Favorite Wisconsin Cases to Teach: State v. Stewart

Kodanko waits alone for the bus in a three-sided plexiglass bus shelter in downtown Milwaukee.  Three men approach.  Stewart and Moore enter the bus shelter, while their companion, Levy, remains outside.  They block Kodanko’s exit from the shelter.  Stewart says to Kodanko, “Give us some change, man.”  When Kodanko refuses, Stewart repeats his request three or four time in an increasingly loud voice.  Stewart then begins to reach into his coat.  Moore says, “Put that gun away.”  At the same time, Levy enters the shelter and tells his companions, “Let’s go.”  The three of them enter a restaurant across the street.  Moore returns a few minutes later to make small talk with Kodanko.  In due course, the police arrest Stewart for attempted robbery.  But was it really a robbery attempt, or just aggressive panhandling?

This is the subject of State v. Stewart, 420 N.W.2d 44 (Wis. 1988), which I teach in my Criminal Law course.  The case resonates with me on several different levels.

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

Favorite Wisconsin Cases to Teach: State v. Oakley

It’s unusual for a law review in one state to devote an issue to a decision from the supreme court of another state, but that’s exactly what happened when the Western New England Law Review published a 2004 symposium issue concerning State v. Oakley, 629 N.W.2d 200 (Wis. 2001).  I personally welcome the opportunity to teach and, in the process, critique the decision.

The case involved David Oakley, who fathered nine children with four women and was impossibly behind on his child support payments.  Manitowoc County Circuit Court Judge Fred Hazlewood placed Oakley on probation following his conviction for refusing to support his children.  However, the probation was conditioned on Oakley having no more children until he could support the ones he already had.  A four-judge majority of the Wisconsin Supreme Court confirmed Hazlewood’s order. 

Commentators predictably discussed the decision’s ramifications for the right to procreate and the larger right to privacy. 

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