Waupaca county judge retires
Kirk served since 1981
By Robert Cloud
An unsuccessful stint as a delivery truck driver led Waupaca County Circuit Court Judge Philip Kirk to practice law.
“When I graduated from law school, I had no interest doing anything with the practice of law,” Kirk recalled. “I got myself a job in Milwaukee for a fruit and vegetable company delivering produce.”
Kirk said he was promoted to delivering meat to restaurants in the greater Milwaukee area and northern Illinois.
However, he drove into several canopies while making deliveries.
“The owner said, ‘You’re not going to drive any more,’” Kirk said.
He then took and passed the bar exam and was admitted to practice in Illinois and Wisconsin.
After 36 years on the bench in Waupaca County, Kirk is stepping down.
He is not seeking re-election in this year’s spring election.
Path to judiciary
Born in Urbana, Illinois, Kirk’s family moved around, living in Springfield, Illinois, and the Chicago area prior to locating to the Milwaukee suburbs in 1961.
Kirk graduated from the University of Wisconsin in January 1970, then graduated in 1973 from the Chicago-Kent College of Law affiliated with the Illinois Institute of Technology.
In January 1976, Kirk was hired as an assistant district attorney in Waupaca County.
In April 1981, Kirk was elected as judge for Branch 1 of Waupaca County Circuit Court.
The sitting judge had retired and local residents expected then-Gov. Lee Dreyfus to appoint his replacement.
“Gerald Anderson, the district attorney who hired me, was so sure that he was going to get the appointment that he didn’t run again when his term was up,” Kirk recalled. “Dreyfus refused to appoint anybody.”
Kirk said he lost the race for judge by three votes on election night.
But after a recount, he won the election by 29 votes.
Kirk was 34 when he became judge. He is retiring at age 70.
“I had to be one of the youngest judges in the state,” Kirk said. “I am now the most senior trial judge in the state of Wisconsin.”
Waupaca County Circuit Court belongs to the 8th District, which oversees seven counties. From 1994 to 2000, Kirk was the chief judge for the 8th District.
Changes in legal processes
Kirk noticed a number of changes over the course of his judicial career, both in the legal system and in his personal views.
“I don’t think Truth in Sentencing is effective because judges are doing nothing more in determining sentences than shooting craps,” Kirk said.
Enacted in 1998, Wisconsin Truth in Sentencing law eliminated parole and indeterminate sentencing and replaced them with sentences that include initial confinement and extended supervision. The sentence a judge orders is the sentence carried out. No parole is possible.
“When we define a defendant’s sentence at the beginning, it eliminates the defendant’s consideration of rehabilitation in order to shorten their sentence,” Kirk said.
He also noted that not all defendants deserve the same punishments for the same crimes.
“The problem I see is that Truth in Sentencing does not allow judges to discriminate between those defendants who are sociopaths and should be locked for long periods of time and those people who may have a basically good character but did something stupid,” Kirk said.
He believes sociopaths are not just those who commit serious felonies, but those who repeatedly commit crimes because it is a part of their anti-social behavior.
“Those individuals are so flawed in character that you know it’s not if they will re-offend but when,” Kirk said.
Kirk said his own views about sentencing have changed over time.
“I was a prosecutor when I came to the bench, so I had a fairly restrictive viewpoint from my experience when it came to sentencing,” Kirk said. “From my experience as a judge, having good lawyers argue in front of me, I’ve changed my philosophy of sentencing.”
Kirk has made a number of controversial decisions as a circuit court judge.
One of his concerns has been the prosecution of young people who have sexual relations with other young people.
“There is a huge distinction between a sexual assault without consent and consensual sex that’s illegal because of the age of those involved,” Kirk said. “Teenagers have sex. Are you going to convict every one of them?”
In April 2006, a Waupaca man pleaded no contest to three felonies and three misdemeanors involving girls between the ages of 14 and 17. the defendant was 20 years old at the time of the incidents.
Kirk placed him on probation with six months in jail and ordered him to register as a sex offender. Kirk then stayed the conviction and the sentence for 100 years.
A Wisconsin Court of Appeals overturned Kirk’s stay and ordered him to require the defendant to register as a sex offender immediately.
“Staying all of the consequences of a felony conviction for 100 years is the equivalent of imposing no sentence at all and there is no authority for the proposition that a trial court can avoid sentencing a convicted defendant by this means, or any other,” the appeals court ruled.
The defendant then withdrew his no-contest pleas and Kirk vacated the convictions in February 2009.
In May 2010, Kirk dismissed all charges with prejudice, which means the charges cannot be further prosecuted in the future.
While Kirk supports the premise that victims should be fully informed of the status of their case, he questions some aspects of Wisconsin’s victim rights laws.
“Being the victim of a bad life experience is not synonymous with being the victim of a crime,” Kirk said. “If the defendant is not convicted of the offense, then the alleged victim is the victim of a bad life experience. Only if there is a conviction are they the victim of a crime.”
“This system is not as challenging as it used to be because the types of cases we used to have are just not in the system any more,” Kirk said.
Since becoming a judge, Kirk has seen fewer civil cases go to trial. The issues are resolved through mediation, instead.
He believes the lack of civil trial experience breeds complacency.
“I cut my teeth on civil cases in terms of trial work,” Kirk said. “I think it’s unfortunate that so few civil cases are being tried because it will make new judges who come into the system less qualified to try cases.”
Another change Kirk does not appreciate has been the transition from paper documents to digital documents.
“I despise the electronic court filing system,” Kirk said. “I don’t want to look at a damn screen. I want to be able to mark up a page, put a sticky note on it.”