What’s Good for the Goose . . .

Earlier this week, a panel of the U.S. Court of Appeals for the Seventh Circuit issued its decision in In Re Sherwin-Williams Co. The court upheld Judge Lynn Adelman’s decision not to recuse himself from a case pending before him in the Eastern District of Wisconsin, Burton v. American Cyandamid, et al. 

Sherwin-Williams is currently before Adelman as a defendant in a personal injury action involving lead paint, heard in diversity jurisdiction. S-W believed “his impartiality might reasonably be questioned” (the relevant legal standard) because he had written an article defending the Wisconsin Supreme Court’s controversial lead paint decision in Thomas v. Mallett, 2005 WI 129.  (The article is Adelman & Fite, Exercising Judicial Power: A Response to the Wisconsin Supreme Court’s Critics, 91 Marq. L. Rev. 425 (2007)). In the article, Adelman defended the Court’s 04-05 term generally and praised Thomas particularly as a “positive development” which ensured that “the doors of the courthouse remain open.” Id. at 446. 

Based on this characterization, S-W sought his recusal in this case. 

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Judging Friday’s SCOWIS Decisions

On Friday, the Wisconsin Supreme Court released two opinions that reflect the court’s new jurisprudential direction. Allow me to focus on the opinion with a much greater discussion of jurisprudence. (The other is State v. Wood, a due process challenge to forced administration of medication in a state-administered facility to a person who had been found not guilty of a crime by reason of mental disease or defect.)

In State v. Smith, the Supreme Court upheld the state’s sex offender registration law for crimes which, in the particular instance, did not have an obvious sexual component. Smith had been convicted of false imprisonment of a minor, which is one of the crimes leading to sex offender registration. Smith brought as-applied equal protection and substantive due process challenges because his act of false imprisonment had no sexual motive or activity. 

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Strong Week for the Wisconsin Criminal Law System

3L Ron Tusler forwards an important bit of news regarding the Wisconsin criminal justice system:

Governor Doyle recognized on Monday that Wisconsin needs to do more to comply with the Sixth and Fourteenth Amendment.  The Sixth Amendment requires that “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”  Gideon v. Wainwright applied the Sixth Amendment to the states as a fundamental due process right.  372 U.S. 335 (1963).  The Gideon Court did not define indigency and the states are free to define it as they will.

Until Governor Doyle signed Senate Bill 263 into law, Wisconsin held an extremely low income threshold set in 1987.  As a student practitioner at the Outagamie County Public Defender’s Office last summer, the state required me to turn down individuals with less than $100 income per month.  Imagine telling someone with so little income that they were too wealthy for help.  That is a message many public defenders must deliver every day.  Imagine how many go on to inadequately represent themselves pro se.  Is that Constitutional?  I doubt the Gideon Court would approve. 

Continue ReadingStrong Week for the Wisconsin Criminal Law System
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