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Hilsgen v. Hove

United States District Court, W.D. Wisconsin

May 31, 2018

CINDY L. HILSGEN, Petitioner,
NANCY HOVE, Respondent.

          OPINION & ORDER


         In this habeas corpus action under 28 U.S.C. § 2241, Cindy L. Hilsgen challenges the amount of the bond under which she was held at the Pierce County Jail after she was charged with interference with a child-custody order and contempt of court. The court initially assessed a $50, 000 bond that was later reduced to $30, 000. Hilsgen argues that either amount is excessive and therefore barred by the Eighth Amendment.

         I previously denied respondent's motion to dismiss the case after Hilsgen's friends posted the bond amount and she was released. See Dkt. 17 (citing Jennings v. Rodriguez, 138 S.Ct. 830, 873 (2018) (“In the habeas context, we have held that a person released on bail or on his own recognizance is in custody within the meaning of the statute.” (internal quotations omitted))). After confirming that Hilsgen still intended to pursue habeas relief, I set the matter for a telephonic hearing. At a May 11, 2018 hearing, I heard argument from both parties, and I directed respondent to submit a recording of the state circuit court hearing at which Hilsgen's original bond amount was set.

         Now respondent has submitted the recording of the bond hearing as well as a second recording, audio of the preliminary hearing at which the court denied Hilsgen's request to reconsider the original $50, 000 bond. After considering these recordings, the transcript of the subsequent hearing at which the bond was reduced to $30, 000, and the other evidence the parties have submitted, I will deny Hilsgen's petition because I conclude that the state court did not set her bond in an arbitrary manner.


         At the February 8, 2018 bond hearing, the assistant district attorney requested a $50, 000 cash bond, stating that Hilsgen had a history of failing to comply with court orders or failing to attend hearings. More specifically, the ADA stated that, in conjunction with Hilsgen's then-ongoing divorce proceedings, Hilsgen failed to make her children available to meet with the guardian ad litem three times. Hilsgen failed to appear at an April 28, 2016 hearing in that case, and the court placed the children with the county Department of Human Services. When the department and sheriff arrived at Hilsgen's residence to assume custody over the children, they were gone. Hilsgen was charged with interfering with a child-custody order and with contempt of court for failing to appear at the April 28 hearing.

         Hilsgen moved among various locations around the state to avoid arrest on those charges, although she continued to submit correspondence to the court. In August or September 2017, warrants in the criminal case, a separate misdemeanor case, and a criminal traffic case were suspended so that she could attend mediation in an effort to resolve the divorce proceedings, and so that the children could meet with the guardian ad litem, but Hilsgen canceled on the morning of the meeting. While the arrest warrants were suspended, she attempted to either renew or obtain a new passport. She then failed to appear at September 12, 2017 hearings in each of her criminal cases. She was finally arrested in February 2018.

         In response to the assistant district attorney's account of events at the bond hearing, Hilsgen stated that she could not afford a $50, 000 bond, and that she had kept the children from her husband and avoided court for the safety of her children.

         The commissioner set the bond at the $50, 000 amount requested by the assistant district attorney, stating that he was doing so because of Hilsgen's repeated failure to comply with court directives or appear for meetings and hearings, and because of the court's “recognition of matters pertaining to the children.” The commissioner also set conditions on the bond: if Hilsgen were to be released, she could not contact her minor children or adult children placed with the minors. Hilsgen reiterated that she could not afford the bond and that she had acted for the safety of her children. The commissioner stated, “The only way I can . . . attempt to ensure your attendance at [further] hearings is to require you to post a sufficiently sizeable bond so as to encourage you to attend from now on.” Dkt. 30-1 (recording of February 8, 2018 hearing, at 18:13).

         The commissioner maintained the $50, 000 bond at a February 16, 2018 hearing, at which Hilsgen waived her right to a preliminary hearing. In particular, the commissioner noted that Hilsgen had made previous statements that she did not recognize the authority of the circuit court, which the commissioner thought showed that Hilsgen did not intend to follow court orders.

         Hilsgen filed a motion to reduce the bond amount. The judge stated as follows in partially granting Hilsgen's request:

So it does appear she was disregarding not only the court orders in the family court, but also avoiding service with this warrant for almost two full years. I do note there was been a finding of probable cause on this charge in this case which is a factor that can be considered. I note the nature of the felony charge is intentional withholding the children from the legal custodian. So again the essence of the charge is an unwillingness to obey orders of the court.
. . .
I do note that it is punishable by 12 years in prison, if convicted, which provides substantial incentive to fail to appear. I note the nature of the charge involves substantial impact on the lives of minor children. That should she be released on bond and she would choose to continue to disobey the orders of the court, it is likely that her failure to appear would impact the lives of young children. She has not demonstrated any willingness to work with the family law court to ...

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