Meet the candidates for Oneida County Circuit Court judge

Oneida County voters will see on their ballots next week a primary election for a seat on the circuit court. Gov. Tony Evers appointed Mary Roth Burns to the position in August 2022, and she's running for reelection. Two candidates, Michael Fugle and Michael Schiek, are challenging her. ​

The primary is coming up on Tuesday, February 21. (There's a statewide primary for an open seat on the Wisconsin Supreme Court, too. You can learn about the Supreme Court primary candidates here.)

Wisconsin Justice Initiative asked each of the Oneida County Circuit Court candidates to answer a series of questions. Candidates Burns and Fugle responded, and their answers are presented here as submitted. The questions are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.

Burns, the incumbent, received her law degree from the University of Wisconsin–Madison. Her resume is here. 

Fugle is Oneida County corporation counsel. He received his law degree from Marquette University. His resume is here.

Schiek did not respond to the questionnaire.

MICHAEL FUGLE

MARY ROTH BURNS

​Why do you want to become a judge? 

I wish to serve as a judge specifically in Oneida County. This is the place I have chosen as home and where I am raising my five children. In addition, I believe that our residents deserve the continued service of excellent judges. Having watched numerous good (and a few not so good) judges, I have recognized that serving as a Circuit Court Judge is an excellent match for my skills and experiences. I am inspired and humbled to seek election as the Oneida County Circuit Court Branch 1 Judge.

I have extensive courtroom experience across a broad spectrum of the law: criminal defense, small claims, evictions, contracts, civil disputes, family law, prosecution (children needing protection (CHIPS & JIPS), mental health act and guardianship). I am an excellent lawyer with a record of good judgment, solid leadership, and a heart for service. I have been recognized by my peers as a 2008 Rising Star and appointed to serve on the Commission for Children, Families & the Courts by the Wisconsin Chief Justice in 2017.

I am an excellent listener and a decisive decision-maker who considers all sides of an issue when making decisions. My knowledge and experience in various areas of the law combined with the collegial environment that I foster will enable me to manage my courtroom and schedule effectively. I have the skills, experiences and judgment to serve as an exceptional judge.

I recognize that a person's actions do not necessarily define them, but that there are consequences for actions. I demonstrate compassion for people who are in court on what are (usually) sub-optimal circumstances. Through my experiences as both a public defender and a prosecutor protecting the most vulnerable, I have experienced the importance of applying the law in a fair and compassionate manner to optimize each individual’s chance for future success and to support a healthy community. These experiences and leadership qualities will enable me to make sound and fair legal decisions as a judge for Oneida County.

Improving the health of our communities involves a well-functioning legal system. Ultimately, judges play a leadership role needed to affect meaningful change. In particular, I believe that it is crucial to find and implement methods to constructively address mental health. Many criminal and CHIPS & JIPS cases have, at their core, mental health issues which inhibit the actors from conforming their conduct in an appropriate manner. The “warehousing” of the mentally ill in correctional institutions and jails does not treat the root issues and creates revolving-door situations. I believe that the judiciary can take a lead role by asking the questions and framing the issues to collaboratively work towards methods to effectively address the mental health issues that afflict individuals, burden the community, and exacerbate criminal behavior in our legal system. A focus of mine will be to seek innovative methods to address the mental health issues affecting those in the court system.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way. 

Arizona v. Gant, 556 U.S. 332 (2009), had a significant positive impact on the application of the Fourth Amendment in Wisconsin. Gant stemmed the tide of the gradual encroachment of exceptions justifying warrantless searches. Prior to Gant, law enforcement performed warrantless searches of vehicles almost as an exercise of post-arrest evidence gathering. While Wisconsin did have limits on a search incident to arrest as set forth in State v. Fry, 131 Wis.2d 153 (1986), Gant reinvigorated the Fourth Amendment by limiting when a post arrest search was permissible and under what circumstances such a search would be found constitutional. Gant demonstrated a willingness of the courts to more carefully determine the limits of exceptions to the Fourth Amendment and limit the expansion of law enforcement powers.

State v. Dearborn, 2010 WI 84, was pending when Gant was decided. The Wisconsin Supreme Court stated that the Dearborn search was unconstitutional under Gant. Dearborn then overruled Fry. Gant shifted the analysis of whether a warrantless search was constitutional to requiring a more substantive Fourth Amendment review. See e.g. State v. Coffee, 2020 WI 53. Coffee further clarified Gant in that a lawful arrest for OWI, in and of itself, did not supply sufficient basis to search the passenger compartment of a vehicle. See Coffee, 2020 WI 53 at ¶64. Instead, the lawfulness of a search requires an analysis of whether the police have reasonable suspicion based on the totality of the circumstances.

The Supreme Court analyzed six factors in reaching the determination that the Coffee search was lawful. This detailed and extensive analysis was not a factor in pre-Gant challenges, but now forms the basis for the methodology now required. This analysis, requiring reasonable suspicion to determine the lawfulness of a search of a vehicle, demonstrates that the pro forma searches of vehicles incident to arrest that were permitted pre-Gant are now to receive greater scrutiny. Gant necessarily requires that law enforcement approach a search incident to arrest differently and train officers differently. Gant provides an avenue to challenge a search incident to arrest that was previously foreclosed. Finally, no longer would having a person with an active warrant in the vehicle result in a search of the vehicle.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

​A Circuit Court Judge is a non-partisan position, and this question leads to a partisan answer. However, generally those decisions that extend the doctrine supporting warrantless searches are suspect.
 
Describe your judicial philosophy. 

The role of a Circuit Court Judge is to apply the facts to the law as determined by Statute and interpreted by case law. A matter of first impression ought to be carefully researched and considered, but it is not the role of a Circuit Court to “make new law.”

A Circuit Court Judge ought to approach each situation individually and without consideration of prior interactions. I am a fair-minded and conscientious problem-solver in part because of exposure to diverse lifestyles and perspectives. I grew up in Minneapolis, attending a large public high school and working on a farm in summers. After graduating from Carroll College, I held a variety of jobs: in a pea-canning factory, as a ski lift operator, waiter, bartender, hotel front desk clerk where I worked my way up to General Manager, and Chamber of Commerce vice president. After graduating from Marquette University Law School, I began my law career as a criminal defense attorney in Milwaukee, living in an economically and racially diverse neighborhood.

While shared experiences can be beneficial, seeing oneself reflected in another is not a necessary condition for treating others with respect. I have concluded that judging people based on any particular characteristic is both foolish and small-minded. My duty as a judge is to run my courtroom collegially, treating all that enter with respect and justly applying the law to the facts of the case.

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

First, I was the trial counsel in the Wisconsin Supreme Court case 2006 WI 83. At sentencing before the trial Court, I objected to the State introducing CCAP records to establish a prior conviction for an habitual criminality penalty enhancer. I was overruled at the time, but upon appeal, the Wisconsin Supreme Court sustained my objection and found that only certified records were sufficient to prove habitual criminality.

Second, any of the termination of parental rights (TPR) cases I have prosecuted have been significant. Not necessarily because of the factual scenario or legal argumentation, but because a TPR provides an abused or neglected child with permanency. I take pride in having assisted children in finding their “forever home.”

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.

I am comfortable and well versed in the procedures of court appearances because for much of my twenty years of practice, I have appeared in court on a variety of cases multiple times per day.

I have tried over twenty-five cases to a jury verdict. About half of the cases were criminal cases. One was a pro bono civil rights case, and the remainder were Termination of Parental Rights, Mental Health Act, and Child in Need of Protection and Services cases.

I have engaged in civil litigation as both plaintiff and defense counsel from initial pleading through discovery and motion practice, trial and appeal. I have written numerous appellate briefs in civil cases and on two occasions, filed briefs to persuade the Wisconsin Supreme Court to deny certiorari.

I have litigated extensively before the Division of Hearings and Appeals in parole/probation revocation, unemployment, and defending child abuse substantiations.

Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?

No.

Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur? 

Most recent traffic violation was in 1995.

Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so, why? What contribution limits would you set?
 
I am not in favor of additional requirements beyond the Supreme Court Rules. Generally, if there are significant entanglements that point towards recusal, those factors will fit within the Supreme Court Rules. Discretionary decisions of recusal should be determined objectively and sparingly. It is not necessary to add additional considerations beyond what is contemplated by the Supreme Court Rules as additional considerations create an unequal application of recusal, lead to punishment of litigants and delay the administration of justice.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them? 

A Circuit Court Judge ought to apply the facts to the law in an unbiased manner, setting aside personal preferences when exercising discretion. “Delivering true justice” is too amorphous of a phrase to be able to provide any non-partisan answer. For example, how might this relate to a father who learns through genetic testing that a child he raised for 15 years is not his biological child? Is “true justice” removing that person from the birth certificate? Is “true justice” (in accordance with current case law) not removing him from the birth certificate? How does either decision affect the non-party child? Often, seeking to “deliver true justice” means reaching a result that a court wants to reach—this is antithetical to the purpose of serving as a Circuit Court Judge. A Circuit Court Judge ought to remain constrained to interject personal preferences into the decision making.

Provide any other information you feel would be helpful to potential voters deciding for whom to vote.

I believe that supporting the community involves investing in our youth. I have been a member of the National Ski Patrol since 2005, and an active volunteer in the community since arriving in 2008. I was a volunteer youth football coach from 2010 through 2018, and a volunteer highschool football coach since 2018. I was vice president of the Hodag Gridiron Club from 2016-2018 and president 2018-2021. Since February, 202-, I have been a board member of the Rhinelander Boys & Girls Club.

Why do you want to become a judge? 

I am honored to serve the people of Oneida County as a Judge on the Circuit Court. Every day in my courtroom I apply the law to the facts, without politics or ideology. And, I invite you to come to my courtroom anytime to watch me in action and see for yourself the work I do on the bench to uphold the rule of law, to keep our communities safe, and to make sure everyone gets a fair shake.

Judges also need diverse legal and real-life experiences. As an attorney, I practiced law in 10 Wisconsin counties before more than 19 different Judges. That experience gave me important insights about judicial temperament, style, procedure, and attitude. I saw firsthand what was most effective, fair, ethical and efficient. My own strong work ethic and my extensive courtroom and legal experience inform my work in my courtroom.

My life and career experiences are diverse as well. I went back to law school after my two girls were grown. They were raised in Rhinelander, went to our public schools, and graduated from Rhinelander High. My experience outside of the law includes owning a small business, working as a reporter for the Rhinelander News, and teaching. That broad experience helps me be a better judge.
 
Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way. 

In March of 2005, United States Supreme Court Justice Anthony Kennedy wrote the decision in Roper v. Simmons, 543 U.S. 551 (2005), a 5-4 decision upholding the Missouri Supreme Court’s ruling that the Eighth Amendment forbade imposing the death penalty on defendants who were under the age of eighteen when the crimes were committed. Justice Kennedy wrote that sentencing such a defendant to death is unconstitutional per se under the Eighth Amendment’s rule against cruel and unusual punishments. The decision held that, because national consensus against the death penalty had changed (“evolving standards of decency”), and because the defendant’s “youth and immaturity diminishes…culpability and blameworthiness…by a substantial degree,” the State cannot extinguish a young defendant’s “life and his potential to attain a mature understanding of his own humanity.” The Court was influenced by various amicus curiae briefs presenting strong scientific evidence about brain development (or lack thereof) in late adolescence impairing decision-making to a high degree and reducing culpability.

Although Wisconsin is not a death penalty state, this case has had a tremendous positive impact on juvenile justice in Wisconsin, and will hopefully continue to have positive in the future. 

Because of Roper, defense attorneys have reminded judges that, no matter whether a teenager is charged as an adult – meaning the justice system is calling him “an adult” – he is still an adolescent because Roper and other subsequent cases tell us that the Constitution covers these teens under 18: they are not adults because their brains are different. Attorneys can use expert evidence and peer-reviewed studies to explain the effects of disabilities, trauma and immaturity on a juvenile’s intent, as well as on the ability to assist counsel. This has led to courts taking more time on cases involving defendants under 18 who have committed offenses, and has prevented more older teens from being sentenced more harshly.

In the bigger, statewide picture, activists are pushing to change Wisconsin law so that 17-year-olds are not automatically charged as adults (except for the most serious charges). Wisconsin is one of only three states that mandates that 17-year-olds be charged as adults. With Roper telling us that the brain of a 17-year-old is not fully formed, more recent research has led to many other states retaining such teens in the juvenile system. Using updated research, some state legislators have worked for years to bring Wisconsin into the mainstream with this issue. Other similar juvenile issues, such as ending the practice of sentencing juveniles in Wisconsin to life without parole, have been attempted (SB862 in 2021) as well.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way. 

In 2010, the US Supreme Court decided Citizens United v. Federal Election Commission, and our elections have never been the same. This was a controversial decision that held that corporations and other outside groups have the right to spend unlimited funds on elections without necessarily having to disclose what they are spending, where the money is coming from and to whom who the group is donating money. As a result, the average voter has lost the power to have his or her vote count because so much money is spent that large entities can control election results. In addition, candidates can cozy up to wealthy groups in order to fund campaigns, and can ignore individual voters’ issues and interests.

Describe your judicial philosophy. 

I am a common-sense judge. My judicial philosophy mirrors my personal philosophy: respect others, listen carefully when people are before you, be calm, honest and fair, know the law and follow it. 

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

One of the most significant cases I was involved with as an attorney resulted in a Wisconsin Supreme Court decision. Ultimately published as In re Tyler T., 341 Wis2d 1(2012), 814 N.W.2d 192, 2012 WI 52, the case started out as a Walworth County juvenile waiver to adult court for a 15-year-old boy who had committed an armed robbery at the behest of his mother's ex-boyfriend. 

I argued for retaining the boy in juvenile court but realized at the hearing that one of the Assistant District Attorneys had attended the meeting of the Department of Health and Human Services where he had influenced the DHHS not to recommend retaining the boy in juvenile court. When the Circuit Court Judge ruled in favor of the State, I filed an Interlocutory appeal to the Court of Appeals (COA), arguing undue influence and prejudice. When the COA upheld the circuit court's decision, the case was appealed to the Wisconsin Supreme Court. I attended the oral arguments with my client. Ultimately, the Supreme Court upheld the circuit court, although their holding seemed to be that while what the State did was not right, the Court was not going to do anything about it. Justice Ann Walsh Bradley wrote a dissenting opinion in which Justice Shirley Abrahamson joined. 

State v. Andrew Johnson (not his real name) in Oneida County, in 2015. Andrew was a 17-year-old autistic boy who was living with his mother and his abusive step-father (called him the R-word, often damaged Andrew’s possessions, broke his computer). During a fight about the step-father breaking Andrew’s prized computer, Andrew snapped, grabbed a knife and stabbed his step-father; when the mother tried to intervene, she was slashed across the neck. Andrew was charged as an adult with two attempted homicides. I worked with experts to show that Andrew was not actually a danger to the community. Eventually the District Attorney agreed to Andrew pleading to two lower felonies, probation with a few months in jail, and with daytime release so he could stay in high school, plus expungement. Andrew did well, and his cases were expunged.

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.   

As an attorney with the Office of the State Public Defender, my practice was about 95% criminal law, with about 5% of my cases being mental commitments. I defended clients, both adults and juveniles, who were charged with felonies and misdemeanors. I met with clients and discussed their charges, their rights, their options, the likelihood of dismissal, and answered their questions. I appeared in court on a daily basis. I litigated motions where needed, and I negotiated with district attorneys. 

I regularly represented clients in administrative proceedings who were incarcerated in jail because they were on probation, extended supervision or parole, but who were placed on a hold due to some allegations of violations of their rules of supervision. If the clients wished to fight the revocation, I represented them at revocation hearings before an Administrative Law Judge (ALJ). On occasion, I represented clients in proceedings that were civil in nature, such as restraining orders, injunction hearings, mental commitments and guardianships.

I also was a founding member of the hybrid Vilas County Circuit Court/Lac du Flambeau Tribal Court (Zaagibagaa Healing to Wellness Court) from 2011-2019.  

Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?

No.

Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur? 

Decades ago, I had a couple of speeding tickets.

Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge's election? If not, why not? If so, why? What contribution limits would you set?

Because of the millions of dollars that pour into Supreme Court races, I think that justices should recuse themselves from cases involving the largest donors including outside groups. This is another reason that the Citizens United case is so problematic – huge amounts of money spent by special interests can both influence an election and pose a real ethical challenge for the justices. Even the appearance of bias causes the public to lose confidence in the fairness of the judicial system.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?  

The biggest obstacle to delivering justice is the overall lack of attorneys, especially in smaller counties. When criminal defendants’ cases are delayed by the shortage of district attorneys, assistant district attorneys, public defender attorneys and private bar defense attorneys, there is not much that a judge can do to keep things moving along efficiently. Everyone, including victims, must wait while representation can be found. In civil cases, parties in my court often ask for a continuance because they are having trouble finding attorneys to take their cases. Our Constitution requires that parties have a right to due process of law (Fifth Amendment), and that defendants have a right to “Assistance of Counsel” (Sixth Amendment). This lack of attorneys is a huge barrier to delivering true justice.

Another huge obstacle is time. I believe that justice delayed is justice diminished. Unfortunately, it is often hard to find time on my judicial calendar because I want to be certain that I don’t rush through cases – so, I diligently schedule adequate time for each case. And, when I have a long list of cases to handle on a given day, I cannot pile on more than the court system can address reasonably. As a result, some jury trials have to be set out for a few months because I simply do not have the time on my calendar. 

Another obstacle to true justice is security. Security concerns lead to unease about personal safety in the courthouse for the majority of courthouse personnel. Although, on the one hand, we are told that there is no need (or funds) for security in the Oneida County courthouse, on the other hand, some security measures are quietly being enacted. But, without a single point entry system to the facility, there is always an underlying discomfort about whether a disgruntled party in a lawsuit or perhaps a defendant or family member is armed in court.

Provide any other information you feel would be helpful to potential voters deciding for whom to vote.

Voters have a clear choice in this race. I am the only candidate with Judicial experience. I have a proven track record as a fair, ethical, knowledgeable Judge who treats everyone with respect and applies the law as it is written. Voters cannot be sure what kind of Judge either of my opponents would be. I also bring a unique combination of legal and life experiences to my work as a judge. As a mother who now has grandchildren ranging in age from 4-13, I am dedicated to keeping our communities safe and strong. That is why I am working to start a Drug Treatment Court in Oneida County. Drug Treatment Courts hold offenders accountable, give them a chance to turn their lives around, save taxpayer dollars and help stop the revolving door of crime. I helped start a similar program in Vilas County.  

Currently, Oneida County is working to set up a diversion program, partnering with Vilas County, to provide treatment, counseling and drug testing for defendants prior to the resolution of their cases. I believe that the next step needs to be a Drug Court.

I would be honored to continue serving all the people as a Judge on the Oneida County Circuit Court.