Monday, September 17, 2012, is Constitution Day, the 225th anniversary of the signing of the United States Constitution. Do you know which person was the first to sign that document? Test your constitutional knowledge with this quick 10-question quiz. For the text of the document itself, click here.
On Friday, Judge Juan Colas issued a ruling that struck down Act 10, the “Budget Repair Bill,” on the grounds that the law violates the Wisconsin and U.S. Constitutions. In essence, he held that the law differentiates between entities that represent public employees in collective bargaining — imposing conditions on certain bargaining entities but not others – and that the State had failed to advance a sufficient justification for this disparate treatment. According to Judge Colas, the differential treatment of bargaining entities violated the First Amendment right of the affected unions to association and expression, and it also violated the Equal Protection Clause. Judge Colas also held that the law violates the Home Rule provisions of the Wisconsin Constitution by dictating rules for Milwaukee that the law did not apply to other municipalities.
The reaction to the ruling from the Walker Administration – that Judge Colas is a “liberal Dane County judge” — was as hollow as it was predictable. Some supporters of the Governor view the judiciary as an obstacle to their political agenda. Therefore, judges who do not agree with the Administration’s legal arguments become, in their mind, opponents who must be demonized (like Dane County Circuit Judge Maryann Sumi) or else targeted with frivolous disciplinary complaints.
Clearly, some supporters of the Walker Administration have a difficult time separating the political debate over Act 10 from the separate legal debate over its contents.
Virtually none of the U.S. Constitution’s guarantees or prohibitions applies to the actions of Indian tribal governments when those governments are exercising their inherent or retained powers. For this reason, among others, Congress in 1968 passed the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, which imposes on tribal governments most though not all of the guarantees found in the Bill of Rights and 14th Amendment. After almost 45 years, however, it remains uncertain whether or to what extent ICRA’s statutory guarantees must parallel the interpretations given to the respective constitutional guarantees on which they are based.
Among ICRA’s original provisions is a command that “[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person in a criminal proceeding the right . . . at his own expense to have the assistance of counsel for his defense . . . .” This, of course, is an analog to the 6th Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence,” which the U.S. Supreme Court has interpreted as requiring “reasonably effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), by “an advocate who is . . . a member of the bar,” i.e., a licensed attorney. Wheat v. United States, 486 U.S. 153, 159 (1988).
In the recent case of Jackson v. Tracy, No. CV 11–00448–PHX–FJM, 2012 WL 3704698 (D. Ariz. Aug. 28, 2012), a federal district court has held that ICRA’s assistance-of-counsel guarantee requires neither that one’s advocate be a licensed attorney nor that the advocate be held to the standard of a reasonably effective attorney.