Have you ever heard something that, almost immediately after hearing it, bounced your thoughts from the possible benefits to the seriously questionable outcomes that might follow, and left you swinging back and forth between the two? This is exactly what happened to me just recently after hearing about Marsy’s Law coming to Wisconsin. As it stands, I can get behind the general idea of the law, but I do have some doubts—problems, even—with the way the law is being pushed forward.
“Marsy’s Law” is the idea that crime victims, and the families of crime victims (who become victims by association) should have equal rights to those who are accused of victimizing the family. According to the web site for Marsy’s Law for All, the law is named for Marsalee (Marsy) Nicholas, a “beautiful, vibrant University of California Santa Barbara student, who was stalked and killed by her ex-boyfriend in 1983.” (Quote from Marsy’s Law for All) One week after Marsy’s murder, some of her family members entered a grocery store and were confronted by the man who was accused of murdering Marsy. Marsy’s alleged murderer had been let out on bail and the family had not known about it.
Marsy’s Law for All argues that the United States Constitution and every state constitution have a detailed set of rights for people who are accused of crimes, but the United States Constitution and 15 state constitutions do not have a list of rights for victims of crime. As I am writing this, the web site for Marsy’s Law argues that the United States Constitution has 20 individual rights for those accused of a crime, but none for the victims of crime. States, on the other hand, have been making some progress. California, Illinois, North Dakota, South Dakota, Montana, and Ohio have passed Marsy’s Law, with efforts to adopt the law currently underway in Kentucky, Maine, North Carolina, Georgia, Nevada, Idaho, Oklahoma, and here in Wisconsin. Continue reading “Marsy’s Law in Wisconsin “
The following opinion piece appears in the Milwaukee Journal Sentinel:
Our system of justice rests upon two pillars: equal treatment and independent judgment. Every person who appears before our state courts expects to be treated equally to every other litigant. In addition, every party to a lawsuit expects to have his case heard by a judge who is free to exercise their own independent judgment. Recently, the state legislature in Madison and Governor Walker approved legislation – a $3 billion package luring Foxconn Technology Group to build a flat-screen TV factory in Racine County — that seriously undermines these two fundamental principles.
The principle of equal treatment commands that the same rules should apply to all parties appearing before the court. No one should receive special status. It is true that the two sides in a case might not be evenly matched, and that one might have more financial resources or a more skilled legal team. But, even then, both parties in the case should be subject to the same set of laws and procedures, and have the same opportunity to argue that the law supports their claim.
The Foxconn legislation creates special treatment for Foxconn whenever that corporation is sued in Wisconsin courts. The law forces the Wisconsin Supreme Court to directly take appeals involving “Electronics and Information Technology Manufacturing Zones” (EITM) from the circuit courts. By law there is only one such zone, and that zone is home to Foxconn. Typically, the high court would hear appeals at their discretion, and then only after the case was heard by an intermediate court. The reason for placing cases involving Foxconn on a “fast-track” to the Wisconsin Supreme Court should be obvious. That Court currently boasts a majority of Justices who were elected with the financial support of Wisconsin’s largest trade and manufacturing lobbyists. The drafters of the legislation expect these Justices to be sympathetic to the concerns of manufacturers like Foxconn.
We expect our state court judges to be free to exercise their independent judgment when deciding the merits of a case. It is the trial judge that hears the facts and the evidence, and who determines the appropriate remedy should the plaintiff prevail. It is not the state legislature’s job to decide which party in a case should win, or what remedy should be imposed in an individual case. Continue reading “Foxconn Deal Tips the Scales of Justice”
On September 17, 1787, the founders signed our United States Constitution, an event we commemorate every September 17 with Constitution Day.
Marquette University will celebrate Constitution Day on Monday, September 18. On that day, we will welcome to the Law School Wisconsin Supreme Court Justice Daniel Kelly, Wisconsin Court of Appeals Judge Brian K. Hagedorn, Milwaukee Circuit Court Judge Gwen Connolly, and Federal District Judge Lynn Adelman (Eastern District of Wisconsin). Each of the panelists will select a constitutional provision and explain why that section is meaningful to him or her. We will also highlight the National Constitution Center’s new Interactive Constitution, a website that contains the entire Constitution and all of its amendments, along with commentary on each section that shows that section’s history and its common understandings, along with commentary that illustrates divergent views.
The complimentary program will run from noon until 1 p.m., and there will be a light lunch and cake. This event is open to Marquette students; however, registration is required.
Constitution Day 2017 is presented by Marquette Law School and the Political Science Department. The event is co-sponsored by the student chapter of the American Constitution Society and the student chapter of the Federalist Society.
In Graham v. Florida, 560 U.S. 48 (2010), the U.S. Supreme Court barred the sentence of life without the possibility of parole (LWOP) for crimes committed by anyone under eighteen years of age. Grounded in the Cruel and Unusual Punishments Clause of the Eighth Amendment, the Court’s holding recognized only one exception: juvenile LWOP might be permissible in cases involving homicide.
Despite its seemingly straightforward character, the Graham holding has spawned considerable litigation in the lower courts over its scope and application. Two interesting appellate decisions from last month highlight some of the difficulties.
In the first, U.S. v. Mathurin, the Eleventh Circuit had to consider whether a 685-month prison term should be treated as the functional equivalent of an LWOP sentence for Eighth Amendment purposes. Continue reading “New Cases on the Constitutionality of Long Sentences for Juveniles: The Graham Saga Continues”
Last month the Senate Foreign Relations Committee passed the Department of State Authorities Act, Fiscal Year 2018, part of which would effect a major change in the law of foreign affairs appointments. With Congress’s summer recess now coming to an end, it’s worth considering the constitutionality of the proposed change and contemplating the Trump Administration’s potential response.
The key provision concerns ad hoc diplomats. Section 301 would require the Senate’s advice and consent for the appointment of “any Special Envoy, Special Representative, Special Coordinator, Special Negotiator, Representative, Coordinator, or Special Advisor.” On my reading, accompanying language suggests that this requirement would apply regardless of whether the positions in question already exist, regardless of whether Congress has authorized them by statute, and regardless of whether appointments have already occurred. As an enforcement mechanism, Section 301 would bar the obligation or expenditure of funds for any covered position to which an appointment is made without advice and consent. The only exception is for positions that extend for short periods of no more than six months and are certified by the Secretary of State as “not expected to demand the exercise of significant authority pursuant to the laws of the United States.”
This strikes me as a pretty big deal. Anytime the President seeks to designate an envoy to address a pressing issue, he would have to obtain the Senate’s approval. The Senate would thus be statutorily positioned to vet a whole new class of nominees, scrutinize and publicly debate the policies these individuals will implement, and, in extreme cases, block appointments that appear problematic. An optimistic take is that such an arrangement would promote meritocracy and encourage greater deliberation in the use and selection of ad hoc diplomats. The more pessimistic view is that Senate involvement would interfere with the conduct of foreign relations by introducing an additional source of delay and partisanship.
Whatever one makes of the practical merits of Section 301, there’s a sensible constitutional objection: Article II confers on the President the power to conduct foreign relations, the executive branch has invoked this power to justify a common practice of unilateral diplomatic appointments, and Congress has largely acquiesced. Indeed, ever since the Foreign Service Act of 1980, Congress has expressly accepted that the President may appoint envoys without advice and consent for special missions of up to six months in duration, as long as the President notifies the Senate Foreign Relations Committee in advance. In purporting to end this practice, Section 301 arguably violates the separation of powers. Continue reading “Should the Senate Give Advice and Consent on Special Envoys?”
I recently learned about an amazing feature on the National Constitution Center website: an interactive Constitution. The site contains the entire United States Constitution and all of its amendments.
Click on any part—the Preamble, any of the seven articles, or any of the 27 amendments—and view the text of that part, along with the dates of its signing or passage and its ratification. You’ll also learn if any part of the Constitution was changed by an amendment. Article I contains several sections that were changed by later amendments. For example, click on the highlighted text in Article I, section 3 (“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote”) to learn that this section was changed by the 17th Amendment, which allows for the direct popular election of senators.
The most interesting part, however, is that you’ll also get views from constitutional scholars “across the legal and philosophical spectrum.” Continue reading “Both Sides Now: The Interactive Constitution”
As part of its end-of-term flurry, the U.S. Supreme Court issued three notable decisions in the past week on the criminal defendant’s right to effective assistance of counsel. The results were a mixed bag.
First, the step forward: in Lee v. United States, the Court strengthened the defendant’s right to accurate legal advice in relation to plea bargaining. Lee, a South Korean who resided lawfully in the U.S. for more than three decades, faced a federal charge of possession with intent to distribute ecstasy. His attorney advised him that he would likely get a lighter sentence if he pleaded guilty, but Lee was concerned that he would be deported if convicted; deportation, not prison, seems to have been his primary concern. Lee’s lawyer assured him that he would not be deported, so Lee agreed to the guilty plea. However, the lawyer was wrong — Lee faced mandatory deportation as a result of his conviction. When Lee found out, he sought to withdraw his guilty plea on the basis of ineffective assistance of counsel.
The lower courts rejected his motion. For Lee to show a violation of his constitutional right to effective assistance of counsel, he was required to demonstrate both deficient performance by this attorney and prejudice. The lower courts seemed to accept that Lee’s lawyer performed poorly, but held that Lee could show no prejudice since he had no viable defense if the case had gone to trial. In other words, even with better information, Lee would have been convicted and deported anyway.
The Supreme Court reversed, holding that prejudice can be established in some cases based on the lost opportunity to have a trial, without regard to the likely outcome of that trial.
Continue reading “Right to Counsel: One Step Forward, Two Steps Back”
Jury deliberations are the proverbial black box. After passively receiving the law, evidence, and arguments at a trial, the jurors will retire to discuss the case in secret. When they return with a verdict, no explanation will be required for their decision. Afterward, the jurors will normally be instructed that they need discuss the case with no one. The parties are left to wonder how well the jurors understood the governing law, attended to the key evidence, and faithfully attempted to apply the former to the latter.
Occasionally, the public catches some glimpse of what happens inside the black box. But when this happens, the law’s typical response echoes the famous admonition of the Wizard of Oz: “Pay no attention to the man behind the curtain!” This position is reflected in Federal Rule of Evidence 606(b), which generally prohibits jurors from testifying about their deliberations and thought processes when the validity of a verdict is challenged.
Although it seems perfectly sensible to discourage losing litigants from harassing jurors in the hope of uncovering errors, it is not so clear that the system benefits when judges are required to turn a blind eye to substantial evidence that a jury’s decisionmaking went off the rails. Continue reading “Supreme Court Permits Some Light Into the Black Box of Jury Deliberations”
Today, the United States Supreme Court summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia in Independence Institute v. Federal Election Commission. By affirming the panel in this case, the U.S. Supreme Court seriously undermined the legal rationale that the Wisconsin Supreme Court relied upon when it dismissed the John Doe investigation into possible illegal campaign coordination during the Governor Walker Recall Election. In one sense, today’s action by the U.S. Supreme Court merely establishes the narrow rule that “electioneering activity,” which encompasses a variety of activity beyond express advocacy on behalf of a candidate for office, is subject to regulation without violating the U.S. Constitution.
However, the action of the U.S. Supreme Court is significant because it also necessarily rejects a converse proposition: that the scope of permissible government regulation of election activity is limited to conduct which constitutes “express advocacy.” The Independence Institute case is relevant to the John Doe Investigation because both cases raise the legal question of whether the U.S. Constitution permits any regulation of election activity other than “express advocacy” or its functional equivalent. “Express advocacy” is usually defined as a communication that expressly advocates for the election or defeat of a clearly identified candidate.
The Independence Institute is a nonprofit organization. It challenged disclosure requirements contained in the McCain-Feingold Act which would have required it to disclose its donors if it spent more than $10,000 on “electioneering communications” in the 60 days before a general election (or the 30 days before a primary election). The group argued that this statutory requirement was unconstitutional because it went beyond the regulation of express advocacy. As described by Judge Wilkins in an earlier proceeding in the D.C. Circuit, the argument of the Independence Institute reduced to the argument that “the only speech that should be considered an electioneering communication, and therefore trigger the BCRA’s reporting and disclosure requirements, is speech that is ‘unambiguously related’ to a campaign.” The group wanted the Court to rule that the disclosure requirement in the statute could only be enforced in instances involving express advocacy.
If this sounds familiar, it is because the legal argument advanced by the Independence Institute is parallel to the reasoning adopted by the Wisconsin Supreme Court in its opinion ending the John Doe Investigation (State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85). Continue reading “More Doubts About the Court’s Resolution of the John Doe Investigation”
Tonight, the Ninth Circuit issued an unanimous ruling in State of Washington v. Trump rejecting the Trump Administration’s motion for an emergency stay of the District Court’s temporary injunction. That order by the District Court had the effect of halting enforcement of the President’s January 27 Executive Order suspending entry of aliens from seven specified countries into the United States. In prior posts here and here, I argued that the January 27 Executive Order violated statutory provisions such as the 1980 Refugee Act and also that the Order violated the United States Constitution by discriminating on the basis of religion in the entry of immigrants and non-immigrants.
Tonight’s ruling by the Ninth Circuit is necessarily limited by the procedural posture of the case. The court states at the outset:
To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay. (opinion at p. 3)
Despite this procedural posture, the opinion issued by the court goes out of its way to make several strong statements of law. First, the court firmly rejects the assertion of the Trump Administration that “the district court lacked authority to enjoin enforcement of the Executive Order because the President has ‘unreviewable authority to suspend the admission of any class of aliens.’ ” (opinion at p. 13). Continue reading “Ninth Circuit Rules 3-0 Against Trump Administration: Analysis and Explanation”
Yesterday, in a post on this Blog, I called President Trump’s Executive Order of January 27, 2017, “a rare trifecta of illegitimacy.” The rollout of the Executive Order has been confused, and its implementation uneven. Thus far, most Republican members of Congress have been silent on the legality of the Executive Order, even those Republicans who criticized Trump’s proposal to ban Muslim immigration during the presidential primaries. Notably, the Executive Order has received only tepid support from Senate Majority Leader Mitch McConnell.
The Executive Order purports to “suspend entry” of all aliens into the United States who are nationals of specified countries. Media accounts describing the implementation of the Executive Order have focused thus far on the situation of individuals who are fleeing persecution being turned away at the United States border, and subsequently returned to their home country. For example, reporters have underscored the plight of Iraqis who provided assistance to U.S. forces during the Iraq War, and who have expressed fear over their safety if they remain in Iraq.
Defenders of the President’s power to issue the Executive Order point to a 1950s era statute passed by Congress, Section 212(f) of the Immigration and Nationality Act ( 8 U.S.C. 1182(f)). This provision is the key to the power Mr. Trump claims to suspend entry of certain categories of aliens and return them to their home countries. Section 212(f) says:
“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (emphasis added)
By its own terms, the statute purports to grant the President the power to “suspend the entry” of aliens. However, the Trump Administration has gone further. The Trump Administration is turning aliens away from the border and returning them from whence they came. Continue reading “President Trump’s Executive Order is Still Unlawful”
Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.
As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.
Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate. Continue reading “A New Era: The Rule of Law in the Trump Administration”