signed the new law Feb. 5, 2020.
District attorneys, Department of Corrections, Department of Justice and State Public Defender's Office all said they could not determine how much the new law would cost.
Kooyenga – Workplace violence should not be a part of the job for a nurse. However, the reality we have all seen depicted in the news shows otherwise and unfortunately, earlier this year, a nurse was beaten to death at an area healthcare facility. Workplace violence against nurses can be found in just about every type of practice setting – hospitals, clinics, home care, psychiatric, long term care and correctional health settings. .
Wisconsin Nurses Association – Instances of workplace violence against nurses have gone beyond the emergency room. Incidents are regularly taking place on other units of hospitals, same day surgery, ambulatory care, primary care, long term care, home care, hospice, and employer based clinics.
According to a report published by the American Nurses Association one in four nurses are assaulted while on the job. This data is similar to WNA's research. It is important to note that one common theme in all of these reports is that the majority of nurses did not report the incident. Reasons for not reporting include the belief that assaults are part of the job and/or the belief that their report will not be investigated and acted upon. This is why workplace violence against nurses is also referred to as the "Silent Epidemic."
Froedtert Health – There are a number of factors that contribute to the higher risk in a healthcare environment. Healthcare facilities are generally widely accessible to the general public and providers are committed to caring for all, both through their professional and ethical responsibilities to "do no harm" and through various laws and regulations....Patients often feel sick and are often frightened and facing uncertainty. Some are in significant pain. Others are under the influence of medications or illicit drugs, have a history of violence, or have a medical condition that impacts their decision-making and behavior. Family members and visitors can feel extreme stress, concern and anger when a loved one is facing a serious health issue. All of these factors can contribute to inappropriate acts of violence....We support this legislative effort to improve safety and discourage violence through a penalty enhancer.
Disability Rights Wisconsin – We respect the concerns of the bill's authors regarding addressing workplace violence against nurses. However, after reviewing the potential impact of the bill on people with disabilities, we are concerned that the bill may have unintended consequences and would not have changed the tragic incident that this proposal is responding to.
AB 175/ SB 163 has been described as addressing "bodily harm to a nurse" but the actual scope is far broader. The penalty enhancer included in this bill would also be applicable to situations involving "an individual working under the supervision of an RN or LPN." This is very expansive and would include personal care workers, Certified Nursing Assistants, and other paraprofessionals who work in a wide range of community settings including private homes and apartments, group homes and schools, as well as traditional healthcare settings.
We are also concerned that AB 175/ SB 163 could potentially criminalize actions by some people with disabilities that are a manifestation of their disability. This concern is particularly acute because of the expansive nature of the proposal and its applicability to large numbers of paraprofessionals who provide care to people with disabilities. Certain types of disabilities such as traumatic brain injury, dementia, autism, or mental illness, may in some cases manifest challenging behaviors, especially when an individual is in crisis. Unfortunately, on occasion these behaviors result in bodily harm to a caregiver. Under this bill a person with a disability could be charged with a Class H felony. While we acknowledge that intent is an element, that does not guarantee that a person with a disability will not be charged or convicted....
Registering for the bill
AFSCME International Union, Aurora Health Care Inc., Coalition of Wisconsin Aging Groups, Froedtert Health, LeadingAge Wisconsin, Medical College of Wisconsin, Wisconsin Academy of Physician Assistants, Wisconsin Association of School Nurses, Wisconsin Nurses Association, Wisconsin Professional Police Association.
Registering against the bill
Registering for "Other" position
Comment: We have concerns about the broad scope of this legislation; the term "intentional" can be interpreted subjectively. People with Alzheimer's or dementia, who may be experiencing a crisis situation, could potentially be charged with a Class H felony.
Ascension Wisconsin (supported bill with an expansion that was eventually adopted).
Disability Rights Wisconsin (see testimony above).
Greater Wisconsin Agency on Aging Resources
Comment: Concern-This bill could have unintended consequences as some illnesses/disabilities (dementia, traumatic brain injury, dementia, mental illness, etc) can manifest in behaviors that could subject individuals to being charged with a Class H felony.
League of Women Voters of Wisconsin Inc.
Comment: We could support this bill if amended to include all health personnel and to exempt patients determined to have certain behavioral disabilities, based on evidence-based standards.
Pharmacy Society of Wisconsin (supported bill with an expansion that was eventually adopted).
Wisconisn Academy of Physician Assistants (supported bill with an expansion that was eventually adopted).
Wisconsin Coalition of Independent Living Centers Inc.
Comment: This may have unintended consequences for some people's behavior who have dementia, autism, some mental illnesses and result in them having a felony.
Wisconsin Hospital Association (supported bill with an expansion that was eventually adopted)
Tougher drunk driving laws proposed: mandatory minimums, criminalized first offenses, surcharges
By Gretchen Schuldt
State legislators have introduced a package of drunk-driving proposals that would increase minimum prison terms for people with five or six drunk driving convictions and criminalize first-offense drunk driving, which now is considered a civil ordinance violation.
Another bill would impose financial penalties on some alleged first-time offenders that are not levied on those charged criminally with operating while intoxicated second offense or greater.
Currently, those convicted of their fifth- or sixth-offense drunk driving offense face a minimum of six months' incarceration and a $600 fine. The bill would require a prison term of at least 18 months.
By Gretchen Schuldt
Andrea wrote bad checks.
She wrote them frequently, according to the Monroe County district attorney's office.
A criminal complaint said her bad checks included $155 (including a $23 tip) to The Hair Gallery; $53.89 to a Kwik Trip; $47 and $30.19 to the Tomah Mini-Mart; $455 to the Tomah Cash Store; $42.27 to the Tomah Phillips Pharmacy; and $46.12 to Casey's General Store.
By the time the DA's office finished writing them all up, Andrea faced 26 counts of misdemeanor theft by misrepresentation.
Part 1 is here.
But Andrea faced an even bigger problem. She was out on bond in two earlier cases – a misdemeanor possession of drug paraphernalia charge in Monroe County and two counts of issuing worthless checks in La Crosse County.
A condition of each of those bonds was that Andrea not commit any crimes while her cases were pending. Violation of her bond conditions could be charged as new crimes – misdemeanor bail jumping.
Based on her two pending cases, the Monroe County district attorney's office added 31 counts of bail jumping to the 26 counts of theft.
Andrea now faced 57 criminal charges. Her maximum potential jail exposure jumped from 19.5 years to almost 43 years.
And then the DA's office did what prosecutors around the state do – it reached a plea deal. Andrea pleaded guilty to five counts of misdemeanor theft and six counts of misdemeanor bail jumping. The remaining 46 counts were dismissed.
She was sentenced to a total of 77 days in jail and three years probation. Monroe County Circuit Judge David J. Rice stayed a sentence of 60 days in jail on each count.
Defense lawyers long have complained that felony and misdemeanor bail jumping charges are used to coerce defendants into pleading guilty to other charges. A new paper in the Wisconsin Law Review suggests that is indeed the case.
Felony bail jumping occurs when a person out on bond on a felony charge violates the conditions of that bond. Misdemeanor bail jumping occurs when a person out on bond on a misdemeanor charge violates the conditions of that bond.
A bail jumping offense may not by itself be a crime. Missing a court date, violating a local ordinance, or having a drink could all be bail jumping offenses if bond conditions prohibit those things.
Misdemeanor bail jumping carries a maximum penalty of nine months in jail and a $10,000 fine; felony bail jumping carries a maximum penalty of six years in prison and a 10,000 fine.
For her Law Review paper, author Amy Johnson analyzed the relationship between the disposition of bail jumping charges in the state and the disposition of other charges in the same cases.
She considered the bail jumping cases "leveraged" to get plea agreements if at least one of the bail jumping charges was dismissed and defendants pleaded guilty to at least one of the underlying charges.
Johnson considered cases closed at the county level from 2000 to 2016.
In 2000, she found, 59 percent of cases (2,447 of 4,120) of bail jumping cases may have been leveraged; by 2016, that figure had risen to 66 percent, (5,864 of 8,841).
Looked at another way, the number of potentially leverage plea bargained cases jumped 140 percent from 2000 to 2016, from 2,447 to 5,864.
Johnson cautions that dismissed bail jumping charges along with a pleas to underlying charge do not conclusively prove that the bail jumping charges were used to coerce the plea. There are many other reasons charges are dismissed, she said.
"However, when the percentage of bail jumping charges dismissed in cases where the defendant pled to other charges reaches 70, 80, or nearly 90 percent the correlation between the dismissal of bail jumping to the plea to other charge becomes hard to ignore, particularly when dismissal rates of other charges are significantly lower," she wrote.
In Iowa County, for example, 85 percent of bail jumping cases closed in 2016 may have been leveraged; in Chippewa County, the figure was 83 percent; in Eau Claire County, 80 percent; in Dane County, 78 percent; and in Milwaukee County, 55 percent.
In only 25 cases statewide were all bail jumping charges dismissed without a plea on other charges, Johnson wrote.
That, she said, is "another data point that appears to support the inference that bail jumping is used as leverage."
By Gretchen Schuldt
A proposed amendment to the State Constitution making its way through the Legislature would result in more defendants in criminal cases held in pre-trial detention, discriminate against the poor and violate Constitutional rights, critics say.
It also is "bound to result in a lengthy, and costly litigation,” the State Public Defender's Office said in prepared testimony.
The Wisconsin Justice Initiative also submitted testimony opposing the amendment.
“The amendment, if enacted, the most adversely impact poor people who cannot afford even a moderate cash bail,” WJI said. “Defendants with access to resources will be able to bail out; defendants without that access will not be able to do so. Cash bail simply serves to separate those who can buy their way out of jail from those who cannot.”
The City of Milwaukee registered in support of the amendment.
Proposed amendments must be approved by two consecutive Legislatures and then approved by voters in a referendum before they are added to the Constitution. The Legislature is considering the bail proposal for the first time.
The Assembly Constitution and Ethics Committee recommended adoption of the measure on a 5-2. Voting in favor were State Reps. Scott Allen (R-Waukesha), Jeremy Thiesfeldt (R-Fond du Lac), John Jagler (R-Watertown), Jesse Kremer (R-Kewaskun), and Chuck Wichgers (R-Muskego). Voting against were State Reps. Fred Kessler (D-Milwaukee) and Terese Berceau (D-Madison).
Cindi Duchow (R - Town of Delafield), the main sponsor of the Assembly version of the bill, said "there have been plenty of examples where a person commits a crime while out on bail that, with more flexibility under the state Constitution, may not have been out on bail to begin with.”
The U.S. Constitution, Duchow said, does not guarantee a right to bail. she said.
“Our state Constitution, under this amendment, will still guarantee a right to bail, but allow more flexibility in determining the bail amount in order to protect members of the community,” she said.
The City of Milwaukee registered in support of the amendment.
The amendment, among other things, would eliminate the existing requirement that cash bail be imposed only when a judge or commissioner makes a finding that bail is needed to ensure the defendant shows up in court. (Judges can also impose other conditions to ensure the defendant's appearance, to protect members of the community from serious bodily harm, and to prevent witness intimidation. Judges can also refuse bail to defendants accused of certain violent crimes.)
Removing the requirement "would remove the due process requirement guaranteed by the U.S. Constitution when determining bail," the public defender's office said.
The proposed amendment would require a judge to consider the seriousness of the offense charged, the previous criminal record of the accused, the probability that the accused will appear in court, and the need to protect members of the community from serious harm or prevent the intimidation of witnesses.
Adding those considerations when determining bail amounts, the public defender's office cautioned, “creates the likelihood that judges will set bail that violates the 'excessive bail' prohibition under the Eighth Amendment to the U.S Constitution.”
Those factors are appropriately considered when setting conditions of release, but are not appropriate considerations in determining how much bail a pretrial defendant must post, the office said.
In its testimony WJ I criticized the “vague language problem” of the “serious harm” standard.
“What constitutes “serious harm” is undefined and appears to be at the complete discretion at of the judge,” WJ I said. “Defendants with similar backgrounds facing similar charges would be treated completely differently from one another. To someone carrying a personal use amount of marijuana pose a threat of serious harm? Clearly some in law enforcement believe so."
The public defender’s office said the “serious harm” language "would seem to encompass emotional economic or noncriminal behavior which, while perhaps not welcome, is not reason enough to deprive someone of their liberty."
Besides Duchow, the bill is sponsored by Rob Hutton (R-Brookfield), Mark Born (R-Beaver Dam), Edward Brooks (R-Reedsburg), Robert Brooks (R-Saukville), Cody Horlacher (R-Mukwonago), Andre Jacque (R-De Pere), Samantha Kerkman (R-Salem), Joel Kitchens (R-Sturgeon Bay), Mike Kuglitsch (R-New Berlin), Amy Loudenback, (R-Clinton), John Macco (R - Ledgeview), Jeffrey Mursau (R - Crivitz), Adam Neylon (R-Pewaukee), Todd Novak (R - Dodgeville), Romaine Quinn (R-Barron), Jessie Rodriguez (R-Oak Creek), Mike Rohrkaste (R-Neenah), Joe Sanfelippo (R-New Berlin, Ken Skowronski (R-Franklin), John Spiros (R-Marshfield), Thiesfeldt, Paul Tittl (R-Manitowoc), Tyler Vorpagel (R-Plymouth), Thomas Weatherston (R-Caledonia). and Dale Kooyenga (R-Town of Brookfield). It is cosponsored in the Senate by Van Wanggaard (R-Racine), Dan Fayen (R-Fond du Lac), and Patrick Testin (R-Stevens Point).
Margo Kirchner & Gretchen Schuldt
A judge must allow for expunctions of criminal records at sentencing or not at all, the State Supreme Court has ruled.
Post-sentencing requests by a defendant to expunge are too late.
By statute, a Wisconsin court may order “at the time of sentencing” that a sentence be expunged upon its successful completion if the maximum period of imprisonment for the offense is 6 years or less and the defendant was under 25 years old at the time the offense occurred.
A bill that would allow for post-sentencing expunction requests is pending in the Assembly. The Senate version passed on a 30-2 vote, with State Senators Mark Miller (D-Monona) and Fred Risser (D-Madison) opposed.
The bill would allow qualified offenders to apply for expunction after they successfully complete their sentences.
“It is difficult for the court to know at sentencing whether the standards for expungement have been met, that is, whether the defendant will benefit and society will not be harmed,” Rock County Circuit Judge James Daley said in testimony prepared for a public hearing on the bill. “It makes far more sense to have this decision made later, after defendants have had an opportunity to demonstrate they have pulled their lives together and can be contributing members of society.”
The State Public Defender’s Office and the Association of State Prosecutors also testified in favor of the bill.
In the case before the Supreme Court, Diamond Arberry pled no contest to retail theft and attempted retail theft of merchandise. The Fond du Lac County Circuit Court judge sentenced her to one year of initial confinement and two years of extended supervision for one offense and two years of probation for the other.
Arberry met the threshold requirements for expunction of those sentences, but during the sentencing hearing neither Arberry nor the judge raised the issue.
Several months after sentencing, Arberry moved for an amended judgment finding her eligible for expunction after she completed the sentence. The trial court judge denied the motion, and the Wisconsin Court of Appeals affirmed.
The Supreme Court, in its decision, concluded that a post-sentencing motion seeking expunction is procedurally barred by statute and precedent. The Court held that “at the time of sentencing” means only the time when sentence is imposed and does not include post-sentencing motions.
Further, the Supreme Court rejected Arberry’s argument that the sentencing court must raise and consider expunction on its own if a defendant is eligible. Instead, said the Court, “it is the defendant’s burden to raise the issue of expunction.”
By Gretchen Schuldt
The State Department of Corrections was unsure it could find enough contract beds in jails to house prison overflows even before State Sen. Leah Vukmir introduced a bill that could increase the prison population by an estimated 1,800 inmates per year, records show.
Vukmir (R-Brookfield), who is running for the U.S. Senate, is co-author of a bill that would require the Department of Corrections to recommend revocation of probation or extended supervision for anyone charged with a new violent misdemeanor or any felony.
The State Senate approved the bill this week. Recidivism is down sharply in Wisconsin.
DOC already was expecting that new, tougher drunk driving laws would mean that an additional 1,205 inmates would be sentenced to prison by the end of the law's second year, DOC said in its 2017-19 budget request.
The department's adult division already is contracting for beds in county jails to house prison inmates, the budget request said. "It is believed there are not enough contract beds available around the state to house the projected populations,” DOC said in its budget request.
The department, projected a need for 695 contract inmate beds in fiscal 2018 and 1,902 contract beds in fiscal 2019.
DOC estimates Vukmir’s revocation bill would send an additional 1,800 people to prison per year and cost the state $57 million per year, according to the Milwaukee Journal Sentinel.
There has not yet been any official fiscal estimates made of the overall cost of the bill, according to public documents available on the Legislature's website. The Journal Sentinel reported that Assembly Speaker Robin Vos has hired the Council of State Governments to estimate the cost, something generally done by state agencies.
In public hearing testimony, Vukmir said that "Wisconsin's approach to criminal justice should be a two-pronged philosophy. Ensuring violent repeat offenders are no longer terrorizing our communities is as equally important as implementing alternatives to incarceration, if not more so."
Her bill, however, would ensnare far more than violent offenders -- it would force a revocation recommendation if a person picked up any felony - even second offense marijuana possession - while on probation or parole.
The Senate bill also provides no relief for individuals cleared of a crime or found not guilty in court. The Assembly version of the bill allows the department to change its recommendation if either of those things occur.
Vukmir's proposal, according to the State Public Defender's office, "will have several impacts which are more severe than perhaps anticipated by the author."
The Senate bill provides no relief for individuals cleared of a crime or found not guilty in court.
One issue is a "potentially unconstitutional burden shift for extended periods of incarceration," the public defender's office said in March testimony.
There are times that new charges are not pursued in cases involving people on supervision; their status is simply revoked and they go to prison. Revocation does not require proof beyond a reasonable doubt, as convicting someone does; it requires only the same probable cause standard a prosecutor needs to issue charges, the agency said.
In addition, a violation during a term of supervision can result in re-incarceration for the full term, it said. A person serving 10 years of extended supervision who commits a crime in the ninth year can be incarcerated for the full 10 years, the agency said.
"This bill may result in a significant number of new prison terms, which will neither be cost effective nor have a substantially beneficial impact on future criminal behavior," the public defenders office said.
And the League of Women Voters was short and sweet: "With the Wisconsin prison population on the rise, removal of DOC discretion here is similar to increasing mandatory sentencing, the continued expansion of a bloated Corrections budget.
By Gretchen Schuldt
Updated Nov. 1
Police officers and firefighters accused of gross wrongdoing would stay on the job while they await their hearings before the Fire and Police Commission, under a bill introduced in the State Legislature.
It would also lift the city residency requirement for members of the commission.
The Common Council's Judiciary and Legislation Committee this week recommended the city oppose the measure.
The bill, introduced by State Rep. Janel Brandtjen (R-Menomonee Falls), and State Sen. Van H. Wanggaard (R-Racine) says that "no member of the police force or fire department may be disciplined by the chief of either of the departments except for cause and after trial ...."
Brandtjen is best known for advocating for aid cuts to Milwaukee unless the city took steps to cut crime.
"It's just breathtaking how much influence the MPA (Milwaukee Police Association) has with certain legislators," said Patrick Curley, chief of staff to Mayor Tom Barrett.
The bill, according to a city Intergovernmental Relations Division memo, "would decimate FPC’s independence, create a local financial crisis, and severely erode community trust in the oversight of law enforcement" and "would add millions of dollars to the municipal budget and would create a dramatic financial burden that would reduce other critical city-funded services."
The law now allows the fire and police chiefs to suspend employees for up to 30 days before a hearing.
The new bill would keep the officer or firefighter on the job for at least 10 days after a disciplinary recommendation. If the employee does not appeal before those 10 days are up, the discipline would take full effect.
The bill also would ensure that officers and firefighters stayed on the payroll if, for some reason, they were suspended before their commission hearings.
It would cost about $1 million annually to fund police officer pay and fringe benefits while they are undergoing disciplinary processes, the Intergovernmental Relations Division memo said.
The bill would require that three-member panels that hear complaints against officers include one member with professional firefighter experience if the complaint is against a firefighter, and one with professional law enforcement experience, if the complaint is against a police officer.
A new appeal path would be available for police and firefighters disciplined by the commission. Currently, appeals go to circuit court; under the bill, the appeal could first go to an arbitrator agreed to by both sides, then to circuit court. Arbitration and court costs would be at city expense.
The appeals process could take years, Curley said. "Meantime, the taxpayers are paying these folks," he said.
The bill also would impose a tougher evidence standard for disciplinary cases involving police officers or firefighters. The standard would change from "substantial evidence" that a rule or order was violated to "clear and convincing evidence."
"Substantial evidence" means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," according to lectlaw.com; "clear and convincing evidence"
means "the trier of fact must be persuaded by the evidence that it is highly probable that the claim or affirmative defense is true."
The bill also would allow political parties to have more influence on the commission and the unions representing police and firefighters would each essentially have an appointment to the commission.
The bill would require Milwaukee to have at least one commission member with professional law enforcement experience and at least one member with professional firefighting experience. Those appointees would be selected from lists submitted by the firefighters and police unions.
Current law prohibits more than three commission members from being in the same political party. The bill would require the mayor to select any members affiliated with a party from lists submitted by the "chief officer" of the Republican and Democratic parties.
The bill also would require the commission to meet in closed session with representatives of the affected union when the commission appoints either a new police or fire chief.
The bill even goes so far as to remove the executive director of the commission from the mayor's cabinet.
Under current law, the mayor nominates the members of the Fire and Police Commission and the Common Council confirms the nominations. In addition, no more than three members of Milwaukee's seven-member Fire and Police Commission may be from the same political party, according to a Legislative Reference Bureau summary of the bill..
An official office of independent monitor also would be created under the bill.
"This person acts as the principal staff of a first class city board, reviews certain situations or investigations involving the police or fire department, evaluates police and fire department policies and practices, and issues periodic reports to the public relating to the status and outcome of complaints that have been filed," according to the Reference Bureau summary of the bill.
The independent monitor would serve at the pleasure of the commission and could not be removed by the mayor or the Common Council.
Under the bill, "a court or arbitrator must review the evidence independently and without deference to the board's findings; must reverse the board's decision if it finds that fairness or correctness of the action has been impaired by material or procedural errors; and must set aside or modify the board's decision if it finds that the board erroneously interpreted a provision of law, or may remand the case to the board for further action that is consistent with current law," according to the Reference Bureau report.
The court or arbitrator also would be required to reverse the commission's decision if the board's actions were outside of its delegated powers or were inconsistent with a board rule, policy, or practice," unless the deviations were adequately explained.
The bill also allows a court or arbitrator to take additional testimony and depositions and to grant requests for additional discovery.
By Margo Kirchner
The new Foxconn law changes the rules for how Wisconsin courts work in cases involving government decisions about the firm and its site, giving Foxconn quicker access and more access to appellate courts than other firms and individuals in the state have.
And Foxconn’s ability to push to the head of the line means that other Wisconsin citizens seeking justice in the courts face potentially lengthy delays.
Under the new law, Foxconn gets multiple appeals of unfavorable trial court rulings in a single case. It doesn’t work that way for others. With a few exceptions, litigants in trial courts must await final judgment before appealing the case.
Not so for those litigating governmental decisions concerning Foxconn or its site, called an “electronics and information technology manufacturing” (EITM) zone. Those litigants can immediately appeal any trial court order relating to the governmental decision, so one case may generate multiple appeals (and delays) if the trial court issues multiple orders. The Wisconsin Court of Appeals must accept a mid-case appeal from EITM-zone litigation; in other cases, the appeals court can reject such an appeal.
If Foxconn doesn’t like how a circuit court rules, it gets to jump right to the highest court in the state for its appeals. The vast majority of non-Foxconn appellants head first to the Wisconsin Court of Appeals. Only after that court issues its decision does the losing party petition the Supreme Court of Wisconsin to review the case.
Not so for litigants in an EITM-zone case. Instead, the Court of Appeals must certify an EITM-zone appeal to the Supreme Court, meaning that the case may bypass the Court of Appeals. Contrary to its exercise of discretion in other cases, the Court of Appeals has no choice regarding certification, regardless of whether that court believes certification is justified.
Moreover, the briefing and certification process in Foxconn cases occur on an expedited schedule. Previously, the legislature directed expedited schedules for cases involving termination of parental rights and consent to a minor’s abortion. The Foxconn legislation puts EITM-zone appeals on a similar fast track.
Certification does not mean the Supreme Court must take the case. The Supreme Court generally reviews cases that involve a significant question of constitutional law, new doctrine, a novel issue with statewide impact, a legal question likely to recur, a conflict between a lower-court decision and decisions of other courts, or the need for policy. Four of the seven justices must agree to the bypass.
The Foxconn legislation bumps any appeal concerning governmental decisions about an EITM zone to the Supreme Court for consideration of certification regardless of whether that case involves matters of statewide concern, unsettled law or policy, or lower-court conflicts. A Foxconn appeal of, say, a building inspector’s requirement, a municipal zoning decision, or an environmental agency determination may not have statewide significance.
Nevertheless, the Supreme Court now must spend time considering each certification, impacting the Court’s other work.
Certification is generally not a quick process. Each one requires a commissioner to draft a memorandum analyzing the facts and law involved in the appeal and recommending whether certification should be granted. The justices are expected to read each certification and memorandum, listen to an oral report by the commissioner, then decide whether to grant certification. During the 2016-2017 term, the Supreme Court received only six certifications from the courts of appeals and accepted only one. Presumably, EITM-zone litigation will significantly increase the number of certifications the Supreme Court will have to consider.
It’s too early to know whether the Court will actually grant more certifications. Will EITM-zone litigation cause the Supreme Court to accept fewer cases not related to Foxconn?
Moreover, the Foxconn legislation mandates that the Supreme Court “give preference” to a certification regarding an EITM-zone appeal. In other words, the Supreme Court must place any Foxconn EITM-zone case ahead of other appeals, including those concerning important civil and criminal matters.
Once Foxconn starts filing appeals, no matter how inconsequential, the court’s work on issues of statewide importance will get pushed to the side.
Based on this term’s calendar, here are the types of cases that could sit when Foxconn skips ahead in line:
A federal judge has rejected Milwaukee County's bid to force its insurer to pay a $6.7 million jury verdict in a case stemming from a corrections officer's repeated sexual assaults of a pregnant Milwaukee County Jail inmate.
The county's insurer, Wisconsin County Mutual Insurance Corp, told the county that it would not pay the award, meaning the county would be stuck with the bill. The county turned to U.S. District Judge J.P. Stadtmueller in an effort to get that decision overturned.
Stadtmueller, though, said payment dispute should not be tacked on to existing case. The trial, he said, was not about insurance, but was about what happened to the woman assaulted by former Corrections Officer Xavier Thicklen.
"Now, more than a month after that trial, the county wishes to hijack this litigation to resolve its insurance coverage dispute," Stadtmueller said in his decision.
Justice, he said, "would in fact be offended" if the county was allowed to pursue its insurance dispute through the original case.
"The prejudice to plaintiff - having her case taken over (and put on hold indefinitely) to resolve a fight as to who must pay her - is undeniable," he wrote.
He denied the county's motion without prejudice so the county could pursue it in state court.
"To say that Thicklen’s conduct was merely reprehensible is almost sickeningly generous." - U.S. District Judge J. P. Stadtmueller
Stadtmueller also denied the county's request to have the verdict overturned because Thicklen was not acting within the scope of his job when he assaulted the inmate, an argument the judge already had considered and rejected.
"The Court has already provided to the parties all of the wisdom it can offer on this point," he wrote in his new decision. "If the County desires a different outcome, it must seek it in the Court of Appeals."
He also shot down the county's argument that the jury's verdict, which included $1.7 million in compensatory damages and $5 million in punitive damages, was excessive.
The county's arguments, Stadtmueller said, "are half-hearted and merit little discussion. ... Contrary to the county’s arguments, plaintiff suffered both physical and emotional injuries as a result of Thicklen’s repeated sexual assaults."
Specifically addressing the punitive damages award, Stadtmueller said,
"To say that Thicklen’s conduct was merely reprehensible is almost sickeningly generous. He repeatedly raped a young woman at varying stages of pregnancy, abusing the power he had over her in the most heinous manner possible, causing her physical and (lasting) mental injuries at a time when she was exceedingly vulnerable."
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