Shortly after Waukesha County courts opened to the public in late June, someone complained that Waukesha County Circuit Judge Brad Schimel was not enforcing the mask mandate set down by the top court officials for in-person hearings and trials.
Schimel did not respond well.
The former Republican attorney general sent an email on June 25 to a small group of individuals who worked in his courtroom, noting that he had just been called in by Judge Jennifer Dorow, chief judge of the 3rd Judicial District, for not enforcing the mandate aimed at curbing the spread of coronavirus.
Mask mandates were adopted both by the state Supreme Court in May and by Dorow’s office for Waukesha County judges a month later. These are separate from the one issued by Gov. Tony Evers.
“First, I do not intend to wear a mask,” Schimel wrote, citing chronic sinus issues that he said were aggravated by wearing a mask for extended periods. “Thus, for my own health, I will not be wearing a mask.”
It was a position and attitude that would land the first-term judge in seriously hot water.
Officials with the state Public Defender’s Office began complaining that Schimel was endangering the public by ignoring the mask mandate.
Then, on Aug. 28, Supreme Court Chief Justice Patience Roggensack intervened, barring Schimel from appearing in person for hearings in his own courtroom. For the next five weeks, Schimel sat alone in his judicial chambers — sans mask — and handled cases via Zoom, appearing on a large screen in the courtroom, where his staff, a bailiff, lawyers and defendants often sat.
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Schimel was effectively sent to the penalty box by the state’s top judge. He filed a motion pleading with Roggensack to lift the ban, but nothing happened for weeks.
Then, without explanation, Roggensack directed Dorow late last week to issue a new order letting Schimel out of detention. Beginning this past Monday, Schimel was permitted to appear in person for cases in his courtroom.
He has agreed to wear a mask.
In an email, Schimel said he has no idea what prompted the state’s top judge to get involved in the first place. But he said there are no hard feelings.
Schimel ran as a Republican when he was attorney general. He came under fire this week for being the emcee at an Ozaukee County Republican Party fundraising dinner. Roggensack is the leader of the conservative majority on the Supreme Court. The two, in short, should be political allies.
“The Chief Justice and I have spoken recently and are on good terms,” Schimel said. “I don’t want there to be an impression that we are at war. We are not. She did not change my caseload or take anything away from me. I requested that she reconsider the first order, and she did.
“It is, from my perspective, over.”
News of the bizarre happenings in Schimel’s courtroom started to come to light when Urban Milwaukee wrote recently that public defenders were upset that Schimel was not enforcing the mask mandate. Then, conservative talk show host Mark Belling reported Thursday on Roggensack’s orders.
The Journal Sentinel is now providing a full account of the dispute, based on court orders, emails from public defenders upset with the judge and Schimel’s affidavit detailing his exchanges with Roggensack. (Schimel took the situation so seriously that he penned a formal affidavit rather than just writing some notes.)
Asked earlier this week about any concerns from public defenders about his handling of his courtroom, Schimel made no mention of his dispute with Roggensack. Schimel was appointed to the bench by former Republican Gov. Scott Walker in 2018 after Schimel lost re-election as attorney general.
Schimel said he was taking the virus seriously. He noted that his courtroom is extensively equipped with plexiglass, those working his courtroom are wearing masks and everyone is practicing social distancing.
The judge said he was unaware of any “recent” concerns raised by the Public Defender’s Office.
“The bottom line is that we are far from a ‘super-spreader’ environment here,” Schimel maintained. “I am following the rules scrupulously.”
But the truth is that public defenders have been complaining for months that Schimel’s actions were putting them and their clients at risk.
In a July 14 email, Jeremy Perri, the Waukesha regional chief for the Public Defender’s Office, complained to Schimel that he was ignoring the mask mandates handed down by the Supreme Court and Dorow.
“I understand from conversations with my staff, and from an email you sent to the treatment court team, that you do not intend to wear a mask and do not intend on enforcing the mask requirement for others in your courtroom,” Perri wrote.
Perri said socially distancing alone was not a sufficient substitute for masks in courtrooms, where airflow is restricted.
Initially, Perri said he was concerned about the dangers created by not enforcing the mask mandate during jury trials. But he said the issue was larger than that.
“The more I’ve talked with staff and the more I’ve read about the risks of indoor activities,” he wrote, “I’ve realized this is not just an issue that affects an individual’s case, but is in fact dangerous, not to mention stressful, for my staff to have to appear in a court where these requirements are not being followed.”
Perri didn’t stop there. He then went over Schimel’s head by taking up the issue with Dorow.
State Public Defender Kelli Thompson, daughter of former GOP Gov. Tommy Thompson, also sent an email to Dorow on July 25 to complain without mentioning Schimel by name.
“SPD staff are very concerned that they are appearing in courtrooms where the judge and staff are not wearing masks,” Thompson wrote. “They are concerned about their health, their clients’ health, private bar attorneys’ health, and the health of their family members, as well as the community.”
Wilson Medina, spokesman for the Public Defender’s Office, said Dorow acknowledged receiving the letter but he said his agency has not had any further conversations since then. Medina said his office assumed the issues would be resolved within the court system.
Things came to a head in late August.
According to Schimel’s affidavit, Dorow told him on Aug. 20 that she had been contacted by Roggensack’s office to say the chief justice had been given information that Schimel was not following the face-covering rule. As a result, Roggensack was considering sanctioning Schimel by reassigning him.
A day later, Schimel talked with Randy Koschnick, director of state courts, who told the judge that Roggensack was “adamant” about the issue and that there were no exceptions to the mask mandate, including for health issues.
On Aug. 25, to the surprise of many, Schimel showed up in his courtroom wearing a mask and face shield. In his affidavit, he said he had decided not to challenge the Supreme Court’s mask order.
It was too late.
Roggensack called Schimel on Aug. 28. He decided to respond in writing. He said he didn’t know what he was up against because he had not been given the complaint or information Roggensack had about him.
“I have consulted an attorney in the event I may need legal representation,” Schimel wrote. “Frankly, all of this has me so upset that it is affecting my sleep.”
Roggensack responded: “Please just call. If you can’t wear a mask for health reasons, you can do only remote proceedings, where masks are not an issue.” Schimel apparently never called her back.
Schimel pushed back a little more than a week later.
On Sept. 8, he filed his motion with Roggensack asking her to reconsider her order. He said his rights were being abridged even though he had been “neither disrespectful nor insubordinate in any way.” He said he had decided not to hire a private attorney to challenge the chief justice.
Nothing happened for weeks.
In his email to the Journal Sentinel, Schimel said he will enforce the mask mandate in his courtroom. He said he now believes wearing a face covering will not create any long-term health consequences for him, based on his recent conversations with his doctor. He said he will get less sleep and snore more, but he said he can live with that.
“I would like to avoid that if I could, but that is not within the rules,” Schimel said. “While I sometimes challenge rules with which I disagree, I respect the rule of law.”
Patrick Marley of the Journal Sentinel staff contributed to this report.
Contact Daniel Bice at (414) 313-6684 or firstname.lastname@example.org. Follow him on Twitter @DanielBice or on Facebook at fb.me/daniel.bice.