Police, former employees support DA’s opponent for judge

Necci touted as conservative for non-partisan seat

By Vicky Wedig

SLN Staff

Partisanship, endorsements and the job performance of the district attorney have come in to play in the race for Walworth County Circuit Court judge.

Vying for the seat to replace outgoing Judge James Carlson, who’s presided for 37 years, are District Attorney Dan Necci and family court commissioner Dan Johnson. The race will be decided in Tuesday’s election.

Necci and Johnson were the top two vote-getters in the Feb. 16 primary election, edging out Lake Geneva attorney Shannon Wynn, who garnered 31 percent of the vote – 132 votes behind Necci and 557 votes behind Johnson.

Wynn has not publicly supported either candidate since the primary election.

“I’m not endorsing any candidates for the general election,” she said.

Wynn said she doesn’t have a sense of whether the 2,799 votes she generated in the primary will be cast for Necci or Johnson in the general election.

“I think it’s an individual by individual decision,” she said.

At least one of Wynn’s supporters in the primary election – retired Walworth County Circuit Court Judge Robert Kennedy – is now endorsing Johnson.

Kennedy said he was torn about whether to endorse Wynn or Johnson for the primary but found Wynn to be a superior legal scholar and chose to support her.

“She really was a very outstanding private practitioner, ran a very good office, taught at Marquette (and is a) tremendous legal scholar,” he said.

But, he said, Johnson too is a tremendous scholar, was a super attorney, is a good circuit court commissioner and has a great personality.

“So when she didn’t make it, there was no question in my mind,” he said. “He’s really a superior attorney.”

DA’s office

Kennedy said many members of Necci’s staff are supporting Johnson “because he’s such an outstanding candidate.”

Among Johnson’s endorsers are six former employees of the district attorney’s office, three of whom worked under Necci.

Two former assistant district attorneys, Cody Horlacher and Valerian Powell, who left the office for other ventures, are supporting Necci.

Johnson also has the endorsement of sitting judges Phil Koss, who was DA before Necci, and Kristine Drettwan and retired judges Kennedy and John Race. Carlson has said he will not endorseme a candidate to replace him.

“Among those people who know – police, judges, court staff – they’re all in favor of Dan Johnson,” Kennedy said.

Retired Sheriff David Graves is among 22 current and former members of the Walworth County Sheriff’s Department who endorse Johnson.

Graves said the groundswell of support for Johnson from law enforcement is because officers see how Johnson operates as family court commissioner.

“A lot of these guys have seen him around the courthouse and seen him do his job,” he said.

Other Johnson supporters, particularly staff who worked in the DA’s office, say their support of Johnson is as much a statement about Necci’s job as district attorney as it is an endorsement of Johnson.

“It’s an evaluation on Dan Necci as DA, and I don’t believe we should promote people like that to a higher place,” said former district attorney’s office manager Crystal Zarnstorff, who is among multiple people who have left the DA’s office since Necci took the helm.

Horlacher, who interned under Koss and worked as an assistant DA under Necci, is now a state representative and said the working environment in the DA’s office under Necci is better than it was under Koss.

“I totally disagree that it’s not a good working environment,” he said.

Horlacher said the office has less infighting among attorneys under Necci, and everyone in the office gets along.

“It’s hard to get attorneys to all pull in the same direction,” he said. “Any time you have a changeover in administration you’re going to have people who were very loyal to the outgoing administration,” he said.

Necci wrote in an email that he came into the DA’s office with a vision for change.

“Change that has, ultimately, made our county safer and our office more efficient than it was before,” he wrote. “Some people don’t like change. Change in my office came slowly, but, in the end, it came as I knew it would, and the people of Walworth County are far better off for it.”

Johnson said he has heard about dissatisfaction in the district attorney’s office regarding the way employees are treated and how cases are prosecuted. But, he said, his first-hand experience is in the way Necci has treated him.

“My personal experience with him is he tells lies about me, mischaracterizes what I believe in, (and) talk(s) about me in a demeaning and disrespectful way,” Johnson said. “The way he’s done that is similar to the way he treats other people.”

Necci wrote in an email that despite “childish allegations” that he is “mean,” his leadership has made Walworth County safer.

“Heroin/opiate convictions are up over 40 percent, we are more aggressive and charge a higher rate of sensitive crimes and crimes against children, and prison sentences are up over 30 percent for multiple-time drunk drivers,” he wrote. “It is unfortunate that some past employees that wouldn’t be a part of our great success cannot otherwise move on gracefully.”

Johnson’s supporters have touted him as fair and respectful of everyone with integrity and the demeanor a judge should have.

Horlacher said Necci has integrity as well.

“Dan (Necci) has integrity despite what people have been saying about him,” he said.

Kennedy said some of the difficulties facing Necci as DA might have to do with following in the footsteps of Koss, whom Kennedy said was one of the best district attorneys Walworth County has had.

“Maybe Dan Necci suffers because Phil Koss was such a great DA and it’s hard to fill his shoes,” he said.

Kennedy said while he didn’t work directly with Necci in the DA’s office, he noticed Necci seldom tried cases.

In an emailed statement, Necci said people who say few cases go to trial “speak from a point of ignorance.”

“From 2010 through 2012 (under Koss) the D.A.’s office tried 106 cases to a jury. Between 2013 through 2015 my office tried 96 to a jury, a difference of only 10,” he wrote. “My office won a higher rate of our trials, and a higher percentage of our trials were complex felony trials. Quite simply, the D.A.’s office under my leadership has performed better than the Koss D.A.’s office in this regard and many others.”       Johnson said the number of criminal cases that have been filed since Necci became district attorney is way down.

In Koss’ last two years as DA, the number of felony cases filed in Walworth County Circuit Court was 568 per year, according to online court records, while the number of misdemeanor cases averaged 618, and the number of criminal traffic cases averaged 943 per year.

In Necci’s first three years as district attorney, the number of felony cases filed averages 530 per year; misdemeanors, 524 per year; and criminal traffic, 407 per year, according to online court records.

At a forum in Elkhorn last week, Necci said his team in the district attorney’s office has had “wild success” under his leadership. He said the number of convictions for heroin and opiate offenses is up 40 percent, more than 30 percent more drunken drivers are going to prison and the conviction rate at jury trials is higher than under the previous administration.

Necci’s office denied an open records request earlier this month from a citizen asking for multiple pieces of information including the number of cases attorneys have been assigned in the DA’s office since 2008 and the number of cases in which decisions were made not to prosecute cases referred to the office during the same time period.

In at least two cases of employee theft, attorneys have filed civil lawsuits or moved for criminal prosecution on behalf of their clients after the district attorney has declined to file charges, according to Johnson and a Janesville Gazette article.

At last week’s Elkhorn forum, Necci was asked about a case in which Delavan attorney Mara Spring filed a motion to compel the office to file criminal charges against Heidi Kunhke, who allegedly embezzled about $168,000 from her former employer Lakeshore Equine Services in Darien, according to the Gazette article.

Judge David Reddy granted Spring’s motion.

Necci said the case was originally filed when Koss was DA, and Koss declined to file criminal charges because the case didn’t have the level of proof needed to prosecute it. When the case was again brought to the DA’s office with Necci at the helm, Necci said he still felt the evidence in the case didn’t meet the burden of proof the state needed.

“We can’t charge everything. Not everything reaches that level,” he said. “No ethical prosecutor would proceed on this case.”

Johnson, whose firm was involved in the case when it was originally filed, said because of certain issues in the case, Koss suggested waiting for the outcome of a civil trial in the case before proceeding criminally.

When a 12-person civil jury unanimously ordered Kuhnke to pay $875,000 to her former employer in 2015, the case was brought back to the DA’s office under Necci.

Necci said he will not seek re-election as district attorney in November.

Experience

Though she admits dissatisfaction with Necci, Zarnstorff said supporting his opponent is easy given Johnson’s abilities.

“I think that Dan Johnson’s qualifications speak for themselves,” she said.

She said Johnson is the only candidate with judicial experience, having served as the family court commissioner since 2014.

“I think also it goes to his demeanor that I like to see in a judge – fairness, intelligence, open mindedness, the way he treats people,” Zarnstorff said.

Kennedy said sheer courtroom experience on both sides of the bench – as an attorney and a commissioner – and demonstrated legal knowledge make Johnson the better candidate.

“It comes down to sheer experience and ability,” he said. “Dan Johnson is a very, very good legal scholar. He knows the law.

“He has been a very good court commissioner. He has just established an outstanding reputation, and he’s that good.

“Dan Necci has nowhere near his experience. They don’t compare,” Kennedy said.

Graves said Johnson is not biased, has common sense, makes decisions based on both sides of a case and is not part of any political party.

“Looking at both, I think Johnson is more qualified,” he said.

Horlacher said being a court commissioner as Johnson has is not the same as being a judge. He said Necci has been at the forefront of drug issues affecting Walworth County and has been in jury trial after jury trial. He said a judge needs to know the rules of evidence to preside over criminal matters, which will account for more than half the cases that appear before him.

“Dan Johnson simply doesn’t have the type of experience of Dan Necci,” he said. “I firmly believe Dan Necci is the right man for the job.”

Partisanship

Necci supporters have called Johnson a liberal activist and said he is supported by Walworth County Democrats.

Johnson said neither the Democratic Party of Walworth County nor the Republic Party of Walworth County has endorsed either candidate for the non-partisan office.

He said his 10-member campaign committee is composed of five current or former Republican elected officials in Walworth County.

The chairman of the Democratic Party of Walworth County said the group has not endorsed a candidate.

“The Walworth County Democratic Party publicly, on the internet, for the world to see, told its members to vote for him and otherwise support his candidacy,” Necci wrote in an email. “That is, by any definition, an endorsement.”

When asked whether he has called Johnson a “liberal activist,” Necci responded via email:

“I have said Walworth County doesn’t need a liberal activist judge. The Walworth County Democrats have an unblemished history of advocating for liberal, activist judges such as Shirley Abrahamson and JoAnne Kloppenberg and they now support Daniel Johnson. On the other hand, the people of Walworth County know who I am and where I stand.”

Necci is endorsed by state Reps. Tyler August, Samantha Kerkman, Cody Horlacker and Amy Loudenbeck, all Republicans.

August said he supports Necci based on his involvement in conservative politics, and he believes Necci will apply the law fairly and without personal bias.

“I’ve known Dan (Necci) for quite a few years now, and we’ve become good friends,” he said. “I know he is a man of commitment. When I look at all the candidates in the race, he is the one that I know for sure is a constitutional conservative.”

August said he does not know Johnson.

“I know when it comes to supporting candidates, I like to support those that I know are conservatives,” he said.

Four of the state’s seven Supreme Court justices – Rebecca Bradley, Michael Gableman, Annette Ziegler and David Prosser, all Republican-supported or considered conservatives – have endorsed Necci.

Bradley, who was appointed to the bench by Gov. Scott Walker, did not return phone calls seeking comment about her endorsement of Necci.

Local supporters

Necci’s local supporters include Delavan Mayor Mel Nieuwenhuis and Delavan Town Board Chairman Ryan Simons.

Nieuwenhuis said his support of Necci is based on mutual endorsements of each other’s campaigns

“I’ve helped him campaign when he ran for DA and he supported me when I ran for mayor, so it’s that friendship more than anything else,” he said. “I’ve known Dan (Necci) for a number of years now, and I just feel that he’s just as qualified as Dan Johnson.”         He said he met Johnson once at a common council meeting and said he is a “real nice guy.”

“I don’t have anything against Dan Johnson,” Nieuwenhuis said. “I think he’s got a pretty good record himself.”

Among Johnson’s endorsers are 55 members of law enforcement including 11 former or current chiefs of police.

Among Necci’s endorsers are five members of law enforcement including Genoa City Police Chief Joseph Balog and Capt. James Bushey, of the Town of Linn Police Department.

Bushey said he is supporting Necci based on his work with the Walworth County Child Advocacy Center and his activism for a law that would provide support for victims.

“He always seemed like he cared a lot about working with us in the community, wanting to step out and help out in other aspects,” he said.

Bushey said Necci is personable and seems interested in getting to know officers personally as well as professionally.

He said Necci is also a great legal resource for officers and is willing to give advice about recommending charges in cases.

“He’s always got your back,” Bushey said.

Bushey said Necci has pushed the state to pass Erin’s Law that would allow victims of abuse to have an advocate with them throughout the court process.

Bushey said he has no experience with Dan Johnson.