Sunday, February 28, 2010

A Period of Uncertainty

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

It is an interesting fact that, with three noteworthy exceptions, no man connected with the faction that subsequently fought Gov. La Follette so bitterly can put his finger on the specific act of the governor that first aroused his ire, or name the exact time when he concluded to paint his face, put feathers in his hair, and take to the warpath. Most of them were surprised when they first realized that they had left the reservation and were armed and equipped for battle. At the outset there was considerable interest, not of a hostile character, however, in the steps to be taken to fulfill the platform pledge with respect to primary elections. It was conceded that the pledge must be redeemed and it was supposed that all republicans would be given an opportunity to express their sentiments upon the subject. In his message the governor had explained his theories at considerable length, just as he had explained them in 1898 and on every possible occasion subsequent to that date, with the exception previously noted, during the preceding campaign. It had been the custom in the past for members to call at the executive chamber frequently for informal consultations and conferences on all subjects relating to legislation. The doors of the executive chamber always had been open during office hours, and frequently long into the night during legislative sessions, and visitors were welcomed and made to feel at home.

But conditions were changed now. As the days passed it was noticed that an air of mystery was beginning to gather about the capitol building. Men were called to the executive chamber for conferences, it is true, but they were carefully selected from among their fellows and the consultations were always held behind closed, guarded doors. They were star chamber sessions of the most secret kind. Newspaper correspondents who had had the run of the anteroom of the executive apartments in past years were frozen out entirely or made to feel extremely uncomfortable while there. There was an indefinable something in the atmosphere of the outer executive office that made it impossible for certain visitors to penetrate far beyond the portals with any degree of ease.

Long before any attempt was made to organize a faction in opposition to the governor there was a faction organized and disciplined to carry out his program. His line of battle was formed to fight a foe not yet in existence; his generals, aids and lieutenants were appointed and entered upon the discharge of their duties. The atmosphere of mystery that at first enveloped the executive chamber only, spread to the entire capitol--legislative chambers, committee rooms, corridors, even the cloakrooms and closets. There were little gatherings where whispered consultations were held; there was evasion, suspicion, secrecy on every hand. Every employee in the state house that could be dragooned into the ranks was made a secret service agent in addition to performing his regular clerical duties. Two men would be talking in a corridor and a third would approach; instantly there would be warning glances exchanged and the two would separate, to be seen again a few minutes later continuing the conversation. A true blue administration supporter would shy at the coming of an outsider as if the intruder were afflicted with a contagious disease, for the servant of the executive feared he would be suspected of disloyalty should he be caught in friendly converse with one not yet in iniated into the sacred arcana and possessed of the countersign, grip and password.

All this may sound like a childish fairy tale to one who did not go through that experience, but it is the bald, literal truth nevertheless. Those who visited the state house at Madison during that memorable session either on business or pleasure bent, became conscious at once of the changed atmosphere, the oppressive psychic force with which the capitol was charged as with an electric current. It is this same force that has in the past, under conditions favorable to such results, brought about great religious revivals, panics, or lynchings, as the case might lie.

But although the situation described was enough to cause a dangerous tension, Gov. La Follette did not appear to appreciate that fact, if he is to be given credit for desiring to avoid a factional war. At all events, if his purpose was one in which peace and progress had a part, he displayed a lamentable lack of tact in dealing with members of the legislature. He did not appear to know how to treat with equals. He was wonderfully persuasive at times and his influence over some of his adherents had many of the characteristics of hypnotism. In no other way can be explained their consent to become involved in a political intrigue that would have been in place in a Latin American republic, but which was entirely foreign to Wisconsin methods.

When flattery and cajolery failed and the hypnotic spell would not work, it was the governor’s invariable custom to appeal to the cupidity or fear of the man he wished to influence. The frank, open manliness that should have characterized the intercourse of legislators with one another and with the executive and administrative department was wanting from the day the legislature convened. In place of reason there were plottings. In place of a free interchange of opinions there were lightfooted messengers hurrying about the capitol, mysterious messages delivered with nods and winks and sidelong glances, and star chamber sessions of "friends of the administration."

But Gov. La Follette did not always succeed in his efforts to influence even his friends and hold them in line for the full program prepared by himself. There were three men at least who knew when their attitude of friendliness toward the governor and prejudice in favor of his legislative program ceased. Each was called in turn to the executive chamber for an executive session. Each had ideas of his own which he had expressed freely without having first had them indorsed by the governor. They were brought "under the influence" which was expected to make them pliable and responsive to the word of command. When these men came away from the conferences there was blood in their eyes and their souls were congested with language it were a sin to repeat, or even think.

They made no secret of the fact that they had become insurgents--as they now would he called. The were all state senators and their naumies were O’Niel, Kreutzer, and Riordan.

The condition of public senthent on the primary election movement when the legislature convened in January, 1901, is clearly illustrated by the attitude of the newspapers of that day. As there was no division in the republican party, it will be conceded that the newspapers reflected the real sentiments of the people, so far as the people had been able to form opinions, and that they were not guided by factional prejudices. There had been considerable public discussion of the subject, it is true. In his message vetoing the Hagemeister bill four months later Gov. La Follette told what had been done to inform the voters relative to the merits of the primary election reform. He said:
Whatever was done was solely with the view of stimulating thought and argument of the measure upon its merits. From platform and pulpit, before agricultural societies, good government clubs, political clubs, debating societies, in the school houses and public hails, wherever men were gathered together, the dangers which threatened representative government were discussed, the causes plainly traced to the selection of candidates by the bosses, the vital importance of election by the people by direct vote, and the necessary provisions of a primary law were fully and fairly presented. The press of the state almost without exception gave the subject editorial treatment from time to time, while the leading periodicals and magazines of the country, widely read by our people, devoted much space to its consideration. Hundreds of thousands of pamphlets and addresses presenting every phase of the issue and meeting the arguments and objections of the opposition were distributed throughout the state. The entire matter was thoroughly well understood.
But, granting that a persistent and energetic campaign had been waged in the interests of the movement, there was still a marked lack of enthusiasm manifested, and, so far as the newspapers were able to judge, a grave doubt existed of the ability of the legislature to invent a workable plan for putting the theoretical reform into practical operation. At all events, sentiment was not united in favor of the movement, as the governor appears to have believed.

Few of the leading newspapers in the state pretended to speak with authority on the subject. The Milwaukee Sentinel and Daily News were both unqualifiedly in favor of the governor’s plan of reforming the method of selecting candidates. The Sentinel was at that the the La Follette personal organ, its chief editorial writer, Jerre C. Murphy, having been appointed to the position of private secretary to the governor. The Daily News had, since 1896, been the leading "progressive" democratic paper of the state, and as such it supported the primary election movement from the beginning, although the democratic party had not consistently committed itself to that reform. In 1900 the democratic state platform contented itself with merely condemning the "present caucus law" as a "complicated and expensive nominating system," and favored a revision that would "result in a simple, direct, and inexpensive method of nominating candidates for office."

The Milwaukee Journal adopted a come—let—us—reason—together editorial tone that had all the appearance of suppressed hostility, which later developed into open antagonism. The Evening Wisconsin was noncommittal as to the primary election bill while all the the it was frankly and unmistakably friendly to the governor.

So far as the country press were concerned, there were a large number of the newspapers that did not take part in the discussion, their publishers being manifestly "on the fence," or unable to decide the matter to their own satisfaction. At that time the Milwaukee Journal was devoting considerable space to the country press, printing excerpts from editorials and commenting on them. In newspaper parlance, it was "featuring its state press column." On February 22, 1901, it compiled from that department a list of fifty-nine papers that had expressed opinions on the subject of the proposed primary election law. Of that number twenty-two were friendly to the bill and thirty-seven were opposed to it. Of those that favored the measure, two were independent, three were democratic, and seventeen were republican in sentiment. Of those opposed there were fifteen democratic, twenty—one republican, and one independent. There was at least one republican daily in the interior of the state that was opposed to the movement that does not appear in the Journal’s list.

One feature of the newspaper situation at the worthy of mention was the attitude of the Madison staff correspondents of the Evening Wisconsin and the Milwaukee Journal. The latter paper was represented at Madison by Ellis B. Usher, a gold democrat. The Evening Wisconsin's staff correspondent was Col. Dan. B. Starkey, late private secretary to Gov. Scofield. Both of these men were given considerable lattitude by their papers and they signed their letters. While the papers did not take a stand against the primary movement, both Usher and Starkey made no secret of their personal opposition to the attempt at reform legislation of that character. Col. Starkey, whose work always had been in the news department, naturally gave his letters the appearance of news reports, while Mr. Usher, a former publisher and editorial writer, followed the habit of years and wrote what may be called editorial news letters to his paper. Some of the strongest arguments ever printed against the primary election movement may be found in the letters written by Mr. Usher to the Milwaukee Journal during that memorable session of the legislature.

One of the most important events of the winter--the most important so far as relates to the newspaper situation--was the sale of The Milwaukee Sentinel in February. Up to that time The Sentinel had been owned and edited by ultra—La Follette supporters. By the change of ownership it became the property of Charles F. Pfister, who had been a neutral during the pre-convention period and a supporter of Gov. La Follette in the campaign for the election of the republican state ticket. The editorial announcing the change, written by the new editor in chief. Lansing Warren, indicated that The Sentinel would be a consistent, conservative, loyal republican paper under the new management.

Friday, February 26, 2010

Decision in 'Office of Lawyer Regulation v. Hooker' 2010 WI 13

Wisconsin Supreme Court decision today in this case (2009AP1099-D) ordering six months suspension followed by two years probation, reciprocal to Colorado. Opinion Per Curiam.

See 2009-2010 Term of the Wisconsin Supreme Court.

Order in 'State v. Henley' 2010 WI 12

Justice Roggensack on November 25, 2009 issued a memorandum decision in this case (2008AP697-CR) denying the defendant's motion for disqualification. While a judge on the Wisconsin Court of Appeals, Justice Roggensack was member of a panel that decided a separate appeal by a co-defendant, State v. Adams (2002AP39-CR).

See 2009-2010 Term of the Wisconsin Supreme Court.

Thou shall not kill your case:

Thou shall not kill your case: Younger’s 10 Commandments for cross-examination help lawyers make points, avoid gaffes, by Alex De Grand, State Bar of Wisconsin, reported on a February 5 State Bar continuing legal education seminar “Revisiting Younger’s 10 Commandments”.

They are also revisited in The How-To-Win Trial Manual, by Ralph Adam Fine. According to the publisher, it "demonstrates why many of Irving Younger’s famous Ten Commandments of Cross-Examination are not only also wrong, but why following them significantly reduces your chance of winning."

Thursday, February 25, 2010

Rule-making and the Wisconsin Supreme Court: A primer

Adam S. Bazelon, of Meissner Tierney Fisher & Nichols S.C., Milwaukee, from the Appellate Practice Law Section newsletter De Novo, January 2010

Wednesday, February 24, 2010

State Bar Board of Governors Agenda for February 26, 2010

Agenda for February 26, 2010, State Bar Center, Madison

Meeting of the Wisconsin Judicial Council November 20, 2009

Minutes approved at the January 15, 2010 (?) meeting and posted.

Next scheduled meeting was February 19, 2010.

Decision in 'Office of Lawyer Regulation v. Eisenberg' 2010 WI 11

Wisconsin Supreme Court decision February 18, 2010 in this case (2007AP1083-D) accepting the referee's findings of fact and imposing revocation. Opinion Per Curiam. See 2009-2010 Term of the Wisconsin Supreme Court


CBS unearths vintage Eisenberg interview, by Bruce Vielmetti, Proof and Hearsay

Order in 'State v. Allen' 2010 WI 10

Wisconsin Supreme Court order February 11, 2010 in this case (2007AP795) dismissing the motion for recusal of Justice Gableman.
Opinion Per Curiam.
Concurrence by Chief Justice Abrahamson and Justices Bradley and Crooks.
Concurrence by Justice Crooks.
Concurrence by Justice Roggensack, with Justices Prosser and Ziegler.
Concurrence by Justice Prosser.
Concurrence by Justice Ziegler.
Justice Gableman did not participate.
Per the docket,
On February 4, 2010, Justice Michael J. Gableman informed the members of the court that he was withdrawing from participation in the court's consideration of Allen's recusal motions and was withdrawing his separate written opinion. Only six justices are therefore participating. Three justices, Chief Justice Shirley S. Abrahamson, Justice Ann Walsh Bradley, and Justice N. Patrick Crooks, would order briefs and oral argument, as the parties have requested. Three justices, Justice David T. Prosser, Justice Patience Drake Roggensack, and Justice Annette Kingsland Ziegler, would issue an order denying the motions. Chief Justice Abrahamson and Justices Bradley and Crooks write in support of their proposed disposition. Justice Roggensack, joined by Justices Prosser and Ziegler, writes in support of their proposed disposition. Individual writings by Justices Crooks, Prosser, and Ziegler are also filed. Because the members of the court disagree as to the disposition of Allen's motions as set forth above, the motions are not granted. No four justices have agreed to grant the motions.
See 2009-2010 Term of the Wisconsin Supreme Court


Gableman to remain on case before Supreme Court, by Patrick Marley, Milwaukee Journal Sentinel


Fair Judges or Judge Shopping? by Richard M. Esenberg, Marquette University Law School Faculty blog


A need to curb judge shopping, by Rick Esenberg, Milwaukee Journal Sentinel

The Third Branch Winter 2010

Quarterley newsletter of the Wisconsin courts.

Tuesday, February 23, 2010

Supreme court rules hearings and conferences February 24, 2010

9:30 a.m. In the matter of review of amendments to SCR 20:1.15 Safekeeping Property; SCR 20:1.0 Definitions; SCR 21:16 Discipline; and SCR 12.04 Wisconsin Lawyers' Fund for Client Protection (06-04) Open Administrative Conference on Petition. January 17, 2007 hearing


9:30 a.m. In the matter of the amendment of Supreme Court Rule 40.08 relating to adverse determination of a bar applicant's character and fitness (08-11) hearing on Amended Petition


9:30 a.m. The Petition of the State Bar of Wisconsin to Modify Chapter 72 of the Supreme Court Rules (09-07), hearing on Amended Petition and Supporing memo

Petition filed to permit expungement of records without statutory authorization

AG opposes Bar call to expand courts' record erasure powers, by Bruce Vielmetti, Proof and Hearsay

Wisconsin justices hear arguments over court records: State Bar proposes giving judges more power to expunge, by Todd Richmond, The Associated Press (via WisPolitics)

Supreme Court to continue studying record retention and removal petition, by Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

Supreme Court reviews expunction petition, by Jack Zemlicka, Wisconsin Law Journal


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

Strategic Planning Committee forwards mandatory/voluntary bar report to Board of Governors

Tom Solberg, Media Relations Coordinator, State Bar of Wisconsin, reported on the Board of Governors resolution:
1. That the report of the Strategic Planning Committee attached to this resolution is accepted and placed on file; and
2. That the Wisconsin Supreme Court be asked to review the status of the integrated bar; and
3. That the Strategic Planning Committee is authorized to draft and to file two or more petitions with the Wisconsin Supreme Court requesting that it review the status of the integrated bar and whether it should be modified or made voluntary; and
4. That all members of the Board of Governors are invited to participate in drafting and advancing the respective petitions.
See Future of the State Bar: Mandatory/Voluntary Membership Study

Update: The Moment Is Here, 'President's Message' column by Douglas W. Kammer, Wisconsin Lawyer, February 2010

On appeal, week of February 22, 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), March 2010 (posted December 7, 2009), and April 2010 (updated February 12, 2010)

Wisconsin Supreme Court Pending Cases (updated January 25, 2010)

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

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

Monday, February 22, 2010

Supreme Court arguments February 23, 2010

9:45 a.m. Johnson Controls, Inc. v. London Market (2007AP1868) on the Court of Appeals certification of the issues:
Should a duty to defend be imported from an underlying umbrella insurance policy into an excess umbrella liability policy by language in the excess policy stating that it is subject to the same terms, definitions, exclusions and conditions as the underlying policy “except as otherwise provided”?

Is the excess liability carrier’s duty to defend primary in nature, such that it may be triggered even if the excess policy expressly requires exhaustion of the underlying policy as a precondition to liability and the underlying policy has not been exhausted?
Synopsis at Supreme Court accepts five new cases


10:45 a.m. Ash Park, LLC v. Alexander & Bishop, Ltd. (2008AP1735) review of the Court of Appeals decision, 2009 WI App 71, 314 Wis. 2d 772, 767 N.W.2d 614, on the issues:
May a seller of real estate seek both specific performance, as well as interest on the purchase price, without a requirement that it mitigate damages?

What is the proper procedure that should accompany an order for specific performance by a buyer in a real estate transaction?
a. May a circuit court unconditionally order a buyer to complete a real estate transaction, including paying the purchase price? Must the circuit court consider a buyer’s ability to pay or any other particular factor before issuing such an order: If such an order is proper, is the circuit court obligated to establish a time frame within which the transaction must be completed? What results if the buyer does not complete the transaction as ordered?

b. Alternatively, must the circuit court, as part of an order of specific performance, order that the property be sold at a judicial sale, or must a buyer who is subject to an order of specific performance make some showing in order to obtain an order for a judicial sale? Stated another way, should the “better practice” of ordering a judicial sale, as described in Heins v. Thompson and Flieth Lumber Co., 165 Wis. 563, 163 N.W. 173 (1917), be a required course of action or simply a recommendation for the circuit court to consider in the exercise of its discretion?
Does a seller of real estate have any duty to “mitigate” its harm at any point after a buyer has failed to complete a transaction as required by the parties’ contract? If so, what actions must a seller take to “mitigate” its harm?

Is a seller of real estate who obtains an order of specific performance against a buyer entitled to prejudgment and postjudgment interest? Does an award of interest depend on who has possession of the property? If an award of interest is proper generally, should there be a limit to the periods for which interest can be awarded? How should such a limit be determined?
Synopsis at Supreme Court accepts five new cases

Sunday, February 21, 2010

A Harmonious Campaign


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

Having succeeded in securing the nomination, Mr. La Follette went into the campaign with the solid strength of a united party behind him. There had been defections or bolting on the part of some of his followers in 1896 and again in 1898, but there was nothing of the kind in 1900. His net majority over his four competitors on election day was 103,745. The campaign was a vigorous one, and in every address delivered by him Mr. La Follette explained his primary election theory and appealed for support in his efforts to secure for Wisconsin the great blessings he professed to believe would follow the enactment of such a law.
The student of events will look in vain for any indication of a split in the republican party during the campaign of 1900, or any indication that a political eruption was impending. During the campaign the republican state central committee maintained offices at the Pfister hotel, the old republican headquarters. At the head of that committee as chairman was Gen. George E. Bryant, who was considered as a sort of political godfather to Mr. La Follette, and a large majority of the members of that body were dyed in the wool La Follette men. The campaign expenses were met in the usual way, the usual contributors chipping into the hat to create a fund with which to pay the cost incidental to maintaining speakers in the field, circulating literature, and perfecting a party apparatus in the several counties. A special train was engaged to take the candidate for governor through the state, to the end that he might meet his engagements with as little strain upon his physical strength as possible. All was harmony, cordial good fellowship, and hope that the factional differences that had more than threatened in former years had permanently disappeared.

After the close of the campaign, conditions remained unchanged. The white winged dove of peace had become the emblem of the Wisconsin republicans and she no longer lived in terror of being cooked or eaten raw by frenzied factionists. The republican state central committee met on Dec. 13 at the Pflster hotel and there exchanged congratulations and attended a banquet spread at the behest of their chairman in their honor. On Dec. 1 the governor-elect, who had returned that day from an Indiana health resort, where he had gone to recover from the fatigue of the campaign, gave to The Milwaukee Sentinel an interview which was printed on the first page of that paper the following morning. Brotherly love, harmony, sweet reasonableness and everything desirable and comfortable to have around were the lot of republicans at that particular time. In his interview Gov. La Follette said:
I wish to express my appreciation of the splendid support I recelvéd during the campaign. The campaign was ably managed by Gen. Bryant and Secretaries Host and Richter of the republican state central committee. They ran a thorough, clean campaign, and I commend them for their work and thank them for it. I deeply appreciate the support I had, both here at home and throughout the state. The gold democrats have again demonstrated their fidelity to principle in a striking manner. The large plurality given the republican ticket is a strong indorsement of the principles set forth in the republican state platform and shows that we have a united party to stand for those measures to which the party was pledged at the last state convention.
That was the situation when Robert M. La Follette was inaugurated governor of Wisconsin in January, 1901. He had been elected governor by "a united party." He was governor of the state and as such was entitled to the respect of all citizens, regardless of party. A majority of the members of both houses of the legislature elected with him were in sympathy with every reform movement that had been proposed or mentioned in the platform. No deadfalls had been set to catch him and no pits had been dug for him to fall into. There were men who believed he had made an unjust and malicious attack upon his predecessor, Gov. Scofield, in 1898, who were not too confident of the future, but they hoped for the best and were determined to give him a fair trial. No man could have been inducted into high office under conditions favoring him more than those that attended the inauguration of Gov. Robert M. La Follette.

A brief explanation is required here in order to clear away a mismunderstanding, purposely created, that has influenced the minds of certain citizens. It was said that eleven state senators met in Milwaukee on December 13, at the time of the meeting of the state central committee already mentioned, for the purpose of devising a plan to organize the senate in opposition to the governor. The eleven senators who attended a meeting on that day were composed of three La Follette men, seven who were not unfriendly to him, although they were not in sympathy with what they believed to be his tendency to radicalism, and one who had little if any faith in him, but was willing to give him a chance to "make good." The La Follette men were Edgar G. Mills, Superior; Andrew L. Kreutzer, Wausau, and D. E. Riordan, Eagle River. The "fair minded" senators were Julius E. Roehr, J. H. Green and William Devos of Milwaukee; John Harris, Elkhorn; J. A. Willy, Appleton; H. Hagemeister, Green Bay, and John Reynolds, Kenosha. The one senator who was sleeping on his arm as a matter of precaution was A. M. Jones of Waukesha.

This meeting was held for the purpose of talking over informally the makeup of the senate committees. The state senate, unlike the assembly, selects its own committees. The assignments are not made on the spur of the moment on the day the senate meets. They are the result of conferences, deliberation, correspondence, during which the wishes of the senators themselves are consulted so far as is possible. At the meeting referred to there were eleven members of that body out of a total of thirty-one republicans. At subsequent meetings, all informal and some merely accidental, the subject of committee assignments was discussed. When the members finally came together at the opening of the session the business of this character not already determined--and there had been a number of senators in attendance on the inauguration ceremonies--was closed up. When the senate was called to order on Jan. 9, three resolutions were introduced. Resolution No. 1 invited the clergy of Madison to open the daily sessions of the senate with prayer. Resolution No. 2 instructed the clerk to notify the assembly that the senate had organized and was ready for business. Resolution No. 3 introduced by Senator Stebbins, was the one appointing the committees of that body.

Had the meeting held in Milwaukee been antagonistic to Gov. La Follette, called for the purpose of planning to defeat his pet measure, the committee on privileges and elections would have been packed against the primary election bill. As a matter of fact, the committee before whom that bill would come was made up of Senators Hatton, Miller and Martin, three intense partisans of the governor; Senator Whitehead, a "progressive" who had taken a hand in previous primary legislation, who had helped to frame the corrupt practices act of 1897, and who was a leader in all tax reform legislation; and Senator Jones, the ultra-conservative.

With respect to this matter, one more point remains to be cleared up. In his message vetoing the Hagemeister bill several months later, Gov. La Follette said, among other things:
Immediately upon the organization of the legislature, many weeks before any bill had been offered upon the subject of primary election, it was boastingly announced and published that one of its branches had been so organized as to defeat the passage of any primary election legislation.
If such announcements and publications were made they were without authority and were untrue in substance and detail. Organization to defeat primary election legislation would have begun with the committee on privileges and elections. That commnittee was favorable to primary election legislation. The legislature convened on January 9; the Stevens primary bill was introduced in the assembly by Mr. Stevens and in the senate by Senator George P. Miller on January 28, nineteen days after the two houses convened. At best, nineteen days is not "many weeks," and although the bill for which the fight was finally made was a substitute, the statement of the governor did not specify that particular substitute, but said the alleged organization had been formed "many weeks before any bill was offered upon the subject of primary elections."

Tuesday, February 16, 2010

Fable, with moral

A tribute to backroom deals, and networking the old-fashioned way.

On appeal, week of February 15, 2010

Opinions issued by the Wisconsin Supreme Court (if any) and Wisconsin Court of Appeals

Wisconsin Supreme Court Oral Argument Schedule for February 2010 (updated January 25, 2010), March 2010 (posted December 7, 2009), and April 2010 (posted February 8, 2010)

Wisconsin Supreme Court Pending Cases (updated January 25, 2010)

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

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

Sunday, February 14, 2010

In the Spring of 1900


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

Early in the Spring of 1900 the belief became general that Mr. La Follette would make another trial to win the nomination for governor at the hands of the republican party. That he always had intended to be a candidate there can be no reasonable doubt, but no public declaration of that intention was made until May 16, at which time a mild, conciliatory announcement addressed to the republican voters of Wisconsin was printed in The Milwaukee Sentinel, then owned and managed by men who were his strong partisans. In that announcement the primary election movement was not specifically mentioned, but reference was made to the fact that he had, with others, labored for years "to secure the recognition of certain principles as just, equitable, and republican." As he referred to taxation reforms, presumably as an interpretation of the statement quoted, and as no further hint was given of his purpose to push his primary ideas to a revolutionary issue, little, if any, thought was given to the subject, the announcement being regarded as the formal utterance of a candidate who desired to make the best possible impression without saying anything that would give offense or occasion for alarm.

The announcement opened the campaign in earnest, as five other candidates were then in the field. They were: State Senators DeWayne Stebbins, John M. Whitehead, A. M. Jones, the Hon. Ira B. Bradford and Gen. Earl M. Rogers.

On May 31, as a means of heading off a rumor that he would, if elected governor, use the position to attempt the defeat of U. S. Senator John C. Spooner for re-election, Mr. La Follette came out in a public statement, also printed in The Sentinel, which pledged his absolute neutrality in the selection of a successor to Senator Spooner. He stated in so many words that he would do nothing to interfere with Senator Spooner’s re-election, but that he would confine himself entirely to the duties of his office with the hope of earning and securing a renomination at the expiration of his first term. He intimated that his purposes were peaceful and that he hoped for harmony hereafter.

The closing sentence of this statement was a significant one, in that it shows to what extent he wished it to be understood the change of heart professed by him had affected his attitude toward the other leaders of the party in the state. During the campaign of 1898 an attack had been made upon Gov. Scofield by means of a pamphlet "published by direction of the republican club of Milwaukee county," that was unique in the history of Wisconsin politics. It was so bitter in tone, so malicious in character, so utterly unjust and heartlessly cruel that it raised up friends for Gov. Scofield on every hand. The republican club of Milwaukee county was a La Follette organization and the members were in constant communication with the Madison branch of that republican faction.

In his explanation of May 31, he referred to the pamphlet in the following language:
In this connection, it may be as well to say something with reference to my candidacy of two years ago. My reasons for being a candidate at that the were justified and emphasized by the convention in its platform. It has been largely the faithful observance of the pledges then given which entitles Gov. Scofield’s administration, at this the, to public approval, in which I heartily join. Some phases of that campaign not within my control I should have been glad to have seen omitted. For them I should not be held responsible any more than my opponents in this campaign should be blamed for the personal attacks now being made upon myself.
Historical accuracy demands that the false impression conveyed in the last sentence of the paragraph quoted should be challenged. Mr. La Follette was not slandered, maligned or abused in that campaign by any opponent. His republicanism was questioned, that was all.

Among the first conventions called in the state were the two held in the Waukesha assembly districts, the home of State Senator A. M. Jones, a candidate for the nomination against Mr. La Follette. It was in this county that the decisive battle was fought and won by the friends of the Madison man. Mr. La Follette had a perfect organization in Waukesha and Milwaukee counties and Mr. Jones was weakened by the loss of the anti-La Follette support that had served in the past to keep that gentleman in check. The Waukesha campaign was in the main conducted from Milwaukee; the plans were laid in Milwaukee and a large part of the money required to meet expenses was furnished by the Milwaukee friends. Mr. Jones was defeated in both districts and on June 30, the day the first district convention was held, he withdrew from the race. On July 2 The Sentinel printed the following explanation of the situation at that time:
For two weeks past the air has been full of talk of a combined opposition to the La Follette movement, but it is now freely admitted that this is only talk; that there is no such movement. Mr. Payne, who expects to devote his whole time to the national campaign, is evidently not going to interfere in the preliminary contest for the nomination in Wisconsin or any other state. As a national committeeman and one of the managers of the presidential campaign he will have to be in touch with the various state republican campaigns, including that in Wisconsin, and he can not therefore interfere, although it is no secret that he would prefer some other candidate than Mr. La Follette. There is no sign that either Senator Spooner or Senator Quarles is trying to organize any movement for or against any candidate for governor, and friends of both of them have said they have no such intention. Under the circumstances the possibility of any such movement, if it was ever contemplated by any one, may be said to have passed.
Mr. Bradford retired from the race on July 3; on July 6 Mr. Whitehead withdrew; July 14 Gen. Rogers sent in his announcement of withdrawal; Senator Stebbins held on until July 24, when he, too, stepped out of the race, leaving the track to Mr. La Follette, who at this the had an overwhelming majority of the delegates elected and more than half the counties of the state had held their conventions. And stiil Mr. La Follette held his peace with respect to the primary election idea.

In the latter part of July, however, when his nomination was assured beyond peradventure, Mr. La Follette sent for some of his Milwaukee friends for a conference at Madison. He handed them a copy of his Ann Arbor address on primary elections and asked them to look it over. He explained that he had given the subject deep study, that he understood it thoroughly and wanted a plank in the forthcoming republican platform committing the party irrevocably to the enactment of a primary law. For the purpose of arousing public sentiment he desired that a large number of pamphlets be printed and distributed and asked that the necessary money be contributed to his campaign fund to make this possible. His Ann Arbor speech contained a severe arraignment of railroad officers which was evidently directed against the presidents of the leading lines in this state. Mr. La Follette was told that it would be unfair and an evidence of bad faith to print and circulate at such a time, after months of silence during which he had received the support of the railroad companies through their officers, an address in which those same men and corporations were held up to public scorn as types of everything that is mercenary, dishonest and corrupt. He was also reminded that he had given his personal pledge to the railroad officials that he would cease his unjust attacks upon them in return for their support in the campaign then on, and that he should abide by his promise. He was also reminded that a primary law was no part of the harmony program that he had himself promoted and that if he desired to force a primary plank into the republican platform he should have so stated when he announced himself as a candidate. He acknowledged the force of the argument so far as his reference to railroads was concerned and agreed that the intemperate language contained in the address as it was originally written should be stricken out, but insisted that the pamphlet be printed in revised form and circulated, which was done.

As further evidence of his peaceful frame of mind, Mr. La Follette prepared and printed with the address an introduction in which the astonishing statement was made that primary elections were needed to guard against waves of popular indignation that were likely to injuriously affect legislation. He proposed the primary as a safeguard against aroused public prejudice. Here is his own language on the subject.
For many years, through the press and from the platform, I have earnestly endeavored to fix public thought upon this most important subject, because it is the foundation of representative government. The entire superstructure rests upon the nomination of candidates for office. Under the caucus and convention system a wave of popular interest or indignation may sweep over a state, occasioned by some special or peculiar wrong, and a much aroused public senthent take charge of the nomination of candidates for the time being. But wrongs righted in this way are liable to carry legislation to the extreme, work positive harm to important interests, discredit reform and cause reaction, resulting in disappointment and loss of public interest. Relaxation of public interest invites fresh encroachments upon the rights of the people, and, ultimately, recurring and spasmodic efforts to remedy evils.
The address with the introduction was first printed in The State, Mr. La Follette’s personal organ, during the week ending July 28, and the introduction in The Sentinel on July 28, 1900, all these publications being made after the opposition to Mr. La Follette had collapsed and all the candidates opposed to him, withdrawn.

The platform pledge inserted by the convention at the request of Mr. La Follette was all that he asked. It called for the abolition of all caucuses and conventions and the nomination of all candidates by a direct vote. Its language was unequivocal and definite, as follows:
The great reformation effected in our general elections through the Australian ballot inspires us with confidence to apply the same method in making nominations so that every voter may exercise his sovereign right of choice by direct vote without the intervenion or interference of any political agency. We therefore demand (recommend) that caucuses and conventions for the nomination of candidates for office be abolished by legislative enactment, and that all candidates for state, legislative, congressional and county officers be nominated by a primary election upon the same day by direct vote under the Australian ballot.

Thursday, February 11, 2010

Judge: UW-Madison's $15M donors can stay anonymous

The Associated Press reports in The LaCrosse Tribune
Lawyers for the owner of Brothers Bar & Grill, a popular campus hangout, wanted the donors identified so they could be questioned about their finances and other details of the gift as part of the bar's lawsuit against the university.

The school is using its power of eminent domain to condemn the bar to make way for the proposed music performance building, which would contain two concert halls and likely cost between $43 million and $51 million.

The owner of Brothers - Fortney, Fortney & Fortney LLP - argue in the lawsuit that the condemnation is premature because the building plans may never come to fruition.
(via WisPolitics)

Wednesday, February 10, 2010

Supreme Court arguments February 11, 2010

9:45 a.m. Konneker v. Romano (2008AP1546) review of the Court of Appeals decision on the issues:
On a motion for summary judgment, can the circuit court find that riparian rights, including the right to install a pier, were granted by an easement, where the easement was silent as to riparian rights; where there is no evidence of the original parties’ intent with regard to the scope of the easement; where there was no pier located on the easement, but there were piers located on the riparian servient estate which were used by prior easement holders; and where there is evidence that the primary use of the lake-access on which the easement lies is to enter the lake by boat?

Whether Wis. Stat. §§30.131 and 30.133 apply, and if so, what is the impact of those statutory sections on the issues in this case; see Wendt v. Blazek, 2001 WI App 91, 242 Wis. 2d 722, 626 N.W.2d 78 rev. denied, 2001 WI 88, 246 Wis. 2d 168, 630 N.W.2d 221; Ellingsworth v. Swiggum, 195 Wis. 2d 142, 536 N.W.2d 112, rev. denied, ____ Wis. 2d ____, 537 N.W.2d 572 (1995).
Synopsis at Supreme Court accepts five new cases


10:45 a.m. Grygiel v. Monches Fish & Game Club, Inc. (2008AP2028) review of the Court of Appeals decision, 2009 WI App 102, 770 N.W.2d 749, on the issues:
Does Millen v. Thomas, 201 Wis. 2d 675, 550 N.W.2d 134 (Ct. App. 1996) allow holders of appurtenant easements to expand the use of those easements to access other unrelated lands, subject to a post-use analysis concerning the degree of “burden”?

Should there be a “home base” exception to allow an easement’s scope and purpose be expanded to new non-dominant land, so long as the easement holder touches the dominant “home base” before going to the non-dominant lands, and the easement holder does not actually own the new lands?
Synopsis at Supreme Court accepts five new cases


1:30 p.m. Estate of Sheppard v. Schleis (2009AP1021) bypass of the Court of Appeals granted November 3, 2009 on the issues:
Does Internal Revenue Code §2207B (26 U.S.C. 2207B) require a beneficiary to reimburse the estate for federal tax liability incurred on payable on death (POD) accounts?

When the deceased is intestate, does the doctrine of limited equitable apportionment require the beneficiary of POD accounts to pay both federal and Wisconsin estate taxes incurred on such non-probate property?

Is the beneficiary’s agreement to pay her proportional share of federal and Wisconsin estate taxes enforceable in either law or in equity?
Synopsis at Supreme Court accepts seven new cases

Tuesday, February 9, 2010

Supreme Court arguments February 10, 2010

9:45 a.m. Zarder v. Acuity, A Mutual Insurance Company (2008AP919) review of the Court of Appeals decision, 2009 WI App 34, 316 Wis. 2d 573, 765 N.W.2d 839, on the issues:
Does a policy of insurance mandate uninsured motorist coverage for an alleged “hit-and-run” accident involving an unidentified motor vehicle and an insured where there is no “run,” as that term is understood in the context of Wis. Stat. §632.32(4)?

When an insurance policy covers “hit-and-run” as part of an uninsured motorist provision and the policy does not define the term, does “run” mean to flee without stopping?

Does Hayne v. Progressive Northern Ins. Co. , 115 Wis. 2d 68, 339 N.W.2d 588 (1983) provide a binding legal definition of “run”?
Car Talk: Justices to consider when a motorist has ‘run’ from scene of accident, by Alex De Grand, State Bar of Wisconsin


10:45 a.m. Blum v. 1st Auto & Casualty Ins. Co. (2008AP1324) review of the Court of Appeals decision, 2009 WI App 19, 315 Wis. 2d 822, 762 N.W.2d 819, on the issues:
Whether an insured motorist is entitled to uninsured motorist coverage when he/she is seriously injured by a vehicle that meets the policy definition of “uninsured motor vehicle” and satisfies all of the conditions for coverage set forth in the policy, but the operator of the vehicle possesses insurance.

Whether uninsured motorist coverage should be determined by the ordinary meaning of the terms and definitions set forth in an insurance policy or limited by the court’s interpretation of the minimum coverage required by Wis. Stat. §632.32(4) (See Hull v. State Farm Mutual Automobile Ins. Co., 222 Wis. 2d 627, 586 N.W.2d 863 (1998)).

Whether a Court of Appeals’ decision possesses precedential value after the decision is overruled by the supreme court and the court expressly declines to limit the decision to its facts (See Hemerley v. American Family Mut. Ins. Co., 127 Wis. 2d 304, 379 N.W.2d 860 (Ct. App. 1985) and Hull v. State Farm Mutual Automobile Ins. Co., supra).

Whether an ambiguous insurance policy should be construed in favor of the insured or construed in favor of the drafter.
Synopsis at Supreme Court accepts five new cases


1:30 p.m. State v. Ringer (2008AP652-CR) review of the Court of Appeals decision on the issues:
Under the court’s ruling in State v. DeSantis, 155 Wis. 2d 774, 456 N.W.2d 600 (1990), what is the necessary threshold to show that a victim’s previous rape allegations were untruthful?

May a prior untruthful allegation of sexual assault be proven by extrinsic evidence under State v. Rognrud, 156 Wis. 2d 783, 457 N.W.2d 573 (Ct. App. 1990)?

Did the State waive its right to raise the issue regarding proof by extrinsic evidence?
Synopsis at Supreme Court accepts eight new cases

Justices to consider defendant’s use of prior false allegations of sexual assault, by Alex De Grand, State Bar of Wisconsin

Petition filed to require unpublished opinions in petitions for review

On February 5, 2010 David R. Schanker, Supreme Court Clerk filed a Petition with the Wisconsin Supreme Court
to require the filer of a petition for review to include in the appendix a copy of any unpublished opinion cited under ss. 809.23(3)(a) or (3)(b) on the basis that unpublished opinions are not available in the official case reporters. This petition is intended to complement the Court of Appeals’ petition (Petition 10-01), which proposed a similar rule requiring that the appendix to a brief contain a copy of such unpublished opinions. [See Petition filed to require unpublished opinions in appellate appendices]
In re: Proposed Amendments to Wis. Stat. Rule 809.62(2)(f) relating to content of Appendix to Petitions for Review (10-02)

On appeal, week of February 8, 2010

Opinions issued by the Wisconsin Court of Appeals

Wisconsin Supreme Court Oral Argument Schedule for February 2010 (updated January 25, 2010), March 2010 (posted December 7, 2009), and April 2010 (posted February 8, 2010)

Wisconsin Supreme Court Pending Cases (updated January 25, 2010)

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

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

Monday, February 8, 2010

Supreme Court arguments February 9, 2010

9:45 a.m. Borek Cranberry Marsh, Inc. v. Jackson County (2008AP1144) review of the Court of Appeals decision, 2009 WI App 129, on the issues:
Did the 1978 deed from Jackson County to Borek’s predecessor in title convey the right to extract sand only to the grantee, or to the grantee and his heirs and assigns?

Should the 1978 deed be interpreted in the county’s favor according to Brody v. Long, 13 Wis. 2d 288, 108 N.E.2d 662 (1961) (deeds are to be construed in favor of public bodies)?
Synopsis at Supreme Court accepts seven new cases


10:45 a.m. Groshek v. Trewin (2008AP787) review of the Court of Appeals decision on the issues:
May punitive damages be awarded to a plaintiff who sought and obtained equitable relief?

Does an attorney owe a fiduciary duty to former clients when negotiating and entering into a transaction with them, when they are represented by independent successor counsel, and allegedly have sought out the transaction and initiated negotiations?
Synopsis at Supreme Court accepts four new cases


1:30 p.m. State v. Imani (2008AP1521-CR) review of the Court of Appeals decision, 2009 WI App 98, on the issue:
Whether a remand for a new trial or for a retrospective evidentiary hearing is the appropriate remedy following a circuit court’s omission to conduct a self-representation colloquy under State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997).
Synopsis at Supreme Court accepts eight new cases

ABA Watch February 2010

Latest issue, posted at the Federalist Society's national site, includes:
• Questions for Stephen N. Zack
• Recommendations on Violence Against Women Act, Paycheck Fairness Act, and Nuclear Test Ban Treaty to Be Considered at ABA's Midyear Meeting in Orlando
• Update on ABA and the War on Terror
• ABA Initiative Rates United States as Below Average in Study on Adherence to the Rule of Law

Sunday, February 7, 2010

How the Direct Primary Idea Was Born, Grew, and Flourished in Wisconsin

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

There is much to be regretted by the people of Wisconsin in the history made during the bitter factional feud that broke out in the winter of 1901 in Madison. As is always the case when two wings of a political party engage in a heated controversy in which the personal element plays a conspicuous part, neither side was entirely blameless in this instance. There were men in both factions who at heart were actuated by the highest motives, whose personal integrity should not be questioned, but whose acts on occasions were colored to some extent by their surroundings and associations. Sincere men who tried to do their duty were misunderstood and misjudged by others, equally sincere, who in their turn were misunderstood and misjudged. The trouble at Madison was that the legislative and executive wires were crossed and the wholesome currents of reason and wisdom were short circuited.

The consequence was that the advancement the people had a right to expect from that and succeeding legislatures was made impossible. Reforms that had been well started on the road to ultimate success were side tracked indefinitely. Measures that required the wisest counsel of all members of the legislature to make them workable and effective for good became the subjects of acrimonious debate and the best results were not attained. Undue weight frequently was given to matters of relatively trifling importance; factional advantage was sought on occasions by perniciously active partisans at the sacrifice of the best interests of the state, and the more conservative members of both parties to the controversy were at times swept into the heat of battle against their better judgment, which was held in abeyance for the time being.

It was not the proposition to reform the primaries that brought about the unfortunate outbreak of hostilities beginning in 1901 and continuing through successive campaigns. As has been shown, the work of improving the primaries, begun in 1891, had progressed steadily from that the through successive biennial sessions of the legislature down to the year 1899. The old mass caucus had served its day and purpose and had been summarily deposited in that gulf into which are dumped all worn out institutions that have outlived their usefulness.

The first step toward the entire abolition of conventions as well as caucuses in this state was made in 1897 by the introduction of bill No. 580A by Assemblyman William T. Lewis of Racine, a manufacturer and business man, not a professional politician. Mr. Lewis was not the author of the "Lewis Primary Election bill," as it was afterward called. When he came to Madison there were two subjects in which he was interested and for which he hoped to secure a respectful hearing. One was convict labor, he being opposed to allowing the inmates of the state prison to compete with free labor; the other was the direct nomination of all candidates for office by the voters at primary elections.

Shortly after the opening of the legislature Mr. Lewis called upon Mr. La Follette, then a private citizen practicing law in Madison, having failed in his effort to secure the republican nomination for governor the previous year. Mr. Lewis presented the two subjects mentioned to Mr. La Follette, explained his understanding of them, and asked La Foilette to draw two bills to be presented to the legislature covering those subjects. Mr. La Follette replied that he was so busy at that the that it would be impossible for him to comply with the request, and declined to undertake the task.

Mr. Lewis then laid the matter before another Madison attorney with better results, as he did secure a bill relating to convict labor which he introduced. Some time later the attorney came to Mr. Lewis with the draft of a primary bill, and that, too, was introduced and became the Lewis primary election bill of 1897. It provided for holding primaries on the first Tuesday alter the first Monday in September of each election year and the nomination of all candidates for public office by a direct vote of the party members. The primaries of all parties were to be held at the same time and place, but they were to be in fact separate primaries, as each party was to have its own inspectors, ballots, and ballot boxes, and the voters were expected to state their preferences as to parties and to participate in the nomination of the candidates of the party thus selected, and no other. On April 8 this measure was indefinitely postponed on recommendation of the committee on privileges and elections, the committee that reported favorably on the Mills primary bill already referred to.

The second bill to require nominations by a direct vote was introduced in the legislature in 1899 by Gen. George E. Bryant, afterward chairman of the republican state central committee. This measure was almost identical in its provisions with the Lewis bill and it met the same fate at the session that passed the Lange law extending the scope of the Milwaukee law to the entire state in modified form.

In the absence of evidence to the contrary it is fair to presunme that the Lewis bill was Mr. La Follette's first introduction to the primary idea. Up to that time, although he frequently had appeared as the champion of reforms of one kind or another, he had never proposed the nomination of candidates by a direct vote. He had been defeated in the convention of 1896, an event calculated to make him resentful and cause him to meditate revenge, but it was a year after he had talked with Mr. Lewis that he first gave public expression to his wish to do away with conventions altogether. The Lewis bill was introduced in the assembly on Feb. 10, 1897, and in March, 1898, Mr. La Follette made his famous Ann Arbor speech before the students of the University of Michigan, in which he took an unequivocal stand in favor of the abolition of all caucuses and conventions and the nomination of candidates for state, congressional, legislative, judicial and local offices by a direct vote of the electors, using the Australian ballot. He did not present an outline of a measure to be adopted, but contented himself with proving to his own satisfaction that official and corporate corruption, of which he painted a lurid picture, could only be banished from our states by the application in some practical form to be devised by legislatures of the broad principle of direct nominations. This address was printed in the Chicago Tribune at the time and caused considerable comment. Also it was delivered before the students of the University of Chicago and on every occasion where Mr. La Follette could secure an audience.

The same year, Mr. La Follette became a candidate for the republican nomination for governor a second time and once more he was defeated in the state convention. The campaign was a warm one and the attacks made on Gov. Scofield by Mr. La Follette’s partisans were not calculated to induce the people of Wisconsin to trust the fiery aspirant for gubernatorial honors and his partisans with the government of the state.

The convention of delegates did, however, adopt a platform in which appeared a plank that has since been interpreted to mean that the primary election idea was popular and had been promised to the people of the state. The plank read as follows:
Recognizing that the present caucus and convention law is not free from defects, we favor such legislation as will secure to every citizen the freest expression of his choice in the selection of candidates.
The republican party, aided by democrats, had been endeavoring for eight years to remedy the defects in the caucus and convention system, and they were in a fair way to succeed.

But it must be acknowledged that to Robert M. La Follette should be given whatever credit is due for the ultimate adoption of the primary election system in Wisconsin. While others may have originated the plan and dreamed over its success at some future time, he took the matter in both hands and went out to cultivate the crop, even if he did not sow all the seed. As a platform orator he has strong points. He is intense, he is dramatic, he is forceful. He faces his audiences with flashing eye and a forty-man power energy. He convinces by sheer force of eloquence--not spontaneous, but carefully studied, and therefore effective. His hearers are swept along with a flood of words and sentences which they have no time and usually no disposition to weigh and analyze.

When such a man starts out to popularize a plan or idea he gets a hearing. Mr. La Follette based his advocacy of the direct vote plan of making nominations for office on the allegation that conventions invariably were machine ruled and that the boss, omnipresent in the political world and ranging in degree from the little minnow bosses in the townships and wards to the big whale boss that governed the state, could be overthrown in no other way. He was particularly severe on the railway corporations, and their officials, who were supposed to control party conventions with the help of the bosses, great and small. He professed to see corruption of the most offensive kind on every hand as the sole result of convention manipulation; he saw corporations uniting with professional politicians for the enslavement of the people, the control of legislation, the tempting of executive and administrative public servants from the path of rectitude. The one sovereign remedy that appealed to him was the abolition of conventions. Probably a more depressing, pessimistic word picture of alleged total depravity was never presented to the public for its enlightenment, than the one held up by Mr. La Follette as an accurate portrayal of conditions from which he drew his inspiration to push forward the primary election movement.

Mr. La Follette delivered his address before the students at Ann Arbor in March, 1898. On March 21, 1898, the first draft of a tentative primary bill prepared by L. J. Nash, the Manitowoc lawyer, was printed in The Milwaukee Sentinel. Mr. Nash perfected his measure later, and in August of that year he caused several hundred copies to be printed and circulated among leading men of the state, educators and members of the legislature. It has been said that a copy of the Nash bill was in the hands of the men who framed the primary bill in 1901, but there is no record evidence of that fact.

In presenting his proposed measure for the consideration of public spirited citizens, Mr. Nash did not take the position of an alarmist. He believed public sentiment was changing and that the time was rapidly approaching when there would be no occasion for debate. "If thoughtful men are not now unanimous on this subject it is believed that they will fast become so," he said in a preface to his printed bill. His explanation of the reasons that prompted him to prepare the measure and offer it to students of the subject for examination and criticism were stated in a few words. He said:
The draft of a primary election law presented in the following pages is the offspring of a belief that it has become the duty of the state to take into its own hands the whole machinery by which candidates for public office are selected, and to restrain the activity of political parties within its legitimate field, education; compelling them to abandon office getting mainly through organization and organization mainly for office getting as their principal reason for existence, and to substitute the function of teaching public policy and inculcating political doctrine as their primary object while allowing them to win the great political offices through the success of their propaganda. All this should be done, of course, by laws that are both in their provisions and their administration judicially fair to every party alike and to the unorganized Independent voter.
There is no evidence at hand that Mr. Nash had a selfish motive in preparing and presenting his measure to the public and it must be conceded that he was inspired by worthy purposes. He brought to the task a trained legal mind and an experience as a practicing attorney that had won him distinction at the bar. But at best his knowledge of the subject treated was purely academic. The trials made of the direct vote system of making nominations had been conducted in limited spheres and one of the most serious objections to the plan was thereby evaded.

The Nash bill provided for two primaries. At the first a prelimmary vote was taken to place candidates in the field; at the second the candidates were nominated. The regular election machinery of the townships and wards was to be used for operating the primaries. All primaries were to be held at the same the and place. Existing laws were to be made a part of the new law and the qualifications of voters in the primaries were to be the same as at general elections. The candidates for governor and lieutenant governor were to be nominated at the primary, but it was provided that the candidate for governor was to name the candidates for othar places on the state ticket--to appoint his cabinet as it were, and submit their names to the voters for confirmation or rejection. Provision also was made for placing independent, or fusion tickets in the field.

Friday, February 5, 2010

Petition on submitting evidence in a foreign language in abeyance

The Wisconsins Supreme Court February 4, 2010 entered an order [html | pdf]
that the petitioner's request for an extension of time is granted, and the petitioner may file an amended petition by March 15, 2010. Rule Petition 09-03 is held in abeyance until further order of the court.
In the matter of creation of Wis. Stat. s. 887.27, Wis. Stat. s. 901.08, and Supreme Court Rule 70.155, relating to the submission of evidence originating in a language other than English (09-03)

See Petition filed on submitting evidence in a foreign language

The Juris Default degree

Jamal Thalji of the Tampa Times reports from law school: Live from Stetson: It's Supreme Court Justice Clarence Thomas
Students lined up to ask questions.

One wanted to know why he chose to go into law.

"I was 20 years old, I was booted out by my grandfather after I quit seminary school," he said. "I was lost."
(via Althouse)

Thursday, February 4, 2010

Decision in 'Office of Lawyer Regulation v. Harris' 2010 WI 9

Wisconsin Supreme Court decision today in this case (2009AP283-D) approving the referee's findings of fact and conclusions of law and ordering the stipulated 60 day suspension. Opinion Per Curiam.

See 2009-2010 Term of the Wisconsin Supreme Court

Wednesday, February 3, 2010

Ridiculous

Wisconsin Supreme Court holds that convicting innocent people is a "compelling interest"!

Of Luddites and Lawyers

Luddites complain about how other property owners use their own land, then whine for tax breaks.

State Bar elections:

Our State Bar posts Candidates make pitch for president-elect seat
State Bar president-elect candidates Jay A. Urban, Margaret W. Hickey, Sarah (Sally) Fry Bruch, and James M. Brennan appear on video to explain what they hope to accomplish when they become State Bar president, after serving a year as president-elect.
and Read treasurer and Judicial Council candidate statements; see who's running for division president-elect seats

Decision in 'State v. Carroll' 2010 WI 8

Wisconsin Supreme Court decision today in this case (2007AP1378-CR) affirms the Court of Appeals, 2008 WI App 161, 314 Wis. 2d 690, 762 N.W.2d 404. See Argument.

Opinion by Justice Crooks, with Justices Bradley, Roggensack, Ziegler, Gableman.
¶2 The focus of our inquiry is whether the evidentiary basis for the warrant to search the cell phone was tainted such that the Fourth Amendment to the United States Constitution, or Article I, Section 11 of the Wisconsin Constitution, requires suppression of that evidence under the following circumstances: (1) an officer who had observed Carroll speeding confronted Carroll outside of his vehicle and ordered him to drop an unknown object that he held in his hand; (2) upon retrieving that object, the officer recognized it as an open cell phone and observed on the display screen an image of Carroll smoking what appeared to be a marijuana blunt; (3) the officer kept the phone, scrolled through its image gallery, and saw other images depicting Carroll with illegal items; and (4) the officer answered an incoming call pretending to be Carroll, and during that conversation, the caller ordered illegal drugs. The police obtained a warrant to search the phone. With the warrant, the police obtained time-stamped digital images from Carroll's cell phone. It is that evidence that Carroll seeks to suppress.

¶3 We hold that neither the Fourth Amendment to the United States Constitution nor Article I, Section 11 of the Wisconsin Constitution requires that the evidence be suppressed under the circumstances presented here. In so holding, we are satisfied that the officer was justified in seizing Carroll's cell phone and in viewing the marijuana image, which was in plain view. Further, although the officer was also justified in continuing to possess the phone, we are satisfied that the officer was not justified in opening and browsing through the cell phone image gallery at the time that he took such action. As such, the evidence that the officer gleaned from that conduct was tainted and could not form the basis for a search warrant. However, based on exigent circumstances, the officer was justified in answering the incoming call to Carroll's phone during which the caller ordered illegal drugs. That evidence was an untainted independent source that formed a valid basis for the search warrant when combined with the officer's knowledge of drug traffickers and Carroll's juvenile record, along with the plain view of the image of the marijuana blunt. ...
Dissent by Chief Justice Abrahamson.
¶78 The record in this case falls short of providing the bases for determining (1) whether any information gained from the phone call or the illegal search of the image gallery affected the law enforcement officers' decision to seek a warrant; and (2) whether any information gained from the phone call or the illegal search of the image gallery affected the magistrate's decision to grant the application. What is plainly required, and not present in this record, is for the State to establish as a matter of fact——not as a matter of speculation——that the unlawfully obtained "image gallery" evidence affected neither "the decision to seek the warrant," nor the "decision to issue the warrant." Murray [Murray v. United States, 487 U.S. 533 (1988)], 487 U.S. at 542.
Dissent by Justice Prosser.
¶116 Detective Belsha's affidavit to support the search warrant is problematic for several reasons. First, it should not have contained discussion of the pictures in the photo gallery. Second, in my view, it should not have relied upon the intercepted phone call. Third, it did not refer to the blunt photo on the display screen. Fourth, the affidavit is very heavy in boilerplate paragraphs that have nothing to do with the search of a cell phone. Fifth, the affidavit seriously misleads the reader when it says: "A search of the Carroll [sic] revealed a cellular telephone." This passage immediately follows a discussion of the Carroll vehicle and mistakenly implies that the cell phone was taken from the Carroll vehicle. Sixth, the affidavit states: "Your affiant attaches and incorporates into this affidavit a criminal complaint dated May 22, 2006 in which the target . . . was observed to be involved in activity consistent with drug trafficking." The affidavit fails to acknowledge that this complaint was dismissed before the affidavit was filed and that the complaint involved guns, not "drug trafficking." The unspoken implication is that a person is acting "consistent with drug trafficking" if the person possesses a gun.
See 2009-2010 Term of the Wisconsin Supreme Court


Court finds privacy in cell phone photos, but..., by Bruce Vielmetti, Proof and Hearsay


Illegal police search of cell phone does not invalidate conviction, by Alex De Grand, State Bar of Wisconsin

Decision in 'Office of Lawyer Regulation v. Batt' 2010 WI 7

Wisconsin Supreme Court decision today in this case (2008AP2817-D) approves the referee's findings of fact and conclusions of law and orders the recommended public reprimand. Opinion Per Curiam.

See 2009-2010 Term of the Wisconsin Supreme Court

Tuesday, February 2, 2010

Decision in 'State v. Fischer' 2010 WI 6

Wisconsin Supreme Court decision today in this case (2007AP1898-CR) affirming the Court of Appeals, 2008 WI App 152, 314 Wis. 2d 324, 761 N.W.2d 7. See Argument.

Opinion by Justice Crooks, with Chief Justice Abrahamson, and Justices , Bradley, Crooks, and Prosser [footnotes omitted]
¶2 In its motion in limine, the State sought to exclude the evidence to the extent that it relied on Fischer's PBT results on two grounds: first, that Wis. Stat. §343.303, which prohibits admitting PBT [preliminary breath test] results as evidence in drunk driving cases except for limited purposes that are inapplicable here, means that PBT results cannot be used as the basis for an admissible expert opinion in such a case; and second, that PBT results are not sufficiently reliable to serve as the basis for an expert opinion. Fischer argued that the motion in limine should be denied for two reasons: first, that Wis. Stat. §907.03, which permits an expert to testify as to an opinion regardless of the admissibility of the underlying data on which the opinion is based, is an exception to Wis. Stat. §343.303; and second, that any reading of those statutes that would require the exclusion of the expert's opinion would violate his constitutional right to present a defense. The circuit court and court of appeals ruled that the evidence must be excluded in general on the grounds advanced by the State: that Wis. Stat. §343.303 prohibited the PBT results' use and that PBT results were insufficiently reliable to form the basis of an expert opinion that is admissible under Wis. Stat. §§907.02 and 907.03. Before this court, Fischer expanded his argument to urge the court to abandon the established Wisconsin "limited gatekeeper" approach, where reliability of evidence is a matter for the finder of fact, and instead adopt the federal standard articulated in Daubert v. Merrell Dow Pharmaceuticals, Inc.,[509 U.S. 579, 588 (1993)] where the trial judge has a significant role in determining reliability.
...
¶7 Our analysis does not turn on an evaluation of the reliability of an expert opinion based on PBT results, which after all are routinely relied on to establish probable cause for arrest and have been held to be admissible for purposes other than those prohibited by statute. Because we conclude that the State's countervailing compelling interest and not the reliability of the expert testimony is dispositive of the analysis, there is no reason for us to revisit Wisconsin's well-established role for the circuit court where expert testimony is proffered. The law in Wisconsin continues to be that questions of the weight and reliability of relevant evidence are matters for the trier of fact. As we stated in State v. Walstad, "This is the relevancy test of our rules and we adhere to it." We, therefore, decline to adopt a Daubert-like approach to expert testimony that would make the judge the gatekeeper.
Concurrence by Justice Ziegler, with Justices Roggensack and Gableman.
¶42 ... I conclude that the legislature has spoken, and PBT results are not admissible in an OWI or PAC trial for the purpose of confirming or dispelling a specific alcohol concentration. Even if an expert were to rely upon PBT results to form the basis of an opinion, the test results are still unreliable and inadmissible for the purpose offered in the case at issue. I agree with the majority, however, that this prohibition does not preclude the defense from offering an absorption curve defense. See majority op., ¶6. Still, just as I would not allow the State to introduce this PBT evidence at trial, the defense is precluded from offering an absorption curve defense based upon PBT results. Accordingly, I would conclude as a matter of law that an expert cannot reasonably rely upon PBT results to form an opinion in an OWI or PAC trial.
See 2009-2010 Term of the Wisconsin Supreme Court


Right to present defense trumped: Preliminary breath tests inadmissible, by David Ziemer, Wisconsin Law Journal


Supreme Court upholds inadmissibility of preliminary breath tests, by Bill Novak, The Capital Times (via WisPolitics)


Limit on evidence in drunk driving cases upheld, by Alex De Grand, State Bar of Wisconsin

On appeal, week of February 1, 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)

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

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