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.

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Musings on Residential Segregation

I was interested to see a  discussion on residential racial segregation in Milwaukee on the Political Environment Blog run by former journalist and Mayor Norquist aide Jim Rowen.

I was once absorbed in this debate. As a young associate at Foley & Lardner, I was part of the defense team representing twenty-four suburban school districts who were sued by the Milwaukee Public Schools. MPS sought a metropolitan-wide integration plan. We tried the case for a few months and then it settled on terms largely favorable to the suburbs.

I was in charge of the “housing” case, i.e., our response to the plaintiffs’ claim that residential racial segregation (causing school segregation) was caused by discriminatory government practices over a period of fifty years or so. Very heady stuff for a young lawyer still north of thirty.

I have kept up with the issue casually since then but I think that there were three important things that we learned then that are still relevant today.

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Judge Extends Preliminary Injunction in NFL Doping Case

 

Judge Paul Magnuson extended his preliminary injunction barring the NFL from suspending Minnesota Vikings players Kevin Williams and Pat Williams and New Orleans Saints players Charles Grant, Deuce McAllister, and Will Smith for testing positive for bumetanide, an undisclosed banned substance in Starcaps, until a full hearing on the complex issues in this litigation is held. As a practical matter, this means these players will remain eligible to play through the NFL regular season.

The National Football League Players Association (NFLPA) is seeking to vacate two arbitration awards by Jeffrey Pash, the NFL’s chief legal officer, ruling that the players violated the NFL’s strict liability drug testing policy and should be suspended for four games.  The NFLPA contends that independent administrator of the NFL’s drug policy, a consulting toxicologist, and the NFL’s vice president of law and labor policy (who worked under Pash’s supervision) knew that Starcaps, a dietary supplement, contained bumetanide but deliberately failed to communicate this information to the NFLPA or the players in breach of their fiduciary duty.  The union also asserts that Pash’s arbitration rulings were biased and violated public policy by condoning this breach of fiduciary duty in violation of New York law.

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