Judges & Judicial Process – Page 33 – Marquette University Law School Faculty Blog

Ozanne v. Fitzgerald: Haste Makes Waste

Post author:Edward A. Fallone
Post published:June 25, 2011
Post category:Constitutional Interpretation Judges & Judicial Process Labor & Employment Law Wisconsin Law & Legal System Wisconsin Supreme Court

On June 23, I participated in a discussion concerning the Wisconsin Supreme Court’s decision in Ozanne v. Fitzgerald, 2011 WI 43, on the Wisconsin Eye public affairs show “Legally Speaking.” Rick Esenberg and I continued our ongoing difference of opinion regarding this litigation, which seems to generate an endless supply of novel and contentious legal questions. You can view the program at this link.

My criticisms of the unusual procedural posture of the case, and of the lack of wisdom exhibited by the four member majority’s rush to resolution, are fully stated in the video.

For the remainder of this post, I would like to expand on my criticism of the majority’s legal conclusion that the legislature lacks the power under the State Constitution to submit itself to the jurisdiction of the courts under the Open Meetings Law.

“I Don’t Have to Take Any Time for This”

Post author:Michael M. O'Hear
Post published:June 16, 2011
Post category:Criminal Law & Process Judges & Judicial Process U.S. Supreme Court

The Supreme Court will once again address alleged Brady violations by the New Orleans District Attorney’s Office. Earlier this week, the Court granted certiorari in Smith v. Cain (No. 10-8145), in which Smith alleges that the prosecutor suppressed a veritable boatload of exculpatory evidence in his murder trial. I’ve only read the cert. petition, which obviously has a partisan slant, but on the face of things it appears there was some pretty egregious police and prosecutor misconduct. And, of course, there is a well-documented history of Brady violations in the DA’s office in New Orleans, including in the Supreme Court’s earlier case of Kyles v. Whitley, 514 U.S. 419 (1995). Earlier this very term, the Court again dealt with discovery issues in the Big Easy in Connick v. Thompson, declining to find civil liability for what even the state conceded were violations of Brady. Indeed, according to the cert. petition, the very assistant district attorney who prosecuted Smith later had his law license suspended for a Brady violation in another case.

I’m a little surprised the Court took Smith, both because it has not been through federal habeas (it’s coming directly up from the state court system) and because it’s basically an “error-correction” case — at least as framed by the cert. petition, the case does not really present any questions of law, but will instead require the justices to roll up their sleeves and sort through a rather complex evidentiary record to produce a case-specific, fact-intensive ruling. On the other hand, for reasons that are not clear to me, this seems to be precisely the way that the Court has engaged with Brady ever since United States v. Bagley in 1985. See, e.g., Kyles; Cone v. Bell, 129 S. Ct. 1769 (2009).

In some ways, I’m more interested to hear what the Court has to say about a collateral procedural issue in Smith that received relatively brief treatment in the petition, but that is also expressly encompassed by the cert. grant. Smith claims that the Louisiana courts violated his due process rights by rejecting all of his Brady-type claims without finding any facts or providing any explanation.

Marquette Law Review Article Sparks Debate on Use of Dictionaries to Decide Legal Cases

Post author:Michael M. O'Hear
Post published:June 14, 2011
Post category:Judges & Judicial Process Legal Scholarship Marquette Law School U.S. Supreme Court

A recent article in the Marquette Law Review was featured in Adam Liptak’s “Sidebar” column for the New York Times earlier this week. Liptak wrote about the increasingly common citation of dictionaries in Supreme Court opinions:

A new study in The Marquette Law Review found that the justices had used dictionaries to define 295 words or phrases in 225 opinions in the 10 years starting in October 2000. That is roughly in line with the previous decade but an explosion by historical standards. In the 1960s, for instance, the court relied on dictionaries to define 23 terms in 16 opinions.

Liptak notes various objections to the practice. For instance, dictionaries were not written for the purpose of supplying precise legal definitions, and the variety of different meanings suggested by the many available dictionaries creates opportunities for “cherry picking.” He adds,

The authors of the Marquette study, Jeffrey L. Kirchmeier and Samuel A. Thumma, said the justices had never really said precisely what dictionary definitions were doing in legal opinions. They urged the justices to explain “when and how dictionaries should be used, how a specific dictionary should be chosen and how to use a dictionary for interpretation.”