A New Resolution for the New Year
The last decade of my career - eight as the elected district attorney in Waukesha County and two as Wisconsin Attorney general - has been dedicated to fighting the opioid and heroin epidemic in our state. As my top priority at the Wisconsin Department of Justice, this fight has infiltrated all areas of the agency, from drug investigations to law enforcement training to legislative changes. The work you are probably most familiar with, though, is the Dose of Reality campaign, which has focused on breaking down myths surrounding prescription painkiller and heroin abuse. Through the end of 2016 and into 2017, you are likely to see new messages from DOJ both online and on television.
One myth DOJ is challenging, is the myth that prescription drugs are totally safe because they are prescribed by a doctor. Wisconsinites need to be aware of how prescription painkillers can affect the body, especially if a person is planning to get behind the wheel of a car. In 2015, 149 people were killed in drug-related traffic crashes in Wisconsin. This is nearly a 200 percent increase over the previous decade. Even though drug-related traffic crash deaths are fewer than alcohol-related traffic crash deaths, driving under the influence of drugs is just as dangerous as driving under the influence of alcohol.
We’ve teamed up with Department of Transportation (DOT) Secretary Mark Gottlieb to release a PSA, titled “Drugged Driving”, which compares the dangers of driving under the influence of prescription drugs to the dangers of driving under the influence of alcohol. This PSA brings together Wisconsin DOT’s Zero in Wisconsin effort to prevent traffic crashes with the DOJ Dose of Reality campaign to combat prescription drug abuse.
Another new PSA you may see online, titled “Wrong Path,” warns Wisconsinites about the dangerous link between prescription painkillers and heroin through a fictional, yet realistic, account of one young man’s journey from sports injury to drug overdose, a reality faced by many people across the nation. As we know, prescription painkillers are not completely safe and may lead to unintended consequences. The dose of reality is four out of five heroin users started by abusing prescription painkillers
EPA Rule Unfairly Harms Wisconsin, AG Schimel Leads Multi-State Legal Action
Earlier this year, the outgoing Environmental Protection Agency (EPA) Administrator Gina McCarthy signed the final Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSPAR II). In Wisconsin v. EPA, Wisconsin is leading the challenge to this rule in the United States Court of Appeals for the District of Columbia Circuit on the ground that as an “upwind” state, Wisconsin power plant sources contribute very little nitrous oxide to “downwind” states and also on the ground that the EPA has admitted the rule, as written, would fail to ensure Wisconsin is in compliance with the 2008 Ozone NAAQS in any event.
Court Protects Victims from Disclosing Infant’s Medical Records
The Wisconsin Court of Appeals affirmed the decision of the Dane County Circuit Court in State v. Hancock, sealing the medical record exhibits of an infant homicide victim. Jennifer Hancock, the victim’s babysitter, was convicted in 2009 of first degree reckless homicide in the infant’s death.
State law generally provides that records in a clerk of court’s office shall be open for public examination. The Medill Justice Project of the Northwestern University Journalism School sought the infant victim’s medical records as part of its research into “shaken baby syndrome” convictions. The State and the victim’s family opposed the disclosure of the records. The circuit court sided with the State and the family, and refused to allow the school access to the records.
The school appealed the circuit court’s decision, and the court of appeals reversed the decision. On remand, the circuit court revisited the question and again sealed the exhibits and refused access to the infant’s medical records on the following grounds:
- Under the victims’ rights statute, victims of crime are entitled to be treated with dignity, respect, courtesy, and sensitivity. Here, the infant victim’s parents opposed disclosure. At the time of trial, the mother authorized access for one year only and for use in the prosecution of Jennifer Hancock only.
- The protection of the privacy of child crime victims justifies closing the exhibits.
- The school failed to provide any reason that sealing the exhibits was “detrimental to any purpose [the school] may have for seeking them.” To the extent anything in the records was relevant to any trial findings of interest to the school, those aspects of the records were discussed and disclosed at trial.
The school appealed this decision, but the court of appeals upheld the circuit court’s decision.
Ask the Office of Open Government: Public Meeting Notices
Q: What type of notice is required for a meeting of a governmental body?
A: The Wisconsin Open Meetings Law requires that public notice of every meeting of a governmental body must be provided at least 24 hours prior to the meeting. If, for good cause, such notice is impossible or impractical, shorter notice may be given, but in no case may the notice be less than two hours in advance of the meeting. (There is little guidance as to what constitutes “good cause”; like the entire open meetings law, this provision should be interpreted in favor of providing the public with the fullest and most complete information.) The law requires separate public notice for each meeting at a time and date “reasonably proximate to the time and date of the meeting.”
A governmental body’s chief presiding officer or his or her designee must provide notice to the following: the public; to news media who filed a written request for such notice; and to the official newspaper, or if there is no official newspaper, to a news medium likely to give notice in the area. Other statutes, other than the open meetings law, may also establish notice requirements for governmental body meetings.
The notice must provide the time, date, place, and subject matter of the meeting. The notice must be written such that it is reasonably likely to apprise members of the public and the news media of this information. Governmental bodies often provide notice to the public by paid publication or posting in one or more places likely to be seen by the public. Although not specifically required by the open meetings law, the Department of Justice has long recommended that a governmental body post in three separate physical locations. Posting notice on the governmental body’s website may be used as a supplement—but not a substitute—to the law’s notice requirements.
It is important to note that notice to the public and notice to a news medium are separate requirements. A governmental body is not required to pay for, and the news medium is not required to publish, notice provided to the news medium. However, if a governmental body seeks to provide notice to the public by paid publication in a news medium, the chief presiding officer must ensure that the notice is published.
Court of Appeals Sides with State in Capitol Protests Case
Recently, the Wisconsin Court of Appeals reversed the decision of the Dane County Circuit Court in Jeremy Ryan, et al. v. Charles Tubbs, et al. This case is one of many that arose from the 2011 Capitol protests, which challenged the State’s rules regarding large signs in the Capitol rotunda.
During the protests, the plaintiffs displayed large signs on the first floor of the Capitol without obtaining prior written authority from the Wisconsin Department of Administration. The defendants, State Capitol Police Chief Tubbs and three State Capitol police officers, issued citations to the plaintiffs and confiscated their signs.
Plaintiffs filed a civil rights complaint under 42 U.S.C. § 1983 against the defendants in the Dane County Circuit Court. The state moved for summary judgment, but was denied. The case went to a bench trial and the Circuit Court ruled for the plaintiffs. On appeal, the Wisconsin Court of Appeals reversed the Circuit Court’s denial of the State’s summary judgment motion.
The Court of Appeals concluded State employees were entitled to qualified immunity because protesters failed to establish the state violated a “clearly established” constitutional right to hang large signs in the rotunda without a permit.
Wisconsin Native American Drug and Gang Initiative Task Force Recognized Nationally
The Wisconsin Department of Justice is excited to announce the Wisconsin Native American Drug and Gang Initiative (NADGI) Task Force has received the 2016 Honoring Nations award from the Harvard Project on American Indian Economic Development (HPAIED). NAGDI was given the award and recognized for its excellence in tribal governance at the National Congress of American Indians (NCAI) 73rd Convention in Phoenix, AZ.
“After more than 25 years in law enforcement, I know that communication and collaboration across enforcement jurisdictions is critical to keeping communities safe,” said Attorney General Brad Schimel. “NADGI’s success in facilitating collaboration between the state and tribal governments ensures our Native American communities are safe and healthy. Wisconsin is fortunate to have a national model for tribal governance right here in our state.”
Wisconsin DOJ Fusion Center Team Recognized as Best in Nation
Two Wisconsin Department of Justice team members were recently recognized by the National Fusion Center Association at an award ceremony in Washington, D.C. Special Agent in Charge Christopher DeRemer and Criminal Analyst Supervisor Samantha Korta were awarded Fusion Center Director of the Year and Fusion Center Employee of the Year, respectively.
The Wisconsin Statewide Intelligence Center (WSIC), also known as the Fusion Center, is operated by the Wisconsin Department of Justice - Division of Criminal Investigation (DCI). WSIC provides tactical, operational, and strategic intelligence support to local, state, federal and tribal law enforcement; emergency management; fire service; public health; military and private sector partners. The Fusion Center also works with local and statewide law enforcement to collect and analyze information about criminal activity that assists in preventing and solving crimes. Further, the Fusion Center staff coordinates Wisconsin’s Amber Alerts and Silver Alerts that help locate missing children, seniors, and vulnerable adults.
“The Wisconsin Department of Justice attracts and employs our state’s and nation’s top talent,” said Attorney General Brad Schimel. “Both Chris and Sam exemplify the top-notch services and expertise DOJ delivers to our law enforcement partners and Wisconsin citizens every day. The national recognition Chris, Sam, and their colleagues received is well-deserved and makes me proud to lead DOJ.”
Oral Arguments in the Wisconsin Supreme Court
State v. Suriano
The issue before the Wisconsin Supreme Court is when and how a criminal defendant forfeits his Sixth Amendment right to counsel. In this case, the Door County Sheriff’s Department served an inspection warrant on Suriano to allow sanitations officials to access his yard to take a soil sample. While the officers were there and officials took soil samples, Suriano approached them in a threatening manner while grabbing something from inside his coat pocket, and was restrained and arrested by the officers for resisting or obstructing an officer. During the course of the trial, Suriano went through multiple defense attorneys, each assigned to him by the court and each withdrawing because of Suriano’s behavior. After the third assigned defense attorney withdrew, the court informed Suriano that he would no longer be assigned an attorney and, if he wanted representation, would need to hire his own counsel. The question in this case is whether Suriano forfeited his right to counsel through his actions.
The State argues the trial court and court of appeals were correct in holding that Suriano forfeited his right to counsel because Suriano’s actions were manipulative and disruptive to the progression of the case, and because he continuously displayed unreasonable dissatisfaction with each of his assigned attorneys, Suriano forfeited his right to counsel under state law. The Supreme Court will decide if Suriano did forfeit his right to counsel, and whether the trial court followed proper procedure in finding that Suriano had forfeited his right to counsel and refusing to assign him another attorney. This case was argued by Deputy Solicitor General Kevin LeRoy.
State v. Zimbal
In State v. Edward J. Zimbal, the defendant prevailed on an earlier appeal and made an oral request for the trial judge to recuse himself when the case returned to the circuit court. The Wisconsin Supreme Court will decide whether Zimbal’s oral request was sufficient to invoke his statutory right to substitution of judge pursuant to Wis. Stat. § 971.20(7), which specifies that substitution requests must be filed within twenty days of remittitur. The Court will also determine whether the written substitution request that Zimbal filed after the statutory deadline should be treated as timely because a delay in the appointment of Zimbal’s new trial attorney prevented him from filing the request before the deadline expired. This case was argued by Assistant Attorney General Nancy Noet.
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