New Marquette Lawyer Magazine Examines War Powers, State Supreme Court Elections, Legal Scholarship Ethics, and More

Posted on Categories Legal Scholarship, Marquette Law School, President & Executive Branch, Public, Speakers at Marquette, Wisconsin Supreme CourtLeave a comment» on New Marquette Lawyer Magazine Examines War Powers, State Supreme Court Elections, Legal Scholarship Ethics, and More

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”

Foxconn Deal Tips the Scales of Justice

Posted on Categories Business Regulation, Civil Procedure, Constitutional Law, Corporate Law, Public, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on Foxconn Deal Tips the Scales of Justice

Photo of the front of the building that houses the U.S. Supreme Court, with an inscription above th doorway that reads "equal justice under the law."

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”

Completing the Revolution

Posted on Categories Business Regulation, Judges & Judicial Process, Legal Scholarship, Public, Wisconsin Law & Legal System, Wisconsin Supreme Court1 Comment on Completing the Revolution

Painting depicting a Revolutionary War scene of a young drummer boy, an older man, and another soldier playing the fife as all three march across a battle fleld. 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.

New Magazine Focuses on Opening the Door for More Work Addressing Big Questions

Posted on Categories Legal Practice, Marquette Law School, Public, Speakers at Marquette, Wisconsin Supreme CourtLeave a comment» on New Magazine Focuses on Opening the Door for More Work Addressing Big Questions

Marquette Lawyer Magazine Cover Fall 2017The 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”

Public Hearing to Address Judicial Recusal Rules

Posted on Categories Judges & Judicial Process, Public, Speakers at Marquette, Wisconsin Court System, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on Public Hearing to Address Judicial Recusal Rules

Logo with the words "Access to Justice" over the ops of photos of Louis Butler, Mike Skwierawski, Ed Fallone and Jay Heck.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.

More Doubts About the Court’s Resolution of the John Doe Investigation

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, Public, U.S. Supreme Court, Wisconsin Supreme CourtLeave a comment» on More Doubts About the Court’s Resolution of the John Doe Investigation

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”

Women in Wisconsin Law: Lavinia Goodell

Posted on Categories Feminism, Legal History, Legal Profession, Public, Wisconsin Supreme CourtLeave a comment» on Women in Wisconsin Law: Lavinia Goodell

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”

How to Interpret Away the Home Rule Provision (in 4 Easy Steps)

Posted on Categories Constitutional Interpretation, Constitutional Law, Judges & Judicial Process, Milwaukee, Public, Wisconsin Supreme Court3 Comments on How to Interpret Away the Home Rule Provision (in 4 Easy Steps)

homeruleToday the Wisconsin Supreme Court issued its opinion in the case of Black v. City of Milwaukee, 2016 WI 47, holding that a state law (Wis. Stat. 66.0502) that prohibits cities and other municipalities from imposing residency requirements on municipal employees does not contravene the Home Rule provision of the Wisconsin Constitution (Art. XI, sec. 3(1)).  The result of the ruling is that the City of Milwaukee may no longer require city employees to reside within the City limits, with the resultant loss of significant tax revenue for Milwaukee.

Reading the text of the Home Rule provision, one might reasonably question how the Wisconsin Supreme Court arrived at this conclusion.  The relevant text of Art. XI states:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.

However, the Justices of the Wisconsin Supreme Court have very helpfully demonstrated how the clear language of the Wisconsin Constitution can be interpreted away in four easy steps. Continue reading “How to Interpret Away the Home Rule Provision (in 4 Easy Steps)”

Differences Between Supreme Court Candidates Clear in Eckstein Hall Debate

Posted on Categories Public, Speakers at Marquette, Wisconsin Supreme CourtLeave a comment» on Differences Between Supreme Court Candidates Clear in Eckstein Hall Debate

Antonin Scalia and Ruth Bader Ginsburg were among the US Supreme Court justices who were invoked Tuesday night as role models by the candidates in the race for a seat on the Wisconsin Supreme Court that will be on the ballot April 5.

But did either of them ever have to go through the kind of election campaigning that Justice Rebecca Bradley and Appeals Court Judge JoAnne Kloppenburg are immersed in now?

A one-hour debate between Kloppenburg and Bradley  at Eckstein Hall was moderated by Mike Gousha, Marquette Law School’s distinguished fellow in law and public policy and a political analyst for WISN television. The debate was shown live on WISN and other stations around the state, with some stations scheduling it for broadcast later. Continue reading “Differences Between Supreme Court Candidates Clear in Eckstein Hall Debate”

New Marquette Lawyer Spotlights the Role of Law Clerks — and Much More

Posted on Categories Federal Law & Legal System, Marquette Law School, Public, U.S. Supreme Court, Wisconsin Supreme CourtLeave a comment» on New Marquette Lawyer Spotlights the Role of Law Clerks — and Much More

Marquette LawyerJudicial assistants or junior judges? That was the key question at a recent gathering at Marquette Law School of experts on the role of law clerks who work for judges in many courts, including U.S. Supreme Court justices. The Fall 2015 Marquette Lawyer magazine highlights excerpts from the presentations at that conference in a cover story that sheds light on the important but rarely spotlighted role of clerks (the full symposium is available in the Law Review).

Shedding light is also a prime goal of several other pieces in the new magazine.

Charles Franklin, professor of law and public policy and director of the Marquette Law School Poll, examines the muted level of support that Gov. Scott Walker received from Wisconsin voters during his unsuccessful bid for the Republican presidential nomination. Weak support from independent voters receives particular attention from Franklin in his piece, “Downtown on the Home Front.”

Joseph A. Ranney, Marquette Law School’s Adrian P. Schoone Visiting Fellow, is working on a book about the role that states have played in the evolution of American law. In several pieces posted on the Marquette Law School Faculty Blog and printed in the new magazine, Ranney sheds light on the Badger state’s legal past, describing “Wisconsin’s Legal Giants.” Continue reading “New Marquette Lawyer Spotlights the Role of Law Clerks — and Much More”

In Memory of Justice Patrick Crooks

Posted on Categories Judges & Judicial Process, Public, Wisconsin Court System, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on In Memory of Justice Patrick Crooks

Justice CrooksJustice N. Patrick Crooks was the epitome of a lawyer and judge who lived to serve. In his fifty-two-year legal career, he served as a captain in the office of the Judge Advocate General at the Pentagon and then as a lawyer in private practice in Green Bay, before becoming a Brown County circuit court judge and then justice of the Wisconsin Supreme Court. In 1994 he was named Wisconsin Trial Judge of the Year by the Wisconsin Chapter of the American Board of Trial Advocates. Justice Crooks served on the trial bench for nineteen years and on the Wisconsin Supreme Court from 1996 to his passing, in chambers, last week on September 21.

I was honored to work for Justice Crooks as his clerk during the Wisconsin Supreme Court’s 1999-2000 term.

Justice Crooks approached each case with fresh eyes and an impartial mind. He reasoned through cases carefully and understood that he had a solemn role in deciding a case. Justice Crooks believed in the law and the justice system. Every case was fully analyzed and researched before oral argument. Opinions were to be written to guide lawyers, judges, and Wisconsin citizens. Justice Crooks was proud of his work on the trial bench and felt that his knowledge of the trial courtroom was important to his understanding of cases on appeal.

Continue reading “In Memory of Justice Patrick Crooks”

Wisconsin’s Narrow Interpretation of Padilla v. Kentucky

Posted on Categories Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Immigration Law, Prisoner Rights, Public, Wisconsin Supreme CourtLeave a comment» on Wisconsin’s Narrow Interpretation of Padilla v. Kentucky

4c556cb87b0a9_imageWhile in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction.  559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.

Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.

The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence. Continue reading “Wisconsin’s Narrow Interpretation of Padilla v. Kentucky”