Florida’s “Strict-Liability” Drug Law Found Unconstitutional

Posted on Categories Constitutional Interpretation, Criminal Law & Process, Public1 Comment on Florida’s “Strict-Liability” Drug Law Found Unconstitutional

Are there any constitutional limits on the power of a legislature to restructure state-of-mind elements as affirmative defenses? The Supreme Court has suggested that such limits do exist, but has not clearly delineated what they are. However, an interesting habeas case now moving through the lower federal courts may provide a good opportunity to clarify this uncertain area of the law.

The case has emerged from a tug-of-war between the Florida legislature and the courts over the state’s basic drug-trafficking offense. Although the offense did not include any express state-of-mind element, the Florida Supreme Court held as a matter of statutory construction in 1996 that the state was required to prove knowledge of the illicit nature of the substance involved in the offense. The legislature responded in 2002 by amending the statute and clearly indicating that knowledge was not required; rather, the legislature specified, lack of knowledge must be proved by the defendant as an affirmative defense. (Apparently, only one other state, Washington, similarly dispenses with a state-of-mind element for drug trafficking.) Now, a federal district court has ruled on a habeas petition by a defendant convicted under the Florida statute, holding in Shelton v. Secretary, Department of Corrections (No. 6:07-cv-839-Orl-35-KRS) that the new version of the offense facially violates the Due Process Clause.

I’m sympathetic to the idea of constitutional limits on the legislature’s ability to create strict-liability crimes, but the court’s reasoning in Shelton strikes me as something less than compelling.

Continue reading “Florida’s “Strict-Liability” Drug Law Found Unconstitutional”

The Law in Shakespeare’s Works

Posted on Categories Popular Culture & Law, Public6 Comments on The Law in Shakespeare’s Works

Last Friday I had the pleasure of listening to an interview on WPR with Stephen Marche, author of the book, How Shakespeare Changed Everything.*

During the interview, Mr. Marche talked about how many English words were first used by Shakespeare.  Lawyers can thank Shakespeare for words like “negotiate”, “compromise”, and “circumstantial”.** The conventional wisdom is that Shakespeare invented those words, although Mr. Marche acknowledged that Shakespeare may really have been the first person to write down words that were already in use at the time.  (I think the latter may be more likely, although I do not claim to be an expert on this matter.)

The interview got me thinking about references to the law in Shakespeare.  A quick search online referred me to a 2009 conference at the University of Chicago Law School on “Shakespeare and the Law.”  Another quick journal and law review search on Westlaw showed a number of references to Shakespeare.

Do any of our readers have a favorite Shakespeare passage or play?  What are your thoughts on Shakespeare and the law?  What influence, if any, has Shakespeare had on the public’s view of the law and lawyers?  Did Shakespeare use legal concepts correctly in his plays?  Do you think that Shakespeare really coined all the words for which he is credited?  Is there anything that lawyers can learn from reading Shakespeare?

I very much look forward to reading Mr. Marche’s book. Continue reading “The Law in Shakespeare’s Works”

Gov. Walker Tacks for the Middle, Particularly on Education Issues

Posted on Categories Education & Law, Milwaukee, Milwaukee Public Schools, Public2 Comments on Gov. Walker Tacks for the Middle, Particularly on Education Issues

Some politicians say they don’t pay attention to what polls show. Gov. Scott Walker is one of them. Most of those who say that actually do pay attention to polls. I assume Walker is one of them.

That’s certainly as good a way as I can think of to explain what is clearly an effort by Walker to move toward the middle on at least some issues, particularly education quality matters. In just over a half year in office, Walker has become an especially polarizing figure. Many on the right think he has changed the long-term future of Wisconsin for the better and praise him enthusiastically. Many on the left think he is so bad that they will succeed in bringing him to a re-call election next year. Some polls show that there are stronger feelings about Walker, both pro and con, with little middle ground, than is true for any other governor currently.  

But, ultimately, in a state that is as politically split as Wisconsin, it is valuable, if not essential, to have support among many of those in the middle. And Walker’s overall poll numbers are down in the light of the ferocious battle over the state budget.

So maybe I shouldn’t have been surprised when Walker took more moderate positions in an interview I did with him on July 1 on education issues. He referred several times to his desire to build consensus on some major issues and said it was “the Wisconsin way” to get a wide range of people together to work on issues. He talked about how he was building a strong relationship with Tony Evers, the state superintendent of public instruction, on matters such as a new school accountability system, new state tests, and an initiative aimed at increasing the overall quality of the work of principals and teachers. The generally-liberal Evers has been backed by teachers unions and was strongly critical of some major parts of the budget proposals from Walker, a conservative Republican.

Walker’s comments and subsequent conversations with him and Evers led to a story I wrote for the July 10 Milwaukee Journal Sentinel and a column I did on Walker’s education thoughts on July 17. The audio of my interview with Walker is availabkle on the latter Web page. 

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Ponderings of a Law Professor: Moving from Law School to Law Practice

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(Editor’s note:  Professor Mazzie’s June post for the Ms. JD blog remains relevant, as last year’s law graduates make their transitions from school to work, and current students contemplate their future paths.)

[T]housands of law students have graduated from their respective law schools [in May and June].  They will spend this summer studying for bar exams and possibly looking for work.  Most are probably ecstatic that law school is behind them and “real” legal work is ahead.  Perhaps, though, in August when their classmates begin to gear up for classes these graduates will have a moment of feeling left out – a sense of emptiness because for  years their lives have run on an academic calendar that will no longer apply to them. Continue reading “Ponderings of a Law Professor: Moving from Law School to Law Practice”

The Shocking Testing Scandal in Atlanta

Posted on Categories Education & Law, Media & Journalism, Milwaukee Public Schools, Public2 Comments on The Shocking Testing Scandal in Atlanta

I don’t think “Bad Teacher,” the movie currently playing in theaters, is going to do damage to the reputation of teachers or education in general across the United States. It may be gross, dumb, tasteless, and a lot of other things, but it’s a movie.  People can grasp that it’s not a documentary.

But the current test-score cheating scandal in Atlanta is a different matter. It is pretty much the most disturbing and shocking single episode in American education that I can think of in the last decade. This is a case of teachers and administrators being shown in real life to have engaged in vividly discrediting educational practices. 

I heard or read often in recent years about the successes of the Atlanta public schools. Test scores had risen, the elected school board was a model case for those who opposed mayoral control of schools, and Superintendent Beverly Hall was one of the most honored and respected school leaders in the country. I remember then-MPS Superintendent William Andrekopoulos telling me several years ago what a great person Hall was, and that view was definitely in the mainstream of educators.

All of that makes the scandal that has been unfolding in Atlanta for months all the more stunning. The Atlanta Journal Constitution deserves a lot of credit for pushing hard to bring to light a sweeping culture among teachers and their superiors, right up to Hall, in which doctoring students’ test scores sheets was done routinely, almost openly, and with indifference to both the rules and to children’s actual education needs. A culture of cheating, with a partner culture of intimidation of those who might resist it, pervaded Atlanta’s school system.  Hall has resigned and is now considered highly discredited, the school district has fallen into turmoil, and criminal charges may lie ahead.

The Journal Constitution’s story about a special investigative report released by the governor’s officeTuesday, summarizes the scandal in revolting detail.

Critics have long argued that standardized testing is a bad way to judge kids and, among other problems, leads to cheating by educators who have strong incentives to show good results for their students. My guess is even few of the critics thought there was a scandal of the dimension now unfolding in Atlanta. From now on, the word “Atlanta” is going to be to debate about high stakes testing what the word “Columbine” is to discussions of student violence.

Will the Atlanta situation change the course of the movement that has made standardized testing a key part of accountability around  the US? My guess is that overall, it won’t. But it certainly should cause everyone to think deeply about how to make testing a constructive step. That includes more work on improving test security, creating climates of ethical practices around testing, and monitoring the pressures being put on educators to come up with good results.

Results on state standardized tests for Milwaukee school children may be discouraging, but at least they are, to the best of my knowledge, generally honest. I’m only aware of one real cheating scandal in Milwaukee Public Schools in the last decade or so. It involved one school a few years ago, and, while MPS succeeded in keeping most of the details from public view (it was labeled an employee discipline matter), best as I could tell, the district dealt with it reasonably well.  (By the way, speak up if you know differently, not only with MPS but any school or district.)

I used to think it would be nice if Milwaukee had Atlanta’s record when it came to rest results. Obviously, it is time to think the reverse, especially when it comes to integrity.

Child Support, Contempt of Court, and (Maybe) Lawyers

Posted on Categories Family Law, Public, U.S. Supreme Court31 Comments on Child Support, Contempt of Court, and (Maybe) Lawyers

This week, the US Supreme Court handed down a decision in Turner v. Rogers, a case involving a non-custodial parent who was jailed for nonpayment of child support.  Failure to pay child support is a violation of a court order to pay, and is thus handled as a civil contempt of court case.  A finding of civil contempt in these cases is predicated on nonpayment when the defendant is financially capable of paying, and a defendant can always avoid jail time by either paying the amount owed, or by showing that he is incapable of paying.  Turner had been ordered to pay $51.73 per week for the support of his child and had been sentenced to jail time on several previous occasions for failure to pay.  He was not represented by counsel at the hearing where he received a 12-month sentence, which he served in its entirety.  At the hearing in question, the judge sentenced Turner without making an express finding that Turner was financially capable of paying the support owed.  On appeal, Turner argued that the US Constitution entitled him to counsel at his hearing because, although the contempt proceeding is civil in nature, the potential for incarceration triggered a Due Process Clause-based right to be represented.  Although Supreme Court cases have consistently found that the Sixth Amendment right to counsel in criminal cases does not apply to civil cases (not even civil contempt cases), there was a split in the circuits over whether a defendant has a right to counsel under the Due Process clause in civil contempt proceedings enforcing child support orders.

Here, the Court held that “where as here the custodial parent (entitled to receive the support) is unrepresented by counsel, the State need not provide counsel to the noncustodial parent (required to provide the support).”  However, the Court added the caveat that “the State must nonetheless have in place alternative procedures that assure a fundamentally fair determination of the critical incarceration-related question, whether the supporting parent is able to comply with the support order.”  Since Turner did not receive clear notice that his ability to pay – or not – was crucial in deciding whether he would be jailed, and since the court did not make an express finding that Turner was able to pay, his incarceration was found to have violated the Due Process Clause, and his case was remanded.  The dissent agreed that there should be no right to counsel in civil contempt cases for nonpayment of child support, but would not have vacated the state court judgment on the grounds that there were not sufficient procedural safeguards to protect Turner.

My colleagues who specialize in constitutional law, criminal law and sentencing will doubtless have other insights about this case.  Here, I would like to offer just a few observations from a family law perspective. Continue reading “Child Support, Contempt of Court, and (Maybe) Lawyers”

Education Round-up: More New MPS Principals and More Changes in Detroit

Posted on Categories Education & Law, Milwaukee, Milwaukee Public Schools, PublicLeave a comment» on Education Round-up: More New MPS Principals and More Changes in Detroit

The second wave of new principals in Milwaukee Public Schools is going to hit shore tonight at a meeting of the Milwaukee School Board’s finance committee. This time, it is slated to bring new principals to 19 schools. Last month, the first wave brought new leaders to 21 schools.

The two waves – and there will be at least a few more new principals before September – are both a major opportunity and a major concern. Principals are crucial to a school and, if the new batch has good impact overall, that will be a big plus for MPS. But the unusually large number of new principals means almost a quarter of all MPS schools will be under new leadership, which can be a stressful development for a school.

Assuming the committee and, next week, the full school board approve, the new group will include five current MPS principals who are being trasnferred to new assignments and 14 people who are being hired for or promoted to principal jobs. Among the newcomers to the ranks of MPS principals will be Peter Samaranayke at Rufus King High School, the most prestigious high school school in the system; Michael Cipriano at Hamilton High; and Brian Brzezinski at Pulaski. Cynthia Eastern, who has been principal of Pulaski the last several years, will become principal of the School of Career and Technical Education, which is being created as part of the overhaul of Custer High School.

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Avoiding the “Every School Left Behind” Inevitability

Posted on Categories Education & Law, Milwaukee Public Schools, PublicLeave a comment» on Avoiding the “Every School Left Behind” Inevitability

Maybe, in 2001, it seemed like 2014 was too far away to be worth much worry. In 2011, it’s not so far away. Not that it’s clear what is going to be done now about what was one of the more idealistic, well-intended, but ridiculous, notions ever put into federal law.

In 2001, and with strong bipartisan support, Congress approved the No Child Left Behind education reform law. Amid its complex notions, there were some clear intentions: Congress and the president (George W. Bush at that point, but Bill Clinton and Barack Obama would say much the same) were tired of putting a lot of money into schools across the country and not seeing much to show for it. They wanted to see the American education world buckle down to work especially on improving the achievement of low income and minority students. And they wanted every child to be reading and doing math on grade level by – oh, pick a date far away – 2014.

So they called the law No Child Left Behind. A wonderful idea – are you in favor of leaving some children behind? I’m not.

But given the real state of children, the obstacles so many face, the entrenched depth of so many issues, and the simple realities of what could be accomplished, it was an unrealistic idea. Even if everything went great, we were never going to reach 100% proficiency by 2014, or by any date.

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Pension Concessions Request Puts MPS Union in an Unhappy Place

Posted on Categories Education & Law, Milwaukee, Milwaukee Public Schools, Public1 Comment on Pension Concessions Request Puts MPS Union in an Unhappy Place

The Milwaukee Teachers’ Education Association, the union for Milwaukee Public Schools teachers, had two lines of defense against making  concessions as the financial squeeze on MPS tightened.

The first was that, due to langauge in the bill backed by Gov. Scott Walker and Republican legislators, if the MTEA agreed to any changes in its contract, which goes through June 2013, the entire contract would be wiped out. The second was that the union had already made concessions when it settled in September 2010 and just wasn’t going to make any more. 

The first line of defense stands to be erased in the light of changes made by the legislature’s joint finance committee that would allow the MPS contract to be changed without bringing down the roof.

And the Milwaukee School Board, as described ina Journal Sentinel story,  put the question squarely to the union last week of whether it is going to stick by the second response. The board asked that the union to agree to have teachers pay 5.8% of their salaries toward their pensions. Although that is technically the way the system works now (with MPS paying a matching amount), MPS and many other school districts have paid both shares of the pension payments for many years. Continue reading “Pension Concessions Request Puts MPS Union in an Unhappy Place”

Correction: Make That Milwaukee Montessori

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I made a sloppy error in the section of the blog item posted Monday rounding up some recent education news. I named Downtown Montessori as a voucher school where many parents opted to have their children not take Wisconsin’s standardized exams. I meant to say Milwaukee Montessori, a private school on the west side that takes part in the voucher program. Downtown Montessori, on the south side, is an independent charter school where all the students take part in the state exams, Virginia Flynn, the head of school, said. My apologies. The blog item should have read like this:

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Education Round-Up: Union Leader Out, Voucher Testing In

Posted on Categories Education & Law, Milwaukee, Milwaukee Public Schools, Public3 Comments on Education Round-Up: Union Leader Out, Voucher Testing In

So much going on. It’s hard to keep up. So here’s a round-up of a few things on the local education scene that are actually pretty important, but haven’t gotten much attention in recent days:

MTEA executive director is out: Stan Johnson, the executive director of the Milwaukee Teachers’ Education Association, is out, continuing a period of difficulties and instability in leadership of the union.  Johnson resigned last week “for personal reasons,” according to a union spokesman who said there would be no further comment. But Johnson’s abrupt departure suggested it was not an amiable matter.

Johnson was previously president of the Wisconsin Education Association Council, the union organizations which has been at the heart of education politics in Wisconsin in recent decades. He was one of the most widely known teachers’ union figures in the state.

 In a period when all teachers’ unions have been facing a lot of challenges, the MTEA has had had the complication of continuing leadership issues.  Tom Morgan was named executive director in 2007, succeeding long-term union leader Sam Carmen. But Morgan died of a heart attack while on a vacation cruise in March 2010. Since then, the union went through several interim directors and a search for a new executive director that ended with no candidate being selected Carmen came out of retirement for  several months and it was during Carmen’s return that the MTEA reached a four-year contract agreement with the Milwaukee School Board. Johnson was hired after Carmen returned to retirement last fall.

With Johnson gone,  long-time union staffer Sid Hatch has been named acting executive director. Separately, the union is installing a new president this week. Mike Langyel, who was president the last two years (and was president from 1991 to 1993 as well), has retired and Bob Peterson, a veteran teacher who is nationally known for his work on social justice issues and his founding of the Rethinking Schools education publication, is the new president.

Continue reading “Education Round-Up: Union Leader Out, Voucher Testing In”