By Gretchen Schuldt

The mere possibility that a man with a domestic violence record might start a relationship with a woman at work or be alone with women there is not a good enough reason to refuse to hire him in the first place, the State Court of Appeals ruled this week.

​State law prohibits employment discrimination based on a conviction record unless the conviction is for a crime with circumstances that that "substantially relate" to the job in question.

Derrick Palmer's criminal record demonstrated a tendency to "be physically abusive toward women in a live-in boyfriend/girlfriend relationship," Appeals Judge Mark Gundrum wrote for the for the three-judge District II Court of Appeals panel. The question, though, Gundrum said, was whether Cree, Inc., of Racine, showed that Palmer’s past domestic abuse is substantially related to the job he applied for. The company did not, the panel said.

Gundrum was joined in the decision by Appeals Judges Lisa S. Neubauer and Paul F. Reilly.

The decision reversed a ruling by Racine County Circuit Judge Michael Piontek. 

Palmer was convicted of in 2012 of strangulation/suffocation, fourth-degree sexual assault, battery, and criminal damage to property arising from a domestic altercation with a live-in girlfriend. He was sentenced to 30 months in prison and 30 months of community supervision.

In 2015, Cree, a lighting manufacturer, hired Palmer as an applications specialist, but the offer was contingent on a background check. The job would require Palmer to would work with customers and staff.

About 1,100 people worked at Cree's facility, including about 500 women.

Cree withdrew its employment offer after receiving the background check and learning of Palmer's criminal record. (Palmer also had a 2001 battery conviction related to another domestic incident, but Cree did not learn of that until later.)

Palmer filed a discrimination complaint with the Wisconsin Department of Workforce Development, and the complaint eventually made its way to the Labor and Industry Review Commission.

​LIRC found for Palmer. In its decision, the agency said that the "fact that there are female employees in the plant with whom the complainant could potentially become involved in a personal relationship that might end badly is a scenario requiring a high degree of speculation and conjecture, and one that goes well beyond any reasonable concern about job-related conduct. Moreover, the ability to meet females and form personal relationships with them is not a circumstance unique to the job at issue, but describes virtually any employment situation in which female workers might be present...." 

Cree appealed to Racine County Circuit Court, where Piontek ruled in its favor, and Palmer and LIRC appealed from there.

The appeals panel said that "Cree presented no evidence suggesting Palmer has ever been violent in a circumstance other than a live-in boyfriend/girlfriend relationship or even suggesting he has ever had such a relationship that in any way stemmed from or was related to his employment." 

Cree also presented to LIRC "no evidence suggesting Palmer would be supervising, mentoring or even working closely with female employees," Gundrum said. The panel agreed with LIRC  about the speculative nature of some of Cree's argument and that "mere contact" with others at Cree is not substantially related to Palmer's domestic violence.

Cree's position, Gundrum said, seems "more focused on the general sense that Palmer is not fit to be unconfined from prison and participating in the community at all due to his prior crimes, even though he has long since finished serving the confinement portion of his sentence."

The legislature could have exempted certain crimes, such as those for which Palmer was convicted, from the non-discrimination statute if that is what it wanted to do, Gundrum said. 

"It could have easily done that, but chose not to," he wrote.

Updated Dec. 14, 2020 to  correct the number of pages in the Fair Maps Coalition submission.

By Gretchen Schuldt

Almost 2,000 additional comments opposing a proposal to give the State Supreme Court power to draw state redistricting maps were made public in the days following the Nov. 30 comment deadline.

Negative comments came from representatives of Gov. Tony Evers; a group of nine law professors; three election scholars; two former state senators; and 1,932 various Wisconsin residents – the last in a 712-page compilation of comments from the Fair Maps Coalition. All of the submissions can be found here.

The proposal, filed with the Supreme Court by the Wisconsin Institute for Law and Liberty and former State Rep. Scott Jensen,  seeks to change the way redistricting disputes are handled by the courts.  WILL is a conservative law firm.

Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies.

The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say.

Assistant Attorneys General Anthony D. Russomanno and Brian P. Keenan, on behalf of Evers, said Jensen and WILL are asking the Supreme Court to adopt rules that conflict with the court's traditional role in original actions.
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"And they do so in the context of especially complex trial court litigation, without meaningfully addressing the core factual and practical issues that will arise," they wrote. "Further, the proposal codifies court involvement in a political process and does so before that process can even begin."

"We caution against the use of judicial rulemaking to grant jurisdiction to the Wisconsin Supreme Court over an original action that requires extensive fact-finding, is overtly political, and for which there are adequate alternative forums for resolution in the first instance," wrote the nine law professors "We do not challenge this Court’s authority to adopt rules on original jurisdiction or to hear the types of cases described in the petition. Instead, we suggest that this Court exercise its discretion to deny the petition..." 

The nine were Steven G. Calabresi, Zachary D. Clopton, James E. Pfander, and Martin H. Redish – Northwestern Pritzker School of Law; Maureen Carroll – University of Michigan Law School;  Michael C. Dorf – Cornell Law School; Atiba R. Ellis and Edward A. Fallone – Marquette University Law School; and David S. Schwartz – University of Wisconsin Law School.

Three other lawyers, who are election scholars, noted that the Supreme Court spent years considering redistricting issues before it declined in 2009 to adopt court rules for redistricting disputes.

The Jensen / WILL submissions do not mention the court's earlier consideration, wrote the experts, Justin Levitt, of the Loyola Law School; Nicholas Stephanopoulos, of Harvard Law School; and Robert Yablon, of UW Law School.

"That is a bewildering omission," they wrote. "To overlook the relevant history is to miss hugely important lessons about the challenges of rulemaking in this area."

They continued: "When this court last considered the issue, two overarching concerns drove its decision not to act: first, that adopting rules would encourage redistricting disputes to be resolved through litigation in this court rather than through the political process; and second, that inviting politically fraught redistricting litigation would threaten the court’s institutional integrity. On each of these scores, this proposed rule is far worse than the proposal that the court previously rejected."

Former State Senators Dale Schultz, a Republican, and Tim Cullen, a Democrat, submitted joint comments opposing the proposal.

"We...know that in times of increased political division, it is unlikely the Legislature will accomplish this important work if it knows the State Supreme Court is waiting, willing to take the issue out of their hands," they wrote. "We ask you to respect the Legislature as a coequal branch of government, and not adopt this rule that would prematurely involve the court in a political question."

A (very) small sampling of the comments from 1,932 individuals and compiled by the Fair Maps Coalition is below. 

"If this rule change is to take place, it will further limit the ability of the public to provide input on the process. I feel all stakeholders, not just party representatives, should continue to have an opportunity to influence this process. The rule change request is clearly politically motivated, and so should be denied in favor of the current process that uses an independent, non elected federal judge." – Aaron Day, Green Bay

"This will result in harmfully politicizing the court, excluding nonpartisan groups from full participation. This rule also provides insufficient transparency measures. Transparency is an important part of all branches of government in our democracy." – Agnes Welsch, Menomonie

"I oppose the WI Supreme Ct being allowed to take jurisdiction on redistricting matters. All parties should be allowed to plead their case about redistricting matters, not just political parties. Also, allowing the WI Supreme Ct to simply disregard the proposed rules and come up with their own, if they wish to, is unfair and improper and will lead to serious questions about political influence and transparency. Finally, Plaintiffs should be allowed to plead their case in federal courts, if necessary, to make sure their grievances are heard!" – Arthur Anderson, Elm Grove

"Allowing a rushed process disadvantages many individuals and groups. To honor our history as a democratic nation, we must allow all voices to be heard on equal grounds. Political parties may come or go, but people are here to stay." – Ann Lewandowski, Waunakee

"The GOP 'Justices' on the WI Supreme Court are setting WI back hundreds of years!" – Michael Goodman, Madison 

​Attorney General Josh Kaul appealed the judgment on behalf of himself, the Wisconsin Elections Commission and its chair, and Secretary of State Douglas LaFollette. The appeal will be heard by the District III appeals court. The state is allowed to choose the appeals court district as long as it is not the district that includes the court that issued the original decision.
District III is located in Wausau and consists of judges Lisa K. Stark , Thomas M. Hruz, and Mark A. Seidl.

In the trial court, WJI and the individual plaintiffs argued that the ballot question failed to warn voters that they were striking the state constitution’s only reference to a defendant’s fair trial, eliminating a defendant’s right to exclude an alleged victim from the courtroom if necessary for a fair trial, and altering defendants’ rights set forth in other sections of the Wisconsin Constitution and state statutes.

Remington agreed, writing that the question at hand was “about the integrity of the process of amending the State Constitution by ballot. Voters deserve to know what they are voting on.” 
Plaintiffs also argued that the ballot question directly misled voters, telling them that the amendment would protect a victim’s and an accused’s rights “with equal force,” while the amendment’s text actually permitted a victim to receive greater protections “no less vigorous” than the accused receives. Again, Remington agreed.

Finally, plaintiffs argued that the amendment contained more than one subject, requiring multiple ballot questions. Remington agreed again, holding that under the Wisconsin Constitution two questions were required: one for expanding victims’ rights and one for narrowing rights of the accused.

Remington did not comment on the public policy of Marsy’s Law. Instead, he focused on process, stating that “Wisconsin voters deserve no less than to be asked the right question(s). Wisconsin voters cannot and should not be misled or deceived if the outcome of the ballot question is to have full force and effect of law.”

Marsy’s Law is the personal cause of billionaire and now convicted drug felon Henry Nicholas III. He and his organizations have advocated for passage of substantially similar amendments in at least 20 states. The national Marsy’s Law for All website states that after achieving successful constitutional amendments at the state level the organization aims to be “ultimately successful at the national level” as well.
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Marsy’s Law for Wisconsin, LLC spent over $1.5 million from January 2017 through June 2019 lobbying the Legislature to approve the amendment and ballot question so the matter could be sent to voters.

Revised Dec. 1, 2020

By Gretchen Schuldt

​An effort to get the State Supreme Court to give itself the power to draw new legislative maps based on the pending census drew negative reactions from 40 organizations and individuals who submitted comments on the proposal before Monday's deadline.

There were just two comments favoring the proposal. One of them  was by attorney Misha Tseytlin on behalf of Republican U.S. Representatives Glenn Grothman, Mike Gallagher, Bryan Steil, and Tom Tiffany and Rep.-elect Scott Fitzgerald. 

Attorney Kevin M. St. John also filed comments in favor of the new rule. St. John was acting on behalf of Assembly Speaker Robin Vos and Fitzgerald, in his role as State Senate majority leader. Both Vos and Fitzgerald are Republicans.

Those two said the proposal protects the legislature’s and state's constitutionally conferred primary roles in redistricting, minimizes the potential for "federal court intrusion," and "promotes the sovereign interests of the citizens of this state."  

Many of the comments opposing the change focused on the restrictions on public participation in the redistricting process. 

The Wisconsin Justice Initiative, for example, said in its comments that the proposal "ultimately allows the Court to develop its own redistricting proposal, establish many of the rules for any public comment on the proposal, and approve the proposal. The petition leaves it unclear whether non-governmental interested groups or individuals would be allowed to file formal objections to any Court map or have any say on it at all, as their right to participate would be so severely limited."

The petition, filed by former State Rep. Scott Jensen, a Republican, and the Wisconsin Institute for Law and Liberty, the conservative law firm, seeks to change the way redistricting disputes are handled by the courts. 

Redistricting is a highly contentious legislative process that very often leads to legal battles. Republicans in Wisconsin have used the redistricting process to shape state and federal districts to give themselves maximum advantage in securing majorities in legislative bodies.

The petition, among other things, would allow many redistricting disputes to go directly to the Wisconsin Supreme Court, bypassing federal courts and state lower courts and their fact-finding roles. The petition also would allow cases to begin even before there is an actual dispute, and would give the right to participate only to the Senate, Assembly, governor, and political parties – other interested organizations and individuals would require specific permission from the Court to have a say.

"WILL’s proposed changes would only allow for consideration of partisan interests rather than those of individual Wisconsinites and civic groups that can provide for knowledge about their regions and how certain redistricting of areas would affect them..." the Dane County Board said in comments submitted to the Court. "WILL’s proposed changes decrease transparency in the redistricting process and would allow the Court to bypass consideration of any views by groups other than elected officials and/or political parties."

"The rules, if adopted, will increase the politicization of the Court while they decrease the public trust in the redistricting process," the ACLU wrote.

The Supreme Court considered a similar petition previously and a majority of justices rejected it, the organization said.

"As Justice (David) Prosser stated during the 2009 rulemaking process, the Court taking original jurisdiction in redistricting cases would be a 'fundamental institutional mistake for this Court'  as it would place the Court at the center of the political arena."

​"If accepted," the ACLU continued, "the proposed rule will undermine the public’s trust in the Court and in the redistricting process. It is clear that the public wants a fair, impartial process: over the past few years, 34 county boards have passed resolutions, and voters in 28 Wisconsin counties and 19 municipalities throughout the state have passed referendums, in support of fair electoral maps and a non-partisan 2021-22 redistricting process."

"A traditional trial and appeals process to resolve redistricting challenges allows Wisconsin voters and groups to follow cases throughout the process and, if motivated and possible, get involved," Linda Laarman wrote. "Vesting judicial resolution in a single court — the Wisconsin Supreme Court — would diminish the ability to follow cases and participate in them."

Under the petition, the Supreme Court would have deadlines for actions on redistricting, but would be allowed to disregard most of the dates, she said. 

"The rationale, according to the petition?" Laarman wrote. “ 'Because circumstances can always change.' ”

Below are excerpts from other comments submitted. The full comments can be found here.

League of Women Voters of Milwaukee County – "The proposed rule change vests powers and duties in this court that currently belong to the state legislature. Seizing these powers and responsibilities under the guise of 'divided government,' as an administrative rule change, grossly violates the separation of powers with our constitutional framework. The creation of fair voting districts dramatically impacts the quality of democracy in our state and should be accomplished with transparency and neutrality."

Linda Bochert – "I write, as a private citizen and voter, to raise a predicate question: should the Court adopt a rule at all? I think not. Not because the issue is political, complicated, controversial, or simply hard – although it is all of those things. But because the redistricting issue it proposes to solve is inherently not a judicial issue but a legislative one."  

Douglas Owens-Pike – "As a farmer, making my living by tilling the soil, and a member of the Farmers Union, I am shocked at the audacity of one narrow interest group's attempt to make it even more difficult to challenge an already biased, unfair redistricting process. The proposed rules change would throw a dark cloak over an already closed-door process, shrouding out the light of open participation from a wider swath of public interests that have a history of being represented poorly."

Sarah S. Jones – "Wisconsin citizens deserve fair representation in their legislature, determined by fairly-designated voting districts. They deserve a process for drawing those districts which operates without partisan affiliation; allows ample time for deliberation; admits comment by any concerned groups and individuals, including the non-partisan; provides for review by appropriate levels of state or federal court; and maintains transparency throughout."

All on the Line – The proposed rule "does not make clear who is permitted to object or rebut the Court’s proposed map plan, but instead suspends the creation of that list to a later date. This could lead to absurd results, such as a group being able to submit a proposed map, but not being able to submit an objection or rebuttal to the Court’s plan, and vice versa. Moreover, the Petition will preclude participation by community groups that lack the sophistication to understand brand new judicial procedures or lack the technology to draw their own map. The Court’s rules should not limit public input on a proposed map where the rules of civil procedure or prudential considerations could not."

Campaign Legal Center – The Proposed Rule has numerous flaws. Most notably, the Proposed Rule: (1) invites premature litigation; (2) mistakenly suggests that the legislature can adopt new districts without presenting those districts to the governor for approval or veto; (3) prioritizes involvement of partisan interests as parties; (4) short shrifts or, at the Court’s discretion, omits entirely the fact-finding process necessary to resolve redistricting disputes; and (5) establishes inadequate procedures governing proposed maps. 

Tseytlin – We support Rule Petition 20-03 for three reasons. First, it would restore the primacy of this Court vis-à-vis the federal courts in resolving any impasse in Wisconsin’s congressional-redistricting process. Second, it meets this Court’s criteria in Jensen v. Wisconsin Elections Board...for 'establish[ing] [the] protocol for the adjudication of redistricting litigation.' Third, it puts forth a process that will allow the Justices of this Court—who are elected by the people statewide to serve on the State’s highest court—to adjudicate any dispute over the congressional districts well before statutory deadlines for the Fall 2022 Elections, which may not be possible if this Court were to allow such redistricting disputes to proceed first in the circuit court or federal district court."

Common Cause – "Our opposition to the Jensen petition is based on both the narrow scope of interest in the upcoming redistricting process which it seeks to define, as well as the abbreviated period of time in which it proposes the Court to act. Both of these factors undermine and even largely exclude altogether, the interests and concerns of most Wisconsin citizens, including our members. It is important to remember that voters and citizens are the ones whose rights are most impacted by redistricting, and who deserve to be protected by the Court. The petition seeks a rush to judgment without allowing citizens to have their concerns adjudicated and addressed through even the normal channels of judicial review."

By Gretchen Schuldt

​President Donald Trump's campaign has agreed to drop the lawsuit it filed against a small Wisconsin television station over an advertisement the station aired.

"The parties intend this Stipulation for Dismissal and Release to foreclose the assertion by the Plaintiff and its candidate in any court or forum of any claims made or that could have been made against the Defendant and Intervenor Defendant in connection with advertising arising out of the 2020 election," the agreement between Trump's campaign and WJFW says.

The agreement also includes Priorities USA, which ran the ad. Priorities USA intervened in the suit after it was filed.

“Like all of his other misguided legal actions, Donald Trump only knows how to lie, cheat, and sue his way out of accountability for his actions,” Priorities USA Chairman Guy Cecil said about the dismissal agreement. "Priorities stood strong against the Trump campaign’s onslaught of baseless legal actions and we have successfully rebuffed Donald Trump’s effort to censor the truth about his failed leadership. I have confidence that the courts will continue to reject Donald Trump’s other foolish litigation pursuits in the weeks to come.”

The station, WJFW-TV, of Rhinelander, had sought dismissal of the suit, arguing that Trump's defeat in his re-election bid mandated an end to the litigation.

The suit alleged that a political ad the station aired showing Trump downplaying the threat of COVID-19 contained false and defamatory content. The ad was played by stations across the state, but those stations were not sued. (Politifact did label it false – details here.)

The station was represented by the law firms of Ballad Spahr and Godfrey & Kahn. Priorities USA was represented by Perkins Coie. The Trump campaign was represented by Husch Blackwell.

By Gretchen Schuldt

​Firms that contract with medical providers to handle medical records requests cannot overcharge patients for those records, the State Court of Appeals ruled last week.

The contract firms must follow the same rules that apply to direct medical providers when giving providing the records, the District I Court of Appeals panel said in reviving a class-action lawsuit.

"To allow a third-party to circumvent the statutory limitation on health care providers simply because it does not provide actual health care services would…yield absurd results," Appeals Judge M. Joseph Donald wrote. He was joined in the decision by Appeals Judges William W. Brash III and Timothy G. Dugan.

State law limits how much medical providers can charge patients for their own medical records. Generally, for paper records, the charges top out at $1 per page; for microfiche or microfilm, the charge is $1.50 per page. 

Andrea Townsend filed a class action complaint in 2018 alleging that ChartSwap, which contracted with a radiology practice to handle medical records requests, overcharged for those records. Townsend said that her attorneys, at her request, sought her records after she was in a traffic accident. ChartSwap responded with a bill for $35.87 and provided the records after Townsend's lawyers paid it.

Townsend alleged in the suit that ChartSwap violated the medical records pricing statute; ChartSwap responded that the statute did not apply because the firm, based in Texas, was not a medical provider but was merely an agent. 

Milwaukee County Circuit Judge Paul R. Van Grunsven, relying on an earlier Federal Court decision interpreting Wisconsin law, ruled in ChartSwap's favor. That Federal Court decision said that state law "does not impose liability on entities that are not health care providers even when they act as agents of health care providers," Donald said.

But, he wrote, "the district court’s decision is not binding upon us."
More importantly, Donald said, the decision "undermines the purpose of (the law) which is to protect patients from being charged excessive fees for access to information in the custody and control of health care providers."

A different state law also puts the same obligations upon an agent of a principal that are put on the principal, Donald said.
"The goal of patient protection would be eviscerated if health care providers could simply contract with parties who were permitted to charge fees of their own liking," he said.

The panel returned the matter to Circuit Court for further action.

By Gretchen Schuldt

​The small Rhinelander television station sued by the Trump campaign committee over a television ad is seeking dismissal of the suit, arguing President Trump's defeat in his re-election bid mandates an end to the litigation.

"This case began when President Donald Trump repeatedly used the word “hoax” to discuss the COVID-19 pandemic, and it ends with him repeatedly using the word “hoax” to describe his defeat at the ballot box," WJFW-TV said in its new motion. "With the election now decided against him, the Trump Campaign’s work has ended, and so should this defamation lawsuit."

The Seventh Circuit Court of Appeals already has held that "redressability is lacking where, as here, an alleged injury amounts to defeat at the ballot box, because federal courts simply cannot remedy such alleged harm," the station said.

The Trump campaign in April sued the WJFW, alleging that a political ad the station aired showing Trump downplaying the threat of COVID-19 contained false and defamatory content. The ad, aired by Democratic super PAC Priorities USA, was played by stations across the state. (Politifact did label it false – details here.)

The station and its lawyers, from the Washington, D.C. law firm of Ballad Spahr and the Madison firm of Godfrey & Kahn, previously sought to have the complaint dismissed on the grounds that it did not state a legitimate claim. The station still believes that, but Trump's loss provides "a new and independent basis to dismiss the complaint," the station said.

"President Trump has lost his bid for reelection, and this Court can neither set those results aside nor recast the election results," the station argued. "Moreover, the money damages that the Committee seeks also would not 'likely remedy' their alleged injury. The Supreme Court has made it clear that the 'psychic satisfaction' of winning a lawsuit alone – the only possible motive for the Trump Campaign Committee to continue with this litigation – 'is not an acceptable...remedy.'”

The Trump campaign has not yet filed its response to the new motion. The campaign is represented by the Husch Blackwell law firm. Trump himself is not a party to the suit.

"Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. WJI also will continue to profile former Gov. Scott Walker's appointees who are still in office. 

Name: Brittany Cha'ron Grayson

Appointed to: Milwaukee County Circuit Court
Appointment date: Sept. 4, 2019. (Elected to a six-year term in April 2020)
Education:
   Law School – Marquette University Law School.
   Undergraduate – Marquette University
   High School – Catholic Memorial High School, Waukesha
           
Recent legal employment:
   2013-present – Milwaukee County District Attorney's Office
   2011-2013 – Hudson Legal
      
Bar and Administrative Memberships:
Grayson responded "N/A," but the Wisconsin State Bar says she was admitted to the Wisconsin Bar in 2011.
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General character of practice before becoming a judge: Currently assigned to the Early Intervention Unit handling diversions and deferred prosecution agreements for the DA's general crimes teams. Prior to that, worked in the Child in Need of Protection and/or Services unit and the domestic violence unit.
 
Describe typical clients: N/A

Number of cases tried to verdict or judgment: 10  

List up to five significant cases in which you participated as a judge or lawyer in the past seven years:

In the interest of T.B. et al – 2015 – I handled the CHIPS case for these three children. The case involved four parents: one mother and three fathers. There were several attorneys involved and endless court hearings over several months. The mother struggled with unmanaged mental health and addiction issues that kept her from safely co-parenting her children with their respective fathers....Litigating this case was particularly difficult because the mother was just not ready to accept services or admit that ​she needed help....In the end, the children were able to continue living with their respective fathers, with the mother having visits so long as they were safe and appropriate. This case didn't end the way I wanted it to. Of course, I wanted the children to remain in the stable homes their fathers had provided for them, but I also wanted better for the mother. What this case did teach me was that despite our intentions and efforts as legal advocates, we are still charged with the task of meeting people where they are and accepting that we can't always control where they end up when they leave us.