[The following is a guest post from Daniel Suhr ’08, a prior guest alumni contributor to the Blog.]
On June 25th the Wisconsin Supreme Court handed down its decision in Koschkee v. Evers, 2019 WI 76, which is in many ways a rerun of questions raised in Coyne v. Walker, 2016 WI 38. Coyne was, to put it mildly, a jurisprudential mess: “Our mandate resulted from a one-justice lead opinion, a two-justice concurrence, and a one-justice concurrence, all of which agreed only on the outcome of the case” (Koschkee, ¶ 5), plus a principal dissent representing the views of three justices, and a secondary dissent representing the views of only two justices.
Chief Justice Roggensack’s Koschkee majority (which commanded four votes on everything except ¶ 17) briefly discussed the stare decisis weight of Coyne in an early footnote, stating, “When we are asked to overturn one of our prior decisions, lead opinions that have no common legal rationale with their concurrences are troublesome.” (¶ 8, n.5.) They are troublesome, the Court continues, because it is hard to run their rationale through the traditional stare decisis analysis when there is no definitive rationale to analyze.
Justice Bradley’s dissent, by contrast, says the majority “throws the doctrine of stare decisis out the window.” (¶ 62.) To the Court’s argument from the lack of a common rationale in Coyne, she replies, “[T]he split nature of the Coyne opinion is of no import. The mandate of Coyne was clear despite the fractured nature of the opinions. Although the four justices in the majority subscribed to differing rationales, they agreed on the essential conclusion….” (¶ 73.)
In my view, the Chief Justice has the better of the argument. Continue reading “Stare Decisis and Fractured Majorities”
It’s no secret that Wisconsin has long been known for having some of the most lenient drunk driving laws in the country. Throughout the spring semester I saw firsthand just how limited the consequences can be—compared to other states like my native Illinois—as first-time offenders were simply cited for ordinance violations in Milwaukee Municipal Court and not charged criminally. However, there have been efforts in recent years to crack down on drunk driving in a state famous for its beer. State legislators have passed a number of measures to deal help law enforcement, and this past week one such measure found itself before the United States Supreme Court.
In its decision in Mitchell v. Wisconsin, the Court upheld Wisconsin’s implied consent statute and ruled that states are not restricted from taking warrantless blood samples from unconscious drunk-driving suspects by the Fourth Amendment.
In 2013, Mr. Mitchell was arrested in Sheboygan Wisconsin after police, who were responding to reports of an intoxicated driver, found him drunk and disheveled at a local beach. Mitchell stated that he wound up there after he felt too drunk to drive. The officer decided not to preform sobriety tests at the scene because Mitchell’s condition would have made it unsafe to do so. Instead, a preliminary breath test was administered with a resulting BAC of 0.24. While being transported to the police station Mitchell’s condition deteriorated and he was eventually taken to the hospital. Upon arrival, Mitchell was completely unconscious. He was then read the standard Informing the Accused form and a blood sample was taken, all without him regaining consciousness. That sample indicated a BAC of 0.22. While consent to a blood draw is normally withdrawn when the Informing the Accused is read—a form that actually asks if the subject will submit to an evidentiary test—Mitchell was obviously unable to withdraw consent in his condition.
But why was Mitchell required to withdraw consent in the first place? Continue reading “Unconscious Mistake: Wisconsin Implied Consent Statute Upheld for Wrong Reasons”
On December 14, 2018, outgoing Wisconsin Governor Scott Walker signed into law three bills that were rapidly passed by the Republican-held state legislature during an extraordinary session following the November 7, 2018 election that resulted in Democrats winning each statewide elected seat. Along with serving various other goals of the Republican legislative majority, the trio of so-called “lame duck” laws were designed to curb the powers of incoming Governor Tony Evers’ administration before he took office in the following ways:
- Transfer control over leadership appointments to the Wisconsin Economic Development Corporation (“WEDC”) from the executive branch to the legislature until September 2019. Then-candidate Evers campaigned on disbanding the WEDC.
- Grant the legislature power to intervene in lawsuits in circumvention of the Wisconsin Attorney General’s office when state statutes are challenged. This provision of the law provides for the use of taxpayer dollars to pay private lawyers to defend the interests of the Republican legislative majority.
- Give the legislature the ability to sign off on and decide how to spend court settlements – a power traditionally held by the Attorney General’s Office.
- Provide the legislature the power to permanently block any regulations written by the state’s numerous administrative agencies, which are part of the executive branch.
- Require the executive branch to get permission from the legislature to make any policy changes within the state’s health care and public benefit programs.
Since December 14, 2018, several lawsuits have been filed raising various legal challenges to the measures imposed by the lame duck legislation. One of the primary legal challenges to the lame duck legislation is constitutional in nature – i.e., that much of the new legislation’s limiting effects on the executive branch violate the principle of separation of powers embodied in the Wisconsin Constitution. Continue reading “Risky Precedents: A Brief Overview of the 2018 Wisconsin Lame Duck Laws & the Separation of Powers Doctrine”
A Warren Court cornerstone has been “remastered and upgraded,” as they say, by the Wisconsin Supreme Court in a case that has riled the waters nationally. In Brady v. Maryland (1963), the Warren Court held that prosecutors must disclose exculpatory evidence to the defense. No hiding the ball. Over fifty years of case law, however, has occluded the rule with sundry conditions and qualifications that obscure its modest disclosure provision. More time is spent describing the ball than looking for it.
In State v. Wayerski (2019 WI 11), the Wisconsin Supreme Court scraped off Brady’s barnacles, overruled fifty years of precedent, and held that prosecutors must provide the defense with any information that is exculpatory or impeaching — even if the defense could have found it as easily as the prosecutor. Continue reading “Full(er) Disclosure: Wisconsin Invigorates the Brady Rule”
I believe intellectual diversity is vital to the development of the legal community—in law school and in practice. I also believe our individual mindsets—as lawyers, professors, or law students—aggregate and have an outsized effect on the direction of Wisconsin’s and America’s laws. Finally, in the vein of free-market competition, I believe we should each endeavor to challenge our mindsets and step out of any conscious or unconscious echo chambers of legal thought. With these ideas in mind, let’s spice things up with a rather normative post.
Let’s start with a somewhat lighthearted contention. Math is not evil, mysterious, or to be avoided at all costs. On the contrary, we should challenge ourselves to use it appropriately and effectively when an opportunity arises to do so. Don’t get me wrong, I love a good “lawyers are bad at math” joke, but maybe we shouldn’t perpetuate that mindset. If you can use a standard normal distribution or some Bureau of Labor Statistics data to make a point, go for it. Words may be our specialty, but numbers should be in the tool bag as well.
That was a good warm up, so let’s try something a little more controversial. Continue reading “Gratitude for Intellectual Diversity”
The bald eagle symbolizes the strength of the United States, not least when the country uses its military power. The eagle on the cover of the Marquette Lawyer magazine, Fall 2018 issue, shows the determination, even the fierceness, of the eagle during times of war.
But the process involved in deciding where and how that eagle flies is more complex than many people may realize. In the cover story in the new Marquette Law School magazine, David J. Barron, judge of the U.S. Court of Appeals for the First Circuit and formerly a Harvard Law School professor, insightfully examines three chapters in American history when a president and leaders of Congress had differing positions on use of power. Barron focuses on three of the nation’s most revered presidents: George Washington, Abraham Lincoln, and Franklin D. Roosevelt. The article is an edited and expanded version of the E. Harold Hallows Lecture that Barron delivered at the Law School in April 2018. To read the article, click here.
Interspersed throughout the article are reactions by three individuals with different perspectives on the relationship between Congress and the commander-in-chief: Russ Feingold, former three-term U.S. senator from Wisconsin and currently distinguished visiting lecturer in international studies at the University of Wisconsin–Madison; Julia R. Azari, associate professor of political science at Marquette University and a scholar of the American presidency; and Benjamin Wittes, editor in chief of Lawfare and senior fellow in governance studies at the Brookings Institution.
Barron’s article, together with the reactions, is only one of the thoughtful and thought-provoking pieces in the new Marquette Lawyer. Elsewhere in the magazine: Continue reading “New Marquette Lawyer Magazine Examines War Powers, State Supreme Court Elections, Legal Scholarship Ethics, and More”
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”
Prof. David Strifling rightly draws our attention to what he terms “the quiet revolution” taking place in Wisconsin administrative law. As deputy legal counsel for the governor several years ago, I was privileged to be a foot soldier in that revolution, which sought to reinvigorate core constitutional principles around the separation of powers, government transparency, and executive responsibility. Thus far, the revolution has primarily been fought in the legislature (primarily through 2011 Act 21 and 2017 Act 57) and the executive branch (especially the Governor’s Executive Order 50 and the Attorney General’s opinion 01-16).
The Wisconsin Supreme Court will soon have its opportunity to join and accelerate the revolution when it hears and decides Tetra Tech v. DOR (Court of Appeals decision) and LIRC v. DWD (Court of Appeals decision) (scheduled for argument Friday, December 1). These cases both present core questions of agency deference, institutional competence, and judicial power – in short, the opportunity for the Court to supplant its current doctrine with a new approach. As evidence of the sea change that these cases could mark, consider that the Wisconsin Institute for Law & Liberty, Wisconsin Manufacturers & Commerce (leading 10 other business groups), and the Wisconsin Utilities Association all have filed amicus briefs in Tetra Tech making thoughtful arguments as to the value and validity of agency deference.
I have recently posted to SSRN a paper that delves into the past and future of deference in Wisconsin’s jurisprudence. Originally intended to complete my trilogy of Marquette Law Review articles on interpretation of the Wisconsin Constitution and Wisconsin statutes, the timeliness of these cases has instead prompted a shorter essay which tackles the important questions raised in Tetra Tech with an eye toward the fundamental principles which should guide the Court’s decision. Ultimately I conclude that the current scheme conflicts with constitutional first principles, the statutes, and common sense. I believe the Court should deep-six its doctrine and start anew with the standards set forth in Wisconsin’s administrative procedures act (Ch. 227). Please read the essay to see why. And we’ll all be watching closely as these cases move forward. Just because the revolution won’t be televised (I’ve never seen an episode of Law & Order or Suits concerning administrative law) doesn’t mean it won’t have significant implications for law in our state.
Daniel Suhr is a 2008 graduate of the Marquette University Law School.
The illustration on the cover of the new Marquette Lawyer magazine shows people entering a large door shaped like the letter Q—or a comment bubble.
Consider the door a symbol for big questions—or the information that we might get from others to help answer them. It has been a goal of the public policy initiative of Marquette Law School for more than a decade to engage people in considering many of the major issues that face Milwaukee, Wisconsin, and the world beyond. The Law School does not purport itself to provide the answers, but offers a platform for furthering awareness and knowledge about the questions and ways different people answer them.
A recent $5.5 million gift from Milwaukee philanthropists Sheldon and Marianne Lubar is “opening the door to much more” for the initiative, as the magazine cover says. Now named the Lubar Center for Public Policy Research and Civic Education, the initiative is expanding its scope and offerings. This gift, added to a gift the Lubars made in 2010, has created a $7 million endowment to support the work.
In one article, which can be read by clicking here, the magazine describes the development of the public policy initiative and looks at what lies ahead. A second article, which can be read by clicking here, profiles the Lubars, who have had great impact on the Milwaukee area as business and civic leaders. Continue reading “New Magazine Focuses on Opening the Door for More Work Addressing Big Questions”
On Wednesday night, October 11th, the non-partisan organization Common Cause in Wisconsin is holding a town hall meeting/public hearing entitled “Access to Justice.” Co-sponsors of the event include the League of Women Voters of Wisconsin, the League of Women Voters of Milwaukee County, and the American Association of University Women of Wisconsin. This free event is open to the public and will take place October 11 from 6:30PM to 8:00PM at Marquette Law School in the Appellate Courtroom (Main Level). Marquette University Law School is not a sponsor of the event.
The focus of the event will be the recusal rules that the Wisconsin Supreme Court has adopted for our state judiciary. Wisconsin’s current state recusal “non-standard” was written by the lobbyist organization Wisconsin Manufacturers & Commerce in 2010. The current rule essentially states that judges may decide for themselves whether to recuse themselves in a case involving a donor or special interest group who made campaign contributions to that judge.
This past April, the Wisconsin Supreme Court discussed a petition by 54 retired Wisconsin judges to establish reasonable thresholds for recusal of trial and appellate judges when they receive campaign contributions from a defendant or plaintiff – or if they benefited from spending by an “outside” special interest group involved in a case before their court. The State Supreme Court voted 5 to 2 to reject this petition, and the Court did so without any input from the public.
The purpose of Wednesday night’s event is to educate persons in attendance on the issue of judicial recusal rules and to seek public input on possible reforms. I will be one speaker at this event, along with former State Supreme Court Justice Louis Butler, former Milwaukee County Circuit Court Judge Michael Skwierawski, and Jay Heck from Common Cause.
Again, this event is free and open to the public. I hope to see you there.
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”
This is the first part of a three-part series on Women in Wisconsin Law.
Throughout Wisconsin’s history, women have played an instrumental role in the development of the state’s legal system. Among these women was Lavinia Goodell of Janesville, the first woman admitted to practice law in Wisconsin.
Before her move to Wisconsin, Goodell worked as an editor for several newspapers in New York. During this time, Goodell confided in a coworker that her life’s ambition was to become a lawyer. When Goodell’s parents retired to Janesville, Wisconsin, in 1871, she was convinced into joining them with her father’s promise that she would be able to study law. Upon arriving in Wisconsin, Goodell’s father helped his daughter find attorneys who would permit her to study law alongside them through an apprenticeship. After demonstrating her ability to successfully practice law as an apprentice, Goodell sought admission before the local circuit court and, with the support of several prominent local lawyers, was admitted to practice in the Circuit Court of Rock County, Wisconsin, in 1874.
After being admitted to practice law at this local level, Goodell opened her own law office that primarily represented woman and the elderly. Despite being able to practice at this local level without much difficulty, one of Goodell’s cases in 1875 was appealed to the Wisconsin Supreme Court. When the supreme court did not allow her to argue the case, Goodell filed an application for state admission. Continue reading “Women in Wisconsin Law: Lavinia Goodell”