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By Margo Kirchner The state relied on the wrong legal standard in arguing that the “Marsy’s Law” ballot question approved by voters a year ago was proper, the Wisconsin Justice Initiative said in a new court filing. “Marsy’s Law” is a victims’ rights amendment approved by voters in April 2020. The amendment itself is more than twice as long as the U.S. Bill of Rights. It was presented to voters, however, as a single, short question on the ballot. WJI and four individuals successfully challenged the amendment in Dane County Circuit Court, arguing that the ballot question violated constitutional requirements. On Nov. 3, Circuit Judge Frank D. Remington agreed, finding that the ballot question failed to fully inform voters of the changes being proposed, was inaccurate and affirmatively misleading, and encompassed more than one amendment so multiple questions were needed. Remington declared the amendment invalid due to the ballot question’s defects. However, he stayed the effect of his ruling in case the defendant state officials appealed, which they did on Dec. 2, 2020. Attorney Josh Kaul appealed on behalf of the Wisconsin Elections Commission and its chair, Ann Jacobs; Secretary of State Douglas La Follette; and himself. Kaul filed the appeal in District III of the Court of Appeals, which is located in Wausau. Attorney Dennis Grzezinski, representing the plaintiffs, argued in his appellate response brief that Remington was correct and his ruling should be affirmed. “What is at stake in this case is the right of Wisconsin voters to be properly informed, and to not be misled by a ballot question when voting on proposed amendments to the Wisconsin Constitution,” Grzezinski wrote. After pointing out errors the defendants made regarding the legal standard the court should apply, Grzezinski homed in on important language the amendment deleted from the state Constitution. Prior to April 2020, the Wisconsin Constitution’s victims’ rights section provided that victims must be given “an opportunity to attend court proceedings unless sequestration is necessary for a fair trial for a defendant.” Marsy’s Law deleted the italicized phrase. Further, the prior language concluded with the sentence that “[n]othing in this section, or in any statute enacted pursuant to this section, shall limit any right of the accused which may be provided by law.” Marsy’s Law deleted that sentence as well. By striking the first provision the amendment “deleted a defendant’s right to have a victim witness sequestered, and it deleted the only reference in the state Constitution to a defendant’s right to a ‘fair trial....’ Striking the final sentence...altered the balance between victims’ rights and the rights of the accused under the State Constitution....”  The Wisconsin Constitution specifies that if two or more amendments are submitted to voters, they must be submitted in such a way that voters may consider each amendment separately. The Marsy’s Law ballot question asked voters to approve an amendment “to give crime victims additional rights” beyond those already in the Constitution. Voters were not presented with a second question asking whether they also approved of the reduction in the rights of an accused. WJI and the other plaintiffs argued that a second question was constitutionally required because, as Remington wrote, “[s]ubtracting from the defendants’ rights is fundamentally different than adding to victims’ rights.” In fact, the plaintiffs argued, three questions were required, because Marsy’s Law also contains a third subject creating a victim’s right to Supreme Court mandatory review of any circuit court decision.
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 Gill "Walker's judges" is our effort to present information about former Gov. Walker's appointees to the bench who are still serving as judges. The information is taken from the appointees' own judgeship applications. We also are posting "Evers' judges." Outagamie Circuit Judge Gregory Gill Jr. now is running for the District III Court of Appeals bench against attorney Rick Cveykus. Election Day is April 6. We posted Cveykus' responses to WJI's judicial candidate questionnaire earlier. Gill did not provide responses. Gill's former law firm, Gill & Gill, generally represented management in "all phases of labor and employment law," according to a firm flyer attached to his judicial application. More recently, during his current campaign, Gill received attention for campaign donations he received from conservative Republican donors Richard Uihlein, and John Menard. He is running as a textualist and judicial conservative. Name: Gregory B. Gill Jr. Appointed to: Outagamie County Circuit Court Appointment date: September 2011 Education: Law School – Marquette University Law School Undergraduate – University of Wisconsin-Madison High School – Xavier High School Legal employment: November 2010-December 2010 – Special prosecutor, Calumet County District Attorney's Office 2005-present – attorney, Gill and Gill Memberships: American Bar Association Wisconsin Bar Association Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Worked in the Outagamie County DA's office and clerked for Federal Judge William Griesbach before going into private practice. In my current practice, my litigation efforts have focused on civil matters. I have defended matters at levels ranging from the administrative forum up and through the Federal District Court. In addition, I have also prosecuted matters at the administrative, State and Federal level. The litigations have been primarily employment related, including issues such as contract and discrimination matters. On occasion, I have also been involved in criminal defense work. However, said work has been a very minimal portion of my practice. Number of cases tried to verdict or judgment: 4; non-jury, 2; arbitration, 4+; administrative bodies, 40+ Cases on appeal: Aside from appeals involving Unemployment Compensation matters, there have been two cases which I played a significant role in the appellate process. Two most significant cases: In 2006, I served as the lead/co-counsel in Barbara Bigalke v. Neenah Foundry,... a case before the Honorable William C. Griesbach. The case involved allegations of a violation of an individual's rights under Title VII of the Civil Rights Act of 1964. The case was significant based upon the legal and factual issues, whereas, the argument of my client Neenah Foundry, was that the Plaintiff was an independent contractor as opposed to an employee, and therefore was not subject to the protections afforded by the Civil Rights Act of 1964. The court agreed with my client. The second case of significance was Kathleen Jawson v. Hoffmaster, Inc....This case involved an individual claiming that her rights had been denied under the Family Medical Leave Act (FMLA). As a result of the Company's denial of her FMLA rights, the Complainant in this case, Kathleen Jawson, was terminated. The significance of this case comes in the fact that through my firm's efforts, we were able to successfully right a wrong that had occurred to an individual. While there were other cases in which I and my firm have been able to assist those who have been aggrieved, in this instance, the case had to go though multiple hearings including an appeal to the Circuit Court for Manitowoc County to reach a favorable result. I was the primary brief writer on this case. All previous runs for office: None Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None All judicial or non-partisan candidates endorsed in the last six years: Supreme Court Justice David Prosser, Outagamie Circuit Judges Mark McGinnis, Nance Krueger, Michal Gage, and Mitchell Metropulos. Professional or civic organizations, volunteer activities, service in a church or synagogue, or any other activities or hobbies that could be relevant or helpful to consideration of the application: Make-a-Wish Foundation Valley Kids Foundation – volunteer Wisconsin Mock Trial Competition – volunteer Boys & Girls Clubs of the Fox Valley – volunteer Quotes: Why I want to be a judge – For as long as I can remember, the law has been a part of my life. My father has been practicing lawyer for over 35 years and likewise my grandfather before him was an attorney. It has been instilled in me that the law should be utilized in a fashion to help people. My father once told me that you need to take advantage of opportunities to help people when they come along because such opportunities don't come along every day. Since beginning my practice, I have tried to adhere to those values instilled in me by my father and grandfather. In this instance through my experience in the legal profession and the ability to surround myself with quality attorneys and judges, I have seen the good that can come from being part of the judiciary. While I feel very blessed and fortunate to be able to work in a practice with my family, I have also had a desire to maximize the amount of good I can do with my law degree. I believe that as a circuit court judge, I will have the opportunity to serve my community, the State of Wisconsin and to help individuals and positively influence lives, Thus, I feel that the opportunity to be able to help serve my community on a broader basis compels me to seek this appointment. "I believe the worst conduct of the Wisconsin State Supreme Court is to engage in judicial activism." – Outagamie Circuit Judge Gregory Gill Jr. Best or Worst U.S. or Wisconsin Supreme Court decision in the last 30 years
To label a single case as "the worst" is a near impossibility. What is an easier task, however, is to identify what I feel is the worst action of the Wisconsin State Supreme Court: I believe the worst conduct of the Wisconsin State Supreme Court is to engage in judicial activism. -Perhaps one case that exemplifies such conduct, as well as any other case in recent history, is that of Crystal Lake Cheese Factory v. The Labor and Industry Review Commission.... In this case, an individual was terminated based upon a Company's inability to accommodate a disability, which consisted of, among other things, the employee being resigned to a wheelchair. Prior to the injury, amongst other things, the employee was required to gather orders, perform administrative duties, weigh, label and box cheese, as well as other various assignments....Subsequent to the injury, the Plaintiff was rendered unable to perform several duties of her job which included lifting heavy boxes of cheese, or reaching cheese stored on a high shelf. Despite the fact that the Plaintiff was unable to perform many functions of the job, the Supreme Court nonetheless concluded that the Company was wrong in failing to accommodate the Plaintiff. The Court then went one step further and indicated that a reasonable accommodation would be to have job assignments shifted amongst other employees as a means to accommodate the employee. The Court then justified this position by manipulating previous decisions issued by LIRC. The net effect of the decision of the Supreme Court was to expand the law and create a new means of accommodating an individual with a disability. The accommodation necessitates that employers consider significantly modify job descriptions for injured and non-injured individuals. As noted by Justice Prosser in his dissent, "In all, LIRC' s interpretation of Sec. 111.34, as adopted by the majority, is highly questionable and imposes an unreasonable burden on Wisconsin businesses. Section 111.34 cannot be read to require that an applicant or an employee only be able to perform "some" or "most" of the necessary responsibilities of the job." It is decisions like this that usurp the function of the Legislature and reform acceptable statutory law. While this is certainly not the only example of judicial activism, this is clearly a case which exemplifies the types of judicial decisions which I believe represent the worst decisions issued by the Wisconsin State Supreme Court.  Cveykus Attorney Rick Cveykus and Outagamie Circuit Judge Greg Gill, Jr. are competing for the District III Court of Appeals seat being vacated by Judge Mark Seidl, who is not seeking re-election.
Election Day is April 6. Cveykus has been a lawyer with Cveykus Law Office since 2008 and is now managing partner. Gill was appointed to his post by former Gov. Scott Walker. He received attention for campaign donations he received from conservative Republican donors Richard Uihlein, and John Menard. He is running as a textualist and judicial conservative. WJI asked each of the candidates to answer a series of questions. Gill did not respond. Cveykus' answers are presented here as submitted. The questions asked are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments. Cveykus' resume is here and his campaign website is here. Why do you want to become a judge? I have spent the last 14 years of my life as an attorney helping people through some of the most difficult times in their lives. I’ve served as a legal advocate, professor at UW-Madison, mock trial teacher at the local high school, County Bar President, wills for veterans program partner, and board member with UW Alumni Scholarships and residential counseling services. I am currently managing partner at Cveykus Law in Wausau, where I have built a broad practice in criminal law, family law, and small claims. I’m running because we need and deserve judges that make their decisions based on legal arguments rather than politics. It is time to bring independence to our judiciary and serve all in northern Wisconsin. Honesty, fairness, and transparency are what I’m all about and I will bring those characteristics to the bench. This Court will set the standard on a woman’s access to healthcare, to clean water and air, to criminal justice reform, and this judge will be the one that delivers the deciding vote more often than not. I’m running because we need judges that care about all of Wisconsin, and will do all in my power to honor that commitment. Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way. The list is near impossible to address but the ones that strike the closest to home seem to be the ones that address equal access to justice. Here I would note a string of cases that all had a lasting impact, Romer v. Evans, 517 U.S. 620 (1996), Lawrence v. Texas, 539 U.S. 558 (2003), and Bostock v. Clayton County, 590 U.S. ___ (2020) . The issue at play in Romer was if Colorado could pass Amendment 2 which forbid any local government body from engaging in any action that would find homosexuality to be a protected class of citizens, the argument was that this did not take away any rights of homosexual citizens but was merely legislation to guarantee that they could not get any more special treatment than a other citizens would. The Court struck it down noting that the problem with the logic of the State was that the ability to petition your government for protected status was the item that was being removed. Basically if you are a non-suspect class in Denver, while it is true that you are not afforded special protection, you had the ability to make your case to the government that given the current circumstances the government should address that, whether it be based on sex, religion or nationality. What had been removed here was for the first time while any other group could petition their local government for the first time people of a single community would be removed from the ability to even request it. Note this was not an argument that they must get special treatment, no municipality was required to offer any, but simply that like every other citizen, you could not close their ability to petition their government and argue that protection was needed. Lawrence was an extension on this saying we should not make criminal laws solely based on the fact that you do not share the moral view of the majority, that criminal punishment requires more than moral distaste for your lifestyle and Bostock continued that protection into the workplace. Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way. Utah v. Strieff, 579 U.S. ___, 136 S. Ct. 2056 (2016), is a case that quickly comes to mind, not because of the far-reaching implications as applied, but because of the message it can send. Specifically the case was about the fact that if an officer seized you without an adequate legal basis, but after that illegal seizure they discover that you have a warrant for your arrest any evidence derived from that seizure will remain admissible. To some, this might seem fair and the thought would be you should just avoid having a warrant in the first place. However, the officer illegally detained the subject before they even knew about the warrant. Therefore, an officer would have an incentive to detain folks without cause because maybe they will get lucky and you will end up having a warrant. We are ill advised to set a reward structure that would encourage violations that chip away ever so slightly at the monumental promises of the Constitution. In my view, our justice system has rightfully given a monopoly on use of force to law enforcement, but the Court needs to be the one that sets guideposts on how that monopoly can rightfully be used within the limits of the Constitution. Describe your judicial philosophy. All lawyers start with the text of the Statute, and where it is not ambiguous it is our job only to apply it. However when a Judge starts by telling you they are only a strict constructionist they are likely lying to you to earn your vote. For example The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech,...” The Constitution makes no exception to that statement, yet I can’t walk up to you on the Street and say, “Give me your wallet or I will shoot you.” Quite often every judge has to take into account both historical understanding and legislative intent but it makes for a fine campaign line to act as if we do not. What it has devolved into is simply claiming any ruling you dislike being one that is evidence of an “Activist Judge'' on either side, with no intellectual honesty to the position. I want to do my best to be honest about my position that where the law is clear and unambiguous that it is a judge’s job to simply apply the law, and in most cases that is exactly where we must start. But there are thousands upon thousands of attorneys out there coming up with new arguments and new issues that may not have been addressed in the statute. When that occurs, candidates can either lie to you and claim it doesn’t exist and we simply apply the law like a computer or we can be honest and claim when those days come we have to look to historical understanding of the statute, to legislative intent, to analogy to similar issues, and to obtaining an equilibrium that addresses current day realities with the promises of liberty encapsulated in the Bill of Rights. The second one is harder to say and therefore harder to place on a campaign button, but in reality it is the honest answer that we should be educating our voters about rather than just hoping they never really call us on doing so. Next time you meet someone that claims to only be a strict constructionist ask them where in the First Amendment the ability to abridge, fighting words, or True Threats, or Obscenity, or incitement to Imminent lawless action, from the freedom of speech is spelled out in the document. Most times they will find a way to obfuscate rather than answer. We should call on our judges to be better and more honest than that. Describe the two most significant cases in which you were involved as either an attorney or a judicial officer. I was the lead attorney in State v. Bowers, is a case that addressed the implications of the current Wisconsin Misconduct in public office statute, in whether a Police Officer can be legally charged for violating a Sheriff Created employee handbook rule, and what action is in excess of an officers “legal authority” when there is no definition in the Statute. This has been a long, but absolutely fascinating case between the issues with the search, the Separation of Powers argument, the statutory construction, and the standard for an interlocutory appeal. I was also the defense attorney in the case of State v. Dreyfus was a major felony Jury Trial in Shawano County that addressed concerns with witness credibility and the intricacies of jury deliberations and keeping a clean record for appeal that will add complexity to a Jury Trial.  Dallet By Gretchen Schuldt
The Department of Corrections must turn over a database containing information about sex offenders that a defense lawyer contends could show the state has been overstating how likely sex offenders are to commit future sexual violence, the State Supreme Court ruled, 4-3, this week. Justice Rebecca Dallet's opinion for the majority recounts how far DOC officials went to block lawyers for Anthony Jendusa from getting the information. Among other things, the Department of Corrections' legal counsel twice advised its staff not to turn over a database containing information about state sex offenders, despite a subpoena and then a court order requiring the agency to do so, Dallet wrote. A DOC psychologist testified he failed for more than a year to open an email that could potentially undercut his evaluation methods. And a DOC research committee said Jendusa could have the information, but then never provided it. Dallet was joined in her opinion by Justices Ann Walsh Bradley, Brian Hagedorn, and Jill Karofsky. Justice Annette Ziegler dissented, joined by Justices Rebecca Grassl Bradley and Patience Rogensack. Ziegler said state statute prohibited Jendusa from having access to the database because "neither the State nor Jendusa claimed they would introduce the raw data at trial." Jendusa contends the database of Wisconsin offenders is key to demonstrating that Christopher Tyre, a DOC psychologist, used the wrong base from which to calculate the chances of repeated sexual violence. The lawyers contend that using a base of Wisconsin offenders, rather than Canadian and Danish offenders, in a risk assessment tool used by the state, could significantly reduce the reoffense likelihood scored by his client, Anthony James Jendusa. In fact, when Tyre finally gave a summary of the data in the email, the "preliminary (Wisconsin) base rate was roughly one-third of the base rate he relied on to predict Jendusa's recidivism risk," Dallet wrote. (Tyre testified in November 2018 that in addition to his regular DOC job, he had made about $120,000 from the state performing private evaluations for the state in other sex offender commitment cases, Jendusa's appellate lawyer, Assistant State Public Defender Dustin C. Haskell, said in a brief.) The risk assessments are critical in determining whether sex offenders should remain incarcerated under civil commitments after their prison terms end. A finding that the state has overstated the likelihood of reoffending could have a major impact on civil commitment proceedings for other sex offenders.  Gray Kenneth Gray was at a house where he sold cocaine when he took a silver gun from his pocket, pulled the trigger once, and killed a man.
It was Dec. 30, 1995. Gray was 14 years old. The victim was an adult drug dealer angry that young Gray was working in a Milwaukee neighborhood the man considered his own. Gray, still in prison, now is 40. He has been incarcerated for almost twice as many years as he was alive when he committed his crime. His 30-year sentence ends in 2026. He is hoping to be paroled before then. Here is what then-Assistant District Attorney Carol Kraft said in 1996 at Gray's sentencing for first-degree reckless homicide. Gray was 15. He, up until he became involved in the drug trafficking...by all the information that I had, wasn't the type of child who had involved himself in these kind of activities and who would have been expected or – I guess one would have predicted to become involved in the events that occurred that day.... Unlike so many people we see, who at the age he came to the criminal justice system have long rap sheets, have many contacts with the police, Mr. Gray was not one of those people. Mr. Gray also doesn't appear to have come from a family where this would have been expected. And I'm sure that this is probably difficult for his mother who has supported him through this as anyone. Gray's prison life hasn't been smooth. He's had dozens of disciplinary infractions, some of them serious. He's been transferred back and forth between institutions. But now, he says, he wants to get out and go to college, maybe get his pilot's license. He likes to write, and he wrote about his experiences for WJI. He talks about his mandatory release date in the piece below. That is a presumptive parole date that come two-thirds of the way through a prison sentence. The Department of Corrections, however, can decide to keep a person in its care beyond that date. *** By Kenneth Gray Here I sit, 4½ years past my mandatory release date (19 July 2016). This is after I've served 22 years of a 30-year sentence that was given to me at the age of 15 years old. The judge forecast I'd be released early, before 20-year mark MR set by legislation, based upon overcrowdedness of the prison as well as my age. However, the Wisconsin Parole Commission has had other ideas. When I was first locked up, after juvie and being waived into adult court, I was sent back to Juvie Hall because I was too young to be shipped to the Big House. There I spent 10 months in segregation because by law I was an "adult," yet couldn't be in the general population with other adults. Once I turned sweet 16, off to prison I went. I have committed 'violations of trust' against the community, its people, and my family with utter disregard for any consequence. And for that reason I'm on this bus, with this seeming only one-way ticket to prison. There were four of us all under the age of 21. We all possessed a certain level of trepidation. We were "fresh meat," first-timers like me. Others had small stints in juvie for a couple months, but this trip here we all "kissed the baby." Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. The case: State v. Decarlos K. Chambers Majority: Justice Annette Ziegler (17 pages) for a unanimous court. The upshot: Because we conclude that (Decarlos) Chambers' counsel never conceded his guilt during closing arguments, Chambers'...claim fails. Accordingly, we affirm.  Ziegler Background
On January 17, 2017, the State filed a criminal complaint against Chambers. The complaint alleged two counts. The first count alleged that Chambers committed first-degree reckless homicide with a dangerous weapon, as a party to a crime....The second count, possession of a firearm by an adjudicated delinquent, alleged that Chambers possessed a firearm despite being adjudicated delinquent of an act that would constitute a felony.... On August 14, 2017, Chambers' jury trial commenced....The State requested that the court instruct the jury as to the lesser-included offense of second-degree reckless homicide. Chambers did not object. Chambers' trial counsel requested time to discuss the proposed jury instructions with Chambers prior to the court finalizing those instructions. After a discussion off the record, Chambers' trial counsel confirmed that Chambers agreed with the proposed jury instructions, including the instruction for second-degree reckless homicide.... As part of her closing argument, Chambers' trial counsel (attorney Ann Bowe) stated that because "whoever shot [Kyle Weary]" did so "at night, in the dark, in the rain, a distance away," the jury "should consider" second-degree reckless homicide. She concluded the closing argument by insisting that because there was reasonable doubt based on the evidence, the jury "should find [Chambers] not guilty...." (The jury convicted Chambers on both counts. – WJI) On December 12, 2018, Chambers filed his motion seeking postconviction relief. In this motion, he claimed that his trial counsel conceded his guilt against his expressed intent to maintain absolute innocence, contrary to the new rule the United States Supreme Court announced in McCoy (v. Louisiana). Specifically, Chambers argued that when his trial counsel stated that the jury "should consider" second-degree reckless homicide, it was a concession of his guilt on the lesser-included offense. Because this error is structural, Chambers asserted that he must receive a new trial to remedy the error. The circuit court denied Chambers' postconviction motion, holding that Chambers' trial counsel never conceded his guilt at trial....  Nelson By Gretchen Schuldt Crime victims and witnesses at least 60 years old would able to give their testimony in criminal court cases ahead of the trial and possibly over the phone, under a bill approved by the state Senate. While some groups applauded the bill, Aaron Nelson, the president of a statewide lawyer's organization, said it is unconstitutional because allowing testimony by phone or video violates a defendant's right to confrontation. The bill has other flaws, as well, he said. The bill, Senate Bill 18, would require a judge, at the request of the prosecutor, to hear within 60 days the testimony of an "elder" victim or witness and to preserve it in case something happened to the person. "The ability to recall certain details is critical to the outcome of court cases," State Sen. Patrick Testin (R-Stevens Point), author of the bill, said in written testimony. "As degenerative brain diseases increase in senior populations, the system must be able to respond to the unique needs of an elderly victim's ability to testify." Under the bill, now pending in the Assembly, the defendant would be required to be present during the testimony and the victim or witness would be subject to cross-examination. The bill would allow the victim or witness to testify by phone or video if they have a good reason to do so, and would mandate that the recorded testimony be admissible against a defendant. It also also would require a judges to work to ensure a speedy trial "in order to minimize the length of time the elder person must endure the stress of the elder person's involvement in the proceeding," the bill says. But Nelson, head of the Wisconsin Association of Criminal Defense Lawyers, said the the bill is "certainly problematic." "The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony." "The good news is the 60-day limit could force judges to appoint lawyers for indigent defendants at county expense much sooner than they otherwise would," he said. "The defendants obviously have the right to counsel during this testimony." – Aaron Nelson, WACDL president If the State Public Defender's Office cannot find a lawyer for an indigent defendant, the judge in a case has the power to appoint a lawyer at county expense. Many judges do not want to do that because of the costs to the county, and defendants can sit in jail, unrepresented, for weeks or months. The early testimony and the defendant's constitutional right to a lawyer would force judges to make the appointments.
Nelson cited three other concerns about the bill in addition to whether it is constitutional – it grants older victims and witnesses a semi-right to a speedy trial, which may deprive the defense of time needed to investigate the case and prepare a case; it does not allow a defense lawyer the same right to file a motion to preserve testimony as it grants a prosecutor; and it mandates that the preserved testimony be admissible against a defendant, but does not do the same for testimony that is favorable to a defendant. "Some of these may be drafting issues, rather than ill intent," Nelson said, ""but they need to be fixed." Backers of the bill, in written testimony, said it would benefit the victims or witnesses. "Involvement in these types of court proceedings can be very stressful," said Janet Zander, advocacy and policy director for the Greater Wisconsin Agency on Aging Resources. "Court proceedings that drag on and have multiple continuances can create needless stress which can trigger trauma symptoms in both victims and witnesses." And Michael Bruhn, public policy director for the Alzheimer's Association - Wisconsin, said that "we have witnessed an increase in criminal defendants and their attorneys utilizing the court system to delay court proceedings. These delays are meant to prolong a criminal case until a victim's health deteriorates or a cognitive impairment progresses to the point that the victim is no longer able to testify against in the case." Evers proposes $45.8 million for Milwaukee juvenile facility; DOC capital budget totals $119 million2/26/2021  Evers By Gretchen Schuldt Gov. Tony Evers is proposing to spend $45.8 million on a new juvenile facility in Milwaukee, budget documents show. "The facility in this request will assist DOC (Department of Corrections) with working towards meeting the requirements of Act 185 and Act 8, which were created with the intent of eventually converting Lincoln Hills and Copper Lake Schools buildings into adult facilities," the proposed budget says. Lincoln Hills and Copper Lake are the state's secure juvenile prisons. The proposal is part of the proposed 2021-23 state capital budget. The governor recommended a total of $119.1 million in DOC capital spending. Milwaukee County last year held off on accepting $15.2 million in state funding to develop a secure residential center for juvenile offenders because the funding was inadequate. The county earlier sought $41.8 million from the state to increase the number of juvenile beds available. It later reduced the proposal to $26 million, and then $17.9 million. Even then, the county would have to kick in $2.7 million of its own funding. At the time he rejected the $15.2 million, County Executive David Crowley said that the funding gap and continuing operational costs "creates significant sustainability concerns,” according to the BizTimes. Crowley said Friday he was encouraged by the governor's general and capital budget proposals. The proposed youth facility would be about 59,000 square feet with "housing, food services, health services, education, counseling, vocational training, visitation, recreation, administrative services, and other supporting spaces for a population up to 32 juveniles," according to the budget proposal. It would employ about 70 people and cost $7.7 million per year to operate. Evers also rejected a $45.4 million funding request for a juvenile facility in Outagamie County.  Other DOC capital spending recommended by Evers include the projects listed below. $18.6 million for a new health services unit at Dodge Correctional Institution. Dodge is the prison system's intake facility and in fiscal 2019 there were 7,178 intakes; the prison's population is more than 1,600. Each new inmate requires a minimum of 3 HSU appointments, and some can require four to eight appointments. The existing 12,300-square-foot facility "is very congested," the proposed budget says. "There are no medical observation cells or negative pressure rooms. There are several shared areas, such as the treatment room is shared with ER. There are staff doing data entry for electronic medical records in the X-ray room because there is no space for them." The new HSU would add 36,558 square feet. Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. The case: Ted Ritter v. Ted Farrow Majority: Justice Jill Karofsky (24 pages), joined by Justices Rebecca Grassl Bradley, Rebecca Dallet, and Brian Hagedorn Dissent: Justice Patience Roggensack (24 pages) joined by Justices Ann Walsh Bradley and Annette Ziegler  Karofsky The Upshot It is a well-settled legal principle that trademarks and their associated goodwill pass with the sale of a business. Therefore, we conclude as a matter of law that: (1) the Association did not acquire the Bibs Resort marks in 1998; and (2) the Farrows became the exclusive owners of the Bibs Resort marks in 2006 when they purchased the resort management business from the Ritters. Consequently, since the circuit court did not apply the well-settled principles surrounding trademarks and trade names, we reverse the grant of summary judgment to the Ritters and the Association and remand to the circuit court .... Background The subjects of this case are a logo depicting a pair of red bib overalls with a handkerchief hanging out of the back pocket and the names "Bibs Resort" and "Bibs." These designations relate to a lakefront resort in St. Germain, Wisconsin, and we are asked to determine their ownership. The three parties involved in this case are: (1) Ted and Carolyn Ritter, original owners of Bibs Resort; (2) Tony and Arlyce Farrow, purchasers of the Ritters' resort management business; and (3) Bibs Resort Condominium, Inc., the condominium association at Bibs Resort ("Association"). The Farrows claim that they assumed ownership of the Bibs Resort marks when they purchased the Ritters' resort management business, and that the Ritters subsequently infringed on those marks. The Ritters and the Association disagree with the Farrows. The circuit court granted summary judgment to the Ritters and the Association.... The circuit court concluded that the Bibs Resort marks "became part of" the Association in 1998 when the resort was converted to a condominium form of ownership. Finding that no one exclusively owned the Bibs Resort marks after that conversion, the circuit court ruled that the Farrows could not have become exclusive owners of the marks when they purchased the Ritters' resort management business in 2006. The court of appeals affirmed on other grounds, ruling that the 1998 resort-to-condominium conversion resulted in the Ritters impliedly transferring the Bibs Resort marks to the Association. The court of appeals reasoned that because of that transfer, the Ritters no longer owned the marks and, as a result, could not have sold them to the Farrows in 2006.... *** In November 2008, unbeknownst to any of the other unit owners, the Farrows filed an "Application for Registration of Marks" with the Office of the Secretary of State of Wisconsin, seeking to register a "pair of red bibs with a kerchief sticking out of pocket" and the resort name of "Bibs." In February 2010, the Farrows filed another application, seeking to register the mark "Bibs Resort." Several months later, the Ritters filed an action against the Farrows which set in motion the decade of litigation that preceded this appeal. The Farrows counterclaimed with multiple causes of action, including trademark infringement. The circuit court eventually dismissed all of the Ritters' claims, and the case proceeded to trial on the Farrows' counterclaims.... The circuit court granted summary judgment to the Association and the Ritters...The circuit court concluded that: (1) "Bibs Resort" was a trade name; (2) the name Bibs Resort "became part of" the Association at the time of the 1998 conversion; (3) although there were disputed issues of fact as to whether the marks were transferred to the Farrows as part of the 2006 sale, that dispute was immaterial because the Ritters did not have exclusive ownership of the marks in 2006; and (4) because each individual condominium owner held rights to "Bibs Resort," no one held exclusive ownership. The Farrows appealed. The court of appeals affirmed the circuit court on different grounds, concluding that, in 1998, the Ritters impliedly transferred the name "Bibs Resort" to the Association when they converted their resort to a condominium form of ownership; consequently, the Ritters could not have transferred ownership of the name "Bibs Resort" to the Farrows in 2006.... The guts We begin by emphasizing that the Bibs Resort marks indicate the source of the provided goods or services. That is, the Bibs Resort marks represent the resort management services that the Ritters' business continuously provided from Bibs Resort's founding in 1986 until 2006.... Because the Ritters provided ongoing and uninterrupted resort services, returning customers were able to identify their services, and the associated goodwill, with the Bibs Resort marks. Having established this link between the Bibs Resort marks and the resort management services they symbolized, we turn to the Association's argument about the 1998 resort-to-condominium conversion. ... The Association asserts that the Bibs Resort marks were tied to the resort's real property and thus automatically transferred when the Ritters recorded the Declaration and converted the property to a condominium. This argument violates the longstanding principle that marks cannot exist separate and apart from the goodwill of the product or service they symbolize: the resort management services.... Even assuming, incorrectly, that the Bibs Resort marks can be separated from the resort management services they represent, there is no evidence that the Bibs Resort condominium's bylaws conferred on the Association the ability to own any items of intangible property and it is undisputed that the Association never provided goods or services in the resort management service industry.... The Ritters also signed a bill of sale that transferred the personal property and business equipment necessary to operate the resort management business to the Farrows. The parties confirmed the sale of the entirety of the Ritters' resort management business to the Farrows in subsequent documentary filings with the State. Indicative of selling their business to the Farrows, Ted and Carolyn Ritter changed their business name from "Bibs Resort, Inc." to "Ritter Enterprises, Inc...." Following the "old and clear rule, universally followed," the Bibs Resort marks and their associated goodwill passed from the Ritters to the Farrows in 2006 with the sale of the resort management business.... To summarize, the language in the 2006 documents clearly shows that the Ritters sold the Farrows the entirety of their resort management business, which included the associated goodwill and exclusive ownership of and rights to the Bibs Resort marks. The offer to purchase made explicit the Farrows' intention to purchase the goodwill that was inextricably associated with the resort management services. The bill of sale signed by the Ritters further indicates that the resort management business and related goodwill were transferred together in accordance with longstanding practice. The Report of Business Transfer filed by the Ritters and the joint letter the parties sent to the DOR subsequent to the sale provide even more evidence demonstrating the parties' intent to transfer the goodwill and trade names from the Ritters to the Farrows. Based on the ample evidence in the record and well-settled trademark and trade name law, the ownership of the Bibs Resort marks passed with the sale of the Ritters' resort management business in 2006.  The Dissent
The majority opinion errs when it fails to apply summary judgment methodology, which is the same for us as it is for the circuit court, and thereby ignores uncontested material facts developed during summary judgment. Those uncontested facts preclude Anthony and Arlyce Farrows' (the Farrows) claim for tradename or trademark infringement. The majority opinion compounds its error when it ignores the common law of Wisconsin in regard to what must be shown at summary judgment to make or defeat a prima facie claim of infringement of tradename or trademark and relies instead on federal case law that is grounded in the Lanham Act.... Susan Roth and Katie Kegel are defense lawyers running for the Milwaukee County Circuit Court Branch 3 bench being vacated by Clare Fiorenza, who is not seeking re-election. Election Day is April 6. Kegel, an assistant state public defender, received her law degree from Marquette University, where she now is an adjunct professor. Her resume is here. Roth, an attorney/partner in the Kohn Smith Roth law firm, also is a Marquette Law School graduate. Her resume is here. WJI asked each of the candidates to answer a series of questions. The answers are presented here as submitted. The questions asked are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments. Added bonus! The two candidates will discuss their positions and qualifications at the March 10 WJI Virtual Salon. The free Zoom event will be from noon to 1 p.m. Register here.
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The Wisconsin Justice Initiative Inc. does not endorse candidates for political office. The Wisconsin Justice Initiative Inc. is a 501(c)3 organization.
The Wisconsin Justice Initiative Inc. does not endorse candidates for political office. The Wisconsin Justice Initiative Inc. is a 501(c)3 organization.