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?
Judicial 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.”
Justice 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.
While 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”
The Wisconsin legal community is mourning the sudden death of Justice N. Patrick Crooks. A native of Green Bay, Wisconsin, Justice Crooks was elected to the Wisconsin Supreme Court in 1996 and won a second term in 2006. He recently announced that he would not stand for re-election in 2016.
Before joining the Wisconsin Supreme Court, Justice Crooks served as a Judge on the Brown County Circuit Court. He was named Trial Judge of the Year in 1994 by the Wisconsin Chapter of the American Board of Trial Advocates. He was widely respected as an independent and conscientious jurist. He will be missed.
Photo Credit: Jake Harper/Wisconsin Center for Investigative Journalism
The definitive litmus test for the impartiality and competence of the Wisconsin Supreme Court took the form of a lengthy opinion issued in response to the consolidated action State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson (2015 WI 85) by our state’s highest court on July 16, 2015. They failed this test miserably. In that one day, the court managed to squander the entirety of its judicial capital and to risk making itself into a tribunal that is an insult to the distinguished jurists who have come before them. This is about much more than the unjustified halting of a bipartisan probe into potentially severe violations of Wisconsin’s election laws — it is a prime illustration of the corrosive and corruptive influence that money has on politics and, in particular, judicial politics. These decisions are more misguided and indeed may possibly be more corrupt than the decisions reached by the West Virginia Supreme Court that led to the now-famous United States Supreme Court decision Caperton v. A.T. Massey Coal Co. (556 U.S. 868) and inspired John Grisham’s best-selling novel The Appeal. Continue reading “The Wisconsin Supreme Court’s Caperton Moment”
A lawsuit filed in federal court by a sitting Chief Justice of a state Supreme Court against her colleagues is certainly unusual, if not unprecedented. The reaction to the filing of the complaint in Abrahamson v. Neitzel by the mainstream media has ranged from viewing the lawsuit as comedy (The Milwaukee Journal Sentinel: “Will the Real Chief Justice Please Stand”) to viewing this latest development as part of an ongoing tragedy (The New Yorker: “The Destruction of the Wisconsin Supreme Court”). However, the legal question at the heart of the Chief’s lawsuit is actually quite interesting.
Does the new method for selecting a Chief Justice of the Wisconsin Supreme Court take effect in the middle of the sitting Chief Justice’s term, or does it take effect upon the conclusion of the term of the current Chief?
Complicating the issue is the fact that an $8,000 salary differential exists between the position of Chief Justice and the other six Justices on the Court. Removing Justice Abrahamson from her current position as Chief would result in the immediate loss of this portion of her salary. Moreover, a mid-term reduction in salary appears to be prohibited by Article IV of the Wisconsin Constitution. Continue reading “The Chief’s Lawsuit”
Eastern jurists such as John Marshall, James Kent, Oliver Wendell Holmes, and Benjamin Cardozo have received the lion’s share of attention from law professors and historians over the years. Two fellow giants from the Midwest, Michigan’s Thomas Cooley and Iowa’s John Dillon, have been relegated to comparative obscurity.
Cooley and Dillon played a central role in shaping the contours of modern American constitutional law. They forged their philosophies in the heat of two critical judicial debates over the role of railroads in American society. Two Wisconsin justices, Luther Dixon and Edward Ryan, were also leaders in those debates, and their contributions to American constitutional law deserve to be better known. Continue reading “A Rebellion of Giants: Dixon, Ryan, and Taming the Railroads in the Gilded Age”
As announced this past summer, Joseph A. Ranney is serving as Marquette Law School’s Schoone Visiting Fellow in Wisconsin Law and using the occasion to write a book examining the role states have played in the evolution of American law, with a focus on the contributions made by Wisconsin. In a series of blog posts this semester, Professor Ranney will offer some Schoone Fellowship Field Notes. This is the first.
What makes a great judge? Who are the great state judges? Thousands of judges have helped build the edifice that is American state law. Only a few have received great acclaim. What are the elements of judicial greatness, and has Wisconsin produced any great judges? Let me consider the matter, excluding any current or recent judges. Continue reading “Has Wisconsin Produced Any Great Judges?”
The idea of the judiciary as independent guardians of the rule of law has taken a beating in Wisconsin in recent years, amid highly contentious state Supreme Court races and the widely publicized divisions within the state Supreme Court.
What plan with a realistic chance of being enacted could help restore respect for the judicial branch of state government as separate from politics?
That premise and that question shaped the work of a four-member task force of the State Bar of Wisconsin, and what the task force recommended recently is a plan that would be unique in the nation: Election of state Supreme Court justices to 16-year terms, without any opportunity to run for reelection.
Let’s say you are part of a married couple in Wisconsin. Due to a leukemia diagnosis and treatment for that disease, your eggs are no longer viable. Doctors agree that you are currently in good health and the disease is “a nonissue,” but your husband and you want children and you cannot bear them. A friend has offered to help you out. This woman has been your friend since grade school; you’ve each participated in the other’s wedding. You and your husband are godparents to her youngest daughter. Your friend and her husband have five children of their own and have said they are done expanding their family. Her husband even had a vasectomy. Twice in four years she has offered to carry and bear a child for you. Finally, you agree.
You and your husband visit a lawyer, and your friend and her husband visit a different lawyer. The gist of the arrangement is that your friend will be artificially inseminated with your husband’s sperm. She will carry and bear the child, but she agrees that you and your husband alone would raise the child and she agrees to terminate her parental rights to allow you to adopt the child. She would still be able to see the child; after all, you have long been friends and you plan to continue to see each other through social visits. You’re a bit concerned, though, that your friend may have difficulty giving up a child to whom she has biological ties, but she assures you she can do it. Your lawyers create numerous drafts of your agreement and each revises these drafts until finally all of you agree that what is written accurately reflects your understanding of the arrangement. You all sign this agreement in November. By this time, your friend is already almost five months’ pregnant. She is due the following March.
After all of you sign the agreement, your relationship with your friend crumbles, and before the child is born your friend informs you that she will no longer terminate her parental rights to the child, as she had agreed. Furthermore, she wants to have custody of the child. In March, she gives birth to the baby.
Last week, the Circuit Court in Milwaukee County rejected the effort of Sheriff David A. Clarke to maintain control over the County Correctional Facility South. (Judge Van Grunsven’s ruling is available here.) Although the CCF-S (formerly known as the House of Corrections) was run for decades by a superintendent who was independent of the Sheriff, the County transferred control over the CCF-S to the Sheriff in 2009 as a result of security concerns at the facility. However, the new management proved less than satisfactory to some important stakeholders.
Conflict over Clarke’s administration of the CCF-S seems connected to a wider ideological conflict between Clarke and other County leaders over the incarceration of relatively low-risk criminal offenders, with Clarke taking a very critical position regarding various criminal-justice initiatives that might be grouped under the heading “evidence-based decision making.” (Background on the conflict is here; my critique of some of Clarke’s views is here.) Clarke has been unsupportive of treatment programs and alternatives to incarceration, and his administration of the CCF-S has apparently reflected this perspective. Finally, through its 2013 budget, the County Board decided to transfer control of the CCF-S back to a superintendent. Clarke’s control over the downtown jail, which has been his all along, remains unaffected.