Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer

Posted on Categories Wisconsin Criminal Law & Process, Wisconsin Supreme CourtLeave a comment» on Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer

Supreme Court sealThe Wisconsin Supreme Court recently considered a number of petitions for review and voted to accept six new cases.  (As I said before, I am planning to write here whenever the Wisconsin Supreme Court accepts new cases.  This is the second of that series.)

The cases accepted today include three criminal cases and three civil cases.  This post describes only the three criminal cases.  I’ll blog next about the civil cases.

Probably the most interesting of the three criminal cases is State v. Welda, 2007AP2024-CR.  State v. Welda presents questions of interpretation and constitutionality of Wisconsin’s disorderly conduct crime and hate crime enhancer penalty.  The underlying charges stem from incidents in which three Janesville residents used offensive racial epithets against a number of African-American residents, including two children.  State v. Welda, 2008 WI App U 135, ¶ 2-5.  When police arrived at the scene, 10-15 residents had gathered in the area of the disturbance.  Id. ¶ 2. In addition to describing their African-American neighbors with inflammatory racial epithets, one of the Defendants also waved a Confederate flag during the incident, and two of the Defendants continued to speak the racial epithets after police directed them not to stop.  Id. ¶ 3-5. Continue reading “Wisconsin Supreme Court Accepts Six New Cases, Will Consider Constitutionality of Hate-Crime Penalty Enhancer”

New Sick Pay Ordinance May Lead to Rejuvenation of Milwaukee Equal Rights Commission

Posted on Categories Labor & Employment Law, Milwaukee, Wisconsin Law & Legal SystemLeave a comment» on New Sick Pay Ordinance May Lead to Rejuvenation of Milwaukee Equal Rights Commission

Books The Milwaukee Journal-Sentinel has the scoop:

Milwaukee’s dormant Equal Rights Commission could be back in business early next year – just in time to enforce the city’s controversial new sick pay ordinance.

On Tuesday, the Common Council will consider legislation to reconstitute the body with a focus not only on the sick pay measure, but also on the city’s own equal rights performance and on forms of discrimination that aren’t covered by state or federal laws. If that measure is approved, Mayor Tom Barrett will nominate a slate of seven panel members for confirmation in January, mayoral aide Leslie Silletti told the council’s Judiciary & Legislation Committee last week.

The Equal Rights Commission was founded in 1991 to investigate complaints of discrimination in housing and employment.

But the commission disbanded in 2003, amid complaints that former Mayor John O. Norquist’s administration never gave the seven-member panel the resources it needed to do its job. Since then, a single staffer in the city Department of Employee Relations has been carrying out the body’s mission, investigating some complaints himself and referring others to state and federal agencies . . . .

Continue reading “New Sick Pay Ordinance May Lead to Rejuvenation of Milwaukee Equal Rights Commission”

Marquette Legal Writing Professors Contribute to Column in Wisconsin Lawyer Magazine

Posted on Categories Legal Education, Legal Writing, Wisconsin Law & Legal System2 Comments on Marquette Legal Writing Professors Contribute to Column in Wisconsin Lawyer Magazine

Beginning with the current issue, the Wisconsin Lawyer magazine (a publication of the Wisconsin State Bar) will publish  a new column on legal writing.  The first contributor is the most experienced legal writing professor on the Marquette faculty, Jill Hayford.

As the magazine explains,

Through this new column, the legal writing faculty at Marquette University Law School and other contributors will help solve your vexing legal writing questions with practical guidance. 

Professor Hayford’s piece is entitled, “Style Books, Web Sites, and Podcasts:  A Lawyer’s Guide to the Guides,” and it offers up-to-the-minute information and advice about the available writing style manuals, websites, and pocasts for lawyers.  In a sidebar, the Wisconsin Lawyer invites questions or ideas for future columns about legal writing.  “Your question will be answered directly by the MU writing faculty and may appear in a future column.”  If you want to submit a question for the column via Wisconsin Lawyer, email wislawyer@wisbar.org, subject line:  legal writing.

SCOWIS to Consider Scope of Ministerial Exception

Posted on Categories First Amendment, Religion & Law, Wisconsin Law & Legal System2 Comments on SCOWIS to Consider Scope of Ministerial Exception

Earlier this fall, the Wisconsin Supreme Court granted a petition for review in Coulee Catholic Schools v. Labor and Industry Review Commission. The decision below is here

The case involves the scope of the ministerial exception to age discrimination claims under the Wisconsin Fair Employment Act. The complainant, Wendy Ostlund, was a teacher in a Catholic grade school who had been laid off. While certain of her duties were explicitly religious, e.g., she taught religion, led the students in prayer, prepared them for liturgies, and sometimes incorporated religious themes into secular subjects, most of her day was not spend in expressly religious activities.

The Court of Appeals held that the application of the exception turned on whether Ms. Ostlund’s primary duties were minsterial, i.e., did they consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . .” The exception applies only when a position is “quintessentially religious,” because it is such a position that presents the prospect of making an “inroad on religious liberty” that is “too substantial to be permissible.”

Continue reading “SCOWIS to Consider Scope of Ministerial Exception”

Wisconsin Supreme Court Accepts State v. Hoppe for Review, on Plea Colloquy Issues

Posted on Categories Criminal Law & Process, Wisconsin Criminal Law & Process, Wisconsin Law & Legal SystemLeave a comment» on Wisconsin Supreme Court Accepts State v. Hoppe for Review, on Plea Colloquy Issues

Supreme Court sealBeginning with this post, I will report here when the Wisconsin Supreme Court accepts new cases for review. I invite your comments.

Last week the Wisconsin Supreme Court voted to accept State v. Hoppe for review.  The issue presented, according the court’s press release, is “the extent to which a judge may rely on the contents of a plea questionnaire and waiver of rights form” in lieu of questioning the defendant on the record.   Continue reading “Wisconsin Supreme Court Accepts State v. Hoppe for Review, on Plea Colloquy Issues”

Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

Posted on Categories Federal Civil Litigation, Legal Practice, Legal Research, Wisconsin Civil LitigationLeave a comment» on Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?

A post at Legal Theory Blog alerted me to Amy E. Sloan‘s new article, If You Can’t Beat ‘Em, Join ‘Em:  A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN.  Amy Sloan is an Associate Professor of Law and Co-Director of the Legal Skills program at University of Baltimore School of Law.  She is well known to legal writing professors, and to many law students, as the author of a popular legal research textbook, Basic Legal Research: Tools and Strategies.

Sloan makes an interesting argument, advocating that Federal Rule of Appellate Procedure 32.1 be amended to assign non-precedential opinions a sort of “mixed” precedential value, specifically, that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.”  She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond[] to their position within the traditional hierarchy of federal decisional law.”   Continue reading “Should Non-Precedential Opinions Be “Precedential But Overrulable” Opinions?”

Update on Prior Restraint

Posted on Categories First Amendment, Political Processes & Rhetoric, Wisconsin Law & Legal SystemLeave a comment» on Update on Prior Restraint

The Court of Appeals has stayed the TRO, saying “we are aware of no caselaw which permits prior restraint of speech before an adjudication on the merits of the defamatory nature of the statement at issue.” It will, however, permit Radcliffe’s lawyers to submit a brief. I don’t think that’ll change anything.

Update: Having read the entire transcript of yesterday’s hearing, it appears that the court based its order on defamation, not because of constitutional concerns over 12.05 (he declined to entertain them), but because he thought that 12.05 did not provide for a civil action.

Prior Restraint in Black River Falls

Posted on Categories First Amendment, Political Processes & Rhetoric, Wisconsin Law & Legal SystemLeave a comment» on Prior Restraint in Black River Falls

This is astonishing.

On Friday, in Jackson County, a circuit court judge named Thomas Lister issued an ex parte temporary restraining order against an ad run by a group called the Coalition For America’s Families. The court found that the plaintiff, Radcliffe For Assembly, had demonstrated a reasonable likelihood of success on its claim that the ad violated Wis. Stat. § 12.05 in that it “may knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election. ”

The ad apparently stated that Mark Radcliffe, a Democratic candidate for the 92nd Assembly District, supports a health care plan that would double Wisconsin’s taxes, impose 15 billion dollars in new taxes, and represent a $ 510/month increase in taxes for every Wisconsin worker. (While news reports have said that the ad also claimed that the plan would provide benefits to out-of-state residents and illegal aliens, neither the complaint nor the restraining order mention any such statements.)

The order is extraordinary for a number of reasons. Continue reading “Prior Restraint in Black River Falls”

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 Culpability of Passive Abuse

Posted on Categories Criminal Law & Process, Family Law, Wisconsin Criminal Law & Process5 Comments on The Culpability of Passive Abuse

Last Friday, a Brooklyn mother was convicted of manslaughter in an infamous case that has, once again, led to soul-searching and overhaul of New York City’s child welfare system.  What is remarkable about this case is that the mother never struck a single blow; rather, her 7-year-old daughter was beaten to death by her stepfather.  Seven months ago, the stepfather was similarly convicted, and he is currently serving 26 1/3 to 29 years in prison.  Ironically, the mother could end up serving much more time than that, because she was also convicted of assault, unlawful imprisonment, and endangering the welfare of a child.

As any child advocate will tell you, the facts of cases such as this one are horrifyingly familiar: brutal beatings and sadistic tortures by one adult (in this case, the little girl was tied to chairs, held under cold water, and forced to use a litter box instead of a toilet), chilling acquiescence by another adult, and mistake after mistake by whatever public agency is supposed to prevent this kind of thing by early intervention into suspicious circumstances.  Nearly two decades ago another notorious New York case, which involved the beating death of another little girl, triggered a national discussion about accountability and responsibility on the part of the “passive” parent.  In that case, 6-year-old Lisa Steinberg was beaten unconscious by Joel Steinberg (who had illegally adopted her) while Steinberg’s partner, Hedda Nussbaum (pictured above), was in the next room.  Steinberg left the apartment for three hours, leaving the girl unconscious, and Hedda did not call for help until the next morning, when the child stopped breathing.  In the Steinberg case, though, Joel was convicted of the killing while all charges were ultimately dropped against Hedda.

Why the difference in outcomes?  Continue reading “The Culpability of Passive Abuse”

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”

Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals

Posted on Categories Wisconsin Civil LitigationLeave a comment» on Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals

Last week, the Fourth District Court of Appeals in Wisconsin ruled on a case involving a testator (Edward Schunk) who committed suicide and the inheritance rights of the family who survived him. Apparently, Edward was on a one-day pass from a hospital when he was found dead in a cabin which he owned. The death resulted from a single, self-inflicted shotgun blast to his chest. His will left property to his wife, to his daughter from his second marriage, and to some (but not all) of his six older children who were not Linda’s children. Five of those older children challenged the inheritance by the second wife (Linda) and child from that marriage (Megan) on the grounds that they had aided Edward in committing suicide, and thus should be barred from inheriting under a Wisconsin statute that forbids inheritance by persons who unlawfully and intentionally kill the decedent. Linda and Megan denied providing any help to the decedent’s suicidal act, and asserted that Edward had taken his gun and gone to the cabin without their knowledge. Continue reading “Suicide and Inheritance: A New Ruling by the Wisconsin Court of Appeals”