Schimel promises transparency if elected to high court

When he was state attorney general, Waukesha County circuit judge Brad Schimel touted his record on open government — among other things he created the Office of Open Government within the Department of Justice (DOJ) — and, now that he is a candidate for the state Supreme Court, he says he will take that same commitment to transparency to the state’s highest tribunal.

But, in an interview at The Lakeland Times, Schimel’s record on transparency was hotly debated, given that his DOJ aggressively defended the redaction of employee names from disciplinary records that The Times had requested. The newspaper sued, and Schimel and the DOJ lost in Dane County circuit court in a case presided over by circuit judge Valerie Bailey-Rihn.

The election for the seat held by the retiring justice Ann Walsh Bradley will be held next spring. Schimel is running as a conservative and campaigning to restore integrity and objectivity to the state’s highest court, which he says is lacking. So far, one liberal candidate, Dane County circuit court judge Susan Crawford, has announced her candidacy.

Despite trying to shield disciplinary records as attorney general, Schimel says openness is a cornerstone of his judicial philosophy.

“You have to start with [the idea] that transparency in government is the foundation on which democracy is built,” Schimel said. “The public has to be able to know what their government is doing. You have to start from that position.”

Specifically, with respect to the open records law, the general assumption is that records must be released, Schimel said.

“Unless there is some exception that the governmental body can satisfy for not disclosing the records in a timely fashion, they should release them and they should be sanctioned when they don’t,” he said.

Schimel also said that, without addressing specific cases, there must be a way for people to recover attorneys’ fees when they have to go to court to compel government to release records, particularly for smaller media companies and average citizens.

“When you’re talking about a major media company, they can afford to pay the attorneys to go fight government, and a lot of times that’s not who it is,” he said. “A lot of times it’s a smaller media outlet or it’s a private citizen who’s trying to get records. I believe there should be a way for them to be able to recover their costs because otherwise they’ll never take on that fight.”

That’s not to say that large media companies and anybody on the winning side shouldn’t able to recover attorneys’ fees, Schimel said.

“My point about the major media companies was just that they can afford it — they’ve got attorneys on retainer, they can afford to go do that fight,” he said. “They’re more likely to do it and [recovering attorneys’ fees] might not be as big a factor in whether they take on government, but for smaller players, they may never bring the fight if they can’t have some potential to regain their attorneys’ fees. I’m not saying that the major media companies shouldn’t also be able to recover fees, just I think the rubber hits the road a lot more with smaller players.”

Looking at the track record

When it comes to how he will approach specific open records cases, Schimel says he can’t say how he would vote on any given case but that people can look at what he has done in the past, particularly as attorney general.

“The left is saying, ‘here’s how I’m going to rule on cases,’ and I’m declining to do that,” he said. “Can that be a disadvantage for me? Yes, but there’s something I can point to, and that’s my track record. People know what I have done in the past and, even though I apply a different standard as a judge, you know what my values are when it comes to open government.”

Schimel said the Office of Open Government that he established as attorney general still exists.

“But I don’t know what they’re doing with it because we managed to drive down the return times for records that we were releasing dramatically,” he said. “We cut them. We drove those numbers way down.”

Schimel said the Office of Open Government was created in part to oversee what got released in law enforcement use-of-force decisions and to expedite those kinds of things. Schimel also touted his opposition to a controversial Joint Finance Committee late amendment to the 2015 budget bill that would have gutted the open records law.

“I got in hot water with the Republican Joint Finance Committee the first summer I was attorney general when they had the ‘999’ bill, and they did it without any public input,” he said. “They pushed that through in secret, and I was asked about it and my answer was, and it’s what I’ve told you, that transparency is the foundation of  a democratic society. We have to have openness.”

Schimel said he was not forgiven for that right away.

“I paid for it,” he said. “I paid for it in my budget, but that’s my position regarding this. Like I said, I didn’t go back and pull all the numbers from what we did with our Office of Open Government, but we did change things.”

Schimel’s recollection is accurate. When the language gutting the open records law became public, the attorney general denounced it publicly.

“Transparency is the cornerstone of democracy, the provisions in the budget bill limiting access to public records move Wisconsin in the wrong direction,” he said at the time.

The language was removed from the budget bill after a loud public outcry.

Defending secrecy

But there has been occasion where Schimel, as attorney general, defended secrecy — and lost in court doing it. The case specifically involved The Lakeland Times.

In that case, The Times submitted an open records request to the DOJ for all disciplinary records for DOJ employees from 2013 through 2016, including the names of the employees disciplined. The DOJ subsequently released the records but redacted the employee names from 18 disciplinary letters, a county name from one record, and an employee that was mentioned but not the subject of a disciplinary report. The Times sued for the names.

In Dane County circuit court, judge Valerie Bailey-Rihn ruled in favor of The Times and took the DOJ to task, ordering the DOJ to release the records without redactions of the disciplined employee names and to restore other substantive redactions from the discipline letters. 

DOJ had not shown there to be an “exceptional” circumstance that justified the redactions of the records, Bailey-Rihn ruled, and she further expressed concern that, in the DOJ’s own accounting of the case, “some of DOJ’s justifications for redactions, withholding the names because the misconduct was not criminal conduct and limiting access because the employees were low-level employees, could lead to blanket exceptions to disclosure.”

The court also found that DOJ had not shown that releasing the records would deter supervisors from investigating misconduct or imposing discipline.

The DOJ had also argued that releasing the names would harm the reputational interests of the employees, but Bailey-Rihn determined that potential embarrassment was not a reason to protect the employees’ identity.

“Releasing names due to potential embarrassment does not relate to the safety of employees nor is there a protection established by law in withholding the information,” the judge found, adding that the agency did not show “how personal reputation concerns relate to the larger public interest.”

In its arguments, The Times argued to the court that the DOJ’s rationales in the case had long been rejected by the courts, such as a blanket exceptions to the open-records law based on speculative impacts the agency says might be associated with release of the names.

In addition, The Times pointed out, the DOJ was making arbitrary decisions by withholding some names and releasing others. The agency claimed that protected workers were low-level employees who had engaged in minor offenses, but the newspaper’s investigation did not always find that to be the case.

In his interview with The Times, Schimel said he could not remember the specifics of the case and would take his “lumps” on that one. 

But that was not the only open-records controversy Schimel stirred up during his tenure. He also went to court and won a ruling that he did not have to release Wisconsin Department of Justice training tapes. The attorney general argued that the tapes would reveal techniques used by law enforcement used to catch child predators.

However, as lower courts pointed out, those techniques were already in the public domain and so the tapes were not revealing anything not already known. 

Growing police power

In the interview, Schimel was also questioned about the burgeoning authority of law enforcement and court decisions weakening civil liberties in the face of growing police power, on issues ranging from the open fields doctrine to no-knock warrants. Decisions have seesawed in both directions, but Schimel said he would take a decidedly pro-civil liberties approach.

“There’s only one case where I’ve gotten reversed from the Supreme Court as a circuit judge, and it’s one I was glad to see,” he said. “I didn’t try the case. I had the post-conviction motions and this person was on their seventh OWI. At seven, the minimum mandatory penalty goes up. His argument was that it should only be considered his sixth offense because one of the previous ones was only a refusal of a chemical test.”

Specifically, when the defendant in that case was convicted of his sixth OWI offense, the court counted as one of his six prior offenses a 1996 temporary revocation of his driving privileges for refusing to submit to a warrantless blood draw. Counting that case increased the penalty for the latest offense under the state’s graduated-penalty OWI laws. 

The defendant argued in court that the graduated penalties were unconstitutional because they meted out harsher penalties later because of an earlier exercise of his Fourth Amendment right to be free from unreasonable searches. The Supreme Court determined that the law was unconstitutional in part — specifically for imposing stiffer penalties by counting prior convictions based only on a refusal to submit to a warrantless blood draw.

“The challenge in front of me as a circuit court judge was that I was being asked to find the state implied consent law, that aspect of it, unconstitutional,” he said. “That’s not the role of a circuit court judge. That’s what the higher court does. Circuit court judges, you apply the law as it is. And so I did, the Supreme Court got the case, and reversed and ultimately found that that aspect of the implied consent law was unconstitutional, that it was government taking too much power for a person exercising a right.”

Schimel explained further that, if you want to drive on the highways, you’ve given implied consent for an evidentiary chemical test of your blood, but he said that was not absolute.

“The Fourth Amendment still says that sticking a needle in my arm is a place where you’re going to have to have a warrant,” he said. “Ultimately, the U.S. Supreme Court made that determination.”

Schimel said the decision turned out to be the “bane” of a circuit court judge’s existence.

“Prior to that decision, if somebody is refusing a chemical test, law enforcement just said, ‘under implied consent law, I can take your blood without a warrant and by reasonable force.’ But the U.S. Supreme Court decision said, ‘no, that’s too serious. An invasion of somebody’s bodily privacy, you’re going to have to get a warrant,’ which means now we get awakened at 2:30 in the morning when you’re on blood warrant duties, you won’t sleep that week.”

It’s just how it is, Schimel said, “and I guess that’s how it should be.”

A line in the sand

Another question was, given a highly contentious and polarized political atmosphere — on one side a push to defund the police and forego charges in criminal incidents, on the other side a push to get tough on crime — where is the line drawn between tough but appropriate law enforcement and an infringement of civil liberties?

Schimel said that, both as a judge and a former district attorney, he had seen the consequences of lax enforcement.

“Nearly half of the inmates in our Waukesha County jail are Milwaukee residents,” he said. “They’re committing crimes in Waukesha. I’ve seen this for the last 35 years. I’ve seen the impact of the [Milwaukee County] district attorney who doesn’t choose to prosecute the cases or judges who don’t give appropriate penalties to deter that person and others who continue to do that.”

Schimel said there used to be very few high speed chases in Waukesha because people generally pull over for the police.

“But then the Milwaukee police chief put his no-pursuit policy in place, and even though that’s been reversed, it’s just still the habit now that people run,” he said. “Now we have high speed chases in Waukesha constantly and it’s all because of that. I get that, and the district attorneys and the courts that are making those criminal justice decisions, they need to focus on public safety more than they have in some places.”

The political equation about civil rights has changed substantially, Schimel said.

“It used to be the left was kind of the party of the individual,” he said. “They marched around in the late sixties and early seventies for free speech and all this stuff, and then it switched. I think the left is now ‘the man.’”

Election integrity

Election integrity is an issue all through the Northwoods and the state, and Schimel said it is no different in Waukesha County. He has a case pending against the state elections commission, he said, centered on some of the agency’s advisory opinions issued to clerks, and has heard cases on such things as whether early voters can change their mind and vote again after their first ballot is destroyed.

In both 2016 and 2020, the state elections commission (WEC) allowed voters who already submitted absentee ballots to void them before election day and vote again. The agency rescinded that guidance after Schimel ruled in a lawsuit that the practice was contrary to state law.

“That’s being appealed, not by WEC,” he said. “It’s being appealed by the DNC [Democratic National Committee]. I applied what I think was a clear application of the statutes. The District Two Court of Appeals did agree with me, but they’re seeking appeal in the Supreme Court.”

Speaking of the Supreme Court, Schimel says there has been a lot of talk about judicial precedent, especially the overturning of recent precedent.

“The new Supreme Court majority seems to think [overturning precedent] is bad, and then in some cases, it’s all right,” he said. “And in other cases, in federal court, we just obviously saw Chevron overturned.”

Schimel said precedent should be overturned with reluctance.

“There has to be some change in circumstances where it could be that some part of the law changed or the factual circumstances in the world changed,” he said. “Those things should exist. Otherwise, there’s the problem that there’s no stability, that people can’t predict what the law is going to be. And so if you regard precedent too lightly, you create that circumstance where there’s no stability in the law.”

At that point, Schimel said, people think the law is going to change as the face of the court changes.

“And then, we’re just going to be bouncing back and forth,” he said. “We could have that with abortion, if my position were [that] I’m a pro-life candidate, and I’m going to find that Wisconsin’s constitution bans abortion, and the other side says, it guarantees your right to abortion, and we’ll just flip back and forth when the court changes. That makes no sense.”

A stable end result that survives a current court is desired, Schimel said. 

“I’ve heard their answer when they’re overturning recent precedents, which is more troubling, frankly, something that was decided two years ago,” he said. “There’s really less chance that anything has changed about the circumstances. They’re saying [that about] Roe v. Wade, that we don’t have to respect precedent because they didn’t respect precedent.”

But you can argue that, since Roe v. Wade, much has changed, Schimel said.

“In 1973, we didn’t have the technology to do sonograms,” he said. “They couldn’t tell you anything about the baby inside. Now, they do know things, but those circumstances didn’t drive it. I believe what the U.S. Supreme Court did when they said that was never founded in the law, there just was no basis in the constitution to reach that conclusion that there’s a right to abortion, and we’ve run into this problem that, how do you develop a policy?”

Viability is reached in much shorter time than in 1973, Schimel said.

“Science has changed,” he said. “It makes it therefore impossible for a court to be settling these policy decisions.”

It was different when the liberal majority on the state Supreme Court overturned the redistricting legislative maps, Schimel said.

“They went to a decision that had been decided 18 months earlier and nothing had changed,” he said. “The only thing that changed was the face [of the judge].”

And so with the recent drop box decision, Schimel said.

“There’s nothing that’s changed,” he said. “Those are circumstances where precedent should be left alone.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.