Dane County's DAIS held an Oct. 1 rally for Domestic Violence Awareness Month. (Henry Redman | Wisconsin Examiner)

A report released Thursday from Dane County’s Domestic Abuse Intervention Services (DAIS) found that Dane County judges grant restraining orders against perpetrators of intimate partner violence in 34% of cases. 

The report found that even when a judge grants a restraining order, it is often not for the amount of time requested by the victim — despite state law requiring that the order be for the length of time requested by the petitioner. 

State law allows judges to impose restraining orders on domestic abusers for up to four years in most cases, and up to 10 years when it can be proven the abuser is especially dangerous. But in a handful of cases, the report found, a judge granted restraining orders for only two years to allow a “cooling off period” for the people involved despite “serious lethality concerns testified to in the hearing.”

Kianna Hanson, the legal advocacy program manager at DAIS, said at an event announcing the report’s findings Thursday morning that the “cooling off period” is a myth and that judges should follow the law. 

“The fallacy of the cooling off period, which some judges have cited as a reason for choosing to grant an injunction from less time than the petitioner has requested, which in domestic abuse injunction goes against [state law],” Hanson said. “This mythology around domestic abuse cases is harmful because it suggests that domestic abuse could be the result of anger or not being able to control one’s emotion, when in reality, domestic violence is most often a conscious choice that is rooted in gaining power and control over one’s partner.”

The report was completed by a team from DAIS and other community organizations to observe more than 800 hearings in Dane County Circuit Court from April 2023 to April 2024. At the Thursday morning event, Wisconsin Supreme Court Justice Jill Karofsky said the report was a step toward trying to make Wisconsin’s legal system a better place for everyone involved in it. 

“What if the legal system were different? What if the legal system were the vehicle for healing and for change?” she said. “What if people left the legal system in a better place than where they entered, and I mean all of us. I mean judges and attorneys and witnesses and court reporters and victims and defendants and plaintiffs and bailiffs and advocates. What if we left work every day feeling energized and satiated and nourished instead of stressed out, depressed and exhausted, and what if the legal system itself helped us get to a better place?” 

The report found that in the vast majority of injunction hearings, 87%, the victim seeking the restraining order was there pro se, meaning they were representing themself. Just 15% of petitioners had support in court from organizations such as DAIS, who have employees who serve as court advocates to help victims navigate the legal process (but aren’t attorneys and can’t provide legal advice). 

Representation from an attorney or support from a legal advocate vastly increased the chances of a restraining order being granted, the court found. When acting on their own, petitioners had injunctions granted in 29% of cases but when assisted by an attorney or advocate, injunctions were granted 62% of the time — meaning representation increased the chances of successfully obtaining a restraining order by 114%. 

Hanson told the Wisconsin Examiner after Thursday’s event that DAIS would be able to handle more restraining order cases under its legal advocacy program, saying that because the issuance of a restraining order can be a life-or-death decision for an abuse victim, the organization would prioritize those cases. 

Domestic abuse organizations across the state face critical funding pressures after a steep decline in federal money they receive hit this fall. Advocates have warned those funding cuts could strain resources for organizations like DAIS across the state. 

The report also notes a number of comments court observers saw judges make during hearings in these cases that were interpreted as minimizing abuse, treating people of color differently and misstating the law. 

One judge, according to the report, denied an injunction over harassment, stating that he was doing so “because unwanted touching, kissing, or harassing text messages demanding explicit photos is not sexual assault,” despite state law saying it is. 

The judges are quoted anonymously in the report but DAIS staff said at Thursday’s event that in the organization’s next version of the report, it will attribute the quotes. 

Dane County Judge Julie Genovese, in attendance at the event, said during a question and answer period that she doesn’t think naming the judges will be helpful — even though the comments were made on the record in open court. 

“I’d like to say on behalf of the judges, that it would be a very helpful thing for somebody to come and present to the judges at a judge’s meeting, rather than we’re going to just identify you on our next report, to come to the judges discuss with them what are the issues, offer the training or the resources, rather than just do it in this form,” Genovese said.

The seven members of the Wisconsin Supreme Court hear oral arguments. (Henry Redman | Wisconsin Examiner)

The Wisconsin Supreme Court heard oral arguments Monday morning in a lawsuit over Wisconsin Elections Commission (WEC) Administrator Meagan Wolfe’s ability to remain in her post. 

Several times during the arguments, justices and attorneys described the situation as “absurd” and “bizarre” as the Court is being asked to deal with the ramifications of a divided state government that has frequently deadlocked over executive appointments to boards and commissions and the Republican-held Senate’s confirmation of those appointees. 

Two years ago, the Court, at the time controlled by a conservative majority, ruled that Frederick Prehn, a Republican appointee to the state’s Natural Resources Board, did not have to leave his post at the end of his term — even though Democratic Gov. Tony Evers had nominated his replacement. 

The Court found that until the Senate — whose GOP leaders were collaborating with Prehn to remain in the seat in an effort to influence policy decisions over wolf hunting and water quality — confirmed his replacement, state law allowed Prehn to remain on the board as a holdover. 

In the summer of 2023, Wolfe’s initial four-year term as WEC administrator expired and Senate Republicans, influenced by the three previous years of constant Republican attacks on the state’s election administration, said they would not confirm her to a second term. 

The three Democrats on the commission, in an effort to shield Wolfe from the Senate, abstained from a vote to reappoint her while the three Republicans on the commission voted to nominate her again. State law requires a majority of the six member body to vote in favor of an administrator’s nomination, however, meaning the nomination wasn’t officially advanced to the Senate for a vote. 

But the Senate acted anyway, voting against Wolfe’s appointment. Democratic Attorney General Josh Kaul immediately filed a lawsuit arguing that under the precedent Republicans set in the Prehn decision, Wolfe is able to remain in her position as a holdover. 

At the circuit court level, Republicans admitted that the Senate vote to remove Wolfe was “symbolic.” But after a Dane County judge ruled in Wolfe’s favor, the GOP leaders appealed the decision to the Supreme Court. 

While neither side in the Wolfe case argued for overturning the Prehn precedent, the arguments put Republicans in the position of arguing against principles they had themselves fought for in the earlier case — only this time in front of a Court held by a liberal majority. 

Misha Tseytlin, the attorney for the Senate, argued that the statute that guides the commission’s authority to appoint an administrator creates “an affirmative duty,” and that the commission must nominate a new administrator when the four year term expires. He said that if the law doesn’t require WEC to act, unelected officials can shield the administrator from the elected Senate indefinitely. 

“Whatever level of absurdity one wants to put on the Prehn situation, whether it’s zero or 100, this one’s orders of magnitude more,” Tseytlin said. “There you had a traditional constitutional standoff between the governor and the Senate. They didn’t agree with the appointment, that’s resolved in the holdover. Here we have three, essentially bureaucrats, who have no constitutional status, holding the chief election officer appointment hostage away from the people.” 

But Justice Jill Karofsky questioned if this outcome simply forced the Republicans in the Senate to deal with the consequences of a legal interpretation they previously asked for. 

“You are trying to thread a needle here that has no eye,” Karofsky said. “Six of the seven of us sat in this courtroom two years ago when your client insisted that Fred Prehn should be able to retain his position on the DNR board, even though his term had expired and your client won. This is a case of careful what you wish for, isn’t it? Now the Legislature is here two years later, demanding that Meagan Wolfe must vacate her position.” 

“It seems to me, this has little to do with what the law actually says, and far more to do with who is in these positions,” she continued. “If the Legislature favors someone, they stay. If they don’t, they must go. Does that sound like the rule of law to you?” 

Assistant Attorney General Charlotte Gibson, the Department of Justice lawyer arguing on behalf of Wolfe, said that the statute that gives the commission the authority to appoint administrators does not require it to act when the administrator’s term expires. The administrator, she said, becomes a holdover appointee and serves at the will of the commission, who can fire her at any time. 

“[Wolfe’s] role is not a part-time policymaking position like the [Natural Resources] board people,” Gibson said. “This is an intense, full-time job requiring expertise and experience, and it just doesn’t work if there are frequent changes in personnel and sudden vacancies … but if an administrator is underperforming, the Commission’s right there on the ground with her. They’re going to see that, and regardless of whether they’re Republicans or Democrats, they’re going to coalesce and bring in an administrator who can do the job.”

Justice Jill Karofsky appeared immediately opposed to attorney Matthew Thome’s proposed interpretation Wisconsin's 1849 law with regard to abortion. (Screenshot via Wiseye)

Several of the Wisconsin Supreme Court liberal justices appeared opposed to the enforcement of a 174-year old law when it comes to abortion during oral arguments Monday in a high-profile case meant to clarify law in the state.

Wisconsin abortion law has been unsettled since the U.S. Supreme Court overturned Roe v. Wade in 2022, sending decisions about abortion legality back to states. Health care providers in Wisconsin immediately ceased providing abortion care due to the state’s 1849 law. Attorney General Josh Kaul and Democratic Gov. Tony Evers filed a lawsuit challenging the statute in June 2022, arguing that it had been superseded by other laws passed by the state, including a ban on abortions after 20 weeks enacted in 2015, and could not be enforced as applied to abortions.

Access ceased for 15 months until a Dane County judge ruled in December 2023 that the law applies to feticide, not abortion, allowing providers to resume services. Sheboygan District Attorney Joel Urmanski, a defendant in the case, appealed the decision to the Wisconsin Supreme Court, and Kaul also wanted a review of the decision from the Court. Milwaukee County DA John T. Chisholm and Dane County DA Ismael Ozanne are also defendants in the case, but both oppose enforcing the law.

The pre-Civil War Wisconsin statute states that any person “other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony” and that any person who “intentionally destroys the life of an unborn quick child” is guilty of a Class E felony. It specifies that “unborn child” is defined as “a human being from the time of conception until it is born alive. It includes no exceptions for rape or incest or specific medical complications. The only exception for the law is the life of a mother.

Urmanski’s attorney, Matthew Thome, defended the enforcement of the statute Monday morning, saying lawmakers never repealed it. Republican lawmakers have proposed updates to the 1849 law in the last two years, including a 14-week abortion ban, but the proposals have failed to become law.

“Policymakers have not repealed it. Indeed, they have expressly declined to do so at multiple opportunities and until they do, it can be enforced,” Thome said.  

He argued that the question over whether Wisconsinites would be “better served” by a different law is not for the Court to decide. 

Justice Jill Karofsky appeared immediately opposed to Thome’s proposed interpretation of the law. 

“Just to be clear, a 12-year-old girl, who was sexually assaulted by her father, and as a result became pregnant under your interpretation [of the law], she would be forced to carry her pregnancy to term, correct?” Karofsky asked. 

“Under the policy choice the Legislature made…, that would be correct,” Thome said. 

“So in that case, a child would be forced to deliver a baby,” Karofsky said. 

Karofsky pushed the point, asking about the consequences of a victim of sexual assault seeking an abortion under the law if it were enforceable.  

“How about a woman who is a college freshman here at the University of Wisconsin-Madison? If she is sexually assaulted and it’s charged as a third degree sexual assault… that would be intercourse without consent. If she became pregnant, as a result of the sexual assault, it would be illegal for her to obtain an abortion?” Karofsky said. 

“Correct, it would be illegal for a doctor to provide an abortion to her in the state of Wisconsin,” Thome said.

“If her assaulter is charged…, he would be facing a 10-year maximum imprisonment because that would be a Class G felony,” Karofsky said. “In that case, the penalty for aborting, after a sexual assault, would be more severe than the penalty for the sexual assault.” 

A study published in the Journal of the American Medical Association estimates that since the Dobbs decision more than 64,000 pregnancies have been cause by rape in states with abortion bans.

“I fear what you are asking this Court to do is to sign the death warrants of women and children and pregnant people in this state because under your interpretation they could all be denied life-saving medical care while the medical professionals who are charged with taking care of them are forced to sit idly by,” Karofsky said. “This is the world gone mad.”

Justices also asked about the web of laws passed in the state, and appeared to disagree with Thome’s argument that the 1849 law completely negates them.

“We have statute after statute that you are somehow asking us to just absolutely ignore in your interpretation,” Justice Rebecca Dallet said. “We have a statute that talks about when an abortion can be performed and that’s after 20 weeks. We have a 24-hour waiting period. We have informed consent provisions. We have a ban on what they label to be partial birth abortion.” 

Dallet asked Thome how he reconciles the 1849 statute with the later statute passed in 2015 that prohibits abortion after 20 weeks and the other laws related to abortion. 

“I fit those things together… because that statute doesn’t say you can have an abortion,” Thome said. 

Justice Brian Hagedorn appeared to agree that the 1849 law applies to abortion, and said later laws don’t negate it. 

“It’s a matter of straight reasonable statutory interpretation,” Hagedorn said. “The law’s still there. It’s still there. The judiciary doesn’t get to edit laws. The judiciary doesn’t get to rewrite them. We didn’t delete it. We prevented its enforcement now, it’s still there.”

Wisconsin Assistant Attorney General Hannah Jurss, who represented Kaul, argued that there was an “implied repeal” of the 1849 law, when lawmakers passed other statutes regulating abortion access in the state. 

“The standard implied repeal rule is it’s the earlier law that falls and there’s nothing in the text of the Wisconsin statutes… that would say disregard all of that, and instead in the event of Roe being overturned go back to 940.04, and we know state Legislatures knew how to do this because… a number of states enacted trigger bans,” Jurss said. “Wisconsin did not.” 

Kaul said at a press conference following the arguments that the Legislature should take up some of the other laws related to abortion access in the state, no matter the outcome of the lawsuit. 

“There are now relatively narrow majorities for Republicans in the state Legislature,” Kaul said. The Assembly is now a 54-45 Republican majority, while the Senate is an 18-15 Republican majority. “It is very clear that Wisconsinites overwhelmingly support having safe access to abortion in the state. For those legislators in these districts that are very moderate, where those districts could go either way, I think we ought to ask those folks, do they support some common sense changes that will protect access to abortion care in Wisconsin.”

The Wisconsin Supreme Court has also agreed to hear a second lawsuit brought by Planned Parenthood of Wisconsin against Urmanski, which asks the Court to find that the state Constitution’s right to equal protection grants a right to receive an abortion and a doctor’s right to provide one.

Aiming to provide schools ongoing, predictable funding increases, Gov. Tony Evers struck two digits and a dash from the years to extend the annual increases through 2425. Evers signed the 2023-25 budget bill with 51 partial vetoes on July 5, 2023. (Baylor Spears | Wisconsin Examiner)

The Wisconsin Supreme Court heard arguments Wednesday in a case that challenges Gov. Tony Evers’ partial veto that extended school revenue increases for 400 years and questions the limits of expansive power.

The lawsuit challenging the partial veto was brought by Wisconsin Manufacturers and Commerce (WMC), the state’s largest business lobby group, and two Wisconsin taxpayers, Jeffery A. LeMieux, a retired professor, and David T. DeValk, a Fox Valley substitute teacher. 

The case centers on a partial veto that Evers exercised in the 2023-25 budget. Lawmakers included a $325 increase to schools’ revenue limits for the 2023-24 and 2024-25 school years in the budget when it was sent to Evers. Aiming to provide schools ongoing, predictable funding increases, Evers struck two digits and a dash from the years to extend the annual increases through 2425.

Scott Rosenow, an attorney for WMC, argued that the Court should strike down Evers’ veto. 

“This 400-year veto approaches the absurd and this partial veto power is corrosive to democracy,” Rosenow said, referencing the brief submitted to the court by Richard Briffault, a Columbia Law School legal scholar.

Briffault argued in the brief that allowing veto “creativity” would “further depart from the Constitution’s text, history and structure and its core democratic commitments” and would make Wisconsin an outlier among states with partial veto powers. 

Rosenow argued that the veto exceeded the partial veto power established under the state Constitution and created a new word.  

“The governor here did not merely delete text. He selectively struck words, digits and a dash to create a new word, so what he did was not like a digit veto that reduces an appropriation by striking a single digit, he created a new word and a new 400-year duration that wasn’t there,” Rosenow said. 

Wisconsin has had one of the broadest partial veto powers in the country, though it has been curtailed over the years by constitutional amendments and rulings by the state Supreme Court.

The ‘Vanna White’ veto, which was used by former Gov. Tommy Thompson to strike individual letters to create new words, was eliminated in 1990 by a constitutional amendment. The Legislative Reference Bureau defines this type of veto as striking “phrases, digits, letters, and word fragments so as to create new words, sentences, and dollar amounts.” The language approved by the constitutional amendment stated: “In approving an appropriation bill in part, the governor may not create a new word by rejecting individual letters in the words of the enrolled bill.” 

Some of the justices appeared skeptical about the argument that Rosenow was making, saying that the amendments advanced by lawmakers and adopted by voters didn’t specify digits.

“Equally absurd to me is your argument that a letter is a number or vice versa, that a number is a letter…. A fourth grader or dare I say a four-year-old knows the difference between letters and numbers,” Justice Ann Walsh Bradley said. “My response is almost visceral that I don’t care how many fancy words or legal theories you put behind it to make it sound like its erudite four is not a letter of the alphabet.” 

Evers’ attorney, Colin Roth, argued that while the veto did extend the date by a significant amount of time, it didn’t violate any previous cases decided by the Court and that it led to “complete and workable law,” a requirement of partial vetoes established under previous case law.

Justices expressed concerns about whether the power continues to be too broad. 

“I think that there is concern that now, we’ve got this 402-year veto. It does feel like the sky’s the limit, and perhaps today, we are at that fork in the road, and… we’re trying to think, like, should we today in 2024 start to look at this differently?” Justice Jill Karofsky said.

Roth argued, however, that lawmakers have tools to address the limits of the governor’s ability to shape law, including by passing constitutional amendments and writing legislation in different ways. 

“To the extent, your honors do have substantive concerns about the scope of the veto power, those can be addressed in multiple ways. One, a constitutional amendment, it’s not impossible. It’s happened twice. Both times the Legislature has put it to a vote, it’s passed,” Roth said. A second constitutional amendment adopted in 2008 banned the “Frankenstein” veto, where governors would create new sentences by combining parts of two or more sentences. “There’s one in the hopper right now… that would expressly ban this kind of veto.”

Republican lawmakers, who support the lawsuit, were furious about the partial veto, and in response unsuccessfully attempted to override the veto and started the process of passing a constitutional amendment that would limit the power further by prohibiting vetoes that would increase taxes or fees.

Justice Brian Hagedorn, referring to the partial veto power, said that legal scholars “think it’s crazy because it is crazy.”

“We allow governors to unilaterally create law that has not been proposed to them at all. It is a mess of this court’s making, and our body of cases is inconsistent,” Hagedorn said. “We have a choice to either green light governors unilaterally creating policy in an even more expansive way than we’ve done before or whether we are going to begin to take steps… and begin to rein [it] in.”