Doing away with deference?

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Category: Environmental Law, Public, Water Law, Wisconsin Law & Legal System

Legislative bodies often delegate significant authority to administrative agencies.  In the course of its work, an agency must reach legal conclusions about how to interpret and apply a statute it administers.  Most agencies employ attorneys for just that purpose.  When an agency’s legal interpretation is challenged, federal and state courts commonly defer to the agency in recognition to the agency’s subject-matter expertise and experience.  gavelFederal courts use the well-known Chevron[1]standard, analyzing first whether Congress has “directly spoken to the precise question at issue”; if it has, the court must give effect to that Congressional intent.  But if the statute is silent or ambiguous, the court defers to the agency interpretation if it is “based on a permissible construction of the statute,” even if the court would have reached a different outcome.  Wisconsin courts take a similarly deferential approach to reviewing agency legal interpretations.

Without the benefit of reliance on an agency’s interpretation of such specialized questions, courts would have to overcome “lack of training and expertise, lack of time, [and] lack of staff assistance. . . .”[2]  In the environmental context, federal courts have therefore resisted calls to inject themselves into the day to day management of natural resources, and have avoided becoming “forestmasters,” “roadmasters,” “fishmasters,” “watermasters,” and “rangemasters;” instead, they have deferred to the agencies created for those purposes.[3]

Over the years, however, some jurists have questioned whether this deferential approach straitjackets reviewing courts, sapping their power in favor of unelected administrative agency representatives.  Inspired by those concerns, a bill currently pending in the Wisconsin Legislature, A.B. 582, would eliminate judicial deference to agency legal interpretations in particular contexts.  To put it mildly, this would be a major development in Wisconsin administrative law and would deeply change the relationship and relative balance of power between agencies and reviewing courts in the state.

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Transparency in Government Includes the Judiciary

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Category: Judges & Judicial Process, Political Processes & Rhetoric, Public, Wisconsin Law & Legal System
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Sun_and_Moon_Nuremberg_chronicleThe following commentary appears in this week’s Wisconsin Law Journal:

Transparency is the core value of a democratic society. In a democratic self-government, voters have the power to select and reject those who will wield the power of government.

The power of the vote is only meaningful if the voters have information upon which to act. This is where transparency in government comes in.

In the case of the governor, the voters need to know whether their tax dollars are being steered towards political donors and whether state resources are being used to advance partisan political purposes. This is why the prospect of executive-branch officials communicating through private emails, and taking other steps to hide the true reasons for executive decisions from the public, is so troubling.

In the case of the state Legislature, the voters need to know whether lawmakers are exercising their power independently. Our representatives in the state legislature shouldn’t act as mere conduits for self-serving laws drafted by special-interest groups. Wisconsin was a leader, through the creation of the Legislative Reference Bureau in 1901, in our nation’s history in insisting that legislators draft their own laws.

The role of our state judges, in enforcing the value of transparency in government, is vital. This role has two components. First, it is essential that our state judges enforce transparency on the other two branches of state government. Second, our state judges must comply with the need to be transparent within their own judicial branch. Read more »

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Making a Murderer: Oh-So-Many Talking Points

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Category: Civil Rights, Constitutional Law, Criminal Law & Process, Evidence, Judges & Judicial Process, Legal Ethics, Legal Practice, Legal Profession, Popular Culture & Law, Public, Wisconsin Law & Legal System
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635874987555624158-XXX-IMG-NETFLIX-MAKING-A-MUR-1-1-VGCTGMDU-78432434As the winter break winds down, it’s definitely worth your time to start binge-watching Making a Murderer, a recent Netflix documentary on a real-life criminal case. A very close-to-home criminal case, at that.

The documentary, filmed over 10 years, follows Steven Avery, who was convicted in 1985 of sexual assault. He maintained his innocence and, indeed, 18 years later DNA evidence exonerated him. After he was released, he sued Manitowoc County for his wrongful conviction. It looks as though that lawsuit starts digging up some very unsavory conduct among officials in Manitowoc County.

But then—Avery is arrested for the murder of photographer Teresa Halbach. Several months later, his nephew Brendan Dassey is also arrested.

I’ll stop there with plot. If you’ve been around Wisconsin, you’ve probably heard of the case. If you’ve been on the Internet in the last couple of weeks, you’ve almost surely heard of it. But you must watch it.

For law students, there’s so many teachable moments. For everyone, there’s so much to talk about. Read more »

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Judge Maxine White: Aiming to Provide Well-Run, Fair Courts, not Oprah Episodes

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Category: Judges & Judicial Process, Milwaukee, Public, Speakers at Marquette, Wisconsin Court System
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What can you expect from the courts in Milwaukee County?

A system that does everything well, from the ultimate decisions down to the way people are received at the security points at the entrances to buildings.

A system that is well run and staffed by well-trained people in every role.

A system where people feel safe in the courthouse and people, especially crime victims, are treated with respect.

A system that handles cases of all kinds in a fair way, providing a fair forum without politics .

A system that does all it can to be sure civil cases as well as criminal cases, small claims as well as high-profile  major crimes, are handled effectively, professionally, and as promptly as possible.

Those are among the goals set out Wednesday by Judge Maxine White, who recently became chief judge of the first judicial district of Wisconsin (which is to say, Milwaukee County). She spoke at an “On the Issues with Mike Gousha” program at Marquette Law School. Read more »

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In Memory of Justice Patrick Crooks

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Category: Judges & Judicial Process, Public, Wisconsin Court System, Wisconsin Law & Legal System, Wisconsin Supreme Court
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Justice CrooksJustice N. Patrick Crooks was the epitome of a lawyer and judge who lived to serve. In his fifty-two-year legal career, he served as a captain in the office of the Judge Advocate General at the Pentagon and then as a lawyer in private practice in Green Bay, before becoming a Brown County circuit court judge and then justice of the Wisconsin Supreme Court. In 1994 he was named Wisconsin Trial Judge of the Year by the Wisconsin Chapter of the American Board of Trial Advocates. Justice Crooks served on the trial bench for nineteen years and on the Wisconsin Supreme Court from 1996 to his passing, in chambers, last week on September 21.

I was honored to work for Justice Crooks as his clerk during the Wisconsin Supreme Court’s 1999-2000 term.

Justice Crooks approached each case with fresh eyes and an impartial mind. He reasoned through cases carefully and understood that he had a solemn role in deciding a case. Justice Crooks believed in the law and the justice system. Every case was fully analyzed and researched before oral argument. Opinions were to be written to guide lawyers, judges, and Wisconsin citizens. Justice Crooks was proud of his work on the trial bench and felt that his knowledge of the trial courtroom was important to his understanding of cases on appeal.

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Marquette Poll Reveals Support for Rehabilitation of Prisoners

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Category: Criminal Law & Process, Marquette Law School Poll, Public, Wisconsin Criminal Law & Process
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For the past four years, Darren Wheelock and I have collaborated with Charles Franklin and the Marquette Law School Poll on a series of surveys of public attitudes toward sentencing and corrections policy in Wisconsin. Our 2015 results, released last week, seem to show remarkably high levels of support for prisoner rehabilitation. Of those who were asked, more than 80% expressed support for each of the following:

  • Expanding counseling programs for prisoners
  • Expanding job training programs for prisoners
  • Expanding educational programs for prisoners
  • Helping released offenders find jobs

At the same time, there are also indications of substantial, if somewhat lower, levels of support for various punitive policies:

  • About 47% supported making sentences more severe for all crimes
  • About 45% supported locking up more juvenile offenders
  • About 62% supported increasing the use of mandatory minimum sentences for repeat offenders
  • About 45% supported trying more juvenile offenders as adults

It is puzzling that many respondents expressed support for both pro-rehabilitation and tough-on-crime policies. We have also seen this phenomenon in earlier rounds of our polling.   Read more »

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Access to Justice in a Civil Context

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Category: Federal Civil Litigation, Human Rights, Judges & Judicial Process, Legal Profession, Pro Bono, Public, Wisconsin Civil Litigation
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ATJ-reportIndigent defendants in criminal cases, and select civil matters (i.e., child in need of protective services petitions, termination of parental rights petitions, Chapter 51 petitions, and Chapter 980 petitions), are entitled to the appointment of counsel when they cannot afford representation. Either the state public defender’s office represents the individual, or an attorney is appointed by the county. It is imperative that individuals facing some form of deprivation of their individual liberty and freedom, as in the aforementioned scenarios, be represented.

But, what happens in other types of civil matters, where there is no right to counsel? What happens when a person or family faces a legal issue that will affect their rights, health, safety, economic security, and overall well-being? All people, regardless of socioeconomic status, should have access to the justice system. While some individuals may be able to handle a matter pro se, meaningful legal assistance or full representation is often needed to assist individuals in asserting and defending their rights.

The Wisconsin Access to Justice Commission (WATJC) is one entity working toward “improving the administration of justice by supporting civil legal services to those who cannot afford them”. In 2011, Wisconsin became one of only four states nationally, and the only state in the Midwest, that failed to provide any state funding for civil legal services. The 2015-2017 budget appropriates $500,000 per year of the biennium for civil legal aid service to abuse victims. This sum is well below the other neighboring states. Minnesota, for example, appropriated over 12 million dollars per year of its biennium for civil legal services. According to WATJC, the average budget for indigent civil legal services in other Midwestern states is $7.6 million. While Wisconsin falls well below that average, it is at least an improvement that the current state budget appropriates some funding, albeit for a very specific class of litigants.

There are a variety of agencies that offer legal assistance and full-representation to indigent clients in civil matters. From my experience working at Centro Legal, I am aware that many more people were in need of assistance than that organization had the capacity to handle. While I cannot speak for other agencies, my best guess is that they also have more work than they can take on, and that as a result many people are turned away because there just isn’t the capacity to represent them. There are notable efforts to coordinate volunteer attorneys and to help people be matched with an attorney that would be willing to take on a case for a reduced rate. With low levels of funding from the state to support agencies already offering civil representation, the difference must be made up somehow. Whether it is volunteering to represent someone, participating as a volunteer at one of the several clinics offering brief legal advice, offering a reduced rate in certain circumstances, or offering support to practitioners that incorporate as a non-profit and offer reduced rates for indigent or modest means clients, all lawyers have a role to play in ensuring that access to justice and the legal system is not limited by one’s socioeconomic status. We all have a stake in improving access to civil legal service for people who cannot afford an attorney.

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In Eckstein Hall Session, Schimel Emphasizes Fight Against Opiate Drug Abuse

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Category: Health Care, Public, Speakers at Marquette, Wisconsin Law & Legal System
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Drug overdose deaths don’t usually make big headlines. But ask Brad Schimel about his priorities as Wisconsin’s still quite-new attorney general (he took office in January) and they are at the top of his priorities. Here’s a powerful reason why:

More people die each year in Wisconsin from overdoses of opiate drugs, the kind issued through prescriptions at drug stores, than die from breast cancer, traffic accidents, hand guns, or heroin combined, Schimel said during an “On the Issues with Mike Gousha” program at Eckstein Hall on Sept. 23.

Seventy percent of heroin addicts got addicted to prescription pills first, Schimel said, and seventy percent of the prescription drug addicts got pills from friends or family members, Schimel said.

Schimel announced in mid September a campaign called “A Dose of Reality” to increase awareness of the extent of prescription drug abuse in Wisconsin. He said the medical community of the state was cooperating in promoting education and more precautions not only in the general public, but in medical jobs that involve providing such drugs. Many in the medical sector are not aware of how widespread the problems of abuse are. Schimel said in announcing the campaign.

Schimel told Gousha he met many times with families of those who died of such abuse while he was Waukesha County district attorney, his job before becoming district attorney. He said it was myth that those who died were “bad kids.” Schimel said, “I’ve yet to find a parent who had the bad kid. These are good kids.” They came from a wide range of backgrounds and lifestyles. And those who die, in general, come from all parts of the state, rural, suburban and urban, and grew up in homes across the spectrum of income levels, he said.

The Dose of Reality campaign is aimed at promoting drug treatment and effective law enforcement work, as well as public education.

In his conversation with Gousha, the Law School’s distinguished fellow in law and public policy, Schimel also touched on other issues the attorney general’s office is facing.

He agreed that there appear to be conflicting provisions in federal rules related to whether Wisconsin can require people who receive public aid to purchase food to undergo drug tests. Republicans in the Legislature passed such a law this year, but it is being challenged in court.

“Ultimately that’s what courts do, they decide when there is a conflict of laws,” Schimel said. “We’re going to have this resolved there.”

Schimel also stood by his firm position on maintaining Wisconsin’s strong record of open government and access to public records. Schimel, who won office as a Republican, said sometimes it is necessary to go against the wishes of Republican law makers. In this instance, some Republicans tried to push through substantial changes in open government rules several months ago. Schimel’s opposition was a factor in those changes being pulled off the table after initially getting support.

Schimel also discussed Wisconsin’s participation in fighting tighter air pollution laws backed by the Obama administration and the slow start to a planned joint state-county-city effort to crackdown on gun crimes in Milwaukee. He commented in general terms on the John Doe investigation related to campaign activities on behalf of Gov. Scott Walker, but he did not give a direct answer to a question on whether he thought Milwaukee County District Attorney John Chisholm engaged in a “witch hunt,” as some Republicans have said.

Video of the one-hour program may be watched by clicking here.

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The Wisconsin Supreme Court’s Caperton Moment

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Category: Election Law, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court
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wisconsin-supreme-courtThe definitive litmus test for the impartiality and competence of the Wisconsin Supreme Court took the form of a lengthy opinion issued in response to the consolidated action State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson (2015 WI 85) by our state’s highest court on July 16, 2015. They failed this test miserably. In that one day, the court managed to squander the entirety of its judicial capital and to risk making itself into a tribunal that is an insult to the distinguished jurists who have come before them. This is about much more than the unjustified halting of a bipartisan probe into potentially severe violations of Wisconsin’s election laws — it is a prime illustration of the corrosive and corruptive influence that money has on politics and, in particular, judicial politics. These decisions are more misguided and indeed may possibly be more corrupt than the decisions reached by the West Virginia Supreme Court that led to the now-famous United States Supreme Court decision Caperton v. A.T. Massey Coal Co. (556 U.S. 868) and inspired John Grisham’s best-selling novel The Appeal. Read more »

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Wisconsin’s State Motto: Forward or Backward? The Potential Demise of Open Records Law

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Category: Political Processes & Rhetoric, Public, Wisconsin Law & Legal System

In 1851, the state of Wisconsin adopted the simple word Forward as its state motto. It’s a powerful word that has symbolized the State’s progressive history. Lately, though, it seems like we’ve been going backward rather than forward. Case in point: open records law.

Wisconsin’s open records law has been around since 1981. Embodied in sections 19.31-19.39 of the Wisconsin Statutes, the law begins with a broad declaration of policy: “all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them.” Wis. Stat. § 19.31. The law “shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.” Id.

Open records law is consistent with transparency in government. Brett Healy, president of the conservative think-tank MacIver Institute, said, “Transparency in government is not a liberal or conservative issue, it is a good government issue. Taxpayers deserve access to government records, so they can keep politicians all across this great state honest and accountable.”

And the law has been used to do just that. Read more »

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A Rebellion of Giants: Dixon, Ryan, and Taming the Railroads in the Gilded Age

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Category: Legal History, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court
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Chief Justice Luther S. Dixon

Chief Justice
Luther S. Dixon

This is the fifth in a series of Schoone Fellowship Field Notes.

Eastern jurists such as John Marshall, James Kent, Oliver Wendell Holmes, and Benjamin Cardozo have received the lion’s share of attention from law professors and historians over the years. Two fellow giants from the Midwest, Michigan’s Thomas Cooley and Iowa’s John Dillon, have been relegated to comparative obscurity.

Cooley and Dillon played a central role in shaping the contours of modern American constitutional law. They forged their philosophies in the heat of two critical judicial debates over the role of railroads in American society. Two Wisconsin justices, Luther Dixon and Edward Ryan, were also leaders in those debates, and their contributions to American constitutional law deserve to be better known. Read more »

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Decline in Wisconsin Prison Population Results From Fewer Drug Offenders Behind Bars

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Category: Criminal Law & Process, Public, Wisconsin Criminal Law & Process
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As I discussed in this post, Wisconsin has achieved one of the nation’s higher rates of reduction in imprisonment over the past decade. To be sure, New York, California, and a few other states have far outpaced Wisconsin in this regard, and Wisconsin’s prison population remains nearly ten times larger than it was in the early 1970s. Still, we may appreciate some overall net progress in the Badger State’s numbers since the mid-2000s. As indicated in the chart after the jump, reduced imprisonment of drug offenders has played a central role in driving this trend.   Read more »

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