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The following program is a PBS Wisconsin original production.

Frederica Freyberg:

State Supreme Court advertisements saturate the airwaves. New vaccine requirements get stalled in a legislative committee, and officials work to address child labor violations.

I’m Frederica Freyberg. Tonight on “Here & Now,” Supreme Court candidates appraise previous decisions by the high court. A pediatrician imparts the consequences of declining vaccine rates and weakened mandates. Lawmakers and the Department of Labor target underage worker violations, and we speak with the author of another complaint against former special counsel Michael Gableman. It’s “Here & Now” for March 10.

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Funding for “Here & Now” is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.

Frederica Freyberg:

The field for the upcoming Supreme Court election has been narrowed down to two candidates, and they are a study in contrasts. One of the biggest differences is how they view past decisions by the court. Over the next couple of weeks, “Here & Now” political reporter Zac Schultz will take us through some of the most significant cases of the past few years and show us whether these candidates agreed with the decisions. Tonight, we look at the issue of redistricting.

Zac Schultz:

On April 4th, voters will choose between Janet Protasiewicz and Daniel Kelly and determine the future ideological balance of the Wisconsin Supreme Court. But that same election will determine whether the court will look backwards as well.

Janet Protasiewicz:

So that’s when I say, yes, those maps are rigged.

Zac Schultz:

Protasiewicz has made clear she believes Wisconsin’s legislative maps are gerrymandered in favor of Republicans and she says the Wisconsin Supreme Court erred twice on its path to approving those maps. The first error came in 2021 when court’s conservative majority announced they would not draw new legislative boundaries but would instead choose from maps submitted by Governor Tony Evers and the Republican Legislature. The best map, according to the court, was one that kept the new boundaries as close to the current boundaries as possible so as to have the fewest number of voters switch legislative districts. It was called the “least changed” methodology, a new precedent invented by the court.

Janet Protasiewicz:

There’s no legal precedent. There’s nothing in the Constitution. There’s nothing in case law. You get this “least change” rule that, quite frankly, if you talk to an uneducated voter about it, they might say, “you know, it sounds like it kind of makes sense, kind of on its face makes sense, keeping the districts together.”

Zac Schultz:

However, “least change” only cemented in the advantage Republicans drew for themselves 10 years ago. Even the “least change” map submitted by Governor Evers still created districts that ensured a Republican majority in the Legislature.

Janet Protasiewicz:

This is where I say democracy is on the line. You look at the fact that the maps were, you know, 10 years ago, a problem. I would say that the maps are a bigger problem. You’ll hear people argue that the Republicans used very, very sophisticated computer technology to draw those maps and to draw those maps in a way that are absolutely the most favorable to them. So that’s when I say, yes, those maps are rigged.

Zac Schultz:

Daniel Kelly served on the court from 2016 until he lost re-election in 2020 and was not on the bench when the court decided the redistricting case. However, he says their decision makes sense.

Daniel Kelly:

And so the phrase, “least change,” is meant to encompass the idea that we take the maps as they’re written and then we look for the legal errors and we fix the legal errors and we leave everything else the same.

Zac Schultz:

Past redistricting cases were decided in federal court but Republicans wanted this case before the Wisconsin Supreme Court. Kelly says the idea of fairness in the maps is a political question, something the court must avoid.

Daniel Kelly:

The members of this court have not been entrusted with making political decisions, only legal decisions. And so their job is just to address those legal imperfections in that map, and when they’re done addressing those, it is to step aside and then wait for the people of Wisconsin to work on their legislature and their governor to get to a map that is politically acceptable to the state.

Zac Schultz:

In the spring of 2022, using the “least change” criteria, Justice Brian Hagedorn joined the three liberals on the court to choose Tony Evers legislative maps which included an additional African-American Assembly seat in the Milwaukee area, something they argued was required under the Voting Rights Act. Republicans appealed to the United States Supreme Court, which struck down the maps, saying there wasn’t enough evidence to support invoking the VRA. Hagedorn then joined the conservatives in picking the Republican-drawn maps which Protasiewicz says was the court’s second major error and something she expects the court to revisit if she wins.

One of the things that was in the dissent from the Supreme Court regarding redistricting case, especially after it came back from the U.S. Supreme Court, was they felt that the court could hold a trial to actually determine whether it was warranted to add an additional district under the Voting Rights Act in Milwaukee or not. Is that an issue you would expect to come back before the court given that the dissent almost envisioned it?

Janet Protasiewicz:

I would think so. I would think so.

Zac Schultz:

Reporting from Madison, I’m Zac Schultz for “Here & Now.”

Frederica Freyberg:

A federal judge in Madison has denied the request of non-tribal residents on the Lac du Flambeau reservation to remove barricades blocking roads that access their properties. The roads have been blocked to more than 50 homes since late January over an easement dispute. The judge gave the homeowners until next Tuesday to explain under what jurisdictional authority the court could issue such a temporary restraining order. Tribal president John D. Johnson Sr. said, “We feel for the impacted property owners and hope this ruling encourages all property owners to press for immediate action by the town, the title insurance companies, and the Bureau of Indian Affairs to resolve this matter.”

At the Capitol this week, the Republican-led Rules Committee heard testimony about updated immunization requirements for children who attend school and daycare. Among the updates, the Department of Health Services changed or added rules for vaccines that prevent meningitis and chickenpox. DHS officials testifying were met with hostility from some committee members wanting to rehash mandates made during the COVID-19 pandemic.

Steve Nass:

When we look at that past history, and a number of things that were just flat out wrong and kids have been harmed because of the school shut-downs, how do we trust you, and honest to God, that made me so angry back then, and even now, I’ll be honest with you, when I see you, I refer to you as Wisconsin’s Dr. Fauci.

Frederica Freyberg:

To understand more about these vaccine changes, we turn to Dr. Greg DeMuri, an infectious disease pediatrician at UW Health. Doctor, thanks very much for being here.

Greg DeMuri:

My pleasure to be here.

Frederica Freyberg:

The Rules Committee voted the state health department cannot require a meningitis vaccination in the 7th grade and then a booster in the 12th grade. As an infectious disease physician, what’s your reaction?

Greg DeMuri:

Well, it’s quite concerning. We know these are safe vaccines. These two illnesses can be devastating. Meningitis, or more appropriately, meningococcal disease, can result in death, can result in amputation of the limbs and, you know, all of us in infectious disease have seen that as part of our job, part of our career. Knowing there’s a way to prevent this and make our schools safe and keep our schools safe from this, it’s really disheartening to hear this.

Frederica Freyberg:

How contagious, also, is meningitis?

Greg DeMuri:

It’s quite contagious. I believe there’s an outbreak right now in Virginia. We’ve had outbreaks in Wisconsin. It can go through universities and college campuses, barracks and military installations, so it’s one of those very highly contagious, highly infectious diseases.

Frederica Freyberg:

Do most families go ahead and get it regardless of kind of what the rules are? Are pediatricians recommending it?

Greg DeMuri:

It’s been strongly recommended for quite some time now and most families, fortunately, do go ahead and get it. Although there’s not quite as much awareness of this vaccine than some of other vaccines. We also know that school requirements increase and improve our immunization rates in communities. Those states that have the most robust school requirements have the highest immunization rates. And here, even in Wisconsin, we’ve seen when we implement this rule for schools, our immunization rates go up and the disease rates go down.

Frederica Freyberg:

So the legislature also removed a new requirement that a healthcare provider confirm that a child had chickenpox to not have to have the vaccination and it reverts back to kind of the current rule where a parent can come in and say, “Oh, yes, my child had chickenpox and so I’d like to be exempt from having to prove that vaccination.” Is that enough in your mind to have parents be able to attest to that?

Greg DeMuri:

It’s not. I think this was a good rule change. It’s been my experience that it’s become very difficult for parents to diagnose chickenpox. Even young physicians sometimes have trouble doing it. Those of us who were around before 1990, the early ’90s when this vaccine came out, have certainly seen plenty of chickenpox, but since that time, many parents and even young physicians haven’t seen it and we need to have some more confirmatory testing to be able to do it.

Frederica Freyberg:

Of note also is the declining rate of childhood vaccinations in Wisconsin since COVID dropping from about 92% in 2020 to just under 89% in the last year. How concerning is this for pediatricians?

Greg DeMuri:

We’re very concerned. Again, this is a disturbing phenomenon. It’s certainly something that I think paralleled COVID and misinformation that was out about COVID vaccine and also about COVID disease itself. So some of the anti-science misinformation that’s out there has now carried over to other vaccines and that’s quite concerning for the possibility of new outbreaks of infectious diseases that have been quieted for years.

Frederica Freyberg:

Do you see patients and families that kind of hold onto that misinformation and declare that, no, they don’t want vaccines?

Greg DeMuri:

We do. Unfortunately, we do. This attitude is certainly become more prevalent since COVID, and it’s something we try to provide information about, provide the latest scientific and best scientific information we have, and our experience. Many of us, many pediatricians and family doctors in the community, have seen many of these illnesses and can provide that experience to their families.

Frederica Freyberg:

Still out there also is the misinformation about vaccines causing autism. What is your message on that?

Greg DeMuri:

You know, this has been debunked now over and over again. Initial concern was for measles vaccine and some other vaccines and it’s something that just isn’t scientifically established or proven. In fact, the opposite has been shown, that there’s no link between vaccines and autism. Parents can be very assured of that and very confident in the safety of the vaccines.

Frederica Freyberg:

In a broader sense, in your mind, should lawmakers be making decisions on childhood vaccines or should it be public health officials?

Greg DeMuri:

It should be public officials in consultation with physicians and physician-scientists using the best science we have, the best epidemiology and scientific information we have. I think here in Wisconsin, our state government has done that, taken the input of local and national and regional leaders in making those decisions.

Frederica Freyberg:

We leave it there, Dr. Greg DeMuri. Thanks very much.

Greg DeMuri:

My pleasure. Thank you for having me.

Frederica Freyberg:

In November, we reported on an investigation into child labor violations by Wisconsin-based company Packers Sanitation Services. In February, the U.S. Department of Labor reported more than 100 children were working illegally for the company across eight states. The minors were working overnight shifts as well as working with hazardous chemicals and dangerous meat processing equipment. The $1.5 million in penalties to be paid by the company makes it one of the largest child labor cases in the department’s history. Child labor has increased by nearly 70% since 2018, leading to a call for increased penalties and other measures to curb illegal child labor. We go now to Michael Lazzeri, the regional administrator of the Wage and Hour Division at the U.S. Department of Labor. Thank you for being with us.

Michael Lazzeri:

Thank you for having me.

Frederica Freyberg:

So according to data from your agency, Wisconsin has the second most child labor violations of our surrounding states, averaging about 99 per year since 2018. Only Michigan was higher. Why has child labor exploded on the national level?

Michael Lazzeri:

Our focus is always to identify instances where employers are exploiting vulnerable workers. Kids are vulnerable under any circumstance. They’re frightened to complain. They’re afraid of letting their families and their communities down and, honestly, they think they’re going to be in trouble, and that vulnerability translates to them being more prone to injuries in the workplace, and in settings that are especially dangerous, like a manufacturing facility or a meat processing plant those vulnerabilities are even further amplified.

Frederica Freyberg:

But we do know that the number of unaccompanied minors entering the United States climbed to a high of 130,000 last year, three times what it was five years earlier. Is that a demographic of children that is being exploited and the result of these child labor law violations, migrants coming in?

Michael Lazzeri:

Well, one thing I can say is that exploitation is exploitation, regardless of who the child is and what their background is, and when we are looking at investigations, our primary purpose is to look at who the employer is and who the employee is. So we look at it not with a blind eye, but neutrally. And we look at it — we don’t ask questions about status. We don’t question — ask questions about background. We do determine whether or not the child is in a safe environment and we are trained to identify instances of trafficking, if that’s appropriate. However, it’s not our primary purpose. We investigate the child labor standards of the Fair Labor Standards Act and that act defines the employee and the employer without regard to status or background.

Frederica Freyberg:

In your mind, could the number of violations actually be undercounted?

Michael Lazzeri:

I have no doubt. Across 10 states in the Midwest, we have less than 150 investigators that are covering hundreds of thousands of employers over hundreds of thousands of miles and we do everything that we can to target industries that are most likely to employ minors. And we do a substantial amount of outreach to communities, to employers, to schools, and we receive a lot of information from the public and from the community. And we have an obligation to act on that information very quickly, but when you’re dealing with industries that are behind walls and fences, the public can’t see them, and they can’t see what’s happening inside those four walls. And so it requires a lot more work for us and, you know, we rely on the public and we rely on employers and we do our best to target investigations as well into certain industries where we think there are going to be kids, but with less than 150 investigators, there’s only so much ground we can cover.

Frederica Freyberg:

Given the industrial mix, how fertile is a state like Wisconsin for child labor violations?

Michael Lazzeri:

Well, I think across the Midwest, the situation is especially dire when you’re talking about manufacturing, when you’re talking about the types of industries. Meat processing, where we were just doing investigation of PSSI, you know, we looked across multiple states, not just across the Midwest, but across the entire country, but the greater concentration of plants that we saw was definitely here.

Frederica Freyberg:

What kinds of jobs are minors working and what kind of hours?

Michael Lazzeri:

Generally, I think it’s important to make a distinction between child labor, which we typically see, which is in, for example, in fast food, where your issues with minors would be kind of confined to hours worked, use of equipment, so if they’re working past 9:00 during a school night or during the week or they’re working too many hours, that’s one type of violation. When you’re talking about manufacturing and some of these other industries, now you’re talking about the types of equipment that minors are using, and so for even 16, 17-year-olds, they’re prohibited from using or cleaning things like a head splitter, bone saws, equipment that could cause serious injury. They can’t use — they can’t be doing construction. Roofing. Those kinds of things. So I think it just depends on which type of child labor we’re talking about, the type that we typically see or the type we’ve been seeing recently, which is more severe and confined to very dangerous types of work.

Frederica Freyberg:

What do you say to companies employing children in violation of the law?

Michael Lazzeri:

Well, it’s their responsibility as an employer when they’re hiring or even bringing in staffing agencies, to put workers in their factories or in their facilities, it’s really up to them to be able to identify — I mean, we looked at PSSI. and we looked at the types of minors or the number of minors that were being employed across the country and you see pictures of these kids and there is no way a reasonable person would look at these kids and say that that is a 30-year old or somebody who is over 18, even in their 20s. So employers have to not rely on, you know — they have to be able to see what they see and be able to take action to be able to make sure that these minors are not being employed in dangerous work.

Frederica Freyberg:

All right. Michael Lazzeri from the U.S. Department of Labor, thank you very much.

Michael Lazzeri:

Thank you.

Frederica Freyberg:

Last August, Republican Assembly Speaker Robin Vos fired Michael Gableman, a former Supreme Court justice, from his job as special counsel investigating the administration of the 2020 election. Today the state tab for Gableman’s work has risen to nearly $2.5 million including court costs arising from lawsuits over public records from the probe. And now attorneys at Law Forward have filed a 108-page complaint with the Office of Lawyer Regulations saying Gableman violated Supreme Court rules of professional conduct during his election investigation. Attorney Jeff Mandell filed the complaint. Thanks for being here.

Jeff Mandell:

Thank you for having me.

Frederica Freyberg:

So Michael Gableman was fired, as we just said, and called an embarrassment by Speaker Robin Vos. Isn’t that enough? Why file a complaint against him now?

Jeff Mandell:

Well, the goal here is not to pile on. The goal is not to embarrass Mr. Gableman. But if we have a rule of law, if we have a system where everyone plays by the same rules, those rules need to be enforced. The complaint is as long as it is because Mr. Gableman broke so many rules of ethical conduct. It was quite a task to catalog them all.

Frederica Freyberg:

So you — your complaint, as you say, alleges in detail how Gableman violated professional conduct for an attorney, starting with his competency. He’s certainly held high office as a former justice and DA. Why do you say he was incompetent here?

Jeff Mandell:

Well, for a couple of reasons. First, an attorney can be highly competent at one thing and not competent at some other area of the law, and the ethical rules require attorneys to be mindful and self-conscious of this and to accept those representations that they are prepared to carry out. Mr. Gableman, after accepting his charge as special counsel, publicly stated that he knew almost nothing about election law. So that in itself is a competence issue. Now, an attorney may take on something where they need to learn something new. We’re all capable of learning new things, but Mr. Gableman then did not undertake the kinds of steps you would expect to learn something new. You don’t get to charge the taxpayers or the state or your client for learning these new things and you have to be prepared to do it. Mr. Gableman spent the first several weeks of his job trying to learn these things at a public computer terminal at the New Berlin Public Library. Even as he told the public that his investigation was going to be highly secure and secretive and he needed to make sure that no one knew exactly what he was doing. He was doing this all at a public computer terminal and he was not learning election law in the way you would expect a diligent attorney to do but instead was consulting with conspiracy theorists and fringe actors to bring himself up to date on the latest crazy theories.

Frederica Freyberg:

You also say that he caused malicious injury to those like the mayors that he subpoenaed as part of his investigation. How so?

Jeff Mandell:

Well, he asked a judge in Waukesha County to throw the mayors of Green Bay and Madison in jail and he did so on entirely false pretenses, that he knew were false, and he did so also asking the judge to do it without even hearing from the defendants or letting those mayors know that he was trying to do it. So he misrepresented the facts in the law, tried to hide what he was doing to make sure that they wouldn’t get their day in court to defend themselves. It was entirely malicious, and when we pointed those faults out, at no point did Mr. Gableman or any of the attorneys working with him attempt to fix that or correct the record. They were deliberately lying about these public officials.

Frederica Freyberg:

Have attorneys across the country involved in trying to kind of undo the results of the 2020 election faced professional misconduct discipline in this way?

Jeff Mandell:

Quite a few have. Mayor Giuliani has been sanctioned and a lawyer here in Wisconsin, Erick Kaardal, who was tied into Mr. Gableman’s investigation, though he was not officially working for the state. Mr. Gableman was sharing information and sharing office space with him in ways that are themselves ethically problematic. He has been referred for professional discipline by a federal judge in Washington, DC because a case he filed was so baseless.

Frederica Freyberg:

Why, in your mind, is it important to file these kinds of things?

Jeff Mandell:

Well, you know, we have courts and we use our laws to resolve serious disputes, and that’s an important thing, but when people break the basic rules and they bring cases that are frivolous and that they know are frivolous when they’re seeking to advance a purely political agenda that has no basis in law, we have to uphold the rules and make sure that they can’t do it. Otherwise, we will devolve into chaos.

Frederica Freyberg:

What outcome would you like to see for Michael Gableman here?

Jeff Mandell:

I would like to see the Office of Lawyer Regulation take a really careful and thorough look at this. It is really not for us to say what the ultimate punishment should be. That’s for the Supreme Court of Wisconsin to decide. They’re the ones who patrol the bar at the end of the day. They’re the cops on the beat for this. But my hope is that the Office of Lawyer Regulation will thoroughly investigate this and get to the bottom of this and treat Mr. Gableman the same way they would treat any other lawyer in the state of Wisconsin.

Frederica Freyberg:

And so it doesn’t constitute any kind of conflict of interest given that he was a former Supreme Court justice that it is an arm of the Supreme Court?

Jeff Mandell:

It doesn’t. In fact, there was a complaint against Mr. Gableman while he was a Supreme Court justice that the rest of the Supreme Court did deal with. It’s complicated and maybe a little bit uncomfortable, but it’s part of their job.

Frederica Freyberg:

Jeffrey Mandell, thanks very much.

Jeff Mandell:

Thank you.

Frederica Freyberg:

Michael Gableman is now senior counsel in the election integrity unit at the Thomas Moore Society, a conservative public interest law firm based in Chicago.

For more on this and other issues facing Wisconsin, visit our website at PBSwisconsin.org and then click on the news tab. That’s our program for tonight, I’m Frederica Freyberg. Have a good weekend.

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Funding for “Here & Now” is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.