State Court Docket Watch, January 2007

In this issue [20 pp. pdf]:

Ohio Supreme Court Upholds Charter School Law

Extraterritorial Application of State Antitrust Law Rejected in Texas

Pennsylvania Supreme Court Upholds Fetal Homicide Act

Missouri Supreme Court Rejects Voter ID Law

Kentucky Court Decides Case on Free Speech in Judicial Elections

Washington Supreme Court: Laws Suspending Licenses & Regulating Ergonomics Upheld

The Washington Supreme Court:

TA Special Issue Report

by David K. DeWolf, Andrew C. Cook, and Seth L. Cooper a Federalist Society white paper [20 pp. pdf] on the state of a state's judiciary

Wisconsin should switch to 'item' veto

Fred Wade in The Capital Times on the proposed state constitutional amendment to limit the governor's power of partial veto.

...since 1976, the Wisconsin Supreme Court has misinterpreted the governor's power to veto "part" of an appropriation bill and has permitted governors to use that power to create laws that the Legislature never approved through the deletion of selected words, digits and larger parts.

For 30 years, the Legislature has acquiesced in this judicial transfer of legislative power to the executive, with the exception of an ineffectual 1990 constitutional amendment that requires governors to refrain from vetoing "letters" in order to "create a new word."

Instead of a constitutional amendment that would confirm Wisconsin's repudiation of the core principle that Americans have a fundamental right "to make their own laws," Wisconsin should replace the partial veto power with a conventional "item" veto.

(via WisOpinion)

Removal from Office for Specific Decisions

That's the Focus article in the January 25, 2007 issue [3 pp. pdf] of Gavel to Gavel, by the National Center for State Courts.

Rhetoric about the removal of judges based solely on their case decisions has become common. While the majority of such efforts have been directed at federal judges in general, and members of the U.S. Supreme Court in particular, there has been a growing number of such efforts in the states.

Cal. sentencing scheme violates right to jury

The dissent by Justice Alito in California v. Cunningham recognizes the difference between California's scheme and the federal sentencing guidelines, but fails to see any "constitutionally significant difference."

The majority doesn't want to worry about that until it's necessary to do so.

Confessions covered by attorney-client privilege

A client's confessions to his attorney are protected by the attorney-client privilege.

No kidding. The relevant question should have been whether the privilege was waived.

Plato v. Friedman

"The [] way to avoid having our lives run by idiots is to limit the power that others have over us. This is the approach that was embedded in our Constitution, before it was eviscerated by the Progressives. It is the approach for which Milton Friedman was a passionate advocate.

"Friedman's insight is that a market limits the power that others have over us; conversely, limiting the power that others have over us allows us to have markets. Friedman argued that no matter how wise the officials of government may be, market competition does a better job of protecting us from idiots."

This Week in Liberal Judicial Activism: Week of January 29

Ed Whelan at Bench Memos.

Mr. Whelan will be the featured speaker at our chapter's March 8th luncheon.

Appellate Opinions Released January 29, 2007

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

Update: The Wisconsin Supreme Court entered orders in the following:

In the matter of the Petition for Amendment to Supreme Court Rule 40.14 Relating to Technical Changes in Language Regarding Board of Bar Examiner Fees 05-08

In the matter of the Petition for Amendment to Supreme Court Rules 31.01 and 31.05 relating to Continuing Legal Education 05-09

--TRB

IRR Section supports SJR2

Our State Bar's Individual Rights & Responsibilities Section History supports Senate Joint Resolution 2, a proposed amendment to Wisconsin Constitution, Article I, Section 1.

The Bar's stated rationale does not specify why Article I, Section 1 needs clarifcation now.

Update: If it's explained in the Section board's minutes, those are for members only.

Appellate Opinions Released January 26, 2007

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

Program Builds Mutual Understanding

Russian judges visit the U.S. District Court for the Eastern District of Pennsylvania.

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

Back in the Dock

Sherry Karabin in Corporate Counsel

Jay Lapine won a partial acquittal, but the former HBO & Company general counsel will have to stand trial again.

Blogger Gets 'Un-Cease-And-Desist' Note

Associated Press Technology Writer Peter Svenson reports at CT Central on a comment to Darren Barefoot posted at his GetAFirstLife.com web site.

Sunday's note from Ginsu Yoon, a lawyer for Second Life, started out with the legalese of a standard nastygram - Internet slang for a cease-and-desist letter - but went on to say that "your invitation to submit a cease-and-desist letter is hereby rejected." ...

"Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody," Yoon wrote. "Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception."

(via Digg)

No Such Thing:

Litigating Under the Rational Basis Test

By Clark Neily, in the NYU Journal of Law & Liberty, Vol. 1, No. 2 [17 pp. pdf]

"Eight Ways to Sunday":

Which Direction, Kentucky Supreme Court?

by John K. Bush and Paul E. Salamanca, a Federalist Society white paper [24 pp. pdf] on the state of a state's judiciary

The Third 'Daubert' Tutorial

The Way to a Client's Heart Is Through His Checkbook: The Compelling Economics of the Sophisticated 'Daubert' Challenge

Stephen Mahle in DRI's Daubert Online

Transparency Takes Shape

From Third Branch, monthly newsletter of the Federal Courts

Giuliani for president

Provided you can stomach Rudy Giuliani's reprehensible support for unconstitutional gun control measures, Steven Malanga makes the case in City Journal for supporting him in '08.

School zone enhancer is constitutional

Don't worry; Lopez wasn't overruled.

This is just the state law that enhances the sentence for violent crimes within 1,000 feet of school property.

Tax convictions are not grouped

When sentencing a defendant for tax fraud, and for the underlying crime that "earned" the unreported income, the sentences should not be grouped under the sentencing guidelines.

Appellate Opinions Released January 25, 2007

The Wisconsin Supreme Court released the following opinions today:

Acuity Mutual Ins. Co. v. Olivas (how to determine whether a worker is an independent contractor or an employee for the purpose of calculating workers' compensation insurance premiums).

Pharm v. Bartow (neither the Interstate Agreement on Detainers nor a defendant's waiver of extradition precludes commencement of a chapter 980 commitment proceeding).


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

State v. Yanick

Nichols v. Progressive Northern Ins. Co.

Coady v. Cross Country Bank, Inc.

DOC v. Saenz

Wood v. Propeck

Bar-Av v. Psychology Examining Board

Department of Revenue v. Menasha Corporation

Supreme Court Candidates Trade Barbs in Forum

Dan Polley at WisPolitics reports on yesterday's judicial candidates forum in Milwaukee.

America's Most Popular Charts

at The Onion

Appellate Opinions Released January 24, 2007

The Wisconsin Supreme Court did not release any opinions today.

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

Liebovich v. Minnesota Ins. Co. (construction of an "innovative insurance" product designed to minimize threats to the personal wealth of high net worth individuals).

Declaratory Judgment Actions: The Supreme Court Widens the "Case-or-Controversy" Door

Joseph G. Fortner, Jr. in DRI's The Voice

Deferred Problems

Julius Melnitzer in Inside Counsel

The IRS's extension of the 409A compliance deadline offers corporations little relief.

Immanent Corrections

by Jonah Goldberg

(immanentized via Shark and Shepherd)

ACLU v. ACLU

Scott Sherman in The Nation

So what is the row about? The critics proclaim that [Executive Director Anthony] Romero has made grave mistakes; that those mistakes amount to a firing offense; and that he has betrayed "fundamental ACLU values." Romero's supporters say that he is a visionary leader and that his critics are only damaging the ACLU.

The Docket, January 2007

This month's Eastern District of Wisconsin Bar Association Newsletter includes

A Profile of the Honorable Thomas J. Curran
Sofron B. Nedilsky Retires
EDWBA Sponsors Media Inquiries CLE Seminar
Pro Se Bankruptcy Help Desk
EDWBA Committee Updates

Philanthropy and the Law

Some Developments From the Past Year

The Federalist Society is paying increasing attention to the intersection of philanthropy and the law. ... read Austin Bramwell’s review [4 pp. pdf] of some of the key provisions in the 2006 Pension Protection Act [16 pp. pdf] and ... read Ronald Cass’ case note [5 pp. pdf] on the impact of Marshall v. Marshall [28 pp. pdf].

New study: Wisconsin needs 18 additional judges

The Wisconsin Court System says

A new study [44 pp. pdf] by the National Center for State Courts shows that Wisconsin needs 18 additional judges to maintain current levels of service in view of increasing caseloads. ...

Polls: What Do Americans Think of Their Courts?

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

Criminal Law Decisions Online

At the Division of Legal Services of the Wisconsin Department of Justice

Criminal Law Decisions Online (CLDO) covers all criminal law decisions handed down by the U.S. Supreme Court and Wisconsin Supreme Court, and published cases of the Wisconsin Court of Appeals, from July 1, 1977, through December 15, 2006. ...

(via WisBlawg)

Gavel to Gavel, February 18, 2007

The third issue of the weekly newsletter of the NCSC [4 pp. pdf]

The National Center for State Courts’ Gavel to Gavel will help identify trends in legislative activity as it relates to the courts in seven broad areas:

1. Judicial selection (e.g. merit selection, partisan elections)
2. Judicial qualifications and terms (e.g. mandatory retirement age)
3. Judicial rule making authority
4. Structural court changes (e.g. merger of courts, division of existing courts)
5. Jurisdiction (e.g. court stripping or court expanding)
6. Salary and budget
7. Other areas that affect the courts

Federalist Society Infiltrates Germany

Rainer Apel and Anton Chaitkin in Executive Intellegence Review

You'll find the International Chapters listed in the right sidebar Lawyer Chapter links at the national Federalist Society web site.

Are You Simply Sleeping Your Way to the Top or Creating an Actionable Hostile Work Environment?

A Critique of Miller v. Department of Corrections in the Title VII Context

by Christina J. Fletcher, St. John's Law Review, Volume 80, Number 4, Winter 2006 [39 pp. pdf]

Dinner Address

Fair and Independent Courts: A Conference on the State of the Judiciary

Master of Ceremonies: Charlie Rose, Host, The Charlie Rose Show
Speaker: John G. Roberts, Jr., Chief Justice of the United States
transcript [6 pp. pdf] and webcast from this September 28-29, 2006 event presented by Georgetown Law School and the American Law Institute

(via The Third Branch)

A Delicate Balance

Alison Frankel in The American Lawyer

Dems and Reps benefit nearly equally from law firm PAC giving.

Appellate Opinions Released January 23, 2007

The Wisconsin Supreme Court did not release any opinions unrelated to attorney discipline today.

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

State v. Ploeckelman (dairy farmer could be charged under the general felony theft by fraud statute in connection with the misrepresentation of the quality of milk sold to a cheese-maker, notwithstanding a more specific statute applicable to the facts making the offense a misdemeanor).

Update: The Wisconsin Supreme Court entered an order [4 pp. pdf] granting the petition for leave to commence an original action in Green for Wisconsin v. State of Wisconsin Elections Board

(via The Wheeler Report) [TRB]

Weighted caseload study to be released; next step is judge-need formula

From The Third Branch, quarterly newsletter of the Wisconsin Court System

The results of the 18-month study of judicial workload in Wisconsin's circuit courts will be released this month. The next step is developing a formula to calculate which counties have the highest judge need.

Need a Demonstrator? Now You Can Rent Them Online

David Gordon Smith reports in Spiegel

A German Web site has come up a novel niche market -- renting out demonstrators for public protests. Good-looking protestors can help an organization get its political message to the public for as little as [Euro]145 a day.

(via KausFiles)

Justice for All:

Earl Warren and the Nation He Made by Jim Newton

Review by Joseph C. Goulden in Washington Lawyer

A Focus on Federal Practice:

An Interview with FBA President William LaForge

From Third Branch, monthly newsletter of the Federal Courts

It's Over

Alison Frankel in The American Lawyer

Tort reformers, business interests, and plaintiffs lawyers themselves have helped kill the mass torts bonanza.

This Week in Liberal Judicial Activism: Week of January 22

Ed Whelan at Bench Memos.

Mr. Whelan will be the featured speaker at our chapter's March 8th luncheon.

Deputy Director Named at AO

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

How Debate Team Became Cool

review by Stacy A. Teicher in the Christian Science Monitor of Cross-X, by Joe Miller

Legal Research - The Movie

(via WisBlawg)

Appellate Opinions Released January 22, 2007

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

A Conversation on Judicial Independence

The Milwaukee Lawyer Chapter of the American Constitution Society presents the Honorable Patience Drake Roggensack of the Wisconsin Supreme Court on January 25, 2006 at Noon at the Milwaukee Bar Association, 424 East Wells Street, Milwaukee.

Update: As seen at The Nation.

Oral argument week of January 21, 2007

The Wisconsin Court of Appeals [2 pp. pdf] has scheduled oral argument in the following.

1/24/07 District III. At County Board Room, 2d Floor, Courthouse, 721 Oxford Ave., Eau Claire

10:00 a.m. Gineen M. Adrian v. Aaron D. Petty, 2005AP2333

01:00 p.m. David H. Palmer v. Peter R. Mason, 2006AP493

Eisenberg regains license a third time

One of yesterday's Wisconsin Supreme Court disciplinary decisions is the subject of this front page story by Derrick Nunnally in today's Milwaukee Journal Sentinel.

In a 4-3 ruling that included a stern dissent, the court said [Alan D.] Eisenberg can return to practicing law if he pays about $9,000 for costs of his proceedings.

The decision was by per curiam opinion for Chief Justice Abrahamson and Justices Bradley, Prosser and Butler; Justice Wilcox dissented, joined by Justices Crooks and Roggensack.

The veteran lawyer's 2004 suspension for a series of ethical violations was the third of his 41-year career. It came by a unanimous Supreme Court ruling for a one-year suspension which also noted that because Eisenberg was then 62, revoking his license instead - as a referee recommended - would probably result in a lifetime ban.

The referee also opposed the current reinstatement.

Appellate Opinions Released January 19, 2007

Neither the Wisconsin Supreme Court nor the Wisconsin Court of Appeals release any opinions (unrelated to attorney discipline) today.

Update: The Wisconsin Supreme Court also entered orders:

In the matter of Amendment of Supreme Court Rule 20:1.5(b) and Creation of Supreme Court Rule 20:1.5(f) Regarding Written Communication on Fees and the Amendment of Supreme Court Rule 31.02 Regarding Continuing Legal Education Credits for Ethics, 03-04

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, 06-05

-TRB

Constitutional Courts: A Primer for Decision Makers

Donald L. Horowitz in Journal of Democracy [14 pp. pdf]

Courts empowered to overturn legislative acts have spread rapidly in recent years. If carefully designed and limited, constitutional courts may aid democratic consolidation, but if not, they can become objects of political strife, impediments to democracy, and bad influences on legal development.

MTV Made Them Do It

Tom Piatak in The American Conservative reviews The Enemy at Home: The Cultural Left and Its Responsibility for 9/11, by Dinesh D’Souza

Appellate Opinions Released January 18, 2007

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

Helping Hands

Adele Nicholas in Inside Counsel

Like most law firm lawyers who go in-house, Marc Gary probably didn’t miss time sheets, billable hours and rainmaking when he left Mayer Brown to join BellSouth’s legal department in 2000. But as Gary settled into his new position as director of litigation for the Atlanta-based company, he did start to miss one thing about law firm life—working with his colleagues on pro-bono projects. Mayer Brown had an active committee that made it easy for the firm’s lawyers to participate in a variety of pro-bono projects. But BellSouth didn’t have anything like that.

"Many of our attorneys were doing pro-bono work on their own," says Gary, who is now the company’s general counsel.

"But there was no formal structure for us to work together on projects to make a bigger impact."

So in 2001 Gary created a program to foster attorney involvement in pro-bono service ...

Judge Was Eyewitness to Two Worst Terrorist Attacks in U.S.

From Third Branch, monthly newsletter of the Federal Courts

Avoiding the Pitfalls of "Four Corners" Duty-to-Defend Test in Coverage Litigation Involving Defective Buildings

by Michael J. Roman, Wisconsin Civil Trial Journal

The federalist prescription

The Economist on

Extending health care to the uncovered, one state at a time

Judicial candidates to speak at forum

BizTimes Daily reported

The Milwaukee Bar Association will host its annual Judicial Candidates Forum on Wednesday, Jan. 24.
The annual event is hosted in conjunction with the Association of Women Lawyers, the Justinian Society, Milwaukee Young Lawyers Association, Wisconsin Association of African-American Lawyers and the Wisconsin Hispanic Lawyers Association.

The candidates invited to participate include: Wisconsin Supreme Court candidates Linda Clifford, Joseph Sommers and Annette Ziegler; Circuit Court candidates Dominic Amato, Michael Brennan, Chris Liegel, William Pocan and Joseph Wall; and Milwaukee Municipal Court candidates Derek Mosley, William Baldon, Phil Chavez, Jennifer Havas, Jeffrey Norman, Robert Rondini and Jay Anthony Unora.

The forum will take place from 12:15 to 1:15 p.m. at the Milwaukee Bar Association in downtown Milwaukee at 424 E. Wells St. and will be open to the public. ...

Candidates for Supreme Court present priorities

Dee J. Hall reports in the Wisconsin State Journal on yesterday's Wisconsin Supreme Court candidate's forum in Madison.

(via The Wheeler Report)

Greg Bump at WisPolitics reports Supreme Court Candidates Trade Barbs at Luncheon

Administrative Register effective January 15, 2007

The Revisor of Statutes Bureau has issued the first half of No. 613 [18 pp. pdf] which includes:

Emergency rules now in effect.
Scope statements.
Submittal of rules to legislative council clearinghouse.
Rule−making notices.

Supreme Court accepts seven new cases

They are:

Kristie L. M., et al v. Dennis E. M. (2005AP1034)

G. Stone, et al v. Acuity (2005AP1629) [8 pp. pdf]

John Doe 1, et al v. Archdiocese of Milwaukee (2005AP1945) [9 pp. pdf]

State v. House (2005AP2202-CR) [6 pp. pdf]

J. Russ v. E. Russ (2005AP2492) [15 pp. pdf]

A. Rouse v. T. Clark Medical Center, et al (2005AP2743) [8 pp. pdf]

Trinity Petroleum v. Scott Oil Co., Inc. (2005AP2837) [25 pp. pdf]

The court also denied seven petitions for writs, two petitions to bypass, and 56 petitions for review.

An Unquiet Death

Carlyn Kolker in The American Lawyer

Fourteen months after Coudert Brothers folded, the partners and creditors are fighting over the carcass.

Electronically Stored Information Target of New Rules

From The Third Branch, monthly newsletter of the Administrative Office of the U.S. Courts

Appellate Opinions Released January 17, 2007

The Wisconsin Supreme Court released its opinion in State v. Muckerheide today. The Court affirmed the exclusion of "other acts" evidence because it lacked relevance.

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

State v. Brady (Although police officers' failure to announce themselves before "jimmying" a door lock and entering a home while executing a search warrant (without a "no-knock" provision) was a technical violation, it did not justify suppression of the objects found in the search).

State v. Quintana (Mayhem statute applies to injuries to the forehead; school-zone enhancer applied to attack on ex-wife in her bedroom because the house is located in a school zone).

TV spots begin airing in the Green Bay/Fox River Valley in January featuring lawyers engaged with area youth to senior citizens

Our State Bar reports

The "Wisconsin Lawyers Make a Difference" TV series is part of the State Bar’s Branding the Profession effort, which highlights lawyers who demonstrate exemplary commitment to community or pro bono service.

Charge-Barring Agreements Retaliatory?

Trent A. Howell in DRI's The Voice

The EEOC for some time has viewed an employee's agreement to refrain from filing a charge of discrimination as void and, if sought by the employer, a discrete act of retaliation. The Supreme Court recently broadened the definition of "retaliation" to include any "materially adverse" action by an employer that would "dissuade a reasonable employee from making or supporting a charge of discrimination." Burlington Northern & Santa Fe Railway v. White, 126 S. Ct. 2405 (2006). A subsequent decision by the Sixth Circuit may shed light on whether Burlington elevates a charge waiver to actionable retaliation, and warrants attention of counsel drafting severance agreements. See EEOC v. Sundance Rehabilitation Corp., 466 F.3d 490, 499 (6th Cir. 2006).

Maintain Diploma Privilege, Abandon Bar Exam

Letters to the Editor in Wisconsin Lawyer, responding to recent columns by our State Bar's president, Steve Levine.

Increasing the Security of Elections:

The Effect of Identification Requirements on Turnout of Minority Voters

by Hans A. von Spakovsky, a Federalist Society white paper [20 pp. pdf]