Observations by a 3L in a First-Degree Intentional Homicide Jury Pool

Posted on Categories Criminal Law & Process, Wisconsin Court System2 Comments on Observations by a 3L in a First-Degree Intentional Homicide Jury Pool

I was recently summoned to serve as a juror in Jefferson County, Wisconsin. As a 3L about to graduate, I have had some recent exposure in my classes and internships to the jury selection process. Being on the other side of the process, being in the pool of potential jurors, gave me some unique insights into the process that I think I may not have ever had otherwise. I took many notes during the course of my time in the pool of potential jurors, and I will share a number of these observations in my blog entries during the month of December.  For myself, perhaps the most interesting thing I observed is how the experiences jurors have on the day of jury duty, before entering the courtroom, influence their moods or attitudes once they are in the courtroom.

The case I was in the jury pool for was State v. Curtis Forbes, a first-degree intentional homicide case being tried in Columbia County with a Jefferson County jury. A few weeks earlier, a Columbia County jury heard a Jefferson County case involving two counts of first-degree intentional homicide.  This was reported in the press as an intentional “jury swap” between the two counties. Continue reading “Observations by a 3L in a First-Degree Intentional Homicide Jury Pool”

“Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All

Posted on Categories Constitutional Interpretation, Family Law, Federal Law & Legal System, U.S. Supreme Court, Wisconsin Civil Litigation, Wisconsin Court System, Wisconsin Law & Legal SystemLeave a comment» on “Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All

On June 24th, the Wisconsin Court of Appeals ruled against a woman seeking legal recognition of her parental rights for the two children she adopted with her ex-partner. The two women adopted their children in 2002 and 2004 from Guatemala. The woman appealing, known in the record as Wendy, stayed at home with the children, while her partner, recorded as Liz, worked as an attorney. Liz was the legal adoptive parent so that the children could be on her healthcare plan. When the couple split up, the two women agreed to an informal custodial arrangement, but Wendy has no legal rights over or to her children. When Liz stopped allowing Wendy to see the children, Wendy lacked any legal recourse.

Wisconsin law does not permit same-sex couples adoptive rights; only one parent is the “legal parent.” The court justified its decision on the basis that Wisconsin law defines a “parent” as only the biological or adoptive parent. Wendy is neither of these and thus, at least under the law, not a parent at all.

This leads to questions that are more cultural than legal (though still legal, yes). How do we define parent? How do we define family? The Supreme Court has spoken to these questions, though not in the terms at issue here. Continue reading ““Past Formalities” and “Present Realities”: Why Wendy Isn’t a Parent at All”

Mother and Daughter, Justly Proud

Posted on Categories Judges & Judicial Process, Speakers at Marquette, Wisconsin Court System, Wisconsin Supreme CourtLeave a comment» on Mother and Daughter, Justly Proud

Wisconsin Supreme Court Justice Pat Roggensack and Milwaukee County Circuit Judge Ellen Brostrom are wary of almost all of the labels that people try to put on them and on other justices and judges.

But one label they are proud of is mother and daughter, and that was clear Thursday during an “On the Issues with Mike Gousha” session at the Law School. The two are believed to be the only mother and daughter to serve on the bench at the same time in Wisconsin history, Gousha said.

“You’ve just been an incredible role model for me,” Judge Brostrom told her mother. Justice Roggensack said she never intentionally put her daughter on the path to being a judge, but she agreed she was very pleased when Bostrom narrowly won election in 2009.

When Gousha asked how the two of them react to labels such as “conservative” or “liberal” when it comes to describing judges, Justice Roggensack said, “I think it’s a lazy definition.” The use of labels reflects the high degree of partisanship of the times, especially when it comes to elections. She said labels are useful in negative campaigning, which is the way campaigns “can hit hardest fastest.”

Most cases that come before the state Supreme Court don’t fit on a liberal-conservative axis, she said. Continue reading “Mother and Daughter, Justly Proud”

We Elect Judges, Don’t We?

Posted on Categories Judges & Judicial Process, Wisconsin Court System3 Comments on We Elect Judges, Don’t We?

It is hardly a revelation, but the  Laurel Walker of the Journal Sentinel has done a study demonstrating that a bit more than half of the circuit judges in the five county area assume the bench by appointment, rather than election. This is an important aspect of judicial selection in our state and the paper does a service by informing the public (and, I suspect, much of the bar) of the fact that many of our judges are selected, in the first instance, by the Governor and not the electorate.

My colleague, Peter Rofes, is certainly correct to note that, in some sense, this demonstrates that a “harsh dichotomy between so-called elector systems and appointment doesn’t really exist.”

But, while I agree that the dichotomy may not be harsh, it remains significant. While the Journal Sentinel is correct to note that challenges to sitting judges are rare, they are more frequent (although still probably not very frequent) when the incumbent is a sitting judge who has not yet faced the electorate. I supervised a study of that a number of years ago in defending a challenge to Wisconsin’s system of electing judges under the Voting Rights Act. My sense is that things haven’t changed much.

This is where the dichotomy reasserts itself and does so in at least three ways. First, governors know that their appointees are subject to electoral challenge and the electability of prospective judges is a consideration in choosing appointees. Second, although incumbency in and of itself confers certain advantages, it is not as strong for new appointees. Every new judge knows that securing an uncontested election is not a matter of happenstance and, in many (if not most) cases, must be made to happen. The first order of business is to line up support and fundraising to dissuade potential challengers. Every judge knows that the absence of a challenger often requires hard work. Third, while challenges are not frequent, they are not unknown and they do happen. Appointed judges get beat. Everyone knows this and that has – for better or worse – an “accountability” impact on newly appointed incumbents.

So, if the study were to be used to argue that we don’t “really” elect judges anyway and so we should accept  Sandra Day O’Connor’s invitation  to drop our electoral system, I think that the situation of the ground is far more nuanced. In any event, there is, rightly or wrongly, a strong public commitment to electing judges. I do not see our system changing any time soon.

Although it is beyond the scope of the Journal Sentinel’s study, I think it would be interesting to consider why so many circuit court vacancies occur. We don’t see half of other public offices becoming open during the incumbent’s term of office.

Part of the answer, I think, would be that new branches have been created during this period so the number of vacancies is less than half. Still, the vacancy rate would remain well above what we see for other elected offices.

Is their just more career dissatisfaction among circuit court judges leading to more resignations? Is it the length of a judge’s term? Does the fact of gubernatorial appointment create incentives for sitting judges to time their retirement in order to create an opportunity for lawyers of the same party?

Cross posted at Shark and Shepherd

Merit Selection Amendment Introduced

Posted on Categories Wisconsin Court System, Wisconsin Supreme Court8 Comments on Merit Selection Amendment Introduced

Yesterday, State Representative Mark Gottlieb (R-Port Washington) announced that he is drafting a constitutional amendment to replace Wisconsin’s current method of judicial elections with “merit selection.” Rep. Gottlieb is a former speaker pro tem of the Assembly, and he is widely regarded as one of the top policy gurus within the Republican caucus.

Currently, the legislature is seriously considering public financing
of judicial elections (a topic on which Prof. Esenberg has written
extensively
).  Rep. Gottlieb is offering his amendment as an alternative to public financing as it comes to the floor in the near future. Rep. Fred Kessler (D-Milwaukee) offered his own judicial selection amendment earlier this session. Both Gottlieb and Kessler differ from the typical “Missouri Plan” merit selection system. Under Kessler’s plan, the governor would appoint a justice with the “advice and consent” of a majority of the State Senate for a ten-year term. As that term is coming up for expiration, a justice who wishes to continue may do so unless at least thirteen senators reject the proposed renewal. Under Gottlieb’s plan, the governor must select his nominee from current circuit court and appellate judges who have served at least eight years on the bench. The nominee would then need to be confirmed to the ten-year term by a twenty-vote (3/5) majority in the state senate.  At the end of the ten-year term, and each subsequent ten-year term he or she desires, the justice would have to run in a retention election.  Neither the Kessler nor the Gottlieb plan would change judicial selection for the court of appeals or circuit courts.

Let’s start by stating what’s good about both of these proposals. Continue reading “Merit Selection Amendment Introduced”

Independence and Accountability in Wisconsin’s Lower Courts

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All methods of judicial selection must account for and balance the competing goals of judicial independence and judicial accountability. Judge James Wynn, Jr. and Eli Mazur described judicial independence as an “immunity from extra-legal pressures” and judicial accountability as the judiciary’s “responsiveness to public opinion.” A method of selection cannot treat independence and accountability as having equal importance. Independence — immunity from extra-legal pressures — must come at the expense of accountability — responsiveness to public opinion, a form of extra-legal pressure.

The three primary methods of judicial selection in the United States are appointment (either by the executive or the legislature), election, and merit selection.  Appointment is viewed as the best method for promoting judicial independence.  Election is viewed as the best method for promoting judicial accountability.  And merit selection attempts to split the difference by having the executive make an appointment from a pool of candidates selected by representatives of the public.

When the issue of judicial selection comes up in a public forum, the focus of the discussion is typically on how to select judges to a state’s highest court.  Wisconsin experienced a public debate on the selection of Supreme Court Justices last spring because of the content of the campaigning and the influx of special-interest group spending during the Supreme Court elections of 2007 and 2008.  Judge Diane Sykes summarized the public debate that appeared in Wisconsin’s major newspapers in her speech published in the most recent issue of the Marquette Law Review. Continue reading “Independence and Accountability in Wisconsin’s Lower Courts”

Okay, Judge, You Hit Your Number or Die in This Room*

Posted on Categories First Amendment, Judges & Judicial Process, Political Processes & Rhetoric, Western District of Wisconsin, Wisconsin Court System2 Comments on Okay, Judge, You Hit Your Number or Die in This Room*

Much of the attention following yesterday’s decision in Siefert v. Alexander focuses upon the invalidation of prohibitions against judges or judicial candidates belonging to political parties and endorsing partisan candidates for office. That part of Judge Crabb’s decision seems to me, given the balance between regulatory interests and the protection of speech struck by the United States Supreme Court in Republican Party v. White, to be clearly correct.

And not, in my view, very momentous. Many judges have prejudicial partisan affiliations and, in highly salient elections, it is not hard for the public to discern whether a  candidate is a Republican or Democrat.  In fact, one could argue that allowing candidates to claim partisan affiliation is a relatively efficient way to provide pertinent information to voters in campaigns where discussion of the issues is difficult and often cramped by legal and customary restrictions.  It’s not that we expect judges to rule in whatever way their party wants (although, as Judge Crabb points out, the prior partisan affiliation of federal judges is strongly correlated with voting patterns), but that partisan affiliation may tell us something (admittedly broad and general) about a candidate’s judicial philosophy.

More significant, it seems to me, is that part of the decision striking down the Code of Judicial Conduct’s prohibition against the personal solicitation of funds by judges and judicial candidates. Continue reading “Okay, Judge, You Hit Your Number or Die in This Room*”

I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Posted on Categories Criminal Law & Process, Race & Law, Wisconsin Court System, Wisconsin Criminal Law & Process3 Comments on I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)

Perhaps Professor O’Hear can straighten me out on this.

The decision of a divided Court of Appeals setting aside the sentence of Landray Harris has gotten a fair amount of play in the blogs and on talk radio. Put briefly, the court vacated the sentence because the sentencing judge, apparently frustrated by the defendant’s failure to get a job, referred to the defendant’s “baby mama” (who supports him) and wondered how “you guys” (referring to one out of four defendants who appeared before the court) find women who are willing to support them in idleness. One of the area’s most prominent African-American defense attorneys has come to the defense of the sentencing judge, suggesting that his comments grew out of conversations that they had over the years about the puzzling ability of ne’er-do-wells to find women who enable them.

MULS alum Tom Foley is derisive of the critics, suggesting that they have failed to understand the proper standard for evaluating such matters. He points out that the majority asked whether the sentencing remarks could suggest to a reasonable observer or a “reasonable person in the position of the defendant that the court was improperly considering Harris’s race?” Thus, Tom argues, the question to be answered is not what, say, Jeff Wagner would make of the judge’s remarks but how they would be perceived by an African-American defendant. Continue reading “I Refer to the Woman with Whom You Have a Child But Who Is Not Your Wife (Hereafter “Baby Mama”)”

Spin Doctoring and the Judiciary

Posted on Categories Judges & Judicial Process, Wisconsin Court System2 Comments on Spin Doctoring and the Judiciary

I was extremely lucky to represent Marquette Law School this past Saturday night at the Wisconsin Equal Justice Fund’s Howard B. Eisenberg Lifetime Achievement Award Dinner, and the highlight of the event for me was not only my opportunity to meet and take a picture with Justice Louis Butler, but also to hear him present the Lifetime Achievement Award to Judge James A. Gramling, Jr. However, there were two things about Justice Butler’s speech that caught my attention. First, he began his speech by saying, “I’m Justice Louis Butler, and I’m not under investigation for anything.” Now, granted, this was an audience that had given him a thunderous standing ovation on his way to the podium, so he was certainly in the right crowd to make that joke. Nevertheless, it surprised me how eagerly everyone in the room applauded him; it certainly didn’t feel as though it was merely humoring him. Second, and perhaps more importantly, his tribute to Judge Gramling touched repeatedly on the Judge’s insistence in doing the right thing regardless of its popularity or public perception, both in his personal life and in the law. Continue reading “Spin Doctoring and the Judiciary”

The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations

Posted on Categories Legal Research, Legal Writing, Wisconsin Court SystemTags , 1 Comment on The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations

As you probably already know, yesterday the Wisconsin Supreme Court heard the petition of the Wisconsin Judicial Council to amend Wisconsin Statue section 809.23(3), to permit citation of unpublished Wisconsin Court of Appeals opinions as persuasive authority.

Beth Hanan, managing member of Gass Weber Mullins and Vice Chair of the Wisconsin Judicial Council, kindly offered the following summary of the hearing and the court’s decision to amend the rule.  (Please note that these are Beth’s own, individual comments and are not the comments or thoughts of the Judicial Council.)

Taking a cautious step into a national trend, yesterday the Wisconsin Supreme Court voted 6:1 to permit citation of unpublished authored appellate decisions, with several limitations.  Amended Wis. Stat. (Rule) s. 809.23(3), like Fed. R. App. P. 32.1, will be prospective only.  This means that parties and courts will be able to cite those unpublished authored opinions which are released on or after the planned effective date of the amended rule, July 1, 2009.  When parties cite such opinions, they will have to file and serve copies of the opinions.  The rule specifically will  provide that parties are not required to cite unpublished opinions.  Finally, the supreme court has ordered that a committee be formed to plan the roll out of the rule and devise a means of tracking its effectiveness or particular difficulties it may create.  Those statistics will be used by the court to review the rule three years after its adoption.

Continue reading “The Wisconsin Supreme Court Amends Its Rules to Permit Citation of Unpublished Opinions, with Limitations”

Fastcase: Free Online Research for All Wisconsin Bar members

Posted on Categories Legal Writing, Wisconsin Court System1 Comment on Fastcase: Free Online Research for All Wisconsin Bar members

If you are a member of the Wisconsin State Bar, beginning in November you will have free access to Fastcase.  Fastcase is a searchable online database of federal and state law.  The product overview at the Fastcase website makes the service look user-friendly.   Its coverage is fairly deep too, including state cases back to 1950 or earlier.

I was wondering when a convenient but much lower-cost legal research service like this would become widely available.  It seemed inevitable that it would eventually happen.  I haven’t tried Fastcase yet, but I am going to do so and will follow up with my thoughts about the interface and more details about the coverage.   In the meantime, I would be very interested to hear from anyone who already has experience using the service.

Judge White Visits Her Alma Mater

Posted on Categories Milwaukee, Speakers at Marquette, Wisconsin Court SystemLeave a comment» on Judge White Visits Her Alma Mater

Yesterday’s On the Issues with Mike Gousha featured a conversation with Marquette Law School graduate and Milwaukee County Circuit Court Judge Maxine Aldridge White. Judge White’s journey from growing up in the Mississippi Delta as the daughter of a sharecropper to her current position on the bench is a compelling and inspiring one. Judge White reflected on her time at the Law School and how her experience here helped shape and influence her career. In particular, she pointed to the support and guidance provided her by Professor Phoebe Williams. Continue reading “Judge White Visits Her Alma Mater”