Clarke fights summary judgment in House of Correction lawsuit (UPDATE)

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Milwaukee County Sheriff David Clarke Jr.’s attorney is claiming the county’s Board of Supervisors erred when it tried to transfer control of the House of Correction to a superintendent.

Clarke sued the county in December after the board took that control away from him. The county now has requested a judge grant it summary judgment in the case.

A hearing on that request is scheduled to go before Milwaukee County Circuit Judge Paul Van Grunsven on April 18.

In his response to the county’s motion for summary judgment, Clarke’s attorney, Michael Whitcomb, argued the HOC became a jail after the supervisors gave Clarke control in 2009.

Under state statute, only a sheriff may oversee a jail, but either a sheriff or a superintendent may oversee a house of correction, which traditionally offers rehabilitative programs to inmates.

Whitcomb cited a 2009 National Institute of Corrections report that alleges the County Board in 2008, “voted to eliminate the House of Corrections as a County Organization and consolidate that sentenced facility with the Sheriff’s downtown jail.”

However, Whitcomb said Thursday, he does not have evidence that the County Board ever voted to make that switch.

Supervisor Mark Borkowski, chairman of the board’s Judiciary, Safety and General Services Committee, said he does not remember voting on whether to change the House of Correction to a jail.

“Clarke was the one. Clarke was the one who changed the name of the House of Correction to County Correctional Facility-South,” he said. “That doesn’t even say ‘jail’ in it.”

In court documents, Milwaukee County’s attorney objects to the name change, alleging it was “unilaterally created and used” by Clarke. The county’s jail is named the County Correctional Facility-Central.

When the supervisors approved a transfer to a superintendent through the 2013 budget, Whitcomb said, they did not change the description of the building back to a house of correction.

“I’m not taking the legal position, nor is the sheriff taking the legal position, as to the manner the county can legally create a house of correction,” Whitcomb said. “The argument in the brief is the budget did not do it.”

And that, he said, should be enough to ensure the lawsuit reaches trial.

But Mark Grady, deputy corporation counsel for the county, said the House of Correction has never been a jail. The corporation counsel is not defending the county in Clarke’s lawsuit.

“Certainly, it’s the county’s position,” he said, “that the county has maintained a house of correction for 150 years.”

Grady declined to comment on the specifics of the lawsuit but said the county’s 2009 budget does not label the House of Correction a jail when granting Clarke oversight.

According to state statute, a county board may establish a house of correction, but that statute does not specify how that should be done.