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County budget may tie court funding to sentencing

ImageDoes anyone remember reading Tumey v. Ohio, 273 U.S. 510 (1927), and Ward v. Village of Monroeville, 409 U.S. 57 (1972), back in law school? Has anyone come across them doing research while practicing law?

Probably not.

In Tumey, the U.S. Supreme Court held that it violated due process, where a judge’s salary derived from fines in cases where the defendant was found guilty. In Ward, the Supreme Court held it also violated due process where the mayor — who was responsible for the village’s finances — was also the village judge who imposed the fines on the guilty, providing roughly half the village’s budget.

Obscure as these cases may be, they are implicated in an ongoing dispute between the circuit courts in Dane County and County Executive Kathleen Falk.

Falk’s proposed 2009 budget would require that the courts place 45 defendants in a community service program by May 1, or else lose funding for four staff attorneys.

Both Dane County Chief Judge C. William Foust and District Attorney Brian Blanchard contend the proposal is unconstitutional.

In an Oct. 7 letter to the County Board, Blanchard wrote, “The County Executive has no responsibility over, or even familiarity with, the particulars of criminal cases as they come before the courts. The County Executive cannot direct courts in the operation of one of the courts’ most important responsibilities: to fashion individual sentences that are lawful, and that fit the particular circumstances of each case before the court.”

In Barland v. Eau Claire County, 216 Wis.2d 560, 575 N.W.2d 691 (1998), the Wisconsin Supreme Court held that it violated the inherent powers of circuit courts for a county to remove and hire the courts’ judicial assistants.

Here, the county is going even further, Blanchard argues, by invading a core judicial function — sentencing — as opposed to an administrative one.

Blanchard said that, even though the county executive would not literally be handing down sentences, by saying that the courts will only get the resources they want if they follow the approach the county executive dictates, the proposal still interferes with the courts’ inherent powers.

Blanchard emphasized that he supports alternative sentencing programs, and his objection here is only procedural. “But it is an important procedure,” he said.

Judge Foust could not be reached for comment, but, in an Oct. 3 letter to Falk, Foust demanded that the benchmark be withdrawn, stating, “Just as we would not submit to a mandate that some set number of defendants will receive the maximum possible sentence, we cannot agree with you that some set number of defendants should repay their debt to society via community service.”

Foust added, “When we sentence a defendant we must be mindful of the nature of the offense, the character of the offender, and the need for protection of the public, not whether our sentence will generate funding for staff.”

Falk, however, defends the benchmarks in the proposal, and does not believe that it raises any constitutional issues.

In an interview, Jose M. Sentmanat, an executive assistant to Falk, said that the impetus for the proposal is that the county has 1.5 staff members allocated to oversee up to 45 inmates in the community service program. However, only around 15 inmates are generally in the program.

Underutilization of the program thus wastes resources in two ways: the program is overstaffed relative to the number of inmates in the program; and the county spends more to incarcerate (roughly 30) inmates than it would if they were in the program. Sentmanat said, “There is limited funding available. We are trying to make it go as far as possible.”

Disputing that the proposal interferes with the courts’ inherent powers, Sentmanat said, “No one is ordering the judges to sentence anyone to anything.”

Some members of the County Board are skeptical as well, including John E. Hendrick, an attorney with the Coalition of Wisconsin Aging Groups, and the vice chair of the Board.

Hendrick emphasized that the Board is still reviewing the budget proposal, and it may not end up in the final budget. He said that, while he is not against benchmarks, he recognizes that the proposal raises a serious constitutional problem, and any benchmark must be structured to respect the discretion of the courts.

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