The Continuing Deterioration of Wisconsin’s Judicial System - Part Five
Circuit Court Judge Gregory Gill, Jr.’s recent electoral victory for a seat on the Wisconsin Court of Appeals demonstrates why enacting basic court reforms in the state remains an elusive task.
While the geographical area covering the Wisconsin Court of Appeals—District Three generally favors candidates who embrace political conservatism, it is fathomable for a judicial candidate to succeed without formal backing from the conservative establishment in Wisconsin. For example, Wisconsin Court of Appeals—District Three Judge Mark Seidl defeated his more conservative opponent, then-Eau Claire County Circuit Court Judge Bourget, by a sizeable margin in the 2015 spring election for the state court of appeals—notwithstanding that the geographical area generally favors politically conservative candidates. And outside the context of judicial elections, David Obey, former Democratic representative for Wisconsin’s 7th Congressional District, was repeatedly re-elected during a 40-year period in the politically conservative leaning congressional district in northern Wisconsin (which substantially overlaps with the geographical area covered by the Wisconsin Court of Appeals—District Three), even surviving the 1994 “Republican Revolution” in the United States House of Representatives.
Given Outagamie County Circuit Court Judge Gregory Gill, Jr.’s controversial campaign conduct, his general election opponent should have been able to seize those controversies to launch a serious challenge to his candidacy for the state court of appeals. Instead, Judge Gill Jr.’s opponent wasn’t even able to mount a credible challenge.
Rick Cveykus, managing law partner at Cveykus Law Office in Wausau, Wisconsin, officially announced his candidacy for the Wisconsin Court of Appeals—District Three on October 16, 2020. In his campaign announcement, Cveykus highlighted his local community involvement and promised that, if elected, he would “not just maintain the status quo,” but would instead take affirmative steps to “help make [Wisconsin’s legal] system work better.” Just a couple weeks later, his general election opponent, Judge Gill, Jr., would informally announce his own candidacy for the position.
Significantly, though, Cveykus neglected to develop a formal campaign platform. And apart from lacking a substantive campaign platform, he also failed to publicly advocate for the hiring of more support staff at the Wisconsin Court of Appeals necessary to maintain a functioning state intermediate appellate court. Instead, Cveykus hired Nation Consulting, a political consulting firm “with ties to the Democratic National Committee and [Wisconsin] Democratic Party,” to assist his campaign effort. But given his political background, this decision was entirely predictable.
According to the Wisconsin Law Journal, Cveykus “made $2,400 in contributions to candidates over the past 10 years.” Not surprisingly, most of those contributions went to Democratic candidates. Furthermore, five and a half months before he declared his candidacy for the Wisconsin Court of Appeals, Cveykus inexplicably donated $100 to Jeff Johnson, a candidate for Wisconsin’s 85th Assembly District on the Democratic Party ticket in the 2020 fall election, who ultimately was not successful in his electoral bid.
Nation Consulting appears to have been heavily involved with the Cveykus campaign’s fundraising operation. Alanna Conley, who serves as operations manager of Nation Consulting, worked as his campaign committee’s treasurer during the campaign. Also, one of Nation Consulting’s partners, Sachin Chheda, used Facebook to publicly solicit contributions from other people to help finance the Cveykus campaign. According to his campaign committee’s finance reports, Cveykus ultimately paid a total of $10,000 in consulting fees to the Democratic-affiliated political consulting firm.
However, his decision to hire National Consulting was did not bode well for the Cveykus campaign. Unlike his opponent, who had backing from most of Wisconsin’s state court of appeals judges, Cveykus did not receive a single endorsement from a current or former Wisconsin appellate court judge. And although Cveykus nominally raised $62,500 over the course of the campaign, that figure obscures the amount of popular support his campaign actually had.
For instance, Cveykus announced in an early January press release that he had received more than $50,000 in campaign contributions for his candidacy for the Wisconsin Court of Appeals. At the time, he deemed it a “significant achievement” for his campaign that “shows the deep and engaged support” it had “built thus far.” The Wisconsin Law Journal apparently thought so, too—as the legal periodical ran an entire report on the Cveykus campaign’s purported fundraising “achievement.”
According to his campaign committee’s 2021 January continuing campaign finance report, though, most of the campaign contributions the Cveykus campaign received in 2020 came directly from the candidate himself, in the form of a $40,000 personal loan to his campaign committee. And during January, Cveykus had a precipitous drop in campaign contributions. According to his campaign committee’s 2021 spring pre-primary campaign finance report, Cveykus only received $1,300 in campaign contributions that month. While Cveykus was able raise more than $9,000 during the remainder of the campaign, Judge Gill, Jr.’s campaign easily eclipsed that amount—raising nearly $50,000 during that same timeframe.
Of course, Cveykus did receive some support from the Wisconsin Democratic Party apparatus during the campaign. For instance, according to his campaign committee’s 2021 spring pre-election campaign finance report, Cveykus received monetary support from Tricia Zunker, a former Democratic candidate for Wisconsin’s 7th Congressional District, and Wausau Mayor Katie Rosenberg, a self-identified political “progressive.” He also received a $5,000 campaign contribution from Deborah Kern, who founded the Garden Room (now called MOD GEN), a general store in Milwaukee’s Third Ward, and is known for giving money to Democratic candidates in Wisconsin. Furthermore, Cveykus received an in-kind contribution from the Wisconsin Democratic Party—apparently, in the form of political consulting services.
Nonetheless, with the possible exception of public endorsements from Citizen Action of Wisconsin and Wisconsin Justice Initiative Action, his support among Wisconsin Democratic Party insiders did not materialize into a broader coalition of support. Making consistent contributions to political insiders over the years; soliciting endorsements from political figures; and even hiring a Democratic-affiliated political consulting firm to assist with running his judicial campaign were unable to prevent Cveykus from getting shellacked in the 2021 spring general election. But given his professional background, his large electoral loss was entirely foreseeable.
A large portion of state appellate court judges in Wisconsin have had some sort of experience working for the Wisconsin judiciary prior to becoming appellate court judges—whether in an official adjudicative capacity or, perhaps, as an adjunct (such as a judicial law clerk). While not strictly necessary to be qualified for such a position, having previous judicial experience in the Wisconsin court system is electorally advantageous—typically demonstrating that the judicial candidate either has some sort of adjudicative experience with the state’s appellate law or, based on the candidate’s other judicial experience, will be able to learn it fairly quickly. Otherwise, a judicial candidate has to point to more traditional legal experience to demonstrate that he or she has the necessary skills and background to become a state appellate court judge in Wisconsin—such as experience practicing appellate law in the Wisconsin court system.
Needless to say, Cveykus has no previous judicial experience. And it appears that most of the legal work he undertakes involves trial court proceedings. For example, he has filed legal briefs in only three appellate court cases in the Wisconsin court system over a 10-year period (and over his 14-year career as a lawyer). Moreover, an examination of those briefs reveal that Cveykus does not possess the basic competency required to be an appellate attorney—let alone an appellate court judge—in the Wisconsin court system.
First, his appellate court briefs repeatedly fail to conform to basic requirements set forth in the Wisconsin Rules of Appellate Procedure. For instance, the legal briefs Cveykus filed in his first two appellate court cases fail to cite to the record when making factual assertions and fail to provide a one sentence summary of the argument for each legal issue being presented for appellate review—in contravention of Wis. Stat. § 809.19(d)-(e). However, as soon as the Wisconsin Court of Appeals admonished him in a 2014 per curiam decision for failing to provide an appropriate record citation to one of the factual assertions contained in his briefing, Cveykus made sure not to make that same mistake again going forward.
Yet, like the legal briefs he filed in his first two appellate court cases, the briefs Cveykus filed in his most recent appellate court case repeatedly fail to provide appropriate pinpoint citations—i.e., to a specific page or paragraph number—when citing court decisions, in violation of the Wisconsin Rules of Appellate Procedure. Furthermore, Cveykus makes an objectively frivolous argument when he argues (and without any accompanying citation to legal authority) that his client was inappropriately charged by the municipal court, when appealing a municipal court judgment to the circuit court, for the costs of preparing a transcript of all the municipal court proceedings—even though the version of Wis. Stat. § 800.14(5) in effect at the time of the appeal to the circuit court explicitly required the municipal court to “order the preparation of a transcript of the proceedings, at the cost of the appellant.”1
Second, his appellate court briefs fail to grasp the basic legal concept called “standard of review.” While not explicitly required by the Wisconsin Rules of Appellate Procedure, Michael Heffernan’s Appellate Practice and Procedure in Wisconsin—the state’s leading practice guide on appellate law in the Wisconsin court system—notes that “good appellate briefs state the appropriate standard of review at the beginning of each argument and then apply it.” According to Heffernan’s appellate practice manual, the standard of review both describes and controls the degree of deference the state appellate court gives to the circuit court’s legal and factual determinations. And because “the standard of review often determines the outcome on appeal,” a party would be remiss for failing to provide it in their appellate court briefs.
However, the legal briefs Cveykus filed in his first two appellate court cases did not contain anything resembling a standard of review—notwithstanding the fact that he raised 14 different legal issues in those two cases. And while the briefs Cveykus filed in his most recent appellate court case nominally contain standards of review, they do not embody what that legal concept describes—i.e., the degree of deference an appellate court is required to apply to a lower court’s decision. Instead, the briefs go straight into the merits of the underlying legal issues without first providing a clear legal framework for the appellate court to decide those issues.
A lawyer who decides to provide legal representation in an appellate court case—like a lawyer in any other legal situation—must undertake a reasonable investigation of the facts and law underlying the matter in order to provide competent legal representation. By routinely failing to provide a concise and accurate “standard of review” for the various legal issues he presented in his legal briefs for appellate review over the course of his career as a lawyer in Wisconsin, Cveykus failed to provide appropriate appellate representation to those affected clients.
Heffernan’s practice guide on appellate law in the Wisconsin court system provides the following guidance to lawyers: “Before taking an appeal, an attorney should also consider whether he or she has the time or expertise to prepare the appeal. Referring the appeal to another attorney may be desirable.” Cveykus certainly could have done that—chosen to refer the three appeals he decided to take on to a different attorney with expertise in Wisconsin appellate law. He also could have taken much less drastic measures.
For instance, he could have simply asked for assistance with drafting appellate standards of review in Wisconsin from James Miller, an attorney who works at the law firm where Cveykus is the managing partner. Miller’s own legal briefs filed in Wisconsin appellate courts, such as this one, demonstrate that he had a basic understanding of the concept of standard of review—which isn’t surprising, given that Miller worked for several years as a judicial law clerk at the Wisconsin Court of Appeals. (Disclosure: When Miller left the Wisconsin Court of Appeals to work at the Cveykus Law Office, I replaced him as a judicial law clerk.)
Additionally, Cveykus could have referenced Wisconsin’s leading appellate practice manual for help. Not only does it provide the three general categories of appellate court review, it also provides a more detailed description of the standard of review an appellate court is to apply when reviewing specific types of lower court decisions in Wisconsin. Furthermore, Cveykus could have used Google Scholar to locate Pierce v. Underwood, a 1988 United States Supreme Court decision aptly summarizing the three traditional standards of review that may be implicated in an appellate court review of a lower court’s decision. Cveykus could even have just used Google to search for webpages containing the phrase “Wisconsin standard of review.” The second result of that Google search provides a hyperlink to Kimberly Alderman’s and Chelsey Dahm’s 2013 Wisconsin Law Journal article—with the prescient title, “Trial Attorneys Need to Understand Appeals Standards of Review”—which itself contains a concise summary of the three general categories of appellate review in Wisconsin.
With no endorsements from current or former Wisconsin appellate court judges, no formal campaign platform, no developed appellate law skills, and (in relative terms) a diminutive campaign chest, Cveykus always had a slim chance of making a major breakthrough in getting enough support for his campaign to succeed. Sure, his rhetoric on some issues, such as his criticism at a remotely held February candidate forum about the obscene amount of campaign contributions Judge Gill, Jr., had received (and who he had received them from) was veracious. Yet, his limited criticism of Judge Gill, Jr., did not sway persuadable voters.
In part, that’s because Cveykus lacked the traditional credentials people expect from a judicial candidate in Wisconsin: prior experience working for the judiciary in some capacity. However, other factors were likely involved. An inability to convince voters outside his narrow political base to support his candidacy might have also been attributable to the Cveykus campaign’s failure to be “completely” forthright with the public on a variety of fronts.
For instance, when he first publicly released his campaign’s financial figures with the public, Cveykus conveniently neglected to inform media outlets and eligible voters that a substantial portion (nearly 80 percent) of the campaign contributions he “received” actually came from himself, in the form of a $40,000 personal loan. Not only did Cveykus attempt to mislead people about how much public support his campaign had, he also attempted to mislead them when publicly advocating to help “take politics out of the courtroom,” as his own judicial campaign was accepting assistance from the Wisconsin Democratic Party, unbeknownst to those outside his campaign circle. Furthermore, while Cveykus discussed the Wisconsin court system’s problem with a large backlog of appellate court cases, he did not bring up this issue until very late in the campaign—and without a concrete plan to address the backlog problem.
Finally, Cveykus’s large electoral loss might also have been caused, at least in part, by his inexplicable decision not to critique Judge Gill, Jr., on certain controversial subjects. Like the latter’s decision to hire Landis Holdorf—an extreme nationalist and stringent apologist for the “stop the steal” conspiracy theory—as his campaign manager. Or Judge Gill, Jr.’s apparent decision to campaign around the northern part of Wisconsin without abiding by CDC guidelines regarding social distancing during the global COVID-19 pandemic.
To have any chance of defeating a well-financed candidate like Judge Gill, Jr., who also has the backing of the Wisconsin’s legal and political conservative establishment, it is necessary to establish an incisive critique of that opponent, while also separately providing a substantive platform explaining the actions the candidate will take once in office. Unfortunately, Cveykus accomplished neither objective.
When Cveykus did finally criticize some of Judge Gill, Jr.’s conduct during the campaign, it was too late. His denunciations were largely discounted by the electorate because they could see that his campaign had already engaged in similar—and frankly, dishonest—conduct. The critical moment in which Cveykus decided to focus his attention on raising money for his judicial campaign and collecting endorsements from Democratic political insiders, rather than finding the necessary time to provide eligible voters with a genuine plan to improve Wisconsin’s frail judicial system, his campaign’s bleak fate was permanently sealed.
Until last summer, Outagamie County Circuit Court Judge Gregory Gill, Jr., never contemplated running for the Wisconsin Court of Appeals. That’s when Lisa Stark and Thomas Hruz, judges on the Wisconsin Court of Appeals, “approached” him about the impending retirement of their colleague, Wisconsin Court of Appeals—District Three Judge Mark Seidl. The timing of their apparent effort to recruit Judge Gill, Jr., to seek higher judicial office suggests that Judge Stark and Judge Hruz found out about Judge Seidl’s decision to retire from the state court of appeals only after he reactivated his campaign committee in response to my formal complaint against him with the Wisconsin Ethics Commission.
Like the other state court judges in Wisconsin who ultimately endorsed Judge Gill, Jr.’s candidacy for the Wisconsin Court of Appeals, Judge Stark and Jude Hruz appear to have been captivated by the superficial elements of Judge Gill, Jr.’s personal and professional background. For instance, Judge Gill, Jr., appears to have been raised in a middle-class (or upper-middle-class) household. And while attending the University of Wisconsin—Madison as an undergraduate student, he was on the track and field team, where he would become an All-American decathlon athlete. Furthermore, his four brothers were also student-athletes at the University of Wisconsin—Madison, with two of them playing for the university’s renowned varsity football team as undergraduate students.
Then as a third-generation lawyer, Judge Gill, Jr., worked at his family’s law firm (along with one of his brothers) for several years after finishing a stint as a judicial law clerk for a federal district court judge. After leaving his family’s well-established law firm, he spent almost a decade serving as a circuit court judge in Outagamie County without public controversy—where he recently received an annual salary in excess of $140,000.
Today, Judge Gill, Jr., is an active member of his local community. He serves on the board of directors of the Valley Kid’s Foundation, a non-profit organization which provides assistance to local youth in Wisconsin’s “Fox Valley” area. And Judge Gill, Jr., is also a proud Christian; throughout the course of the recent judicial campaign, he was not shy about publicly promoting his religiosity to eligible voters on his campaign’s social media pages.
On the surface, Judge Gill, Jr., was a model state appellate court candidate. But beneath the façade, his true character was waiting to be uncovered by someone with the motivation to spend the necessary time to conduct a close inspection of his past. In this particular instance, for obvious reasons, that person happened to be me.
For example, I easily discovered that Judge Gill, Jr., spent the entirety of his career as an attorney in private practice essentially assisting corporate entities exert more political power over their employees. Then in 2011, the conservative Wisconsin governor at the time, Scott Walker, rewarded him with a judicial appointment to the Outagamie County Circuit Court.
More recently, I discovered that Judge Gill, Jr., received more than $180,000 in campaign contributions on his way to being elected to a judgeship on the Wisconsin Court of Appeals—Three, $22,500 of which came from close family members of his. To top it off, Judge Gill, Jr., even contributed $2,500 of his own money to the campaign. But those campaign contributions paled in comparison to the $82,000 Judge Gill, Jr.’s campaign received from wealthy people with close connections to corporate interests.
By the end of the campaign, Judge Gill, Jr., had spent more than $100,000 on his election efforts. For instance, he paid Targeted Creative Communications, which characterizes itself as “a Republican political strategy and advertising firm,” nearly $50,000 for mailing and graphic design services. Additionally, Judge Gill, Jr., paid more than $20,000 to Grassroots Targeting—a marketing firm known for helping conservative political candidates target eligible voters with their campaign message—in consulting fees and for administrative expenses; and he also paid more than $9,000 to Dan Morse Consulting for consulting services, apparently for acting as a fundraising consultant to his judicial campaign.
Of course, one should not forget that over the course of the campaign, Judge Gill, Jr., also paid $10,500 to his campaign manager, Landis Holdorf. During the campaign, I discovered that Holdorf publicly supported the fantastical “stop the steal” conspiracy theory and, apparently, he continues to support the widely disreputed conspiracy theory even today—months after the insurrection at the United States Capitol—as many (but not all) of his Twitter posts embracing the conspiracy theory remain on his Twitter page for all to see.
After serving as Judge Gill, Jr.’s campaign manager, Holdorf seems to have gone back to his more comfortable political roots as a “paleoconservative”—a conservative political ideology that, as Vox’s Dylan Matthews explains, “often veers into racism.” For instance, Holdorf publicly tweeted in mid-April that “Republican governors who refuse to use the power of the state . . . really are the weakest race.” And even more recently, he has publicly retweeted another person’s tweet asserting that critical race theory “is a destructive poison,” and a conservative organization’s tweet contending that the theory is “[un]-American propaganda.” Holdorf is apparently trying his best to emulate Jonah Ryan, the fictional character (and presidential candidate) in HBO’s Veep who promised eligible voters he would move to ban the teaching of math in American schools because “math was invented by Muslims.”
Since the 2021 spring election, however, Holdorf has done more than just continue to publicly embrace racial taxonomy—a pernicious ideology whose roots took hold during the so-called “Age of Enlightenment.” Holdorf has also conveyed public support on Twitter for United States House of Representative Matthew Gaetz, II, to become the next Speaker of the United States House of Representatives. But now that Representative Gaetz is embroiled in “a federal investigation into a number of [criminal] allegations of a sexual nature, including whether he had a sexual relationship with a 17-year-old girl a few years ago” and “whether [he] obstructed justice during a phone call he had with a witness in the sex-crimes investigation,” Holdorf has apparently deleted his retweet in support of Representative Gaetz.
Holdorf’s public behavior is wholly reprehensible. His political views might be considered anachronistic by many in today’s political environment. However, it does not change the harmful content of Holdorf’s political views—which are largely anchored in white supremacy ideology. Without skipping a beat, Judge Gill, Jr., embraced Holdorf as his campaign manager. And he didn’t look back.
At the end of the day, the fact that Judge Gill, Jr., may attend church once every week—and might even publicly post about it sometimes on social media afterwards—does not automatically bring him redemption, at least in the secular sense of the term, for uncritically associating himself with Holdorf, who has an ongoing history of posting “racially insensitive”—and in this scenario, more accurately classified as “racist”—material online for everyone to see.
If it wasn’t already evident, the personal and professional backgrounds of Judge Gill, Jr., and I stand in stark juxtaposition to one another.
In contrast to Judge Gill, Jr., the journey to adulthood was a chaotic experience for me. To start off with, I was raised in a lower-class household, receiving meals at school for free and at a reduced price through my childhood and into adolescence. To make matters worse, my father—who had been convicted of a felony while I was in high school—was an emotionally and physically abusive parent. In retrospect, my father likely had undiagnosed post-traumatic stress disorder—the end result of years of abuse he experienced at the hands of his own parents.
As a third-generation trauma survivor, my therapist administered an adverse childhood experiences (ACE) assessment to me five years ago. According to the assessment, my ACE score is seven (on a 10-point scale)—meaning that, all other things equal, my life expectancy has been reduced by 20 years. As the years continued to pass by after the assessment, many of the effects my dysfunctional childhood was exerting on me became more clear: persistent headaches (including debilitating migraines); an inability to relax; unhealthy perfectionism; intermittent difficulty concentrating on basic tasks; and uncontrollable shame.
However, in combination with taking prescribed medication on a daily basis, consistently attending counseling sessions with a mental health provider helps me manage many of the symptoms associated with experiencing complex trauma. Yet, some of those symptoms still persist. And even today, I continue to observe both of my siblings struggle to cope with the noxious effects of our shared childhood trauma. Given this background, it’s not surprising that I’ve been estranged from my father for more than a decade.
After graduating from high school, I attended Northern Michigan University. While I was not a student-athlete like Judge Gill, Jr., during my time as an undergraduate student, I nonetheless was an active member of the university community, participating in student government and writing for the university’s independent student newspaper, the North Wind. As a student government representative, I advocated for the creation of a student-run credit union on campus and for the then-judicial branch of NMU’s student government—the ASNMU All Student Judiciary, which also adjudicated alleged violations of the university’s student code—to engage in “concrete judicial review” of student governmental action. And when I later served as the opinion editor for the North Wind during my last semester at NMU, I wrote about how there are more than enough lawyers for the affluent in this country—but not close to enough lawyers to help those who are among the most economically disadvantaged and vulnerable.
As a law student at the University of Wisconsin Law School, I advocated for those who are discriminated against because of their sexual orientation, writing multiple opinion columns on the subject for the Badger Herald, one of the university’s independent student newspapers. I specifically argued that people who publicly opposed marriage equality at the time “subject many children to unnecessary humiliation by essentially telling them that their parents are second class citizens.”
Upon graduating from the University of Wisconsin Law School, I continued to advocate for the oppressed and the less fortunate. For example, in addition to serving the Wisconsin judiciary in a support role—both as a judicial clerk and as a staff attorney—for a majority of my career as a lawyer, I also persistently advocated for the end of Wisconsin’s decade-long illegal discrimination against prospective lawyers who had a treated mental disorder. After several years, my efforts culminated in the reform of Wisconsin’s antiquated process for evaluating prospective lawyers’ character and fitness to practice law.
Finally, when making my recent run for the Wisconsin Court of Appeals, I self-financed my campaign. But significantly, I limited my own campaign contributions to $800—all of which I had saved from my previous job as a staff attorney at the Dane County Circuit Court, where the pay was low and the working conditions were substandard, with a lack of basic work benefits, such as paid sick leave. In addition to running for judicial office during the COVID-19 pandemic, I also provided legal services to others, largely on a pro bono basis for free. As a result, I could not afford health insurance on my own, ultimately receiving health insurance coverage through BadgerCare Plus, “a health care coverage program for low-income Wisconsin residents.”
In short, Judge Gill, Jr., has been adorned with privilege since birth. And he ultimately chose to use that precocious privilege to help the wealthy and politically powerful (including himself) further fortify their dominance in society.
In contrast, I was forged in the fiery embers of trauma. And in order to improve the lives of the overlooked and the downtrodden—and for myself, to find myriad ways to survive each day—I’ve had to continually overcome the effects caused by the complex trauma inflicted upon me over the decades.
Unfortunately, the Wisconsin media apparatus failed to present this overarching narrative to the public.
His legal argument would even be objectively frivolous under the current version of Wis. Stat. § 800.14(5)—which took effect in January 2020. The new version of the statute explicitly permits (but does not require) the circuit court (rather than the municipal court) to order the party appealing a municipal court judgment to bear the costs of preparing a transcript of all the municipal court proceedings that have transpired to date.