Judge dismisses sheriff’s lawsuit over House of Correction control (UPDATE)

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Milwaukee County Sheriff David Clarke Jr.’s attorney pledged Wednesday to appeal a judge’s decision to dismiss a lawsuit alleging a superintendent cannot assume control of the House of Correction in Franklin.

But that promise of appeal will not be enough to continue stalling the transfer of authority.

Clarke sued the county in December after the Board of Supervisors included a provision in the 2013 budget stripping him of control of the HOC. Supervisors have said they wanted to return the HOC to a superintendent because of concerns about programs Clarke refuses to offer, such as electronic monitoring.

Clarke has overseen the HOC at the request of the board since 2009, when it took control away from then-superintendent Ron Malone.

Clarke argued the HOC, which he unofficially renamed the County Correctional Facility South, is a jail. Under state statute, either a sheriff or superintendent can operate a house of correction, but only a sheriff may operate a jail.

However, Milwaukee County Circuit Judge Paul Van Grunsven disagreed with the assertion that the HOC is a jail.

He issued a written decision Wednesday dismissing Clarke’s case “in its entirety.” The HOC always has been a house of correction, according to the ruling, and granting Clarke control in 2009 did not change that.

“When Clarke assumed management of the HOC he renamed it, not as a jail, but as the CCFS,” according to the ruling. “Clarke knew or should [have] known what he was given to manage was a HOC; not a jail.”

Michael Whitcomb, Clarke’s attorney, said he will appeal Van Grunsven’s ruling. However, he declined to comment further, saying he needed time to read and digest the judge’s 11-page decision.

Clarke could not be immediately reached for comment.

Van Grunsven also disagreed with Clarke’s argument that giving a superintendent control of the HOC would illegally shift oversight to the executive branch of county government. Under state statute, the County Board controls a house of correction, either through a sheriff or a superintendent.

Although the superintendent’s office would fall under the executive on an organizational chart, according to Van Grunsven’s ruling, the board does not relinquish any authority.

Fran McLaughlin, spokeswoman for the Office of the Sheriff, responded to a request for comment from Clarke on Wednesday with a statement posted to the department’s website and Facebook page.

The statement, attributed to Clarke, alleges Van Grunsven had “ethical lapses” during the case and should have recused himself.

Van Grunsven received an email from Supervisor Pat Jursik and was listening to a radio program when Clarke, as a guest, began discussing the HOC lawsuit, according to the statement. Van Grunsven downloaded that email, the statement alleges, which amounts to ex parte communication.

“I just know it’s something she sent out countywide,” McLaughlin said Thursday, “but I don’t know what it said.”

Jursik did not immediately respond to a request for comment.

In March, Whitcomb said Van Grunsven disclosed those actions to counsel, as well as a third potential conflict of interest: a minor car accident with Supervisor Gerry Broderick near the courthouse.

“They’re minor matters,” Whitcomb said in March. “There really aren’t any reasons for him to recuse himself based on what he said.”

Whitcomb did not immediately respond to a request for comment Thursday.

Broderick said the minor accident occurred as he was backing out of a parking space. It was snowing, he said, and a large van blocked his view of Van Grunsven’s vehicle as it approached.

They only discussed the accident, Broderick said, and their insurance companies have resolved the matter.

McLaughlin said she was unaware of the accident and was unsure why Clarke had not included it in his statement.

However, the statement alleges Clarke was denied “judicial impartiality” and pledges not only to appeal, but to take the case to the Wisconsin Supreme Court if necessary.

“Lady Justice is blindfolded to represent objectivity,” according to the statement. “Van Grunsven peeked out from under that blindfold in this case and saw Sheriff Clarke.”

Next steps

In March, County Executive Chris Abele named Michael Hafemann interim HOC superintendent but said he would not make the nomination official until Clarke’s lawsuit was resolved.

Despite Whitcomb’s promise of appeal, Hafemann said there is enough clarity in the case now for him to be sent to the board for confirmation. Hafemann said he expects the supervisors to vote on his appointment this month.

“I think it’s appropriate at this stage,” he said.

Hafemann said he was open to working with the sheriff to develop a slate of programs to be offered at the HOC. Those programs likely will include educational and vocational training, he said, as well as a return to electronic monitoring.

Hafemann said he plans to offer electronic monitoring based on the same criteria Clarke used when he first took control of the HOC.

“He had an excellent program,” Hafemann said. “They had a 99.7 percent compliance rate.”

He said that means major violations of the program, based on numbers from 2009 and 2010, were rare. Hafemann declined to name a number of inmates he wants to release on electronic monitoring, saying he did not know how many inmates are eligible.

“If it’s only 10, it’s 10,” he said. “If it’s 200, it’s 200.”

The county previously had as many as 200 inmates on the program at any one time.

Hafemann, who was in the audience as Van Grunsven made his ruling, said he was pleased with the decision and eager to get started.

“It means,” he said, “that we can move forward.”