By Gretchen Schuldt
Milwaukee Municipal Court judges are routinely violating state law in a way that "undermines" a defendant's right to appeal some cases to Milwaukee County Circuit Court, Legal Action of Wisconsin said in a new lawsuit.
The suit, technically a petition for a supervisory writ, asks Circuit Judge Pedro Colon to command Municipal Court and its judges to electronically record, as required by law, every hearing held to determine inability to pay a judgment due to poverty and every hearing on reopening a case.
The suit names as defendants Milwaukee Municipal Court, its chief administrator, Sheldyn Himle, and Judges Phillip Chavez, Valarie Hill, and Molly Gena.
Gena, who assumed office in May, is the former managing attorney of Legal Action. Himle declined to comment.
The petition was filed on behalf of a Municipal Court litigant who was unable to appeal a case because her hearings were not recorded, according to the suit.
The woman appeared at a Municipal Court hearing via Zoom in September 2020, according to the suit.
At that hearing, the Municipal Court judge ordered the woman, a single mother who receives Social Security disability benefits, to satisfy her outstanding debt by an installment payment plan, Legal Action attorney Susan Lund wrote.
"The court must have discussed (the woman's) income and ability to pay before determining that a payment arrangement was necessary or setting the amount of her installment payments," she wrote. "The only record of this hearing, the docket, provides no information about those discussions. The record does show that if (the woman) did not pay, the court would automatically issue a warrant, a routine practice of several Milwaukee Municipal Court judges."
The woman appeared at another hearing in February 2021, after a warrant was issued.
"The docket reflects, 'Def told how to resolve this cs and DL susp 30% of cs 20015220 and 20015221,' " Lund wrote.
"There is no further explanation of what this phrase means, much less any information about whether the judge considered all necessary factors and issues," she said. "It seems clear that there was some discussion of (the woman's) ability to pay, but there is no explanation in the docket for why the judge failed to lift the warrant when (the woman) was a recipient of means-tested public assistance."
Under state law, recipients of such public assistance automatically are presumed unable to pay, and a judge must suspend or extend payment or consider community service as an alternative.
The woman appeared in another case that same day. The docket for that one states, “ 'Def given information of 30% being $82 to terminated DL suspension,' " according to the suit.
"Once again, the Court failed to record the hearing, though money and ability to pay must have been discussed," Lund wrote. "Once again, the docket provides no information about what law or facts the judge considered during the hearing or why the judge decided not to lift (the woman's) driver’s license suspension."
The woman owes a total of $428 in three cases, the petition says. In two cases, Municipal Court listed, as an alternative to payment, "Commitment – Consecutive for 4 days," a reference to incarceration for four days. In the other case, the Court listed as an alternative a one-year suspension of the woman's driver's license.
The woman "has been notified by standard computer-generated notices that failure to pay by the due date will result in automatic enforcement of the sanctions for nonpayment," Lund wrote.
(Lund said in a footnote that the woman would like to reopen two tickets, including one with an outstanding forfeiture, in the interest of justice because Municipal Court suspended her license in error. The mistake led to two separate convictions of operating after suspension, resulting in $460 in forfeitures and reinstatement fees.)
The lack of recordings make appeals to Circuit Court extremely difficult, Lund said.
"In a municipal court record review, a circuit court is limited in their review of the record to determining whether the evidence supports the municipal court decision," she wrote. "The circuit court also has the right to review the municipal court’s interpretations of a statute or any other conclusions of law de novo. ... Neither of those things will generally be possible without a transcript, as oral requests and oral decisions are common and indigent defendants have no right to counsel."
Milwaukee Municipal Court's failure to record as required by law is not limited to the woman's cases, the petition says.
"Milwaukee Municipal Court has likely failed to record hundreds of hearings over the last three years," Lund wrote.
When the court fails to properly record a hearing, the court "makes a decision that is both irrevocable and unappealable. ... Once the unrecorded proceeding is over, it can never be recorded."
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