UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
______________________________________________________________________________
JACOB M. FISH, TOMICK T. COPELAND, AND
TAYLOR J. CLAYBROOK, individually, and on
behalf of all others similarly situated,
Plaintiffs,
v.

Case No. 2:18-cv-350

ATTORNEY GENERAL BRAD D. SCHIMEL, FORMER
ATTORNEY GENERAL J.B. VAN HOLLEN, FORMER
DIRECTOR OF STATE COURTS J. DENIS MORAN,
FORMER DIRECTOR OF STATE COURTS A. JOHN
VOELKER, JUDICIAL ADMINISTRATIVE DISTRICT
CHIEF JUDGES MAXINE WHITE, JEFFREY
KREMERS, ALLAN B. TORHORST, MARY
WAGNER, RANDY R. KOSCHNICK, ROBERT
WIRTZ, JAMES P. DALEY, GREGORY
POTTER, JAMES J. DUVALL, JAMES
MORRISON, DONALD R. ZUIDMULDER, GREGORY
HUBER, NEAL NIELSEN, AND SCOTT NEEDHAM,
in their individual capacities,
Defendants.
______________________________________________________________________________
CLASS ACTION COMPLAINT
______________________________________________________________________________
Plaintiffs Jacob M. Fish, Tomick T. Copeland, and Taylor J. Claybrook, on behalf
of themselves and a class of others similarly situated, by their attorneys, Strang Bradley,
LLC and People’s Law Office, for their complaint against Defendants, state as follows:
INTRODUCTION
1.

In 2013, Defendant Wisconsin Attorney General J.B. Van Hollen requested

that the Wisconsin legislature amend the DNA surcharge law, WIS. STAT. § 973.046, to

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 require DNA samples to be collected from all individuals convicted of a crime so that
their DNA could be analyzed and stored in the Department of Justice DNA database.
2.

To fund this new expanded DNA collection program Defendant Van

Hollen specifically requested that the new law require anyone convicted of a
misdemeanor pay a $200 surcharge but not submit a DNA sample for a 15-month
period to build up funding for the new DNA program, and then after the 15-month
period of collecting surcharges but no DNA samples, the new law would require
anyone convicted of a misdemeanor to both pay the $200 surcharge and submit a DNA
sample for analysis and storage in the DNA database.
3.

Defendant Van Hollen requested that the new DNA surcharge scheme be

structured in this manner so that funding for the Department of Justice’s expanded
DNA analysis program would not have to come from the State of Wisconsin or the
Department of Justice budget but instead from Plaintiffs and the proposed class
members who were convicted of a misdemeanor and who did not have to submit a
DNA sample for analysis over a 15-month period of time.
4.

Defendant Van Hollen’s scheme ensured that the Department of Justice

would receive millions of dollars for doing nothing, so that it would have funding for
its new DNA program so that 15 months later they would be able to handle the
significant increase in DNA samples which all criminal defendants would be required
to submit, starting April 1, 2015.
5.

Prior to the new DNA surcharge law going into effect, Defendant Van

Hollen knew that the new DNA surcharge law that he proposed was unconstitutional
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 because it was not rationally related to its stated purpose and it required individuals to
pay the $200 DNA surcharge based on the conviction date rather than the date of the
offense was committed. As applied to the Plaintiffs and class members, this was a
classic ex post facto punishment in violation of Article I, Section 10 of the United States
Constitution because the law increased the penalty for an offense after the offense has
been committed.
6.

Despite this, the Wisconsin Department of Justice, under the supervision

and direction of Defendant Van Hollen and his successor Defendant Brad Schimel, did
nothing to stem the flow of millions of dollars, from Plaintiffs and class members, into
the coffers of the Department of Justice, all the while knowing that the money they were
receiving was being illegally taken from some of the most vulnerable and
disadvantaged citizens of this state.
7.

Shortly before the new DNA surcharge law went into effect, Defendants

Directors of State Court and Judicial Administrative District Chief Judges all became
aware that the DNA surcharge law as applied to Plaintiffs and the class members
violated the ex post facto clause, and they, along with Defendant Van Hollen and
Schimel, each had a realistic opportunity, duty and the authority to prevent the
violations of Plaintiffs’ and the class members’ constitutional rights, or to end the injury
and cure the violations of Plaintiffs’ and the class members’ constitutional rights, yet
failed to do so.
8.

In 2015, in State v. Elward, 866 N.W. 2d 756 (Wis. Ct. App. 2015), the

Department of Justice, under Defendant Schimel, conceded that the new DNA
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 surcharge law was unconstitutional as applied to Plaintiffs and the class members and
the Wisconsin Court of Appeals in Elward held that the DNA surcharge law was
unconstitutional as applied, yet Defendants Schimel and the other named Defendants
continued to fail to intervene to prevent the ongoing widespread illegal collection of
DNA surcharges from Plaintiffs and the class members.
9.

This class action lawsuit, brought pursuant to 42 U.S.C. § 1983, seeks to

redress the unconstitutional taking of money, pursuant to the DNA surcharge law, from
Plaintiffs and a class of more than 10,000 similarly situated individuals who were
convicted of misdemeanors in the State of Wisconsin from January 1, 2014 through
April 1, 2015. Plaintiffs seek compensatory and punitive damages as set forth below.
JURISDICTION AND VENUE
10.

This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331

(federal question jurisdiction), and 28 U.S.C. § 1343(a)(3) (42 U.S.C. § 1983 jurisdiction).
11.

Venue is proper under 28 U.S.C. § 1391(b)(2). A substantial part of the

events or omissions giving rise to the claims asserted herein occurred within this judicial
district.
PARTIES
12.

Plaintiff Jacob M. Fish is an adult who resides in West Allis, Wisconsin.

13.

Plaintiff Tomick T. Copeland is an adult who resides in Milwaukee,

Wisconsin.
14.

Plaintiff Taylor J. Claybrook is an adult who resides in Racine, Wisconsin.

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 15.

Defendant Brad D. Schimel is the Attorney General of the State of

Wisconsin. He has served as attorney general since January 5, 2015. As attorney general
he is charged with the enforcement of the laws of the State of Wisconsin and the United
States Constitution. Defendant Schimel is sued in his individual capacity and engaged
in the conduct complained of under color of state law and in the course and scope of his
employment.
16.

Defendant J.B. Van Hollen was the Attorney General of the State of

Wisconsin from January 3, 2007 to January 5, 2015. As attorney general he was charged
with the enforcement of the laws of the State of Wisconsin and the United States
Constitution. Defendant Van Hollen is sued in his individual capacity and engaged in
the conduct complained of under color of state law and in the course and scope of his
employment.
17.

Defendant J. Denis Moran is the former Director of Wisconsin State Courts

and he served in that capacity from June 2015 to August 2017. As director of state
courts, he was the chief non-judicial officer of the state court system with the authority
and responsibility for the overall management of the court system. Defendant Moran is
sued in his individual capacity and engaged in the conduct complained of under color
of state law and in the course and scope of his employment.
18.

Defendant A. John Voelker is the former Director of Wisconsin State

Courts and he served in that capacity from 2003 to July 2014. As director of state courts,
he was the chief non-judicial officer of the state court system with the authority and
responsibility for the overall management of the court system. Defendant Voelker is
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 sued in his individual capacity and engaged in the conduct complained of under color
of state law and in the course and scope of his employment.
19.

Defendants Maxine White, Jeffrey Kremers, Allan B. Torhorst, Mary

Wagner, Randy R. Koschnick, Robert Wirtz, James P. Daley, Gregory Potter, James J.
Duvall, James Morrison, Donald R. Zuidmulder, Gregory Huber, Neal Nielsen, and
Scott Needham are the current and former chief judges for their respective judicial
administrative district throughout the state and served in that capacity between January
1, 2014 and the filing of this complaint. As chief judges they are responsible for the
administration of judicial business in circuit courts within their district, including its
personnel and judges, are charged with establishing policies and plans within the
judicial administrative district, including having the authority to direct the activities
and operations of all clerk of court offices within the district. These Defendants are sued
in their individual capacity and engaged in the conduct complained of under color of
state law and in the course and scope of their employment.
FACTS
20.

In September 2012, Defendant J.B. Van Hollen submitted the Wisconsin

Department of Justice’s 2013-2015 Biennium budget request, specifically requesting that
the statutory language of WIS. STAT. § 973.046 be amended to require circuit courts to
apply a DNA surcharge to defendants convicted of all felonies and misdemeanors.
21.

At the time, under WIS. STAT. § 973.046, DNA surcharges were

discretionary for most felony convictions and were mandatory only in four select types
of convictions.
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 22.

Defendant Van Hollen’s request to amend the statute was part of a

broader Department of Justice program to increase the collection and analysis of DNA
samples from individuals convicted of a crime.
23.

Defendant Van Hollen and his staff successfully influenced the Wisconsin

legislature to pass 2013 WIS. ACT 20 (“the Act”), which was published on July 1, 2013.
24.

Section 2355 of the Act instructed circuit courts to apply a $200 DNA

surcharge for each conviction for a misdemeanor at the time of sentencing or placing an
individual on probation.
25.

The Act called for circuit courts to begin applying the surcharge on

January 1, 2014. However, the Act instructed the circuit courts that they could not order
misdemeanants to provide a biological specimen for DNA analysis until April 1,
2015. 2013 WIS. ACT 20, § 9426(1)(am)-(bm).
26.

The Act created a period of 15 months between January 1, 2014 and April

1, 2015, where circuit courts were instructed to apply DNA surcharges to
misdemeanants, but were not permitted to order misdemeanants to actually submit any
DNA sample. This allowed the Department of Justice to collect millions of dollars
without incurring any expense for analyzing DNA samples.
27.

The Act instructed circuit courts to apply the DNA surcharge for each

conviction for a misdemeanor solely based on whether the individual was sentenced or
placed on probation on or after January 1, 2014. The Act did not address the issue of
when the misdemeanor offense occurred, or forego imposition of the DNA surcharge
for people who committed an offense prior to January 1, 2014.
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 28.

Plaintiffs and class members in this action committed an offense prior to

January 1, 2014, for which they were subsequently criminally charged and convicted of
a misdemeanor. Plaintiffs and class members were then either sentenced or placed on
probation for said misdemeanor conviction between January 1, 2014 and April 1, 2015.
The unconstitutional DNA surcharge law required Plaintiffs and class members to pay
a $200 DNA surcharge, but not submit any DNA sample for analysis.
29.

The DNA surcharges collected from misdemeanants by clerks of court are

required to be transferred first to the county treasurer, then to the secretary of the
Department of Administration. WIS. STATS. §§ 973.046(2), 59.40(2)(m), and 59.25(3)(f)2.
The secretary of the Department of Administration is then required to transfer the DNA
surcharge money to the Department of Justice to be used specifically for performing
DNA analyses and maintaining a DNA database. WIS. STATS. §§ 973.046(3),
20.455(2)(Lm), and 165.77.
30.

The DNA surcharge that the Act instructed circuit court judges to apply to

the Plaintiffs and class members is a punitive fine rather than a fee because it bears no
rational connection to the cost of performing DNA analysis and maintaining a DNA
database, as the Plaintiffs and class members could not be ordered to submit any DNA
sample.
31.

The Act’s retroactive application of the DNA surcharge, as applied to the

Plaintiffs and class members, inflicted a greater punishment than the law annexed to the
crime at the time the violation was committed and thus constituted an ex post facto

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 punishment in violation of Article I, Section 10 of the United States Constitution and the
Fourteenth Amendment to the United States Constitution.
Defendants Van Hollen and Schimel
32.

Defendants Van Hollen and Schimel are the former and current Attorney

General of the State of Wisconsin. As attorneys general they are the chief law
enforcement officer of the State of Wisconsin and head of the Department of Justice.
They have the responsibility and authority to establish policies and procedures within
the Department of Justice, including the ability to instruct those under their supervision
such as Department of Justice prosecutors, district attorneys and assistant district
attorneys throughout the state.
33.

Before the Act was passed, Defendant Van Hollen specifically requested

that the Act mandate imposition of the DNA surcharge upon conviction without any
consideration as to when the underlying act occurred; he specifically requested that the
surcharge be imposed regardless of whether the individual provides a DNA sample;
and he specifically requested the 15-month delay between when the surcharge began to
apply but no DNA samples were to be collected and when the DNA samples were to
begin being collected.
34.

Defendant Van Hollen requested that the new DNA surcharge scheme be

structured in this manner so that funding for the Department of Justice’s new DNA
analysis program would not have to come from the State of Wisconsin or the
Department of Justice Budget but instead from Plaintiffs and class members who were

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 convicted of a misdemeanor and who did not have to submit a DNA sample for
analysis over a 15-month period of time.
35.

Defendant Van Hollen’s scheme ensured that the Department of Justice

would receive millions of dollars for doing nothing, so that it would have funding for
its new DNA program and be able to handle the significant increase in DNA samples
which all criminal defendants would be required to submit, starting April 1, 2015.
36.

At the time the Act was passed, Defendant Van Hollen knew that the Act

would violate the constitutional rights of class members who committed an offense
prior to January 1, 2014, for which they were subsequently criminally charged and
convicted of a misdemeanor between January 1, 2014 and April 1, 2015.
37.

On December 30, 2013, prior to the effective date of the Act, Dodge

County Assistant District Attorney Robert Barrington sent an email to all prosecutors
throughout the state, including some prosecutors at the Department of Justice, asking
whether the new DNA surcharge was triggered by the offense date or the conviction
date.
38.

In response to the above question, on January 7, 2014, Roy R. Korte, the

director of the criminal litigation unit of the Wisconsin Department of Justice, acting
under the supervision and at the direction of Defendant Van Hollen, sent an email to all
prosecutors throughout the state informing them that the new law required the $200
DNA surcharge to be applied for each conviction. Korte attached and referenced a
memo from Defendant Director of State Courts A. John Voelker that identified the ex
post facto problem with imposing the new DNA surcharge on individuals who
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 committed an offense prior to January 1, 2014. Korte also attached an unpublished
Wisconsin court of appeals decision along with portions of the state’s brief authored by
the Department of Justice in which the Department of Justice conceded that the
imposition of a DNA surcharge in a similar but slightly different factual scenario
constituted an ex post facto punishment because the surcharge added more burdensome
punishment than the law annexed to the crime at the time the violation was committed.
Korte ended his email to all prosecutors confirming that the Department of Justice is
seeking a legislative fix to make some corrections to the new DNA surcharge law.
39.

On January 13, 2014, Defendant Director of State Courts Voelker met with

senior staff of the Department of Justice and discussed the ex post facto violation caused
by the new DNA surcharge statute. Defendant Van Hollen either attended the meeting
or was made aware of the topics that were raised by Defendant Voelker at the meeting.
40.

In February 2014, senior staff of the Department of Justice, at the direction

and under the supervision of Defendant Van Hollen, discussed with the staff of State
Senators Sheila Harsdorf and Jerry Petrowski certain changes that the Department of
Justice would like to make to the recently enacted DNA surcharge law.
41.

On March 11, 2014, State Senators Harsdorf and Petrowski introduced the

changes that were requested by the Department of Justice by offering Senate
Amendment 4 to Senate Bill 373. Those changes did not include a fix for the ex post facto
problem associated with the recently enacted DNA surcharge law.

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 42.

Defendant Van Hollen was either personally involved in or aware of the

decision not to include a fix for the ex post facto problem in Senate Amendment 4 to
Senate Bill 373.
43.

From January 1, 2014 to the time he left office on January 5, 2015,

Defendant Van Hollen knew that circuit courts throughout the state were engaged in a
widespread pattern and practice of applying the new DNA surcharge law, which
constituted an ex post facto penalty in violation of Plaintiffs’ and the class members’
constitutional rights.
44.

From January 1, 2014 to the time he left office on January 5, 2015,

Defendant Van Hollen knew that the Department of Corrections and clerks of court
throughout the state were engaged in a widespread pattern and practice of collecting
funds from Plaintiffs and class members based on the application of the
unconstitutional DNA surcharge law and thus inflicting an ex post facto punishment on
class members in violation of their constitutional rights.
45.

From January 1, 2014 to the time he left office on January 5, 2015,

Defendant Van Hollen knew that circuit courts throughout the state were engaged in a
widespread pattern and practice of issuing arrest and commitment orders and ordering
the arrest and imprisonment of Plaintiffs and class members pursuant to WIS. STAT. §
973.07 because they had an outstanding balance due as a result of the unconstitutional
DNA surcharge law that was applied to them.
46.

When Defendant Brad Schimel succeeded Defendant Van Hollen as

Wisconsin Attorney General in January 2015, he was aware that the Act had been
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 violating and would continue to violate the constitutional rights of individuals who
committed an act prior to January 1, 2014, for which they were subsequently criminally
charged and convicted of a misdemeanor between January 1, 2014 and April 1, 2015.
47.

When Defendant Schimel took office, he knew that circuit courts

throughout the state were engaged in a widespread pattern and practice of applying the
new DNA surcharge law, which constituted an ex post facto penalty in violation of
Plaintiffs’ and the class members’ constitutional rights.
48.

When Defendant Schimel took office, he knew that the Department of

Corrections and clerks of court throughout the state were engaged in a widespread
pattern and practice of collecting funds from Plaintiffs and class members based on the
application of the unconstitutional DNA surcharge law and thus inflicting an ex post
facto punishment on class members in violation of their constitutional rights.
49.

When Defendant Schimel took office, he knew that circuit courts

throughout the state were engaged in a widespread pattern and practice of issuing
arrest and commitment orders and ordering the arrest and imprisonment of Plaintiffs
and class members pursuant to WIS. STAT. § 973.07 because they had an outstanding
balance due as a result of the unconstitutional DNA surcharge law that was applied to
them.
50.

At all times relevant to this Complaint, Defendants Van Hollen and

Schimel knew that the funds collected from Plaintiffs and the class members based on
the unconstitutional DNA surcharge law were being transferred to and used by the
Department of Justice.
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 51.

The Department of Justice’s continued possession and use of the

unconstitutionally collected DNA surcharges were instrumental in inflicting the injury
on Plaintiffs and the class members in violation of their constitutional rights.
52.

Defendants Van Hollen and Schimel had a realistic opportunity, duty, and

the authority to prevent the violations of Plaintiffs’ and the class members’
constitutional rights, or to end the injury and cure the constitutional violations of
Plaintiffs’ and the class members’ constitutional rights by, among other things:
a. proposing, requesting and coordinating with the legislature to amend
the statutory language of WIS. STAT. § 973.046 to exclude the
imposition of DNA surcharges from Plaintiffs and class members
because it violated their constitutional rights;
b. issuing a letter or opinion that applying the new DNA surcharge law
to Plaintiffs and class members violated their constitutional rights;
c. implementing rules, policies or orders that Department of Justice
prosecutors, district attorneys and assistant district attorneys
throughout the state that at the time of sentencing or ordering
probation for Plaintiffs and class members, the Department of Justice
prosecutors, district attorneys and assistant district attorneys should
inform the court that applying the new DNA surcharge law to
Plaintiffs and class members is an unconstitutional ex post facto
punishment;

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 d. instructing and coordinating with Department of Justice prosecutors,
district attorneys and assistant district attorneys throughout the state
that for the Plaintiffs and class members where the unconstitutional
DNA surcharge law had already been applied, they should file a
motion requesting that the clerks of court refund the
unconstitutionally collected DNA surcharges to Plaintiffs and class
members;
e. making an appearance themselves or instructing a deputy to make an
appearance in all cases of Plaintiffs and class members and for the
cases in which the unconstitutional DNA surcharge law had already
been applied filing a motion requesting that the clerks of court refund
the unconstitutionally collected DNA surcharges to Plaintiffs and class
members;
f. ordering the return of the DNA surcharges that the Department of
Justice received to the Plaintiffs and class members, thereby ending the
injury and curing the violation of Plaintiffs and class members
constitutional rights.
53.

Defendants Van Hollen and Schimel’s failure to act, including but not

limited to their failure to take any of the above-mentioned actions, and their failure to
properly supervise and train Department of Justice prosecutors, district attorneys and
assistant district attorneys throughout the state as set forth above, violated Plaintiffs’
and the class members’ constitutional rights and caused their injuries.
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 54.

Defendants Van Hollen and Schimel knew that their failure to intervene

and failure to supervise and train Department of Justice prosecutors, district attorneys
and assistant district attorneys throughout the state would result in the application of
the unconstitutional DNA surcharge law in violation of Plaintiffs’ and class members’
constitutional rights.
55.

On February 6, 2015, the State of Wisconsin, by the Ozaukee County

District Attorney acting under the supervision and direction of Defendant Schimel
pursuant to WIS. STAT. §§ 165.25(1) and 978.05(5), conceded in a public court filing to the
Wisconsin Court of Appeals in the case State v. Elward, 866 N.W.2d 756 (Wis. Ct. App.
2015), that the new DNA surcharge law, as applied to the class of individuals that
includes the Plaintiffs and class members in this action was unconstitutional and
violated their constitutional rights.
56.

Specifically, the State’s brief conceded that “the DNA surcharge violates

the ex post facto clause when applied to defendants like Elward whose offense date
preceeds [sic] the surcharge’s January 1, 2014, effective date and who are convicted
before the April 1, 2015, effective date for collecting DNA samples.” Brief of PlaintiffRespondent, State v. Elward.
57.

On May 20, 2015, the Wisconsin Court of Appeals decided State v. Elward,

accepting the state’s concession and holding that the new DNA surcharge law, as
applied to the class of individuals that includes the Plaintiffs in this action was an
unconstitutional ex post facto violation.

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 58.

Despite the concession by the State of Wisconsin and Department of

Justice that the new DNA surcharge law, as applied to the Plaintiffs and class members,
violated their constitutional rights, and despite the Wisconsin Court of Appeals’
confirmation of that concession in State v. Elward, Defendant Schimel continued to fail to
act or intervene to prevent the widespread application of the new DNA surcharge law
throughout the state in violation of Plaintiffs’ and the class members’ constitutional
rights.
59.

As of the date of filing this Complaint, more than three years after the

Department of Justice, under the direction of Defendant Schimel, acknowledged this
illegal activity, Schimel continues to keep the illegally obtained money instead of
returning it to the people it was wrongfully taken from.
Defendants Moran and Voelker
60.

The director of state courts is the chief non-judicial officer of the court

system in the State of Wisconsin. The director of state courts has the authority and
responsibility for the overall management of the unified judicial system with the
specific responsibility for judicial education. The director of state courts has the
authority to recommend changes in trial court administration to the chief judge of any
judicial administrative district and the chief judge is required to cooperate with the
director of state courts in carrying out his administrative duties. The director of state
courts supervises circuit court judges and clerks of court throughout the state.
61.

On July 1, 2013, Defendant Director of State Courts A. John Voelker sent a

memo to all circuit court judges and clerks of circuit court throughout the state
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 informing them that imposition of the DNA surcharge was mandatory under the new
law, and required judges to impose the $200 surcharge upon Plaintiffs and class
members.
62.

On December 27, 2013, Defendant Voelker sent a memo to all circuit court

judges and clerks of court throughout the state discussing the new DNA surcharge law
and the specific requirement that the surcharge be applied based on the conviction date
and not the offense date. Voelker noted that surcharge statutes are usually applied
based on the offense date so as not to violate the constitutional prohibition on ex post
facto punishment and, for that reason, the CCAP financial software is programmed to
apply surcharges based on the offense date rather than the conviction date. Despite
knowing it was an ex post facto punishment, Voelker specifically instructed all circuit
court judges and clerks of court throughout the state on how they could bypass the
protections or obstacles within the CCAP software program by entering the $200 DNA
surcharge manually for cases where the offense date was prior to January 1, 2014, but
the conviction occurred after January 1, 2014.
63.

On January 13, 2014, Defendant Voelker met with the Department of

Justice to discuss problems related to the new DNA surcharge law. Defendant Voelker
and the Department of Justice discussed the fact that the new DNA surcharge law, as
applied to Plaintiffs and class members, constituted an ex post facto violation. Upon
information and belief, Defendant Voelker discussed with the Department of Justice
that, although the statute instructed circuit court judges to impose the DNA surcharge
for each misdemeanor conviction, at a meeting with the Chief Judges the previous
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 week, the Chief Judges decided that they would impose the DNA surcharge per case
and based on the conviction date, despite the ex post facto problem.
64.

From at least the time the Act was published on July 1, 2013 to the time he

left office in July 2014, Defendant Voelker knew that: (1) the Act would violate and was
violating the constitutional rights of individuals who committed an act prior to January
1, 2014, for which they were subsequently criminally charged and convicted of a
misdemeanor between January 1, 2014 and April 1, 2015; (2) circuit courts throughout
the state were engaged in a widespread pattern and practice of applying the new DNA
surcharge law, which constituted an ex post facto punishment in violation of Plaintiffs’
and the class members’ constitutional rights; (3) the Department of Corrections and
clerks of court throughout the state were engaged in a widespread pattern and practice
of collecting funds from Plaintiffs and class members based on the application of the
unconstitutional DNA surcharge law and thus inflicting an ex post facto punishment on
class members in violation of their constitutional rights; and (4) circuit courts
throughout the state were engaged in a widespread pattern and practice of issuing
arrest and commitment orders and ordering the arrest and imprisonment of Plaintiffs
and class members pursuant to WIS. STAT. § 973.07 because they had an outstanding
balance due as a result of the unconstitutional DNA surcharge law that was applied to
them.
65.

From the time he took office in June 2015 to the time he left office in

August 2017, Defendant Moran knew that: (1) the Act would violate and was violating
the constitutional rights of individuals who committed an act prior to January 1, 2014,
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 for which they were subsequently criminally charged and convicted of a misdemeanor
between January 1, 2014 and April 1, 2015; (2) circuit courts throughout the state were
engaged in a widespread pattern and practice of applying the new DNA surcharge law,
which constituted an ex post facto penalty in violation of Plaintiffs’ and the class
members’ constitutional rights; (3) the Department of Corrections and clerks of court
throughout the state were engaged in a widespread pattern and practice of collecting
funds from Plaintiffs and class members based on the application of the
unconstitutional DNA surcharge law and thus inflicting an ex post facto punishment on
class members in violation of their constitutional rights; and (4) circuit courts
throughout the state were engaged in a widespread pattern and practice of issuing
arrest and commitment orders and ordering the arrest and imprisonment of Plaintiffs
and class members pursuant to WIS. STAT. § 973.07 because they had an outstanding
balance due as a result of the unconstitutional DNA surcharge law that was applied to
them.
66.

Defendant Voelker had a realistic opportunity, duty and the authority to

prevent the violations of Plaintiffs’ and the class members’ constitutional rights by,
among other things, implementing rules, policies or orders that chief judges and circuit
court judges should not impose a DNA surcharge on Plaintiffs and class members
because the application of the new DNA surcharge law on individuals who committed
an act prior to January 1, 2014, for which they were subsequently criminally charged
and convicted of a misdemeanor between January 1, 2014 and April 1, 2015, violated
their constitutional rights.
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 67.

Defendants Moran and Voelker had a realistic opportunity, duty and the

authority to prevent the violations of Plaintiffs’ and the class members’ constitutional
rights, or to end the injury and cure the constitutional violations of Plaintiffs’ and the
class members’ constitutional rights by, among other things:
a. implementing rules, policies or orders that the clerks of court are to
return the collected DNA surcharges to Plaintiffs and the class
members, thereby ending the injury and curing the violation of
Plaintiffs’ and class members’ constitutional rights;
b. implementing rules, policies or orders that chief judges and circuit
court judges are not to issue or are to cancel any arrest and
commitment orders for unpaid balances based on the unconstitutional
DNA surcharge law.
68.

Defendants Moran and Voelker’s failure to act, including but not limited

to their failure to take any of the above-mentioned actions, and their failure to supervise
and train circuit court judges and clerks of court throughout the state as set forth above,
violated Plaintiffs’ and the class members’ constitutional rights and caused their
injuries.
69.

Defendants Moran and Voelker knew that their failure to intervene and

failure to supervise and train circuit court judges and clerks of court throughout the
state as set forth above would result in violations of Plaintiffs’ and class members’
constitutional rights.

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 Defendant Judicial Administrative District Chief Judges
70.

Each chief judge is the administrative chief of the judicial administrative

district within the state and is responsible for the administration of judicial business in
circuit courts within the district, including its personnel and judges. The chief judge has
the full administrative power of the judicial branch of government within the district,
subject to the administrative control of the supreme court, and has a duty to establish
policies and procedures within the judicial administrative district. The chief judge’s
authority includes the ability to order that his or her directives, policies and rules be
carried out by personnel, including judges, within the district and to direct and make
changes to the activities and operations of all clerk of court offices within the district.
Chief Judges supervise circuit court judges and clerks of court throughout the state.
71.

Defendant Chief Judges Allan B. Torhorst, Mary Wagner, Randy R.

Koschnick, Robert Wirtz, James P. Daley, Gregory Potter, Donald R. Zuidmulder,
Gregory Huber, Neal Nielsen, and Scott Needham were personally involved in
applying the unconstitutional DNA surcharge law in violation of Plaintiffs’ and class
members’ rights.
72.

At all times relevant to this Complaint, Defendant Chief Judges knew that:

(1) the Act would violate and was violating the constitutional rights of individuals who
committed an act prior to January 1, 2014, for which they were subsequently criminally
charged and convicted of a misdemeanor between January 1, 2014 and April 1, 2015; (2)
circuit courts throughout the state were engaged in a widespread pattern and practice
of applying the new DNA surcharge law, which constituted an ex post facto penalty in
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 violation of Plaintiffs’ and the class members’ constitutional rights; (3) the Department
of Corrections and clerks of court throughout the state were engaged in a widespread
pattern and practice of collecting funds from Plaintiffs and class members based on the
application of the unconstitutional DNA surcharge law and thus inflicting an ex post
facto punishment on class members in violation of their constitutional rights; and (4)
circuit courts throughout the state were engaged in a widespread pattern and practice
of issuing arrest and commitment orders and ordering the arrest and imprisonment of
Plaintiffs and class members pursuant to WIS. STAT. § 973.07 because they had an
outstanding balance due as a result of the unconstitutional DNA surcharge law that was
applied to them.
73.

Specifically, on January 10, 2014, Defendant Chief Judges Jeffrey Kremers,

Mary Wagner, Randy Koschnick, Robert Wirtz, James Daley, Gregory Potter, James
Duvall, Donald Zuidmulder, Neal Nielsen, and Scott Needham and District Court
Administrators Bruce Harvey, Kerry Connelly, Mike Neimon, Jon Bellows, Gail
Richardson, Ron Ledford, Pat Brummond, Susan Byrnes, and Scott Johnson met with
Defendant Director of State Courts Voelker in Madison and discussed the new DNA
surcharge law. During this meeting, Defendant Voelker told the group that Defendant
Van Hollen was aware of the ex post facto problem with the new DNA surcharge law.
Voelker discussed the constitutional prohibition against increasing the punishment for a
crime after it has already been committed and explained that as it related to the new
DNA surcharge law, the problem would subside over time as cases get processed. Chief
Judge Needham informed the group that the Chippewa County judges decided to not
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 follow the new DNA surcharge law unless the offense was committed on or after
January 1, 2014, so as to not impose an ex post facto punishment. Chief Judge Kremers
informed the group that judges in Milwaukee County are generally taking the position
that the new DNA surcharge law should not be followed unless the offense was
committed on or after January 1, 2014, so as to not impose an ex post facto punishment.
Nevertheless, Defendant Chief Judges collectively decided that, although the statute
instructed the circuit court judges to impose the DNA surcharge for each misdemeanor
conviction, they would impose the DNA surcharge per case and based on the
conviction date.
74.

On January 16, 2014, the Kenosha County Circuit Court along with

Kenosha Clerk of Court Rebecca Matoska-Mentink and Kenosha County District
Attorney Robert Zapf held a meeting that was chaired by Defendant Chief Judge
Wagner in which they discussed the new DNA surcharge law. The group discussed the
fact that that the Chief Judges recently met to discuss the issue; that the new DNA
surcharge law was proposed by the Attorney General; and that the law required the
DNA surcharge to be applied to every count in which there is a conviction. Chief Judge
Wagner recommended that Kenosha County Circuit Court judges apply the new DNA
surcharge law once per case rather than as the law is written, which requires a DNA
surcharge to be applied to each count within a case. District Attorney Robert Zapf
discussed with the group whether the new DNA surcharge was an ex post facto
punishment for those who committed an offense prior to the law’s January 1, 2014
effective date. Despite being aware of the ex post facto problem caused by the new DNA
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 surcharge law as applied to Plaintiffs and class members, the judges agreed at this
meeting that they would impose the new DNA surcharge on any conviction after
January 1, 2014, regardless of whether the date of the offense was before January 1,
2014.
75.

On March 14, 2014, Defendant Chief Judges Jeffrey Kremers, Mary

Wagner, Randy Koschnick, Robert Wirtz, James Daley, Gregory Potter, James Duvall,
Donald Zuidmulder, and Neal Nielson met with certain district court administrators
and Defendant Director of State Courts Voelker in Madison to discuss the new DNA
surcharge law. The group discussed that the Department of Justice had requested that
the legislature amend certain parts of the new DNA surcharge law, which were
introduced as Senate Amendment 4 to Senate Bill 373. Defendant Voelker told the
group that the Department of Justice’s proposed specific amendments would simplify
the DNA collection notification process among agencies and the Department of Justice.
Voelker specifically discussed with the group that the Department of Justice’s proposed
amendments to the legislature did not address the ex post facto problem with the DNA
surcharge law.
76.

Defendant Chief Judges Jeffrey Kremers, Mary K. Wagner, Allan Torhorst,

Randy Koschnick, Robert Wirtz, James P. Daley, Gregory Potter, James J. Duvall, Don
Zuidmulder, Neal Nielsen, and Scott Needham had a realistic opportunity, duty and
the authority to prevent the violations of Plaintiffs’ and the class members’
constitutional rights, or to end the injury and cure the violations of Plaintiffs’ and the
class members’ constitutional rights by, among other things, implementing rules,
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 policies or orders that circuit court judges in their district should not impose a DNA
surcharge on Plaintiffs and class members because imposition of DNA surcharges on
individuals who committed an act prior to January 1, 2014, for which they were
subsequently criminally charged and convicted of a misdemeanor between January 1,
2014 and April 1, 2015 violated their constitutional rights.
77.

Defendant Chief Judges had a realistic opportunity, duty and the

authority to prevent the violations of Plaintiffs’ and the class members’ constitutional
rights, or to end the injury and cure the violations of Plaintiffs’ and the class members’
constitutional rights by, among other things:
a. implementing rules, policies or orders that the clerks of court are to
return the collected DNA surcharges to Plaintiffs and the class
members, thereby ending the injury and curing the violation of
Plaintiffs’ and class members’ constitutional rights;
b. implementing rules, policies or orders that circuit court judges are not
to issue or are to cancel any arrest and commitment orders for unpaid
balances based on the unconstitutional DNA surcharge law.
78.

The corrective actions taken by Chippewa County Circuit Court Judges

Roderick A. Cameron, James M. Isaacson, and Steven R. Cray provide one example of
what Chief Judges could have done themselves or ordered circuit court judges under
their supervision and within their district to do. Specifically, On January 7, 2014,
Chippewa County Circuit Court Judges Cameron, Isaacson, and Cray agreed that they
had the authority and obligation to disregard laws that are unconstitutional and issued
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 a written order that for all cases in the Circuit Court of Chippewa County, the new
DNA surcharge law shall not be applied for offenses that occurred prior to January 1,
2014 because applying the new DNA surcharge law to individuals who committed
offenses before January 1, 2014 increases the penalty for an offense after the offense has
been committed and is an ex post facto law prohibited by the United States Constitution.
79.

The corrective actions taken by Jefferson County Circuit Court Judge

Jennifer L. Weston provide another example of what Chief Judges could have done
themselves or ordered circuit court judges and clerks of court under their supervision
and within their district to do. Specifically, from approximately March 2016 through
May 2016, Judge Weston issued orders to reverse the application of the new DNA
surcharge law for class members in which she was personally involved in applying the
unconstitutional DNA surcharge law. She ordered the clerk of court to return the
unconstitutionally collected DNA surcharges based on the new DNA surcharge law as
soon as reasonably practicable. Specifically, on April 12, 2016, Judge Weston ordered
the clerk of court to refund the unconstitutionally collected DNA surcharge in Case
Number 2013CT000293. On May 16, 2016, the Jefferson County Clerk of Court issued a
refund check for the unconstitutionally collected DNA surcharge in the amount of $200
to the defendant in Case Number 2013CT000293. Judge Weston and the Jefferson
County Clerk of Court took the same action in other cases in which she applied the
unconstitutional DNA surcharge law.
80.

The corrective actions taken by Shawano County Clerk of Circuit Court

Susan Krueger provide another example of what Chief Judges could have ordered
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 clerks of court under their supervision and within their district to do. Specifically, from
approximately August 2015 through October 2015, Shawano County Clerk of Circuit
Court Susan Krueger, amended the records of her office removing any outstanding
balance due based on the unconstitutional DNA surcharges applied to class members.
81.

Defendant Chief Judges’ failure to act, including but not limited to their

failure to take any of the above-mentioned actions, and their failure to supervise and
train circuit court judges and clerks of court throughout the state as set forth above,
violated Plaintiffs’ and the class members’ constitutional rights and caused their
injuries.
82.

Defendants Chief Judges knew that their failure to intervene and failure to

supervise and train circuit court judges and clerks of court throughout the state as set
forth above would result in violations of Plaintiffs’ and class members’ constitutional
rights.
The Defendants’ Misconduct Was Committed in Furtherance of a Conspiracy
83.

All of the named individual Defendants, acting jointly with circuit court

judges, Department of Justice prosecutors, district attorneys and assistant district
attorneys throughout the state, together reached an understanding, engaged in an
ongoing course of conduct and joint action and otherwise conspired and continue to
conspire among and between themselves to fund the Department of Justice DNA
analysis program by unlawful means in violation of Plaintiffs’ and the class members’
constitutional rights. This conspiracy is evidenced, inter alia, by the overt actions and
inactions set forth above and below. By and through the overt actions and inactions set
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 forth above and below, each and every Defendant, jointly and in conspiracy, with a
shared understanding, intent, and/or meeting of the minds, funded the Department of
Justice DNA analysis program by unlawful means and in doing so deprived, and
continue to deprive, Plaintiffs and the class members of their constitutional rights,
including their right to be free from an ex post facto punishment, and deprivation of
property without procedural and substantive due process, all as protected by the
Article I Section 10 and the Fourteenth Amendments to the United States Constitution.
The Named Plaintiffs
84.

Plaintiff Jacob M. Fish was charged in Milwaukee County Case No.

2013CF002683 for committing an act on June 10, 2013. On May 13, 2014, Fish was
prosecuted by assistant district attorney Karl Hayes and sentenced by Judge Ellen
Brostrom for a misdemeanor conviction and ordered to pay a zero dollar fine and costs.
Pursuant to the new DNA surcharge law, Fish paid the $200 DNA surcharge, but was
not ordered to and did not submit a DNA sample.
85.

Plaintiff Tomick T. Copeland was charged in Milwaukee County Case No.

2013CF004215 for committing an act on September 7, 2013. On March 24, 2014,
Copeland was prosecuted by assistant district attorney Janet Protasiewicz and
sentenced by Judge Timothy Witkowiak for a misdemeanor conviction and ordered to
pay a zero dollar fine and costs. Pursuant to the new DNA surcharge law, Copeland
paid the $200 DNA surcharge, but was not ordered to and did not submit a DNA
sample.

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 86.

Plaintiff Taylor J. Claybrook was charged in Racine County Case No.

2013CM002414 for committing an act on November 13, 2013. On February 3, 2014,
Claybrook was prosecuted by assistant district attorney Jeremy Arn and sentenced by
judge Emily Mueller for a misdemeanor conviction and ordered to pay a $200 fine and
costs. Pursuant to the new DNA surcharge law, Claybrook was required to pay the $200
DNA surcharge, but was not ordered to and did not submit a DNA sample. However,
Claybrook did not pay the $200 DNA surcharge. On May 12, 2015, an arrest and
commitment order was issued ordering the arrest of Claybrook for failure to pay the
outstanding fine and DNA surcharge. On July 21, 2015, Claybrook was arrested and
imprisoned in jail for 10 days based on his failure to pay his outstanding fine and court
costs, which included an unpaid portion of the $200 DNA surcharge, the 10 days
serviced equal approximately one day of jail for every $50 of his fine and DNA
surcharge outstanding pursuant to WIS. STAT. § 973.07. Claybrook served two days in
jail based on the illegally imposed $200 DNA surcharge.
Class Allegations
87.

Plaintiffs bring this action on behalf of themselves and as a class action

pursuant to Rule 23(a) and 23(b)(3) of the Federal Rules of Civil Procedure on behalf of
a two classes defined as:
Paid Class
Plaintiffs Jacob M. Fish and Tomick T. Copeland seek to represent a class of
individuals who were either sentenced or placed on probation by a Wisconsin
circuit court between January 1, 2014 and April 1, 2015, for a misdemeanor
offense committed prior to January 1, 2014, and to whom the new DNA
surcharge law required them to pay a DNA surcharge but not submit a DNA
sample and who have paid money toward the DNA surcharge.
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 Jailed Class
Plaintiff Taylor J. Claybrook seeks to represent a class of individuals who were
either sentenced or placed on probation by a Wisconsin circuit court between
January 1, 2014 and April 1, 2015, for a misdemeanor offense committed prior to
January 1, 2014, and to whom the new DNA surcharge law required them to pay
a DNA surcharge but not submit a DNA sample and who were arrested and
imprisoned in jail because they had an outstanding balance remaining on their
DNA surcharge or who had paid their DNA surcharge but were arrested and
imprisoned in jail because they had an outstanding balance remaining on their
case in which the DNA surcharge was paid.
88.

Plaintiffs reserve the right to redefine the Classes prior to certification.

89.

Members of the classes on whose behalf Plaintiffs sue are so numerous

that joinder of all members is impractical. The damages suffered by individual class
members are small relative to the cost and complexity of the litigation. As a result, the
expense and burden of individual litigation make it economically infeasible and
procedurally impracticable for every class member to seek redress individually. There
are more than 10,000 individuals that meet the above described class descriptions.
90.

There are questions of law or fact common to all class members and

predominate over any individual issues of class members. Among these common
questions are whether the Defendants’ actions constitute violations of the class
members’ rights to be free from any ex post facto punishment under Article I, Section 10
and the Fourteenth Amendment of the United States Constitution; and to be free from
deprivation of property without procedural and substantive due process under the
Fourteenth Amendments to the United States Constitution.
91.

Plaintiffs’ claims are typical of the claims of the Classes. They arise from

the same unconstitutional DNA surcharge law and the same practices and courses of
conduct that give rise to the claims of the other class members.
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 92.

Plaintiffs can fairly and adequately represent and protect the interests of

the class members. Plaintiffs have no conflict with the other class members. Class
counsel are experienced in both civil rights litigation and class action lawsuits. Plaintiffs
and counsel are committed to vigorously prosecuting this action on behalf of the
classes.
93.

A class action is superior to other available means for the fair and efficient

adjudication of the claims of the Classes. Each individual Class member may lack the
resources to undergo the burden and expense associated with individually prosecuting
the complex, expensive, and extensive litigation necessary to establish Defendants’
liability and obtain adequate relief. Individualized litigation increases the expense and
delay for all parties and multiplies the burden on the judicial system in handling the
legal issues present in this case. Individualized litigation also presents the potential for
inconsistent and contradictory judgments. Conversely, a class action presents far fewer
practical difficulties and provides several benefits, including single and efficient
adjudication. Class treatment of the issues present in this case will ensure that each
claimant receives a fair and consistent adjudication.
COUNT I
(42 U.S.C. § 1983 Claim for Failure to
Intervene to Prevent an Ex Post Facto Punishment)
94.

Plaintiffs reallege and incorporate by reference all of the allegations in all

of the preceding paragraphs.
95.

By their conduct, as described herein, Defendants are liable to Plaintiffs

and the class members under 42 U.S.C. § 1983 for the violation, under color of state law,
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 of the constitutional right to be free from any ex post facto punishment under Article I,
Section 10 and the Fourteenth Amendment of the United States Constitution.
96.

The Defendants individually, jointly, and/or in conspiracy, knew that the

DNA surcharge statute was unconstitutional as applied to Plaintiffs and class members
and that unless they intervened, individuals they supervised would engage in and were
engaged in a widespread pattern and practice of applying the unconstitutional DNA
surcharge law, which violated Plaintiffs’ and the class members’ right to be free from
any ex post facto punishment, yet they failed to intervene and instead facilitated,
approved, condoned, turned a blind eye to, ratified and/or purposely ignored their
subordinates’ widespread pattern and practice of violating Plaintiffs’ and the class
members’ constitutional rights.
97.

Defendants individually, jointly, and/or in conspiracy, had the

opportunity, duty and ability to intervene on behalf of Plaintiffs and class members to
prevent the widespread pattern and practice of violating Plaintiffs’ and class members’
right to be free from any ex post facto punishment, but failed to do so.
98.

Defendants acted recklessly and/or with callous indifference to the

federally protected rights of Plaintiffs and the class members.
99.

As a direct and proximate result of these Defendants’ unlawful actions,

Plaintiffs and the class members have suffered, and will continue to suffer damages.

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 COUNT II
(42 U.S.C. § 1983 Claim for Failure to Intervene to Prevent
Deprivation of Property without Procedural Due Process)
100.

Plaintiffs reallege and incorporate by reference all of the allegations in all

of the preceding paragraphs.
101.

Plaintiffs’ and the class members’ money that was used to pay the DNA

surcharge constitutes a property interest protected by the Due Process Clause of the
United States Constitution.
102.

The DNA surcharge law’s retroactive application as applied to Plaintiffs

and the class members provided no substantive predicates to govern its application nor
any opportunity to be heard in a meaningful manner. Instead, the Act mandated the
outcome of requiring Plaintiffs and the class members to pay the DNA surcharge.
103.

By their conduct, as described herein, Defendants are liable to Plaintiffs

and the class members under 42 U.S.C. § 1983 for the violation, under color of state law,
of the constitutional right to be free from any deprivation of property without
procedural due process under the Fourteenth Amendment to the United States
Constitution.
104.

The Defendants individually, jointly, and/or in conspiracy, knew that the

DNA surcharge statute was unconstitutional as applied to Plaintiffs and class members
and that unless they intervened, individuals they supervised would engage in and were
engaged in a widespread pattern and practice of applying the unconstitutional DNA
surcharge law, which violated Plaintiffs’ and the class members’ right to procedural due
process, yet they failed to intervene and instead facilitated, approved, condoned, turned
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 a blind eye to, ratified and/or purposely ignored their subordinates’ widespread
pattern and practice of violating Plaintiffs’ and the class members’ constitutional rights.
105.

Defendants individually, jointly, and/or in conspiracy, had the

opportunity, duty and ability to intervene on behalf of Plaintiffs and class members to
prevent the widespread pattern and practice of violating Plaintiffs’ and class members’
right to procedural due process, but failed to do so.
106.

Defendants acted recklessly and/or with callous indifference to the

federally protected rights of Plaintiffs and the class members.
107.

As a direct and proximate result of these Defendants’ unlawful action,

Plaintiffs and the class members have suffered, and will continue to suffer damages.
COUNT III
(42 U.S.C. § 1983 Claim for Failure to Intervene to Prevent
Deprivation of Property without Substantive Due Process)
108.

Plaintiffs reallege and incorporate by reference all of the allegations in all

of the preceding paragraphs.
109.

The DNA surcharge required to be imposed on Plaintiffs and the class

members by the Act is not rationally related to a legitimate state interest because it
bears no rational connection to the cost of performing DNA analysis and maintaining a
DNA database, as Plaintiffs and the class members could not be ordered to submit any
DNA sample.
110.

Plaintiffs and the class members have a substantive due process right to

not be required to pay a retroactively imposed DNA surcharge that bore no rational
connection to its stated purpose.
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 111.

By their conduct, as described herein, Defendants are liable to Plaintiffs

and the class members under 42 U.S.C. § 1983 for the violation, under color of state law,
of the constitutional right to be free from any from deprivation of property without
substantive due process under the Fourteenth Amendment to the United States
Constitution.
112.

The Defendants individually, jointly, and/or in conspiracy, knew that the

DNA surcharge statute was unconstitutional as applied to Plaintiffs and class members
and that unless they intervened, individuals they supervised would engage in and were
engaged in a widespread pattern and practice of applying the unconstitutional DNA
surcharge law, which violated Plaintiffs’ and the class members’ right to substantive
due process, yet they failed to intervene and instead facilitated, approved, condoned,
turned a blind eye to, ratified and/or purposely ignored their subordinates’ widespread
pattern and practice of violating Plaintiffs’ and the class members’ constitutional rights.
113.

Defendants individually, jointly, and/or in conspiracy, had the

opportunity, duty and ability to intervene on behalf of Plaintiffs and class members to
prevent the widespread pattern and practice of violating Plaintiffs’ and class members’
right to be free from deprivation of property without substantive due process, but failed
to do so.
114.

Defendants acted recklessly and/or with callous indifference to the

federally protected rights of Plaintiffs and the class members.
115.

As a direct and proximate result of Defendants’ unlawful action, Plaintiffs

and the class members have suffered, and will continue to suffer damages.
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 COUNT IV
(42 U.S.C. § 1983 Claim for Conspiracy)
116.

Plaintiffs reallege and incorporate by reference all of the allegations in all

of the preceding paragraphs.
117.

Defendants engaged in a concerted action to fund Department of Justice

DNA analysis program by unlawful means in violation of Plaintiffs’ and the class
members’ rights under Article I, Section 10 of the United States Constitution and the
Fourteenth Amendment to the United States Constitution.
118.

By their conduct, as described herein, Defendants are liable to Plaintiffs

and the class members under 42 U.S.C. § 1983 for the violation, under color of state law,
of their constitutional right to be free from any ex post facto punishment under Article I,
Section 10 and the Fourteenth Amendment of the United States Constitution, of the
constitutional right to be free from deprivation of property without procedural due
process under the Fourteenth Amendment to the United States Constitution, and of the
constitutional right to be free from deprivation of property without substantive due
process under the Fourteenth Amendment to the United States Constitution.
119.

As a direct and proximate result of Defendants’ unlawful actions,

Plaintiffs and the class members have suffered, and will continue to suffer damages.
COUNT V
(State Law Claim for Indemnification)
120.

Plaintiffs reallege and incorporate by reference all of the allegations in all

of the preceding paragraphs.

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 121.

Wisconsin law, Wisc. Stat. § 895.46, requires public entities to pay any

tort judgment for damages which employees are liable for acts within the scope of their
employment.
122.

At all times relevant to this action, Defendants committed the acts alleged

above in their scope as state actors or within the scope of their employment with the
State of Wisconsin.
WHEREFORE, plaintiffs request that the Court enter the following judgment on
behalf of themselves and the class members:
A. Certification of the classes pursuant to Rule 23 of the Federal Rules of Civil
Procedure and adjudging Plaintiffs and their counsel to be adequate
representatives thereof;
B.

Compensatory and punitive damages against Defendants, attorneys’ fees
and costs, as well as any other relief the Court deems appropriate.
JURY DEMAND

Plaintiffs hereby demand a trial by jury on behalf of themselves and the class
members, pursuant to Fed. R. Civ. P. 38(b), on all issues so triable.

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 Respectfully submitted,
Dated: March 7, 2018
/s/ John H. Bradley
John H. Bradley
Strang Bradley, LLC
33 E. Main St., Ste. 400
Madison, WI 53703
(608) 535-1550
John@StrangBradley.com
Ben H. Elson
G. Flint Taylor
People’s Law Office
1180 N. Milwaukee Ave.
Chicago IL 60642
(773) 235-0070
ben.elson79@gmail.com
flint.taylor10@gmail.com
Attorneys for Plaintiffs

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