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."
By Gretchen Schuldt
Legalizing marijuana could bring the state an additional $138 million per year in tax revenue beginning in 2021, according to the State Department of Revenue.
That may be low, though -- the department estimates that Wisconsinites would buy just 55% of the volume purchased in Colorado.
The department estimated the impact of legalizing marijuana as proposed in a bill introduced by State Rep Melissa Sargent (D-Madison) and State Sen. LaTonya Johnson (D-Milwaukee). The bill would legalize the sale and use of pot for recreational and medical purposes.
“Even by conservative estimates, my bill to legalize marijuana will be an economic boon for Wisconsin," Sargent said Tuesday. "It's not just about legalizing marijuana; it’s about legalizing opportunity. This bill will create new jobs, support local economies, and present a return on investment per dollar that’s unparalleled in other industries. The numbers support legalization and given the budget crisis we’re facing, it’s time for us to give legalizing marijuana serious consideration.”
Somewhat less money would be generated in the bill's first years, according to the fiscal estimate. "Sales of marijuana would increase state excise and sales tax and fee revenues by $60.5 million in FY19, $109.5 million in FY20, and $138 million in FY21," the department reported.
The department assumed that Wisconsin marijuana consumption patterns would be similar to those in Colorado, where excise tax collections rose from $41.7 million in 2014 to $89 million in 2015, and $143.2 million in 2016.
Overall, though, Wisconsin pot users would buy just 55% of the amount of marijuana sold in Colorado, the department said. DOR didn't explain its reasoning, saying only that the estimate is "based on information from the U.S. Substance Abuse and Mental Health Services Administration and the U.S. Census Bureau regarding marijuana usage rates and population differences."
Wisconsin's estimated population is actually a tad larger than Colorado's - 5.8 million here compared to 5.5 million in Colorado, according to the U.S. Census Bureau.
New legalization costs in Wisconsin would be fairly minimal in comparison to revenue, according to the estimate - a one-time expenditure of $345,980 for setting up processes and systems for the new tax, another $156,360 annually in related administrative costs, and $1.2 million for 10 new excise tax agents, a supervisor and one criminal investigator.
Updated 9/21/2017 to reflect Gov. Walker's veto.
Updated 9/20/2017 to reflect adoption by the full Legislature.
By Gretchen Schuldt
Gov. Scott Walker vetoed a budget amendment that would have forced judges to determine what legislators were thinking when they adopted a legislation, even if the legislation did not reflect those thoughts.
Both the Assembly and the Senate approved a budget amendment that would have blocked municipalities from enforcing any ordinance that defeated the purpose of a state law or violated "the spirit” of the law. Judges, of course, would be the ones to referee disputes over the provision.
Walker saved them the trouble by axing it.
"I am vetoing this provision because I object to inserting a broad provision which may violate home rule under the Wisconsin Constitution for cities and villages," he said in his veto message. "The statutes already provide the ability to regulate matters of statewide concern that could affect political subdivisions."
The amendment spoke ill of the Legislature’s ability to do its job: “Oh, judges, if the law we adopted doesn’t prevent that city from taking that particular action that we don’t like, can you fix it for us from the bench?”
The amendment would, according to the Legislative Fiscal Bureau, "prohibit a political subdivision, defined as a county, city, village, or town, from enforcing an ordinance if any of the following applies: (a) a statutory provision expressly prohibits the political subdivision from enforcing the ordinance; (b) the ordinance logically conflicts with a statutory provision; (c) the ordinance defeats the purpose of a statutory provision; or (d) the ordinance violates the spirit of a statutory provision. ."
And whose interpretation of “spirit of the law” were judges supposed to accept? That of the sponsors of the original legislation? What if the interpretation was different between legislators? Was there going to be a survey of those who voted in favor of a bill to figure out what they thought the bill meant?
A lot of Wisconsin judges have said that they and their colleagues should not have the power to legislate from the bench.
Supreme Court Justice Rebecca Bradley, for example, said “Justices should apply the law as it is written, guided by principles such as judicial restraint and respect for the separation of powers among the three branches of government.” (Emphasis added)
And Justice Daniel Kelly, in his application for a Supreme Court seat, trotted out U.S. Supreme Court Chief Justice John Roberts’ comparison of a judge’s role to that of a baseball umpire who only calls balls and strikes.
"Changing the decisional standard after the act has already occurred is, by definition, antithetical to the rule of law,” Kelly wrote. “So, for example, it is unjust to change the strike zone after delivery of the pitch because it prevents the pitcher from knowing where to throw the ball."
He continued: “Post hoc adjustment of the strike zone is the essence of judicial activism. It usurps the legislature’s forward-looking function by reading into the past a new rule of decision. It causes the law to lose both its certainty and its predictive capacity. People are no longer able to plan their actions to comport with the law. They are at constant risk that today’s lawful behavior may be transformed into unlawful tomorrow should a judge exercise legislative, instead of judicial, authority.”
And it’s not just Supreme Court justices who eschew the kind of activism being pushed by Republican legislators.
Appeals Court Judge Timothy G. Dugan, appointed to his post by Walker, wrote in his application that “Courts do not have the authority to attempt to cure what judges perceive as social wrongs or problems that the legislature has chosen not to address. Those policy decisions rest in the hands of the legislature."
And Sauk County Circuit Judge Michael P. Screnock, running as a conservative for State Supreme Court, said in his Circuit Court judicial application to Walker, “It is important to our system of government that the judicial branch take care not to usurp the roles of the other two branches when called upon to interpret and apply the laws. Accordingly, I believe strongly that while it is the role of the judicial branch to say what the law is, as Chief Justice Marshall declared, it is not the province of the judiciary to decide cases on its view of what the law ought to be.”
The Legislature wanted the courts to divine legislative intent; fix legislative sloppiness; ascertain the size and shape of a particular law’s “spirit,” and then decide whether it was violated.
This amendment told courts to guess at the unspoken desires and intents of the Legislature, even though those may vary greatly among legislators.
It was a fatally flawed amendment, designed not to improve the administration of justice, but to remove from the Legislature the responsibility of legislating.
A bill that would ease the process for people convicted of crimes to get their records expunged advanced from an Assembly committee on a bipartisan(!) 10-2 vote.
The measure has broad support. The Metropolitan Milwaukee Association of Commerce registered in favor, as did the State Public Defenders office and the Texas Public Policy Foundation, a conservative group with ties to the Koch brothers, powerful political financiers.
No one registered against the bill. Rep. Evan Goyke (D-Milwaukee), who co-sponsored the bill, called the public hearing on it "phenomenal."
State Rep. David Steffen (R-Green Bay) is the lead sponsor of the measure.
"Under Wisconsin's current expungement law, many of our youthful offenders are forced to sit on the workforce sidelines," Steffen said in prepared testimony. "During a time when nearly every industry in Wisconsin is facing a workforce shortage, (this bill) plays a crucial role in connecting employers in need with this untapped workforce – which is why organizations such as MMAC and the Alliance of Wisconsin Retailers are engaged and supportive of the measure."
Goyke, in his prepared testimony, said that its retroactivity is an important feature of the bill. "Retroactivity is critical to give an opportunity for eligible individuals that never had a chance for expungement," he said. "Under our current procedure, individuals that never asked for expuntement at sentencing, or those that didn't know they could ask, don't have a remedy."
The State Bar of Wisconsin, in its testimony, said the bill provides the opportunity to "improve the lives of those who continue to struggle well into adulthood due to the consequences of poor choices as a young adult."
Under existing law, a judge may order a person's criminal record expunged of certain crimes the person committed before the age of 25. The law requires a judge to make the expungement order at the time of sentencing, with actual expungement occurring when the person completes the sentence.
Under the proposed change, the person could file a petition for expungement after completing the sentence, obviously well after sentence is handed down.
The judge would review the petition at a hearing or, if the victim waives the hearing, could take immediate action.
If the judge denies the petition, the defendant could not file a new one for two years. The person also would be limited to three petitions for the same matters.
The bill also would require the judge to explain the new expungement process at sentencing, and would allow the judge to order that a person's record not be eligible for expungement. The bill also would make publicly inaccessible court records and Crime Information Bureau records. Currently, expungement removes only court records.
"Any employer conducting the standard background check presently receives notice from the crime information bureau that the person has been convicted of a crime," the Wisconsin State Public Defender's office said in its testimony.
Members of the Assembly Criminal Justice and Public Safety Committee voting in favor of the bill were John Spiros (R-Marshfield), Jesse Kremer (R-Kewaskum), Jim Ott (R-Mequon), Todd Novak (R-Dodgeville), Kathleen Bernier (R-Lake Hallie), Scott Krug (R-Nekoosa), Goyke, Kessler (D-Milwaukee), JoCasa Zamarripa (D-Milwaukee), and David Crowley (D-Milwaukee).
Voting against it were Andre Jacque (R-DePere) and Cody Horlacher (R-Mukwonago).
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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