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 “Benefit Corporation” is a new corporation class and it may be coming to a state near you (if it hasn’t already). A benefit corporation (colloquially referred to as B-corp) is an entity type that seeks to blend profit and purpose.
In 2010, Maryland was the first state to adopt a benefit corporation law. Since then, about 30 other states have followed suit. As of October 2017, the Wisconsin legislature had a bill under consideration to create a benefit corporation statute.
What Exactly Is a Benefit Corporation?
Benefit corporations seek to create a material positive impact on society and the environment. These companies focus beyond the entrenched corporate purpose of profit maximization. Most states with benefit corporation statutes base these laws on the Model Benefits Corporation Legislation. Benefit corporations are required to (a) espouse a general/specific public benefit, (b) be accountable, and (c) be transparent.
This pursuit of public benefit could take various forms, such as: providing low-income communities with beneficial services; preserving the environment; improving human health; promoting the arts; or any other nonpecuniary purpose that could be of benefit to society or the environment.
For example, Better World Books, a benefit corporation, is an online book retailer that sells used and new books. For every book sold, it gives a percentage of its funds and unsold books to literacy foundations across the globe. Some other famous companies who have decided to go the benefit corporation route include Kickstarter, Etsy, and Ben and Jerry’s.
Benefit corporations are usually required to have some measure of accountability. This often entails measuring the provision of the corporation’s stated public benefit goal against an independent third-party standard.
Most benefit corporation statutes also require specific disclosures. Corporations are required to provide an annual benefit report to their shareholders regarding the corporation’s success or failures in delivering the espoused public benefit. Continue reading “The Rise of Benefit Corporations: Show me the Money…and the Good”
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.
The late Justice Antonin Scalia, a former administrative law professor, once began an address on Chevron deference by warning his audience to “lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture.” Perhaps that warning should preface this blog post, which also concerns administrative law. Of course Scalia’s comments that day turned out to be anything but “dull.” Broadly speaking, neither is the subject matter he covered: as the discipline concerned with governmental decision-making, administrative law issues confront nearly every legal practice in areas as diverse as taxation, environmental permitting and litigation, labor relations, and countless others.
In Wisconsin, the past five years have seen an unprecedented makeover in longstanding principles of state-level administrative law. These changes shift power away from agencies and toward courts, the legislature, and the governor. In this post, I divide the changes into three categories: 1) reductions in agency authority; 2) additions to the rulemaking process that, among other things, allow the Legislature to indefinitely block new rules; and, perhaps most importantly, 3) fundamental revisions to the doctrine of judicial deference to agency interpretations of law. Taken together, these developments deeply change the balance of power between agencies and the three branches of Wisconsin government.
Continue reading “The quiet revolution in Wisconsin administrative law”
Two pairs may not be the most powerful hand in poker, but they are definitely a winning combination for the Summer 2017 edition of Marquette Lawyer, the Marquette Law School magazine.
One pair in the magazine focuses on how long U.S. Supreme Court Justices should serve and, more broadly, how to assure confidence in the judiciary. Judge Albert Diaz of the U.S. Court of Appeals for the Fourth Circuit focused on this in the E. Harold Hallows Lecture he delivered at Marquette Law School in 2016. The magazine offers a lightly edited text of the lecture by Diaz, including his advocacy of ideas he presumes that few of his fellow judges would support. Paired with the text is a comment from Diaz’s colleague on the Fourth Circuit, Judge James Wynn, L’79. An interview and profile of Wynn accompany his comment. The Diaz text may be read by clicking here and the Wynn comment (and interview) here.
The other pair in the magazine offers provocative insights from two people who play leading roles in the tech world. Brad Smith, president and chief legal officer of Microsoft, made two appearances at Marquette Law School on November 15, 2016, delivering the Helen Wilson Nies Lecture on Intellectual Property and participating in an “On the Issues with Mike Gousha” program. A selection of his thoughts may be found by clicking here.
Ted Ullyot is currently a partner at Andreessen Horowitz, a leading venture capital firm in Silicon Valley, and he was formerly general counsel for Facebook—indeed, the lawyer who led the company in the process of going public. An edited version of Ullyot’s remarks at the Law School in a Helen Wilson Nies Lecture in April 2016 may be found by clicking here. Continue reading “Insights on Judiciary and Tech Industry Highlight New Marquette Lawyer Magazine”
Roughly six years ago the Wisconsin Legislature amended the expunction statute to permit certain felonies to be expunged. At the same time, the Legislature also permitted expunction for older offenders. Previously, defendants had to be under 21 to secure the benefits of expunction. Under the newly revised statute, defendants under 25 could now have certain crimes removed from their record.
Since the expunction statute was altered, Wisconsin law has been in disarray when it comes to analyzing the framework of expunction. For decades, judges had always “reserved” a defendant’s right to seek expunction. This was logical – judges naturally wanted to see how a defendant would do on probation before making the final decision. But the Court of Appeals, in an unfortunate ruling, found that the expunction statute barred such an approach. Now, judges have to do their best to analyze the proverbial “crystal ball,” making the decision to confer expunction at the time of sentencing, as opposed to making the decision after two or three years of probation. Continue reading “The Curious Nature of Expunged Offenses”
I’ve been asked to be the alumni blogger for the month of May. It’s about time!
For those who don’t know me, I am a criminal defense attorney in Wisconsin. I am currently the President of the Wisconsin Association of Criminal Defense Lawyers (WACDL). Because of this position, and the fact that I’ve practiced exclusively in the criminal defense field for 12 years, my posts will generally focus on defense-related issues.
In that vein, perhaps the most pressing criminal defense-related issue in Wisconsin remains the unconscionably low rate of compensation paid to lawyers who take appointments from the State Public Defender’s Office (SPD).
Here’s the nutshell version of what currently happens. Indigent defendants are constitutionally guaranteed representation by lawyers who work for the SPD. But the SPD obviously can’t handle all of the cases assigned to the agency. For one, there are cases with co-defendants, where ethical rules preventing conflicts of interest would preclude one “firm” from representing both defendants. In other situations, a flood of criminal prosecutions renders the SPD staff unable to handle all of the cases. Consequently, private attorneys will sometimes step up to the plate, and agree to take these cases.
These cases, known as SPD appointments, are paid at a rate of $40 an hour. Continue reading “After Thirty Years, It Is Time To Raise The Compensation for SPD Appointments”
Wisconsin Supreme Court Chief Justice Patience Roggensack wanted to use her Hallows Lecture at Marquette Law School on March 7 “to start what I hope will be a public conversation about a rising challenge to the institutional legitimacy of our courts, both state and federal.”
Roggensack launched the conversation with strong words for those she thinks are harming the standing of courts as a whole. She named names and spoke forcefully about the impact of those inside and outside the legal system who have disparaged some judges and justices in personal terms or who have said the Wisconsin Supreme Court and other courts make decisions based on political allegiances. She criticized what she called their “tough talk.”
“Most tough talk comes from those who have no conscious intent to harm the institutional legitimacy of courts, but have not considered the unintended consequences that may follow from their fully protected speech,” Roggensack said. Continue reading “Roggensack Calls for Defending Legitimacy of Courts from “Tough Talk” of Critics”
This is the second part of a three part series on Women in Wisconsin Law.
Although women were admitted to practice law in Wisconsin in 1879, it would be over one hundred years until the state’s first elected female county judge. In 1970, Olga Bennett, a native of Vernon County, was the first woman elected and sworn in as a county judge in Wisconsin.
Bennett was born on May 5, 1908, in Viroqua, Wisconsin. Education played an important role throughout Bennett’s life. In 1925 she graduated from Viroqua High School, and in 1928, she graduated with a bachelor of arts degree from the University of Wisconsin. After taking time following her undergraduate studies to work at a local bank, she returned to her studies four years later. After spending a semester at the Madison Business School, Bennett enrolled at the University of Wisconsin Law School in Madison, Wisconsin. In 1935, she graduated from law school and was admitted to the state bar.
Upon graduating, Bennett served as a law clerk for State Supreme Court Justice John D. Wickham for five years. Following this clerkship, she went into business with her father, who was also an attorney. Together they ran the Bennett and Bennett law firm. Before being elected to serve as a judge, Bennett held various positions in the legal community, including serving as the first female city attorney of Viroqua.
Although one might have expected that a larger county in the state, such as Madison or Milwaukee, would have been the first to elect a female county judge, it was small Vernon County with a population of only 28,000 that holds this title. In April 1969, Bennett ran and was elected to the bench in Vernon County (courthouse pictured above at left), defeating incumbent County Judge Larry Sieger who was appointed by the governor in 1968. In 1970, she took the oath of office and became the second woman to serve as a judge in Wisconsin. Continue reading “Women in Wisconsin Law: Olga Bennett”
To judge by some of the political rhetoric last fall, violent crime must be surging in our nation’s cities. Is that true? The answer may depend on which city you are talking about, and which neighborhood within that city.
Consider the contrast between Chicago and New York. The Windy City had about 762 homicides in 2016, while the Big Apple had just 334. The difference is shocking, especially when you consider that New York has three times Chicago’s population.
To some extent, the contrasting figures from 2016 reflect longstanding trends. Although murders did spike in Chicago last year, New York has been doing better than Chicago on this score for a long time. The two cities had essentially identical per capita homicide rates in the late 1980s, but New York’s fell much faster and further than Chicago’s in the 1990s. New York has maintained a wide advantage ever since.
Still, the dramatic widening of that advantage in 2016 should be of great concern to Chicagoans. The chart below indicates the trends in recent years, based on FBI data. Note that the two cities moved in sync from 2013 through 2015: homicides down the first year, basically unchanged the next, and then up a little in 2015. However, in 2016, even as Chicago’s homicides shot up, New York’s dropped back down to where they had been in 2013 and 2014.
One should not get the sense, however, that one faces a dramatically elevated risk of violence throughout the Windy City. Continue reading “Chicago, New York Heading in Opposite Directions on Crime; Where Does Milwaukee Stand?”
Ringing in the new year, the U.S. Bureau of Justice Statistics recently released its data on prisoners in the United States in 2015. After rising consistently for about four decades, the U.S. prison population (state and federal combined) peaked at a little over 1.6 million in 2009. Since then, the population has declined steadily, but very slowly. For 2015, the total was a little over 1.5 million, or about 35,000 less than 2014. The continued reductions are encouraging, but must be kept in perspective: the population remains many times above its historic norms. The current rate of 458 prisoners per 100,000 U.S. residents is over four times greater than the long-term rate of about 100 per 100,000 from before the imprisonment boom. We are still very much in the era of mass incarceration.
The Wisconsin numbers continue to be lower than the national norms, but are moving in the opposite direction. At yearend 2015, Wisconsin’s prison population numbered 22,975, up 1.7 percent from 2014. This amounts to 377 prisoners per 100,000. By comparison, Minnesota’s rate was just 196 per 100,000.
Here are a few additional observations: Continue reading “U.S. Prison Population Continues Slow Decline; Wisconsin’s Inches Up”
On October 20, I had the honor of moderating a panel discussion at the Law School devoted to Voting Rights Litigation in Wisconsin. The event was co-sponsored by the Marquette University Law School Student Chapter of the American Constitution Society and the Milwaukee Chapter of the American Constitution Society (ACS). A crowd of approximately 60 persons witnessed a lively presentation on the right to vote under the U.S. Constitution, recent legislation in Wisconsin that places burdens on the ability of some people to vote in our State, and the status of litigation in the federal courts challenging these state laws.
The event began with a welcome from the Chair of the Milwaukee Chapter of the ACS, Attorney Craig Mastantuono. Attorney Mastantuono began with a description of the mission of the American Constitution Society and the benefits of membership. He also noted the excellent timing of the day’s event, given the attention currently being given to the integrity of the American voting system. Then Attorney Mastantuono introduced the Mayor of Milwaukee, the Honorable Tom Barrett.
Mayor Barrett began his remarks by providing the Marquette University law students in attendance with a bit of career advice: namely, the importance of being nice to your colleagues in the workplace. Turning to topic of the federal judiciary, Mayor Barrett criticized lawmakers who impose litmus tests on judicial appointees, in a misguided attempt to ensure that there is “only one type of thinking in our court system.” Mayor Barrett also expressed his disappointment in the fact that Wisconsin is no longer a national leader in ensuring access to the ballot, and criticized recent state laws that have made it more difficult to vote in the City of Milwaukee. Finally, while he touted the benefits of early voting as a means of improving ballot access, the Mayor explained that there are limits to the City’s ability to expand the early voting process due to the City’s interest in maintaining a well-administered voting process. Continue reading “ACS Panel Explains Voting Rights Litigation in Wisconsin”