Did Kathleen Cummings lie about her residency for Waukesha council seat? Judge says no.

WAUKESHA - From the start, the case surrounding former Waukesha alderwoman and county supervisor Kathleen Cummings had amounted to an uncertain degree of wrongdoing, at best.

In the end, however, a judge decided there was at least enough doubt to conclude whether Cummings had done anything wrong when she claimed on election-related forms where she legally lived. She was acquitted Tuesday, ending a 30-month ordeal through the court system, that she lied in sworn statements.

There's no question she owned two homes in Waukesha, a long stone's-throw from each other, with one sitting within her city aldermanic district and the other within a block of it. There is no question that she used both, with mail going to both residences.

As to whether she technically lived in the one just outside her district was the focus of the November 2021 case in which she was charged with seven felonies, and a two-day trial this week that dealt with a more black-or-white outcome: guilty or not guilty. There are no shades of gray in such verdicts.

In his verdict Tuesday, Judge Phillip A. Koss, a Walworth County judge acting on behalf of Waukesha County in deciding the case without a jury, acquitted Cummings on all seven felony counts that alleged she violated state laws in signing documents about her residency.

Cummings faced seven felonies after 2021 investigation

Cummings, now 69, who served as both county supervisor and city council member until her dual resignations in November 2021, had faced five counts of false swearing in a government setting, each tied to separate oaths she took between 2015 and 2019, and two counts of election fraud suggesting she falsified nomination-related documents. 

In a criminal complaint filed in November 2021, authorities claimed Cummings resided in a second home about a half-mile away from the Roberta Avenue residence. The problem is that the second residence, on Downing Drive, was just outside of the aldermanic boundaries for District 9. 

Authorities used utility records and information from postal officials to try to establish in which residence Cummings and her husband, David, were actually living. They owned both homes — with the Downing residence purchased by her husband for $1 from David's family estate — and lived in both at different times. According to the complaint, for election purposes, she lived on Downing Drive, in Aldermanic District 10, since 2012.

Cummings' attorney, Donna Kuchler, challenged those findings, saying Cummings maintained her primary residence on Roberta Avenue all along, though acknowledging the use of the second home as well. Kuchler also argued that the process to investigate the residency of an alderman was not followed properly, creating a court case that may not have been necessary.

In the days leading up to the May 6-7 trial, Cummings also sought to have the charges dismissed on the grounds of selective prosecution. In documents, Kuchler cited the city of Waukesha's awareness of claims that former alderman Aaron Perry lived outside his district for a time during divorce proceedings and was not prosecuted.

To avoid conflict of interest, the case was being prosecuted by Walworth County District Attorney Zeke Wiedenfeld. In a brief filed in response to Kuchler's dismissal motion, Wiedenfeld told the court his role precluded any claims of selective prosecution, saying his decision to seek charges was based in part on documentation and information provided by the city of Waukesha.

Trial testimony included former city administrator and postal carrier

According to online records and the Waukesha County Freeman, witnesses who testified included Kevin Lahner, the now-former city administrator who initiated the investigation in 2021.

In Kuchler's dismissal motion, and at other times during the case over two years, Cummings and the defense had pointed an incriminating finger at Lahner, who Cummings alleged acted vindictively after she publicly raised criticisms for the process he used to hire a new cemetery director in 2021, for which he was reprimanded by the Waukesha Common Council.

According to the original criminal complaint, Lahner became aware of Cummings' residency through a conversation with Robert Gratz, a friend who also delivered mail for the U.S. Postal Service to the Roberta Avenue address. He reportedly told Lahner it appeared that no one had lived in the home for some time. Gratz was likewise called to testify by the prosecution.

Wiedenfeld also called Waukesha Water Utility General Manager Dan Duchniak to testify about water usage at the Roberta residence, which showed a notable drop during the time city officials believed Cummings was living on Downing.

But their testimony did little to sway Koss, who, like the typical jury, was asked to assess guilt beyond a reasonable doubt.

From Kuchler's perspective, Koss got it right.

"We are thrilled that the court recognized the inadequacy of the State's case and found Mrs. Cummings not guilty," Kuchler said in an emailed statement on behalf of Cummings, who otherwise declined to comment. "This prosecution circumvented the procedures for challenging the residency of an elected official that are outlined in Wisconsin's statutes. It should never have been brought. We regret that it took so many years for justice to be achieved for Ms. Cummings."

According to court documents, Cummings had previously turned down a plea deal from the district attorney that would have reduced all counts to misdemeanors in return for an agreement by Cummings that she would not seek public office again.

It's unclear whether she intends to seek a seat on either the Common Council or the Waukesha County Board. She did not reply to a text message to a cellphone number.

Contact reporter Jim Riccioli atjames.riccioli@jrn.com.