Milwaukee Municipal Court still not complying with court order on recording procedures

By Alexandria Staubach
 
Milwaukee Municipal Court continues to dodge its obligation to record hearings by proposing an insufficient new policy in response to a court order.
 
Milwaukee County Circuit Judge David Borowski rejected the municipal court’s proffered new policy but clarified some of the municipal court’s responsibilities.
 
Borowski held in December 2024 that the municipal court and its judges had consistently failed to comply with statutorily imposed recording requirements for hearings on motions to reopen as well as hearings addressing a defendant’s ability to pay. Such hearings must be recorded so an appellate court can review them.
 
Borowski placed the municipal court under his supervision and ordered the municipal court to comply within 90 days. He reserved the right to hold hearings every three to six months to monitor compliance.
 
Over the years, Milwaukee Municipal Court developed several different categories of hearings and limited recordings to only what it called “indigency hearings,” even though judges regularly took up a defendant’s ability to pay in other hearings as well.  
 
Borowski found in December that names of court proceedings are an invention of Milwaukee Municipal Court and the court could not avoid recording requirements through its naming system. He ordered the municipal court to “fully implement” policies and procedures to electronically record every hearing in which “(1) a decision is made as to a motion to reopen a case (regardless of whether said motion is made orally or in writing, regardless of the label or category assigned to said hearing, and regardless of the ultimate result of the hearing) and (2) a determination is made as to the defendant’s ability to pay a judgment due to poverty (regardless of the ultimate result of the hearing).”
 
In March 2025, Milwaukee Municipal Court submitted to Borowski a plan that purported to bring it into compliance but failed to address key components of his December order.
 
The policy Milwaukee Municipal Court submitted again only applied to “indigency hearings.” Further, it shifted the burden of recording from the municipal court to the court’s bailiffs and said the municipal court would no longer grant “motions to reopen based on pleadings alone but rather schedule a hearing,” as a result of Borowski’s decision.
 
Milwaukee Municipal Court sought clarification from Borowski because it thought his December decision was “reasonably susceptible to more than one interpretation,” asking Borowski to point out the “specific circumstances requiring a hearing in open court” that would trigger the recording requirement.
 
Last week, Borowski found that the proposed policy Milwaukee Municipal Court presented “lacks sufficient clarity to ensure compliance with the Court’s Decision and Order.” He directed the municipal court to develop a new policy that “must explicitly require electronic recording of ALL of the following”:

• Indigency hearings, including those that arise during other hearings.
• Hearings that address bench warrants, arrest warrants, or jail commitments.
• Hearings that involve a defendant attempting to address or resolve driver’s license suspensions for failure to pay municipal forfeitures, sanctions for nonpayment of the judgment, or outstanding debt.
• Hearings that address a request to reopen a case, including those that arise during another hearing.
• Hearings on a motion or other request for an installment payment plan, an extension of time to pay, community service, a modification of the monetary judgment, or a stay of the judgment.

 
The new order forbids the municipal court from placing the obligation of recording on bailiffs. “Court staff may be responsible for turning on the recorder, but the policy and procedure must clarify that any recording must be made at the direction of the judge,” Borowski wrote.
 
Milwaukee Municipal Court has 14 days to develop a new policy, Borowski said.
 
Borowski noted that nothing in his December order requires Milwaukee Municipal Court to hold a hearing on a written motion or when a judge would otherwise dispose of a matter by written order.
 
“Judge Borowski’s April 21, 2025 order is very clear guidance to any municipal court that is still unsure which hearings must be electronically recorded,” said Susan Lund, attorney for the plaintiff who brought the case challenging Milwaukee Municipal Court’s recording procedures.