High Stakes in TPR Proceedings Require the Balance that Juries Provide
We write in response to the article “Contrary to the Child’s Best Interests: Jury Trials in Children’s Court Proceedings” (April 2013), which suggested the elimination of jury trials in children’s court proceedings, particularly TPR cases. As the authors acknowledge, TPR proceedings involve the awesome authority of the state to destroy permanently parents’ fundamental right to parent their children. The termination of parental rights is one of the most severe forms of state action. An important check on this power is a parent’s or guardian ad litem’s right to demand that the proceedings be heard by a jury.
Although the authors assert that jury trials significantly delay permanency for children, data collected by the state public defender over the last five fiscal years indicate that on average statewide, a jury trial from filing to adjudication takes only 21 more days than a bench trial. Moreover, only 11 percent of TPR proceedings are ultimately tried to a jury.
One reason that relatively few cases are tried to a jury is that many of the grounds on which the court can find a parent unfit and terminate a parent’s rights are subject to summary judgment. Nonetheless, when a material factual issue is present, a jury trial allows parents to present their case to a cross-section of the community, which enhances the parents’ belief in the credibility of the process.
The real causes of delay in TPR proceedings are a lack of resources, long waiting lists for services, and court congestion, all of which undoubtedly harm families. The authors’ example of parents waiting roughly 180 days for a clearly needed AODA assessment in a “typical case” is, sadly, accurate. This example, however, covers a timeline only minimally linked to the jury option at the TPR stage. The article referenced in footnote 26, ADOPTION 2002: The President’s Initiative on Adoption and Foster Care Guidelines for Public Policy and State Legislation Governing Permanence for Children, identifies lack of services and resources as a significant source of delay. In fact, the report states, “If termination of parental rights is often unnecessarily delayed or denied, States are encouraged to review possible causes other than the language of the statutes.” (Original emphasis included.) We should not focus on jury trials as a main cause of delaying permanency for children; rather, we should address other systemic issues in the best interest of children and families.
A recent legislative study committee that examined many issues related to the child welfare system recommended many changes, including the elimination of jury trials in CHIPS and TPR cases. The committee, comprising experts in these areas, was most divided on this issue. Other proposals received significantly broader support and are likely to have significantly greater impact on improving the path to permanency. We should continue the long-standing recognition of the incredible stakes in TPR proceedings and retain the balance that juries provide in these matters.
Assistant State Public Defender, Office of the State Public Defender, Wauwatosa
Legal Counsel, Office of the State Public Defender, Madison
Nonsolicitation Agreement in Key Railroad Limited to Current Clients or Business Contacts
As one of the attorneys who represented Key Railroad in its successful appeal that is the subject of an article in the May 2013 issue (“Noncompete Agreements: A Suspect Expansion of Employers’ Rights”), I am writing to correct a material mistake made by the author in his analysis of the decision and to disagree with advice that the author gives toward the end of the article.
First, the author contends that the Key Railroad decision is in direct conflict with Equity Enterprises v. Milosch because, according to the author, the nonsolicitation covenant in Key Railroad contained an unlimited look-back period. Not so. The nonsolicitation covenant in Key Railroad was limited to current clients or business contacts (“any person or entity who is a client”; “business contacts … who have business relationships with KRRD”). The Milosch court rejected an unlimited look-back period that prohibited the employee from doing business with former customers of the employer. The Star Direct case identified a protectible interest in recent past customers because an employer has an interest in recapturing a customer’s business that the employer has recently lost.
Second, under the heading “Half a Loaf is Better than None,” the author approves use of a covenant not to compete that would bar a former employee from competing for the business of prospects with whom the former employee recently dealt. The Star Direct rationale for an interest in recent past customers does not apply. At least two federal courts have struck down covenants that prohibited solicitation of prospects who had declined to do business with the employer.
Robert B. Corris,
Robert B. Corris S.C., Milwaukee and Lake Country
The Death Penalty in Wisconsin Law: Gone Now for 160 Years
July 10, 2013, is the 160th anniversary of the abolition of the death penalty in Wisconsin. This sets Wisconsin apart from other jurisdictions. Nationally, Wisconsin law has been completely without the death penalty longer than the laws of any other state. Wisconsin also has been without the death penalty longer than any European country (even longer than the Vatican). It may be that Wisconsin has been without the death penalty longer than any jurisdiction that has the ability to impose the death penalty – or if there is such a jurisdiction, no one has yet identified that jurisdiction to me, since I mentioned that possibility in the 1993 Wisconsin Lawyer article that Blaine Renfert and I wrote for the 140th anniversary of the abolition of the Wisconsin death penalty.
The 160th anniversary is a remarkable achievement for Wisconsin and its residents, one worth at least commemorating, if not celebrating. Other jurisdictions that have had the death penalty, and have frequently used the death penalty, have gone through remarkably violent upheavals over the last 160 years (think Germany, Russia, China, or Mississippi, for example). In such jurisdictions, the rule of law has been ignored or broken down for extended periods of time, and violence has swept through those societies. In contrast, Wisconsin through this period has managed to be “that City on a Hill,” a society remarkable for its mostly law-abiding residents, who resolve their disputes and differences not through mob violence, vigilantism, or insurrection, but through a system and set of laws that does not include legally imposed death as a penalty. Wisconsin has not in these last 160 years had to resort to the “ultimate penalty” to maintain order. (Wisconsin did not even execute the man who, in Milwaukee in 1912, shot – and amazingly did not kill – former-president Theodore Roosevelt, although the act did end Roosevelt’s campaign to regain the White House.)
Without resorting to the death penalty, Wisconsin continues to have one of the lowest per-capita murder rates in the United States. In 2011 (the most recent year for which data is available), Wisconsin ranked 39th among states when it comes to murder rates. In the top 12 states for murder, only two have abolished the death penalty, while in the bottom 12 states for murder, seven (including Wisconsin) have abolished the death penalty. One of the benefits of federalism is that the states can be “laboratories of democracy,” where, as Justice Louis Brandeis famously indicated, a state “may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments.” July 10, 2013 is good day to toast Wisconsin residents and the remarkable system of laws by which they have chosen to govern themselves.
Alexander “Sandie” Pendleton,
Kohner, Mann & Kailas S.C., Milwaukee
July 18 Open House Celebrates SPD’s 35 Years
The State Public Defender (SPD) opened its first trial offices 35 years ago. The first offices opened were the Fond du Lac Trial Office and the Juneau Trial Office. Today, the SPD has a total of 35 trial offices and two appellate offices that provide legal representation to indigent residents in all 72 Wisconsin counties.
To honor its 35th anniversary, the SPD welcomes visitors to its Fond du Lac Trial Office on July 18, 2013, from 10 - 11 a.m. (a time that accommodates the local court calendar). The office is located on the third floor of the Fond du Lac County Courthouse at 160 S. Macy Street, Fond du Lac.
Randy Kraft, Communication Director,
Wisconsin State Public Defender, Madison
Notice to Readers: Change in Publication Schedule
Next month you will receive a combined July/August issue of the Wisconsin Lawyer magazine. Going forward, in place of the August issue, you will now receive a January issue of the magazine.
In addition, we expect to publish the 2014 Wisconsin Lawyer Directory in the summer, which means the directory will include hundreds of new members admitted in the spring of each year and reflect changes in leadership on July 1.
If you’re like many Americans, your summertime reading is done poolside. Go ahead, we’ve made it easier to reach for a lighter read in August.
Wisconsin Lawyer editorial board and editors