Political Tidbits August 30, 2006

The latest report from The Hamilton Consulting Group includes assessments of the State Senate Races and the State Assembly Races and

Doyle Directs 90 Percent Mercury Reductions

State Audit Committee Holds Hearing

Road to the Future Committee Hears Transportation Needs

Midwest U.S. – Japan Conference in Indianapolis
September 10 – 12

New Report Shows Impact of Single Sales Factor Tax Reform

We the People to Host Gubernatorial Debates

Clinton to Support Doyle at Fundraiser

Bush Signs Health Care Measure

The real plan all along

"Groups like Acorn thrive off a 1960s philosophy which holds that the worse things are, the better. The more Acorn's policies thwart the free market, stymie efforts to make government more efficient and saddle the poor with bad stores and lousy services, the more Acorn can lobby for government aid to cure the ills of our society—all funneled through Acorn-run programs, of course."

It applies to health care, as well. It's no coincidence that every law designed to increase health care coverage actually creates more uninsured. These people know very well that if they cause enough people to be uninsured, they can manufacture the votes needed for a completely socialist health care system.

Consumer protection laws

Apparently, abuse of state consumer protection laws isn't just a Wisconsin problem, as James Copland and Sherman Joyce discuss (and in the left-wing National Law Journal, of all places).

CGL insurers liable for misrepresentation

Notwithstanding Everson v. Lorenz, in which the Supreme Court made clear that a CGL policy does not provide coverage for the insured's common law misrepresentations, the Wisconsin Court of Appeals held the insurer is liable for statutory misrepresentations.

The effect, of course, is to nullify policy exclusions for misrepresentation, since every common law misrepresentation claim these days also includes a statutory claim that authorizes double damages and attorney fees.

RSS: Making the Internet Subscribeable

from the Wisconsin Lawyer, this article by by Bonnie Shucha of WisBlawg

Appellate Opinions Released August 29, 2006

The Wisconsin Supreme Court is in recess.

The Wisconsin Court of Appeals released these opinions today, recommending the following for publication:

Lonergan v. Employers Mutual Casualty (law firm may not intervene in a closed personal injury lawsuit to litigate a fee dispute with a former associate who represented the plaintiff in the case)

Access As Easy As Tuning In

An article in The Third Branch

The next time you see someone pop on the headphones and get that faraway look in his or her eyes, don't be so sure it's a tune that's beguiling them. It just may be the latest oral arguments from the Seventh Circuit. The circuit is the first federal court of appeals to make RSS feeds of opinions and audio recordings of oral arguments available from its Web site.

The Third Branch is the newsletter of the federal courts, not to be confused with The Third Branch, the newsletter of the Wisconsin courts.

(via WisBlawg)

Appellate Opinions Released August 28, 2006

The Wisconsin Supreme Court is in recess.

The Wisconsin Court of Appeals did not release any opinions today.

Flexible Standards, Deferential Review: Daubert's Legacy of Confusion

Cassandra H. Welch in the Harvard Journal of Law & Public Policy Volume 29, Number 3 (Summer 2006) [21 pp. pdf]

Oral argument week of August 27, 2006

The Wisconsin Court of Appeals has scheduled oral argument in the following.

at Dist. III Courtroom, 2100 Stewart Ave., Suite 310, Wausau

08/28/06 02:00 p.m. Kevin Mahner, et al v. REW Motors, Inc., et al 2005AP1927

Trio explain viewpoints on the law

Karen Weil in the Sierra Vista Herald on the upcoming election for Judge of the Superior Court Div. 1, Cochise County, Arizona

Bar seeks feedback on Act 442

Our State Bar's Inside the Bar newsletter reports

Act 442 [4 pp. pdf] provides that a responsive pleading must be made within 20 days, except that a 45-day period applies in the following cases: 1) the defendant is the state or an officer, agent, employee, or agency of the state; or 2) the defendant in an action is an insurance company or the complaint alleges that a tort occurred.

The State Bar's Litigation Section seeks feedback from Bar members regarding problems posed by Act 442.

7th Circuit rebukes Wisconsin AG

The Attorney General's analysis of a garden-variety issue concerning sovereign immunity caused the Seventh Circuit to issue this upbraiding:

"These cases [a litany of recent sovereign immunity decisions of the U.S. Supreme Court], taken as a whole, demonstrate that the Court has taken care to draw important, and sometimes subtle, constitutional lines in this area. Both for that reason, and for reasons requiring basic courtesy to the courts, we find much of the rhetoric in WDOC’s brief to be entirely out of line. It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making 'remarkably intransigent statements,' or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about 'polarizing declarations.' The tradition of writing dissenting opinions has existed in the United States Supreme Court since the beginning of the Republic, and every Justice on the Court avails himself or herself of that privilege when he or she deems it appropriate. Counsel’s brief is also less than helpful where it draws bizarre analogies to opinions about the current presence of American troops in Iraq, which has absolutely nothing to do with this case. We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court."

Appellate Opinions Released August 25, 2006

The Wisconsin Supreme Court is in recess.

The Wisconsin Court of Appeals did not release any opinions today.

Appellate Opinions Released August 24, 2006

The Wisconsin Supreme Court is in recess.

The Wisconsin Court of Appeals released these opinions, recommending the following for publication:

Stern v. WERC (timeliness of a challenge to discharge from State employment).


State v. Grady (appellate courts may not review a circuit court's alleged failure to consider sentencing guidelines).

"Living Constitution" hypocrisy

Jonah Goldberg at NRO on ultra-left wing hypocrisy.

"Long before the concept of a living Constitution was hatched, the authors of the original version — as well as the courts interpreting it — understood that the executive branch has the authority and flexibility to conduct foreign policy and wage war. Terrorists may be criminals, but they aren’t merely criminals. They’re waging war against us and doing so in ways never imagined by the founders. They don’t want territory or treaties, and they don’t use armies and cannons. They want to make our own technology and freedoms into weapons they can use against us."

"And so here is the real absurdity of the 'living Constitution' school. Where the Constitution is supposed to be inert, they want it alive and mutating. But where the Constitution was intended to be flexible, complete intellectual rigor mortis has set in."

Appellate Opinions Released August 23, 2006

The Wisconsin Supreme Court is in recess.

The Wisconsin Court of Appeals released these opinions today, recommending the following for publication:

Converting/Biophile Laboratories, Inc. v. Ludlow Composites, Corp. (forum selection clause identified permissive, not exclusive forum for litigation).


State v. Cibrario (soundness of plea colloquy).


Stuart v. Weisflog's Showroom Gallery, Inc. ("Your work" and "your product" business risk exclusions in a CGL policy do not apply to misrepresentation claims brought under Wis. Admin. Code sec. 110.02).

Think Globally; Act Locally -- Support Wal-Mart

Michael Strong at TCSDaily documents how much more Wal-Mart has done to alleviate poverty than any sanctimonious do-gooder ever has.

Non-Guideline sentence vacated

A non-Guideline sentence must be based on factors particular to the defendant, rather than common to all or many defendants, the Seventh Circuit held.

Also, the policy of the Guidelines is that the sentence be computed based on intended loss, rather than actual loss.

Thus, the fact that the defendant was only able to appropriate a portion of the intended loss is an improper basis for a below-Guideline sentence.

Split of authority on presumption of reasonableness

Just one week after the Seventh Circuit held that the presumption of reasonableness for guideline sentences only applies on appeal, a different panel held that the presumption applies both in the court of appeals and at the district court.

Board approves Ethics 2000 Review Committee final recommendations, section request to file amicus

Our State Bar's Inside the Bar newsletter reports on the July 21, 2006 meeting of the Board of Governors.

Appellate Opinions Released August 22, 2006

The Wisconsin Supreme Court is in recess.

The Wisconsin Court of Appeals released these opinions today, none of which were recommended for publication.

The Ideological Stakes of Eliminating Life Tenure

Ward Farnsworth in the Harvard Journal of Law & Public Policy Volume 29, Number 3 (Summer 2006) [11 pp. pdf]

Appellate Opinions Released August 21, 2006

The Wisconsin Supreme Court is in recess.

The Wisconsin Court of Appeals released these opinions today, neither of which was recommended for publication.

The Third Branch Summer 2006

The latest issue of the Wisconsin court system newsletter [19 pp. pdf]

(via The Wheeler Report)

Young Lawyers Flock To Chertoff & Rumsfeld

Anna Schneider-Mayerson in The New York Observer

For lawyers troubled by the dimensions of this looming threat--be it to the nation’s security or its support for human rights--this is a time like no other. Since the attacks of 9/11 and President Bush’s declaration of a war on terror brought newfound attention to the category of law practice surrounding these issues, it’s become one of the most glamorous and sought-after fields, filled with new opportunities for lawyers.

What is Left? What is Right?

The American Conservative asks

1. Are the designations “liberal” and “conservative” still useful? Why or why not?

2. Does a binary Left/Right political spectrum describe the full range of ideological options? Is it still applicable?

Andrew J. Bacevich, Jeremy Beer, Austin Bramwell, Patrick J. Buchanan, John Derbyshire, Ross Douthat, Rod Dreher, Mary Eberstadt, Nick Gillespie, Paul Gottfried, Jeffrey Hart, Nicholas von Hoffman, James Kurth, Michael Lind, John Lukacs, Heather Mac Donald, Scott McConnell, Kevin Phillips, James P. Pinkerton, Justin Raimondo, Llewellyn H. Rockwell Jr., Claes G. Ryn, Kirkpatrick Sale, Phyllis Schlafly, Fred Siegel, Taki Theodoracopulos, Philip Weiss, Chilton Williamson Jr., Clyde N. Wilson, and John Zmirak respond.

Oral argument week of August 21, 2006

The Wisconsin Court of Appeals has scheduled oral argument in the following.

Dist. III at Dist. III Courtroom, 2100 Stewart Ave., Suite 310, Wausau
08/22/06 01:30 p.m. Kevin Summers, et al v Touchpoint Health Plan, Inc., 2005AP2643

August 18, 2006 summer barbecue

with summer associates and law students. Here are some photos from the event.

Here are our past chapter events.

Administrative Register effective August 15, 2006

The Revisor of Statutes Bureau has issued the first half of No. 608 [25 pp. pdf] which includes:

Emergency rules now in effect.
Submittal of rules to legislative council clearinghouse.
Rule−making notices.
Submittal of proposed rules to the legislature.
Rule orders filed with the revisor of statutes bureau.

Appellate opinions released August 17, 2006

Wisconsin Court of Appeals opinions (none recommended for publication)

Appellate opinions released August 16, 2006

Wisconsin Court of Appeals opinions (none recommended for publication)

Appellate opinions released August 15, 2006

Wisconsin Court of Appeals opinions including recommended for publication:

G. Vaughn Stone v. Acuity (failure to notify policyholder that underinsured motorists coverage available with umbrella liability coverage endorsement as required under Wis. Stat. sec. 632.32(4m) basis for reforming policy to include it)

Milwaukee County Personnel Review Bd. v. David A. Clarke (Milwaukee County Sheriff did not have the authority to demote a deputy while the Sheriff's petition to demote the deputy was pending before the Personnel Review Board)

Romney aided conservative groups

Cristina Silva reports in the Boston Globe

The Tyler Charitable Foundation, headed by [Massachusetts Governor Mitt] Romney and his wife, Ann, gave $25,000 each to the Heritage Foundation and the Federalist Society for Law and Public Policy Studies, two nonprofit groups based in Washington that are pillars in the conservative community. Romney addressed both groups in 2005 and 2006.

How to Take an Out-of-State Deposition

by Victoria C. Fitlow of Wrona, Fitlow, Kozak & Easterly in Park City, Utah. Originally published in the Utah Bar Journal (Feb/Mar 2001).

...the best I've seen on the subject, even though it is dated.
--Dave Stratton

(via CLEW Section, CPCU Society)

"Partial no-merit briefs" not required.

The Wisconsin Court of Appeals held that, if a defendant waives a potentially meritorious issue for appeal, he has no right to a "partial no-merit brief" on those issues he considers meritorious, but which his counsel deems frivolous.

From what I can tell, the Seventh Circuit feels differently about the subject.

WOW!

Even though the defendant and the DOJ both contended that the ex post facto clause prohibits using a harsher version of the sentencing guidelines than the one in effect when the crime was committed, the Seventh Circuit held that, because the guidelines are now only advisory, the ex post facto clause no longer applies.

No word yet on what the DOJ plans to do.

Weenie Roast

Elspeth Reeve's defense of Ann Coulter at TNR Online

(via KausFiles)

Daubert Online

from DRI, Volume 1, Issue 3

Don't Let Legal Taining Interfere with the Practice of Law

Experts, Gatekeepers, and Insurance Issues in Federal Cases.

The Second Daubert Tutorial:

Circuit reports

Daubert and the Matchbook Claims Expert

Daubert Having Little Effect on Expert Witness Consulting

Idiots at play

Somehow, I doubt the ABA will be asking any questions about why this law school is accredited.

Term Limits for the Supreme Court: Life Tenure Reconsidered

Steven G. Calabresi & James Lindgren in the Harvard Journal of Law & Public Policy Volume 29, Number 3 (Summer 2006) [109 pp. pdf]

Oral argument week of August 13, 2006

The Wisconsin Court of Appeals has scheduled oral argument in the following.

at Dist. II, 2727 North Grandview Blvd., Waukesha

08/14/06 09:30 a.m. State v. Jordan D. Starling 2005AP2989-CR

08/16/06 09:30 a.m. Barbara L. Grumbeck v. Jeffrey S. Grumbeck 2005AP2512

Political Tidbits August 11, 2006

The latest report from The Hamilton Consulting Group.

State Audit Finds Need for Changes

Study Finds HIRSP in Sound Financial Position

WISTAX: State-Local Governments Spend 21.9 Percent of Income

Governor Pushes Plan to Double Number of E-85 Pumps

Cities Receive Grants to Improve Access to Crime-Fighting and Homeland Security Information

Wisconsin Joins Petition Requiring Disclosure of Pesticide Ingredients

Weeklong Mercury Conference Hosted in Madison

Weeklong Mercury Conference Held in Madison

President Bush in Green Bay for Gard Fundraiser

Nowakowski is ‘chief of chiefs’

Chief Judge Michael N. Nowakowski, a judge of the Circuit Court of Dane County and Chief Judge of the Fifth Judicial Administrative District, has been elected chair of the Committee of Chief Judges.

Supreme court schedules Ethics 2000 open administrative conference

Our State Bar reports that by Supreme Court Order No. 04-07 [2 pp. Word]

The Wisconsin Supreme Court will discuss final issues relating to the proposed draft petition to amend the Supreme Court Rules, Chapter 20 Rules of Professional Conduct for Attorneys and will determine the appropriate effective date for amendments at an open administrative conference on Oct. 25 at 9:30 a.m.

Appellate opinions released August 10, 2006

Wisconsin Court of Appeals opinions including for publication

State v. Dion W. Demmerly (circuit court had no obligation to override waiver of conflict of interest permitting attorney to also represent defendant's brother)

State v. Robert L. Kruse (while circuit court should have determined if probable cause for hearing in conflicting reports on whether defendants still a sexually violent person, rather than by judging relative weights of reports, more favorable report did not show probable cause)

Richard A. Ford v. Mike Holm (failure to file a partial no-merit report not ineffective assistance of counsel)

Barwatch Bulletin, August 9, 2006

The Federalist Society's national office emails.

The American Bar Association's Annual Meeting takes place in Honolulu from Thursday, August 3 to Tuesday, August 8. Once again, ABA WATCH will be reporting live from the meeting.

The ABA House of Delegates met on Tuesday to deliberate on a number of policy recommendations. What follows is an update:


Presidential Signing Statements

Neal Sonnett, chairman of the ABA Task Force on Presidential Signing Statements and the Separation of Powers, launched the discussion. He discussed the genesis of the Task Force, as prompted by a Boston Globe article by Charlie Savage. He noted that many of his colleagues had never heard of signing statements. According to Sonnett, "It's an important issue because the Supreme Court states that our system of separation of powers ‘is essential to the preservation of liberty.'" Quoting Justice Anthony Kennedy, he said his Saturday speech to the ABA on the rule of law was very germane to the ABA's discussion: "The law is superior to and thus binds the government and all of its officials. Part of the rule of law is the ability to know what the law is." According to Sonnett, "If the President doesn't enforce laws or comply with the provisions of laws, citizens do not know what the law is. The use of signing statements threatens our constitutional system of checks and balances and separation of powers and thereby rips at the very fabric of our democracy." Sonnett noted the task force's diversity and heralded all of its "hard work" in arriving at its conclusions. "We're not condemning signing statements," Sonnett emphasized. "We believe only that the misuse of presidential signing statements must be condemned... In the final analysis, this is a critical issue. The ABA has an obligation to defend liberty and pursue justice. We must stand up for the separation of powers and the constitutional system of checks and balances."

Thomas Susman of the task force described an amendment that changed a few words of the proposal. It now reads that the "ABA opposes, as contrary to the rule of law and our constitutional system of separation of powers, the MISUSE (rather than issuance) of presidential signing statements BY CLAIMING the authority or STATING the intention to disregard or decline to enforce all or part of a law the President has signed, or to interpret such a law in a manner inconsistent with the clear intent of Congress." The amendment will address some of the critics' concerns. He declared, "It's the President's flagrant, routine, misuse of that piece of paper, that signing statement, to avoid a veto or the ability of Congress to get the last word or avoid the Judiciary's ability to declare it unconstitutional." The task force did not rule out the use of signing statements, but "in the end what we condemn is not the use of the signing statement, but the misuse of the signing statement."

A Mississippi delegate, Scott Welch, offered a motion to postpone the recommendation indefinitely. He stated, "The amendment expressed concern expressed by the Administrative Law Section the tone of the report itself makes it clear to us all that we are treading on very dangerous area here that I suggest is not to remain either to pursuing justice or defending liberty. The report comes to us as a late report with a genesis of the article in a Boston newspaper less than three months ago and remarks by Senator Leahy... I suggest to you that since the report says that the use of the signing statements has been going on since 2001, I don't know why it took the Boston Globe and Senator Leahy to make this discovery. There is no urgency to consider this report... There are constitutional issues involved here, and there are those in this organization who have equal knowledge of constitutional law [to those on the task force]. I suggest to you that this is untimely." He maintained that the ABA should not restrict the President's freedom of speech in expressing his concerns about the constitutionality of a piece of legislation, and he notes that other presidents have done this. "While we speak about the separation of powers, we leave aside the judicial branch. If there is something wrong with the use of signing statements, then the courts can deal with it and there are lawyers out there who will raise those issues in the courts." This report, he concludes, is not germane.

Kathy Bird, State Delegate from Ohio, supported the motion to postpone. "The credibility of the position that we ultimately take... will be enhanced only if we take the time to do it right." She claimed that the amendment does not sufficiently take care of concerns. The word "misuse" still implies that every use of a signing statement is a "misuse." However, she conceded that President Bush has issued too many signing statements.

ABA President Michael Greco expressed his strong opposition to the motion to postpone. He stated, "Protection of the Constitution of the United States and the separation of powers is germane. The motion made by Scott Welch would defer action on a matter that America at this moment is waiting for the action of this House... I've never seen such attention in my 35 years [in the ABA] to an issue." He noted he had received hundreds of letters supporting the resolution, some with "tearful support." Greco declared, "America is waiting for the action of this House on this issue. To defer is to encourage what is going on." If we wait indefinitely, the number of presidential signing statements "will be in the thousands, 1,500... The issue is, 'May the President issue a statement after he has signed the bill that misuses that instrument?'... No other American has the power to tie the hands of Congress." The power is not found in the Constitution, according to Greco. He affirmed that the President can only sign a bill in total or veto the bill. "We are on dangerous ground," he warned. Addressing the earlier criticism, he exclaimed, "Scotty, you said that this is untimely and not germane. It is never the wrong time to do the right thing! This is the time that the ABA and the legal profession are looked to to defend the very institution of our government, and if we wait six months, a year, what will be different? Nothing will be different... What more does this House need to act? The American people are waiting for your vote."

Stephen Saltzburg also addressed the importance of this as a practical matter. He used the example of Abu Ghraib and the torture memo, as the Task Force described the Detainee Treatment Act as an example of a "misused" signing statement. He suggested sarcastically that the President, instead of issuing signing statements, should declare, "I am above the law that Congress enacts." He urged that the motion to postpone be rejected: "If you believe that this is one of the grave threats...then you will vote to reject this motion." Mark Agrast and Neal Sonnett also spoke to refute some of the "misinformation" of the bill. Sonnett explained that there was sufficient time to consider the issue, and that the experts on the task force "worked hard to reach the right result." Time would not change the task force's conclusion. He also attempted to refute the "free speech" argument. The President can use signing statements to offer his perspective on the "meaning, purpose, and significance" of the bill. He cannot use them to declare a bill unconstitutional as "the law is above the President... No president is above the law."

After an hour of debate, the motion to postpone indefinitely was defeated 272-99. Steve Krane, a delegate from New York, spoke in his individual capacity against the task force report. Although the task force compiled a "compelling case," he stated that there is another conclusion: the president has the power under the Constitution to do what the task force condemns. According to Krane, "The president has an obligation to not enforce unconstitutional parts of statutes under the clause of the Constitution that requires him ‘to take care that the Laws be faithfully executed.'" Many bills that reach the President contain at least one unconstitutional clause; he stated, "The president's oath of office, mandated in the text of the Constitution, by which he swears to ‘preserve, protect, and defend the Constitution,' necessarily requires that he form a judgment as to what the provisions of the Constitution mean." Thus, Marbury vs. Madison stands for "judicial review," not "judicial supremacy."

The proposal was adopted by a voice vote.


Other Recommendations

Gender Identity Discrimination: Recommendation 122B, sponsored by the Individual Rights and Responsibilities Section and six other cosponsors, urges legislation against actual or perceived gender identity discrimination. According to the sponsor, this "much needed" recommendation is based on the ABA's underlying commitment to equal opportunity and its principle that no individual should be denied civil rights based on membership in a minority group. Although no one spoke in opposition to this recommendation, a few House of Delegates members could be heard voicing their opposition during the vote. Nevertheless, the proposal was adopted.

Billable Hours: The Litigation Section and four other cosponsors proposed that law firms consider alternatives to mandatory minimum billing requirements that would reduce undue emphasis on billable hours and compensation systems that recognize and reward attorneys on factors other than billable hours. The recommendation was unanimously adopted.

Pro Bono Service: The Commission on Renaissance of the Idealism in the Legal Profession and 15 cosponsors offered Recommendation 121A, urged a "spirit of service" by encouraging lawyers to perform pro bono service. The Commission was a major initiative of ABA President Michael Greco. The proposal was unanimously adopted. Two other recommendations concerning increased information and access of pro bono service were both adopted.

Death Penalty: Recommendation 122A, offered by the Section of Individual Rights and Responsibilities (IRR), the Death Penalty Moratorium Implementation Project, the Death Penalty Representation Project, and eight other cosponsors, urged each death penalty jurisdiction to implement specific policies and procedures as it relates to mental illness. Elisa Frazier, the Section delegate, addressed the House. She noted that the recommendation does not endorse the death penalty, but sets standards in accordance with the Atkins decision. The recommendation was adopted.

Stephen Saltzburg, speaking for the Commission on Effective Criminal Sanctions, withdrew six recommendations. He told the House of Delegates that the National District Attorney Commission asked that the recommendations be withdrawn so they could collaborate with the ABA on the policy. The recommendations will be considered at the ABA Midyear Meeting in February.

Recommendations 302A and 302B, sponsored by the Task Force on Attorney-Client Privilege and thirteen other entities, concerned the preservation of the attorney-client privilege. The sponsor stated that the executive branch, not the courts, retained the discretion as to the application of attorney-client privilege—whether it is the Department of Justice or at the state level, per Elliot Spitzer. He urged a strong grassroots effort to promote this initiative, which has support from numerous bars, the ACLU, and the Chamber of Commerce. The recommendations were unanimously approved.

Here are archives of Bar Watch Bulletin and ABA Watch.

Claim preclusion bars 2d highway suit

A citizens group can't file a second lawsuit challenging a highway expansion merely by changing the legal theories.

Appellate opinions released August 9, 2006

Wisconsin Court of Appeals opinions (none recommended for publication)

BarWatch Bulletin, August 8, 2006

The Federalist Society's national office emails.

The American Bar Association's Annual Meeting takes place in Honolulu from Thursday, August 3 to Tuesday, August 8. Once again, ABA WATCH will be reporting live from the meeting.


Recommendations Considered by the House of Delegates

The ABA House of Delegates considered several proposals in day one of its deliberations. The recommendation concerning presidential signing statements will be considered Tuesday morning. What follows is an overview of Monday's House of Delegates action.


Diversity and Legal Education

Recommendation 106B, concerning revisions to Standards 210-212 regarding diversity and legal education, generated considerable debate. Jose Garcia, representing the Section of Legal Education and Admissions to the Bar, opened discussion by heralding the merits of the proposal: "Fostering diversity in legal education is a core goal and value of the ABA and this section for many years. Indeed this Association and this section is at the forefront of the effort. The commitment to law school diversity represents a broad consensus expressed in legal education and higher education generally regarding the educational value of diversity in the classroom." According to the sponsor, the U.S. Supreme Court has recognized the importance of diversity in Grutter vs. Bollinger. Law schools in some circumstances would be permitted to use racial standards in admissions in the context of the law the Supreme Court has used. The sponsor noted that it considered input from many sources. One amendment was made in June 2006.

Revised Standard 211 proposed law schools demonstrate by concrete action a commitment to having a student body that is diverse with respect to gender, race and ethnicity. Law schools would have latitude in this commitment in taking into account their individual characteristics such as their geographic location. Furthermore, if an educational institution is to be successful in enrolling a diverse student body, it must also have a diverse faculty and staff.

He stated, "Faculty and staff diversity enhance classroom discussion and better prepare students to be professional."

A Wisconsin State Bar delegate questioned the terminology of Section 211. He inquired whether the mandatory language of 211 raises ambiguity. He suggested that the ABA should question whether it is proposing something that violates the rule of law. He moved that Statement 211A and 211B be referred back to the Section of Legal Education and Admission to the Bar as the "mandatory language as drafted raises an ambiguity as to whether or not the standard complies with the Grutter requirements."

Immediate past president Robert Grey spoke in opposition to the referral. He stated, "We are faced with the responsibility of drafting the accreditation standards and do so in a matter that you will see it in fact encourages compliances with the Supreme Court. It uses the wording [of the Supreme Court's decision] for law schools to promote diversity...[T]he language that they have adopted comes as close as you can expect it to come."

Stephen Zack, chairman of the ABA House of Delegates, emphasized that 106B must be sent back in its entirety. The motion to refer failed by a majority, though not unanimous, vote.

A National Bar Association (NBA) executive committee representative wished that 211 could be parsed out of the resolution, as the NBA did not think Standard 211 went far enough in promoting diversity. A former LSAC chair, Pauline Snyder, shared the concerns of the NBA, but supported the Standards as they were designed to strengthen diversity requirements. She argued that the Standards are designed to comply with the Supreme Court's decision in Grutter. Law schools "shall" demonstrate by concrete action that they are taking steps to increase diversity among their faculty and study body. She maintained, "We can hold law schools accountable. And every time we do an inspection, we look very carefully at statistics at how many people are applying to those law schools, how many people are being admitted to those law schools, and how many people are graduating that are people of color. If we believe that there is a disparity...we are obligated to inquire further to ask the law school to show us what they are doing to address these issues. I don't believe the Section can take bigger steps than what they are taking."

Lillian Apodaca of the Hispanic National Bar Association stated that the legal profession recognizes the urgent need for diversity. She stated that U.S. law schools do not share that urgency and commitment. In the past 13 years, enrollment of underrepresented Hispanics has declined. She urged a results-oriented basis to provide that law schools should provide "a commitment" with respect to diversity. According to the delegate, a genuine effort does not always ensure results. Furthermore, "How can a law school decide whether its efforts are genuine or not?"

A best efforts approach is subjective, while in her view, a results-oriented approach is transparent and consistent with recent law such as Grutter. She requested that 106B be transmitted back to the Section. She urged the ABA to display leadership and to take on opponents of diversity proposals like the Federalist Society. Several others spoke in support of the proposal.

The motion to concur in the action of the Council was adopted.


Civil Gideon

Recommendation 112A, proposed by the Task Force on Access to Civil Justice and 27 co-sponsors, urged the creation of a "Civil Gideon." The Board of Governors joined in the recommendation. The Family Law Section proposed an amendment that civil counsel in all child custody proceedings should not be publicly funded. The amendment was approved. ABA President Michael Greco also spoke out in support of the recommendation. He stated adoption of this proposal would be one of the "brightest moments in the history of this Association." He declared that democracy means that every American should have counsel in civil legal proceedings. The recommendation was unanimously adopted.


Other Recommendations

Recommendation 102, proposed by the Commission on Civic Education and the Separation of Powers, was unanimously adopted. The recommendation endorses increased civic education in schools and communities.

Recommendation 103, offered by Tort Trial and Insurance, was withdrawn. The chair of the section stated, "To say that the issue of federal preemption has proved to be provocative is an understatement," citing the many opinions she heard from critics and proponents of the recommendation. She stated that a task force is being created to provide a forum to further debate this issue.

Recommendation 106A, sponsored by the Section of Legal Education and Admissions to the Bar, concerned pro bono opportunities for law students. It was withdrawn due to questions regarding the definition of "pro bono."

Recommendation 107, proposed by the Criminal Justice Section, considered whether to adopt the black letter ABA Criminal Justice Standards on DNA Evidence. It was unanimously adopted.

Recommendation 108A, urging the ABA to adopt principles for the Homeless Court Program, was adopted.

Recommendation 108B urged that the definition of "homeless person" include "individuals who lack a fixed, regular, and adequate nighttime residence including those who are sharing the housing of others due to loss of housing, economic hardship, or similar reasons, and those who are living in motels, hotels, or camping grounds." This recommendation was also adopted.

Recommendation 109, proposed by the Standing Committee on Substance Abuse, urged all legislative bodies and agencies to require insurers to provide coverage for alcohol and drug abuse treatment programs. The recommendation was adopted.

Recommendation 110, sponsored by the Commission on Domestic Violence and co-sponsored by eight other entities, urged governments "to enact or amend domestic violence civil protection order statutes that provide protection to victims" unmarried to the perpetrator. The recommendation was adopted.

Recommendation 112B, sponsored by the Task Force on Access to Civil Justice, detailed ten proposed principles describing a system for the delivery of civil legal aid. The recommendation was adopted.

Recommendation 113, proposed by the Advisory Council on Diversity in the Profession and 71 co-sponsors, urged greater efforts to help minorities advance within the pipeline to the profession. Past and present ABA presidents, including Dennis Archer, Michael Greco, and Karen Mathis, supported the proposal. The recommendation was adopted.

Recommendation 116, proposed by the Standing Committee on Federal Judicial Improvements, urged Congress "to permit discretionary review by the Supreme Court of the United States of decisions rendered by the United States Court of Appeals for the Armed Forces that deny petitions for review of courts-martial convictions or deny extraordinary relief." The recommendations was adopted.

Recommendation 118, offered by the Commission on Law and Aging and twelve other cosponsors, urged licensing entities to establish guidelines for inactive, unlicensed, and retired attorneys to render pro bono service according to the rules established by that licensing entity. The proposal was adopted.

Recommendation 119, offered by the Administrative Law Section, urged "Congress to amend the Lobbying Disclosure Act of 1995 to extend the registration and reporting obligations with respect to lobbying coalition membership and grassroots lobbying." The proposal urges greater disclosure of contributions to associations and coalitions, particularly those who donate to grassroots campaigns. The resolution urges greater transparency in reporting, and does not impose any new restrictions on expenditures. The resolution passed.


Karen Mathis Press Conference

Karen Mathis, who will become the ABA president at the conclusion of the Annual Meeting, detailed her vision for the coming year. She outlined three priorities. Her first was the "Youth At Risk" initiative, in which she would urge increased attention and service to the youth of America, particularly those who were entrenched in the juvenile and criminal justice systems. Her second initiative is the "Second Season of Service," urging retiring baby boomer attorneys to devote 50 hours of pro bono service per year. To facilitate this, the ABA would create the "Atticus Network" as an online resource to community service and other volunteer opportunities. Her third initiative would be promoting the rule of law. In September, the ABA would co-host a conference with the International Bar Association to discuss issues such as human trafficking, economic development, corruption, an independent judiciary, the environment, women's rights, and corporate responsibility.

Mathis addressed three issues that the House of Delegates will consider. She endorsed two recommendations concerning protecting attorney-client privilege. Mathis will speak in favor of these recommendations to the House.

However, when asked if she endorsed the findings of the ABA presidential signing statements task force, she declined to do so. She declined to give her personal view because, as president, she would take a "representative view," and it would be her "duty and honor to support that policy in the next year." A reporter also asked her about the proposed diversity standards for law schools. While expressing her support for a diverse profession, she would only reveal that she looked forward to a robust debate on the issue in the House of Delegates.


Michael Greco's Farewell to the House of Delegates

"The ABA has never been stronger or more well admired than it is today," according to ABA President Michael Greco in his concluding remarks to the House of Delegates. He particularly praised the Association's diversity outreach to minorities and the disabled. He also praised the ABA's rule of law programs and outreach to international bar associations.

Greco heralded his many initiatives of the past year, including his "Renaissance of Idealism" initiative, the ABA Commission on Civic Education and the Separation of Powers, and the "Access to Justice" Commission. He stated, "I believe the establishment of a right to counsel in those civil matters that threaten a poor person's legal need is a defining issue for the justice system and the defining issue for our profession and this nation in this century... The promise of equal justice and equal access to justice in all of America demands that we address the unmet legal needs of 50 million poor Americans."

Greco also praised the Standing Committee on Federal Judiciary's work in the past year, singling out its chairman, Stephen Tober, who received a standing ovation. Greco noted, "As we all witnessed, the Committee received the accolades of the entire Senate Judiciary Committee." Greco noted that two weeks ago, he responded to an "irresponsible" Wall Street Journal editorial criticizing the ABA Committee. Greco declared he was "tired of such personal attacks that detract and distort what the ABA is doing to ensure an independent judiciary for this country. The ABA will not allow any interest group or ideologue or extremist" to interfere in its work to promoting an independent judiciary.

Greco discussed two ABA task forces concerning executive power. Greco stated, "The greatest responsibility that all lawyers share is to safeguard the rule of law. The ABA has played a leading role monitoring the dangers proposed secret spying on Americans that violate the Fourth amendment and signing statements that violate the separation of powers." He thanks Neal Sonnett for his work in chairing two "bipartisan and expert" task forces. Greco stated, "The new policy has enabled the association to speak out about the Administration's duty to follow the clear mandates of FISA when engaging in electronic surveillance in the United States. The ABA is clearly making a difference in this issue. Numerous senators such as Ted Kennedy and Arlen Specter have praised the ABA's policy... We must continue to advocate strongly for retaining the Fourth Amendment protections of FISA."

He echoed his earlier support of the "bipartisan, unanimous" findings of his presidentially-appointed task force of Presidential Signing Statements and the Separation of Powers. He declared the findings presented a "common sense" recommendation to "prevent a constitutional crisis. This is not about partisan politics, but protecting the separation of powers and checks and balances which have sustained our republic for more than two centuries." In closing, Greco reiterated that torture, secret surveillance, denying legal representation to detainees, and disrespect for the separation of powers are not partisan issues.


Special Panel: Liberty vs. Security

Catherine Crier of Court-TV moderated a panel before the House of Delegates debating "Liberty vs. Security." Crier related her concerns from a media perspective. She asked the panelists what they thought the "war on terror" means.

Professor John Yoo, of Boalt Hall School of Law and formerly of the Department of Justice, stated "We are at war. The thing that is different is the nature of the enemy. The enemy is not a nation-state, but a terrorist network for the first time that can inflict the kind of violence that previously only could be used by a nation-state." He emphasized we are at war with the al Qaeda terrorist network and nations supporting al Qaeda. Al Qaeda should not be treated differently because it is not a nation.

Neal Sonnett, who chaired the ABA task force on enemy combatants, responded that he "always get[s] a little concerned when we attach labels. I was concerned when we called our struggle against drugs as the ‘war against drugs.'" Although we are struggling to defeat terrorists, to call it a war against al Qaeda is too narrow. He noted that there were terrorists other than those in al Qaeda. Sonnett expressed his concern about the indefinite duration of the war, stating, "If the president has greater powers in the time of a war that the president himself has told us is never going to end, I begin to worry about what's going to happen to civil liberties and constitutional rights in this country."

McGeorge Dean Elizabeth Rindskopf-Parker responded, "We are in the middle of a paradigm shift." It isn't liberty vs. security, but "liberty and security." Yoo disagreed, stating there is a tradeoff between liberty and security.

For example, after 9/11, detention without criminal charges occurred, which "is certainly a restriction of civil liberties." The question should not be one of having to restrict civil liberties, but of "how much is enough?" He mentioned that similar restrictions occurred earlier in America's history, such as FDR's wiretapping, the detention of Japanese in World War II, and Lincoln's military commissions. Only about three Americans total were being held without trial. In light of this, one should look at magnitude and long-term effects. For example, while there were serious restrictions of civil liberties in the Civil War and WWII, those periods were followed by great gains in civil liberties.

Sonnett disagreed with Yoo, stating that, if one looked back at WWII, it took fifty years for the U.S. to apologize to the Japanese. He claimed it was not accurate to draw a distinction between the number of Japanese detained and the number of U.S. citizens detained without charges when there were hundreds detained at Guantanamo without due process or trial. He maintained the Administration was stonewalling despite the Supreme Court's ruling. The war on terrorism should not be used as an excuse opportunity for the Administration to create more power for itself. He maintained the Administration could be effective in the war on terrorism while retaining traditional constitutional processes and permitting due process rights by "enemy combatants."

Dean Rindskopf-Parker claimed that comparisons to World War II and the Civil War were not helpful as the situations were "very, very different." While she was not positive that federal courts were the best venue for deciding fates of al Qaeda, she thought the U.S. needed to rethink the ways in which security structures work. She scolded the Administration for not permitting a robust enough discussion of these issues. In particular, the country needed to embrace and engage the U.S. Islamic community.

Sonnett contended that few members of Congress were fully aware of all of intricacies of the surveillance programs. Many Senators back FISA as the exclusive means of surveillance against American citizens, with the Fourth Amendment checking the powers. If FISA isn't adequate, the Administration should ask for amendments, as it did when PATRIOT Act was adopted. Regarding military commissions, Sonnett noted that the ABA has never taken the position that they should not exist, although they should be conducted under the Uniform Code of Military Justice.

Professor Yoo discussed some of his concerns about FISA. He maintained it was outdated, as it was adopted in the 1970s during the Soviet era. He suggested we need to modernize this law, as today's enemy relies on different technologies. And he noted that we do not have any armed forces to locate. Electronic surveillance is needed as this is a different kind of war. He argued the President could not always publicly reach out to Congress, as it would tip off the enemy about his strategy. He also sharply criticized the Supreme Court's Hamdan decision. The Court did not consider the long history of military commissions, which were used in almost every war in U.S. history. He stated that it was "remarkable that the Supreme Court is interceding in war time to force the President and Congress to act in a way it prefers."

Sonnett claimed that the Administration's tactics to investigate al Qaeda were not that large of a surprise. The enemy could guess what investigatory tactics it was engaged in. If the U.S. has legislation to regulate domestic surveillance, that law must be followed. As to Hamdan, the decision should not have been a big surprise in light of Rasul and Hamdi.

Yoo responded that there were sometimes benefits to secrecy, and the Court should allow Congress and the President to work things out without much interference or deference. Sonnett declared that no one was suggesting open hearings on details of the surveillance program. Sonnett maintained we should not forget why we passed FISA in 1978—it was because the government agencies were abusing electronic surveillance capabilities. The scandals provoking the Church Committee's establishment resulted in an agreement between Congress and the President that some laws were necessary to protect the American people and government employees when they were engaging in intelligence activities to ensure they were not breaking the laws of the U.S. He alleged that the "torture memos" and interrogation techniques were attempts to insulate Americans from possible prosecution under the War Crimes Act. The Supreme Court, however, ruled that Geneva protections do apply.

An audience member questioned whether the constitution "fades" during wartime. Professor Yoo emphasized that he did not want to be interpreted as arguing that the constitution fades in wartime, but it creates a different system in making decisions, as the President makes decisions at times based on his powers as Commander-in-Chief. He clarified that there are checks to this power; for example, Congress retains the purse strings to fund operations.

Here are archives of Bar Watch Bulletin and ABA Watch.

Appellate opinions released August 8, 2006

Wisconsin Court of Appeals opinions including recommended for publication:

John Malzewski v. Sheldon Rapkin (summary judgment for defendants on fraudulent-advertising claim reversed where property condition report incorporated by reference in ad disclosed some prior seepage in basement but buyers later found repaired cracks in basement walls which were failing.)

Oklahoma's Lethal Injections Called Fatally Flawed

Professional Los Angeles Times headline writer at work; bloggers, do not try this at home!

(via How Appealing)