 Gabler By Gretchen Schuldt Milwaukee County Circuit Judge Daniel Gabler provided false information on his judicial application about two Milwaukee Municipal Court cases that resulted in financial penalties against him and his wife. Gabler provided the information in application materials he submitted to Walker's office when seeking appointment to the bench. Gabler did not respond to emails about the matter sent to his office. Gabler was found guilty twice in the past four years of building code violations at two Milwaukee rental properties he owned with his wife, Marybeth. The couple has since sold at least one of them. Walker appointed Gabler to the bench in December. Gabler previously was chairman of the State Parole Commission. Gabler, in his judicial application, acknowledged the two court cases, but laid the blame on a contractor. "The origin of these most unfortunate actions was the omissions of a once reliable contractor," Gabler wrote. "In these cases I contracted with (the contractor), including a transfer of a substantial down payment, to complete the work as required by the city. "After months and months of promises and months of delay, I discovered that (the contractor) fled the country with my money in his pocket and without performing the necessary work." Yet Gabler was fined $280 in one of the cases in May 2015, six months before he hired the contractor in November 2015, according to Municipal and Circuit Court records. The property involved in that case is in the 300 block of E. Wilson St. The contractor was hired to work at a different property owned by the Gablers. That property, which the couple has since sold, is in the 2200 block of S. Chase Ave. The Gablers live on North Lake Drive in Bayside. Gabler, in his judicial application, acknowledged the two court cases, but laid the blame on a contractor. ... Yet Gabler was fined $280 in one of the cases in May 2015, six months before he hired the contractor, records show. The Municipal Court case stemming from the Chase Ave. code violations involved the housing unit – not the garage the contractor was allegedly hired to fix, according to the city Department of Neighborhood Services (DNS) and Circuit Court records.
A small claims case Gabler filed against the contractor said the two reached a verbal agreement in November 2015 calling for the contractor to make several repairs to the garage at the Chase Ave. property. The city had issued a raze order for the structure in April 2015. In its order, the city cited structurally defective walls, structurally defective columns or beams; defective exterior finishes, exterior trim, and door units. The Gablers were supposed to comply with the order by Nov. 11, 2015. The contractor was supposed to replace door headers and doors, tuck point the concrete block, replace the roof and paint the garage, according to Gabler's lawsuit, filed in May 2016. The agreed-upon price was $12,500; Gabler alleged he gave the contractor a $5,000 down payment. Gabler eventually won a $10,388 judgment in the case and settled for $5,500, according to Circuit Court records. The Gablers had the garage torn down by mid-July, 2016, according to DNS records. Meanwhile, the city was preparing to take the couple to court over orders inspectors issued for the housing unit at the same address. The Gablers were told in November 2014 to replace defective fascia boards, roof eave boards, and exterior trim boards. The city also ordered the couple to paint wood and metal surfaces. Building code violations are taken to Municipal Court if the property owner does not correct them within a certain time period. On Aug. 16, 2016, the Gablers were each fined $440 for the violations, according to Municipal Court records. The next day, the city reinspected the Chase Ave. property and found additional problems. This time the Gablers were ordered to paint; replace defective and missing boards in the roof eave; replace missing downspouts and connect to gutters; replace defective gutters; replace missing mortar on exterior walls; replace defective trim boards; and replace defective and missing siding. In the earlier, 2015 building code case, involving the property in the 300 block of E. Wilson Street, Gabler was found guilty in May 2015 of the violations and was ordered to pay $280 in penalties; charges against Marybeth Gabler were dismissed without prejudice, according to Milwaukee Municipal Court records. Gabler's Wilson St. property originally was cited in May 2013 for 12 violations; four remained by the time the penalty was levied. The Gablers did not meet orders to paint wood and metal surfaces and repair or replace a defective service walk, according to records.
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 Gabler Note: WJI will continue the "Walker's judges" features for judges appointed by former Gov. Scott Walker who are still on the bench. We also will add information about Gov. Tony Evers' appointees as he makes them.
The information here is taken from the appointees' own judgeship applications. Name: Daniel J. Gabler Appointed to: Milwaukee County Circuit Court Appointment date: Dec. 26, 2018 Education: Law School – Marquette University Undergrad – Creighton University High School –Not listed Legal employment: March 2017-present – Chairman, Wisconsin Parole Commission 1999-2017 – Milwaukee County assistant district attorney 1997-1999 – Compliance officer, Goodwill Industries 1996-1997 – Public affairs manager, Time Warner Cable Memberships: Wisconsin Bar Association Milwaukee Bar Association Arbitrator, Milwaukee Better Business Bureau Federalist Society U.S. District Court, Eastern District of Wisconsin U.S. Court of Appeals for the 7th Circuit St. Thomas More Society Gabler, on his resume, lists his accomplishments as a Milwaukee County assistant district attorney.
Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Over 27 years of experience in the legal profession, advocated for the rights and interests of individuals, families, small businesses, community based organizations, municipal governments, witnesses and crime victims through firm but fair advocacy in faithful adherence to the law – ever mindful that what I may want the law to be cannot be my guide. My guide has been the law as written and interpreted by higher courts. Worked as a Better Business Bureau arbitrator required application of facts consistent with terms of arbitration agreement and the Wisconsin Lemon Law. No matter how sympathetic the plaintiff / auto owner was, there were times my decisions resulted in disappointment out of my faithfulness to the law. Most recently was chair of the Wisconsin Parole Commission. Number of cases tried to verdict or judgment: Jury, more than 100; non-jury, more than 35; arbitration, 10; administrative bodies, More than 2,000 (parole chair). Cases on appeal: Wrote three appeals briefs in unpublished cases. As clerk to Appeals Judge MIchael T. Sullivan, researched and drafted in part five District I Court of Appeals decisions. List and describe the three most significant cases in which you were involved: (Gabler listed only two) State v. Artic, 2006 In this case, I prosecuted Mr. Robert Artic Sr. for Conspiracy to Commit the Crime of Possession with Intent to Deliver Controlled Substance-Cocaine and Keeper of a Drug Place in February 2006 (06 CF 0685). It was a particularly challenging case for the evidence against the defendant was circumstantial. In addition, it was tried before a jury over the course of five days in front of a judge who had just been rotated to the criminal division, having virtually no prior criminal jury trial experience. After presenting numerous police testimony evidence and over 25 exhibits, the jury found Defendant Artic guilty of both counts. Racine v. Weisflog, 1991 The case resulted in an opinion issued by the Wisconsin Court of Appeals that addressed uncharted parameters of a corporate officer / director’s fiduciary duties to the corporation when a business opportunity presents itself to that officer / director. As a judicial law clerk for the Hon. Michael T Sullivan, I researched, drafted and conferred with other judges on the panel to arrive at a unanimous opinion that has stood the test of time. ... The Racine v. Weisflog holding was the synthesis of Wisconsin case law together with general principles of corporate law, and legal treatises and commentaries.  Crivello "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. Name: Laura A. Crivello Appointed to: Milwaukee County Circuit Court Appointment date: March 13, 2018 (up for election spring 2019) Education: Law School – Marquette University Undergraduate – UW-Milwaukee (earlier attended Belmont University, Nashville, TN) High School – Mary D. Bradford High School, Kenosha, WI Recent legal employment: 1995 - present – Assistant district attorney, Milwaukee County District Attorney’s office Memberships: Courts of the State of Wisconsin U.S. District Court-Eastern District State Bar of Wisconsin Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Assistant district attorney for 23 years. Cases handled include traffic, misdemeanors, children in need of protective custody, firearms, domestic violence, gangs, community prosecution, drugs, and homicide cases. Number of cases tried to verdict or judgment: Jury, 100+; non-jury, 100+; arbitration, no answer given,; administrative bodies, 5+. Cases on appeal: 20+ Three most significant cases: East Side Mafioso Investigation and Prosecution – Back in 2014, the heroin epidemic was coming into full swing. The east side of Milwaukee was experiencing an increase in violence and overdoses. HIDTA decided to target a gang with a history of violence who was accurately believed to be supplying this area with this poison. This gang called themselves the East Side Mafioso. Our goal was to not only eliminate the suppliers, but to also to see if we could do something to help the people addicted to heroin. Our investigation developed into a … State run wiretap which spun into two other successive wiretaps resulting in six lines that were ultimately tapped. On the day of the take down, HIDTA executed ten search warrants which resulted in the seizure of eleven firearms, $21,000 in U.S. currency, nine assorted vehicles, approximately one half kilogram of heroin, one half kilogram of cocaine, as well as substantial amounts of cocaine base and marijuana. Furthermore, forty-five individuals were arrested … We also were able to place many of the users who were selling to support their habit into drug treatment court. …I know we saved lives by putting the supplier in prison for extensive periods of time and I know we saved the lives of a number of the addicts which I why I know this investigation and prosecution were significant. Violent Crime Tint Crew (Blessed Team/Big Money Addicts) In 2015, heroin dealers modified how they sold heroin in Milwaukee County. The market changed from drugs being sold from stash house (a closed market) to drug being sold out of tinted out cars (an open market). These individuals worked off of phones which were shared by groups. … These dealers loved social media and tended to post video clips of themselves driving through the community with vast amounts of drugs, firearms with extended magazines and stacks of money. … Our investigation was a multi-jurisdictional effort that resulted in approximately twenty higher level suppliers being arrested, prosecuted, and ultimately placed in prison. Confidential informant information, controlled purchases of drugs, under-cover buys, multiple search warrants, and other lawful means were utilized to build cases … One of the most frustrating parts of the whole investigation was that as soon as one member was arrested, we would seize the phone. This group was technically advanced enough to realize that the phone line was what provided the money, so they would port the phone line to a different device immediately after an arrest … We decided to employ a tactic that had never been used in the United States. A warrant was drafted which ordered the phone company to freeze all data going into and out of a particular line that was utilized by the BMA, thereby rendering the line useless for a thirty day period. …We were thereby able to disrupt the drug trafficking continuum and hopefully save some lives. Since this was accomplished, I have heard from prosecutors and law enforcement across the United States seeking copies of our documents to replicate what we did in Milwaukee to affect the heroin trafficking trade on our soil. Willie Jordan and Mario Wood – In 2014, I was aware of a homicide that occurred where the victim was found with duct tape, pistol whipped, beaten, shot in the head and dumped in an alley. The suspect for this crime was Willie Jordan. He was charged with False Imprisonment by a different prosecutor. On the day of trial, the case was dismissed. I had followed this case and watched this matter transpire … and it didn’t feel like justice was served. Then in December of 2015. I learned of a young stripper who was the girlfriend of Willie Jordan who had been bound with duct tape, pistol whipped, beaten, branded repeatedly with a red hot fork, injected with heroin – twice and left for dead. The perpetrator before stealing the victim's dog, turned on the gas on the stove causing great risk to the entire neighborhood. ...Ultimately, the victim's relative found her near death and called the paramedics. The case was initially reviewed as an overdose. No evidence was taken from the scene. ... The reviewing prosecutor ultimately no processed the case because she felt the victim was uncooperative and her medical records reflected that she had marijuana in her system. There was no physical evidence to corroborate her statement due to the case not being properly investigated and the perpetrators wearing gloves. … Again, I felt that justice had not been served. Six weeks after the incident, I decided to meet with the victim. ... [Despite difficulties the victim ultimately testified..] The victim’s testimony was the most powerful testimony I have ever heard. … Ultimately, the jury convicted Jordan of Attempted 1st degree Intentional Homicide, False Imprisonment, Armed Robbery, and Delivery of Heroin. Jordan is presently serving an 80 year sentence in the Wisconsin Prison System broken down into 50 years of initial confinement followed by 30 years of extended supervision. … All previous runs for office: NA Pro bono legal work in the last five years: Due to my position, I am unable to do pro bono legal work. Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: NA All judicial or non-partisan candidates endorsed in the last six years: NA Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: Redacted WJI note: Nicholas J. Korger, assistant legal counsel in Gov. Scott Walker's office said in a cover letter accompanying applications submitted by Crivello and two other judicial appointees that "certain information for one applicant is redacted due to ongoing security concerns." While Korger did not identify the applicant, it is presumably Crivello. Quotes: Why I want to be a judge – I am seeking where I may do the greatest good. For the last twenty three years, I have sought to do what is right and what is just. I have tried to be fair and to the best job that I could do. I have prayed for remedies or made recommendation as to what I believe is just. I am turning fifty this year, and I am at that point in life where I am ready to be the person making the decision, not just the person asking for the right thing to be done. I also believe that I would be a good judge. I am well studied and experienced. I have a proven track record of trying hard cases and prevailing. I also try the right cases for the right reasons. I have demonstrated that I exercise sound judgment and I am devoted to seeking justice. I believe that the law was created for the common man and the law should apply equally to all. I believe that the law should be carried out in a fair and impartial manner. … I belief in speaking the truth even if your voice shakes and accepting responsibility. ... I believe I possess the qualities that I would want in a judge…compassion, humility, and common sense. I consider myself to be conservative in my judicial philosophy. I do not believe that someone is placed on the bench to legislate from this platform or to have their personal agenda fulfilled. – Milwaukee County Circuit Judge Laura A. Crivello Best United States or Wisconsin Supreme Court opinion in the last thirty years – State of Wisconsin v. Charles Matalonis (2016)
I enjoyed the case … authored by Justice Annette Ziegler. Here, the Supreme Court reversed an unpublished court of appeals decision that reversed Matalonis’s conviction in Kenosha County Circuit Court for manufacture/delivery of THC. This case involved officers making contact with Matalonis’s brother, Antony, who was battered and bloody. When officers spoke to Antony, his accounts were inconsistent. A trial [sic] of blood was followed to Matalonis’s residence, where officers observed blood on the door and heard banging sounds coming from the inside. Upon knocking, Matalonis answered the door, at which time officers observed blood on the floor. Subsequently, the officers advised that they wanted to ensure that no one else was injured. Matalonis let the officers into the house. Upon walking through the house, officers observed blood on the wall leading upstairs and on a locked door. Marijuana and drug paraphernalia were also observed. After obtaining a key, police entered the locked room and found a marijuana plant and a grow operation. The Supreme Court found that the community caretaker doctrine made admissible the evidence recovered from the room. … This decision abounds with common sense. When law enforcement was confronted with inconsistent stories, a blood trial, odd noises, and smears of blood through a house, it would be reasonable for law enforcement to believe an injured person may be present based on these objective factors. There was no indication that law enforcement conducted an investigation or sought evidence. Law enforcement acted reasonably in seeking to care for the community which is what they are charged to do. The dissent was authored by Justice David Prosser and joined in by Justices Shirley Abrahamson and Anne (sic) Walsh Bradley. The dissent argued that the community caretake exception was expanded in this case beyond what was intended, without any compelling justification. This argument fails in that the objective facts presented to law enforcement provided the reasonable basis for the bona fide community caretaker function. Justice Abrahamson then wrote a separate dissent complaining that because this case was argued before Justice Bradley joined the court, the court should have not have decided the case without first determining whether it should have been reargued. This argument seems trivial and more about personalities than about the matter at hand. Worst Wisconsin or US Supreme Court decision – State v. Mitchell (1992) One of my least favorite cases issued by the Wisconsin Supreme Court is State v. Mitchell … This was a case that arose out of Kenosha County from an incident that occurred on October 7, 1989. Here, the Supreme Court declared unconstitutional a state statute which enhanced the penalty for a defendant if the victim was chosen on the basis of race, religion, color, disability, sexual orientation, national origin or ancestry. Ultimately, on June 11, 1993, the United States Supreme Court reversed the Wisconsin Supreme Court finding that the Wisconsin statute providing for enhancement of the defendant’s sentence whenever he intentionally selects his victim based on race did not violate the defendant’s free speech rights by purporting to punish his biased belief, and the statue was not overbroad. The facts underlying this case involved Mitchell, a 19 year old black man, that instigated an attack against a fourteen year old white child after discussing a scene from the movie “Mississippi Burning” where a white man beat a young black boy who was praying. Mitchell and approximately ten others observed the fourteen year old approach an apartment complex, at which time Mitchell said “you all want to fuck somebody up? There goes a white boy; go, get him.” Mitchell pointed at the victim. The victim was beaten to the point that he remained in a coma for four days and suffered extensive injuries including possible permanent brain damage. The question before the court was whether an increase in Mitchell’s sentence based on his bigoted motives violated his First Amendment rights? The First Amendment states: “Congress shall make no law…abridging the freedom of speech.” This Amendment protects not only speech but thought as well. In a unanimous opinion drafted by Justice Rehnquist, the Court found that the Wisconsin statute paralleled the antidiscrimination laws which had been found to comply with the First Amendment. The Court reasoned that the consequences for the victim and the community tend to be harsher, when a crime victim is chosen based on race. Thereby, when the Wisconsin statutes increased the sentence for such crimes, it wasn’t punishing the defendant for his beliefs, but rather for the predicted ramifications of the crime. Ultimately, the Court reasoned that the Wisconsin statue did not violate the First Amendment because an average person’s bigoted comments would be used against him in a legal proceeding so infrequently that he or she would not feel forced to suppress them. Thus, there is no chilling effect and the statute is not overbroad. Judicial philosophy – I consider myself to be conservative in my judicial philosophy. I do not believe that someone is placed on the bench to legislate from this platform or to have their personal agenda fulfilled. A judge should not enforce views as to what is desirable public policy over following historical precedents. A judge’s roll [sic] is to construe as objectively as possible the Constitution of the United States and the law’s that pertain to the matter. The Constitution is an amazing document that forms the basis for our legal system. Every day, I argue relative to different amendments and how different people interpret the amendments. I believe that the Constitution should be construed in the light of the drafters’ intent. I also believe in historical precedents. The law should apply equally to all. In order for this to transpire, all people need to believe that the courts will follow the laws that are in place. By following precentral (sic) authority there is a guide in place as to what each member of society may do or not do. If a judge chooses to place his or her own views above precedential authority, then that judge would be creating chaos for the members of that community and the laws would no longer apply equally to all. When looking at statutes, I am a strict constructionist. The clear reading of a statue should act as a road map. If there is a vague or confusing portion, then legislative intent should be reviewed. I believe in judicial restraint. Judges should hesitate to strike down laws, unless they are clearly unconstitutional. Describe any other information you feel would be helpful to your application – Redacted  Skwierawski "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. Name: Audrey K Skwierawski Appointed to: Milwaukee County Circuit Court Appointment date: March 13, 2018 (up for election in spring 2019) Education: Law school – Georgetown University Law Center Undergrad – Northwestern University High School – Pius XI Catholic High School Recent Employment: 2011-present – Attorney General-Violence Against Women Prosecutor, Wisconsin Department of Justice 2008-2010 – Coordinator, Commission on Domestic Violence and Sex Assault, City of Milwaukee 1994-2008 – Assistant District Attorney, Milwaukee County Memberships: State Bar of Wisconsin Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Served as Milwaukee County and state prosecutor for a combined total of more than 20 years. Has conducted more than 100 jury trials and 50 court trials. Prosecuted a double homicide and sexual assault, along with traffic, general misdemeanor and juvenile court cases. Has special expertise in domestic violence, stalking and sexual assault cases. Job duties also include providing ongoing training and technical support statewide to prosecutors handling domestic violence and sexual assault cases. Civil law experience includes assisting with a client who ran a health insurance plan and handling motions in various states; handling civil commitments of sexually violent persons cases as assistant district attorney. No significant experience advocating in administrative proceedings. Number of cases tried to verdict or judgment: Jury, more than 100; non-jury, more than 50; arbitration, 0; administrative bodies, 0. Cases on appeal: None. Three most significant cases in which you were involved: 1. State v. Billy Lee Morford – (Milwaukee County) 1996; State v. Morford, 2004 This is a Chapter 980 sexually violent person commitment case in which the respondent had already been committed for some time. Due to several factors such as advancing age and poor health Mr. Morford petitioned for what is called “supervised release” from his commitment so that he could live in the community while being supervised. I was part of the litigation team that fought against this release but ultimately lost. What ensued was a many months-long search for a private residence in the city of Milwaukee where Mr. Morford could live while being supervised. The Morford case lead (sic) to an enormous public outcry, creation of a bi-partisan state legislative committee to seek placement alternatives (on which I served), ordinances passed by municipalities to stop offenders from being placed in their communities and a series of legislative changes to Chapter 980 relating to the supervised release process. It also led to a motion for reconsideration of the initial release determination, which eventually became the subject of the above Wisconsin Supreme Court decision. 2. State v. Kenneth Spaulding – (Milwaukee County) 1997, 1998 and 1998 I prosecuted the Reverend Spaulding for sexual assault of multiple children in West Milwaukee, all of whose families had allowed him access to their children as part of church related youth group activities. As I worked with West Milwaukee and West Allis police we uncovered a pattern of sexual abuse of children in many other states. The defendant had moved around the country abusing special needs and troubled children. The vulnerability of these children made them poor witnesses, and when authorities got close the defendant would immediately move out of the jurisdiction. The fact that the defendant used his ministry to violate children offended me on a deeply personal level. I believe the case to be significant not from a legal perspective but from a human one. So many victims of the defendant heard about the prosecution that they made pilgrimage to Milwaukee for the closing arguments and the sentencing. Many victims from other states submitted letters and finally found closure after the defendant was sentenced to a lengthy prison term. 3. State v. Nicholas Tuinstra – (Green Lake County) 2014 I worked with a litigation team of the elected District Attorney and another Assistant Attorney General to convict the defendant on two counts of first degree homicide and one count of stalking. The case involved domestic violence and I worked to bring in and qualify an expert on domestic abuse. The case is now in post-conviction motion stages. There are several issues of significance that will likely be decided on appeal during the next year. Prior judicial experience: Supplemental court commissioner for Milwaukee County Circuit Judge Stephanie G. Rothstein. In that capacity I have officiated for many weddings but have not conducted any other judicial/quasi-judicial activities. All previous runs for office: Ran unsuccessfully for Milwaukee County circuit judge in 2003. Judicial or non-partisan candidates that you have publicly endorsed in the last six years: Dane County Circuit Judge Jill Karofsky and Milwaukee County Circuit Judges Mark Sanders, Thomas McAdams, and Janet Protasiewicz Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: Attorney General’s Statewide Sexual Assault Response Team Co-chair, 2012 - present Wisconsin Professional Society on the Abuse of Children, Executive Board Member, 1998 - 2001 • Wisconsin Association of State Prosecutors Executive Board member and vice president, 1996 - 2008 State of Wisconsin Violence Against Women Act Advisory Committee, 1999 - 2002, 2008 - present Milwaukee Commission on Domestic Violence and Sexual Assault Commissioner, 1998 - 2001 Wisconsin Legislative Council Special Committee Sex Offender Placement, 2007 Milwaukee County Judicial Oversight Initiative Advisory Committee, 1998 - 2000 Mt. Mary University Criminal Justice Advisory Board, 2014 - 2016 Polish Heritage Alliance, member Polanki Women’s Organization, member Washington Heights Neighborhood Association, member St. Sebastian Catholic Church, member Annunciation Greek Orthodox Church, member Philoptocos Greek Women’s Organization, member Pius XI High School Parent Producers (support performing arts at Pius XI High School), member Describe any courses on law you have taught or lectures you have given: Applicant cites a long list of courses and lectures. In my current role as violence against women resource prosecutor I am responsible for presenting numerous trainings throughout the state for diverse audiences including judges, prosecutors, law enforcement agencies, probation agents, victim witness professionals and community advocates. Pro bono legal work in the last five years: None. Wisconsin law dictates that prosecutors not engage in any other practice of law outside of their employment. Quotes: Why I want to be a judge – Our judicial system often represents the closest connection point for many Americans to interface with their Constitution and their government. With the exception of marriage and adoption, the hundreds who appear in circuit court in Milwaukee County every day come because of an unhappy, stressful circumstance. They come bearing the weight of criminal victimization, unresolved business disputes, divorce or some other potentially life-changing problem. In short, they come to the court when things may be at the worst in their lives. That is precisely when they deserve the best that our justice system can provide. They deserve a circuit court judge who delivers on the promise of the rule of law, honors the Constitution and has a deep understanding of the separation of powers. Those appearing in Milwaukee courts also need a circuit court judge who can dispense justice without unnecessary delay. The courts in Milwaukee carry heavy dockets, so a circuit court judge must not only be able to follow the rule of law thoughtfully and accurately, but also expediently. I want to be a judge because I have the skills to deliver the high level of juridical excellence combined with the efficiency that the people of Milwaukee County should expect when they walk into the courthouse. My educational experiences at both Northwestern University and Georgetown University create the foundation for the intellectual rigor required to make well-reasoned decisions. My more than twenty years of real world experience as a litigator (first in Milwaukee courtrooms and then in courtrooms all over the state) has honed my ability to deftly handle large calendars and complex cases without sacrificing quality. They come bearing the weight of criminal victimization, unresolved business disputes, divorce or some other potentially life-changing problem. In short, they come to the court when things may be at the worst in their lives. Best Wisconsin or US Supreme Court decision in the last 30 years – Paroline v. United States (2014)
As a prosecutor I have worked with hundreds of crime victims throughout the state. I believe Paroline v. United States ... is one of the best decisions of the past 30 years because in it the U.S. Supreme Court modeled treating victims with sensitivity, dignity, and respect. The court showed empathy towards the victim, protecting her privacy, and instructing on the importance of restitution. The victim in Paroline, identified as "Amy," was sexually assaulted by her uncle as a young girl. Compounding his crimes, her uncle also recorded and distributed pornographic images of her abuse on the Internet. Paroline was convicted for possessing two of the 150 to 300 total images of child pornography in his custody. Amy sought $3.4 million in restitution, under the federal statute that mandates full restitution to child pornography victims, arguing that everyone who possesses images of her is continuing to contribute to her injury and, consequently, each of them should be required to pay the full amount for her losses. The Supreme Court ruled that Paroline was not responsible for the entire $3.4 million but he should have to pay his share of restitution and that amount must be enough to send the message that his part in the crime was not victimless. Although the court did not rule that Amy should receive the full $3.4 million from Paroline, the court's decision is exemplary in its treatment of Amy as a crime victim. In the decision, the justices show compassion and sensitivity towards Amy. In demonstrating empathy for Amy, the court signals to all who read this case that Amy is a real person worthy of our attention and respect. ... The court protected the victim's right to privacy by allowing Amy to use a pseudonym rather than her real name. This allows Amy to avoid further humiliation as she puts her life back together. Not all courts allow victims to remain anonymous. When victims’ identities are revealed along with graphic details of the crimes committed against them, it exacerbates the trauma they experience. In modeling the use of a pseudonym, the U.S. Supreme Court indicates to lower courts that this practice is not only acceptable, but preferred. Lastly, the court fully embraced the importance of restitution noting that restitution is effective in rehabilitating offenders because it forces them to concretely confront the harm they caused. Worst Wisconsin or US Supreme Court decision in the last 30 years – State v. Johnson (2013 WI 59.) Crime victims often rely on mental health providers to help them heal emotionally and psychologically after they have been harmed. The psychologist-patient privilege is especially important because it encourages these crime victims to fully disclose information, without fear of embarrassment or humiliation, in order to receive much-needed counseling and support. It is not uncommon for defendants (especially in sexual assault cases) to attempt to pierce this privilege, arguing that the mental health records contain exculpatory evidence. Current Wisconsin law creates a dilemma for victims because once a judge makes the requisite findings, victims must choose to disclose their mental health records and testify against their abuser or choose not to disclose and be barred from testifying. This dilemma is at the heart of the what I believe to be the worst decision issued by the Wisconsin Supreme Court in the past 30 years, State v. Johnson (2013 WI 59.) Curtis Johnson was charged with one count of repeated acts of sexual assault to his stepdaughter when she was between 12 and 15 years old. During discovery Johnson moved the court for an in camera inspection of his niece's therapy records, asserting the records contained information about their relationship and were exculpatory. The circuit court ruled that Johnson met the requisite burden and ordered the victim to disclose her records. The victim asserted the psychologist-patient privilege and declined to allow the judge to see her records. In response, and departing from precedent, the judge issued an order allowing the victim to testify, without disclosing her records, provided the jury was instructed that it could infer that the undisclosed records would be helpful to the defense. The Court of Appeals reversed the trial court's decision and ruled that the victim could not testify as long as she was "exerting" her privilege. State v. Johnson (No. 2011 AP 2864-CRAC). In State v. Johnson (2013 WI 59) the Supreme Court issued a per curiam decision in which two justices did not participate. The court offered no legal analysis in its decision. Rather the opinion presents various issues and indicates which justices decided one way or the other on each issue. Ultimately the court reversed the appellate court's decision and found "under varying rationales" that the victim could testify without disclosing her mental health records. The decision was silent as to the curative instruction. The parties and the trial court did not know how to proceed because the decision offered no analysis, departed from precedent, and did not discuss the curative instruction. Both the state and defense asked the court to reconsider this decision. The Supreme Court issued a second per curiam decision in which it admitted its first decision was confusing and left the parties and the trial court "without sufficient guidance or ability to proceed consistent with precedent." State v. Johnson (2014 WI 16). In the end, the court affirmed the Court of Appeals decision. The dilemma for Johnson's niece remained. Judicial philosophy: I recently taught an undergraduate university course on the way our criminal justice system handles various forms of abuse – sexual abuse, domestic abuse, and elder abuse. I inherited a set of lesson plans from a previous professor who graciously shared them with me. But instead of starting with the first plan and chapter of the book, I started where I thought all students of criminal justice should start – with an intensive review of our system of separation of powers and checks and balances. Working from the municipal level to the county then the state and federal levels we developed a working “map” on the board depicting the three branches of government as well as their responsibilities. Just as I chose this lesson to be the foundation for the students, I recognize it as the foundation of my judicial philosophy. As judges in our courts work toward the ideal of “equal justice under law” each must have a firm grounding and understanding of their role in our democratic system. With this foundation in place, the circuit court judge works to conduct motions, facilitate truthful testimony, conduct fair trials and apply the laws as enacted by the legislature. And the good circuit court judge carries out these duties while striving to adhere to the highest level of personal and professional excellence in every case no matter how large or small. Conducting a great many day to day duties at a high level of excellence while keeping in mind one’s role in the larger system of democracy can seem an impossible task, but I am guided by the many exemplary judges in our state whom I have had the good fortune to observe in action. I do not pretend to be able to work to their levels because taken together they have set the bar high. Knowing it can be done, however, helps me to aspire. My own undergraduate alma mater, Northwestern University, was founded on the motto, “Whatsoever things are true” taken from Philippians, 4.8: Finally, brethren, whatsoever things are true, whatsoever things are honest, whatsoever things are just, whatsoever things are pure, whatsoever things are lovely, whatsoever things are of good report; if there be any virtue, and if there be any praise, think on these things. If a firm understanding of the separation of powers forms the foundational “floor” for my judicial philosophy, then these words capture the aspirational “ceiling.” For whatever else a judge may seek to do, he or she should take the bench thinking always upon the search for what is true, what is honest and what is just. Previous application for judicial appointment: Application for appointment as a Milwaukee County Circuit Court Judge submitted to the Governor’s Judicial Nominating Commission in 2003.  Bitney "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. Name: J. Michael Bitney Appointed to: Barron County Circuit Court Appointment date: July 11, 2013 (elected to a 6-year term in 2014) Education: Law School – Hamline University Undergraduate – Hamline University High School – None listed on application Legal employment: 1993 - present – Washburn County district attorney 1985 - 1992 – Associate, Bitney Law Firm, Spooner, WI Memberships: Washburn, Sawyer & Rusk Tri-County Bar Association Wisconsin District Attorneys Association State of Wisconsin Bar Federal Courts, Western District of Wisconsin Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Worked with father and brother at Bitney Law Firm in Spooner. Represented northwestern Wisconsin clients in family, criminal, traffic, probate, businees, property, personal injury, contract, and bankruptcy matters. Thereafter in 1992, I ran for the office of District Attorney for Washburn County on the Republican ticket. I was elected and took office in Jan. 1993. For the past twenty (20) years, I have proudly represented & served the People and victims of crime in both juvenile court and adult court in literally thousands of cases ranging from county ordinance violations to first degree intentional homicide cases and everything in between. Number of cases tried to verdict or judgment: Jury, 100+; non-jury, 1000's; arbitration, 0; administrative bodies, 0. Cases on appeal: 20+ Two most significant cases: State of Wisconsin vs. Ernest E. Halford – The defendant and three co-defendants ... came to Washburn county looking to burglarize rural homes and steal cash, jewelry & firearms that they could then pawn to support their drug habits. A neighbor to one of the victims (Mr. Peter Barton) stumbled onto their burglary in progress and Halford and one other co-defendant, Edward Rollins, took Barton at gun point into a pine plantation behind the burglarized home where they tied him to a tree and shot him to death. This was my first homicide jury trial. ... I successfully prosecuted all of the defendants who received lengthy prison sentences and the shooter, Haldord, (sic) received a sentence of life without parole plus 65 years. State of Wisconsin vs. Michael Stoner – In a case that made headlines in 2007, the defendant and his girlfriend survived the collapse of the I-35 bridge in Minneapolis, Minnesota, while en route to the hospital where her daughter was taken for emergency treatment. Originally hailed as a hero, the public soon found out that Stoner was the only adult with the toddler when she was injured. ... Medical experts, however, concluded that her injuries were not accidental but were consistent with Shaken Baby Syndrome. … Mr. Stoner ultimately entered a plea of no contest … and was given the maximum possible sentence of twelve (12) years six (6) months in prison. State of Wisconsin vs. Eugene Huntington – Another case that I successfully prosecuted and which on appeal expanded the “excited utterance” and “residual hearsay exceptions” to the hearsay rule … The defendant, Eugene Huntington, was convicted of multiple counts of 1st Degree Sexual Assault of a Child. … The Wisconsin Court of Appeals affirmed and the Wisconsin Supreme Court … held that the trial court had properly admitted statements that the victim made to her mother and to her health care providers. All previous runs for office: Washburn County District Attorney, first elected in 1992 and re-elected since. (Information about an unsuccessful run for Washburn County Circuit Court judge provided in the next answer.) Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Yes, in addition to my own campaign(s) for Washburn Co. District Attorney, I ran for Washburn County Circuit Court Judge back in 1997. I lost in a close race to Eugene D. Harrington by just over three hundred votes. I also campaigned for & supported Attorneys Thomas J. Duffy and Steven H. Gibbs in their previous campaigns for Circuit Court Judge in Sawyer and Chippewa counties respectively. Finally, I endorsed and supported Steven Gibbs in his successful campaign for Chippewa County District Attorney. All judicial or non-partisan candidates endorsed in the last six years: Hon. Michael Gableman, Burnett County Circuit Court Judge and WI Supreme Court Justice. Hon. James D. Babbitt, Barron County Circuit Court Judge, Branch III. Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: Volunteer firefighter, Spooner Fire District Boy Scout leader and Scoutmaster, Spooner Troop 104 Head coach and assistant coach in youth soccer, baseball, football & basketball Kiwanis Men’s Club member Lion’s Club member Lector and volunteer, St. Francis de Sales Catholic Church Volunteer Faith in Action Spooner Little League Board member Spooner Hoops Club Board member Spooner Baseball Foundation Board member Describe any significant pro bono legal work in the last five years: No answer given. Quotes: Why I want to be a judge – My passion and my calling has been to serve others. As you can see from my application, I have done this throughout my adult life both professionally and personally in many different capacities, both in the private section and as an elected official. ... A good judge treats others (lawyers, litigants and staff) with dignity and respect. S/he is patient and kind. An effective judge is a good listener. S/he has a sense of humor and doesn’t take him or herself too seriously. A good judge comes to court well prepared … A good judge is driven by the search for the truth. Most importantly, a good judge is fair. I possess these qualities. I have the legal and life experience, knowledge, work ethic and the demeanor to be a good Judge. It’s time for me to take the next step in my professional career to expanded that service to others, as a Circuit Court Judge. Best United States or Wisconsin Supreme Court opinion in the last thirty years – Davis v. United States (2011) The police searched Davis’ vehicle after placing him under arrest for obstructing an officer. During the vehicle search police found a handgun. Davis was ultimately convicted of possession of a firearm by a convicted felon. While Davis’ appeal was pending the U.S. Supreme Court announced it’s decision in Arizona v. Grant …overruling nearly (30) years of prior precedence. … In denying Davis’ appeal, the Supreme Court held that when police conduct a search in reasonable “good faith” reliance on previous precedence, the exclusionary rule does not apply. The decision is significant for several reasons. First, it reminds us that the “exclusionary rule” is not a personal constitutional right. … Second, this decision clearly admonishes judges that not all fourth amendment violations require the harsh sanction of excluding otherwise reliable and trustworthy evidence. … Third, it instructs the courts to engage in a cost-benefit analysis, examining the aforementioned “societal cost” of suppressing valuable evidence versus the flagrancy of police misconduct involved … I believe that this is one of the best U.S. Supreme Court decisions within the last thirty (30) years because it serves as a powerful reminder that our entire system of jurisprudence is premised upon the search for the truth and that society should swallow the bitter pill of excluding otherwise reliable, trustworthy and valuable evidence when necessary but only as a last resort to curb egregious police misconduct. I believe that this is one of the best U.S. Supreme Court decisions within the last thirty (30) years because it serves as a powerful reminder that our entire system of jurisprudence is premised upon the search for the truth and that society should swallow the bitter pill of excluding otherwise reliable, trustworthy and valuable evidence when necessary but only as a last resort to curb egregious police misconduct. – Barron County Circuit Judge J. Michael Bitney Worst United States or Wisconsin Supreme Court opinion in the last thirty years – Arizona v. Gant (2009)
Arizona v. Gant … which effectively overruled a single familiar standard that had guided law enfocement officers in federal and state courts for nearly three decades … providing law enforcement officers with the authority to search an automobile incident to the arrest of one or more of it’s occupants; was one of the worst decisions in recent US Supreme Court history. In place of the aforementioned bright line rule, the Court adopted a new two-part rule under which an officer who arrests a vehicle operator or occupant may search the passenger compartment of the vehicle only 1) if the arrestee is within reaching or lunge distance of the car at the time of the search or 2) the officer has “reason to believe” that the vehicle contains “evidence of the offense of arrest.” (Whatever those phrases mean.) The folly of this decision is readily evident. The first prong of this rule a) encourages officers to leave a potentially dangerous suspect(s) within arms reach of his vehicle to avoid the necessity of a search warrant or b) is irrelevant because intelligent law enforcement officers always secure suspects away from their vehicles before searching them to ensure the officer safety. The second prong of this rule creates a yet-to-be-defined or understood legal standard allowing officer to search the suspect’s vehicle only if s/he has reason to believe that the vehicle contains evidence of the offense of the arrest. What does this rule mean? Is probable cause required? Will reasonable suspicion that the vehicle contains evidence of a crime suffice? And what does “evidence of the offense of the arrest” mean? As Justice Alito said in his dissent, it is certain to confuse law enfocement officers, prosecutors and judges for years to come. … Judicial philosophy – Judges should interpret and uphold the law, not create it. Our founding fathers enacted a constitution that created a democracy made up of three different branches of government; executive, legislative and judicial to ensure that our nation would survive through a system of checks and balances. … When judicial activists forget this and attempt to legislate from the bench, this system is turned on it’s head and the voice or will of the people is drowned out. Judges aren’t elected or appointed to create law, legislators are. I also believe in the legal principle of Stare Decisis. Judges ought to respect precedencts established by prior decisions. Any other information you feel would be helpful to your application: List of personal references given, including contact information for JB Van Hollen, Hon. Michael J. Gableman, Hon. James D. Babbitt, and Hon. Kenneth L. Kutz.  Reynolds "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. Today's featured judge, Dane County Circuit Judge Josann M. Reynolds, was assailed by State Assembly Speaker Robin Vos last week after Reynolds ordered Gov. Scott Walker to hold special elections to fill two vacant seats in the Legislature. Vos said Reynolds is an "activist judge" who injected her "own personal opinion into how we conduct elections," according to the Milwaukee Journal Sentinel. He also said her approach was endemic among Madison judges. State law says Walker must call a special election to fill any legislative seat vacated "before the second Tuesday in May in the year in which a regular election is held." Walker aides argued that special elections weren't required because the vacancies occurred in 2017, not in election year 2018. As the JS reported: "The judge called that interpretation absurd because a seat that becomes vacant in 2017 remains empty longer than one that begins in 2018." Here's the background. You decide. Name: Josann M. Reynolds Appointed to: Dane County Circuit Court Appointment date: Sept. 19, 2014 (Elected to full term in 2015) Education: Law School – University of Wisconsin - Madison Undergrad –University of Wisconsin - Oshkosh High School – No answer Recent Employment: May 2009 - Aug. 2010 and March 2011 - present – Attorney, Sipsma, Hahn & Brophy, Madison Aug. 2010 - March 2011 – Attorney, Winner, Wixson & Pernitz, Madison 1980-1995 – Clerk, associate, partner, Jenswold, Studt, Hanson, Clark & Kaurfman, Madison Non-legal employment: 1998-2009 – Operator, Port Douglas Drive & Tours, Port Douglas, Queensland, Australia Memberships: Wisconsin Bar Dane County Bar Association American Bar Association Hague Convention Attorney Network Past: Dane County Bar Association, Board Member; Wisconsin Academy of Trial Lawyers; Civil Trial Counsel of Wisconsin; Board of Attorneys Professional Responsibility, District 9 Committee Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Represented major insurance companies, area municipalities in first job. Served as prosecutor for City of Stoughton, Village of McFarland, and City of Middleton for eight years. Also practiced in federal court and several Wisconsin circuit courts. Represented individuals and employers in employment discrimination cases. Extensive experience in family law; argued before Wisconsin Supreme Court. Number of cases tried to verdict or judgment: Jury, 20-30; non-jury, innumerable when including those where I acted as a municipal prosecutor; arbitration, 0; administrative bodies, 3-5. Number of cases litigated on appeal: Three that I recall in which I was lead counsel. There were many others in which I conducted research, assembled the record and prepared briefs during my clerk/associate period at Jenswold, Studt. Two most significant cases in which you were involved: Pleuss v Chi Psi; Ct. Appeals 131 Wis. 2d,. 589, (1986) is one of the most significant cases I have been involved in not only because of the unique exposure it provided to trial advocacy in the real world but also for the opportunity to observe a circuit court judge manage complex litigation. (WJI note: The case stemmed from an early-morning electrical fire in the Chi Psi fraternity house in Madison. Ultimately, an out-of-town guest fell from a third-story window onto a concrete staircase.) This was an extraordinarily long trial and the judge had to manage divergent parties and interests, the jury, scheduling and hear arguments and make rulings while keeping the case moving forward. It provided insight into how a judge sets the tone in the courtroom by allowing the lawyers to try their own cases while keeping control of the proceedings. There were approximately 20 lawyers present daily during the trial, some with alliances, others representing individual interests, all with their own egos and agendas. It was a lesson in how to herd lawyers as well as a lesson in advocacy, evidence, civil procedure and courtroom decorum. A second significant case remains active today. A copy of the brief submitted on behalf of my client in response to the opposing party's Motion to Dismiss and for Relief is attached as one of my writing samples. This case began in the Western District Federal Court as an OTSC pursuant to the Hague Convention as Case No. 12 CV 644 seeking the immediate return of the client's minor child to her father in Italy. The case was handled under an expedited schedule which was very challenging due to the fact that handling actions inolving (sic) a Hague Petition is a rarity for most attorneys and most evidence was located in Italy and written in Italian. We prevailed in retaining the child in the U.S. despite the one year presumption for return of a child, primarly (sic) based on Judge Crabb's assessment of the parties' credibility. This case was then filed as a family law matter in Rock County Circuit Court. ... The case has followed a convoluted and tortured path because of the international complexities and has covered basic civil procedure issues including personal service and both personal and subject matter jurisdiction harking back to the holding in International Shoe. Professionally the case has been interesting, multifaceted and demanding. Personally, the case has been rewarding and satisfying based on the importance it held im (sic) my client's life and the fact that justice was done in an exceedingly complex case. This case also resulted in the U.S. Department of State contacting me and inviting my membership in the Hague Convention Attorney Network and providing my name to the parents of other children involved in international custody disputes. (WJI note: The attorney network provides free or reduced-rate assistance to low-income parents involved in international parental child abduction cases.) In 2013 I represented a father in France who had his children wrongfully removed by their mother and relocated here in Wisconsin. That case was tried in the Eastern District Federal Court and the children were ordered to be returned to their native France at the conclusion of the hearing. This case was also very significant to my client and the deep sense of gratitude from the father upon the realization his children were coming home was extremely rewarding both personally and professionally. Prior judicial experience: N/A All runs for elective office: N/A Judicial or non-partisan candidates that you have publicly endorsed in the last six years: Judge Richard Niess Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application: I regularly volunteer in the Dane County Bar’s mediation program, which provides a cost-effective means for parties in lawsuits to obtain the assistance of a neutral third party mediator in facilitating the resolution of a dispute. This is important for all litigants but of particular significance in family law matters with minor children when the parties will have an ongoing need to interact in the future. In terms of current civic involvement, as a single parent, much of my volunteer time is invested in maintaining my daughter’s schedule and in activities appropriate for participation with her including field trips, working at concession stands and in athletic activities. While in Australia, our staff and I devoted a great deal of time and resources to community causes including civic activities in Port Douglas as well as fundraisers and charitable work for groups and individuals in need. Pro bono work in last five years: Mediator in the Dane County Bar mediation program, volunteer at the Dane County Family Law Clinic, Hague Convention Attorney Network. Quotes: Why I Want to Be a Judge - Over the course of my life and legal career I have seen the legal system function well and function poorly. I take great satisfaction in seeing, and being part of assisting in ensuring our system of justice functions well. I believe I can continue to contribute on a positive level toward that goal as a Judge. The opportunity to serve as a Dane County Judge would also provide the vehicle to bring together the diverse skills I have accumulated through my unique experiences to benefit the citizens, the judiciary and the system. My impetus for attending law school was a deeply seated, inherent interest, in seeing fairness and justice have a place in the world. The opportunity to serve my community, my profession and society is something that I have long aspired to achieve and, for an attorney, serving as a Judge is the ultimate expression of that commitment. ... My experience as an attorney with extensive courtroom and legal experience has honed my ability to read, understand and apply all areas of the law to a given fact situation and has given me a solid perspective on the role of a circuit court judge. I am also fortunate to possess abundant common sense which should never get lost in the machinations of our legal system. Judicial philosophy - Our judicial system is an essential underpinning of our remarkable system of democracy. It is a co-equal but independent branch of the government which provides a redress for grievances and a forum to resolve personal conflicts in a peaceful arena. Thus, Judges should be patient and engage in a thoughtful and predictable analysis of the existing law. Parties need predictability in preparing and presenting their cases. A judge’s obligation is to provide litigants and their attorneys a full and fair opportunity to be heard. Many litigants will only have one experience in the courtroom and it is important that they perceive they are treated with dignity and respect. Judges should be fully prepared when they enter the courtroom and be dedicated to dispensing with cases promptly and efficiently. Justice delayed truly can be justice denied. Delay can compromise the administration of justice because the expense of the process is onerous both to the participants and the citizens. By promptly handling a case load, limited resources are conserved. This is particularly true in family law matters where a limited marital estate is rapidly consumed by adversarial proceedings. Judges should be patient and engage in a thoughtful and predictable analysis of the existing law. A circuit court judge should recognize his or her duty is to apply the law and not legislate new law. Parties need predictability in preparing and presenting their cases. A circuit court judge should recognize his or her duty is to apply the law and not legislate new law. Parties need predictability in preparing and presenting their cases. – Dane County Circuit Judge Josann M. Reynolds Best Wisconsin or US Supreme Court decision in the last 30 years – Tucker v. Marcus, 1988.
Early in my legal career I handled a challenging case from the time it was filed, through discovery, depositions and all pretrial motions and ultimately to a jury trial and verdict. The case ended up in the Wisconsin Supreme Court and I was fortunate to have the opportunity to appear and argue the case before our highest Court. Therefore, I am sure my personal involvement is a factor in my selection but I believe one of the best decision (sic) of the last 30 years of the Wisconsin Supreme Court is Tucker v. Marcus. ... The decision in Tucker set a legal precedent limiting the recovery of punitive damages. Tucker involved the drowning of a minor child at an indoor swimming pool which was arguably, poorly maintained. While the jury did not find the maintenance of the pool a cause of the drowning, they did award punitive damage based on the condition of the pool. The trial court entered judgment for the plaintiff as to the punitive damages awarded by the jury and defendants appealed. The holding is important because it established the law which precludes the recovery of punitive damages in cases where no underlying liability exists. The decision reinforced the elementary principals of our tort law requiring not only proof of injury, but proof of causation as well, for a prevailing party to be entitled to recovery. The opinion is also significant for its analysis and recognition that the Court should not adopt a modified system of comparative negligence inconsistent with legislative intent. This rational (sic), set forth in dicta, confirms the need for the separation of judicial powers from those belonging to the legislative and executive branches of government. Worst Wisconsin or US Supreme Court decision -- Thomas ex rel. Gramling v. Mallett, 2005 This case extended the risk-contribution theory established in Collins v. Eli Lilly Co. ... N.W.2d 37 (1984), to manufacturers of white lead pigment whose products were used in the production of lead based paint. (The Collins decision concerned the effects of the prescription medicine diethylstilbestrol (DES) on pregnant women and their unborn fetuses). Everyone is familiar with the devastating effects ingesting lead paint can have on the development of young children. The Gramling case is a classic example of hard facts making bad law. The plaintiff was born in 1990 and as a child lived in a series of run down housing units which had been built in the early 1900’s in Milwaukee. Unfortunately those homes had been painted using lead based paints and the plaintiff suffered severe deficits as a result of his exposure to those paints. It was impossible to trace the producers of the paints actually used in the residences in question. The court undertook a laborious 33 page decision involving the history and use of lead based paints and its known adverse effects if ingested by humans, particularly children. Ultimately the Court concluded that in comparing the interests of the innocent victim who suffered severe harm and those of the defendants who may have provided the product which caused the injury, the interests of justice and fundamental fairness dictate that the defendants should pay. The decision in Gramling created liability out of policy considerations without regard to fundamental legal concepts of privity of contract or a causal connection between the defendants and the damages sustained by the plaintiff. Our legal system, and in part our economic system, depend upon an objective ability to predict liability. The decision is result oriented and creates an entirely new cause of action. The federal court did limit the effect of the Gramling decision in Gibson v. Am. Cyanamid Co. ... by protecting successor corporations from a claim founded on the risk-contribution theory of liability. Previous judicial applications: 1990, 2012 Other information that may be helpful: I am undaunted by a challenge. I left a very successful legal practice at 38 years of age because my husband’s son was diagnosed with a very rare, aggressive cancer. We went to Australia for his surgery and returned to Madison to continue my career. Unfortunately the cancer metastasized and I took a second leave of absence. Ultimately I resigned my partnership and returned to Australia. My husband and I learned to dive and operate all of the electronics, hydraulics and mechanics on our 48 foot vessel and navigated our way to New Guinea and the Solomon Islands. It was exhilarating, exhausting and immensely satisfying. It was a challenge I embraced and it provided the opportunity for exposure and interaction with people from diverse cultures. It also afforded me the opportunity to observe alternate systems of law and judicial process. I can make the tough decisions when necessary. At age 52 I returned to Madison with my then 7 year old daughter as a full time single parent and have rebuilt a successful career and earned the respect of my colleagues, my fellow attorneys who I oppose in court and the judges I appear before. I will make the difficult decisions when necessary as a circuit court judge. I have a great deal of energy and enthusiasm and a capacity for hard, focused work. When I was on the District 9 Committee of the Board of Professional Responsibilities the then chairman was noted to comment “If you want a job done, give it to Josann Reynolds”. This attitude permeates every aspect of my life and it will continue to do so given the opportunity to serve on the bench in Dane County. I also have the patience and personal skills to deal with litigants in high conflict situations. I am not a score keeper. I do not bear grudges. I cannot tell you how many cases I have tried and won. Most of them. But I can tell you each of the cases I tried to a jury and lost. What I remember from those cases is not who opposing counsel happened to be, but the lessons learned and how to improve and better serve my clients. I will treat all litigants and attorneys in my courtroom with the respect and impartiality they deserve. I have had the great pleasure of calling several trial judges close acquaintances and through those interactions I have gained considerable insight and respect for the role of the judiciary. I have given careful consideration to the fact that if appointed I may face an election in April of 2015. I have met with campaign organizers, former candidates, and current and former judges who have shared their insights and recommendations about the most effective approach to building a strong campaign organization. In addition, I have begun the outreach necessary to assemble a broad and diverse base of grass roots support. I am extremely well organized. My trial experience solidified the importance of being well prepared. I strive to walk into the courtroom with control over the examination of witnesses and the presentation of exhibits. My goal is to have nothing happen in front of the jury that I am ill prepared to handle. My organizational skills were imperative when provisioning our boat to be out to sea for 6-8 months at a time cruising in undeveloped countries. We never ran out of any necessity, or provision. I will run my courtroom with the same organization, preparation and sense of purpose.  Wall "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. Name: Joseph R. Wall Appointed to: Milwaukee County Circuit Court Appointment date: June 2, 2017 (Unopposed in April 2018 election) Education: Law School – Marquette University Undergrad – Marquette University High School – Brookfield East, Brookfield, WI Recent Employment: 2007 - present – Assistant U.S. attorney, Eastern District of Wisconsin 2001 - 2007 – Milwaukee County Circuit Court judge 1986 - 2001 – Assistant U.S. attorney, Eastern District of Wisconsin 1984 - 1986 – Assistant district attorney, Milwaukee County Memberships: Wisconsin Bar Seventh Circuit Bar Milwaukee Bar Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Criminal Prosecutor as Assistant District Attorney, Milwaukee County, May 1984 through November 1986; Assistant U.S. Attorney, Eastern District of Wisconsin, Criminal Division, November 1986 through July 2001 and November 2007 through present Number of cases tried to verdict or judgment: Jury, 75+; non-jury, 3-5; arbitration, 0; administrative bodies, 0. Number of cases litigated on appeal: More than 35. Three most significant cases in which you were involved: United States v. Abdullah Rafeia (1994) – In the U.S. Attorney’s Office, the Criminal Division prosecutors rotate and every week we have a different "Duty" AUSA. One week in mid-1994, I was the Duty AUSA. I received a call from our receptionist that a woman was up front who needed help. They brought her to my office and she told me that she had three children with a Qatar resident named Abdullah Rafeia. The two were estranged, but they shared custody of the boys. Rafeia had the boys for the summer. She said that when it was time to bring them back to Wisconsin, he called her, said that he was going to keep them in Qatar, and that “you will never see your sons again.” (That remains the most chilling sentence that I ever heard from a witness or victim.) I typed out an affidavit and a criminal complaint for three counts of International Parental Kidnapping in violation of 18 U.S.C. § 1204. We went to the Magistrate, she swore to the affidavit, and we issued a criminal complaint naming Rafeia. I called the State Department and fortunately found an attorney there who became as upset as I was. Through Interpol, she put out a “Red Notice” which some countries will recognize as an arrest warrant. In our favor was that Rafeia had to travel often due to his job. As I recall, he flew to a country that did not recognize our red notice, but did notify us that he was in their country. A couple days later he flew to Madrid, Spain, where law enforcement authorities arrested him on the Red Notice, put him in a jail cell, and so informed us that they had him. After much back and forth with the Spanish authorities, and the State Department attorney pulling some strings, the Spanish authorities let me speak to Rafeia. I told him that unless he returned the boys to their mother, he would stay in that Madrid jail and if he ever did bail out (or whatever), I would continue to have him arrested. He told me if I withdrew the Red Notice, he would return the boys as soon as he flew back to Qatar. At my request, the Spanish authorities released him. Rafeia kept his word and flew the boys back to Wisconsin where their mother picked them up. I withdrew the Red Notice and the arrest warrant. I never heard from the mother again. The second most significant case I prosecuted was that was charged against Alderman Michael McGee, Jr., (2007) … This was the case I was hired from the bench by the U.S. Attorney to take to trial. The case was a mess. The U.S. Attorney's Office had indicted McGee in May or June 2007, the investigation had ended, and the investigative reports and wiretap recordings were strewn across various bankers' boxes. So, after reviewing everything, and understanding the case as charged, I reinvestigated the case. Initially, there were eight victims, all of whom were named victims in the indictment. I found eight more, and the judge allowed all eight to testify as Rule 404(b) witnesses. Along with an officer with the Milwaukee Police Department (not the FBI), we went through all the wiretap conversations and the body-wire records made by an informant and picked out the best. This was the highest profile public corruption trial in Milwaukee's recent history. It was politically charged with citizens wearing “Free Michael” t-shirts and carrying “Free Michael” signs. Milwaukee newspapers were running editorials consistent with those sentiments. McGee, a crooked politician, was seen in many quarters as a liberal firebrand who was a rising star in Democratic circles and the spokesman of his generation and his race. I tried the case alone with only a paralegal at counsel table working the trial presentation software on the computer. (When I started playing the wiretap recordings, all of the “Free Michael” demonstrations stopped.) After eight or so days of trial in June 2008, the jury convicted McGee of all counts in the indictment. A colleague wrote the government's response brief to McGee's appeal and argued the case in front of the seventh circuit. The third most significant case I have prosecuted is the first of 13 sex traffickers (pimps) that I have convicted and sentenced since 2008 under the federal sex-trafficking statute, 18 U.S.C. § 1591. The case is also significant because it was the first use of the federal sex trafficking statute in Wisconsin. Additionally, it woke up the Milwaukee D.A's office, who had not prosecuted pimps previously, to the reality that it could be done. The defendant was Todd Carter … Carter was a long-time pimp who started specializing in minor females in 2007. After his house was targeted with a search warrant in 2008, his minor females scattered. We were able to locate them, separate them from Carter and his lies, gain their trust, and get them to tell the truth about their association with Carter. After that, we put them into the grand jury to testify about Carter's activities. I charged Carter in January 2009 with several counts of “Sex Trafficking of Children or by Force, Fraud, and Coercion.” He eventually pled guilty and was sentenced to 25 years prison. Carter did not appeal. By no means was Carter the worst pimp that I have prosecuted. But, he was the first. His conviction and sentence kicked opened the door and began the creation of what we now see as the “Human Trafficking Task Force” and a consortium of non-government entities working to assist trafficking victims regain their lives. Prior judicial experience: Milwaukee County Circuit Court, Branch 40, circuit court judge – 2001 - 2007 Number and nature of cases you have heard during your judicial or quasi-judicial tenure: More than 2,000, probably much more. I heard cases at Milwaukee County Children's Court and Milwaukee County Felony Drug Court. Some days at Children's Court I would hear 15 or so cases. Two most significant cases you have heard as a judicial officer: Termination of parental rights (TPR) case, In re Diane F. I heard the case while on the bench at Children's Court beginning on February 17, 2003, and lasting for four days. … This was a trial to the court. The State filed a TPR petition naming Diane's two youngest children. Diane's major problem was a cocaine addiction and it led to the neglect of her children -- the youngest of whom was born cocaine positive. In addition to her addiction to cocaine, Diane was unable to secure a residence to which her children could be safely returned. She had been laid off her job; then evicted from her residence; she had to go to the courthouse and obtain a restraining order on her former boyfriend; and she was fighting depression, for which she was taking medication. She testified that she used cocaine because of all the pressures in her life. At various times, Diane would abstain from cocaine -- once for 16 months, once for six months, and once for four months. Because of the pressure and stress of her upcoming TPR trial, Diane went back to using cocaine almost up to the trial date. I found grounds (reasons) for termination of her parental rights. The dispositional hearing was scheduled for March 19, 2003. I heard two more days of testimony from the two foster parents of Diane's children, among others. When I entered a dispositional order finding that termination was in the best interest of her children, Diane let out a howl of pain such that I had never heard before.* All contested TPR cases are sad, but this case has stayed with me for the last 15 years, so it was obviously significant to me. And to Diane F. *See Jeremiah 31:15 “A voice is heard in Ramah, mourning and great weeping, Rachel weeping for her children and refusing to be comforted, because they are no more.” State v. Manuel Perez, et al., (2008). There were approximately 30 defendants charged. …The trial began on August 29, 2005, and ended after ten trial days on September 12, 2005. The case was significant because it was the longest trial I presided over on the felony drug court bench, it involved wiretaps on 18 phones, and the amount of drugs associated with these defendants, and others, was more than 100 kilograms in total. The charges lodged against these defendants included Conspiracy to Distribute Cocaine, Distribution of Cocaine, and Racketeering. Of additional significance was that the leader of the conspiracy, Samy Caraballo, in five separate statements to Detective Jerry Stanaszak, named his brother-in-law, Manual Perez, as the source of all the cocaine. When Caraballo was called to the witness stand, he testified that Perez was never involved with cocaine. Detective Stanaszak had to impeach Caraballo with his prior inconsistent statements (unlike the Federal Rules of Evidence, those are substantive evidence under the Wisconsin evidence code). Additionally, the State introduced 137 exhibits and the defense four. Among other testimony, was that these and other defendants used a kilogram press to rerock cocaine (squeezing it into kilogram squares) and among other items seized by law enforcement pursuant to search warrants, was a 15 kilogram scale. One witness testified that he and others rerocked 15 kilograms of cocaine in one week. Additionally, it woke up the Milwaukee D.A's office, who had not prosecuted pimps previously, to the reality that it could be done. – Milwaukee County Circuit Judge Joseph R. Wall Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: Volunteer worker on two judicial campaigns – Kevin Martens and Audrey Skwierawski. Nothing formal. All runs for elective office: April 2, 2001, Milwaukee County Circuit Court Judge -- won the election, 60% Judicial or non-partisan candidates that you have publicly endorsed in the last six years: Christopher Dee (Gave $500 contribution) Michelle Havas (Her first run, gave $250 contribution) Nelson Phillips Scott Wales (Gave $100 contribution) Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application: 1. Member, Friends of the Benedict Center, 2017. 2. Member, Board of Directors, Benedict Center for Women, 2008-2016. 3. Member, Board of Directors, Coalition for Children, Youth, and Families, Inc. (formally Adoption Resources of Wisconsin), 2008-2017. 4. Member, Justinian Society of Lawyers, (currently and in various years). 5. Participating Attorney, Magistrate Judge Nancy Joseph's "Kids, Courts, & Citizenship Program," approximately 2011-2012. 6. Member, Governor's Advisory Council on Early Childhood Development, 2008-2011, Certificate of Appreciation, Governor Scott Walker. 7. Member, Thomas E. Fairchild Inn, Inns of Court, 2011-2017. 8. Judge, High School Mock Trial Tournament (2006, 2007, various years) 9. Member, National Italian American Bar Association (2004, 2006, various years) 10. Wisconsin Juvenile Court Jury Instruction Committee, 2002-2007. 11. Established Pro Bono Program at Children's Court that Gave Parents Named in TPR Petitions Legal Representation. 12. Seventh Circuit Criminal Jury Instruction Committee, 1998. 13. Site Coordinator, Youth Crime and Violence Task Force (Safe & Sound Initiative), 1999 to 2001. 14. Milwaukee Public Schools Reading Tutor, 1998-2000. 15. Volunteer Attorney (and Founder), St. Benedict the Moor Indigent Legal Clinic, 1983-1990 and 1999 -2001. Describe any significant pro bono legal work in the last five years: None recently... Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: None Pro bono work in last five years: None Quotes: Why I Want to Be a Judge - I was a circuit court judge for more than six years. I was a very good judge, engaged in my work, and respected and enjoyed by those who appeared in front of me. This is especially true of my four years at Children's Court. When I run into those attorneys now, I often hear them say, simply, “come back.” I know the job well and know that, if approached correctly, every day it is an opportunity to make a significant, positive contribution to our justice system. I felt that I did that previously, and know that I can do that again and be that again. Only better. Most of my professional career has been in public service and I want to continue that. So, when I look forward to the next 12 to 15 years, I believe that I can make the best contribution to the community on the Milwaukee Circuit Court bench. That's the analysis: it really comes down to where I can make the best contribution in the coming years. In 2007, after several overtures from U.S. Attorney Steven Biskupic, and much thought, I felt that I could make a bigger contribution to the community as a federal prosecutor, doing the type of cases that the U.S. Attorney felt I was uniquely qualified to do. And what he needed me to do. That was almost ten years ago. I have made my mark there once again. I have done what I was hired to do and much, much more. Among other things, as a federal prosecutor (in the Financial Crimes unit) I initiated the prosecution of sex traffickers (pimps) in Wisconsin and showed the various state prosecutors - most especially those in Milwaukee - that these master manipulators could be indicted, convicted, and sentenced to the long terms that their conduct called for. I seek to work with the attorneys and parties that everyday appear in our civil and criminal courts, and the people who find themselves under the jurisdiction of the juvenile court. I want to write decisions again. I want to preside over trials, where I think I was at my best, and I want the opportunity to again talk to the children and defendants who would appear in front of me. I want to make those connections again, and despite the circumstances, encourage those people that a better future awaits them if they just start making better decisions. Again, I did all these things in my six years on the bench, and I did them well. I want to do all of that again and do all of it well again, or almost certainly, even better. More simply, I just want to serve. And the circuit court bench is the position where I can best do that in the coming years. Judicial philosophy - As a prosecutor it is naturally conservative. Because of the discretion we have there is no need to stretch, manipulate, or reinterpret a statute or prior case rulings on the meaning of the statute or the meaning of an established point of law. This is a luxury, again, because of our discretion. So, as a prosecutor, I see some amazing motions, pretrial memos, and appellate briefs from opposing defense attorneys that bear little resemblance to the facts of the case or the relevant law. Again, I have the luxury of not having to do anything of the kind. While I was a circuit court judge, I had numerous opportunities to interpret and apply statutes - especially from my time in Children's Court beginning in 2001. … Because the Children's Code had been overhauled and rewritten five years earlier, many statutes in the juvenile code had not been interpreted and were not necessarily clear on their face. As a result, many nights and weekends I found myself at Marquette Law School sifting through their microfiche stacks that sometimes reflected the original drafting material of a statute or any comments from the legislators that would shed some light on their intent or purpose in drafting a particular statute. I often referenced those items in my written decisions. As to the unstated question as to whether I was or would be, an “activist” judge, or if I believe that the Constitution is a “living document,” or whether unwritten “penumbras” extend “the Fourteenth Amendment's Due Process Clause,” the answer is “no.” There is no need to stretch the Constitution or well-established case law. The pathway is already paved; why create a new one in uncharted dirt and mud? Best Wisconsin or US Supreme Court decision in the last 30 years – Crawford v. Johnson (2004) Among the very best, and most important, of the United State Supreme Court's recent decisions is Crawford v. Johnson … a right-to-confrontation decision that punched a medium-sized hole in every prosecutor's toolbox. Writing for the Court, Justice Scalia's sprawling, historical-based opinion and analysis is a delight to read. The facts leading to this decision are brief: at Petitioner's trial the state introduced an inculpatory recorded statement from Petitioner's wife who did not testify. In holding that the use of the wife's “testimonial” statement violated the Sixth Amendment's Confrontation Clause, the Crawford Court abrogated its 24-year-old decision in Ohio v. Roberts … (1980). The Sixth Amendment's Confrontation Clause provides in relevant part: “In all criminal prosecutions, the accused shall have the right ... to be confronted with the witnesses against him.” Initially, Justice Scalia found that this wording can have different meanings. 541 U.S. at 42-43. He then turned to the historical background of this Clause to determine what its drafters meant. He began by noting that “the right to confront one's accusers is a concept that dates back to Roman times.” … He then moved to the reign of Queen Mary in the 16th century, contrasting civil law, which allowed witness examinations to be read in court, with the common law “tradition of live testimony in court subject to adversarial testing.” Id. He called the civil law practice “notorious” and profiled Sir Walter Raleigh's 1603 treason trial. This was a death-penalty trial. There, crucial testimony from a witness was read to Raleigh's jury. Raleigh demanded that the judges bring that witness to court to testify “before my face,” and likened his trial to those of the "Spanish Inquisition." The judges refused, Raleigh was convicted, and then sentenced to death. … This civil law practice eventually caused some regret for Raleigh's judges. Justice Scalia then traced the turn to the common law practice through 17th and 18th century England up to 1791 (which J. Scalia notes was the year that we ratified the Sixth Amendment), when the common-law confrontation rule became widespread in England. Id. at 46-47. Justice Scalia, creating a clear path from 18th century American documents and proclamations, demonstrated that there could not be a different meaning: the right to confront your accusers in court means just that. Summary: Justice Scalia's historical analysis is not only compelling but dispositive. Despite his previous concerns about the wording of the Confrontation Clause, Justice Scalia came to an unimpeachable result at the end of his decision. See Crawford, 541 U.S. at 51-55 ("The text of the Sixth Amendment does not suggest any open-ended exceptions from the confrontation requirement ..."). This decision does raise at least one question: What took so long? As to the unstated question as to whether I was or would be, an “activist” judge, or if I believe that the Constitution is a “living document,” or whether unwritten “penumbras” extend “the Fourteenth Amendment's Due Process Clause,” the answer is “no.” – Wall Worst Wisconsin or US Supreme Court decision -- Termination of Parental Rights to Max G.W. (Jodie W.) (Wis. 2006)
This is a terrible decision for a number of reasons: 1) as precedent, it creates confusion among those who prosecute and defend TPR cases; 2) in order to reach a due process analysis, the court distorted the facts about Jodie's “no contest” plea on the grounds phase of her TPR; 3) its fact-finding process was outcome determinative; 4) stylistically, the court's footnotes dominate its analysis and decision and 5) this is another example in which “hard cases make bad law.” The facts are quite straight-forward. Jodie was the birth mother of Max, born on July 10, 2000. She was Max's sole caregiver for the first two years of his life. In July 2002, Jodie was incarcerated based on convictions for operating while intoxicated (fourth offense) and fleeing an officer. Jodie arranged for her mother to care for Max. However, shortly after Jodie's incarceration, her mother was unable to care for Max and called social services. They placed Max in a foster home on November 25, 2002. On April 22, 2004, while Jodie was in prison and facing two more years of incarceration, the state filed a TPR petition under Wis. Stat. 48.415(2) ("continuing CHIPS"). In re Max G.W., 293 Wis.2d at 537. On September 20, 2004, the day set for her jury trial, Jodie filled out a "no contest plea" questionnaire for the "grounds" phase of the proceeding.* Jodie was represented at the time, filled out the questionnaire, and modified some of the questions as they pertained to her position at the time. She modified the form to make it clear that she was pleading no contest to just the "grounds" phase, not the "best interest" phase. The circuit court found that she made this decision voluntary, knowingly, and intelligently. That court subsequently determined that termination of Jodie's parental right's was in Max's best interest. The court of appeals affirmed in a one-page decision. Id. at 540, 543. In a tortured, incomplete, and cherry-picked recitation of the facts, the majority found insufficient evidence to support a determination that Jodie's no contest plea was valid. That finding was crucial because a valid no contest plea waives a party's “right to challenge the constitutionality of a statute ...” Id.at 545. At that point the court invoked “substantive due process” and found that the statute as applied to Jodie was unconstitutional since she was in prison, and as such, it was impossible for her to complete the necessary conditions for the safe return of Max to her home. Id. at 554-63 The dissent, whose factual findings were more complete, determined that there was no question that Jodie's no contest plea to the grounds phase was knowingly, voluntarily, and intelligent made. Id. at 563-66. The dissent quite accurately stated that “now children of incarcerated parents will be serving a concurrent sentence in limbo.” Id. at 563. * Under Wisconsin TPR law there is a two-step process involved. The first step is a determination of whether "grounds" (reasons) have been proven. At this stage the parent's rights are paramount and the parent is entitled to a jury finding as to whether grounds have been proven. If proven, or stipulated to, the second step is a determination by the judge whether termination of the parents' rights is in the best interest of the child. Id. at 566-67.  Hagedorn "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. In his application's cover letter to Walker, Hagedorn wrote, "One of the great honors of my life has been serving as your top advisor on judicial appointments. Many hours have been spent seeking and promoting those that share your judicial values, those that will leave a legacy for years to come." Name: Brian K. Hagedorn Appointed to: District 2 Court of Appeals Appointment date: July 31, 2015. (Elected to a six-year term in 2015.) Education: Law School – Northwestern University Undergrad – Trinity College, Deerfield, IL High School – Wauwatosa West Legal experience: 2011 - present – Chief legal counsel, Office of Governor Scott Walker 2010 - 2011 – Assistant attorney general, Wisconsin Department of Justice 2009 - 2010 – Law clerk, Wisconsin Supreme Court 2006 - 2009 – Attorney, Foley & Lardner Memberships: Eastern District of Wisconsin Seventh Circuit Court of Appeals Wisconsin State Bar Federalist Society Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Worked as litigator, adjudicator, and in-house general counsel. My experience isn't complete without noting my time as a law clerk on the Wisconsin Supreme Court. While there, I assisted Justice Gableman and the Court in well over 100 cases dealing with insurance disputes, criminal procedure, administrative law, and significant constitutional cases, to name a few. Finally, in my current role, I serve as essentially the in-house general counsel for the Walker administration. Thus, though I have not been the attorney of record, I have played a significant role in overseeing quite possibly the most significant flurry of legislation-related litigation this state has ever seen. My role included overseeing the hiring and management of outside counsel, reviewing briefs, leading strategic discussions, participating in mock arguments, and sitting at the counsel table in federal and state courts. As such, I have been a key player in many cases in state and federal courts, from the trial level to the appellate level, including multiple cases before the Wisconsin Supreme Court and the Seventh Circuit Court of Appeals. Sample litigation includes nine separate cases challenging Act 10 in Wisconsin and federal courts (we won them all); four different cases challenging the Voter ID law in Wisconsin and federal courts (we won them all); a bankruptcy/Eleventh Amendment case in federal court (pending); a challenge to a law we signed reforming administrative rules (pending); and the recent constitutional challenge to the state's new right to work law (pending). In addition, I have played a key role in multistate cases Wisconsin has participated in as a party and as amicus in courts around the country, including many in the United States Supreme Court. I have been the Governor's counselor and the key strategic and legal contact in the Governor's Office for the Attorney General on our participation in these cases. Sample cases include multistate medicaid fraud, amicus work in U.S. Supreme Court criminal procedure cases, and significant constitutional cases like the challenges to the Affordable Care Act and the President's recent immigration orders. Number of cases tried to verdict or judgment: Jury, 0; non-jury, 10; arbitration, 1; administrative bodies, 0. Cases on appeal: Including my work as chief legal counsel in the Office of the Governor, I have been involved in some capacity in dozens of appellate cases, though my level of involvement has varied. It is worth noting as well that I participated in well over one hundred additional appeals as a law clerk at the Wisconsin Supreme Court. ... In my current position, as noted above, I am involved in most major litigation involving the State of Wisconsin. Notable cases include the following: Act 10 Litigation: I oversaw the hiring and management outside counsel, and in partnership with the Department of Justice, helped lead the State's defense in all 9 cases challenging Act 10. These cases led to two decision in the Seventh Circuit--WEAC v. Walker, 705 F.3d 640 (7th Cir. 2013) and Laborers Local 236 v. Walker, 749 F.3d 628 (7th Cir. 2014), and two decisions in the Wisconsin Supreme Court--State ex rel. Ozanne v. Fitzgerald, 798 N.W.2d 436 (Wis. 2011) and MTI v. Walker, 851 N.W.2d 337 (Wis. 2014). These cases covered issues in employment law, the Fourteenth Amendment, the First Amendment, and core structural questions related to the separation of powers. I was deeply involved in strategy, editing briefs, and argument preparation. Voter ID: I worked with the Department of Justice throughout two state court cases and two federal cases. The federal cases culminated in an opinion upholding the Voter ID law--Frank v. Walker, Lulac v. Deininger, 768 F.3d 744 (7th Cir. 2014). The same result was reached by the Wisconsin Supreme Court in the two state cases--League of Women Voters v. Walker, 851 N.W.2d 302 (Wis. 2014) and NAACP v. Walker, 851 N.W.2d 262 (Wis. 2014). Administrative Rules: I have worked very closely with the Department of Justice in crafting our legal arguments in defense of the Governor's power to approve administrative rules promulgated by the Superintendent of Public Instruction. ... Same-sex marriage: I worked with the Department of Justice to prepare the defense of Wisconsin marriage laws. The Seventh Circuit ultimately held that the Fourteenth Amendment to the United States Constitution prohibited Wisconsin from continuing to limit marriage to unions between one man and one woman. Baskin v. Bogan, Wolf v. Walker, 766 F.3d 648 (7th Cir. 2014). The Governor's appointment powers: I worked with the Department of Justice in defense of the Governor's appointment powers vis-à-vis federal bankruptcy law. The Seventh Circuit issued a partial decision in Chasensky v. Walker, 740 F.3d 1088 (7th Cir. 2014) holding that the Governor enjoyed qualified immunity from the plaintiff's privacy and equal protection claims. Significant multistate appeals I have worked on include our current challenge to the President's immigration laws (Texas v. United States, Fifth Circuit Case no. 15-40238) and the challenge to the Affordable Care Act (NFIB v. Sebelius, 132 S.Ct. 2566 (2012)). Indeed, it is fair to say I have been involved in most major multistate efforts around the country in some capacity, whether in cutting edge criminal law cases to ground-breaking cases dealing with core issues of federalism and religious freedom. Two most significant cases: State ex rel. Ozanne v. Fitzgerald (Wis. 2011) I began assisting in the drafting of Act 10 not long after the Governor was inaugurated. We knew litigation would come, and come it did. But we did not expect the first legal fight to be over whether the legislature has the power to carry out its legislative role without judicial interference. Contrary to popular understanding, State ex rel. Ozanne was not about open government or even the merits of Act 10. It was about core separation of powers principles. Namely, does the Wisconsin Constitution permit a circuit court judge to tell the legislature how to follow the legislature's internal rules, and can a circuit court judge prevent a duly enacted bill from becoming law (separate distinct from the power to enjoin an unconstitutional law)? The case in circuit court was fraught with procedural irregularities; we felt our only recourse was to have the state bring an original action against the circuit court judge and the district attorney. The Wisconsin Supreme Court ultimately took the case and agreed with us that the circuit court had violated the separation of powers. This case was important for several reasons. First, there have been few more consequential pieces of legislation in Wisconsin history. The public policy impact of this victory is hard to understate. Second, the separation of powers embodied in our Constitution is core to our freedom and to our republican form of government. The Wisconsin Constitution simply does not give the judiciary authority to act as it did. The Supreme Court recognized and remedied this, explaining that they granted the petition for original action "because one of the courts that we are charged with supervising has usurped the legislative power which the Wiconsin (sic) Constitution grants exclusively to the legislature." Id. at para. 7. Finally, this case is significant because the Court stepped into a complicated political situation to uphold the rule of law. Courts need to have the intellectual and moral courage to refrain, but also the intellectual and moral courage to step in--all of this in furtherance of their limited, but meaningful Constitutional role. MTI v. Walker (Wis. 2014) Following the procedural challenge to Act 10 in State ex. rel. Ozanne, a flurry of suits were filed challenging the substance. They followed two basic theories. One set of cases challenged the law on equal protection grounds, quibbling with legislative line drawing on general employees versus public safety employees, and arguing that prohibiting units of government from collecting union dues via payroll deduction violated the First Amendment. The Seventh Circuit Court of Appeals rejected these theories and upheld Act 10 in its entirety in WEAC v. Walker, 705 F.3d 640 (7th Cir. 2013). The second set of cases argued that the provisions of Act 10 collectively imposed a burdensome and unconstitutional condition upon membership in a union in violation of the unions' First Amendment speech and association rights. One case was decided in the federal courts, with both Judge Conley and the Seventh Circuit rejecting this theory (Laborers Local 236 v. Walker, 749 F.3d 628 (7th Cir. 2013)). A separate case brought in state court came to the same outcome (WLEA v. Walker, Case No. 12CV4474). The third case making the same claims, but this time finding some early success, was MTI v. Walker. The Dane County Circuit Court struck down several provisions of Act 10 under this unconstitutional conditions theory. The case also raised significant issues regarding the Wisconsin Constitution's home rule provisions. There were many wrinkles in the case procedurally as well. We fought vigorously over a stay of the lower court ruling, and had significant disagreements over the reach of the circuit court decision. We argued that the order was a declaration applicable only to the parties; the plaintiffs argued it was the legal equivalent of a Supreme Court decision. While the case had already been accepted by the Wisconsin Supreme Court, the circuit court entertained and granted a motion for contempt against the WERC Commissioners for enforcing Act 10 against non-parties. The Supreme Court ultimately used its superintending authority to vacate the contempt order. On the merits, the Supreme Court again upheld Act 10 in its entirety. The public confusion, procedural wrangling, and political import of every move in this case made it at once thrilling and dismaying. It was incredibly frustrating to have legal theories handily and correctly rejected in nearly identical cases nonetheless create incredible uncertainty and protracted litigation in this case for three years. But this case represents an even more incredible triumph. Act 10 was a significant and complex piece of legislation challenged at every level with nearly unlimited resources by those who were unable to defeat it at the ballot box. Every legal challenge failed in its entirety, as each should have under the law. At the end of the day, apart from the underlying policy merits, the rule of law won. Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: I was a member and later board member of the Kenosha County Republican Party from 2005-2009. In addition to various party-building activities, I assisted in various local races. In 2008, I was the county co-chair for the McCain campaign. Since taking on my role at the Governor's Office, I have, on my own time, given informal assistance and guidance to several judicial candidates. Judicial or non-partisan candidates publically endorsed in the last six years: I do not recall all of the candidates who I have endorsed, but they include Justice David Prosser and (now Chief) Justice Patience Roggensack. I likely also gave my endorsement to several judicial appointees I met through the appointment process, but I do not know which, if any, would have listed me as having given a public endorsement. Honors, prizes, awards received: In May 2014, I was named Trinity College alumnus of the year. I was honored at the graduation ceremony and gave brief remarks. I understand that I am the youngest award winner in the College's history. The award was given in recognition of "Outstanding Vocational Accomplishments, Community Leadership and Endeavors, and Meritorious Service and Commitment to Christ." Memberships in bar associations and professional societies: ... I have been a member of the Eastern District Bar Association from roughly 2006-2014. I have also been a member of the State Bar Bench-Bar Committee since 2013. In addition, I have long been a member of the Federalist Society, attending the national lawyers convention in Washington, D.C., attending local events, and helping to start the local lawyers chapter in Madison. I do not recall all of the candidates who I have endorsed, but they include Justice David Prosser and (now Chief) Justice Patience Roggensack. – District 2 Appeals Judge Brian K. Hagedorn Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: I have always been involved in my local church, often in a leadership role. At my current house of worship, The Vine Church in Madison, I have taught Sunday School, served on the cleaning team, led a small group, and served as a host pastor facilitating weekly worship. My church also serves regularly at the Elizabeth House, a residential maternity and parenting program for moms-to-be. I've engaged in similar service at my prior houses of worship. Describe any significant pro bono legal work in the last five years: No answer given to this question. Instead, in answer to the next question regarding legal teaching or lecturing, the applicant said, “For ease, I will combine the answers” to the two questions. Hagedorn listed speeches and lectures, including leading a Federalist Society panel discussion, “Act 10: A Postmortem,” in 2014. Other presentations included a speech on “Top Tips for Succeeding as Chief Counsel to a Governor” at a 2015 conference of top legal leaders at the state level. Quotes: Why I want to be a judge – Broadly conceived, I believe engagement in public life through the law is my vocational calling. Central to that for me is a devotion to the rule of law, our written Constitution, and the separation of powers. A significant portion my time in the Governor's Office has been devoted to precisely these values, through litigation, management of executive branch duties, and overseeing the judicial appointment process. Promoting judges who believe in the rule of law, and have the intellectual and moral courage to live out this commitment, has been a driving passion for me. Joining the ranks of these public servants, then, is a natural extention (sic) of this vocational calling. The appellate bench is an opportunity to serve people by upholding the rule of law. It is an opportunity to influence how law is done in our courts through excellent legal scholarship. It is an opportunity to do basic justice by ensuring, consistent with the law, that contracts are enforced, criminals are held accountable, and constitutional rights are respected. I am not pursuing this to achieve a title or career capstone. My commitment to promoting the public good through the judicial role is what drives me. After many conversations with colleagues and mentors, I believe this role is a proper fit not only to my calling, but to my gifts as well. I love reading and writing and thinking about the law. I have, I believe, the temperment (sic) and mindset of a jurist. And I look forward to the kind of collaborative and collegial decision-making performed by an appellate panel. In short, this position seems to accord with my vocational mission, my skill set, and my interests. Few are so fortunate to have this alignment in their career path. Best United States or Wisconsin Supreme Court opinion in the last thirty years – Coulee Catholic Schools v. LIRC (Wis. 2009) This case, which I had the privilege of working on while clerking at the Supreme Court, concerned whether Wisconsin non-discrimination laws could apply to the termination of a teacher at a Catholic school. The Court rightly determined that both the U.S. and Wisconsin Constitutions precluded an age discrimination claim, and it did so using a legal approach I would seek to emulate. First, the Court understood its proper role. It is not clear who would win a popular vote today in a conflict between a discrimination claim and religious freedom. But the Court's job was not to decide what was more valuable or important to society, or to balance the values. Rather, the Court's job was to determine whether the federal or state constitutions protected the religious school's power to decide how to govern itself. ... A second notable and noble virtue of this opinion is its root in the text, particularly in its analysis of the Wisconsin Constitution. The Court states, "The authoritative, and usually final, indicator of the meaning of a provision is the text--the actual words used." … And rather than just subsuming the Wisconsin Constitution into the First Amendment, the Court lets the different and broader language speak for itself, and more firmly root its holding. ... Worst United States or Wisconsin Supreme Court opinion in the last thirty years – Lee v. Weisman (1992) In 1989, a principle at a middle school in Providence, Rhode Island invited a Jewish rabbi to lead a voluntary prayer at the voluntary graduation ceremony. The parents of one student objected, arguing that the First Amendment prohibited such an invitation. The United States Supreme Court agreed. As a policy matter, it is not clear to me that government-led prayers in public school are an altogether good thing. My disagreement with this case rests upon its weak jurisprudential foundations. First, legal analysis of a constitutional provision should begin with the original public meaning of the clause itself. This case does none of that. The Establishment Clause was, at least in large part, a federalism provision leaving regulation of religion to the states. But even accepting that it has some enduring application against state and local action, it can't be read to proscribe activity the authors of the First and/or Fourteenth Amendments would have understood to be very much in compliance with the First Amendment, as Justice Scalia's dissenting opinion ably points out. Constitutions should be read consistent with the original public meaning of its terms. – Hagedorn Second, this case, and Establishment Clause jurisprudence generally, looks very little like law. Much of it has the symptoms of a Court discussing desireable social policy or the proper place of religion in public life, and then crafting a legal rule that makes sense in light of that policy. This is not how judges should make law; that is the legislature's job absent violation of a clear constitutional imperative. ...
Thus, the opinion may or may not reach a desireable (sic) social policy outcome. But it is not the kind of legal reasoning, either in quality or in first principles, that should mark the judicial craft. Courts are at the nadir of legitimacy when their decisions set social policy for the people without grounding it in the constitutional text the people themselves have adopted. Judicial philosophy – A judicial philosophy must begin with a sober sense of the judiciary's role in our constitutional system. The framers of our federal and state constitutions created a tri-partite system of government; the legislative branch (generally with the consent of the head of the executive branch) makes the laws, the executive branch executes the laws duly enacted, and the judiciary declares--when cases come before it--what the law is as applied to the facts of that case. This means that, excepting certain discretionary determinations like sentencing, personal political values should not have a place in the judicial task. Faced with litigation laden with political and policy implications, the judge must simply say what the law says. This is easy to say, but hard to do. In practice, every judge will face the temptation to allow his or her own biases--we all have them--to color a judicial determination. Resisting this temptation requires both moral and intellectual courage, as well as a healthy dose of humility and self-awareness. This does not mean, of course, that judges are impotent and must always defer to the legislature. Indeed, the people are sovereign, and the people have adopted a written Constitution that is supreme over the statutory enactments of legislatures. A court striking down a statute as unconstitutional is inherent in the power to say what the law is. A court must declare statutes conflicting with the higher law adopted by the people in a constitution invalid; to not do so is abdication of the judicial role. The danger, of course, is that some see the constitution as primarily about "fairness" or "justice" and use it to overrule the supposedly inferior policy choices of the people. Again, the judicial branch may say what the law is when properly presented with a case, but it must resist the temptation to assume the power of judicial review with respect to legislation it simply finds personally offensive. Finally, a judge's power to declare what the law is must be rooted in the proper interpretive tools. Statutes should be read to say what they actually say. Constitutions should be read consistent with the original public meaning of its terms. Interpretation begins, and usually ends, with a proper analysis of text, context, and structure. Lower courts should adhere to precedent. And judicially created analytical frameworks should be tethered to the text and provide clear notice and application to those it regulates.  Wright "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. There are just not that many judicial applicants who point out in their application cover letters that they donated to the governor from whom they are seeking appointment. Brian Wright is one of the rare ones. Here is the Wisconsin Democracy Campaign's report on the donations. The $1,000 donation to Walker referenced in the report was made exactly one week after Wright wrote his application letter. Name: Brian H. Wright Appointed to: Eau Claire County Circuit Court Appointment date: July 27, 2015 (lost bid for full term in April 2016) Education: Law School – Marquette Law School Master's Degree – University of Denver Undergrad – LaGrange College High School – None listed on application Legal employment: 2013 - present – Attorney, Herrick & Hart, Eau Claire, WI 2013 - Attorney, Steiner &Wright, Eau Claire, WI March 2012 – January 2013 – District attorney, Eau Claire County (appointed by Governor Walker; lost in November 2012 election) 2000-2012 – Partner, Steiner & Wright Memberships: Wisconsin State Bar Colorado State Bar Minnesota State Bar U.S. District Court, Eastern District of Wisconsin Eau Claire County Bar Association Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Besides work as Eau Claire district attorney, prosecuted traffic and ordinance cases for the Village of Lake Hallie since 2000, and the Village of Cadott since about 2008; resumed both functions after DA job ended. Prior to DA appointment, represented criminal defendants privately and by county and public defender appointments. After DA job, represented criminal defendants in a handful of county-appointed cases and privately represented two high school students in a juvenile matter. Focus on civil work with Herrick & Hart, S.C., and has represented clients in administrative proceedings in the areas of employment discrimination, wage-and-hour disputes, grievance arbitration, worker’s compensation, and unemployment issues. Number of cases tried to verdict or judgment: Jury, 30; non-jury, 100; arbitration, 6; administrative bodies, 6. Cases on appeal: No answer on application. List and describe the two most significant cases in which you were involved: The first case involved my representation of a teacher in Racine, WI who the school district terminated alleging a pattern of misconduct in her teaching and communication with students. The teacher had high standards and pushed students to reach their full potential, but, in doing so, was periodically at odds with the administration. The hearing was before an arbitrator and lasted ten days. The arbitrator decided in the teacher’s favor. The second case involved my representation of a registered nurse … A couple of months into her employment, nurses discovered what they believed was missing oxycontin. The State charged the registered nurse I represented with obstructing a police officer because when the police officer interviewed her, she initially told the police officer that another nurse watched her destroy the oxycontin … In the same interview, the registered nurse I represented voluntarily told the police officer that she has not been truthful when she said the other nurse was present because she was concerned about losing her job if her employer found out she hadn’t followed procedure by having a second nurse present. … The jury agreed with my argument that the registered nurse had not obstructed the officer because she voluntarily corrected her earlier statement to the police officer during the same interview. Have you ever held judicial or quasi-judicial office? Summer 2011 – Acting Family Court Commissioner Approx. 2007 - present – Reserve Court Commissioner Number and nature of judicial or quasi-judicial cases: 100. Two most significant cases: In the first case, I presided as acting court commissioner over a small claims contested case … the plaintiff acknowledged the backdated signature. … In the second case, I was presiding over a different small claims action as reserve court commissioner when one of the witnesses … began to express racial opinions about one of the parties. I took the appropriate action of instructing this individual to discontinue his remarks. … We finished the hearing without further incident. The minority party expressed her appreciation for my unwillingness to allow the racial remarks to continue. Please list all instances in which you ran for elective office. For each instance, list the date of the election (include both primary and general election), the office that you sought, and the outcome of the election. Include your percentage of the vote. Eau Claire County District Attorney, Nov. 2012 (47%). Involvement in judicial, non-partisan or partisan political campaigns: My wife, Haley, and I worked the telephone banks at the Eau Claire County republican headquarters for Governor Walker during the recall election. Since our daughter Corelia’s birth we haven’t been as actively involved devoting most of our time to her. I served as a legal volunteer for the republican party for voting irregularities in the November 2014 election. As I did when I served as district attorney, I would like to play a greater and more prominent role in setting an example as to the correctness of conservative values and principles. - Former Eau Claire County Circuit Judge Brian H. Wright Please list all judicial or non-partisan candidates that you have publically endorsed in the last six years: Scott Walker; Warren Petryk; Kathy Bernier; Terry Moulton; J.B. Van Hollen; Julian Bradley. Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application: Pro bono representation of local veteran’s chapter; parishioner, Saint Raymond’s Church. Describe any pro bono legal work in the last five years: Free Legal Clinic. Why I want to be a judge – I have a deep respect and reverence for our judicial system. I have upheld the highest standards of our profession in my work as a practicing attorney as a district attorney. I would like to play a greater role in upholding the rule of law and impart on those who appear in my courtroom, should Governor Walker appoint me, the conservative beliefs and values that I was taught and are the reason I was able to pay my way through college, become the first person in my family to graduate from college and to then go on and earn my M.B.A. and J.D. degrees. … I have a genuine interest in the pursuit of justice from a perspective that my own unique experiences afford me. As I did when I served as district attorney, I would like to play a greater and more prominent role in setting an example as to the correctness of conservative values and principles. Best Wisconsin or U.S. Supreme Court decision in the last 30 years – Citizens United v. Federal Election Commission (2010) I have always felt the more public discourse on political issues the better. As citizens, we are fully capable of filtering out information that is unhelpful or misrepresents the qualifications of a candidate or issue. Structurally, I have always found it interesting how critics of Citizens United have no problem with the influence of unions and special advocacy groups on elections. There will always be individuals and organizations with a louder bull horn. The importance of Citizens United is that it expanded political discourse and left it to us as in individual citizens to make our own decision which is what our founding fathers envisioned. Worst Wisconsin or U.S. Supreme Court decision in the last 30 years – Virginia Wolf et al. v. Scott Walker et al. I am going to take some liberty on this question and name a 7th Circuit Court of Appeals decision that is currently under review by the United States Supreme Court … I have named this case because, in the last 30 years, I don’t believe any issue has been more wrongly decided. At the outset, let me say that, despite my religious beliefs opposing same-sex relationships, I believe the government does have a role to play in prohibiting state-sponsored discrimination against gays or lesbians. However, I believe the Seventh Circuit went to (sic) far when it invalidated the will of the people in the State of Wisconsin to define marriage as a union between a man and a woman. I believe this is a case of judicial activism in which the court turned to other constitutional provisions in defining marriage as a constitutional right. It is not. Marriage is a privilege not a right. I am paraphrasing, but in an early supreme court decision, the court said the following: The constitutional rights of another end where my nose begins. In the case of redefining marriage to include same sex unions, I believe the Seventh Circuit should have made it clear that the decision of two men or two women to enter into a civil union is for those individuals to make with no interference from the government. However, the court’s decision has now taken the lifestyle choices of a minority of citizens and gone beyond the point where my nose begins and the noses of a majority of citizens in the State of Wisconsin begins. In other words, the court has forced upon the majority of Wisconsin citizens who voted in favor of the referendum … a change in one of the most important societal structures and institutions that we and our ancestors grew up with. This is not a function of courts. Nor is this remotely comparable to the court’s decision in Brown v. Board of Education which I fully believe was correctly decided. The reason this is such a bad decision is that it weakens the structure and limitations of the constitution. This was a decision for the will of the people not a federal court. Judicial philosophy – It is to apply the law fairly and impartially. In any decision, I would begin by looking at stare decisis (sic) to determine if there is precedence for deciding the case. However, in every jury trial I have ever had, there are numerous points in the trial when a judge must exercise discretion in making a decision. When it comes to the exercise of discretion, my philosophy is that a judge can’t lose his or her common sense. This is where my breadth of experience will be valuable. I now realize after watching some of the decisions in the district attorney’s office that Governor Walker did select the right person when he appointed me. … I believe we have over-systemized the criminal cases in Eau Claire County by relying on COMPASS evaluations and other components of evidenced based decision making to make charging decisions and sentencing recommendations. (Applicant describes a case involving a defendant who fatally shot his wife, with an early recommendation for no confinement and then a recommendation for three years initial confinement.) This is simply inexcusable. ... Fortunately, this case was assigned to Judge (Kristina) Bourget to ten years initial confinement stating that any lesser sentence would unduly depreciate the seriousness of the offense. In my appearances before Judge Bourget, I believe my judicial philosophy is closely akin to hers.
Any other information you feel would be helpful to your application: My wife, Haley and I, strongly support Governor Walker. I have voted for him in each of the elections he has run because of the good he is going for the State of Wisconsin. In the election for district attorney, I learned just how partisan things have gotten. … when I lost the election, it was a kick in the gut to realize that the quality of my work in the district attorney’s office took a back seat to politics. … These experiences have hardened me, not in a mean or vindictive way, but in a way that I realize the important of fighting for the values I believe in. … My work at Herrick & Hart over the past one and one-half years has allowed me to regain my confidence. I now realize after watching some of the decisions in the district attorney’s office that Governor Walker did select the right person when he appointed me. …  "Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. Name: R. Michael Waterman Appointed to: St. Croix County Circuit Court Appointment date: April 10, 2015 (elected to a 6-year term in April 2016) Education: Law School – Hamline University Undergrad – Muhlenberg College High School – Eden Prairie High School Legal employment: 1995 - present – Attorney, Mudge, Porter Lundeen and Seguin, S.C., Hudson, WI 1990 - 1997 – Adjunct professor, Milliam Mitchell College of Law, St. Paul, MN Memberships: Office of Lawyer Regulation, District 8 Investigation Committee State Bar of Wisconsin St. Croix Valley Bar Association Minnesota State Bar Association Wisconsin Defense Counsel Defense Research Institute U.S. District Court, Western District of Wisconsin U.S. District Court, Eastern District of Wisconsin U.S. Court of Appeals, Seventh Circuit U.S. District Court, District of Minnesota Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: General practitioner with emphasis on civil litigation, mostly insurance defense, and appeals. Also handles cases involving real estate disputes, business transactions and contracts. Handled other types of cases, including criminal cases, earlier in his career. Number of cases tried to verdict or judgment: Jury, 15; non-jury, 90; arbitration, 10; administrative bodies, 20. Cases on appeal: 74 cases fully litigated, meaning they were briefed and an opinion was issued. This number does not include cases that ended through a no merit report, dismissal for lack of jurisdiction, or voluntary dismissal because of a settlement. List and describe the two most significant cases in which you were involved: Linden v. Cascade Stone Co. (2005 WI) I represented West Bend Mutual Insurance Company from the trial court through Supreme Court. West Bend Mutual and several others were sued by the Lindens, who alleged their new home was poorly constructed. The case confronted a recurring situation where plaintiffs would disregard contractual remedies and sue contractors in tort. The Supreme Court affirmed the trial court 's ruling that the economic loss doctrine barred the Lindens ' tort claims. Linden is significant because it had a visible and immediate impact on construction litigation, and it is frequently cited and relied upon by courts and practitioners. Linden prevents plaintiffs in construction disputes from suing in tort and making an end run around contractually bargained for performance standards and remedies. This gives strength and meaning to contracts where the risk of loss and associated costs can be bargained for and allocated between the parties. As a matter of public policy this is far preferable than forcing the public to subsidize a system in which plaintiffs make tort recovery despite choosing to forgo contract warranties in exchange for a lower price. Marian C. Hawkins and Helen Berry Lloyd v. Brian E Bath, (Bankr. W .D. Wis. No. 06-223). I represented Marian Hawkins and Helen Lloyd, two sisters who were fraud victims of Brian Bath. Mrs. Hawkins and Lloyd were in their 80s when they opened accounts with Mr. Bath's financial services company. Both women entrusted Mr. Bath with their entire life savings and believed their money was invested in savings bonds and T-bills. Mr. Bath betrayed them by embezzling their money and eventually losing it in a high-risk real estate venture in Florida. The case is significant for several reasons. Litigation was started when Mr. Bath filed for bankruptcy. The litigation uncovered a massive fraud, involving numerous victims besides my clients. The evidence obtained in discovery was handed over to state and federal authorities. State regulatory authorities revoked Mr. Bath 's licenses to sell insurance and financial services, and injunctions were issued to prevent him from obtaining licenses in other states. Federal law enforcement started an investigation. I secured a sizeable judgment against Mr. Bath, but it was over shadowed by the deaths of Mrs. Lloyd and Mrs. Hawkins, who lived their final days in despair and were never fully made whole. Involvement in judicial, non-partisan or partisan political campaigns: Katie Thurmes (D), St. Croix County Clerk of Court (2014). The candidate was my former legal assistant. I wrote letters to the editor, made phone calls to supporters, and donated money. John Trojack (R), Minnesota House of Representatives (1996). Republican Party of Minnesota, precinct delegate (1988, 1996). Please list all judicial or non-partisan candidates that you have publically endorsed in the last six years: Hon. Eric J. Lundell (2014) - St. Croix County Circuit Court Hon. Howard Cameron (20 14) - St. Croix County Circuit Court Hon. Scott R. Needham (2012) - St. Croix County Circuit Court Hon. Gregory A. Peterson (2005 & 2011) - Wisconsin Court of Appeals Describe any additional involvement in professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of your application: Hamline University Mock Trial Program, volunteer judge Hudson Lions Club, President of the Sunrise Branch State Bar of Wisconsin Mock Trial Program, volunteer judge St. Croix County Circuit Court, volunteer mediator for small claims cases St. Croix Valley Youth Court, youth mentor St. Croix Valley Bar Association, free legal clinic volunteer attorney Western Wisconsin Photography Club Wild River Triathlon Club YMCA of St. Croix Valley, board member Youth baseball, soccer and basketball coach Describe any pro bono legal work in the last five years: Volunteer at the Free Legal Clinic of the St. Croix Valley Bar Association. Volunteer mediator for the St. Croix County Circuit Court. Member of the State Bar of Wisconsin Modest Means Pane, accepting cases on a pro bono or discounted-fee basis. Member of the State Public Defender Assigned Counsel roster for appeals and other post-conviction relief. Annually donate more than 50 hours of pro bono work to local non-profits, civic organizations, youth sports clubs and low-income persons. Why I want to be a judge – Two words: public service. From an early age, I was taught to do well in school, work hard at a meaningful job, and if ever the opportunity presented itself, contribute through public service. Public service is one of the highest callings. Everyone derives benefits from those who serve. Consequently, everyone should contribute back to society by serving at their highest and best capacity. I have enjoyed the fruits of our great nation and state. They have allowed me to fulfill my educational and vocational goals. I have given back as a volunteer in a variety of functions, but I can have a greater impact as a judge. If I am fortunate to be appointed judge, I will serve the community at my highest and best capacity, utilizing my education, nearly 20 years of legal experience and a lifetime of sensibility and good judgment. I submit this application for judge with no agenda, except a commitment to the rule of law and a desire to serve the public. Best Wisconsin or U.S. Supreme Court decision in the last 30 years – State ex rei. Ozanne v. Fitzgerald (2011) The Supreme Court's decision in Ozanne is noteworthy for many reasons, but I will address the most salient. First, the Court had the courage and fortitude to end the extraordinary efforts to thwart the legislative process and enactment of Act 10. Despite lacking majorities in the Assembly and Senate, opponents of Act 10 resorted to ultra vire methods to derail the Act. The Court repudiated those tactics and cleared the way for duly enacted legislation to become law. In a lot of respects, I see Ozanne in the same scope as Bush v. Gore. Both cases put an end to the perpetual and divisive use of the courts to undermine the will of the majority and the rule of law. The second reason why Ozanne is significant is because it respects the separation of powers and was an exercise of judicial restraint. The trial court invaded the province of the legislative branch by passing judgment over the internal operations of the legislature. It then invaded the executive branch by enjoining the implementation of a law that was signed by the Governor. The Supreme Court correctly recognized this unlawful incursion and swiftly rectified it, despite strong opposition from within and outside the Court. Lastly, Ozanne is significant because it reaffirmed the rule of law. The trial court was indifferent to Supreme Court precedent that prohibited courts from interfering in the legislative process. The Court's decision (and Justice Prosser's concurrence, in particular) renounced such disregard for the law. The Supreme Court got it right. Worst Wisconsin or U.S. Supreme Court decision in the last 30 years – In the Interest of Jerrell C.J., (2005) One of the worst Wisconsin Supreme Court decisions in the past 30 years is In the Interest of Jerrell C.J. ... because the majority legislated from the bench and invaded the province of the legislative and executive branches. Statewide policy was created by four justices, who were guided by little more than court briefs and a belief that they were acting for the common good. The Jerrell case involved a 14-year-old whom police apprehended as a robbery suspect. The police questioned the boy for 5 1/2 hours without counsel or his parents. He eventually confessed to his involvement in the robbery. A unanimous court suppressed the boy 's confession because it was involuntary and coerced. If the Court stopped there, Jerrell would be unremarkable. When judges depart from text, the law becomes contrived, arbitrary and unreliable, all of which are unacceptable. -- St. Croix County Circuit Judge R. Michael Waterman Under the guise of "superintending authority," four members of the Court pronounced new law. The majority required all future custodial interrogations of juveniles to be electronically recorded where feasible and without exception when questioning occurs at a place of detention. Interrogations that do not conform would be inadmissible.
The majority usurped the role of the legislative and executive branches of government by creating law. Although many police departments recorded interviews, legislation did not require it. This was a point of frustration for the majority. However, instead of staying within the confines of Constitutional responsibilities or calling for legislative action, the Jerrell majority took the matter into their own hands, bypassing the legislative process and creating law. The majority then invaded the province of executive authority by prescribing a particular law enforcement practice. The attorney general, police chiefs and other executives are responsible for determining police practices, not the courts. Some may not see Jerrell as troublesome because the legislature eventually enacted section 938.195, which codified the policy created in Jerrell. Some may say, "no harm, no foul." I categorically reject that notion. The federal and state Constitutions separate powers in three branches of government as a check and balance of power. For it to succeed, the rule of law must be respected and followed, and that means exercising restraint. Regrettably, the Jerrell majority saw "superintending authority" as limitless and included the ability to make policy. I am concerned that Jerrell will be a blueprint for future incursions into the legislative and executive functions of government. Judicial philosophy – During his confirmation bearing, John Roberts compared a judge to a baseball umpire. He said a judge’s job is "to call balls and strikes and not to pitch or bat." No one goes to a ball game to see the umpire; the same is true of a judge. I wholeheartedly endorse Justice Roberts' view of the role of a judge. A judge must function within the Constitutional grant of authority, not outside it. That means a judge needs to be faithful to the Constitution, to legislative text and to judicial precedent. A judge cannot deviate from the law because he or she thinks the law is unwise or finds the outcome undesirable. This judicial philosophy necessarily involves the utmost respect for text. The intent of the legislature is determined by the plain language of the statutory text. The same goes for the Constitution. When judges depart from text, the law becomes contrived, arbitrary and unreliable, all of which are unacceptable. In order for the public to conform to the law and have respect for it, the law that's written must be the law that's applied. Any other information you feel would be helpful to your application: I have submitted this application with the highest respect for the office of circuit court judge and complete understanding of the responsibilities the office entails. During this application process, I have been truly humbled by the encouragement I received from judges, attorneys, clients and friends. Their faith in me is uplifting. For me, the office of judge is not about gaining power or prestige. A judge is a public servant and must earn the respect of the people he or she serves. The office of judge is not a capstone to a career or a bridge to retirement. A judge must work hard to stay abreast of the law and administer it decisively and without unreasonable delay. At 44 years old, I am in my prime working years, and I have the energy and desire to fulfill the responsibilities of the job. I am also at a point in life where I do not have any outside distractions. I have no dependent children. My wife and I are happily married. We are both in good health, and we are financially secure. If I am appointed, I will be able to devote my complete attention to the job. I also submit my application with the highest respect for the role a judge plays in the tripartite system of government. I pledge to be faithful to the Constitution, uphold the rule of law, and protect the integrity of the courts. |
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