There’s already a vigorous state Attorney General primary campaign behind the scenes on the Republican side of the ticket. One candidate we keep running into is Fond du Lac County District Attorney Eric Toney, who is aggressively working the GOP base. We saw him speak at a law enforcement event put on by a non-profit spearheaded by former U.S. Senate candidate Kevin Nicholson, and he popped up on a balmy Friday night to seamlessly work the crowd on June 4 at a Waukesha GOP Pints & Politics event.
Toney, a Republican, paints himself as a “tough and proven prosecutor.” Despite his relatively young age, he’s been DA for nine years; the son of a law enforcement officer, he helped start the county’s drug court, created an opioid task force, is president-elect of the Wisconsin District Attorneys Association (WDAA), talks about his staunch support for police, fought to have violent sex offenders return to their county of residence, and promises to “restore the Department of Justice’s mission to fight crime, support law enforcement, protect families, and enforce the law.” We sat down and talked with him for some time, and he came across as a pragmatic prosecutor with conservative beliefs, but not an ideologue per se. He seemed to greatly care about the concerns of law enforcement. His experience in the state’s prosecutorial trenches would be an asset.
At both the Pints & Politics and Nicholson events, Toney seemed largely well-received, although he did face some tough questioning and heat from one man about an issue we think will have some staying power in the GOP primary: His 10 COVID prosecutions.
The race is incredibly important. If Republicans don’t knock out liberal activist AG Josh Kaul this time around, there’s a good chance he becomes a leading candidate for governor or U.S. Senate down the road. In short: The race matters, but it’s getting almost no attention, although it’s quite early. The position sets the tone for law enforcement in the state.
Kaul, the son of former liberal AG Peg Lautenschlager, never prosecuted a Wisconsin criminal case before he became AG; his plea bargains in drug cases while a federal prosecutor in Baltimore received some media scrutiny the first time around. He didn’t move back to Wisconsin until 2014.
We came away impressed with Toney each time we met him, but we also started getting a number of tips urging us to look into his COVID-19 criminal prosecutions of small business owners, patrons, and an employee. We decided to take a closer look at what happened with those cases, and we thought it was important to give Toney a chance to explain himself. It’s clear that those prosecutions will become an issue in the GOP primary. We outline each of them later in this article, and you can read the criminal complaints yourself and decide on your own.
Read the criminal complaints here. They involved multiple charges involving three small businesses. The allegations included: a bar and grill accused of violating social distancing and allowing a dine-in customer, a hookah lounge that held a birthday party after a previous warning, and a vacation rental home whose owner rented to a family from Illinois after a previous incident and allegedly allowed them to use the pool…. all in alleged contravention of Gov. Tony Evers’ executive orders.
In some cases, the complaints alleged people were defiant, hung up, were hiding from investigating deputies or were on their second warning. In other words, it seemed like law enforcement agencies referred cases where people allegedly thumbed their noses at them. The cases were dismissed on prosecutors’ motions just weeks after being filed.
This won’t be our last article on the AG race, far from it; we’re getting a number of tips about the abysmal record of Kaul, and we intend to follow up on them. Our goal is to educate readers on the candidates in this race. This is just our first step in that effort.
We aren’t endorsing in the primary. Toney is not the only GOP candidate vying for the chance to take on Kaul; Madison Law Professor Ryan Owens is the other. He worked in Tommy Thompson’s legal department and calls himself a “constitutional conservative.” We saw Owens speak at the Nicholson event too; as with Toney, he stressed conservative principles and spoke strongly against abolishing qualified immunity for law enforcement. Owens’ campaign declined to comment on Toney’s COVID-19 prosecutions. We also reached one of the people prosecuted, a small business owner. He, too, declined to comment.
Frankly, either Owens or Eric Toney would be a million times better than activist AG Kaul, who has de-emphasized DOJ’s law enforcement mission in favor of partisan politics.
Should the COVID prosecutions disqualify Toney? We think they should be considered in the context of his entire career. Beyond that, it’s up to you how much weight to give them.
What does Eric Toney say about his COVID prosecutions? We asked him to explain.
Eric Toney’s Position: The Rule of Law
Asked to explain the prosecutions, Eric Toney stressed the rule of law, a conservative principle.
“I’m a prosecutor, not a politician and I follow the rule of law, even when I disagree or it is unpopular,” he told Wisconsin Right Now. “Unlike Josh Kaul, I don’t play politics with community safety and that’s what Wisconsin deserves from our Attorney General.”
He also provided us with a lengthy article he wrote explaining the prosecutions. You can read it in full here: Toney4AG Rule of Law op-ed.
“As Fond du Lac County District Attorney, I dismissed all of the charges filed for violations of the Safer at Home order after the extended Safer at Home order was struck down by the Wisconsin Supreme Court,” he explained in that May 2021 document.
“No one was convicted by my office for violating any Safer at Home order, and no one was prosecuted for mask violations or lack of social distancing,” Eric Toney wrote. “I informed county officials that I would not enforce the Governor’s mask mandate because it was clearly an abuse of power and an unlawful executive order. Ultimately, the Supreme Court agreed with my analysis. In the initial days of the Safer at Home order, cases were filed in my county for prosecution but I ordered all the charges to be dismissed. I also worked with regional district attorneys to help coordinate a unified approach on this issue, leading to charges being dismissed in other counties.”
Toney noted, “Unlike others, I’m a prosecutor, not a politician, and I will never play politics with community safety. My job as a district attorney is to follow the law, not make the law…that’s what liberal activists and classroom theorists try to do.”
Eric Toney also sent us an analysis he sent on Aug. 3, 2020, to the county’s public health officer on Gov Evers’ mask mandate and new executive order.
In that analysis, he announced that his office would “not be enforcing any violations” of Evers’ new executive order, calling it an “unlawful extension” of the governor’s first executive order, which expired after 60 days when it was not extended by the Legislature.
To view it any differently, he wrote, “confers frightening powers upon a governor that can simply continue to reissue state of emergency or public health emergencies…this is an unsettled area of law in Wisconsin with no case law history…I understand this analysis will not be popular with many and will cause some to be angry but I have taken an oath of office to support the constitution of the united states and the constitution of the state of Wisconsin.”
In contrast, the prosecutions came during Evers’ first executive order on COVID.
At the time he filed the criminal charges for violations against Gov. Tony Evers’ stay-at-home orders, the COVID-19 pandemic was incredibly new. It was early April. Fond du Lac County in particular was reeling from the death of a 55-year-old man who died of COVID-19 after going on an Egyptian river cruise; it was one of the state’s first COVID deaths. In addition, the cases were referred to Toney’s office by local law enforcement. At that time, there was so much that wasn’t known about the virus.
Eric Toney later dismissed the cases, in part because law enforcement moved toward an educational approach instead, and prosecuting them would create an inequitable approach whereby some business owners were charged in his county, but others were not. One of those businesses charged was facing losing a government loan due to the prosecution when Toney decided to dismiss it. People can question the constitutionality, but DAs aren’t the courts, and Evers’ initial order put law enforcement in a bind.
Still, the vast majority of DAs in the state did not choose to charge small business owners and patrons with crimes during the volatile and frightening early days of the pandemic. Prosecutors are allowed to use discretion; they do that all of the time. Other DAs, in almost all other cases, did not take the same approach Eric Toney did. Thus, we also think the issue merits scrutiny.
Whether it’s disqualifying is up to you.
Who Eric Toney Prosecuted
Who did Eric Toney prosecute? Here are the allegations from the criminal complaints:
1. Jamie L. Bray of Fond du Lac was charged with a criminal misdemeanor with willfully violating the safer at home order contrary to Wisconsin statutes. The charge came with a possible imprisonment of 30 days or a $500 fine or both if conviction resulted.
The complaint was based on the accounts of a Fond du Lac County Sheriff’s Deputy, Jason Bruggink.
The complaint dealt with alleged actions that occurred on March 27, 2020, in the Town of Taycheedah. Tony Evers issued his emergency order on March 24, which required people outside of their home to socially distance within six feet of each other and prohibited public and private gatherings unless they were part of a single household. The order also said all restaurants needed to close instead of take-out or delivery services.
On March 27, the deputy was dispatched to the establishment Sunset on the Water to investigate the claim of a possible violation of Evers’ order. The reporting party claimed that 20 cars were in the parking lot and the restaurant was open.
The complaint makes the following allegations:
The deputy arrived at the supper club and saw vehicles in the parking lot with three individuals and a restaurant worker bringing food out to the vehicles. He entered the restaurant and saw four to five people, bunched in a line, close together, waiting to order food at the bar, according to the order, which also said the deputy saw three to four other customers waiting in the bar area that were maintaining appropriate social distancing.
Bray was an employee who was taking orders both from customers at the bar and over the phone. The deputy advised Bray to have the customers wait outside after paying for their food and advised the customers in line to create some space or wait in their vehicle.
The deputy asked to speak with the restaurant’s owner, Maria Katris.
She was in the kitchen cooking. The deputy asked Bray to get Katris and she became “visibly upset, making remarks to customers.”
The deputy waited 15-20 minutes for Katris to come out of the kitchen before asking Bray again, but Bray “continued to answer calls and became extremely upset” towards the deputy, the complaint alleges.
He waited for over 20 minutes. In the dining room, he saw a female identified as Michelle Matteson. She was seated at a table in the dining room with two drinks, one a Miller Lite, and was speaking to Bray’s mother.
Matteson told the deputy “that she had already eaten her food at the restaurant.” She said she had been there an hour eating and socializing with friends.
The deputy waited another 10-15 minutes for Katris to come out of the kitchen and saw 15 people working there. He eventually spoke to her and she stated she was only doing pick up orders.
She was given suggestions about how to accomplish social distancing.
Both Bray and Katris denied knowing that anyone sat down and ate their meal in her restaurant.
The complaint was dated April 3, 2020.
2. Maria Katris
She was charged with the same offense as Bray in a complaint that listed the same details.
She was charged with the same offense.
4. Rodney I. Emerson
He was charged with a criminal misdemeanor stemming from a different establishment.
The complaint makes the following allegations:
On March 21, a City of Fond du Lac police officer was sent to the area of the Hip Hop Shop to investigate a noise complaint. People in the area were yelling and revving their car engine. He discovered over 20 people congregating in the shop.
Evers had issued an emergency order on March 17 prohibiting mass gatherings of over 10 people.
Emerson stated he would cancel all upcoming events as he wanted to remain in good standing with the city.
On March 28, officers again responded to the Hip Hop Shop after hearing loud music coming from it. They observed a group of people inside and spoke with them. They were identified as Shuanita Pope-McDavis, Deunna Reed, Bernice Ivy, Jazzma Lynn, Shelly Emerson, and Rodney Emerson.
Rodney stated that his business was closed but he was hosting a private birthday party with the people who were present. He did say he was open for business earlier in the day on March 27 and said that he sold hookahs and hookah-related products.
The complaint was signed on April 6, 2020.
5. Shelly Emerson
She was charged with the same offense as Rodney in a complaint that listed the same details.
6. Bernice Ivy
She was charged with the same offense as Rodney in a complaint that listed the same details.
7. Jazzma Lynn
She was charged with the same offense as Emerson.
8. Shuanita KL Pope of Elkhart IN
She was charged with the same offense as Emerson.
9. Deunna Reed
She was charged with the same offense as Emerson.
10. Bradley Lenz
Lenz, of Fond du Lac, faced three misdemeanors.
The complaint made the following allegations:
The complaint alleged that on March 26, 2020, a sheriff’s deputy checked on a residence in the Township of Empire in Fond du Lac County. The sheriff’s office received information that the residence was a vacation rental property and there were new tenants playing in the swimming pool. The caller stated that the earlier tenants had moved out and the new tenants arrived later that day.
Deputy Jason Bruggink tried to contact the property owner, Brad Lenz. He stated there should be no issues as he had received an email from the Fond du Lac Health Department stating he could continue to rent the property out. He said he received it on March 17. The deputy pointed out that the emergency order went into place a week after the email was received and the day before he was there.
Lenz “became impatient and hung up” and there was no answer when the deputy called back.
The deputy and a sergeant, Logan Will, went to the residence.
When the deputy approached, the house was dark and he saw a male approach the window with a blanket as if he were attempting to block the window. They knocked multiple times despite seeing what appeared to be a projection television on but no one answered.
They tried to contact Lenz multiple times with no luck.
They felt people were “clearly inside hiding.”
At 9:37 p.m., Lenz called Bruggink back and stated he was renting his property out to a family of four.
On May 30, an anonymous person reported that new renters, from Illinois, had arrived at the residence. At least six people were seen using the pool.
Three deputies went to the property. They could hear children playing in the pool. Marian Krupicka answered. She said she was at the residence with her daughter, two of her grandchildren and two of the grandchildren’s friends and her daughters’ neighbors from Illinois.
They arranged the rental through Lenz. The deputy said the emergency order prohibited the use of pools at any hotel or motel.
Lenz told the deputies there were signs up at the poll stating it was closed and denied telling the renters they could use the pool.
They did find a piece of paper that stated “notice pool closed.”
The advertisement listed a pool. The woman from Illinois said Lenz told her she could use the pool, the complaint alleges.
All of the above cases were dismissed. They remain on CCAP, the public court website.
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