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).
Republicans in the State Legislature are joining a nationwide effort to push for a convention to amend the U.S. Constitution. There is a public hearing on the issue at 10 a.m. tomorrow (March 28) in Madison.
So far, 28 states have asked for a convention; 34 are needed. The convention would be called specifically to require the federal government to have a balanced budget, but scholars on both ends of the political spectrum believe a convention can't really be controlled. Amending the Constitution through a convention puts fundamental American rights at risk.
Legislative supporters of a convention include State Senators Chris Kapenga, David Craig, Alberta Darling, Sheila Harsdorf, Frank Lasee, Howard Marklein, Stephen Nass, Luther Olsen, Duey Stroebel, Patrick Testin, Thomas Tiffany, and Leah Vukmir; and State Reps. Daniel Knodl, Kathleen Bernier, Tyler August, Mark Born, Edward Brooks, Cindi Duchow, Mary Felzkowski, Cody Horlacher, Rob Hutton, Adam Jarchow, Terry Katsma, Samantha Kerkman, Joel Kleefisch, Dale Kooyenga, Jesse Kremer, Scott Krug, Mike Kuglitsch, Bob Kulp, John Macco, Jeffrey Mursau, Adam Neylon, John Nygren, Kevin Petersen, Warren Petryk, Jessie Rodriguez, Mike Rohrkaste, Joe Sanfelippo, Michael Schraa, Ken Skowronski, Patrick Snyder, John Spiros, David Steffen, Jim Steineke, Rob Summerfield, Rob Swearingen, Jeremy Thiesfeldt, Paul Tittl, Robin Vos, Thomas Weatherston and Chuck Wichgers.
The Wisconsin Justice Initiative issued a statement today on why Wisconsin should say "no" to a constitutional convention, which is below.
State legislators should reject efforts to convene a convention to amend the U.S. Constitution, an extremely dangerous step that could endanger basic American rights,
Constitutional changes proposed through a convention are likely to be harmful reactions to the current political divisions in the country that will only divide the country further.
Resolutions calling for a constitutional convention are pending in the State Assembly and State Senate. The Senate’s Committee on Financial Services, Constitution and Federalism and the Assembly Committee on Federalism and Interstate Relations will hold a hearing on the issue at 10 a.m. Tuesday in the State Capitol.
The proposed legislation specifically calls for the convention to consider a balanced budget amendment but a State Legislature cannot control what happens or what is considered at a convention.
Some 28 states already have approved legislation calling for a convention. Convention proponents need 34.
The Wisconsin legislation calls for any delegate who votes for an unauthorized amendment to be replaced, but it’s unclear what impact that would have, if any. Replacement would occur only after a vote is cast, when it is too late to undo any damage.
It is also unclear whether convention rules would allow delegate replacements because the rules don’t exist yet. We don’t even know how much representation Wisconsin would have.
Scholars from across the spectrum agree that a convention, once convened, is a force unto itself. People who value freedom of speech and freedom of religion should be concerned about what could happen; those who value their Second Amendment rights should be just as worried.
We don’t need a constitutional convention, First, a balanced budget amendment could cripple the country’s ability to respond to a national emergency. Second, opening the Constitution to change now would invite mischief and disaster.
A bill requiring fifth and sixth offense drunk drivers to serve at least 18 months in prison could cost state taxpayers up to $20 million per year, State Rep. Evan Goyke (D-Milwaukee) told an Assembly committee Thursday.
Fifth and sixth offense OWI offenders now face minimum prison sentences of six months.
Goyke, who emphasized he was not addressing the merits of toughening drunk driving laws, said he developed his cost estimate because the Department of Corrections failed to provide one. Fiscal estimates that estimate the cost of implementing legislation are developed by departments at the direction of the Department of Administration.
Goyke suggested the DOC estimate was omitted because the Walker administration did not want to make the costs of the measure public.
"That fiscal estimate would have a really, really big number attached to it," he said, adding, "I also don't think this committee should vote on a bill without knowing the cost."
For his own estimate, Goyke used conviction data from 2015, when there were 491 fifth offense drunk driving and 223 sixth offense drunk driving convictions. He assumed that all fifth and sixth offense drunk drivers are now sentenced to six months in prison, and that all of them will be sentenced to 18 months, triple the previous sentence, should the bill be passed. Goyke estimated incarceration costs would also triple under the bill.
Some Republican committee members disputed Goyke's estimate, saying many people sentenced for fifth and sixth drunk driving are sentenced to much longer than the minimum six months in prison, so that costs would not triple.
State Rep. Kathleen Bernier (R-Chippewa Falls), said that cost is a concern but "you can't put a number on the lives."
State Rep. Jim Ott (R-Mequon), the main sponsor of the legislation, said his intention was not to send more people to prison for 18 months, but wanted the tougher penalties to discourage people from drinking and driving.. "I want less people driving drunk," he said.
Goyke also said the prison system simply does not have room to house the additional inmates. The Department of Corrections already is contracting with local jails for beds, he said.
DOC, in its budget request to Gov. Scott Walker, said it already is facing a bed shortage because of tougher drunk driving laws that took effect Jan. 1. Previously, most fourth offense drunk driving convictions were misdemeanors, and the law elevated them to felonies. It also tightened other penalties for repeat offenders.
DOC projected a need for 2,185 contract beds by 2018-2019, but Gov. Scott Walker proposed funding for just 977, according to the Legislative Fiscal Bureau. The Department of Administration, which houses Walker's budget office, said it did not expect the DOC projections to be realized "based on prior trends in law changes and their effects on population," the LFB said.
Marijuana possession cases would be decriminalized so that first and second offenders would face forfeitures for violating ordinances instead of possible jail or prison time, under a recommendation from the State Public Defender's office.
The change would save the office money, since Indigent defendants who face forfeiture penalties -- and not incarceration -- are not entitled to court-appointed attorneys.
The office also is recommending the state eliminate the charge of felony bail jumping and give pay raises to private bar lawyers appointed to represent indigent defendants.
Demoting possession of marijuana from its criminal status could save the State Public Defender (SPD) almost $500,000 per year, according to an issue paper the submitted last week with the agency's budget request.
Currently, simple possession is a misdemeanor for the first offense under state law, punishable by up to six months in jail and a $1,000 fine. It is a felony for the second and subsequent offenses, punishable by up to three and a half years in prison and a $10,000 fine. The public defender is recommending that prosecutors charge the first two offenses as forfeitures and the third offense as a misdemeanor.
Some municipalities, such as Milwaukee, already have marijuana-possession ordinances on the books. Findings of guilt for those offenses do not result in criminal records.
Many marijuana possession cases originally charged as crimes already end up as forfeitures, rather than criminal convictions, through routine plea negotiations, the public defender’s office said.
In fiscal year 2016, which ended June 30, “the SPD represented clients in almost 8,442 related to possession of drugs,” the SPD said. “If these cases would not have qualified for representation due to the suggested reclassification to ordinances, then the SPD would have saved $455,312.”
The office also is recommending the state do away with the felony bail-jumping charge, which is issued when someone already charged with a felony violates terms of his or her bond. Under the public defender’s recommendation, bail jumping would become a misdemeanor, whether or not the underlying charge is a felony.
Misdemeanor bail jumping can bring a maximum of 9 months in jail and a $10,000 fine; felony bail jumping carries maximum penalties of six years in prison and a $10,000 fine.
If the 8,147 felony bail jumping cases the public defender's office handled in FY16 were charged as misdemeanors, the office could have saved about $770,000, the agency said in budget documents. The calculation is based on the difference in the cost difference between an average felony and average misdemeanor case.
In recommending a private bar pay increase, the public defender’s office said the existing $40 per hour rate has been in place since 1995, when it was reduced from $50 per hour. (Travel time is $25 per hour.) Forty bucks an hour now is “now unreasonably below market rate,” the SPD said. A 2013 Wisconsin State Bar study found that the median hourly rate for a criminal law private practicioner is $145.
The office is recommending private lawyers be paid $45 to $60 per hour, depending on the case. The raise would cost a total of $7.6 million in FY19, when it would take effect.
The SPD "is experiencing difficulty in making appointments to the private bar, especially in sexual assault cases, which has consequences for the justice system," the office said in another issue paper. "Many offices serving counties outside of Milwaukee and Dane must routinely appoint attorneys from other counties, increasing travel time and mileage expenses.
The buying power of $40 in 1995 is the equivalent of $25.20 in 2014, the paper said.
There are about 1,200 lawyer on the list to take appointments, but in 2015, 13% did not accept a single case and 31% took fewer than 26, the SPD said.
We're one of four! We're one of four!
Just four states in the nation failed to adopt significant criminal justice reform legislation in the past two years -- and Wisconsin is one of them!
The other three, according to a new report by the Vera Institute of Justice, are Massachusetts, New Mexico, and Pennsylvania.
While other states embraced bail reform and found ways to help inmates re-enter society, Wisconsin increased the penalties for moving a corpse and criminalized some standard naked-baby portraits.
The good news is that there are folks on both sides of the Wisconsin legislative aisle who would like to see criminal justice reform happen. The bad news is that it hasn't happened yet.
Here is map from the Vera Institute report, New Trends in State Sentencing and Corrections 2014-2015, that illustrates Wisconsin's status as a criminal justice reform lagging outlier.
This is how you become a criminal in Wisconsin: put a picture of a naked baby on a greeting card and try selling it on Etsy.
There. Wasn't that easy?
You just committed a felony.
Leonardo DaVinci would be a criminal in contemporary Wisconsin, if he really did paint the Madonna Litta and got a bit o' cash for it. It's got a nude baby, after all.
And hey, Wisconsin parents? Until this year, you could take that adorable naked-butt pic of your kid and submit it to a modeling agency if you hoped to get a contract, but now that would make you a felon.
That's because Wisconsin's anti-pornography law prohibits not only porn, but any "intimate representation" -- including nudity -- of a child used for commercial gain. Parents used to be exempt from some of the prohibitions, but are no more, thanks to revisions that took effect last month. Violation of the law is a class I felony, punishable by fine not to exceed $10,000 or imprisonment not to exceed 3 years and 6 months, or both.
The law, said University of Wisconsin Law Professor Howard Schweber, a First Amendment expert, "is pretty broad. It would include artists who paint or photograph children bathing, for example, if there is an expectation that the artwork will eventually be offered for sale."
Imagine getting busted for selling a portrait of a nude baby. Maybe it is art to most of the world, but pornography to the local district attorney, (who apparently never has Googled "newborn photography"). You could go to prison, or maybe you will be acquitted. Then public records will simply show that you were accused, but not convicted, of violating child pornography laws. Think that's not a life-changer?
It is OK if parents give away cute naked-butt pictures of their kids, but speech is a little less free if there is any sort of compensation involved. The law prohibits anyone, including parents, from capturing, possessing, making, distributing, or exhibiting a representation depicting the child...for the purpose of sexual arousal, gratification, humiliation, degradation, or monetary or commercial gain." (Emphasis added)
Never thought the Republican-dominated State Legislature and Gov. Scott Walker would automatically equate pornography with capitalism. Will wonders never cease.
Wisconsin just made possession of masking agents illegal, punishable with fines of up to $500 and jail stays of up to 30 days. Delivering or manufacturing a masking agent carries a harsher penalty -- up to $1,000 in fines and 90 days in jail. And advertising masking agents can bring an offender up to $500 in fines and 30 days in jail.
Here's the rub. The Republican-sponsored law's definition of "masking agents" is so incredibly broad that it can be invoked to harass anyone holding a bottle of water. A masking agent is, according to the State of Wisconsin, "any substance or device that is intended for use to defraud, circumvent, interfere with, or provide a substitute for a bodily fluid in conjunction with a lawfully administered drug test."
Well, let's see. Drinking a lot of water to dilute urine is a fairly common way people try to beat drug tests. And diuretics are very common masking agents. Pity the poor woman carrying an over-the-counter PMS med in her purse or the guy taking a diuretic to help control his blood pressure. As for people carrying water or drinking water...will they have to justify themselves to police?
It will be interesting to see just who it is who will decide the intent of the people in possession of these dangerous items. Will people be considered guilty if they possess a diuretic on drug-testing days? Or will police decide what the intent is? And how will they decide?
Gov. Walker signed a bill this week that will generally allow authorities to strip search anyone thrown in jail, even if they are not charged with a crime.
He signed the bill in private, according to the Associated Press.
Help WJI advocate for justice in Wisconsin