The rule of law has become a big idea in economics. But it has had its difficulties
The Economist, March 13, 2008
negative campaigns ads may be getting a bad rap, says UW-Madison political science professor Ken Goldstein.
Goldstein 's research suggests that, counter to what many may think, negative ads can enrich the political process by focusing vital attention on issues and the differences between candidates.
In this criminal case, the state’s petition for review sets forth a single issue: "Is a defendant who is arrested in a foreign state on both a violation of the foreign state’s criminal law and a fugitive warrant based on pending criminal charges entitled to sentence credit on a concurrent sentence for the time spent in custody in the foreign state after arrest and before sentencing on the foreign state’s conviction?"
Some background: On July 23, 2003, a criminal complaint charging Patrick C. Carter with first-degree recklessly endangering safety was filed in the Milwaukee County Circuit Court. A felony arrest warrant, which authorized Carter’s extradition from any state, was then issued.
On Dec. 14, 2003, Carter was arrested in the Chicago area in connection with an armed robbery and a charge of driving under the influence (DUI). The Illinois authorities also placed a hold on Carter because of a Wisconsin "fugitive warrant." Two days later, Carter was "charged" with the Wisconsin warrant. Carter remained in Cook County Jail nearly a year, during which time he was sentenced to a seven-day jail term for the DUI charge. He was also convicted of the armed robbery charge and was given a 14-year sentence for that offense.
On March 14, 2004, while in Cook County Jail, Carter was served with a Wisconsin governor’s warrant. After being sentenced on the Illinois armed robbery conviction, Carter was extradited to Wisconsin. On Aug. 30, 2005, Carter entered a guilty plea to the Wisconsin charge of first-degree recklessly endangering safety. He was sentenced to seven and a half years of initial confinement and five years of extended supervision. The court stated the sentence was to run concurrently to the existing Illinois sentence. Pursuant to an agreement between defense counsel and the prosecutor, Carter was given 91 days of sentence credit for the period between his initial appearance in Wisconsin on June 1, 2005, and the sentencing date.
The circuit court denied Carter’s post-conviction motion seeking a sentence credit for 324 days for the time he had been incarcerated in Illinois prior to the beginning of his Illinois armed robbery sentence, concluding Carter had not been in custody "in connection with the course of conduct for which (the Wisconsin) sentence was imposed" under Wis. Stat. § 973.155 until he had been placed under the control of Wisconsin authorities.
The Court of Appeals reversed [2007 WI App 255], granting Carter credit for 227 additional days of incarceration, in part because some of the time served in custody in Illinois was attributable to the Wisconsin fugitive charge.
A decision by the Supreme Court could clarify how the rulings in prior cases fit together when interpreting the sentence credit statute in Carter’s situation. From Milwaukee County.
The District IV Court of Appeals has certified the question of whether the police may search the personal belongings of a passenger that are found outside a motor vehicle incident to the arrest of the driver based on the reasoning of a previous case, State v. Pallone, 2000 WI 77, 236 Wis. 2d 162, 613 N.W. 2d 568 [cert. denied, Pallone v. Wisconsin, 121 S.Ct.1148 (2000)].
Some background: A police officer in Pepin County came upon a car parked on the side of the road and asked its driver, Christopher Pickering, if he needed help.
Upon running a license plate check, the officer discovered the license plates on the vehicle did not belong to Pickering’s car. When the officer returned to the car, he smelled marijuana and eventually found drug paraphernalia and marijuana.
After formally arresting Pickering, the officer walked around to the passenger side of the car, where he saw a small eyeglass case on the ground in the vicinity where the passenger, Jordan A. Denk, was standing. Denk conceded the eyeglass case belonged to him and placed the case on the hood of the car at the officer’s request. Denk denied owning the contents, which turned out to be a glass "methamphetamine pipe" and "some cleaning tools." The officer arrested Denk and searched him, finding a baggie of marijuana, two marijuana pipes and a baggie containing methamphetamine.
Denk was initially charged with two felonies, including possession with intent to deliver THC and simple possession of methamphetamine, and two misdemeanors. The state later dropped the felony charge of possessing THC with intent to deliver but amended the complaint to include a Class H felony charge of possession of methamphetamine-related drug paraphernalia.
The circuit court denied Denk’s motion to suppress the results of the search of his eyeglass case and his person, concluding the officer was justified in his search incident to Pickering’s arrest. The circuit court also concluded that Denk had consented to the search of the eyeglass case. After the circuit court denied the suppression motion, Denk reached a plea agreement with the state under which he pleaded no contest to a Class I felony count of possessing methamphetamine-related drug paraphernalia. The state agreed to dismiss the more serious Class H felony and the two misdemeanors.
Denk filed a post-conviction motion to withdraw his guilty plea, contending the state could not have legally charged Denk with the Class H felony.
The Court of Appeals certification memorandum focuses on the search of the eyeglass case and whether its search could be justified as incident to the arrest of the driver, Pickering.
The state argues the search incident to the arrest of a driver of a vehicle should extend beyond a vehicle’s interior to an immediate area surrounding the vehicle from which the driver could retrieve a weapon or evidence. To rule otherwise would allow criminals to get rid of evidence or contraband simply by throwing it out of the vehicle, the state contends.
Denk asserts the search-incident-to-arrest exception authorizes police to search only the interior compartment of an automobile in which the individual was a recent occupant.
A decision by the Supreme Court could develop law in this area and determine how case law applies to this situation. From Pepin County.
This case involves claims that a non-compete clause was violated and that a common law trade-name infringement occurred after the execution of an asset purchase agreement involving businesses in the Waunakee area.
D.L. Anderson’s Lakeside Leisure Co., Inc., M. Scott Statz and Steven Statz seek review of a decision affirming in part, reversing in part, and remanding a judgment entered on a jury’s verdict against Donald Anderson and Anderson Marine, LLC.
Some background: In October 2000, the Statzes purchased D.L. Anderson Marine Contractors, which also operated under the name D.L. Anderson Co. The agreement included a non-compete clause, stating that for seven years within a 120-mile radius of Waunakee, Donald Anderson would not permit his name to be used by any competing business.
Around January 2002, Anderson began working as a dealer representative for a pier manufacturer and boat-lift distributor in Wisconsin and four other states. In the fall of 2003, Anderson formed another business, Anderson Marine, LLC, which operated under the name "The Sailboat House at Anderson Marine", which sold boats and marine accessories about a mile away from the Statzes’ business.
The Statzes sued, and, after a three-day trial, a jury found Anderson breached the non-compete clause and awarded $15,000 in compensatory damages. The jury also found Anderson had infringed on the D.L. Anderson Co. trade name and awarded $75,000 in compensatory damages on this claim, $160,000 in punitive damages against Anderson Marine, LLC. The court extended the duration of the non-compete clause and awarded $118,435 in attorney fees for both claims in accordance with the contract.
The Andersons appealed. The Court of Appeals [2007 WI App 269] first determined sufficient evidence supported the jury’s finding of breach of the non-compete clause and the $15,000 in compensatory damages. Second, it concluded sufficient evidence supported the finding of trade name infringement but the $75,000 compensatory damage award was unsupported. Therefore, it reversed both the compensatory and punitive damage award on the trade name infringement. Third, it ruled that with one geographical modification, the injunctive relief extending the duration of the non-compete provision was proper. Finally, it held that based on the contract language, the attorney fee award must be reduced and remanded for that purpose.
Both sides have asked the Supreme Court to review. A decision by the Supreme Court could develop the area of law involving trademark infringement, damages and non-compete clauses. From Dane County. Justice Annette Kingsland Ziegler did not participate.
The U.S. Court of Appeals for the 7th Circuit has asked the Wisconsin Supreme Court to certify three questions related to this case, which involves insurance coverage for asbestos-related lawsuits [see this earlier post]. As the 7th Circuit points out, there does not appear to be any Wisconsin precedent addressing the three specific issues:
What constitutes an "occurrence" in an insurance contract when exposure injuries are sustained by numerous individuals at varying geographical locations over many years;
Whether Wisconsin Wis. Stat. § 631.43 (1) applies to successive insurance policies; and
Whether Wisconsin courts would adopt an "all sums" or pro rata allocation approach to determining liability when an injury spans multiple successive insurance policies.
Some background: Plenco, which began manufacturing molding compounds in 1934, has been a defendant in hundreds of lawsuits for claims arising from individuals’ exposure to asbestos-containing products it manufactured from 1950 to 1983. Liberty Mutual Insurance Co. provided primary general liability policies to Plenco beginning in 1957 and umbrella policies for most of the years since May 1970.
In 2004, Plenco filed a complaint in U.S. District Court for the Eastern District of Wisconsin against Liberty Mutual. Plenco sought a declaratory judgment that Liberty Mutual was obligated to fully defend Plenco in all of its pending and future asbestos-related lawsuits. Liberty Mutual sought an opposing declaration that it was not obligated to pay certain defense and indemnification expenses and was entitled to a refund for some expenses.
The parties stipulated to a joint statement of facts and subsequently filed motions for summary judgment in the 7th Circuit.
On Oct. 2, 2006, the 7th Circuit Court issued a decision and order granting in part and denying in part each party’s motion for summary judgment. The court subsequently entered a final declaratory judgment to which both parties consented.
The judgment lays out an understanding on how coverage will be handled, depending on the timing and definition of "occurrences." Both side appealed.
A decision by the Supreme Court could clarify the definition of "occurrence" under Wisconsin law and control the outcome of the appeal in the 7th Circuit. A decision also could have public policy implications and resolve questions likely to recur in the state. This case originated in the U.S. District Court for Eastern Wisconsin.
This is a product liability case involving lead paint and pigment manufacturers. A decision by the Supreme Court could affect more than 30 similar cases pending in Milwaukee County Circuit Court and how the Supreme Court’s 2005 decision in Thomas ex rel. Gramling v. Mallett [see this earlier post] may be applied in other cases.
Some background: According to the complaint, Ruben Baez Godoy, now 10 years old, was poisoned when he was one year old after ingesting white lead carbonate derived from painted surfaces, paint chips, paint flakes and dust while living in a Milwaukee apartment with his family in 1998.
The complaint alleges that the defendants, including du Pont, the Sherwin-Williams Company and American Cyanamid Co., knew that the white lead carbonate was dangerous when used in paint. The companies allegedly lied by failing to disclose the hazardous nature of white lead carbonate and by representing their products as safe.
Attorneys for Godoy have asked the Supreme Court to determine if the white lead carbonate pigment was defectively designed where the injury-causing lead is a prominent ingredient in the paint pigment.
The circuit court dismissed the plaintiff’s strict liability and negligence defective-design claims, concluding that lead is inherent in the product white lead carbonate and that white lead carbonate could not be designed without using lead.
The Court of Appeals affirmed [2007 WI App 239], saying the issue presented is whether a product can be considered defectively designed when the design is inherent in the nature of the product.
The parties are at odds as to whether Godoy’s claim complies with the Supreme Court’s decision in Thomas, which expressly recognized the right of a lead-poisoned child to sue the former manufacturers of lead pigment for personal injury damages under both negligence and strict liability.
Godoy contends the theory that there is no alternative design is predicated on the incorrect assumption that the product in question here is leaded pigments. He says the product in question is paint pigment, and the appropriate question is whether paint can be made without lead.
DuPont argues the issues presented here do not bear on the "risk contribution" doctrine, and the Supreme Court’s decision in Thomas does not apply because Thomas did not appeal design defect claims.
DuPont also contends the defective design argument is "akin to alleging that a manufacturer of knives should have made spoons instead," and that the issue of paint pigment was not brought up until appeal.
Another of Godoy’s claims -- "failure to warn" -- was not dismissed by Milwaukee County Circuit Court, and that portion of the case is still pending in the circuit court during leave for this appeal. From Milwaukee County. Justice Patience Drake Roggensack did not participate.
In Hall Street Associates v. Mattel the Supreme Court was asked to consider whether or not a federal court can enforce an arbitration agreement that provides for more expansive judicial review of an arbitration award than the narrow standard of review provided for in the Federal Arbitration Act. The Court held on March 25, 2008 that the FAA’s grounds for prompt vacatur and modification of awards are exclusive for parties seeking expedited review under the FAA. In this episode of SCOTUScast, Mark Behrens, a partner at the DC based law firm, Shook Hardy & Bacon, discusses the case.
Displaying a willingness to exercise its newly granted authority, the state Government Accountability Board voted Wednesday to consider regulating the thinly veiled campaign spots known as issue ads.
Deborah Goldberg, the director of the Democracy Program at the Brennan Center who urged the board Wednesday to regulate issue ads, said the board could consider:
- Requiring disclosure of all individuals, corporations and groups that fund issue ads.
- Declaring that ads discussing the character and qualifications of a candidate don 't fit the definition of issue ads and instead advocate for or against a candidate.
- Declaring all ads in state Supreme Court races are advocacy ads, thus requiring the disclosure of donors for ads in those races only.
On behalf of The Federalist Society, the polling company, inc. conducted a statewide telephone survey of 500 likely voters in Wisconsin to assess their knowledge, opinions, and expectations of the state’s Supreme Court. The survey revealed that Wisconsin’s voting public approved of their current role in seating the state’s highest court. They vowed to select those who purge all personal perspectives in their decisionmaking processes in order to ensure a restrained and responsible judiciary.
On February 27, 2008, the Supreme Court decided the case of Federal Express v. Holowecki. The Court held that an "intake questionnaire" submitted to the EEOC may suffice for the charge of discrimination that must be submitted pursuant to the ADEA. Marquette Law professor Richard Esenberg discusses the case.
The purpose of this paper is not to rehearse the arguments that I made last year, but to examine a series of issues that are likely to come before the court in the near future. Of course, doing so is something of an educated guess. The Court’s calendar is a function of the choices of litigants and the Court’s responses to the cases that it is asked to review. These issues may not present themselves and it is almost certain that other important questions – including some that have not occurred to me – will come before the court. My purpose here is to simply suggest some potential judicial frontiers as we once again debate the role of the Wisconsin Supreme Court in the midst of an election.
Another election season approaches and with it the debate over the proper mechanism to select state judges. This has been a recurring debate in American politics, and today’s critics of judicial elections show no sign of fatigue. The ABA and various state bar associations, the American Judicature Society, and quite a few academic and judicial critics have recently been joined by retired Supreme Court Justice Sandra Day O’Connor in the attack on judicial elections. This article offers, by contrast, a look at the seldom-heard arguments in favor of electing judges, and raises significant questions about the alternatives urged by some of the critics....
Q: Daniel of Milwaukee - Good afternoon, Mr. Justice. In remarks to the Milw. Bar Assn., you described your method of statutory interpretation as textualist in the mold of Scalia & Black. Do you approach constitutional and/or administrative law cases in the same way you approach statutory construction?
A: Louis Butler - Daniel, thank you for the question. In the interpretation of administrative law, and rules governing administrative agencies, our process is essentially the same as statutory construction. However, there is a difference, in that we do provide deference to administrative agencies in certain circumstances. With respect to interpreting the constitution, that is complex -- while we look at the language of the founding fathers, we must also look at the historical foundations of our constitution and the intent of our founding fathers.
Few areas of law are the source of more contentious litigation than education cases, particularly regarding school financing and school choice. The decisions issued by courts in these cases directly impact the lives of students, parents, teachers and taxpayers in every state in which they are decided. This issue looks at two particular sub-sets of education cases: those dealing with judicially compelled or managed state aid to public schools and those dealing with school choice and voucher programs. In each category, this issue analyzes national data, then looks at specific merit selection (also known as "Missouri Plan") states where courts have issued "activist" decisions.
In the April 1 election, Wisconsin voters will give Louis Butler or Michael Gableman a 10-year term on the state Supreme Court - a court that could decide such important future cases as the constitutionality of school-aid formulas and whether the state Constitution was legally rewritten to ban gay marriages.
As a result, the race has attracted the attention of third-party groups that will spend millions of dollars before it's over, hoping to sway voters with TV ads that have saturated the airwaves. On some key issues, the seat is viewed as one that could define the balance of the court.
The two have distinctly different ideas about the judiciary and the role of Supreme Court justices.
...the race is seen as crucial to the future of the court and could tilt the ideological balance from a 4-3 liberal-leaning majority to a 4-3 conservative-leaning majority.
The court 's makeup will help decide how it rules on major cases in the coming years ...
Such cases could include a challenge to the state's new cap of $750,000 on medical malpractice damages, a lawsuit seeking benefits for the gay and lesbian partners of public employees and a case seeking to bar the transfer of $200 million from a state malpractice fund for other purposes.
The Milwaukee Journal Sentinel sent a questionnaire to candidates for state Supreme Court.
Their answers will be used by the editorial board when it decides which candidates to endorse for the April 1 election.
On March 18, 2008, the [United States Supreme] Court decided the case of Washington State Grange v. Washington State Republican Party. The Court held that Washington's modified blanket primary system does not on its face violate the First and Fourteenth Amendments' right to freedom of association by denying political parties control over which candidates to endorse. Miller Baker of McDermott Will & Emery discusses the case.
Lawyers and public members statewide sought for committee service
The court relies on volunteers, both lawyers and nonlawyers, because of their diverse expertise and community presence, to serve on our numerous committees and boards. It’s a steep hill to find 300-plus volunteers annually, and currently several committees and boards are operating without full representation. I urge lawyers to volunteer and to speak with their community leaders about serving – even if only for a single term.
This case presents the issue we carefully reserved in Lawrence [v. Texas, 539 U.S. 558 (2003)]. See Slip Op. at 18 (noting that that case did "not involve . . . prostitution").
A generation ago, progressive and consumer groups petitioning the court could count on favorable majority opinions written by justices who viewed big business with skepticism — or even outright prejudice. An economic populist like William O. Douglas, the former New Deal crusader who served on the court from 1939 to 1975, once unapologetically announced that he was "ready to bend the law in favor of the environment and against the corporations."
Today, however, there are no economic populists on the court, even on the liberal wing.
The challenge, then, is translating this durable but inchoate mass of left-leaning public sentiment into an effective political movement. We might call it the policy problem. Another approach is to ask why, if a majority of Americans are liberal at heart, only a minority identify themselves as liberals. Call it the identity problem — determining why the label “liberal” has so often been used as a term of contempt, often even by people whose opinions ought to lead them to embrace it.
The board set the fiscal year 2009, July 1, 2008 - June 30, 2009, Keller dues at $9.50 per member, under the standard set in SCR 10.03(5). Under Keller [v. State Bar of California, 496 U.S. 1 (1990)], the State Bar cannot use compulsory dues of objecting members for political or ideological activities that are not reasonably related to regulating the legal profession or improving the quality of legal services.
What does this budget situation mean for lawyers and the courts? As of this writing, no solutions have been offered formally, but some legislative leaders have responded by insisting that the state enact no new legislation that would require spending money. This means that efforts to increase private bar rates and to raise indigency standards for public defender cases probably are stalled for the balance of this legislative session.
It also means that efforts to change the law regarding the treatment of 17-year-olds charged with crimes are unlikely to gain any traction until at least next year.
Amid all this fiscal uncertainty there is one bit of positive news. Our State Bar government relations coordinators are confident that the five circuit courts scheduled to open in August 2008 will do so.
One counsel representing a large beer brewing corporation was asked the following by a Justice during argument: “What is the difference between beer and ale?” The question had little to do with the issues, but the case involved the beer brewing business. Counsel gave a brief, simple, and clear answer that was understood by everyone in the Courtroom. He knew the business of his client, and it showed. The Justice who posed the question thanked counsel in a warm and gracious manner.
...many homeowner's insurance policies cover you for libel, invasion of privacy, and the like, including for the costs of defending the lawsuits. But they generally expressly exempt liability that's based on your "business pursuits," which may include even those pursuits on which you make a pittance.
So check your insurance policy...
Special interest groups' commercials dominate on TV
Both Justice Louis Butler and Burnett County Circuit Judge Mike Gableman have decried the ads against them.
... On Wednesday March 12 from 12- 1 p.m. the forum will include candidates for Wisconsin Supreme Court, Wisconsin Court of Appeals- District 1 and Milwaukee County Circuit Court. Louis Butler and Michael Gableman will appear for the Wisconsin Supreme court, Patricia Curley will appear for Wisconsin Court of appeals.
The following will appear for the Milwaukee County Circuit Court: Francis Wasielewski, Branch 17; Bill Brash, Branch 21; Kevin E. Martens, Branch 27; Daniel A. Noonan, Branch 31; Michael D. Guolee, Branch 32; Rebecca Dallet and Jeffrey Norman; Branch 40; John J. DiMotto, Branch 41.
The forums will take place at the Milwaukee Bar Association, 424 E. Wells St., Milwaukee.
The board hesitantly answered the American Bar Association’s call to support legislation designed to strengthen attorney-client privilege.
Rather than join local bar associations from 10 other states in backing U.S. Senate Bill 186 [companion to HR3013] , which seeks to reverse the recent trend of pressuring companies to waive attorney-client privileges, the State Bar drafted a revised policy statement.
He lost several feet of intestine after an automobile accident in college but had more guts than most.
If given a choice, who wouldn't rather have Brett Favre for 17 years than a large intestine?
State Bar of Wisconsin President Tom Basting thanked members of the association’s Board of Governors for endorsing his decision to create the Wisconsin Judicial Campaign Integrity Committee (WJCIC) to help monitor the 2008 state Supreme Court race. The 49-member board manages and directs the Bar’s activities. "I am grateful that my peers from across Wisconsin and all practice areas recognize the unique and important role the Bar is playing in educating voters about the functions of the judiciary and judicial elections in our system of government,” Basting said.
Board members expressed strong support for the WJCIC and its mission at the body’s February 29 meeting at the State Bar Center in Madison.
Civil Justice Tort Reform Update 2012, State Courts White Paper, by Andrew C. Cook, January 10, 2013
Wisconsin Supreme Court Rules Plaintiffs Entitled to Receive "Phantom Damages", by Andrew C. Cook, State Court Docket Watch (Fall 2011)
Court Challenges to Legislatively Enacted Tort Reforms by Andrew Cook and Emily Kelchen, State Court Docket Watch (Summer 2011) [pdf]
Gay Marriage Update: New England, Iowa, Wisconsin, and California, by John Shu, State Court Docket Watch (Winter 2011) [pdf]
The Lonely Death of Public Campaign Financing, by Richard Esenberg, Harvard Journal of Law & Public Policy (Winter 2010) [pdf]
A Kalal for the Wisconsin Constitution, by Daniel Suhr, SSRN (October 11, 2010)
Proposals for Changing Judicial Selection in Wisconsin, State Court Docket Watch (Summer 2009) [pdf]
'Judgments Calls', by Daniel Farber and Suzanna, reviewed by Donald Daugherty, Engage, Volume 10, Issue 2 (July 2009)
Taxes and Textualism: Due Weight Deference to the Wisconsin Tax Appeals Commission, by Richard Esenberg, State Court Docket Watch (Fall 2008) [pdf]
Everyone's Business: Emerging Issues in the Wisconsin Supreme Court, by Richard Esenberg (March 2008) [pdf]
A Court Unbound? The Recent Jurisprudence of the Wisconsin Supreme Court, by Richard Esenberg (March 2007) [pdf]