"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
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Excluding arrests for municipal citations from job protections provided by the state's fair employment law will increase the discriminatory effect that already exists in the state's "aggressive regime" of enforcing municipal ordinances, Legal Action of Wisconsin Inc. argued in an amicus brief this week.
Municipal offenses are considered civil violations, not crimes.
The state Court of Appeals ruled in January that people arrested for municipal violations did not qualify for the same job protections those arrested for crimes receive under the Wisconsin Fair Employment Act (WFEA). That law generally prohibits job discrimination against those arrested for crimes unless the crimes are directly related to their jobs.
Jeffrey and Gregory Cota were Oconomowoc School District employees accused of theft from the district, but the district, after an investigation, did not have enough evidence to fire them. They eventually received a municipal theft ticket from the Town of Oconomowoc and the prosecutor said told the District he believed he could get a conviction.
The case, however, was not resolved in court. Instead, the brothers agreed to pay the district $500 to resolve the issue and return to work. The district then fired them, two years after its own investigation concluded.
An administrative law judge upheld the firing.The brothers appealed to the state Labor and Industry Review Commission, which ruled in their favor, as did Waukesha County Circuit Court when the district appealed. The District II Court of Appeals reversed, however, ruling that the term "arrest" under the WFEA applied only to arrests for crimes.
The Supreme Court agreed to review the case.
Before the appeals court ruling, Legal Action said, LIRC for decades included people arrested on municipal charges in those entitled to protection under the WFEA. The agency's interpretation "limited some, though not all, of the racially disparate employment effects of Wisconsin’s aggressive regime of civil ordinance enforcement," the Legal Action attorneys wrote in their brief.
The brief was prepared by attorneys Elizabeth Stinebaugh, Sheila Sullivan, Madeline Guthrie, and Madeline Cail.
Scholars have shown, they said, that "expanding non-criminal social control mechanisms, including issuing more civil citations, brings more people of color and other vulnerable individuals into contact with the criminal justice system."
Municipal courts are a particularly significant factor in such law enforcement "net-widening," they said.
"The marginalized communities most subject to this kind of policing already face significant barriers to employment," they wrote.
Research also shows that people with criminal records face significant challenges in obtaining employment, the lawyers said.
"More disturbingly, research also shows that Black applicants with criminal records are significantly less likely to receive callbacks for job interviews than White applicants with similar records," they said.
In addition, a 2015 study of unpaid Milwaukee citations shows that unhoused individuals are at serious risk of being arrested for "street nuisance" municipal violations such as disorderly conduct, loitering, spitting in public, littering, removing contents from garbage containers, low-level drug possession, and trespassing, the brief said.
Low-income people and public housing residents "also face high rates of arrest and citation for civil offenses," they said.
"Most civil prosecutions in Wisconsin are for violations of local ordinances that are identical or nearly identical to criminal statutes," they said. State law allows municipalities to prohibit the same conduct through an ordinance that is prohibited by statute.
"Because most police officers can enforce both local and state laws, the deciding factor in determining whether an individual is charged civilly or criminally is the discretion of a police officer or assistant district attorney." Legal Action said. "If the Court of Appeals decision stands, the line between prohibited and unprohibited discrimination will be drawn by law enforcement charging decisions, not by the WFEA."
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