ACLU questionnaire for Wisconsin Supreme Court candidates
Experience with the criminal justice system, including experience with the effects of incarceration on individuals and communities:
I am currently a tenured law professor at Marquette University Law School, but I previously practiced white collar crime defense. From 1988 through 1992, I represented Grumman Corporation (now Northrop Grumman Corporation) and other defense contractors as an associate at the firm of Fried Frank Harris Shriver & Jacobson.
This representation involved a series of federal grand jury investigations, dubbed “Operation Ill Wind,” that to this day remains the largest government procurement fraud investigation in United States history. When all of the investigations and trials were concluded, over 90 government officials, corporate executives, and corporate entities had been convicted or had plead guilty as a result of Operation Ill Wind.
I also have experience working on the South Side of Milwaukee on anti-gang initiatives. From 2000 to 2003 I served as President of the Latino Community Center, a nonprofit organization dedicated to intervention with at-risk youth. I worked closely with the Executive Director, Mo Fontanez, a convicted felon and founder of the Latin Kings street gang, in developing anti-gang programming for Milwaukee Public School students and overseeing the implementation of the award-winning Violence-Free Zone program at South Division High School. That program uses trained student peer mediators to reduce tensions between rival groups in the school environment. The goal of the Latino Community Center was to break the “school to prison pipeline” by reaching out to suspended students and dropouts and providing positive alternatives to gang activity. During the time that I was President of the LCC, the crime rate in the neighborhood decreased and the student dropout rate decreased.
Experience in civil litigation or administrative proceedings:
Before joining the faculty at Marquette University Law School in 1992, I worked at the national law firm of Fried, Frank, Harris, Shriver & Jacobson, a firm that counted Martin Ginsburg (Ruth Bader Ginsburg’s late husband) and Sargent Shriver (former Democratic Party nominee for Vice President) among its partners. While approximately 50% of my practice was white collar crime defense, the remaining 50% of my practice was devoted to civil litigation in federal courts -- primarily defending corporate clients in litigation alleging securities fraud or shareholder derivative suits. For example, I represented Unisys Corporation in a $350 million securities fraud and breach of contract lawsuit in federal district court arising out of the sale of a business. I handled all aspects of pretrial discovery and drafted successful dispositive motions. I also drafted successful appellate briefs. During this time period I also represented Salvadoran nationals on a pro bono basis in administrative proceedings before Immigration Judges and the Board of immigration Appeals. My broad experience practicing law at the highest level is what makes me an effective teacher in the classroom.
As a full-time law professor, the American Bar Association places limits on the number of hours that I can devote to outside legal work. Within these limits, I have continued to practice law while teaching as an expert witness in multiple high-profile civil lawsuits. In addition, I have practiced law as a solo practitioner in Wisconsin, representing minority shareholders in business lawsuits, including one case that set a new precedent under Wisconsin corporate law. I also spent eight years as Of Counsel at the Milwaukee law firm of Gonzalez, Saggio & Harlan, which at the time was one of the largest minority-owned law firms in the country. At that firm, I specialized in representing corporate shareholders in civil litigation in Wisconsin state courts.
Because of my legal knowledge, I have been invited to speak on topics of constitutional law, federal law and Wisconsin law by many organizations including the American Constitution Society, the Federalist Society, the State Bar of Wisconsin, the League of Women Voters, and the American Civil Liberties Union, as well as numerous universities and law schools. I have been quoted by national news sources including as The Guardian Newspaper, NBC News, The Nation and The Hill. I am also regularly quoted by Wisconsin media, and I have been a regular contributor on legal and political topics to Wisconsin Public Radio.
I am proud of my many accomplishments during my legal career. No other candidate in this race has a similar record of achievement.
Describe the two or three most significant cases on which you have worked and explain their significance to you, to your client or to the development of the law:
The first significant case is my representation of Grumman Corporation in the Operation Ill Wind federal grand jury investigation. The investigation focused on allegations that classified Department of Defense procurement documents, providing information on the anticipated weapons systems needs of the U.S. government, had been illegally obtained by our client. In addition to the possible misuse of classified documents, the grand jury investigation of Grumman Corporation also included allegations of illegal kickbacks from vendors and possible violations of federal campaign finance laws.
The investigation of Grumman began in 1988, when federal agents executed search warrants at the homes of several company employees. Eventually, the investigation led to the resignation of Grumman Chief Executive Officer John O’Brien and his guilty plea on charges of bank fraud. The company itself was never indicted, but in 1993 it paid $20 million to settle criminal charges related to the investigation.
As part of my representation of Grumman Corporation, I flew regularly from Washington, D.C. to the federal courthouse on Long Island, where the grand jury was sitting. I prepared grand jury witnesses for their testimony, accompanied them to the courthouse, and de-briefed them after their testimony. I negotiated with the United States Attorney’s Office regarding the company’s response to subpoenas for the production of documents and witnesses. I also had substantial responsibility for conducting an internal investigation into whether there was a factual basis for the government’s allegations. This entailed interviewing employees throughout the Grumman hierarchy, reviewing relevant documentation, and drafting a report advising the client’s board of directors as to the risk of criminal prosecution. During this period, I reported personally to the General Counsel of Grumman, Tom Genovese, and, on occasion, to Chief Executive Officer Renso Caporali.
I subsequently developed a law school course, “Corporate Criminal Liability,” based on my experiences representing Grumman in this matter. The course is a case study on how to conduct an internal corporate investigation and how to represent corporate clients in a federal grand jury investigation.
The second significant case that I worked on was Halquist v. Halquist Stone, Inc., a case in Waukesha County Circuit Court. I represented the plaintiff, Beverly Halquist, in a suit alleging breach of fiduciary duty, securities fraud and breach of contract. Essentially, the plaintiff alleged that the majority shareholders of the business had diverted corporate resources to their own benefit and had “frozen out” the minority shareholders. This case set new precedent under Chapter 180.0744(6) of the Wisconsin Statutes concerning when and how an “independent person” could be appointed by the court to consider whether derivative litigation is in the best interests of the corporation. Virtually every procedural step under Chapter 180.0744(6) was novel and vigorously litigated. I took over the representation of the client at a time when most of the client’s claims already had been dismissed by the court. Nonetheless, I successfully litigated the case and obtained an eight figure settlement in favor of my client.
Describe any significant pro bono legal work in the last five years:
For almost 30 years, I have volunteered my time in leadership roles with organizations that seek to improve and reform the legal system. From 2016 to 2018, I was on the Board of Directors of the Milwaukee Chapter of the American Constitution Society. From 2009-2015, I was on the Board of Directors of the Business Law Section of the Wisconsin State Bar. From 2015-2018, I was on the Board of Directors of Voces de la Frontera Action, which advocates for public education, workers’ rights, and immigration law reform. From 2017 until the present, I have served on the Undocumented Students Task Force at Marquette University. In that capacity, I was the primary author of the University’s policy of non-cooperation with ICE.
Going back earlier than 2015, I have led two nonprofit organizations that provide affordable lawyers to middle and low income individuals: Centro Legal and the Catholic Charities Legal Services for Immigrants Program. I also served on the Board of Directors of the Wisconsin Trust Account Foundation, which makes grants to nonprofit legal services providers.
Also earlier than 2015, I accepted a pro bono referral from the ACLU in the matter of an individual facing prosecution for unauthorized travel to Cuba. I have also represented Salvadoran nationals on a pro bono basis in deportation proceedings over the course of my career.
Describe your judicial philosophy and/or your view of the proper role of a State Supreme Court Justice, with particular attention to the role of the Supreme Court in the criminal justice system:
I reject all broad theories of constitutional interpretation. The law is derived from human experience, not from abstract theory. As a Justice I would seek to advance three basic principles of justice.
First, it is the job of the Wisconsin Supreme Court to interpret the law in a way that preserves the fundamental ability of the people to govern ourselves. A government’s written constitution is best understood as a machine that permits and perpetuates self-government by the people. Court decisions that promote secrecy in government or that allow elected officials to insulate themselves from the voting power of the people only serve to undermine the ability of the people to self-govern – and allow the majority political party to entrench itself in power.
Second, the guiding principle of our system of justice is “equal treatment of all persons under the law.” Decisions that create special legal rules for special categories of politically connected people, or decisions that fail to address inequities in the charging and sentencing of racial minorities undermine this basic principle of equality. When the people see special interest groups getting special treatment, and disfavored groups receiving a lesser quality of justice, they lose faith in the integrity of the legal system.
Third, it is essential that the Wisconsin Supreme Court jealously guard the independence of the judicial branch. Rules adopted by the Court that allow judges to sit on cases involving major campaign contributors cause people to question the independence of our judges -- it does not matter whether the contribution is made directly to the campaign or made separately on the judge’s behalf. Instances where the Wisconsin Supreme Court reaches out on its own initiative, in order to expedite politically charged cases, create the impression that the members of the Court are taking sides in a partisan political debate. I believe that the Court must do a better job of acting in ways that demonstrate its independence as an institution – especially at a time when the voters of our State are so divided on political issues.
Identify a judge or justice (state or federal) whom you admire and explain why:
I admire Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit. Judge Wilkinson wrote an excellent book entitled Cosmic Constitutional Theory in which he reviewed the major models of constitutional interpretation and concluded that all of them (originalism, the “living constitution,” etc.) were flawed. He ends by advocating judicial humility and judicial restraint. While Judge Wilkinson is generally characterized as a judicial conservative, I admire his honesty and integrity.
Identify what you consider the best Wisconsin or US Supreme Court decision in the last 30 years and explain why you consider it the best:
Obergefell v. Hodges recognized a constitutional right for same sex couples to enter into marriages recognized under state law. A majority of the United States Supreme Court reasoned that if the objective of marriage is to create stable relationships and self-sufficient families, then it makes no sense to deny equal access to marriage to same sex adults who are not related and who are willing to commit themselves to a union. Because the individual interest in pursuing our own intimate relationships is high, the majority held that the state needed a good reason before it could deny that interest for some of the population but not for all of the population. I believe that the Obergefell decision is best understood as a strong statement in support of equal protection under the law, and a positive example of the role that the judiciary can play in vindicating the rights of individuals.
Identify what you consider the worst Wisconsin or US Supreme Court decision in the last 30 years and explain why you consider it the worst:
In my opinion, two of the worst United States Supreme Court decisions over the past thirty years are Citizens United v. FEC (extending Free Speech rights to corporations) and District of Columbia v. Heller (interpreting the Second Amendment right to bear arms). It is appropriate to view the two cases together. Both cases are examples of the Justices slapping the “originalist” label on a profoundly un-originalist interpretation of the Bill of Rights. Both are exercises in raw political power employed in order to accomplish conservative objectives. Both ignore hundreds of years of understanding about the meaning of the relevant constitutional provisions, in favor of a meaning derived by taking the words of the Amendment out of context. And both embrace interpretations of the constitutional Amendment at issue that are inconsistent with the meaning ascribed to that same language by the intellectual father of originalism, Robert Bork. In the same way that modern scholars deride the “Lochner era” as a misguided period in American Constitutional Law, I believe that future scholars and judges will recognize and reject the intellectual dishonesty of the “Heller era.” I wrote a full length explanation of my opinion of these cases that is available at https://law.marquette.edu/facultyblog/2010/03/federalism-free-markets-an... .
Identify one of the most significant Wisconsin Supreme Court decisions on criminal justice issues in the past 30 years and explain why you consider it important:
I think that the Wisconsin Supreme Court’s decision in State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, commonly known as the John Doe II decision, is a significant and troubling precedent. That decision effectively ended a John Doe investigation into possible campaign finance violations by the Scott Walker campaign during the recall election. The majority opinion can be criticized on at least three grounds. It boldly misstates precedent under both the First Amendment and Wisconsin’s campaign finance law. It permits judicial review of the actions of the District Attorney before charges were even filed, thus delaying and frustrating an ongoing investigation into potential political corruption. And it downplays the significance of any potential criminal charges by promoting the view that the investigation itself was politically motivated (which, even if true, would not be a legal defense to the charges). The decision is troubling because the Walker Administration’s legal challenge to the John Doe investigation has served as a template for the legal strategies employed by the Trump Administration, and by accepting these legal arguments the Wisconsin Supreme Court has helped to legitimize them.
Identify one of the most significant U.S. Supreme Court decisions on criminal justice issues in the past 30 years and explain why you consider it important:
The case of United States v. Williams, 504 U.S. 36 (1992) has had a detrimental effect on the rights of the accused in federal court. In that case, the majority of the United States Supreme Court held that prosecutorial misconduct in the form of withholding exculpatory evidence cannot be the basis for the dismissal of a criminal indictment, because the grand jury is an independent body that is not under the supervisory jurisdiction of federal judges. Prosecutorial misconduct is an every day reality in the criminal justice system, both state and federal, and this decision stands as an example of the failure of the United States Supreme Court to adequately provide for remedies when such misconduct occurs.
Discuss one Wisconsin or U.S. Supreme Court decision that has contributed to the levels of incarceration in the state or the nation:
The U.S. Supreme Court case of Herrera v. Collins, 506 U.S. 390 (1993) held, by a 6 to 3 vote, that a claim of actual innocence does not entitle a petitioner to federal habeas relief under the Eighth Amendment. In recent years, advances in forensic technology have raised the possibility that increasing numbers of incarcerated individuals might be able to substantiate claims of actual innocence and thereby might have grounds to file a post-conviction petition for habeas corpus. However, this possible avenue of post-conviction relief is difficult in light of the Herrera decision. If we are going to meaningfully reduce current levels of incarceration, the justice system needs to find an avenue for wrongly incarcerated individuals to bring post-conviction challenges on the basis of newly available evidence.
Discuss one Wisconsin or U.S. Supreme Court decision that has played a role in disproportionate incarceration of people of color in the state or nation:
The Wisconsin Supreme Court decision in Democratic Party of Wisconsin v. Wisconsin Department of Justice, 2016 WI 100, held that the Wisconsin Attorney General did not have to disclose training materials sought under Wisconsin’s Public Records Law. The majority decision created a broad exception to the open records law, and denied the public’s right to know the internal training procedures used by law enforcement. The majority relied in part on generalized assertions contained in an affidavit by Jill Karofsky that the publication of information in the training materials would re-traumatize victims. I agree with Justice Abrahamson’s dissent, which pointed out that no crime victims were identified in the training materials and that the State had failed to demonstrate any specific grounds for secrecy that would outweigh the law’s presumption in favor of disclosure.
The reason that I am singling out this case is that the disproportionate incarceration of people of color can often be traced to the way in which law enforcement officers are trained to interact with the public. The manner in which officers disproportionately stop, question, and escalate their interactions with people of color has a direct correlation on the filing of criminal charges, and therefore translates into disproportionate incarceration of racial and ethnic minorities. Without the evidence contained in the training materials that are used to internally communicate policies and procedures to law enforcement officers, it can be difficult for members of the public to successfully bring legal challenges to state-wide or county-wide policing procedures. I see this decision not just as an open records law case, but as a case that allows law enforcement to hide potentially discriminatory policies from the public.
Why do you want to be a Wisconsin Supreme Court Justice?
I first ran for the Wisconsin Supreme Court in 2013, pledging to restore integrity to a Court beset by infighting and allegations of personal assault. Many voters agreed with me, and I received over 360,000 votes. Since then, partisan political fighting among the Justices has gotten worse, and judicial election campaigns for the Supreme Court now regularly descend into unfounded character attacks on the integrity of candidates. This needs to stop. So last March I became the very first candidate to announce that I was running for the Wisconsin Supreme Court in 2020.
I am running because the Justices serving on our Wisconsin Supreme Court reflect too narrow a set of legal experiences and too narrow a set of life experiences to truly represent all the people of Wisconsin. With the retirement of Justice Shirley Abrahamson, the Court lost the perspective of a law professor who was a strong advocate for holding the political branches of our government accountable to the voters. In the ten years since Justice Louis Butler left the bench, the Court has lacked a member who has substantial experience as a criminal defense attorney. Significantly, the Court currently does not have a single member who has focused during their career on serving persons of modest means – such as working families and immigrants. And there are currently no racial or ethnic minorities represented on our Court – we have no Justices of color.
A Court that openly engages in partisan political infighting is not serving the people of Wisconsin. We need to return to an independent Court, and we need our elections to focus on the qualifications of the candidates and not attack ads. And we won’t make the Supreme Court better by electing more Justices with the same narrow experience – trial judges who are former prosecutors. The work of the Wisconsin Supreme Court extends far beyond the criminal law.
Every term, the Wisconsin Supreme Court decides important cases involving our constitutional rights, the protection of the environment, the civil rights of racial and ethnic minorities, business law, and contract interpretation. The Court works better when it has a variety of types of Justices who bring experiences across a wider cross-section of legal practice. As a Constitutional Law professor, an experienced criminal defense lawyer, someone who has represented giant Fortune 100 corporations as well as the owners of small family businesses, and a community leader who has helped working families and immigrants navigate our legal system, I will bring a broad base of knowledge to our state’s highest court. In addition, I will be the first Latino Justice in our State’s history. And I pledge to continue my fight to end the politicization of the Court and restore its former independence.