Walker's judges: Daniel J. Borowski

"Walker's judges" is our effort to present information about Gov. Walker's appointees to the bench. The information is taken from the appointees' own judgeship applications. 

​Name: Daniel J. Borowski

Appointed to: Sheboygan County Circuit Court
Appointment date: May 27, 2016 (Elected to a six-year term in April 2017)

​Education:
             Law School – University of Wisconsin-Madison 
             Undergrad – University of Wisconsin-Milwaukee
             High School – Not listed

Legal employment:
             April 2015 - present – von Briesen & Roper S.C., Milwaukee
             2009 – April 2015 Phillips Borowski, S.C. (Centofanti & Phillips S.C.), Mequon
           
​ Memberships:
          Wisconsin State Courts
           Wisconsin Eastern and Western District Federal Courts
           Federal Court of the Western District of Michigan
           Seventh Circuit Court of Appeals
           Wisconsin Bar Association
           Milwaukee County Bar Association
           Sheboygan County Bar Association


Legal experience as an advocate in criminal litigation, civil litigation, administrative proceedings: Primarily represented businesses, employers and insurance companies in commercial contract, employment, construction, tort, insurance coverage and constitutional litigation. Civil litigation practice focuses on representing municipal employers and school districts. Represented clients before the Equal Employment Opportunity Commission/Wisconsin Equal Rights Division, the Wisconsin Employment Relations Commission and the Wisconsin Department of Employee Trust Funds as well as state and federal trial and appellate courts. 

I have significant experience in handling appeals before the Wisconsin Court of Appeals, the Wisconsin Supreme Court and the Seventh Circuit Court of Appeal. I participated in oral argument before the Wisconsin Supreme Court and Seventh Circuit.

Number of cases tried to verdict or judgment: Jury, 9; non-jury, 1; arbitration, 4; administrative bodies (no number given).

Cases on appeal: 

I have litigated and/or assisted in litigating several matters on appeal before Wisconsin state and federal courts. I have been primarily responsible for eight of those appeals, some of which are currently pending decision.

List and describe the two most significant cases in which you were involved: 

(1)  Wisconsin Professional Police Assn., Inc. v. Wisconsin Counties Assn. 2014 WI App 106, 357 Wis.2d 687, 855 N.W.2d 715.
 
This is a case in which I was primarily responsible for developing the strategy on appeal and drafting the response brief on behalf of the Wisconsin Counties Association. In this case, the plaintiff was attempting to use the decision of the Wisconsin Supreme Court in State v. Beaver Dam Area Dev. Corp., 2008 WI 90, ¶ 28, 312 Wis.2d 84, 752 N.W.2d 295 to extend the scope of entities which fall within the definition of an "authority" subject to the requirements of the Public Records Law. In so doing, the plaintiff urged the Court of Appeals to adopt a broad definition of the term "quasi-governmental corporation" (a "quasi-governmental corporation" is one of the entities which falls within the definition of an "authority" under the Public Records Law) which would bring non- corporate entities, such as an association of counties, within the scope of the law based on the association's connection to local government.
 
The Court of Appeals rejected the plaintiff's invitation to extend the scope of the Public Records Law and ruled that associations of governmental bodies, like the WCA, do not fall within the definition of a "quasi-governmental corporation" and therefore, are not "authorities" subject to the Public Records Law. In reaching its decision, the Court reasoned that because associations do not meet the definition of a "corporation" under the law, they could not be considered a "quasi-governmental corporation" regardless of any affiliation or connection they may have to local governments. The Court reasoned that to hold that the term “governmental or quasi-governmental corporation” includes an entity that is not a corporation would effectively rewrite the statute which is the responsibility of the legislature, not the courts.
 
The Court of Appeals' decision is significant for a variety of reasons, the most important of which is that the Court properly refused to expand the scope of the Public Records Law based on a broad reading of the term "quasi- governmental corporation" and, instead, left the decision of whether to bring associations, such as the WCA, within the Public Records Law to the legislature. The decision appropriately recognizes the role of the legislature in writing the law and the role of courts in applying the law as written. Any other result would have inappropriately imposed the burdens of the Public Records Law on an entity to which the legislature chose not to apply the law.
  
(2)  In the Matter of the Petition of Adams County, et.al. (declaratory petition before the Wisconsin Employment Relations Commission).
 
This is an action in which I shared responsibility for developing strategy and was primarily responsible for drafting the statement in support of declaratory relief which was filed with the WERC. This matter involved a petition for declaratory relief under Wis. Stat. §§ 111.70(4)(b) and 227.41(1) filed on behalf of thirty-five counties following Judge Colas' decision invalidating several provisions of Act 10 on constitutional grounds. The purpose of the petition was to request the WERC to declare that the Colas decision was not binding on local governments outside of Dane County and, in the event it was, to have the WERC determine that local governments were only required to bargain "total base wages" with general municipal employees as otherwise provided in Act 10.
 
This action was significant because it protected local governments from the potential adverse impacts of the Colas decision until that decision could be addressed by higher courts on appeal. Employee unions were demanding local governments restore their pre-Act 10 wages, hours and conditions of employment, collectively bargain under pre-Act 10 rules, and were threatening to sue local governments. At the same time, local governments were required to operate under the reduced shared revenues and levy limits which accompanied Act 10. The declaratory petition effectively stayed the actions brought against our local government clients until such time as review of the Colas decision was complete.

(3)  In the Matter of Waushara County EMS.
 
This matter began as an employment dispute between the County and the International Association of Fire Fighters (IAFF). The dispute arose over the conduct and level of care provided by a paramedic on a critical care call and the appropriate discipline, if any, that should result. During the course of the investigation, various issues were identified in the emergency medical service (EMS) operation that went beyond the employee's conduct and extended to its overall management and operation. Over the course of several months, I worked closely with the County's Administrative Coordinator, representatives of the IAFF, EMS medical directors and experts in addressing the issues identified in the investigation. Through collaboration with all of these interests, the County was able to significantly improve EMS service delivery to its citizens.
 
This case (and series of matters) was important on a number of levels. Initially, it is reflective of how, as a management lawyer, it is critical to look beyond the disciplinary issue at hand to determine if there are greater systemic issues that need to be addressed. By taking this approach in advocating on behalf of my client, I was able not only to address the immediate performance issue, but also, to work closely with others to enhance the County's EMS management, operation and services.
 
The second reason this case is important is that it reflects the benefit of working collaboratively in matters related to public safety. This matter could have started and ended as a "winner take all" battle between employer and employee interests. However, by virtue of all parties realizing the bigger picture, a much more positive result was achieved. The Waushara County result is cited by the County and the IAFF as a success story.
 
All runs for elective office: Not applicable.
 
Involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: No.
 
Judicial or non-partisan candidates that you have publicly endorsed in the last six years: Not applicable.

Describe any additional involvement in 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 your application.

Over the course of the past six years, I spent the majority of my time managing and growing the law firm which I owned with my business partner, Phillips Borowski, S.C.. As a result, my contributions to organizations have been primarily treasure as opposed to time. I am a regular contributor to many charities including St. Jude's Children's Hospital, Wounded Warriors and the Special Olympics. My family and I are members of St. John the Baptist Catholic Church in Plymouth, Wisconsin. 

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If a judge has doubts regarding the law, he or she should seek out the answers before ruling. – Sheboygan County Circuit Judge Daniel J. Borowski

Describe any courses on law that you have taught or lectures you have given at bar association conferences, law school forums, or continuing legal education programs.
I am a regular speaker for the Wisconsin Counties Association at its annual
conference and educational seminars. The topics range from things such as social media, wage and hour laws, pay for performance programs, managing employee benefits, open meetings and public records and employee evaluations. I have also spoken on a variety of legal issues at various school conferences sponsored by the Wisconsin Association of School Business Officials, the Wisconsin Association of School Boards and CESA 7. In addition, I have given presentations on employment and wage and hour issues to the Wisconsin Association of County Corporation Counsels. the Wisconsin County Highway Association and the International Association of Fire Fighters.
 
Describe any other speeches or lectures you have given.
Following Act 10, I gave numerous educational presentations to county governments and school districts on Act 10 and its impact on operations, labor and employment and personnel issues. Phillips Borowski S.C. partnered with Wisconsin County Mutual Insurance Company in developing a consortium of more than thirty-five counties related to Act 10 and issues associated with implementation of the law. I often lectured at these events. I also speak frequently to individual county governments on operational, labor and employment, personnel and public records/open meetings issues.
 
Describe any significant pro bono legal work you have performed in your legal career: Not applicable

Quotes:

Why I want to be a judge – I want to become a judge in order to serve the public. Our system of justice does not succeed without legal professionals who are willing to forego their private interests for the good of the overall system. I have been successful in private practice and gained significant knowledge, experience and expertise in a number of areas of the law as a result of my work. It is now time to give back to the system that has served me so well.
 
I also want to become a judge because I want to ensure that the law is enforced as written by the legislature and that justice is done in all matters, whether criminal or civil, consistent with legislative intent. Through my more than twenty-five years of practicing law, I have gained a unique understanding and appreciation of the practice   of law and the responsibility that lawyers have to uphold the law. I have also gained a thorough understanding of how the law is written and the policies reflected in the law. I now seek to apply that knowledge and experience in serving as a judge.

Best United States or Wisconsin Supreme Court opinions in the last thirty years – Kyllo v. U.S. (2001)
 
In this case, the Court ruled that an investigator's use of thermal imaging to detect potential criminal activity in a home constituted a search of the residence which could not be conducted without a warrant. The issue before the Court was "what limits there are upon this power of technology to shrink the realm of guaranteed privacy" under the Fourth Amendment. Justice Scalia, writing for the majority, ruled that where the government uses surveillance devices that are not in general public use to obtain information regarding activities occurring in a private residence that would previously not have been discovered without a physical search, such surveillance constitutes a “search” under the Fourth Amendment and cannot be conducted without a warrant.
 
This decision is one of the Court's best because it upholds the right of persons under the Fourth Amendment to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" notwithstanding advances in technology. In finding that the thermal technology utilized by law enforcement constituted a search of the residence, the Court preserved the "degree of privacy against government that existed when the Fourth Amendment was adopted."
 
The Court's adherence to the plain language and intent of the Fourth Amendment protects citizens from unnecessary and unreasonable governmental intrusion into their homes through the use of advanced technology. Although the imaging device used in the case detected unlawful activity on the part of the defendant in growing marijuana in his home, the imaging could just as easily have been utilized to learn of the lawful, intimate activities of citizens. This is the very type of search or intrusion into the homes of citizens which the Fourth Amendment protects against. As noted by Justice Scalia, "in the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes."
 
In identifying this case as one of the best decisions of the United States Supreme Court, I am cognizant of the need to allow law enforcement to utilize new technologies in detecting criminal activity. However, the advent of new technologies is not a rationale for narrowing the Fourth Amendment rights of citizens to be secure and private in their homes as intended by our founding fathers. The Court's decision in Kyllo properly preserves and maintains the rights guaranteed by the Constitution.
 
​Worst United States or Wisconsin Supreme Court opinions in the last thirty years – Arizona State Legislature v. Arizona Independent Redistricting (2015) 
 
In this case, the Arizona voters passed Proposition 106, which amended the state constitution to remove the congressional redistricting power from the legislature and vest it in the newly created, and unelected, Independent Redistricting Commission (IRC). Justice Ginsberg, writing for the majority, held that Proposition 106 did not violate the Elections Clause of the United States Constitution notwithstanding the fact that the Elections Clause expressly provides that the "Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof…."
 
The decision is one of the Court's worst because the Court effectively rewrote the Constitution in order to achieve a result plainly not allowed or contemplated by the Elections Clause--the delegation of responsibility for redistricting to an unelected independent commission. To achieve this end, the Court read the word "Legislature" in the Elections Clause to mean "the people" thereby enabling the electorate in Arizona to propose and pass a referendum reassigning the responsibility for redistricting from the state legislature to the commission. While some may agree with the wisdom of attempting to remove politics from the redistricting process by assigning redistricting to an independent commission, the end in this case does not support the means. The Court's willingness to rewrite the Constitution represents judicial legislation which undercuts the very foundation of a government based on the separation of powers.
 
 Judicial philosophy –
My judicial philosophy is a simple one. A judge must understand, respect and operate within our system of government consistent with the separation of powers. The legislative branch makes the law; the executive branch implements the law; the judicial branch interprets the law as written and decides disputes based on the law.
 
A circuit court judge is entrusted to render the right decision consistent with the law as enacted by the legislature. The appropriate exercise of that trust promotes predictability in the system of justice and decisions that are in accordance with the rule of law. When a judge deviates from interpreting the law as written and subsumes the role of the legislature in order to achieve his or her own form of "justice", the judge breaches the trust placed in him or her, exceeds his or her authority and undermines the foundation of the legal system.
 
A judge can exercise discretion in addressing an issue before him or her, but that discretion must be at all times exercised within the permissible limits of the law. In many instances, the legislature provides judges with flexibility to address special cases thereby allowing a judge to achieve "justice." However, where the legislature has chosen not to provide that flexibility or to provide less flexibility than a judge desires, a judge must not rewrite the law.
 
Judges also have an obligation to be well-prepared so as to ensure that any decision is based on the law in light of the facts of the case. This is for what the public pays and what the public should expect from the judiciary. If a judge has doubts regarding the law, he or she should seek out the answers before ruling. Again, a well researched and informed decision promotes consistency and predictability of results which are the harbingers of our system of justice.