Legal Action of Wisconsin and Milwaukee Municipal Court spar over recording obligations

The entrance to Milwaukee County Circuit Judge David Borowski's courtroom on Oct. 16, 2024. Photograph by Alexandria Staubach.

By Alexandria Staubach

Milwaukee’s municipal judges are under legal fire for their alleged failure to record poverty hearings. 

At a summary judgment hearing this morning, attorneys for Legal Action of Wisconsin and the City of Milwaukee argued over whether Milwaukee Municipal Court judges are violating a legal obligation to record hearings concerning defendants' poverty.

People who meet certain poverty standards by law are not to be sanctioned with confinement to jail or driver's license suspension for nonpayment of municipal tickets. A statute requires that a "hearing regarding whether the defendant is unable to pay the judgment because of poverty . . . in a municipal court shall be recorded by electronic means for purposes of appeal."

​Legal Action contended at the hearing that the municipal court has the obligation to record poverty hearings, which its judges routinely fail to meet.

The city said Legal Action exaggerates the obligation to record, making a mountain out of a molehill, in its words.

Milwaukee County Circuit Court Judge David Borowski took the motion under advisement, meaning he will decide it at a later date. He said he plans to issue a written opinion by the end of the year.

Legal Action filed the case on behalf of Lucinda Armour, who has unpaid fines in Milwaukee Municipal Court. According to the complaint, if Armour cannot pay those fines, she will be subject to sanctions, including possible arrest and suspension of her driver’s license.

Armour's hearings before the municipal court were not recorded, and she was not found to meet poverty standards. She asks for a new determination of her ability to pay her fines and says she cannot effectively appeal the municipal court’s decision without a record of its proceedings in her case.

Deputy City Attorney Naomi Sanders Gehling argued that Armour suffered no real harm because cases that are appealed in which no recording exists will result in a dismissal or remand for a new hearing. “The ultimate sanction is on the city when we fail to record,” said Sanders. If there’s no record, “you don’t have to worry about it,” she said.

According to Legal Action attorney Susan Lund, the failure to record is an irreparable harm under Wisconsin law, a bell that cannot be unrung. Lund argued that “to say remand is an adequate remedy is inaccurate.”

Individuals should not be made to start their cases over because the court does not want to record a hearing, Lund argued. It is a significant inconvenience for the average person, based on Legal Action's experience with impoverished clients.

Legal Action is also seeking a writ of supervision, which would put the municipal court under the watch of the circuit court (where recording is the rule).

“It seems to me the city’s argument is ‘we’re not doing it because we don’t want to do it,’” Borowski said. “Why not just do it instead of litigating or arguing statutory compliance?” he asked. 

According to the complaint and today's court arguments, since February 2020 the municipal court failed to record hearings in at least 23 similar cases in which inability to pay was at issue.

Sanders said failures to record are simultaneously in error and overblown. “I think what is shown is that the court is full of people who are people and that there is no intention to violate the law,” Sanders said. The city took the position that there is "no inherent value to the recording.”

According to documents referenced at the hearing, the municipal court records an average of just five cases per year in which indigency is at issue, but there are more than 30,000 cases with outstanding warrants. Borowski noted concern with those numbers.

“If I were to get a citation and somehow I forgot to pay it, I pay it and am done with it,” said Borowski. He asked the city attorneys, “if you can’t pay the citation upfront and you’re looking at these consequences, then wouldn’t you record the hearing?”

Lund argued that given the number of outstanding warrants, there are likely hundreds or thousands of cases in which hearings are not being recorded.

Sanders took issue with that point, saying “there is a difference between not wanting to pay something and being indigent.”