Milwaukee County judicial candidates Jones, Shelton on best Supreme Court decisions

By Gretchen Schuldt

​Danielle Shelton and Andrew Jones are competing for the Branch 40 judicial seat vacated by Rebecca Dallet when she was elected to the State Supreme Court in April 2018. Jones has held the seat since August, when he was appointed by former Gov. Scott Walker.

This is the only contested Milwaukee County judicial race this spring. Shelton and Jones agreed to answer a series of questions from WJI to better inform voters about the race.

Question 2: Name one of the best U.S. or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way. 

Jones

In Texas v. Johnson, 491 U.S. 397 (1989), the U.S. Supreme Court upheld a decision by the Texas Court of Criminal Appeals overturning the petitioner’s criminal conviction under a Texas statute prohibiting the desecration of the American flag. According to the Court, the petitioner’s conviction violated the First Amendment and thus was unconstitutional.

The petitioner (Johnson) burned a flag at the conclusion of a political march and demonstration through the streets of Dallas protesting the policies of the Reagan administration. According to the Court, given the overtly intentional political message of the flag burning, the nature of which would have been overwhelmingly apparent to any observer, the conduct was “sufficiently imbued with elements of communication” to constitute expressive conduct (speech) protected by the First Amendment. (Indeed, Texas conceded as much at oral argument.)

As such, the Court addressed the interests asserted by Texas to assess whether the law’s restriction on the petitioner’s expressive conduct was justified. The Court found that one purported interest – preventing breaches of the peace – was not implicated by the underlying facts, as no such breach had actually occurred, and the fact that some observers took offense at the conduct was insufficient to constitute such a breach. With respect to the second interest advanced by Texas – preserving the flag as a symbol of nationhood and national unity – the Court concluded that the purpose was related to the expression inherent in the petitioner’s conduct. As a result, the restriction on the petitioner’s expressive conduct was content based and subject to exacting scrutiny. Reviewing prior precedent in which it had held that punishment for using words critical of the flag is prohibited and that the government may not compel conduct that reflects respect for the flag, the Court held that the fact that the government cannot prohibit expression it disagrees with is not dependent on the mode of expression. According to the Court, to uphold the petitioner’s conviction would be to enter “territory with no discernable or defensible boundaries” by permitting a designated symbol such as the flag to be used to convey one (positive) set of messages but not another (negative).

In my view, the Johnson decision represents an instance where the Court ruled in a manner compelled by the First Amendment notwithstanding the fact that the speech in question was and is abhorrent to many. The decision reflects both a core value of this nation and our American society – freedom of thought, speech, and expression from government intrusion – and the critical role the courts (from the Supreme Court down to state and federal trial courts) play in our system of government – the faithful application of the law consistent with the Constitution, whether or not it is popular or even true to a particular judge’s personal beliefs.

Jones' resume is here. Personal information, such as telephone numbers, personal email addresses, and the names of people not directly involved in the campaign have been redacted.

https://www.judgeandrewjones.com/

Shelton

​Georgia v. Randolph, 547 U.S. 103 (2006), held that the police cannot conduct a warrantless search in a home where one occupant consents and the other objects. Justice David Souter, in the majority opinion, compared the reasonableness of such a search to a more casual interaction. Souter wrote, "it is fair to say that a caller standing at the door of shared premises would have no confidence that one occupant's invitation was a sufficiently good reason to enter when a fellow tenant stood there saying, 'stay out.' Without some very good reason, no sensible person would go inside under those conditions." A police search in such circumstances, Souter wrote, would therefore not meet the reasonableness requirement of the Fourth Amendment.

I am critical of any erosion of the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  A great deal of my career has been spent protecting people against government intrusions, so I appreciate the U.S. Supreme Court protecting our rights.

​Shelton's resume is here. Personal information, such as telephone numbers, personal email addresses, and the names of people not directly involved in the campaign have been redacted.​

https://www.sheltonforjudge.com/

We asked State Supreme Court candidates Brian Hagedorn and Lisa Neubauer to respond to our questionnaire, but neither obliged.

Hagedorn was profiled as part of our "Walker's Judges" series – you can read that here.