Tuesday, October 31, 2006

Did Supreme Court judge throw away briefs?

Kirk Makin reports on the investigation sparked by a San Francisco Chronicle travel section article on the Bare Necessities cruise line which boasted its clientele included a Supreme Court Justice.

(via Althouse)

Appellate Opinions Released October 31, 2006

The Wisconsin Supreme Court did not release any non-disciplinary opinions today.

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

State v. Harenda Enterprises, Inc. (compliance with federal regulation on asbestos testing in the Milwaukee Auditorium).

Monday, October 30, 2006

BarWatch Bulletin October 2006

From the Federalist Society's ABA Watch
Wallace Nomination, The Military Commissions Act, and The Death Penalty in Florida


Wallace Nomination Update

On September 26, the Senate Judiciary Committee held hearings on the nomination of Michael Wallace to the U.S. Court of Appeals for the Fifth Circuit. Wallace's nomination has been controversial as he received a unanimous "not qualified" rating from the ABA Standing Committee on Federal Judiciary, the first such rating for an appellate court nominee since 1982. The evaluation, which is partly based upon interviews with anonymous witnesses, has been criticized. Now in private practice, Wallace had formerly clerked for the late Chief Justice William Rehnquist and had served as a counsel to Senator Trent Lott. Additionally, some critics of the Standing Committee speculated that Wallace received this rating because of his past contentious relationship with then ABA President Michael Greco, then Standing Committee chairman Stephen Tober and the Association over several Legal Services Corporation (LSC) issues (e.g., jurisdiction of LSC to launch class action litigation seeking broad injunctive relief, and the size and scope of the LSC budget). Wallace served as an LSC board member from 1984-90.

At the hearing, former members of the ABA panel defended their evaluation of Mr. Wallace. They stated that they did not account for "political considerations or personal ideology" but judged Wallace objectively. Their report did not question Wallace's professional competence or integrity--indeed it is quite complimentary of Wallace in these areas--but instead based its low rating on concerns over his "judicial temperament." This assessment was primarily rooted in 69 interviews with anonymous lawyers and judges who had worked with Mr. Wallace. They also cited a supplemental evaluation which similarly resulted in a unanimous "not qualified" rating.

C. Timothy Hopkins, a former member of the Standing Committee, acknowledged that there was "no question" about Mr. Wallace's abilities as a trial and appellate lawyer. Rather, he said, "The question is whether he can make that transition... from being an outstanding trial lawyer to being a good, open-minded judge."

The former ABA Standing Committee member who actually conducted the Wallace investigation, Kim Askew, defended her report. She reiterated that her findings did not suspect Mr. Wallace's competence or integrity, but his judicial temperament. Ms. Askew explained, "In evaluating temperament, the committee considers a nominee's compassion, decisiveness, open-mindedness, courtesy, patience, freedom from bias and commitment to equal justice." She continued, "Over a third of the lawyers and judges that I spoke to raised issues regarding every element of temperament except decisiveness."

Several members of the Senate Judiciary Committee, especially Senators Cornyn and Sessions, criticized the ABA's rating. First, they took issue with the method of the evaluation. Senator Cornyn asked Ms. Askew, "How in the world can you justify using anonymous sources?" Senator Sessions described the ABA Committee's use of judicial temperament as a judging tool "vague." They also wondered if Mr. Wallace's involvement in certain cases, especially when he represented Trent Lott and argued on behalf of Bob Jones University, may have biased certain witnesses against Mr. Wallace.

Cornyn also questioned the role of Michael Greco and Stephen Tober, and their possible bias against Mr. Wallace, in the evaluation process. Mr. Greco had appointed a third of the Standing Committee on Federal Judiciary members, and Mr. Tober, as committee chairman, would have reviewed both the initial and supplemental evaluations. Senator Cornyn stated, "Mr. Tober was reported to flamboyantly accuse Wallace of attempting to fashion a political bias litmus test and of having a hidden agenda."

Senator Ted Kennedy was the only Democrat to extensively question Wallace himself. The Senate Judiciary Committee, however, did not vote whether or not to send the nomination to the Senate floor. Currently, there are no additional Senate Judiciary Committee hearings scheduled for this calendar year.


New Members of the Standing Committee on Federal Judiciary


For more than 50 years, the instrument for the ABA's evaluation of federal judicial candidates has been the Standing Committee on the Federal Judiciary. This Committee evaluated and recommended to the President whether prospective nominees to the United States Supreme Court and the Circuit and District Courts are qualified for appointment. Prior to President George W. Bush, the Committee was consulted by every President concerning most federal judicial appointments since 1952. The United States Senate, through the Senate Judiciary Committee, has been provided with the Committee's evaluation of every federal judicial nomination since 1948.
According to the ABA:

The Committee's goal is to support and encourage the selection of the best-qualified persons for the federal judiciary. It restricts its evaluation to issues bearing on professional qualifications and does not consider a nominee's philosophy or ideology. The Committee's process is structured to achieve impartial evaluations of the integrity, professional competence and judicial temperament of nominees for the judiciary. The integrity and independence of the Committee and its procedures are essential to the effectiveness of its work. The ABA's Board of

Governors, House of Delegates and Officers are not involved in any way in the work of the Committee. Its work is independent of all other activities of the ABA and is not affected by ABA policies other than those stated herein.

Confidentiality in the Committee's evaluation procedures is a cornerstone of its effective operation.

The ABA Standing Committee on Federal Judiciary consists of fifteen members, including an at-large member who serves as Chairman and one member from each of the 13 federal circuits, with the exception of the Ninth Circuit, for which there are two members. Each member is appointed to a staggered 3-year term by the President of the ABA, and, during his tenure, cannot contribute funds to political campaigns.

The following is a list of new members since The Federalist Society issued its last ABA Watch, along with some information on their professional and political backgrounds. Political contributions are noted simply in order to provide some information regarding political background. Based on public records, it appears that all of the current

Committee members are in full compliance with the ABA's rule of refraining from such contribution activity while serving on the Committee.

Mary M. Boies

Mary M. Boies, the Second Circuit member on the ABA committee, is a partner at Boies & McInnis LLP, a law firm that specializes in commercial, securities and antitrust litigation. Under her leadership, Boies & McInnis has participated in antitrust litigation relating to the airline, insurance and pharmaceutical industries.

Earlier in her career, Ms. Boies was a Vice President of CBS, Inc., where she was responsible for the company's public disclosures for compliance with securities laws. She was also general counsel for the Civil Aeronautics Board, where she was responsible for major antitrust investigations relating to the travel agent industry, international airline pricing and practices, and airline mergers, acquisitions and stock transactions. During the Carter Administration, Ms. Boies served as Assistant Director of the White House Domestic Policy Staff; she was also Counsel to the United States Senate Commerce Committee

Mary Boies is married to David Boies, also a notable attorney who aided Al Gore in the litigation associated with

the 2000 Presidential election.

Over the years, Ms. Boies has been a large supporter of Democratic candidates. She did give one donation to a Republican congressional candidate over ten years ago, but the vast majority of her contributions have been to

Democrats and Democratic groups. Ms. Boies has given well over $60,000 to politicians such as Ted Kennedy, John Kerry, Joseph Biden, and Charles Schumer and to organizations such as the Democratic Congressional Campaign Committee and Pro Choice Voter.

Edward B. Deutsch

Edward B. Deutsch, the Managing Partner of McElroy, Deutsch, Mulvaney & Carpenter, LLP, is the Third Circuit member.

He is a Certified Civil Trial Attorney of New Jersey, a Fellow of the American College of Trial Lawyers, a Fellow of the International Society of Barristers, and a Fellow of The American Bar Foundation. He has substantial trial experience in state and federal courts in New Jersey as well as in other states and federal districts. He also has extensive experience counseling clients regarding insurance and matters relevant to the insurance industry.

Since 2002, Mr. Deutsch has give $2,000 to Republican Congressman Rodney Frelinghuysen and $1,000 to Democratic candidate Stephen Brozak.

José C. Feliciano

José C. Feliciano, the committee's Sixth Circuit member, is a partner with Baker Hostetler. Mr. Feliciano was elected to the American College of Trial Lawyers in 1995 and is a Life Member of the Judicial Conference, Eighth Judicial District, Cuyahoga County, Ohio. He served on the Board of Governors and House of Delegates of the ABA, is former Chair of the ABA Section of Dispute Resolution and former ABA representative to the National Conference of Commissioners on Uniform State Laws. Mr. Feliciano is a past President of the Cleveland Bar Association. He was appointed by President Reagan as a White House Fellow in 1984. Prior to the Fellowship, he was appointed by Senator (then Mayor) George Voinovich as the City of Cleveland's Chief Prosecuting lawyer (1980-84). He previously served as Cuyahoga County public defender (1978-80), defending criminal matters ranging from grand theft to murder.

Mr. Feliciano was honored by the ABA in 2005 with the "Spirit of Excellence" award given by their Commission on Racial and Ethnic Diversity in the Profession. Mr. Feliciano is the founder and Chairman of the Hispanic Roundtable.

He is former Chairman of the Hispanic Leadership Development Program and founder of the Hispanic Community Forum, for which he served as President. He was also a founder of the Ohio Hispanic Bar Association and served as its Vice President.

Mr. Feliciano has donated a total of $950 to Senator George Voinovich.

Richard J. Gray

Richard J. Gray, the panel's Seventh Circuit representative, is a partner in Jenner & Block's Chicago office. He is a member of the firm's Litigation Department and Intellectual Property and Insurance Litigation and Counseling Practices. He also serves on the firm's Diversity Committee.

Mr. Gray regularly teaches trial practice at the National Institute for Trial Advocacy. He just completed a three-year term on the ABA's Legal Opportunity Scholarship Committee, which is responsible for selecting the ethnic and racial minority law students who will receive a scholarship. He also works to raise funds for those scholarships. Mr. Gray recently served on the ABA President's Advisory Committee on Diversity in the Profession. He also recently served as Co-Chair of the Section of Litigation's Diversity Plan Implementation Committee and Co-Chair of the Section's Judicial Intern Opportunity Program.

Mr. Gray donated $2,000 to John Kerry in 2004.

Allan J. Joseph

One of the committee's Ninth Circuit members, Allan J. Joseph, is an attorney with Rogers Joseph O'Donnell. He is a founding shareholder, co-chair and the senior member of the firm's Government Contracts Practice Group. In 1975, he founded the Federal Publications course on Terminations, and he speaks each year at the Year-In-Review course on Terminations for Convenience. He is on the Advisory Board of BNA's Federal Contract Reporter.

He has been in leadership positions in the ABA for more than thirty years. From 1984 to 1992, Mr. Joseph was a Director and then President of the American Bar Retirement Association. From 1995 through 1998, he served on the ABA Board of Governors, and in 1997-98 he was appointed as Chair of the Board's Finance Committee. During 1977-78, he was Chair of the ABA Public Contract Law Section. He is a Fellow of the American Bar Foundation.

In August 2005, Mr. Joseph completed a three-year term as the ABA's Treasurer. In this role, he served on the ABA's Audit and Pension Committees, as well as on the Board of the ABA Endowment, the ABA Journal and the American Bar Retirement Association.

Leonard H. Gilbert

Leonard H. Gilbert, the Eleventh Circuit member, is a partner at Holland & Knight. He is a member of the firm's Banking and Finance Practice Group and is chair of the firm's Creditor's Rights Team. Prior to joining Holland & Knight, Mr. Gilbert practiced for more than 35 years with the law firm of Carlton Fields and served as its President and Chairman.

Mr. Gilbert has served as president of The Florida Bar and chair of its Business Law and General Practice sections, as chair of the Section of General Practice of the ABA, and as a member of the UCC Committee. He has also sat on the Business Bankruptcy Committee and is a member of the Council of the Business Law Section of the ABA. He serves as a member of the Fidelity and Surety Law Committee of the Section of Torts and Insurance Practice of the ABA and was a member of the ABA's Committee on Federal Judicial Improvements, the Committee on Judicial Selection, Tenure and Compensation, and the IOLTA Commission. He served for more than ten years in the ABA House of Delegates and is presently a member of the Council of the Senior Lawyers Division and the Standing Committee on Bar Activities and Services.

In 2003 Mr. Gilbert gave $250 to Betty Castor, a Democratic candidate for the U.S. Senate; in 1998 he gave $500 to Newt Gingrich, and in 1992 he gave $250 to Bob Graham.


Military Commissions Act 2006

The ABA vigorously opposed the Military Commissions Act which President Bush recently signed into law. Current ABA President Karen Mathis wrote letters to all members of the House and Senate against the Act. She expressed concerns that the Act did not provide habeas corpus for the enemy combatants and that the United States was not fulfilling its Geneva Convention obligations.
Mathis wrote, "The United States has long served as the model for the world of a civilized society that effectively blends security and human liberty. When we refuse to observe the international standards for the treatment of detainees which we were so instrumental in developing, we provide encouragement for others around the world to do the same."

In the letter to members of the Senate, Mathis concluded by advocating the adoption of the Specter-Leahy Amendment which would have given the detainees habeas corpus.


The Death Penalty in Florida

Under the auspices of the ABA Death Penalty Moratorium Implementation Project, housed in the ABA Section of Individual Rights and Responsibilities, a team of lawyers unanimously agreed that the state of Florida "fails to comply or is only in partial compliance with many of the protocols developed by the ABA to assess death penalty systems." The report's criticisms of the state's system of capital punishment ranged from not giving enough weight to serious mental disability, the existence of racial disparities in capital sentencing, and a high level of secrecy during the clemency process. The recommendations have not been presented to the ABA House of Delegates and therefore do not constitute official ABA policy.

Appellate Opinions Released October 30, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

Sunday, October 29, 2006

Oral argument week of October 29, 2006

The Wisconsin Supreme Court has scheduled oral argument in the following.
MONDAY, OCTOBER 30, 2006

10:30 a.m.
Marie L. Kasten v. Doral Dental USA, 05AP995
Oneida County Dept. of Social Services v. Nicole W., 05AP2656

01:30 p.m.
State v. Geoffrey D. Kasmarek, 04AP3285-CR

TUESDAY, OCTOBER 31, 2006

09:45 a.m.
Kimberly Wamboldt v. Illinois Farmers Insurance Co., 05AP1874
Gerald Tyler v. The Riverbank, 05AP2336

01:30 p.m.
State v. Steven P. Muckerheide, 05AP81-CR

WEDNESDAY, NOVEMBER 1, 2006

09:45 a.m.
State v. Barry M. Jenkins, 05AP302-CR
Christopher Aslakson v. Gallagher Bassett Services, Inc., 04AP2588

01:30 p.m.
City of Milwaukee v. Ruby Washington, 05AP3141

In addition to the cases listed above, the court will consider and determine on briefs, without oral argument, the following case:

Wisconsin Judicial Commission v. Hon. Daryl W. Laatsch, 04AP2954-J

Saturday, October 28, 2006

Gimme an 'S': The High Court's Grammatical Divide

Jonathan Starble reports in Legal Times
As one of its final acts last term, the U.S. Supreme Court issued Kansas v. Marsh [53 pp. pdf], a case involving the constitutionality of a state death-penalty statute. The 5-4 decision exposed the deep divide that exists among the nation's intellectual elite regarding one of society's most troubling issues -- namely, whether the possessive form of a singular noun ending with the letter "s" requires an additional "s" after the apostrophe.

Looks like it's too soon to raise the issue of page limits on opinions like those on briefs.

(via Matthew J. Franck at Bench Memos)

Friday, October 27, 2006

Death Penalty Debate November 1, 2006

From the Marquette Law School Student Chapter,
This November, there will be an advisory referendum on the ballot asking voters whether or not Wisconsin should have the death penalty. In light of the controversial nature and general interest in this issue, the Federalist Society and the Criminal Law Society are sponsoring a debate at the law school.

Appellate Opinions Released October 27, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

Thursday, October 26, 2006

Award nominees wanted

Our State Bar's Inside the Bar newsletter reports
The State Bar's Bench and Bar Committee is searching for two outstanding jurists to honor with its annual judicial awards. Nominations are sought for the 2006 Judge of the Year and Lifetime Jurist Achievement awards. The awards will be presented in spring 2007.

Nominations are due November 15, 2006.

It also reports,
The Legal Assistance Committee recognizes attorneys or organizations for their outstanding pro bono service. ...

The Public Interest Law Section seeks nominations for the Dan Tuchscherer Outstanding Public Interest Law Attorney Award...

The Law-related Education Committee (LRE) seeks nominations for the LRE Attorney of the Year Award. ...

The Wisconsin Lawyers Assistance Program (WisLAP) seeks nominations for the WisLAP Volunteer of the Year Award. ...

The Wisconsin Law Foundation (WLF) seeks nominations for three awards. The Belle Case La Follette Outstanding Professional Award ... The Gordon Sinykin Award of Excellence ... The Donald O'Melia Local Service Award ...

Nominations are due December 29, 2006

Military Commissions Act

The Federalist Society takes no position on particular legal or public policy initiatives. All expressions of opinion are those of the author or authors. We hope these and other briefing papers will help foster discussion and a further exchange regarding the important issues that will need to be addressed in the coming months.

Appellate Opinions Released October 26, 2006

The Wisconsin Supreme Court did not release any opinions today.

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

Department of Workforce Development v. Labor and Industry Review Commission (LIRC and DWD must follow Department of Labor's interpretation of ambiguous language in the Trade Adjustment Act relating to readjustment allowances).


Kavanaugh Restaurant Supply, Inc. v. M.C.M. Stainless Fabricating, Inc. (circuit court erred in dismissing complaint for lack of personal jurisdiction over the defendant without holding an evidentiary hearing).


State v. Vogelsberg (defendant's right to face his accuser not violated when minor sexual assault victim testified from behind a screen).


Eichenseer v. Madison-Dane County Tavern League, Inc. Brave UW-Madison students brought a class action alleging that area taverns (the insidious "Madison Bar Cartel") had conspired to illegally restrain trade by agreeing to limit drink specials on Friday and Saturday nights after 8:00 p.m. The Circuit Court and Court of Appeals both found the bars perpetrated this travesty in response to Dane County regulatory initiatives, thereby exempting their actions from the antitrust provisions of Wis. Stat. ch. 133.


The Bank of New Glarus v. Swartwood (priority of mortgage interests when there are defects in recording).

Wednesday, October 25, 2006

Mark Lewis, et al. v. Gwendolyn L. Harris et al. (New Jersey Supreme Court A-68-05)

Here is the opinion [90 pp. pdf].

From the Syllabus by the Office of the Clerk
HELD: Denying committed same-sex couples the financial and social benefits and privileges given to their married heterosexual counterparts bears no substantial relationship to a legitimate governmental purpose. The Court holds that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed samesex couples must be afforded on equal terms the same rights and benefits enjoyed by opposite-sex couples under the civil marriage statutes. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.

Update: The court relied on New Jersey Constitution, Article I, Section 1.
All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.

Compare Wisconsin Constitution, Article I, Section 1.
All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.

Update 2: The Marquette Law School Student Chapter of the Federalist Society has posted a link to a webcast of the October 3, 2006 marriage amendment debate.

Update 3: Could same-sex ban be dumped? Jason Stein in the Wisconsin State Journal reports.

Evan Wolfson, a leading advocate for same-sex marriage, said that the "raw material" for overturning statutory bans exists in all 50 states, including Wisconsin. He said some experts evaluating the potential for a successful challenge look first at whether a state has recognized other rights for gay and lesbian couples, such as allowing the adoption of a child by a parent's same-sex partner.

"There is definitely a school of thought that says that before you can get to marriage you need to see progress in other family protections. That both creates a comfort and an understanding that prepares (courts) for the next step," said Wolfson, executive director of the New York-based group Freedom to Marry.

(via Marquette Warrior)

Board supports petitions: earning on-demand CLE credits, multijurisdictional practice, and more

Our State Bar's Inside the Bar newsletter reports on the September 29-30 of its Board of Governors.
The board approved the MJP Working Group's petition to amend SCR 20 Rules of Professional Conduct for Attorneys regarding MJP, the unauthorized practice of law, disciplinary authority, and pro hac vice.

The board unanimously supported a Board of Bar Examiners' (BBE) petition to expand the nature of continuing legal education to include the use of repeated "on-demand" CLE programs and to grant ethics and professional responsibility (EPR) credits for concentrated work on Office of Lawyer Regulation (OLR) district committees and as special investigators. ... The supreme court has scheduled a public hearing for Dec. 11 at 9:30 a.m.

The board opposed the Wisconsin Department of Revenue (DOR) Petition 06-05, as requested by the Professional Ethics, Professionalism, and Lawyer Regulation Study committees. The petition formalizes a process to suspend or deny the law license of a person certified as delinquent in payment of Wisconsin state taxes. ... The supreme court scheduled a public hearing for Oct. 24 at 9:30 a.m.

The board unanimously supported the Group and Prepaid Legal Services Committee's request to prepare a petition proposing changes to SCR 11.06 concerning attorney participation in group and prepaid legal services plans in Wisconsin. ...

The board supported the Wisconsin Department of Workforce Development (DWD) Petition 06-02, as requested by the Government Lawyers Division and the Appellate Practice and Family Law sections, to amend Wis. Stat. 809.19(3). The petition proposes that a respondent who is not a party in interest to a child custody or placement appeal that does not raise issues of child support, specifically a DWD county office, may file a statement that no brief will be filed.

The board supported the Executive Committee's recommendation to suspend sales of online fillable forms to nonmembers until the committee has completed its evaluation. ...

Marcia Lucas, Milwaukee, will fill the board vacancy created when Margaret Hickey was elected board chair.

Here are the minutes of the Board's July 21, 2006 meeting [14 pp. Word].

Lutefisk law a mite fishy?

Mike Miller in The Capital Times reports on the start of Lutefisk Season and wonders why lutefisk is not a seafood.
The short answer is: We don't know, and no one remembers.

But you can look it up. Section 29.503(1)(d) of the Wisconsin statutes says quite clearly that many things, including crab, lobster, shrimp and a host of other delicacies, are in fact "seafood" under the law, "but not any canned fish or fish known as lutefisk."

(via WisBlawg)

Appellate Opinions Released October 25, 2006

The Wisconsin Supreme Court did not release any opinions today.

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

State v. Giebel (consent to search and seizure of computer and disks was coerced by police misrepresentations).


State v. Sullivan (calculation of child support arrearages).


State v. Patton (reasonable suspicion for temporary detention).

Tuesday, October 24, 2006

Attorney General Candidate Debate October 25, 2006

Our State Bar is hosting this event at its Madison headquarters, with a live webcast available for a limited number of advance registrants.

Appellate Opinions Released October 24, 2006

The Wisconsin Supreme Court did not release any opinions today.

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

Skebba v. Kasch (specific performance of verbal agreement between employer and employee upon which employee detrimentally relied was justified).

Monday, October 23, 2006

DNR can disregard its own rules

Section 227.57(8) plainly states that an agency action that is contrary to its own rules, that it has promulgated itself, is invalid. But apparently, the rules don't apply to the DNR.

Reducing clause held invalid

The case had unusual facts, and could be limited in its reach. But much of the court's reasoning could be employed to hold any reducing clause invalid.

Appellate Opinions Released October 23, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

Douglas Kmiec November 10: "The Supreme Court and the War on Terror"

Professor Douglas W. Kmiec of the Pepperdine University Law School will speak at a luncheon presented by the Milwaukee Lawyers Chapter and the Marquette Law Student Chapter on the topic "The Supreme Court and the War on Terror --What Remains of the President's Power to 'Wage War Successfully'?"
Prior to Hamdi, Rasul, and Hamdan, the Supreme Court had observed that the power to wage war is "the power to wage war successfully." See Hirabayashi v. United States, 320 U.S. 81, 93. (1943). This observation of Chief Justice Hughes was also noted by two famous Court civil libertarians, Justices Douglas and Black, in their concurring opinion in New York Times v. United States, 403 U.S. 713, 714, 91 S. Ct. 2140, 2142 (1971). In light of recent rulings against the President's conduct of the "war on terror," is this still true?

To attend, print and mail the reservation form.

Here is a list of our past chapter events.

Sunday, October 22, 2006

Supreme Court hearing on revised ethics rules October 25, 2006

Saturday, October 21, 2006

Political Tidbits October 20, 2006

The latest report from The Hamilton Consulting Group.
Industry Claims DNR Regulatory Reform Off-Track

Milwaukee Receives "D" in Disaster Evacuation Study

Wisconsin Ranks 38th in the 2007 State Business Tax Climate Index

Committee Has Begun Discussion of Applicability of Open Meetings Laws to Quasi-Governmental Bodies

Appeals Court Upholds DNR Pier Authority

Hospitals Serve Community Health Needs

Upcoming Hearings

Briefs Filed on Green Elections Board Case; Supreme Court Requests Additional Information

Committees Grant Approval for WisconsinEye Project

Renewal of Terrorism Insurance a Possibility

Friday, October 20, 2006

Appellate Opinions Released October 20, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

Thursday, October 19, 2006

Appellate Opinions Released October 19, 2006

The Wisconsin Supreme Court did not release any opinions today.

The Wisconsin Court of Appeals released these opinions today, but did not recommend any for publication.

Wisconsin team develops three new projects to assist self-represented litigants

The Wisconsin Court System reports.
The first project will be tested in the Tenth Judicial District, headquartered in Eau Claire. The project will involve providing services to self-represented litigants through the public libraries, with staff training provided by the State Law Library and local courts.

The second project will be tested in the Ninth Judicial District, headquartered in Wausau. This project will make use of videoconferencing to connect self-represented litigants with volunteer lawyers located in another county.

The third project will involve developing a self-help clinic in a county courthouse (location to be determined). The clinic will be staffed by volunteer lawyers and others, possibly with additional assistance from interested court staff.

Wednesday, October 18, 2006

Administrative Register effective October 15, 2006

The Revisor of Statutes Bureau has issued the first half of No. 610 [22 pp. pdf] which includes:
Emergency rules now in effect.
Scope statements.
Submittal of rules to legislative council clearinghouse.
Rule−making notices.
Rule orders filed with the revisor of statutes bureau.

Supreme Court accepts six new cases, October 13, 2006

The Wisconsin Supreme Court voted to accept the following cases.
State v. Schweda (right to trial by jury in action for violation of waste disposal regulations)

State v. Townsend 2006 WI App 177 (dismissal of Wisconsin charges as remedy for Illinois violation of Interstate Agreement on Detainers)

Avery v. Diedrich 2006 WI App 144 (whether an insurance agent who has agreed to procure insurance coverage for a client on an ongoing basis has a duty to procure an increase in coverage requested)

State v. Post (deviation within lane of travel as probable cause for police stop and search leading to drunk driving conviction)

Leitinger v. Van Buren 2006 WI App 146 (admissibility of evidence of the amount of medical expenses actually paid, as opposed to the amount of expenses billed, in order to prove the reasonable value of the services rendered)

Milwaukee Co. v. Williams and Hegney 2006 WI App 153 (whether the ordinance that requires taxicab drivers to hold special permits to pick up fares at the Milwaukee airport is an unnecessarily anticompetitive regulation)

The court also voted to deny three petitions for writs, four petitions to bypass the Court of Appeals, and 56 petitions for review.

Appellate Opinions Released October 18, 2006

The Wisconsin Supreme Court did not release any opinions today.

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

Voss v. Elkhorn Area School Dist. A teacher conducted a classroom exercise to show ninth-graders the ill-effects of intoxication. He was, regrettably, successful.

The lesson involved performing various tasks while wearing "fatal vision goggles." The goggles are designed to cause disorientation and mimic the lack of balance and depth perception one experiences when intoxicated. One of the students, while wearing the goggles and attempting to perform one of the tasks, fell and sustained substantial injury to her mouth and teeth.

The circuit court concluded the teacher had created a "known and present danger," which operates as an exception to the governmental immunity rule, and so allowed the suit for damages. The school district disagreed and appealed. Creating a known and present danger was the point of the exercise, wasn't it? The Court of Appeals affirmed.

George Clowes "Education Reform: What Works" October 24, 2006

Presented by the Wisconsin Forum
The Heartland Institute's Senior Fellow for education policy, George Clowes served as founding managing editor of School Reform News between November 1996 and January 2005. During those eight years he interviewed many of the founders and leading advocates of school choice in the U.S., including Milton Friedman, Myron Lieberman, J. Patrick Rooney, Marva Collins, Paul Peterson, John Kirtley, David Brennan, and many more.

Tuesday, October 17, 2006

Appellate Opinions Released October 17, 2006

The Wisconsin Supreme Court did not release any opinions today.

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

State v. Helsper (no commitment to jail for failure to pay attorney's fees subsequent to judgment of conviction without first showing defendant was able to pay the obligation).


Schleusner v. IMT Ins. Co. (uninsured motorist coverage exclusions).


State v. Milwaukee County. This is the continuing saga of what to do with Billy Lee Morford. Mr. Morford, you see, is a "sexually violent person" who "suffers from a mental disorder that makes it likely" he will "engage in acts of sexual violence." Somehow, Mr. Morford has been found eligible for supervised release. He has been in a temporary facility since 2003, but really wants a permanent abode. The search for a suitable place for Mr. Morford has now lasted seven years, and has required the expenditure of a frightful amount of money on the so-far quixotic quest. This installment of the proceedings addresses whether the State may force Milwaukee County to shoulder the cost and effort of finding the elusive dwelling for Mr. Morford. The Court of Appeals said it could not, and that the circuit court correctly determined it is the State, not Milwaukee County, who must carry this burden. The Court of Appeals remanded for further proceedings, so stay tuned. . . .

Supreme Court Hearings on Rule Petitions October 24, 2006 9:30 a.m.

06-02 In the Matter of the Petition To Amend Wis. Stat. § (Rule) 809.19(3), filed by Constance M. Chesnik, Attorney, State of Wisconsin, Dept of Workforce Development on 03/09/2006.

06-05 In the Matter of the Petition For Adoption of a Procedure to Suspend or Deny the License to Practice Law of a Person Certified As Delinquent In Payment of Wisconsin State Taxes, filed by Michael L. Morgan, Secretary, Wisconsin Department of Revenue on July 18, 2006

Monday, October 16, 2006

Toward a Basal Tenth Amendment:

A Riposte to National Bank Preemption of State Consumer Protection Laws

Keith R. Fisher in the Harvard Journal of Law & Public Policy, Volume 29, Number 3 (Summer 2006) [54 pp. pdf]

Appellate Opinions Released October 16, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions today.

Taking passwords to the grave

Elinor Mills reports for C|Net.
Attorneys advising clients on estate planning should ask them to determine who they want to have access to their computers when they die, Rotenberg [Marc Rotenberg, executive director of the Electronic Privacy Information Center] said.

That's exactly what San Francisco-based estate planning attorney Michael Blacksburg does. "I advise clients to put all their passwords to things online in an estate planning document," he said.

(via WisBlawg)

Sunday, October 15, 2006

Oral argument week of October 15, 2006

The Wisconsin Court of Appeals has scheduled oral argument in the following.
District IV in Supreme Court Hearing Room, Capitol, 2d Floor, East Wing

10/18/06 10:00 a.m. State of Wisconsin v. Marlyn Johnson 2006AP180-CR

10/20/06 10:00 a.m. Wis. Power & Light Co. v. PSC, et al. 2006AP274

Saturday, October 14, 2006

Appellate Opinions Released October 13, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions on October 13, 2006.

Appellate Opinions Released October 12, 2006

The Wisconsin Supreme Court did not release any opinions on October 12, 2006.

The Wisconsin Court of Appeals released these opinions on October 12, 2006, recommending the following for publication:

The Lakeland Times v. DNR (records regarding DNR employee's misconduct did not fall within any of the Open Records Act's exemptions, and the public interest in disclosure outweighed public interest in nondisclosure).


Kroeplin v. DNR (same case as The Lakeland Times).


Baer v. DNR (DNR may institute enforcement action even though no third party had filed a complaint and the property owner had not sought a permit or requested other information from the DNR).

Appellate Opinions Released October 11, 2006

The Wisconsin Supreme Court did not release any opinions on October 11, 2006.

The Wisconsin Court of Appeals released these opinions on October 11, 2006, but did not recommend any for publication.

Friday, October 13, 2006

Half of government documents 'born digital,' public printer says

Aliya Sternstein reports at FCW on an address by Public Printer Bruce James, head of the U.S. Government Printing Office, at the Rochester Institute of Technology.
"We estimate that as many as 50 percent of all federal government documents are now born digital, published to the Web, and will never be printed by the GPO," James said.

(via WisBlawg)

Thursday, October 12, 2006

"Wisconsin’s latest speech code, the 'Think. Respect.' program."

Althouse on news from the UW.

Wednesday, October 11, 2006

Appellate Opinions Released October 10, 2006

The Wisconsin Supreme Court did not release any opinions on October 10, 2006.

The Wisconsin Court of Appeals released these opinions on October 10, 2006, recommending the following for publication:

Gresens v. State Farm Mutual Automobile Ins. Co. (reducing clause in underinsured motorist portion of policy ambiguous when considered in light of entire policy).


Hegarty v. Beauchaine (Wisconsin Patients Compensation Fund's liability not triggered until primary and umbrella malpractice policies exhausted, discussion of damage caps, types of damage recoverable).

Appellate Opinions Released October 9, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions on October 9, 2006.

Appellate Opinions Released October 6, 2006

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals released any opinions on October 6, 2006.

Appellate Opinions Released October 5, 2006

The Wisconsin Supreme Court did not release any opinions on October 5, 2006.

The Wisconsin Court of Appeals released these opinions on October 5, 2006, recommending the following for publication:

State v. Lynch (sentencing).

Deficient injunctions still reviewable

A district court's failure to comply with Rule 65(d) does not prevent the court of appeals from reviewing an injunction.

"Is Wisconsin's Constitution Obsolete?"

Nope. But, beware. There are people in this state trying to get rid of the uniformity clause.

Justice Wilcox nears retirement

Wisconsin Supreme Court Justice Jon P. Wilcox will return to his tree farm near Wautoma after retirement in July.

Man Coulter

From Jeremy Lott,
I'm not a[n Ann] Coulter fan but her Apocalypse Now Conservatism is at least more interesting than the crowd pleasing aw shucks liberalism of [Jon] Stewart.

Tuesday, October 10, 2006

Executive Order October 9, 2006

No. 172 Directing DHFS and DWD to Meet and Confer With Family Child Care Providers in Order to Improve the Delivery of Quality Child Care Services

The Anti-Federalist Society

Daveed Gartenstein-Ross and Nels Peterson at The Daily Standard on the American Constitution Society
Imitation is, of course, the sincerest form of flattery. But since the ACS is running out of Federalist Society ideas to imitate, we modestly submit the following proposals...

Monday, October 09, 2006

Wisconsin Book Festival 2006

Coming up in Madison; one of the first events,
Fighting Back: The Pen and the Gun: Panel Discussion

Presenter(s): Ngugi wa Thiong'o, Bill Ayers, Bernardine Dohrn

Featuring Ngugi wa Thiong'o and former Weather Underground leaders Bill Ayers and Bernardine Dohrn: three activists who have fought injustice with action and with poetry. ...

(via WisBlawg)

Before Roe v. Wade:

Judge Friendly's Draft Abortion Opinion

A. Raymond Randolph in the Harvard Journal of Law & Public Policy Volume 29, Number 3 (Summer 2006) [28 pp. pdf]

Sunday, October 08, 2006

Oral argument week of October 8, 2006

The Wisconsin Supreme Court has scheduled oral argument in the following.
WEDNESDAY, OCTOBER 11, 2006

09:45 a.m.
Holly Lornson, et al. v. Nadeem Siddiqui, M.D., et al. 05AP2315
City of Janesville v. CC Midwest, Inc. 04AP267

01:30 p.m.
State v. Michael J. Parent 05AP661-CRNM

THURSDAY, OCTOBER 12, 2006

09:45 a.m.
State v. Shirley E. 05AP2752
State v. John C. Brown 05AP584-CR

FRIDAY, OCTOBER 13, 2006

09:45 a.m.
Wisconsin Department of Revenue v. River City Refuse Removal, Inc. 04AP2468
Brew City Redevelopment Group, LLC v. The Ferchill Group 04AP3238

01:30 p.m.
Karl McNeil v. Brandon Hansen 05AP423

The Wisconsin Court of Appeals has scheduled oral argument in the following.
at Dist. II, 2727 North Grandview Blvd., Waukesha

10/10/06 9:30 a.m.
Scott Shain v. Racine Raiders Football Club, Inc. 2005AP3118

10/12/06 9:30 a.m.
Meda-Care Vans of Waukesha v. Division of Hearings & Appeals 2005AP2979

Saturday, October 07, 2006

Libel and Related Lawsuits Against Bloggers

Compiled by Media Law Resource Center Staff Attorney Eric P. Robinson

(via WisBlawg)