Kegel vs. Roth for Circuit Court Branch 3

Susan Roth and Katie Kegel are defense lawyers running for the Milwaukee County Circuit Court Branch 3 bench being vacated by Clare Fiorenza, who is not seeking re-election.

Election Day is April 6.

Kegel,  an assistant state public defender, received her law degree from Marquette University, where she now is an adjunct professor. Her resume is here.

Roth, an attorney/partner in the Kohn Smith Roth law firm, also is a Marquette Law School graduate. Her resume is here.

We asked each of the candidates to answer a series of questions. The answers are presented here as submitted. The questions asked are patterned after some of those on the job application Gov. Evers uses when he is considering judicial appointments.

The two candidates will discuss their positions and qualifications at the March 10 Wisconsin Justice Institute Virtual Salon. The free Zoom event will be from noon to 1 p.m. Register here.

Katie Kegel

Why do you want to become a judge?

I want to become a judge to serve as a change agent in our justice system who will not be satisfied with the status quo and will engage with the public to build greater trust and understanding. That starts with guaranteeing folks are treated with respect, dignity, and have the opportunity to achieve true justice back in the courtroom and guarantee every person is treated with those principles in mind.

I want to reduce harm, not create more. People come to courts in their worst moments looking for help and fair outcomes and too many leave feeling they didn’t have a fair shot and they weren’t respected in the process. That must change.

I also want to help address racial and economic disparities currently present in our justice system and be a leader who will push for the use of best practices in this area.

When we have judges on the bench with those goals in mind we as a community can both get closer to achieving justice for all and improve public safety.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Like many, I rejoiced the day the Obergefell v. Hodgkins decision was handed down by the United States Supreme Court legalizing same sex marriage. Some of the most shameful moments in history are those where our Supreme Court has been asked to take up a case about civil rights only to make a decision in favor of discrimination and division. Not only did the majority rely on solid legal reasoning, but the decision reflected the values of our nation. By the time Obergefell was decided, a solid majority of Americans agreed that gay couples should be free to marry.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

April 7, 2020, a cold, dreary day, and a world full of fear and uncertainty. Spring election day. An election day like no other. People lined up for blocks wearing bandanas and makeshift masks. Some carrying signs or a lawn chair to sit in while they waited in line. Poll workers leaving their houses before the sun came up not returning until well after midnight. Neighborhood Facebook pages abuzz with panicked questions about where to vote, how to get absentee ballots turned in, what the difference was between putting your ballot in the mailbox versus getting a postmark. Social media posts incredulous that people hadn’t been more careful to request and return absentee ballots if they wanted their voices heard. Everywhere people were angry and they were sad.

Just 24 hours earlier, Governor Evers attempted to delay the election via executive order after other attempts at making absentee ballots and drive thru voting more accessible achieved only moderate success. While other states recognized the danger in requiring people to vote at the polls during a pandemic, the Wisconsin legislature actively interfered in attempts to find alternate solutions. The issue of first review meant the justices must return to the most basic methods of statutory interpretation, the majority relying on plain language and the dissent on the dictionary. In the end, Wisconsin Legislature v. Evers was decided by the Wisconsin Supreme Court, and then just hours later as part of a consolidated group of cases by the U.S. Supreme Court, both divided solidly along political lines, to rule that the election must continue as planned and that no mail in extensions could be granted. The Wisconsin Court’s rationale was that Governor Evers had overstepped his executive authority into an inherently legislative one. The majority claimed to make no statement about the validity of the threat or the need to protect public safety but essentially proclaimed “our hands are tied.”

The dissent rightly pointed out the absurdity of the decision and considered the real consequences. “Voters who make this reasonable choice to put their health first will be disenfranchised. Those voters who do show up, along with poll workers, and everyone with whom they come in contact, will be put at needless risk of contracting a deadly virus.” The irony of the Wisconsin Supreme Court convening remotely to hear and decide that Wisconsin voters must show up the poll in person as scheduled if they wanted their voices heard was not lost. As a result, 71 Wisconsinites contracted COVID-19 exercising their right to vote, or helping others do so. This case was the first decision of several to come making the 2020 COVID-19 a political issue instead of a public health issue.

Describe your judicial philosophy.

First and foremost, as a trial court judge my job is to carry out existing law. However, cases are unique and many don’t involve decisions where the law dictates a clear outcome. A trial judge makes discretionary decisions all the time.

When those discretionary decisions must be made I believe a judge should make decisions that reduce harm, not create more. On a broad level, that means looking beyond the historically “easy” answer of locking people up. Though there will always be some people who are so dangerous to our community that they must be incarcerated, but it is now well-settled that Wisconsin and Milwaukee County specifically have traditionally overused incarceration. This practice has resulted in human and financial consequences that tear apart the fabric of our community. Instead, we should be focusing our efforts and resources on ways to get to the root cause of crime and to set people up for success as part of our community. That is why I support efforts to reduce people’s entry into the criminal justice system through deferred prosecution agreements, methods of addressing the reasons why people are committing crime like treatment courts, and increased use of restorative justice and community service to get people making amends for the crimes they’ve committed by repairing harm, not creating more.

On a case by case level, a judge must hold people accountable for their actions. A judge must also demonstrate respect for all parties in the courtroom. That occurs when a judge acknowledges the lived experience of the parties and requires professional decorum from everyone who enters the courtroom. It also means making scheduling allowances to support people’s pro-social obligations like work and childcare.

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

I am always working to find the best outcome in every individual case I handle. Defense attorney “records” are not as simple as counting trial wins and losses. It also isn’t as easy as talking about the cases with the most difficult legal issues or the most serious charges. The cases I am most proud of are the ones where I helped achieve a client’s goal, whatever that may be. Over the years, I have helped thousands of clients achieve their case goals.

One individual case that stands out in my mind was a man in his late 30’s who was accused of using his work as a cable installation tech to commit identity theft. He was a family man with no prior record and adamantly denied the allegations. He had worked his way up from entry level tech to a supervisor and was laid off as a result of this allegation. We were able to get the case dismissed due to lack of evidence in the early stages, which meant being able to resume his job and keep a paycheck coming in to support his family.

I am also particularly proud of all the cases where I helped someone struggling with addiction gain admission to Drug Treatment Court. As advocate counsel I helped clients make the decision to enter the court, and as a staffing team member I could monitor their progress and ensure clients received an evidence-based process. One particular client was a man in his early 20’s who was found overdosing on his parents’ bathroom floor. He was revived with Narcan only to be charged with a felony for possession of the drugs he overdosed on. When we discussed drug court, he confided that he didn’t think he could make it because his addiction was too strong. He agreed to try it anyways and graduated a year later as a model participant. He now has several years of sobriety. He has a good job, is married, repaired his relationship with his family, and now mentors other people struggling with addiction.

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.

I have spent my career working as a state public defender here in Wisconsin. I have handled thousands of misdemeanor and felony cases as a staff attorney for the State Public Defender.

I have performed over 20 solo jury trials including several for homicide and have sat second chair as a mentor to less experienced lawyers on several occasions. I also litigage (sic) the most probation/extended supervision revocation cases and overdose homicide (Len Bias) cases of anyone in my office.

In addition to my regular duties, I served on a number of collaborative teams including the drug and OWI treatment courts for approximately 7 years and the evidence based decision making (EBDM) case processing committee for approximately 3 years. I also am the law student intern coordinator and supervisor at my office and a client interviewing and trial trainer for new
attorneys at public defender’s offices statewide.

Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?

No.

Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur?

No. The only citations of any sort I’ve ever received are for speeding (in my early 20’s) or for parking violations.

Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge’s election? If not, why not? If so, why? What contribution limits would you set?

As the judicial ethics code requires, I support a judge recusing themself from any case where they cannot be fair and impartial, or where this is a substantial risk of the appearance of bias. There may be campaign donors who contributed a small amount of money and with whom the judge has no relationship of any sort. On the other hand, there may be influential campaign supporters who gave no financial contribution of any sort but have a relationship with the judge that would cause the judge to favor them. Transparency is critical. Recusal relies on a judge making the call themself about whether they can be fair. I think there should be an easily accessible accountability and oversight mechanism. This is also why I support campaign finance reporting requirements and easily accessible publicly available information.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?

The law requires that a judge be neutral and impartial in all matters. A judge is also still a human and capable of being swayed consciously or unconsciously. Courts have become increasingly politicized. Judicial elections at all levels are increasingly expensive and especially our State Supreme Court races have become magnets for large donations by special interest groups. As stated in a previous question, transparency regarding donations and a willingness to recuse oneself are both very important.

Beyond this, all humans carry a perspective based on their own personal experiences and implicit biases. The most dangerous situation is one where a judge is unable or unwilling to acknowledge their own implicit biases or becomes completely disconnected from the people they are making decisions about. Individual cases and their body of work in the aggregate are opportunities for reflection and improvement. A judge should welcome feedback and constructive criticism, not just from their peers, but from litigants and the community. Further, remaining active in community organizations and seeking life experiences that keep a judge discussing difficult issues with diverse groups in our community is critical to staying engaged
with the community’s values.

Susan Roth

Why do you want to become a judge?

I believe in being a true advocate for justice. Milwaukee County is not only my home, but it is where I practice law. I believe that everyone can make some form of a higher contribution toward strengthening our communities and serving the public good. I want to become a judge because the law is my deepest passion – I have a broad range of experience in private practice from all aspects of criminal defense including juvenile law and have addressed civil and family law issues as they’re related to my practice. I have a statewide practice and practice both in state and federal court. I feel I have the best experience and am ready to begin this public service on day one. I do not want to bring politics to the bench, but rather a passion for justice.

Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Crawford v. Washington 124 S.Ct. 1354 (2004): The 6th Amendment guarantee to confront one’s accusers is a cornerstone of our legal system. The Court’s holding in Crawford enunciated the guarantee given by the same, in its holding that an accuser’s out of court statement, despite its perceived indiciaces (sic) of reliability, could not be admitted as defense counsel did not have an opportunity to cross examine the witness. This decision helps to ensure that criminal defendants will be able to make inquiry of their accusers, and that the trier of fact can serve in its role as the assessor of credibility.

Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.

Kelo v. City of New London 125 S.Ct. 2655 (2005): While several states have declined to extend their own eminent domain laws to reach the holding in Kelo, this case creates a dangerous precedent for private interests to displace individual property owners who those entitles deem to be “undesirable” or “contrary to economic interest.” It creates a slippery slope by which to further marginalize already vulnerable people and populations.

Describe your judicial philosophy.

I feel a judge must adhere to the laws at hand and interpret those laws with an objective eye. Judges are meant to be independent and make decisions based on the facts, but I also believe in considering the personal story of those who appear in court, including the circumstances and background that brought someone before the bench. We must act with the times – when society changes or there are large shifts in the balances of power, they must be recognized and voices must be heard. We must be willing to be independent stewards of the law whilst on the bench, as well as advocates for justice and a stronger society.

Describe the two most significant cases in which you were involved as either an attorney or a judicial officer.

State v. Deondre Dean: Milwaukee County Case No. 16CF4722. The Honorable Jeffrey A. Conen presided over the case, and the State was represented by Attorney Paul Tiffin of the Milwaukee County District Attorney’s Office. Mr. Dean was charged with 2nd Degree Reckless Homicide. I was appointed by the State Public Defender’s Office, and represented him through his jury trial. I argued that Mr. Dean acted in self-defense, and he was acquitted. This case was particularly challenging as the decedent was in his early 70’s while my client was aged in his 20’s at the time of the incident, which created, in the eyes of some, an assumption that my client was not justified in his actions. I argued to the contrary, and was very pleased when the jury returned a verdict of not guilty. For this case I was awarded the The Hanson Memorial Advocates Prize.

State v. Spencer Lewis: Milwaukee County Case No. 17CF730. The Honorable Jeffrey A. Wagner presided over the case. The State was represented by Attorney Grant Huebner of the Milwaukee County District Attorney’s Office. I initially represented Mr. Lewis with my law partner, Steven Kohn, until he fell ill and I became lead counsel. Mr. Lewis was charged with two counts of First Degree Reckless Homicide and Attempted Armed Robbery. This case was particularly challenging as Mr. Lewis and his co-actor were young teens at the time of the incident. Mr. Lewis was charged as an adult. Attorney Kohn and I attempted to waive the case back into juvenile court, but were unsuccessful. Ultimately Mr. Lewis plead guilty to two counts of Second Degree Reckless Homicide and one count of Attempted Armed Robbery. This was one of the most difficult cases of my career. My client and his co-actor were children when they committed these offenses, and the victims were also teens . Mr. Lewis is a polite, articulate, and pleasant young man with no prior police contact, and is (to put it mildly) haunted by his actions. The facts, my client and his friend concocting a childishly simplistic plan to rob the victims that went so horribly awry it resulted in the deaths of two other teenagers, were beyond tragic. While I believe that Mr. Lewis entering a guilty plea to reduced charges was the best decision in his case, sitting next to him and helping him through the process was incredibly difficult, as I was watching a child make very adult decisions and take responsibility for his actions. Watching Mr. Lewis grow from a child into a young man in the almost vacuum-like atmosphere of the juvenile detention center was also very impactful. To represent Mr. Lewis was to walk a fine line between instinctually wanting to protect him and maintaining the objectivity necessary to effectively represent him. While incredibly challenging, I am so pleased I was able to represent Mr. Lewis, and his case is one that I will continue to reflect upon for the remainder of my career.

Describe your legal experience as an advocate in criminal litigation, civil litigation, and administrative proceedings.

Having just entered my 14th year of practice, I have a broad range of experience in criminal law ranging from misdemeanors to the most serious of state and federal charges and represent children and adults as well as indigent defendants. My civil experience is more limited, having participated in the same as it relates to my criminal practice. As for administrative proceedings, since starting with my law firm in 2007 I have handled approximately 90% of our probation and parole revocation work.

Have you ever been convicted of a crime, either misdemeanor or felony? If so, explain. When did the incident(s) occur?

No.

Have you ever been cited for a municipal offense? If so, explain. When did the incident(s) occur?

I received a speeding ticket about 12 years ago in Fond du Lac County. Being a resident of Milwaukee I have, of course, received many parking tickets over the years. All associated fines have been paid.

Do you support requiring any justice to recuse him/herself from cases involving donors and indirect supporters who contribute money or other resources to the judge’s election? If not, why not? If so, why? What contribution limits would you set?

Our current laws do not require such recusals, and as I am seeking a role in the judiciary which serves to interpret, not create, laws, I feel further comment on the same is
inappropriate. As such, I will follow the laws as they are written and of course continue to comply with them should they change.

What are the greatest obstacles judges face when trying to deliver true justice? What can or should be done about them?

While an attorney is able to develop a professional relationship with her client, a judge, by virtue of the position, does not. With that distance between the judge and, for example a criminal defendant, comes the difficulty of the former having to make a decision regarding the fate of an individual based only upon what information is provided by his or her attorney, the state, and others who give input to the court. To ensure that one is making a decision as fairly as possible, it is important to ask pointed questions, when appropriate, of the parties to ensure that enough information is being relayed to make an informed decision, and to make certain that more of an ear is not given to one litigant over the other.

Provide any other information you feel would be helpful to potential voters deciding whom to vote for.

I have spent my legal career working in Milwaukee County and have been dedicated toward improving the quality of life for everyone in our community. That’s why I have a large list of support: hundreds of legal professionals, community members, and Milwaukee County Circuit Court judges, who want me to serve in Branch 3. I have earned the trust and support of elected officials as well, from the Milwaukee County District Attorney to the Milwaukee City Attorney, alongside many municipal judges and mayors across our county.

Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.”