Sunday, January 31, 2010

The Development of the Milwaukee Primary Law

Chapter III of Part One of Political Reform in Wisconsin (1910) by Emanuel L. Philipp (see Introduction and Contents)

All experience teaches that first attempts at legislation in a new field, where precedents are wanting and the framers of the proposed statute have only their desire to improve conditions and their native wit to guide them, usually fall far short of perfection. There have been few men in the history of the race who could draft a legislative act that would answer the purpose desired without subsequent changes. Even when the matter under consideration is one that has been mulled over many thes before, it is the rule that many an i must be dotted and many a t crossed before the last word is said on the subject.

This was the case with the Keogh law. It was a crude effort at best, and the result of its trial was that the first bill introduced in the assembly in 1893 was for its repeal. This bill was No. 1A, and it was speedily passed and became chapter 7, laws of 1893.

But the reform effort did not stop here. Milwaukee political leaders and business men were not satisfied to go back to the old system. A new bill was introduced in the senate by Michael Kruszka, who had been promoted to that body by his constituents. This bill was numbered 144S, and upon its passage and publication it became chapter 249, laws of 1893, and was called the Kruszka law. Gov. George W. Peck’s name appears on the original bill on file in Madison.

In this statute, which, like its predecessor, applied only to Milwaukee county, some progress was attained and conventions and delegates were specifically recognized. Provision was made for the organization of township, ward and county committees; for the holding of township and ward caucuses at which local officers were to be nominated and delegates elected to district, city and county conventions; primaries were to be conducted like elections, to be in charge of officers appointed by the committees, and votes were to be canvassed and returns made as in the case of regular elections. Only qualified electors were permitted to participate in these caucuses and penalties were prescribed for all fraudulent voting or attempts to commit fraud.

This bill was also referred to the Milwaukee delegation, which assumed all responsibility for it, and a new law thus came into being and was given a trial in the subsequent campaigns.

When the the came to test the law of 1893 the secretary of the Milwaukee republican county committee, Dr. W. A. Fricke, who was a stickler for order and method and a believer in perfect party organization, found that his work was cut out for him if he was to comply with all its provisions. Not having been built up and fitted together piece by piece as the result of mature experience and educated statecraft, it was found that the act was equally as valuable as an indication of what should be done and what avoided in framing a new law as it was as a statute for the regulation of the primaries. The republicans of Milwaukee county had, as the result of an attempt to comply with the Keogh law of 1891, completed a county organization that was the most perfect of any that had been in existence up to that time. In 1893 the committee had reorganized under the Kruszka law and was in still better shape. Now, in order to comply with the new law as far as possible, forms and blanks were prepared by the secretary and an effort made to follow out in detail every provision made for the government of the primaries. This was found to be a difficult problem and it never was satisfactorily solved.

But the experience gained at the spring election in 1894 was worth all the trouble and money it cost, as it enabled the committee to adopt a set of regulations for use at the primaries in the fall of that year that proved to be of value when the the came to frame a third experimental law in the winter of 1895.

The history of bill number 329S, 1895, is an interesting one. The republican party had once more elected a majority of the two houses of the legislature and Gov. William H. Upham presided in the executive chamber. Senator Kruszka, still in the senate and still interested in caucus reforms, felt that it would be better to have the new bill drawn by him introduced by a member of the dominant party. In this emergency Senator Thomas B. Mills of Superior was appealed to for help and he introduced the measure and championed it, although it still remained a local Milwaukee bill. It was referred to the committee on privileges and elections on Feb. 12 and slumbered in the committee box until April 4.

Meanwhile there had been many conferences on the subject between interested parties, as others besides the original promoters of the movement had become interested. Dr. Fricke, in particular, representing the Milwaukee county republican committee, was active in these conferences. The forms and blanks used at the spring caucuses of the republican party and the carefully prepared regulations drawn up for use in the autumn of that year were brought into the conferences. The result was a substitute bill that more nearly attained the object sought than any previous effort had done as it represented the best thought of leading men in and out of politics in the state at that the. This substitute was reported by the committee, passed both houses, was signed by Gov. Upham, and became chapter 288, laws of 1895.

By this act caucuses were defined and directions given for holding all such meetings under the provisions of this statute; all other gatherings for the purpose of nominating candidates for office or electing delegates to conventions were declared illegal and forbidden. Only qualified electors of the party holding the caucus were entitled to vote, and punishment was prescribed for all who voted or attempted to vote unlawfully. The mode of electing county committeemen was prescribed and the duties of those bodies were defined. Caucuses were to be held in regular election booths to be kept open in city wards from 4 to 9 o’clock p. m., and in towns and villages from 3 to 6 o’clock p. m. County committees were to appoint annually on the first of February three electors in each ward, township, and village, to act as inspectors. Caucuses were not to be held more than two days before the conventions at which the delegates to be elected were to serve. All local officers were to be nominated by a direct vote by ballot at the caucuses and votes were to be canvassed and returns made as at elections. The penal statutes applying to all elections were made a part of the law.

One of the important features of this act was the provision made for placing candidates before the primary, a matter that has caused considerable controversy since the primary law now in force went into effect. The expense incidental to the circulation of nominating papers and much of the labor and cost of ante-primary campaigns were avoided by holding a preliminary meeting at which names were suggested to be voted for at the regular primary. These preliminary meetings were called by the county committee and were held four days before the date set for the caucus. The meetings were regularly called to order by the local inspectors, a clerk was elected, and any qualified elector could be placed in nomination by the mere suggestion of his name. The clerk of the meeting made a record of the names suggested in the order in which they were presented and certified the list to the county committee, which body prepared tickets for the primaries. No other ticket could be used at the caucuses and the voter was required to mark out all the names of candidates for whom he did not want to vote. The board of registration was directed to furnish a list of registered voters to all inspectors of primaries, and voters whose names did not appear on those lists were required to swear in their votes.

As this law applied also to Milwaukee county only, the support that secured its enactment came mainly from that county. By this the, however, there were leaders in other sections of the state who were becoming interested in the movement. They had watched developments in the Milwaukee primaries and were preparing to take steps to enlarge the scope of any workable law that gave promise of assuring clean primaries and a full and free expression of the will of a majority of the party voters at such meetings.1

When the legislature of 1897 met at Madison the people of Milwaukee county had made two trials of the new primary law and they were pleased with it. Not only were the citizens of the metropolis of the state, where the greatest need of primary regulation had been felt, content to continue working under the new system, but leading men of other sections who had taken occasion to observe the operations of the plan were convinced that it was a substantial, workable reform, and were in favor of extending the advantages it afforded to other cities.

For the reasons given a new bill was prepared and introduced, making such minor changes in the statute as experience dictated and providing for extending it, to
all caucuses and meetings of political parties held for the purpose of nominating candidates, or choosing delegates to assemble in convention to nominate any person for public office, to be voted for at any general or municipal election held in all the cities in this state, except as hereinafter provided.
The exception mentioned was placed at the end of the first section and reads as follows:
The provisions of this chapter shall not apply to municipal elections held in cities of the third and fourth class until such cities have adopted the same, as provided in section 11 of this act.
Section 11 explained how the question of the adoption of the plan for making nominations by ballot at primaries was to be submittcd to a popular vote in cities of the third and fourth class.

The principal amendments made in 1897 to the law as it then existed, and as it applied to Milwaukee county were: (a) The hours during which the caucuses were to be kept open in city wards were from 12 m. to 8 p. m. (b) At preliminary meetings the names of persons suggested as candidates to be voted for at the primaries were to be written on slips of paper and deposited in a box. After nominations had closed, the names were to be withdrawn from the box and placed on a list by the secretary in the order in which they were drawn. In that order they were to be printed on the official ballots.

This measure, which was senate bill No. 58, was introduced by Senator Thomas B. Mills of Superior, and met with little or no opposition in either house, so unanimous was the senthent in favor of the effort then being made to find a way by which the initial, or fundamental, meetings of party members could be made as free from objectionable features as possible, thereby encouraging a full attendance and an untrammeled expression of opinion in the selection of party candidates.

Up to this the the men who subsequently became known as primary election reformers had taken no hand in the work of framing the laws to better conditions. The movement had been an evolutionary one, pure and simple, and a majority of the leaders whose pushful energy and persistent determnation had carried it to its then stage of developimment would not be called politicians, if a strict classification were to he attempted. Many who aided them were plain business men who had been sent to the legislature, not because they were reformers, but because they were believed to be men whose brains were capable of doing good, plain thinking. Also, there were business and professional men who held no official positions who gave the movement their moral support.

The final step in the primary evolutionary movement was the passage of assembly bill No. 126, introduced by Louis A. Lange, a Fond du Lac democratic newspaper publisher, which was approved by Gov. Edward Scofield May 3, 1899, and became chapter 341 of the laws of that year. Up to this point there had been steady, substantial progress from year to year, progress dictated by sound judgment and marked by experiments in every campaign. It was a far cry from the Keogh law of 1891 to the Lange bill of 1899. Important were the changes that had been miade, but the movement had been evolutionary in its character from beginning to end.

The law of 1899 extended the operation of the Milwaukee law to the entire state so far as it was believed to be wise at the time. It was made to apply, in a modified form, to all towns, cities and villages. It was essentially an experiment, the purpose being to discover how a law, originally framed to meet the demands of a city where congested wards were to be found and where the voting population of any ward was as numerous as that of an ordinary city in the interior of the state, would work in the rural districts and villages. It had been successfully tried in many of the cities of the second, third and fourth class. The question was, would the rural communities take kindly to it and would it prove beneficial in such places?

No reasonable man can doubt for an instant that, had this movement been permitted to continue, there would have been steady but gradual improvement in the primary laws until approximate perfection would have been attained in statutes that could be made to work smoothly and justly, because they would have been based on ripe experience—-as were the statutes already in force. But this was not to be. Already the revolutionary movement had been foreshadowed by the introduction of a sweeping direct primary election bill in 1897 by Assemblyman William T. Lewis of Racine, in public addresses by Robert M. La Follette, a tentative bill prepared for publication and publicly circulated by Hon. L. J. Nash of Manitowoc, and a bill introduced in the assembly by Gen. George E. Bryant in 1899 as a suggestion of what Mr. La Follette then advocated. In other states the sentiment in favor of a more radical reform measure was spreading. Meetings of reformers were held, states were falling into line, the Outlook Magazine, edited then as now by the Rev. Lyman Abbott, was conducting an energetic campaign, and the demand was becoming general that all conventions for the nomination of candidates for public office be abolished by law. California, Oregon, Minnesota, and Illinois had each adopted or were about to adopt the direct primary system. There was a strong sentiment in New York in favor of the same plan and in other states the campaign was progressing satisfactorily—-from the viewpoint of the reformers.

No specific complaints have ever been registered against the law of 1899. Under that law Robert M. La Folette was nominated for governor of Wisconsin by the republican party in 1900. The story of the revolution that followed is entitled to treatment by itself.






1. The members of the Milwaukee delegation in the legislature in 1895 were:

Senators
James 0. Officer, William H. Austin and Charles T. Fisher, republicans;
Oscar Altpeter and Michael Kruszka, democrats.

In the assembly:
First district—H. S. Dodge (R).
Second district—George R. Mahoney (D).
Third district—G. J. Jeske (R).
Fourth district—Frank Anson (R).
Fifth district—Albert Waller (R).
Sixth district—R. Klabunde (R).
Seventh district—Edward C. Notbohm (R).
Eighth district—E. B. Stillman (R).
Ninth district—C. Winter (R).
Tenth district—Theodore Prochnow (R).
Eleventh district—Chris. Paulus (R).
Twelfth district—Andrew Bonsel (D)
Thirteenth district—B. A. Eaton (R).
Fourteenth district—E. D. Hoyt (R).

Friday, January 29, 2010

Individual Rights and Responsibilities Section opposes DNA bill

Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin, reports
The State Bar of Wisconsin’s Individual Rights and Responsibilities Section is opposing legislation [AB511/SB336]that for the first time would permit the collection of DNA samples from persons when they are arrested for felonies in the state. ...

On appeal, week of January 25, 2010

Opinions issued by the Wisconsin Supreme Court and Wisconsin Court of Appeals

Wisconsin Supreme Court Oral Argument Schedule for February 2010 (updated January 25, 2010), and March 2010 (posted December 7, 2009)

Wisconsin Supreme Court Pending Cases (updated January 25, 2010) adding
Wis. Med. Society v. Morgan (2009AP728) certification
Synopsis at Supreme Court accepts one new case

Wisconsin Supreme Court Pending Rules Petitions (updated December 11, 2009)

Wisconsin Court of Appeals Oral Argument Schedule (updated January 19, 2010)

Thursday, January 28, 2010

Disposition table for November and December 2009, 2010 WI 5

Released January 26, 2010 by the Wisconsin Supreme Court [html | pdf]

See 2009-2010 Term of the Wisconsin Supreme Court

Decision in 'Office of Lawyer Regulation v. Smead' 2010 WI 4

Wisconsin Supreme Court decision January 27, 2010 in these cases (2008AP1467-D and 2009AP843-D) ordering suspension for two consecutive periods of 60 days each. Opinion Per Curiam.

See 2009-2010 Term of the Wisconsin Supreme Court

Wednesday, January 27, 2010

Wisconsin Law School Seeks to Import 'Jersey Shore' to the Great Lakes

Elie Mystal reports at Above the Law on law students' efforts to have the cast of Jersey Shore as commencement speakers. The "Wisconsin law school" referred to is the University of Wisconsin's, "Great Lakes" here being a compliment to the Yahara Chain. This might signal a renewed push for a change of name to University of New Jersey.

(via Althouse)

Tuesday, January 26, 2010

George Weigel, Just War and Obama's Nobel Speech, January 26, 2010

source: Ethics and Public Policy Center, Fellows & Scholars George Weigel of the Ethics and Public Policy Center will speak on the topic "President Obama’s Nobel Speech: Death or Resurrection of the Just War Doctrine?" at Noon on Tuesday, January 26, 2010 in Eisenberg Hall on the third floor of the Marquette University Law School. No reservation is required.

Presented by the Marquette Student Chapter of the Federalist Society for Law and Public Policy Studies and the Marquette Law School Chapter of the St. Thomas More Society.

Update: Obama and the Just War Doctrine, by Matthew Fernholz, Marquette University Law School Faculty Blog

Update 2: Asking the Right Questions About Justifying War, by Alan J. Borsuk, Marquette University Law School Faculty Blog

Sunday, January 24, 2010

The Keogh Law of 1891

Chapter II of Part One of Political Reform in Wisconsin (1910) by Emanuel L. Philipp (see Introduction and Contents)

The first attempt in Wisconsin to regulate primaries by law was the enactment of what was known as the Keogh law, chapter 439, laws of 1891. This act applied to Milwaukee county only, and was placed in the statute books through the efforts of the Milwaukee delegation in the legislature. No platform pledges had been made to reform the Primaries; no campaign had been conducted in the interests of such reform; no public demand made through the newspapers had furnished the inspiration or pointed the way; no meetings were held; no bands were employcd to please or torture the public ear, as the case might be; no impassioned orators appealed to the electorate to rise in its might and hurl from places of power and trust the faithless caucus manipulators. The impossibility of continuing to do party business in an orderly manner at mass caucuses in congested municipal wards had become apparent, and the practice already had been partially abandoned. in a quiet way, therefore, the representalives of Milwaukee voters attempted to crystallize into a concrete plan the nebulous ideas that had ruled in the government of the primaries for a number of years.

In country districts, villages and small cities the mass caucus had not fallen altogether into disrepute at that time. Contests there had been, it is true, and some sharp ones at that, but as a rule township and ward officers nominated in and delegates elected in rural primaries and the smaller municipalities were acknowledged to fairly represent a majority of the parties holding the caucuses. In some sections of the state, like the mining and lumbering regions of the north, complaint was made that at times caucuses were packed and ruled by mob law, and contests in conventions based on charges of that character were not unknown. But these instances were the exception, not the rule.

On the other hand, party managers and public spirited citizens had learned that the members of the parties in a thickly settled ward could not meet in mass caucuses and by a viva voce vote give expression to their choice with any assurance that the will of the legal majority would prevail. Where lines were sharply drawn between conflicting interests it frequently occurred that one or the other side would gain an unfair advantage by introducing nonresident strikers and heelers, members of other parties, toughs and hoodlums, to the disgust of respectable citizens who would thereby be driven away from the caucuses. In seeking a remedy for this condition, the party leaders and committeemen already had adopted a rule in many instances that party primaries were to be held open for at least an hour and voting was to be done by ballot. This was a step in the right direction, but it did not go far enough.

The Keogh bill, No. 136A, was introduced by that veteran democratic legislator, Edward Keogh of Milwaukee, who consented to allow the influence of his name to be used to the advantage of the measure, the democratic party having secured an overwhelming majority at the memorable "Bennett law election" the previous fall. Mr. Keogh had served one term in the state senate and was, at the time this bill was introduced, representing his district in the assembly for the twelfth time. He made it thirteen before he retired permanently to private life. But while he consented to father the bill, his age and the dignity of his position as the oldest member were such that he left to the younger members of the delegation the real work incidental to the passage of the measure. As it happened, Michael Kruszka, then in his first term, full of hard work, enthusiasm, and a desire to do something worth while, became the dry nurse of the measure.

The bill was first referred to the judiciary committee, made up of six democrats and three republicans.1

This committee failed to discover any constitutional obstacles to the passage of the bill but declined to assume responsibility for it and asked that it be referred to the Milwaukee delegation, which was done.2.

But the thought of abolishing conventions had doubtless not entered the minds of the men who were responsible for the enactment of this statute. At all events, the only effect of its operation was to cause delegates to conventions to be classed as officers and their names were placed on the official primary ballots and their elections held under the conditions that obtained in the selection of ward and township officers. It did not occur to the members of the legislature or the people of Milwaukee county that the Keogh law had abolished caucuses and conventions and substituted therefor a sweeping primary election. But such was the case, nevertheless.



1. The democrats were John Winans of Rock county, chairman; James D. Watson, Fond du Lac; Joshua E. Dodge, Racine; Neal Brown, Marathon; Conrad Krez and H. J. Desmond, Milwaukee. The republicans were Orrin T. Williams, Milwaukee; L. H. Mead, Washburn, Charles F. Osborn, Lafayette and Green.

2. Milwaukee was represented that year by the following members of the lower house:
First district, Humphrey J. Desmond (D)
Second district, William J. Friebrantz (R)
Third district, Edward Keogh (D)
Fourth district, Orrin T. Williams (R)
Fifth District, Conrad Krez (D)
Sixth district, William Pierron (R)
Seventh district, Charles H. Anson (R)
Eighth district, Henry Schuetz (D)
Ninth district, Philip Schmitz, Jr. (D)
Tenth district, John Horn (D)
Eleventh district, Ambrose McGuigan (D)
Twelfth district, Michael Kruszka (D)

Friday, January 22, 2010

Court adopts new campaign donation rules

Patrick Marley reports in the Milwaukee Journal Sentinel.
The state Supreme Court adopted rules Thursday that say campaign donations from people and groups with cases before the court are not, by themselves, enough to force judges off cases.
Update: Wisconsin Supreme Court adopts amended recusal rules, by Alex De Grand, State Bar of Wisconsin


See other posts on recusal.

Important Opinions 2009: Wisconsin Court of Appeals Civil Opinions

at Wisconsin Law Journal

Blaska's Blog takes on the Takings Clause

David Blaska at The Daily Page
The City of Madison wants to use its eminent domain powers to condemn seven four-unit apartment buildings in the Burr Oaks neighborhood on Madison’s south side, between Park Street and Fish Hatchery Road, in order to build senior citizen housing which would then be turned over to private ownership.
(via Right On)

Thursday, January 21, 2010

Important Opinions 2009: Wisconsin Court of Appeals Criminal Opinions

at Wisconsin Law Journal

The Lonely Death of Public Campaign Financing

The Lonely Death of Public Campaign Financing, by Richard M. Esenberg. Harvard Journal of Law & Public Policy (Volume 33, Number 1 - Winter 2010) 283

Mr. Esenberg was a panelist at our chapter's March 11, 2008 event, and posts at the Marquette University Law School Faculty Blog and his Shark and Shepherd weblog.

On appeal, week of January 18, 2010

Opinions issued by the Wisconsin Supreme Court and Wisconsin Court of Appeals

Wisconsin Supreme Court Oral Argument Schedule for February 2010 (updated December 22, 2009), and March 2010 (posted December 7, 2009)

Wisconsin Supreme Court Pending Rules Petitions (updated December 11, 2009)

Wisconsin Court of Appeals Oral Argument Schedule (updated January 19, 2010)

Decision in 'Office of Lawyer Regulation v. Omdahl' 2010 WI 3

Wisconsin Supreme Court decision today in this case (2009AP957-D) imposing a public reprimand as reciprocal discipline for two public reprimands received in Michigan. Decision Per Curiam.

See 2009-2010 Term of the Wisconsin Supreme Court

Decision in 'Office of Lawyer Regulation v. Mauch' 2010 WI 2

Wisconsin Supreme Court decision today in this case (2009AP214-D) adopting the referee's findings of fact and conclusions of law and ordering the recommended six months suspension. Decision Per Curiam.

See 2009-2010 Term of the Wisconsin Supreme Court

Wednesday, January 20, 2010

Supreme Court rules hearings and conferences January 21, 2010

9:30 a.m. In the matter of amendment of Wis. Stat. ss. 802.10, 804.08, 804.09, 804.12, and 805.07 (09-01) Petition, on Electronic Discovery

Scope of proposed electronic discovery rules debated at public hearing, by Alex De Grand, State Bar of Wisconsin

Proposed Rules for Electronic Discovery, by Timothy D. Edwards and Matthew Stippich, Wisconsin Lawyer, December 2009

Supreme Court sets 2010 schedule of rule-making proceedings, by Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin


In the Matter of Amendments to Wisconsin Supreme Court Internal Operating Procedures II.B.5, III.A. and III.B.5., Petition, on determing if and by whom requests for rules changes are heard


Proposed order on judicial donations remains up for debate: Court says gifts can't force recusals, but rule needs final approval, by Patrick Marley, Milwaukee Journal Sentinel (see posts on recusal)

Tuesday, January 19, 2010

Petition filed to require unpublished opinions in appellate appendices

On January 13, 2010 Hon. Richard S. Brown, Presiding Judge, Court of Appeals filed a Petition with the Wisconsin Supreme Court to require including "a copy of any unpublished opinion cited under ss. 809.23(3)(a) or (3)(b)", In re Proposed Amendment to Rule 809.19(2) relating to Content of Appellate Appendices (10-01).

Privileges or Immunities

The abstract of Prof. Randy Barnett's latest article on Section 1 of the Fourteenth Amendment.

Settlement paves way for company's expansion

Tom Daykin in today's Milwaukee Journal Sentinel on agreement for sale of land on the north side of the city.
The parcels are owned by Bee Bus Line Inc., which operates at 4330 N. 35th St., just north of the site.

The Redevelopment Authority in December 2007 began eminent domain proceedings to force a sale of the parcels. City officials say the land is needed for a 60,000-square-foot expansion of Integrated Mail Industries Ltd., 3450 W. Hopkins St.

Auld Lang Syne

In his column in Wisconsin Lawyer, our State Bar President Douglas Kammer recalls his joining, in 1977, the effort to make membership volutary.
We came up with a scheme of surveying the members on the subject. The perception was that a democratic effort would demonstrate to the Wisconsin Supreme Court that the majority of lawyers did not want to be compelled to join the State Bar, or any other organization for that matter. We perceived that the court would value the wishes of the lawyers over the wish of the Bar. (We ultimately got a referendum done, but it took a lot of doing. We had to sue the State Bar for the mailing list. If you want details, you can read of our efforts at 86 Wis. 2d 746 and 93 Wis. 2d 385.)
Or here.

Peabody on Stone, Brownstein, and Tillman

In the forthcoming Analogize This: Partial Constitutional Text, Religion, and Maintaining Our Political Order, 2010 Cardozo L. Rev. de novo(Abstract) Bruce G. Peabody responds to several prior articles:

Geoffrey R. Stone, The World of the Framers: A Christian Nation?, 56 UCLA L. Rev. 1 (2008), .

Alan Brownstein, The Reasons Why Originalism Provides a Weak Foundation for Interpreting Constitutional Provisions Relating to Religion, 2009 Cardozo L. Rev. de novo 196

Seth Barrett Tillman, Blushing Our Way Past Historical Fact And Fiction: A Response to Professor Geoffrey R. Stone's Melville B. Nimmer Memorial Lecture and Essay, 114 Penn St. L. Rev. 391 (forthcoming 2009)

Sunday, January 17, 2010

The Direct Primary

Chapter I of Part One of Political Reform in Wisconsin (1910) by Emanuel L. Philipp (see Introduction and Contents)


The direct primary principle is advocated by citizens who believe in sticking as close to the pure democratic form of government as is possible. They believe the citizen should never delegate his rights and powers as a voter to another when it is possible for him to perform his duties and exercise his privileges himself. They believe the right to vote for candidates for office necessarily carries with it the right to assist in nominating those candidates; that the first step in the exercise of the elective franchise is as important as the second; that the right to cast the first ballot in making a direct choice at the primary is as sacred as the right to cast the second ballot on election day.

The motives of the men who, during the last thirty years, have publicly advocated primary election reforms in the several states should not be called in question. In the main these progressives, as they like to be called, have been sincere and unselfish in their devotion to a movement believed by them to be designed to purify politics, to improve the personnel of the office holding class, to dethrone the political boss and put his "gang" out of business, and to encourage the better element of the citizenry to actively participate in primaries and elections. Many of the advocates of the movement have been members of that "better element" about which so much has been said and written during the discussions that have attended the progress a1ong reform lines. With certain glaring exceptions, they have been men in whom the outward and visible sign of an inward office hunger was not too painfully conspicuous. They simply wanted to arrange the nominating machinery so that men of their own kind would be encouraged to take an active part in politics.

Years ago it was argued in the public press and periodicals that good people did not attend mass caucuses because they were convinced the results of those meetings always were determined in advance; that the election of delegates to conventions was "fixed up by some job or ring influence." Also, it was asserted that the better element would not attend political caucuses in the evening or at any hour "at the risk of encountering a crowd, or being hustled or jostled by intoxicated men." That there was foundation in fact for the statements discrediting the mass caucus in large cities does not require argument. Men who know to what extent the hoodlum element carried their excesses at the primaries—-and the elections as well--in metropolitan cities and congested districts, will not make excuses for the abuses complained of or attempt to palliate them.

The result was that the complaints, persistently but not too clamorously made at first, had a tendency to prick the law makers and party leaders to activity and tentative experiments in primary reforms were inaugurated. This was a wholesome movement and it did not call for an acrimonious controversy, as politicians as well as private citizens lent their aid to the effort to remove the defects complained of by judiciously treating the cause. As a matter of fact, from the first voluntary changes in the method of conducting caucuses made by party leaders in Wisconsin before any law on the subject had been enacted, down to the the of the violent outbreak of controversy in 1901, there was little if any public interest manifested in the movement. Yet noteworthy progress was made in the betterment of conditions under which the primaries were held.

In California the primary election idea was recognized by law as early as 1866, and in 1872 that recognition was formally incorporated into the codes. Any party or association of electors in any political subdivision of the state was authorized by law to hold a primary election for the nomination of local candidates and the election of delegates to represent them in conventions called for larger districts in which the voters at the primary were entitled to participate. Other states followed in the footsteps of California. Early in the last quarter of the nineteenth century the city of Baltimore regularly elected its municipal officers from candidates nominated by direct vote of the people of that city without the intervention of party conventions. In Baltimore it was reported that the experiment was eminently satisfactory in its results. At a meeting of the Young Men’s Democratic club of New York, held in that city in Dccember 1881, it was asserted of the Baltimore primaries that
here the primary votes directly for the candidate and the polls are open all day. The result has been the extirpation of the political bosses and an extraordinarily full vote. In 1876, when all the municipal offices were to be filled, 6,200 democrats out of 7,500 registered voted on the nominations at the polls at the primaries. If we could obtain anything approaching to the same proportion of the party vote on nominations of both sides in this city, what a gain It would be!
On the other hand, the experiment in California was not so satisfactory. A citizen of San Francisco complains, in a letter to the Nation Magazine of January 28, 1882, that, while the direct vote primary, when held in the rural districts, uniformly elected a superior class of delegates and nominated good men for office, the result of such elections in the city was that invariably dissensions followed and dissatisfaction was manifested.

Subsequent trials of the primary election plan were made in Georgia, South Carolina, Kentucky, Pennsylvania and other states. In each case, however, the option was given to the party managers to call a primary or to nominate by the old caucus and convention plan. It will be noticed that practically all the early experiments with the plan of nominating candidates by direct vote of the members of the party were made in what may be called one party states, and it was the dominant party that made use of the primary election to nominate its candidates. The minority party in each of the states mentioned had no use for restraints imposed by a primary law. They had no contests for nominations. Their principal trouble was in persuading citizens to accept nominations at their hands to be followed by certain failure of election without any attending glory to take the poison from the sting of defeat or to repay them for the loss of the and the expense incidental to the campaign.

All this time experience, growth, development, were doing their work and prominent men who were known as practical politicians, as well as public spirited private citizens, were becoming more and more interested in a movement to devise a workable plan for regulating the primaries. It may be said all parties and all classes of citizens contributed to some extent toward the solution of the problem, for the democrats in strong democratic states and cities, and republicans in sections where they were in control by reason of their majorities, made changes in the primaries, in many cases without a statutory urge, because they believed the matters pertaining to party government should be left to the control of party members.

In other cases, when it was found that the authority of law would aid the movement, statutes were enacted giving to party committees a legal status, defining their duties and making provisions for the government of primaries. The progress made was purely evolutionary in its character and the changes were so natural and logical, following in one another’s footsteps in so orderly a manner, they did not cause surprise or excite bitter contentions.

Tuesday, January 12, 2010

Polygamy laws violate Equal Protection Clause

If it's a fundamental right to father nine children with four single women, and then ignore them all, how can it not be a fundamental right to marry and support them all?

State Bar election officer candidates

With links to the biographical and position statements they supplied.

On appeal, week of January 11, 2010

Opinions issued by the Wisconsin Court of Appeals

Wisconsin Supreme Court Oral Argument Schedule for February 2010 (updated December 22, 2009), and March 2010 (posted December 7, 2009)

Wisconsin Supreme Court Pending Cases (updated December 29, 2009)

Wisconsin Supreme Court Pending Rules Petitions (updated December 11, 2009)

Wisconsin Court of Appeals Oral Argument Schedule (updated January 7, 2010)

Sunday, January 10, 2010

Foreword to 'Political Reform in Wisconsin'

Foreward to Political Reform in Wisconsin (1910) by Emanuel L. Philipp (see Introduction and Contents)


At no period in the history of our state has there been so much political agitation as has made the last ten years memorable, and at no time, not excepting the stormy years immediately preceding and during the civil war, has so much bitterness been injected into our politics. To the student of history there is something strange and unaccountable in the story of recent political events in Wisconsin. It is an unusual thing to see a community change its public policy, the habits of a lifetime, and its leaders, almost in a breath; it is an unusual thing also to see a state that always has been regarded as one of the most conservative in the union suddenly, as if by the influence of some magic power, transformed into one of the most advanced, impatient, not to say intemperate "reform" states in the entire sisterhood.

While it may be unduly dignifying the change in the political policy effected in Wisconsin at the beginning of the present decade to call it a bloodless revolution, it certainly was more than a mere change of administration, a substitution of one set of state officers for another of the same party. And it came suddenly, almost without warning. Whatever mutterings of discontent previously had been heard had all disappeared. While a peaceful calm rested upon the state following a campaign in which there had been protestations of harmony and good will on all sides; at a time when citizens were looking forward to real progress under the beneficent influences of peace and prosperity, the alarm was suddenly sounded, signal fires were set blazing upon the hill tops, the dogs of war were loosed and the clans were called out in battle array. For what?

The history of the nations of the world records many revolutionary movements in the past, but usually there was a satisfactory and sufficient cause for them. It is found that people are, as a rule, slow to rebel against the constituted authorities without some well defined and clearly understood reason. They may protest against the enforcement of oppressive laws; they may revolt against corruption in public office; they may refuse to be unjustly taxed; or there may be other sins of omission or commission on the part of the public servants or rulers, as the case may be, which have become intolerable and which explain the citizens' determination to have a political house-cleaning for the general public good.

But that was not the case in Wisconsin. The student of history will look in vain in the records of this state for proof of corruption in public office, for evidence of public scandals of any character worthy of consideration. He will find no statutes that were oppressive; he will find no indications of extravagance or waste of public resources by state officials; he will not find statistics to prove that the people were overburdened by taxation for the support of the state administration, for there had been but one state tax for general purposes for nearly twenty years.

A careful and unprejudiced investigation of the facts of history heads inevitably to the conclusion that there was no public necessity for the political disturbance that accompanied the change of administration in January, 1901. The political issues fought out in this state and which engendered so much bitterness, so much intemperate discussion, so much hatred and malice, did not involve any vital principles of government that must be conserved. The contest was merely a struggle for leadership and political power. The "issues" were the means whereby their inventors hoped to attain their ends. They succeeded.

This assertion is sufficiently justified by the experiences of the state under the laws enacted for the reformation of our statutes during the so-called "progressive" period. Certain laws have been amended and other laws have been replaced by statutes radically differing from the originals. The promises to make changes in the laws have been kept to the letter. But the benefits that were to be derived; the advantages that would, it was promimised, follow the enactment of these "progressive" measures as a necessary and logical effect, following a given cause, have not materialized.

The publication of the outline of recent historical events contained in the following pages is not designed to revive factional disputes, which were too bitter to be pleasant, or to kindle anew the fires of discord. But it is believed the people of the state are now in a condition of mental repose that will enable them to run over again the data relating to that period without danger to themselves or their neighbors. By now printing the truth about certain legislation, its origin, the means employed to secure its enactment. and the effect of the laws in operation, citizens will be enabled to weigh the results of the contest in which they have engaged and learn for themselves whether the "reform" secured has been worth what it cost.

Did it pay to drive from public life prominent servants who had won distinction for themselves and their state?

Did it pay to embitter neighbor against neighbor, brother against brother, and friend against friend for the sake of enacting the laws we now have that would not have been passed in the ordinary course of events without a fight?

In preparing this historical review it has been the intention to cover the three important subjects of legislation as fully as was practicable in their proper order. The first subject treated is the primary election law. To the end that the progress made prior to the presentation of the bill abolishing all caucuses and conventions may be understood, the evolutionary movement that led up to the enactment of the Milwaukee primary law and the subsequent extension of that law to the entire state has been traced step by step. The effect of the direct primary law in operation has been analyzed, and the fruitless attempt to strengthen a law that has sorely disappointed its most sincere friends and one that has been repudiated on more than one occasion by its authors and principal champions, are considered.

Following the primary election legislation is a review of the history of taxation legislation which resulted in the creation of the state tax commission, the enactment of important taxation laws and the general reform, so far as was possible in the circumstances, of the taxation system. Great progress has been made in this field of political activity--so much will be shown beyond question. But that progress has not been made on the public platform, at the hustings, or in the columns of the newspapers. The men who are entitled to credit for a greater part of the advance made along tax reform lines are the men who have, with painstaking care, patient effort, deep study and an unselfish devotion to the cause in which they were enlisted, accomplished results. These men have left their marks indelibly on the pages of Wisconsin's history.

The third and last part of the review is devoted to the events which led up to the enactment of laws for the regulation of transportation companies. There is no disposition on the part of the writer of this history to fly to the defense of the transportation companies. This is a history--not an apology or a defense. But there has been so much matter printed about the regulation of corporations; there have been so many extravagant statements concerning public benefits that would be derived from the enactment of laws designed to place the corporations under a more strict supervision by public officers; there have been so many unjust and uncalled for charges laid at the door of public men who did not agree with the radical "progressives" as to the exact form railroad legislation should take; and there have been so many and such extravagant claims of credit supposed to be due for the passage of the laws now on the statute books, it is but just and right to all parties that the facts should be given to the public.

As has been said, this history is not the outgrowth of a desire to revive past disputes. The controversy is ended. The citizens of Wisconsin have now settled down to await the reward of their labors. They have paid the price--will the progressive leaders "deliver the goods?" Have they delivered the goods? If not, why not? There has been time for the primary election law to scatter its blessings over the state: has it done so? There has been ample time for the new taxation system to reduce the taxes of those who were overburdened: have taxes anywhere been reduced? There has been ample time to materialize all or most of time benefits promised as the result of railroad rate regulation by the state: can you find those benefits in your business? These are some of time questions that will be discussed in this review.

Friday, January 8, 2010

A Man of Influence

Jeffrey Rosen in last Sunday's New York Times reviews American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia, by Joan Biskupic. He begins,
...Antonin Scalia has had a greater influence on the way Americans debate the law today than any other modern Supreme Court justice.

and concludes,
As Justice Ruth Bader Ginsburg told Biskupic, “It would be better if he dropped things like: ‘This opinion is not to be taken seriously.’ He might have been more influential here if it did that.”

Thursday, January 7, 2010

Decision in 'Board of Attorneys Professional Responsibility v. Davison' 2010 WI 1

Sex offender ex-lawyer still disbarred, by Bruce Vielmetti, Proof and Hearsay, Milwaukee Journal Sentinel


Wisconsin Supreme Court decision today in this case (1992AP2445-D) agreeing with the referee's report and denying his petition for reinstatement of his license to practice law in Wisconsin. Opinion Per Curiam. See 2009-2010 Term of the Wisconsin Supreme Court

On appeal, week of January 4, 2010

Opinions issued by the Wisconsin Supreme Court and Wisconsin Court of Appeals

Wisconsin Supreme Court Oral Argument Schedule for January 2010 (posted October 19, 2009), February 2010 (updated December 22, 2009), and March 2010 (posted December 7, 2009)

Wisconsin Supreme Court Pending Cases (updated December 29, 2009)

Wisconsin Supreme Court Pending Rules Petitions (updated December 11, 2009)

Wisconsin Court of Appeals Oral Argument Schedule (updated December 16, 2009)

Tillman and Bailey on Federalist No. 77

The final versions of these articles are now available for download.

Seth Barrett Tillman, The Puzzle of Hamilton 's Federalist No. 77, 33 Harv. J.L. & Pub. Pol'y 149 (2010)

Jeremy D. Bailey, The Traditional View of Hamilton ’s Federalist No. 77 and an Unexpected Challenge: A Response to Seth Barrett Tillman, 33 Harv. J.L. & Pub. Pol'y 169 (2010)

Wednesday, January 6, 2010

What the Cap Times Did Not Tell Us About the Wisconsin Supreme Court

Richard M. Esenberg at the Marquette University Law School Faculty blog

See Accurate & Balanced Reporting on the Wisconsin Supreme Court

Supreme Court arguments January 7, 2010

9:45 a.m. State v. Pinkard (2008AP1204-CR) review of the Court of Appeals decision on the issue:
Whether a warrantless search of a defendant’s residence falls within the “community caretaker” exception (discussed in State v. Kramer, 2009 WI 14, 315 Wis.2d 414, 759 N.W.2d 598) to the guarantees against unreasonable search and seizure found in the Fourth and Fourteenth Amendments to the U.S. Constitution and Article I Section 11 of the Wisconsin Constitution.
Synopsis at Supreme Court Calendar and Case Synopses January 2010

Wisconsin Supreme Court to consider reach of police ‘community caretaker’ as warrant exception, by Alex De Grand, State Bar of Wisconsin


10:45 a.m. Volvo Trucks North America v. Wausau Truck Center, Inc. (2008AP1385) review of the Court of Appeals decision (summary affirmance) on the issues:
Did the Division of Hearings and Appeals err as a matter of law by failing to define the term “cure” found in Wis. Stat. §218.0116(1)(i) by its common and ordinary meaning?

Can activities that occurred almost one year after the cure period ended be considered part of cure under Wis. Stat. §218.0116(1)(i)?

Does a motor vehicle dealer that materially breached its dealer agreement fail to cure its material breaches as a matter of law under Wis. Stat. §218.0116(1)(i) by continuing both during and after the cure period has ended with the same conduct that caused the material breach?
Synopsis at Supreme Court Calendar and Case Synopses January 2010

Court posts working draft for "unauthorized practice" rules petition

Draft rule and notice of hearing Monday, March 8, 2010, at 9:45 a.m., in this Wisconin Court System press release.
The court's file already contains all comments and responses filed to date; however, if you wish to provide further written comments, please do so on or before February 26, 2010.
See Board of Governors calls on Supreme Court to approve UPL petition. In the Matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law (07-09)


Update: Supreme Court must approve UPL petition to protect public, State Bar members say, by Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin
...
[sidebar] The State Bar’s activities regarding Supreme Court rule-making petitions are coordinated by the State Bar’s government relations team.

Tuesday, January 5, 2010

Supreme Court arguments January 6, 2010

9:45 a.m. Racine County v. Oracular Milwaukee, Inc. (2007AP2861) review of the Court of Appeals decision, 2009 WI App 58, 767 NW2d 280, on the issues:
Is expert testimony required to prove a breach of contract claim based on timely completion/delay when a contract involves complex interdependent bilateral performance?

What is the proper analysis/criteria for determining whether something is considered a “profession” under Wisconsin law?

Are persons providing computer software programming services relating to customized software considered “professionals” under Wisconsin law?
Synopsis at Supreme Court accepts four new cases


10:45 a.m. Maryland Arms Limited Partnership v. Connell (2008AP1700) review of the Court of Appeals decision, 2009 WI App 87, 769 N.W.2d 145, on the issue:
Can a landlord and tenant contractually agree to affix liability on a tenant for any property damage that, while caused by an act of the tenant, was not caused by the tenant’s negligence or improper use of the leased premises?
Synopsis at Supreme Court accepts eight new cases


1:30 p.m. Office of Lawyer Regulation v. Hupy (2007AP1281-D)

Gableman skips lawyer ads case, by Bruce Vielmetti, Proof and Hearsay, Milwaukee Journal Sentinel

Supreme Court to hear Hupy discipline case, by Bruce Vielmetti, Proof and Hearsay, Milwaukee Journal Sentinel

Monday, January 4, 2010

Michael Greve "Commerce, Competition, and the Court" January 6, 2010


Michael S. Greve of the American Enterprise Institute will speak on on the topic "Commerce, Competition, and the Court: An Agenda for a Constitutional Revival" at a Noon luncheon January 6, 2010 at the Milwaukee Athletic Club, 758 North Broadway. Reservations may be made by printing and completing the registration form and mailing to Federalist Society, c/o Dan Kelly, Suite 1700, 1000 North Water Street, Milwaukee, Wisconsin 53202, for receipt on or before January 4, 2009.

The Federalist Society's national website includes this biography with links to Mr. Greve's publications for the Society.

Presented by the Milwaukee Lawyers Chapter of the Federalist Society for Law and Public Policy Studies.