Sick of too little funding and too many cases, Marinette DA resigns in protest

Bruce Vielmetti | Milwaukee Journal Sentinel

Career prosecutor Allen Brey makes it clear he's not retiring from his post as Marinette County district attorney: He's quitting — in protest or self-preservation or both.

"Morally, I can't continue working in a system that treats victims this way," Brey said, referring to the growing backlog of cases, now more than 400, that he and his assistant prosecutor can't get to quickly enough despite working 50- to 60-hour weeks.

And a family intervention about his work/life imbalance — including a stern talk from his 87-year-old father in Florida — finally set his reluctant resignation in motion.

"He opened my eyes," Brey recalled. The district attorney said his dad asked him if it really made sense to be in his office Sunday mornings, instead of at church.

"It had been a gradual creep to 60 and 70 hours a week," Brey said. "I hadn't realized I was out of whack. I think my nose was too close to the bark to see the tree, much less the forest."

Brey, 62, is not the first or only elected DA to complain about chronic underfunding and short staffing. Studies have repeatedly shown the ranks of state prosecutors are about 140 short of standards and yet no governor since Tommy Thompson has approved a budget for additional prosecutors, even though law enforcement agencies have grown and send more cases.

Re-elected in November, Brey sent his resignation letter to Gov. Scott Walker in late March. His last day was Friday. He said he plans to "get reacquainted with my family," then look for a new job.

"I'll miss the good people I work with," he said. But he won't miss having to tell crime victims — people he often runs into given the county's size — that it might take two years or more for a case to resolve. "It's unconscionable, (and) I understand why they're angry."

Walker will appoint someone to fill out the rest of Brey's four-year term. The only finalist had been Derek Dominguez, an assistant prosecutor in Wood and Eau Claire counties since graduating from the University of Wisconsin-Madison Law School in 2012. But Brey's assistant, LeShea Morrow, recently applied and would likely be considered a favorite for the appointment.

Marinette County has about 43,000 residents, but the same two positions it had when Brey joined the office as the assistant district attorney in 1993. There's also one clerk, two legal secretaries and a victim-witness coordinator.

Bigger counties have found other ways around the dearth of state funding. In Milwaukee, about a third of the DA's office is paid for by outside grants.

In Ozaukee County, the population grew 30% since 1979 but still had just the elected district attorney and two assistant prosecutors in 2015, when the board approved $90,000 for an assistant county attorney whom District Attorney Adam Gerol designated a special prosecutor.

Eau Claire and Brown counties made similar moves to fund what's supposed to be a state function, but the moves are hardly enough. In Brown County, DA David Lasee told a Green Bay TV station in March that his 15-prosecutor office had about 3,000 referrals pending from law enforcement.

Brey actually had another slot he hadn't filled, according to Rep. John Nygren, (R-Marinette), who said he helped get an additional half-time position funded to go with a half-time slot the county would pay for. Brey notes half the state funding is only through September, when the position would revert to half-time without benefits, making it harder to attract a qualified lawyer.

"There's no doubt that serving as a DA is more than a 40-hour-a-week job," Nygren said in a prepared statement in response to a request for his reaction to Brey's resignation. That's why, he said in the statement, they earn more than $100,000 and get seven weeks of vacation — though many would say they can't take nearly that much time off.

Portage County District Attorney Louis Molepske, president-elect of the Wisconsin District Attorneys Association, says he respects Brey for speaking out.

"He’s got the integrity to say publicly, ‘I can’t do what I need to do; I’d rather have someone else try,’" Molepske said.

"I've known Allen my whole career. In my opinion, he's a fearless guy, someone I admire very much," said Dodge County District Attorney Kurt Klomberg. "Has his resignation raised awareness? I suppose it has."

Dane County District Attorney Ismael Ozanne told Brey in an email: "You have done more than you can know. Your statements and actions have been heard" around the state. Ozanne assured Brey he was making a rational, family-first choice.

"What good is it to save the world and lose our soul?" Ozanne wrote.

Manitowoc County District Attorney Jacalyn LaBre, president of the WDAA, said the group hopes the Legislature will approve the creation of a board, with two or three staff members, to help manage the more than 420 prosecutors statewide and be their voice in Madison, to attend committee hearings and meetings and all the things elected DAs can't do because they're in court. The staff could advocate for prosecutors, alert them to new legislation that affects what they do, and provide timely, useful information to lawmakers.

For years, the prosecutors' office has been a small part of the Department of Administration, unlike the State Public Defender, which has its own board for oversight.

Last week, the Joint Finance Committee approved that idea and about $4 million to allow assistant prosecutors to get raises over the next two years. Now, turnover is high because prosecutors' starting pay is less than most other government lawyers and doesn't rise with experience and performance.

LaBre had 15 years' experience trying serious cases as an assistant prosecutor in Racine County but was still making only $60,000 before she became the elected DA in Manitowoc.

University of Wisconsin law professor Ben Kempinen, who runs the school's prosecution program, said he increasingly gets requests from district attorneys for students who can help out short term for credit or a small stipend.

However, declining enrollment at the law school has reduced numbers in the prosecution program, as well.

Kempinen, who trained about a quarter of the state's current prosecutors, sees the pay issue as critical to preventing a complete hollowing out of the middle ranks, those with about 10 years' experience, who can do the best job most efficiently.

He said President Donald Trump's proposal to eliminate a student loan forgiveness program for graduates who work in the public sector could also squeeze the pipeline of future prosecutors. He said students at University of Wisconsin Law School leave with an average student loan debt of $75,000 to $80,000.