Tribute to Delmore Schwartz

Conservatives read beatnik poetry, too.

With Justices for All

Alan Brinkley reviews Supreme Power: Franklin Roosevelt vs. the Supreme Court, by Jeff Shesol, on President Roosevelt's "court packing" plan.

In those first years of the New Deal, Shesol suggests, the conservative justices were stunned by the boldness and, they thought, radicalism of the New Deal; their opinions seemed to reflect their alarm and caused them to take positions even more conservative than they had in the recent past. Two years later, similarly stunned by the criticism they were receiving, the justices began to slowly back away from their most conservative views.

Decision in 'Office of Lawyer Regulation v. Loew' 2010 WI 23

Wisconsin Supreme Court decision today in this case (2008AP1416-D) ordering a 60 day suspension followed by conditions on resuming practice. Opinion Per Curiam. See 2009-2010 Term of the Wisconsin Supreme Court.

Decision in 'Board of Attorneys Professional Responsibility v. Schlieve' 2010 WI 22

Wisconsin Supreme Court decision today in this case (1997AP3862-D) denying the petition for reinstatement. Opinion Per Curiam. See 2009-2010 Term of the Wisconsin Supreme Court.

Meeting of the Wisconsin Judicial Council February 19, 2010

Minutes approved at the March 19, 2010 meeting.

Next meeting is scheduled for April 16, 2010.

On appeal, week of March 29, 2010

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


Wisconsin Supreme Court Oral Argument Schedule for April 2010 (updated March 1, 2010)


Wisconsin Supreme Court Pending Cases (updated March 25, 2010) adding

Metro Milw. Assoc. of Comm. v. 9to5 Nat’l. Assoc. of Working Women (2009AP1874-AC) certification
State high court to consider sick day law, by Georgia Pabst, Milwaukee Journal Sentinel

State v. Forbush (2008AP3007-CR) review of 2010 WI App 11

Werner v. Hendree (2008AP2045) review of 2009 WI APP 103

State v. Patterson (2008AP1968) review of 2009 WI APP 161

State v. Conner (2008AP1296-CR) review of 2009 WI APP 143

Synopses of the above at Supreme Court accepts five new cases


Wisconsin Supreme Court Pending Rules Petitions (updated March 25, 2010)


Wisconsin Court of Appeals Oral Argument Schedule (updated March 4, 2010)

The Wisconsin Republican League

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


As this is a history of the primary election movement in Wisconsin it is unnecessary to go into details with respect to all of the incidents that punctuated the political feud born in the opening months of Gov. La Follette's first administration and continuing with increasing bitterness for four years. But, whatever the real cause of the feud may have been, the defeat of the administration primary bill by the state senate was the excuse publicly put forth in justification of the declaration of war by Gov. La Follette himself. There is reason to believe another issue would have been made to serve the purpose had this one failed, for there are ambitious men who can thrive only through agitation. But the primary bill had been defeated and it was therefore made the issue to the defense of which the personal admirers of the governor could be rallied. It was a providential bone of contention that would furnish an opportunity for just the kind of a fight most desired by the Wisconsin Napoleon of politics.

Decision in 'Office of Lawyer Regulation v. Merriam' 2010 WI 21

Wisconsin Supreme Court decision today in this case (2008AP2043-D) ordering the stipulated 90 day suspension. See 2009-2010 Term of the Wisconsin Supreme Court.

Social justice is a euphemism for tyranny

The assertion of positive rights such as health care is just a manifestation of the belief that it is "Better to reign in Hell than serve in Heaven."

John Baker "U.S. Courts and Foreign Law" March 24, 2010

John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University Law Center, will speak on on "U.S. Courts and Foreign Law" at a Noon luncheon March 24, 2010 at the Milwaukee Athletic Club.

To attend, print and mail your registration and indicated fee for receipt by March 22, 2010.

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

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

Decision in 'Solowicz v. Forward Geneva National' 2010 WI 20

Wisconsin Supreme Court decision today in this case (2008AP10) affirming the Court of Appeals, 2009 WI App 9. See Argument.

Opinion by Justice Roggensack, joined by Justices Crooks, Roggensack, Ziegler, and Gableman.

¶2 ... We conclude that ch. 703 does not apply to the Community Declaration because the Community Declaration is not a document that creates condominiums. Rather, the Community Declaration provides the overarching development scheme for Geneva National, a 1,600 acre planned community. Moreover, the Community Declaration does not contravene the protections of ch. 703 because the Developer does not exercise particularized day-to-day control over individual condominiums; rather, particularized day-to-day control of the terms of individual condominiums is vested in the unit owners. Furthermore, because the terms of the Community Declaration are unambiguous, those terms are not required to be reasonable, as well as unambiguous, in order to be enforceable.

Concurrence by Chief Justice Abrahamson.

¶65 Although couched in terms of a declaratory judgment, the relief the plaintiffs seek is for the court to trigger the provision terminating the developer's powers and control. As a practical matter, the plaintiffs ask the court to oust the developer from the governance of Geneva National. Rather than invoking "reasonableness" as a shield to protect against unjust enforcement of the Community Declaration by the developer, the plaintiffs seek to use "reasonableness" as a sword——or at least as a sharp pen with which to rewrite the Community Declaration. The plaintiffs' allegations of unfair control in this case do not justify the potentially dramatic and laborious relief which they ask from the court.

Concurrence by Justice Bradley, joined by Justice Prosser.

¶68 In 2008, the Uniform Law Commission (ULC)[footnote omitted] approved amendments to the Uniform Common Interest Ownership Act. The amendments address a range of significant conflicts between unit owner associations and the individual members of those associations that had arisen in the years since 1994, when the ULC had last considered amendments to this uniform act.
...
¶70 Both uniform acts address aspects of association governance, with particular focus on the relationship between associations and individual members. As common ownership increases, so do the complexities and controversies associated with that form of ownership. Therefore, I suggest that the chief of the legislative reference bureau consider reporting this decision to the law revision committee to examine whether legislation should be enacted to address this evolving area of law. See Wis. Stat. §13.92(2)(j).

Concurrence by Justice Prosser.

¶112 As I see it, petitioners have presented a convincing picture of one-sided control by the developer. However, they have not constructed a compelling argument that the Community Declaration that affords this control is unlawful. They have not pointed to specific Wisconsin statutes that invalidate the Community Declaration nor have they persuaded any justice that "public policy" permits and requires this court to rewrite a 70-page document to give them a better deal. The truth is, this court is not in a position to concoct a remedy for every alleged wrong. In my view, the petitioners have made a strong case for the Wisconsin legislature to adopt the Uniform Common Interest Ownership Act to provide additional protections to unit owners.

See 2009-2010 Term of the Wisconsin Supreme Court.


Supreme court says planned community does not contravene the Condominium Ownership Act, by Deborah G. Spanic, State Bar of Wisconsin

Decision in 'Office of Lawyer Regulation v. Roethe' 2010 WI 19

Wisconsin Supreme Court decision today in this case (2008AP2366-D) adopting the referee's findings of fact and conclusions of law and making the recommended public reprimand. See 2009-2010 Term of the Wisconsin Supreme Court.

Reconsideration denied in 'Office of Lawyer Regulation v. Omdahl' 2010 WI 18

Wisconsin Supreme Court entered an order March 18, 2010 denying reconsideration in this case (2009AP957-D). See Decision in 'Office of Lawyer Regulation v. Omdahl' 2010 WI 3.

See 2009-2010 Term of the Wisconsin Supreme Court.

Petition filed on trust account insurance

On March 16, 2010 Steven J. Kaszarek and Keith Sellen filed a Petition and Supporting memo with the Wisconsin Supreme Court

for an order amending Supreme Court Rule (SCR) 20:1.15(e)(2)a., and comments to SCR 20:1.15(cm)(3) and SCR 20:1.15(e)(2)a., to provide greater protection to the public when a lawyer holds trust property in a credit union.

In the Matter of the Petition for Amendment of Trust Account Insurance and Safety Requirements (10-05)

Petition filed on permanent revocation

On March 16, 2010 Steven J. Koszarek and Edward A. Hannan filed a Petition and Supporting memo with the Wisconsin Supreme Court

for an order establishing standards and procedures for permanent revocation of lawyer licenses in cases where the seriousness of the lawyer’s misconduct and significance of the public interest require.

In the Matter of the Petition for Establishment of Standards and Procedures for Permanent Revocation (10-04)

On appeal, week of March 22, 2010

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

Caselaw Express, Week of March 22, 2010


Wisconsin Supreme Court Oral Argument Schedule for April 2010 (updated March 1, 2010)


Wisconsin Supreme Court Pending Cases (updated March 15, 2010)


Supreme Court accepts five new cases -

Metro Milw. Assoc. of Comm. v. 9to5 Nat’l. Assoc. of Working Women (2009AP1874-AC) certification
State high court to consider sick day law, by Georgia Pabst, Milwaukee Journal Sentinel

State v. Forbush (2008AP3007-CR) review of 2010 WI App 11

Werner v. Hendree (2008AP2045) review of 2009 WI APP 103

State v. Patterson (2008AP1968) review of 2009 WI APP 161

State v. Conner (2008AP1296-CR) review of 2009 WI APP 143


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


Wisconsin Court of Appeals Oral Argument Schedule (updated March 4, 2010)

Health Care

Randy Barnett discusses the constitutionality of "health care reform."

"But the individual mandate extends the commerce clause's power beyond economic activity, to economic inactivity. That is unprecedented. While Congress has used its taxing power to fund Social Security and Medicare, never before has it used its commerce power to mandate that an individual person engage in an economic transaction with a private company. Regulating the auto industry or paying "cash for clunkers" is one thing; making everyone buy a Chevy is quite another. Even during World War II, the federal government did not mandate that individual citizens purchase war bonds."

The Primary Bill in the Senate

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


When the state senate convened in January, 1901, seventeen of the thirty-one republicans in that body were known to be administration men.¹ Of the remaining ten republicans in that body there was not one who would have made a fight against a reasonable primary bill had one been proposed at the beginning and had the methods used to promote it been such as would command the respect of a legislator who does his own thinking.²

From this analysis it is clear that at the outset twenty-one members of the state senate were what may be called "progressives" and were inclined to favor and support a primary bill that would redeem the platform pledge to the fullest extent consistent with safety and sound judgement. For four years Senator Whitehead had led the fight for taxation reforms and aided in the enactment of other progressive legislation which will be mentioned at length under its appropriate headings. Senator Roehr had made a record on insurance and taxation legislation as well as in the perfection of the Milwaukee primary law. Both of these senators, together with Judge Orton and others in the assembly, had even been accused of radicalism, and some of their acts had been criticized as altogether too advanced and tending to approach the danger line.

Yet the conditions that developed during the first six weeks of the legislative session of 1901, already briefly outlined, made it impossible for them to cooperate with the administration that was driving the new red wagon of progress. They were willing to go forward, but they did not believe in trying to reach the end of the journey at one leap. They were willing to experiment with a primary law, but they wanted a law that would not wreck political parties and put a premium on personal politics and the organization of personal machines.

As has been explained, three of the original La Follette men were expelled from the ranks for insubordination and conduct unbecoming soldiers in the administration army--O'Neil, Kreutzer, and Riordan. The four progressives who were disposed at first to act with the administiation, Whitehead, Roehr, Gaveney, and Mosher, were early given to understand that independence of opinion would not be tolerated and they, too, were literally driven into the opposition camp. Senator Bissell was converted to opposition to the primary law by the arguments before the committee. The conservatives naturally fell in with the men who had been ejected from the administration faction and those who had been refused admittance because they could not present proper credentials, and the stalwart faction in the senate was thus made up. Eighteen stalwart votes, to which were added those of the two democrats in the senate, were counted against the primary bill when it came up in that body on April 11.

In order to establish a point of concentration for the opposition forces, Senators Hagemeister and Kreutzer each introduced a bill as a subsitute for the original primary bill No. 73S, introduced by Senator Miller. These measures were introduced on April 9, two days before the original primary bill came up for consideration, and were placed in the files as substitutes No. 1 and 2, respectively. Senator Hagemeister's bill provided for the nomination of candidates for county officers only, while the one introduced by Senator Kreutzer provided for the election of delegates to all conventions, as well as the nomination of county officers, at the primary election. The first was a crudely drawn, brief measure that could not have been made effective had it been enacted into law; the second was more carefully prepared, and, had it passed, would have given an opportunity to fairly test the primary election plan under conditions favorable to success. Senator Kreutzer had taken many of the best features from the Milwaukee caucus law and incorporated them into his bill. Other features that would have added to its strength were omitted, but, on the whole, it was a measure worthy of consideration.

When the vote was taken and the original primary bill was defeated, 20 to 13, offers on the part of the administration senators of compromise measures were made, one after another, in rapid succession, but they were rejected. The Hagemeister bill was put forward by the stalwarts and Senator Hatton offered an amendment providing for the nomination of candidates for county officers and for the legislature by direct vote. Senator Miller offered the original primary bill, with a referendum clause. Senator McGillivray offered an amendment in the form of a substitute which provided for placing the names of candidates on the primary ballot by caucuses and conventions. All were voted down without hesitation.

Senator Kreutzer then withdrew his proposed measure and offered an amendment to the Hagemeister bill in the form of a referendum clause submitting it to a vote of the people, which was carried. The Hagemeister bill was then passed by a vote of 20 to 13.

Where the administration made its mistake was in meeting all early suggestions of compromise with the statement that no material alteration or amendment to the original bill would be tolerated. That is, this was a mistake if the object sought was the enactment of a primary law at that session of the legislature. If it was the governor's purpose to play for position and secure an issue with which to go into the next campaign, the record is clear and no errors can be detected. It was the most astute political move that had ever been attempted in Wisconsin and it succeeded. The entire play was so carefully planned, so cleverly executed, and so cunningly used in the subsequent campaign that it cannot fail to excite the wondering admiration of the ordinary citizen who lacks genius in political manipulation but who approves of success at any cost and by any methods.

An excuse for rejecting the proposed amendments and modifications was found in the fact that they were not in absolute harmony with the platform pledge of the republican party. No measure less radical and revolutionary than the one proposed by the administration would redeem that pledge. But it must be remembered that the platform itself was the work of the same men--or man--who proposed to redeem it by the passage of the administration bill. Those who opposed the radical plank in the platform had not been given an opportunity to vote against it, but that did not count. The plank was in the platform and it stands today as the officially recorded expression of a republican state convention.

The stalwarts made a political mistake when they failed to pass an effective, workable substitute for the administration primary bill. The Hagemeister substitute was not such a measure. Experience in Milwaukee county and some of the larger cities of the state was entirely ignored when that bill was drawn and it was, therefore, a step backward in the evolution of the primary. Had they accepted the substitute offered by Senator Hatton when the Hagemeister bill was pending they would have "played politics" to some effect and in all probability saved the state from the experiences under the present primary law. But they were not in a frame of mind to compromise. The contest had been forced by the administration. Both sides were stripped and gloved for a finish fight; nothing short of a knockout would satisfy either.

Gov. La Follette was justified in vetoing the Hagenmeister bill. He was not justified in sending to the senate an insult in the form of a message. That message, now printed in the official journal of the senate as a permanent record, is a stump speech intended for use in political campaigns and was unworthy of a governor who was addressing representatives of the people. There had been a difference of opinion between the senate and the governor, between the legislative and executive departments, and that difference was upon a subject of legislation. The governor had a right to object to and veto a bill passed by the two houses; he had no right to scold like a fishwife because another bill, which he favored, was not enacted into law. It is not surprising, therefore, that the senate, in a resolution introduced by Senator Roehr, after quoting from the message some of the most violently abusive and demonstrably untruthful paragraphs, wrote into the official records the following protest against the outrage:³

This message, containing these statements, appears at large upon pages 1026 to 1035 of the journal of the senate. We therefore claim our privilege as senators to have it appear upon the record of our proceedings that we do not allow these statements of the governor to pass unchallenged, and that upon any view of his constitutional prerogative we deny that he is justified in thus addressing the legislature. We hold that "no sense of obligation" on the part of the governor can excuse such grave reflections upon the members of the legislature as are contained in the portions of the message above quoted.

We recognize the constitutional right of the governor freely to express his views upon the policy and validity of any legislation submitted to him for his approval but we hold that the use of such expressions as are above specifically referred to, transcend all bounds of official propriety and constitutional right.

We protest, therefore, most earnestly as members of the legislature against the aspersions cast upon our official acts, upon our personal motives, and upon our private characters by the governor in his message to the legislature.

That Gov. La Follette did not succeed in usurping the powers and constitutional prerogatives of the legislature was not his fault. The senate refused to permit him to dictate its action as a legislative body. The result was that, angered at the denial of despotic power which he craved, he wrote the message against which the senate placed upon record an official protest.

After the adjournment of the legislature the administration faction issued a "voters' handbook," in which it was charged that all offers to compromise had been rejected by the senate. This is true. It is also true that all previous offers to compromise had been rejectcd by the executive. The only difference was that the stalwarts, in their innocence and unskilled in shrewd political games of cunning and finesse, failed to put their offers of compromise on record by introducing bills.

It was at this point that the stalwarts were outgeneraled. They considered only the business before them and failed to make a record of their position to he used in their defense before the people in the campaign that followed. They were, most of them, experienced legislators, but they were not masters of the political game. Furthermore, they regarded Gov. La Follette as a republican and did not foresee the bitter fight within the party that was to follow. La Follette had the advantage as he no doubt had his course mapped out at that time.

The stalwarts proposed one amendment after another, but they did not make an official record of that fact. The administration men, on the other hand, when they found their bill was doomed and knowing that, in their present state of exasperation, the stalwarts would not consent to forego the advantage of superior numbers and permit the radicals to pass even a compromise bill, went after a record and they got it. They introduced amendment after amendment only to see them defeated--they were introduced for the purpose of having them defeated. They had no intention of passing them. They did not wish to pass them. Their record play was made in one evening after the close of the debate in which the only question discussed was the one of passing the original assembly bill.

---

1. They were: Senators Anson, Bissell, Burns, Fearne, Hatton, Knudson, Kreutzer, McGillivray, Martin, Miller, Mills, Munson, O'Niel, Riordan, Stebbins, Stout and Wolff. Senators Whitehead and Roehr already had made records as "progressives" that would have led any forecaster who judged by past performances--to use a sporting term--to place them in the same ranks. Senators Gaveney and Mosher, both new members, were progressives also and would, under normal conditions, have acted with the administration.

2. Their names were: Senators Green, Devoes, Eaton, Hagemeister, Harris, Jones, McDonough, Reynolds, Morse and Willy. Senators Jacobs and Weed were the democratic members of that house.

3. It was just such emergencies as this that President George Washington had in mind when he wrote the paragraph quoted below into his farewell address. At the close of his official career, after an experience of two terms in the office of chief executive of a nation of self governing people, the first president saw clearly to what length the lust of power would at times lead ambitious men, and he pointed out the necessity of keeping all public officers strictly within constitutional bounds. His words were not written to apply to a special case. They were a general statement of a principle of government that must be observed if this nation is to remain free and independent. He said:

It is important, likewise, that the habits of thinking in a free country should inspire caution in those intrusted with the administration to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power and proneness to abuse it which predominates in the human heart is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing it and distributing it into different depositories, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern, some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly over-balance in permanent evil any partial or transient benefit which the use can at any the yield.

Decision in 'State v. Wood' 2010 WI 17

Wisconsin Supreme Court decision today in this case (2007AP2767-CR) on certification from the Court of Appeals. See Argument.

Opinion by Justice Crooks, joined by Justices Prosser, Roggensack, Ziegler, and Gableman.

¶4 We are satisfied that Wis. Stat. §971.17(3)(c) and AD-11-97 comport with the due process provisions of the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Wisconsin Constitution for two reasons. First, we conclude that due process does not require a finding of dangerousness to issue an order compelling involuntary medication of a person committed under Wis. Stat. ch. 971. Even if due process required such a finding, there would be no violation because the statutory language of Wis. Stat. § 971.17(3)(c), along with [Mendota Mental Health Institute Administrative Directive] AD-11-97, effectively provide for such a finding. Second, we conclude that due process requires periodic review of the compelled involuntary medication order, and that Wis. Stat. § 971.17(3)(c) and AD-11-97 satisfy that requirement as well. ... Accordingly, we hold that Wis. Stat. § 971.17(3)(c), along with AD-11-97, comport with substantive and procedural due process facially and as applied here. We also affirm the circuit court's orders compelling involuntary medication and denying Wood's motion for relief from the involuntary medication order.

Dissent by Chief Justice Abrahamson, joined by Justice Bradley.

I disagree with the majority opinion in three respects: (1) I conclude that a finding of present dangerousness is required. Section 971.17(3)(c) does not require this finding and therefore is facially unconstitutional as a matter of substantive due process. (2) I conclude, as does the majority opinion, that procedural due process requires periodic review of the medication decision. Section 971.17(3)(c) does not provide periodic review of the medication decision. Accordingly, I conclude that the statute is facially unconstitutional as a matter of procedural due process. (3) I conclude that the Administrative Directive, a nonbinding internal statement of policy, cannot and does not repair the substantive and procedural constitutional defects of § 971.17(3)(c).

See 2009-2010 Term of the Wisconsin Supreme Court.


Wisconsin Supreme Court affirms involuntary medication order, by Deborah G. Spanic, State Bar of Wisconsin


Judging Friday’s SCOWIS Decisions, by Daniel Suhr, Marquette University Law School Faculty blog

Decision in 'State v. Smith' 2010 WI 16

Wisconsin Supreme Court decision today in this case (2008AP1011-CR) affirming the Court of Appeals, 2009 WI App 16. See Argument.

Opinion by Justice Ziegler, joined by Crooks, Prosser, Roggensack, Gableman.

¶39 Pursuant to Wis. Stat. §301.45, the legislature determined that offenders who are convicted of certain statutes must register as sex offenders. Smith was convicted of an offense for which registration is required. We have outlined numerous conceivable, rational reasons why the legislature could have so chosen to include registration for Smith, who was convicted of false imprisonment of a minor, regardless of whether his crime was of a sexual nature. Smith fails to establish that any of these conceivable policy decisions are arbitrarily or irrationally applied to him.

¶40 Accordingly, we affirm the decision of the court of appeals. We conclude that Wis. Stat. § 301.45 is constitutional as applied to Smith because requiring Smith to register under § 301.45 is rationally related to a legitimate governmental interest. Smith has failed to prove that the registration requirements of § 301.45 as applied to him are unconstitutional beyond a reasonable doubt.

Dissent by Justice Bradley, joined by Chief Justice Abrahamson.

¶61 Because Smith poses an as-applied [rather than facial] challenge, the majority must tie the legitimate government purpose underlying the sex offender registry to the facts of Smith's case. Smith contends that there is no rational basis for making him register because it is undisputed "that his underlying conviction had no sexual element or motivation."[footnote omitted] Thus, the question presented is whether the registration requirement is constitutional even though it is undisputed that Smith's crime of false imprisonment was not sexually motivated and involved no sexual act or misconduct.
...
¶65 Contrary to the majority, I conclude that there is no rational basis for requiring Smith, who committed no sexual offense, to register as a sex offender. The government purpose of protecting the public——particularly children——from sexual crimes is not reasonably related to the requirement imposed by law that he register as a sex offender.

See 2009-2010 Term of the Wisconsin Supreme Court.


Wisconsin Supreme Court rejects challenge to sex offender registry statute,
by Deborah G. Spanic, State Bar of Wisconsin


Supreme Court upholds sex offender registration for non-sex crime, by Bruce Vielmetti, Milwaukee Journal Sentinel


Judging Friday’s SCOWIS Decisions, by Daniel Suhr, Marquette University Law School Faculty blog

On appeal, week of March 15, 2010

Opinions issued this week by the Wisconsin Supreme Court and Wisconsin Court of Appeals
Caselaw Express, State Bar of Wisconsin


Wisconsin Supreme Court Oral Argument Schedule for April 2010 (updated March 1, 2010)


Wisconsin Supreme Court Pending Cases (updated March 15, 2010) added the recently accepted cases:

Nestle USA, Inc. v. Wis. Dept. of Revenue (2008AP322) review, 2009 WI App 159, 776 N.W.2d 589

What evaluation standards are to be used by the Tax Appeals Commission to assess specialized manufacturing facilities that have a limited market? (See Wis. Stat. §70.32(1), State ex rel. Markarian v. City of Cudahy, 45 Wis. 2d 683, 686, 173 N.W.2d 627 (1970) and State ex rel. Northwestern Mut. Life Ins. Co. v. Weiher, 177 Wis. 445, 448, 188 N.W. 598 (1922)).

Whether the tax assessment of a manufacturing facility should be based upon its unique value to the present owner or upon market value.

Town Bank v. City Real Estate Development, LLC (2008AP1845) review, 2009 WI App 160, 777 N.W.2d 98

In a construction finance contract, is an integration clause to specifically identify and expressly negate antecedent agreements required before parol evidence may be barred to determine the contracting parties’ intent? (See Federal Deposit Ins. Corp. v. First Mortgage Investors, 76 Wis. 2d 151, 157-58, 250 N.W.2d 362 (1977) and Dairyland Equip. Leasing, Inc. v. Bohen, 94 Wis. 2d 600, 607-08, 288 N.W.2d 852 (1980)).

Is parol evidence that does not conflict with a subsequent written agreement always admissible to show whether an antecedent agreement was intended to be superceded?

State Supreme Court to review Wisconsin Tower loan dispute, by Tom Daykin, Milwaukee Journal Sentinel

State Supreme Court to hear condo case, by Pete Millard, The Business Journal of Milwaukee (via Milwaukee News Buzz)

Brethorst v. Allstate Property and Casualty Ins. Co. (2008AP2595) certification

Whether a finding of wrongful denial of benefits is a condition precedent to proceeding with discovery in a first-party bad faith claim based on wrongful denial of benefits.

In a first-party bad faith claim, if a finding of wrongful denial of benefits is a condition precedent to proceeding with bad faith discovery, does the trial court err if it refuses to grant the insurance company’s motion to bifurcate the issues for discovery?

Do the same policy considerations that make it error for the trial court to refuse a motion to bifurcate simultaneous bad faith and breach of contract claims – avoiding undue prejudice to the insurance company, avoiding jury confusion and promoting settlement – make it error to refuse a motion to bifurcate the same two issues when the insured’s only claim is bad faith?

State v. Carter (2008AP3144-CR) review, 2009 WI App 156, 775 N.W.2d 297

Do violations of Illinois’ zero tolerance (absolute sobriety) law count as prior offenses for sentence enhancement purposes under Wisconsin’s Operating While Intoxicated (OWI) Law (Wis. Stat. §§346.63 and 346.65)?

What methodology are trial courts to employ in determining whether to count out-of-state OWI-related offenses for sentence enhancement purposes under Wis. Stat. §343.307?

High court to consider rules for out-of-state OWIs, Wisconsin State Journal (via WisPolitics)

Synopses of the above cases at Supreme Court accepts four new cases

Update: State high court to consider sick day law, by Georgia Pabst, Milwaukee Journal Sentinel


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


Wisconsin Court of Appeals Oral Argument Schedule (updated March 4, 2010)

The Pitched Battle

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


The contest came to a head when the primary election bill was reported by the committee of the assembly and the vote on passing it to engrossment and third reading was taken. Day by day the men opposed to the measure had been gaining confidence. They even ceased talking about compromises as they began to hope they could defeat the measure entirely. They no longer urged that as a last resort the question be submitted to the people by referendum. Dozens of men who had maintained a neutral position at first now came out in opposition to the measure, having heard the arguments before the committee and given the subject consideration on their own account. There was a distinct educative value attached to the controversy and the seeds sown were beginning to sprout.

Another factor was beginning to have an effect on the situation. The close friends of the administration were attempting to convey the impression that they were the anointed ones and in possession of the ark of the covenant. To them was given the right to speak with authority and they must be obeyed. To disagree with the governor was represented as a peculiar species of treason complicated with impiety, blasphemy, and lese majeste. Men who dared to express opinions without having first had them vised at the executive chamber by the governor himself or by "Jerre" became politically unclean and were classed under three general heads as "corruptionists," "corporation corruptionists," or "corrupt hirelings." The spirit of the master was breathed into the members of the faction and it was bitter as gall.

On Monday, March 18, the bill came before the assembly in the form of a substitute reported for passage by the committee, Assemblyman John C. Karel dissenting. There was no material difference between the substitute and the original bill.¹ It was placed on the calendar for Tuesday, the following day, and made a special order for the evening of that day, the purpose being to railroad it through under the whip.

Columns have been written and printed about that memorable session of the assembly, beginning at 7:30 p. m., March 19, 1901, and closing in the chill of an early March morning. In his veto message returning the Hagemeister bill to the senate weeks later, Gov. La Follette told the story as he wanted it printed in the legislative records. Magazine contributors who revel in descriptive writing have painted word pictures of it that were as vivid as a rarebit dream. Stump speakers have described it in language that made their audiences gasp and wonder to what extremities staid old Wisconsin was drifting. And yet, it was not such a remarkable session.

Before the bill could be brought to a vote, the question being on engrossment and third reading, one of the members who was opposed to its passage moved a "call of the house" and his motion was supported. The member who made the motion was E. A. Williams, a republican, who lived at Neenah. This was not such an extraordinary proceeding. A "call of the house" had been made that same day, March 19, on motion by Assemblyman Eline of Milwaukee, when senate bill No. 394 was under consideration. A motion to suspend the rules and act on the bill at once had just been taken and resulted in a vote of 65 to 19 in favor of the motion. Mr. Eline, who was opposed to the bill, then moved a call and he was sustained. In the case of the primary bill, a motion to substitute the committee bill for the original Stevens bill had been made and resulted in an affirmative vote of 53, negative 39, there being at that the eight absent members. Had the friends of the bill been able at any the during the night to muster fifty-one votes they could have raised the call.

While the call was in force the members could transact no other business. The sergeant at arms was out looking for members absent without leave. The only motions that could be entertained were "to dispense with further proceedings under the call," or "to adjourn." Until the call could be raised, therefore, the only thing the members could do was to visit. A long night passed under such conditions naturally calls for some means of relieving the monotony and passing the time, but there was nothing doing in the assembly chamber that night that need call for special remark; nothing that ninety-two big, robust men, awake and looking for amusement, would not be likely to do under similar conditions at any time.

But Gov. La Follette did not see in that session an ordinary occurrence. To his mind there was malicious villainy and corrupt plotting at the bottom of the entire business. Although his veto message was not written until nearly two months later, his story of the conspiracy that came to a head on that eventful night is worth repeating and should be considered in the light of known facts. He said:

Before the introduction of the primary election bill the attempt was made to arouse distrust concerning it, and to thoroughly discredit the measure in advance. Upon its presentation to the legislature--so framed as to comply with the pledge made to the people of the state--a systematic campaign of misrepresentation of the bill and its supporters was industriously prosecuted. The general purpose of the measure, the plain meaning of its provisions, the certain effect of the law in operation, the necessary and reasonable expense, each and all furnished theme for persistent falsification and malicious assault. An array of federal officeholders, joining with certain corporation agents and representatives of the machine in the regular legislative lobby, moved upon the capitol, took possession of its corridors, intruded upon the legislative halls, followed members to their hotels, tempted many with alluring forms of vice, and in some in stances
brought them to the capitol in a state of intoxication to vote against the bill. This sets forth in part the character of the opposition, but omits to take account of some of the means used, or attempted to be used, to prevent the passage of the measure.

This sounds like an indignant protest against specific acts believed to be subversive of good government and in conflict with the higher political ethics. But before sharing in the governor’s indignation it is best to examine certain self evident facts that require no affidavits to establish their reliability.

It is impossible to find a record of any "campaign of misrepresentation of the bill and its supporters" after the bill was introduced and while it was pending before the committee. The columns of the newspapers do not give any indication of such a campaign. The speeches made before the committee do not furnish the evidence required. The fact that the opposition was entirely at sea during that time was well known. With the exception of Mr. Monahan, who adopted as his motto, "pass the bill or kill it," those opposed to the measure were in favor of a compromise, a fact that is made evident by Mr. Chynoweth’s statement that a compromise would not be considered.

Second--It is charged in the complaint that the campaign of misrepresentation had to do with the "general purposes of the measure, the plain meaning of its provisions, the certain effect of the law in operation, and the necessary and reasonable expense." Wisconsin people of today are in a position to know whether these points were misrepresented or fairly considered.

Third--When the bill came up in the assembly under special order there was a call of the house. A roil call revealed the fact that five members were absent without leave and two with leave. No business could be transacted until the five members were found and escorted to the chamber, and no members could leave the chamber while the call was in force. As this was the time when the mob is supposed to have taken possession of the capitol, it may be of interest to note that members could not be "followed to their hotels" at a time when they could not leave the chamber, and no man in his right mind would tempt a member with "alluring forms of vice" under the conditions that obtained in the chamber.

Fourth--The "array of federal office holders" consisted of James G. Monahan, William G. Wheeler, and Henry Fink. These men were present during the evening out of curiosity and an aroused interest in the question before the assemnbly. Two of them had offices in Madison, and, having been interested in public affairs for years, naturally drifted to the assembly chamber on that evening. Neither of them remained until the close of the act. Mr. Fink was in Madison on business. He did not go there to attend the session, but, being there, he spent a part of the evening at the capitol, as is his custom.

Fifth--If by "certain corporation agents" is meant the railroad representatives at Madison, every member of the legislature knows that they did not take a hand in the proceeding that evening. There were important bills pending before the legislature in which the railroads were interested and their representatives were careful not to offend the governor. There had been no breach between the corporations and the governor at that time. That came later. The primary bill did not affect the railroads in any way and their representatives were wise enough to keep "hands off" where the governor’s pet measure was concerned. Even if they had been disposed to oppose the bill, open opposition on their part would have been sheer madness, and no one ever accused them of not knowing their business.

Sixth--There was an unusual number of people at the capitol during the early hours of the night when the call of the house was in force. Many of them were interested in seeing the pending bill defeated while others were interested in seeing it pass. All had a right to be there. All were citizens of the state. The debate had aroused interest in the measure and the knowledge that it had been made a special order for that evening called out a crowd, but the crowd did not all go there to work for or against the bill. They were there out of curiosity, nothing more, and they did not stay until the end. The workers for the bill were as active, if not more so, than those who opposed it. Any reflection on the activity displayed by the opponents of the measure will reflect with equal force upon its friends.

Seventh--It is true that there was one instance, where a member was brought to the capitol "in a state of intoxication." The case of this member was a peculiar one. When sober he was inclined to question the divine right of the governor; when intoxicated he was an ardent administration supporter. He was under the influence of the administration workers when he became intoxicated on that particular occasion, but he was stolen by the opposition and locked in a committee room to sober off. There were dozens of men in attendance that night who knew the facts relating to this incident. It was common knowledge among the members of the legislature. The search for the missing man by the administration runners was a warm one, but they did not find him until the opposition were satisfied that he knew "where he was at." He was reported present at 10 o’clock p. m., and remained in the chamber during the night. He was entirely sober when he voted against the bill the following morning.

Another member who had slept off the effects of copious potations during the night was brought to the assembly chamber in the morning by the sergeant-at-arms and Henry Overbeck, an administration "whip." This man voted to raise the call and to pass the bill. While he was not in a state of intoxication when brought to the chamber, he was suffering from recent overindulgence and refused to accompany the officer to the capitol until he was given a "bracer" to steady his nerves. The search for this member was a long one because he had realized his condition and found a hiding place into which the searchers could not penetrate. These were the only men who were "brought to the chamber" to vote. This is the foundation upon which was built that part of the charge laid at the door of the legislature by Gov. La Follette which relates to the use of liquor as a corrupting agent on that particular occasion.

This may not. be as interesting a story of the all night session of March 19, 1901, as the one told by the La Follette press bureau later, but it has the advantage of being literally true and uncolored. What it lacks in sensationalism, in picturesqueness, in dramatic force, it makes up in veracity and harmony with the facts.

When morning came the administration forces had secured enough votes to order the bill to engrossment and third reading and they raised the call by a vote of 52 to 45. The previous question was ordered by a vote of 56 to 41 and the bill was ordered to a third reading by the same vote. It is manifest that some of the men who favored the passage of the bill--or at least voted for it when it came up--aided in preventing the call from being raised. There was no debate on the measure.

An analysis of the vote by which the primary election bill was ordered to a third reading discloses the fact that--to adopt the terms that later came into use to designate the factions--of the 56 votes for the measure 13 were cast by stalwarts, 2 by democrats and 41 by half breeds. Of the 41 votes against the measure, 26 were cast by stalwarts and 15 by democrats.

When the vote on the final passage of the measure was taken three days later, but 9 stalwarts voted in the affirmative while 31 voted against it. Of the democrats 2 voted for and 16 against the bill. Forty-one half breeds, all there were in the assembly, voted in the affirmative. Had it not been for men who later became stalwarts, the primary election bill would have failed in the assembly.²

---

1. The members who signed the report were E. H. Steiger, chairman; E. Ray Stevens, who gave his name to the bill; W. W. Andrew, W. J. Middleton, L. N. Coapman, and John A. Henry.

2.The vote by which the bill was ordered to engrossment and third reading was as follows: (Assembly Journal, page 589)

Ayes.--Messrs. Ainsworth, Anderson, Andrew, Babb, Brunson, Cady, Clark, Coapman, Cook, Dahl, Duerrwaechter, Erickson, David Evans, Jr., Fenlon, Frost, Galaway, Gilman, Haggerty, Hall, Hanson, Henry, Hodgins, Holland, F. Johnson, H. Johnson, Jones, Krumrey, Lane, Lenroot, McCormick, McGill, McMillan, Manuel, Middleton, Overbeck, Park, Price, Rankl, Roe, Rogers, Root, Rossman, Sarau, Silkworth, Smalley, Steiger, Stevens, Sturdevant, Swenhoid, Thomag, Valentine, Whitson, Willott, Young, Zinn, and Mr. Speaker.--56.

Noes.--Messrs. Barker, Barlow, Benson, Burdeau, Cleophas, Collins, Dodge, Dow, Eager, Ela, Eline, Evan W. Evans, Fessenfeid, Flaherty, Gagnon, Gawin, Hartung, Jenson, Johnston, Karel, Katz, Keene, Kern, McCabe, McComb, Maloney, E. A. Miller, Minor, Norton, Orton, Owen, Pomrening, Rasmussen, Schellenburg, Slade, Smith, Soltwedel, Spratt, Thiessenhausen, E. A. Williams, and J. C. Williams.--41.

Petition filed for higher rates for court-appointed lawyers

On March 5, 2010 Dean A. Strang, John S. Skilton and Timothy W. Burns filed a Petition and Supporting memo with the Wisconsin Supreme Court

for an amendment to Supreme Court Rule 81.02 changing the hourly rate of compensation for court-appointed lawyers to $80, indexing that rate to the Consumer Price Index, and specifying that the payment of an hourly rate less than the rate set forth in Supreme Court Rule 81.02(1) for legal services rendered pursuant to appointment by the State Public Defender under Wisconsin Statutes section 977.08 is unreasonable.

In the Matter of the Amendment of Supreme Court Rule 81.02, Compensation of Attorneys Appointed by the Court (10-03)


Petition filed to increase Supreme Court rate for court-appointed attorneys, by Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin

Decision in 'Volvo Trucks North America v. Wausau Truck Center, Inc.' 2010 WI 15

Wisconsin Supreme Court decision today in this case (2008AP1385) affirming the Court of Appeals. See Argument. Opinion by Chief Justice Abrahamson.

¶34 In sum, Volvo argues that the Division [of Hearings and Appeals] did not follow the dictionary definition of "cured" when it determined that Wausau Truck had "recommitted" itself to fulfilling its obligations under the dealer agreement. Volvo asserts that the Division therefore took an erroneous approach to the statutory requirement that the breaching party had to cure the breach.

¶35 In contrast, Wausau Truck argues that the statutory word "cured" [in Wis. Stat. §218.0116(1)(i)1.b.] should be defined according to its usage in contract law.

¶36 We agree with Wausau Truck. Technical words or phrases in a statute should be given their technical or specialized meaning. Bruno v. Milwaukee County, 2003 WI 28, ¶¶8, 20, 260 Wis. 2d 633, 660 N.W.2d 656.

See 2009-2010 Term of the Wisconsin Supreme Court.


Dealer need not remedy past breach of contract: Change in ways ‘cures’ breach of contract, by David Ziemer, Wisconsin Law Journal


Wisconsin Supreme Court clarifies meaning of “cure” in contract breach, by Deborah Spanic, State Bar of Wisconsin

BOG candidate looks for voice in mandatory bar discussion

Jack Zemlicka reports in the Wisconsin Law Journal that Steve Levine is running for a seat on our State Bar's Board of Governors because of the pending proposal to petition the Wisconsin Supreme Court on the issue of voluntary or mandatory membership.

Once a topic is discussed by the board, it typically returns to the agenda as an action item at the following meeting. In this case, that would occur on May 5, during the bar’s annual convention.

Supreme Court unanimously votes to proceed with draft UPL rule

Adam Korbitz, Government Relations Coordinator, State Bar of Wisconsin, reports "The court will continue to consider several unresolved issues at an as-yet unscheduled meeting... ."

Court supports unauthorized practice petition, by Jack Zemlicka, Wisconsin Law Journal

See prior posts on unauthorized practice

In the Matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law (07-09)

Decision in 'Office of Lawyer Regulation v. Gral' 2010 WI 14

Wisconsin Supreme Court decision today in this case (2006AP1021-D) adopting the referee's findings of fact and conclusions of law and ordering reinstatement. Opinion Per Curiam. See 2009-2010 Term of the Wisconsin Supreme Court.


Lawyer convicted in Bielinski builders fraud reinstated to bar, by Bruce Vielmetti, Milwaukee Journal Sentinel

Supreme Court arguments March 9, 2010

9:45 a.m. Pries v. McMillon (2008AP89) review of the Court of Appeals decision, 2008 WI App 167, 314 Wis. 2d 706, 760 N.W.2d 174 (2008), on the issue:

Whether a public employee’s duty of care falls within the “grave and compelling danger” exception to public officer immunity recognized in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977).

Synopsis at Supreme Court accepts seven new cases

Ministerial duty exception at issue in case, by David Ziemer, Wisconsin Law Journal, November 27, 2009


10:45 a.m. Society Insurance v. Labor & Industry Review Commission (2008AP3135) Court of Appeals certification on the issue:

Has the Wisconsin legislature violated the constitutional rights of employers and their worker’s compensation carriers by retroactively shifting the burden of ongoing disability compensation from the state to the insurer?

Synopsis at Supreme Court accepts seven new cases


1:30 p.m. Office of Lawyer Regulation v. Thomas (2009AP661-D)

Board of Governors updates prosecutor funding and staffing policy position

Our State Bar reported, March 4, 2010, on the February 26, 2010 meeting of its Board of Governors.

The State Bar’s revised position on prosecutor funding and staffing states that:

The State Bar of Wisconsin supports reasonable caseload standards for prosecutors that will ensure effective representation of the public in criminal cases. The State Bar of Wisconsin supports adequate funding for additional staff necessary to maintain reasonable caseloads in District Attorney offices. Understaffing and underfunding of District Attorney’s offices threatens the quality of justice in the criminal justice system by depriving the public of effective representation.

On appeal, week of March 8, 2010

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

Wisconsin Supreme Court Oral Argument Schedule for March 2010 (posted December 7, 2009), and April 2010 (updated March 1, 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 March 4, 2010)

Opposition to the Primary Bill Develops

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


The administration primary election bill was introduced in the assembly by E. Ray Stevens and in the senate by George F. Miller, on Jan. 28. These men were members of the committee on privileges and elections in their respective houses and a majority of each committee was in favor of the bill as introduced. At that time there did not appear to be any doubt about the passage of the bill substantially in the form as introduced. Whatever dissent there may have been in the minds of individual legislators was merely passive; there was no organized opposition. Even the most conservative members of the two houses declined to commit themselves in a public statement, explaining that they had not been able to give the measure the consideration it required in order to inform themselves with respect to its merits or demerits. Col. Starkey reported to the Evening Wisconsin that the bill would surely pass and become a law.

The first hearing on the measure was held before a joint meeting of the committees of the two houses on Feb. 12, at which the H. C. Adams, Gov. La Follette’s dairy and food commissioner, and H. C. Taylor, Orfordville, appeared for the bill, and James G. Monahan, collector of revenue for the western Wisconsin district, appeared in opposition.

It was charged later that Mr. Monahan, a federal office holder, was the spokesman of an organized movement acting under instructions from persons "higher up." As proof of the truth of this indictment it was shown that, on Feb. 4, a circular letter had been sent out from Darlingion, Mr. Monahan’s home city, signed by George F. West and addressed to republicans who had attended the republican county convention for Lafayette county as delegates the previous year. This letter was a protest against the passage of the primary bill by Mr. West, who had been a delegate to the republican state convention in August, 1900. He explained that, as such delegate, he had not voted for a measure like the one introduced in the legislature when the platform was adopted and did not believe the republicans of Wisconsin were in favor of such a law. He asked those to whom the circular was addressed to sign a protest, for which a form was inclosed, to be sent to members of the legislature.

On February 11 The Sentinel printed a news dispatch from Madison in which reference was made to the West circular letter and it was asserted that "federal officeholders in the state are making a campaign to defeat the primary election bill." Mr. Monahan, United States District Attorney W. G. Wheeler, and Edwin D. Coe, United States pension agent, were all mentioned by name.

Mr. Wheeler’s offense was in having been seen about the corridors of the capitol building and Mr. Coe was charged with having written newspaper articles and letters in which the primary election proposition was criticised. It was intimated that "some influence was working against the bill," the inference being that United States Senators Spooner and Quarles had taken a hand in the matter and were acting through the federal officeholders.

When the hearing was held before the committees meeting in joint session, Mr. Monahan prefaced his address with a personal statement to the effect that he had not counseled with either of the senators on the primary bill. He denied that he had ever talked with Senator Quarles on the subject and had not seen or heard from that gentleman in months except once, when he received a letter from him relating to a pension matter. He had never talked with Senator Spooner on the subject but once, and that was "a few moments, months ago." He denied that there was any combination of officeholders to defeat the bill and claimed for himself the right to express his personal opinions on this or any other matter pending before the legislature.

In the face of this definite denial, the original article in which the charge was made was mailed the following day from the office of Gov. La Follette in packages containing the governor’s Ann Arbor address, H. C. Adams’ address and the speech made by Mr. Taylor of Orfordville. These packages were sent to 50,000 Wisconsin voters. Even at that early day it was an offense to mail a protest to a few delegates in Lafayette county, while it was permitted to sow circulars broadcast throughout the state accompanied by a statement the truth of which already had been challenged by a man who knew the facts, provided the circulars were designed to aid the administration. Gov. La Follette reiterated the charge against the federal officers when he wrote his Hagemeister bill veto message.

Mr. Adams’ address was the keynote speech in support of the primary bill. Mr. Adams held an appointive position under the governor, but no objection was ever filed against his activity in the campaign for the primary law. He had served as chairman of the republican state convention the previous August, and, in putting the motion to adopt the platform he had failed to call for the negative vote, declaring the motion carried unanimously after the affirmative vote had been taken. Mr. Adams also had participated in the labors of the framers of the bill and it was understood that he contributed materially to the work of unraveling some of the most perplexing tangles that confronted them. He was thoroughly familiar with the subject and was, by natural ability and careful preparation, the best man that could have been selected for the task of opening the debate.

There is probably nowhere in the literature on the subject an abler defense of the primary election theory in general and the Stevens bill in particular than the address delivered by Mr. Adams on that occasion. It was a masterly argument, consummately artful, clear, concise, forceful, and convincing. The reasons given for favoring the measure were identical with those advanced by Gov. La Follette in his published addresses and his message to the legislature--a desire to give every voter an opportunity to express his choice of candidates by a direct vote under the Australian ballot system and to take from the political machine, the political boss, the power to manipulate conventions and thereby defeat the will of the voters. Mr. Adams went over the primary bill and explained its provisions, showing how it was expected to accomplish the objects sought, and closed with an eloquent appeal to the committee--and incidentally to the members of the legislature who thronged the chamber where the hearing was held--to support the measure and write it into the statute books of the state.

Mr. Monahan attacked the bill in general and in detail. In his opinion its tendency was populistic, and not republican. Specifically he enumernated the following objections to the bill as it was framed, but he did not ask that it be changed, expressing a belief that it could not be improved, being wrong in principle:

First--The method provided for getting names upon the primary ticket would be burdensome, expensive, and calculated to retire from politics modest men who would not seek office, to "increase the activity of the boodler and professional politician, lengthen the arm of the boss, and increase the strength of every machine in the state."

Second--It would give the cities practical control of the nomination of candidates.

Third--The bill would impose a tax of approximately $150,000 upon the people of the state. "Unnecessary taxation is unjust taxation."

Fourth--Under the provisions of this bill we would abandon the system that the majority shall rule for one that minorities may govern.

Fifth--This bill takes away from the people the right to make platforms and gives the power to candidates for office.

Sixth--The provisions of the bill make it impossible to consider location or nationality in the nomination of candidates.

Seventh--The bill in principle is a long step toward the abandonment of representative government, bequeathed to us by the founders of this government, for the vagaries of populism.

Subsequent meetings were held at which speeches were made for and against the proposed law. Those appearing for the measure were James A. Frear, Hudson; L. H. Bancroft, Richland Center; F. M. Miner, Eau Claire; W. G. Corrigan, Plainfield; John Strange, Oshkosh. The speakers who opposed It were M. G. Jeffris, Janesville; Henry Fink, Milwaukee; H. H. Hayden, Eau Claire. H. W. Chynoweth of Madison closed the debate by appearing and summing up for the supporters of the bill on Feb. 26.

From the the the first opposition was manifested until Mr. Chynoweth’s address was delivered as the last word on the subject from one who personally represented the governor there had been talk of a compromise measure. It had been suggested that candidates for county offices and for the legislature be nominated at the primary and all other candidates nominated and platforms made at conventions. Another suggested measure provided for the nomination of candidates for county offices only at the primary. Still another proposal was that the primary be confined for the time being to a particular section of the state where it could be tried out, to be extended to the entire state if found to work satisfactorily. The day following Mr. Chynoweth’s address, however, the following paragraph appeared in Col. Starkey’s dispatch to the Evening Wisconsin, announcing that a damper had been put upon all compromise efforts:

All hope of a compromise is now at an end. Mr. Chynoweth boldly declared last night that Gov. La Follette was behind the bill demanding its passage as the reward of victory, and the governor is determined not to yield an iota so far as the main features of the bill are concerned.

Still another incident illustrates how an end was put to the compromise talk. The Sentinel had formally changed hands on Feb. 19, but no mention was made of the primary election bill for several days, or until Mr. Warren, the new editor, could visit Madison and talk with the governor. That visit was made on Feb. 26, the day Mr. Chynoweth appeared before the committee, and Mr. Warren called at the executive chamber and had a conference with Gov. La Follette.

Mr. Warren later related to friends the story of that meeting, but, although Gov. La Follette never deigned to deny in person the accuracy of Mr. Warren’s narrative, his friends did make such denial. Mr. Warren’s subsequent acts, however, are enough to indicate the tenor of the conversation and the outcome of the conference.

Mr. Warren went to Madison on a peaceful mission. So much is known definitely by many. He hoped to come to an understanding by which The Sentinel could support La Follette and his administration. He made no secret of his purposes. Among other things he proposed to suggest certain amendments, or modifications, of the primary election bill. The interests of the republican party as a political organization were at stake, and he hoped, as the editor of the leading republican paper of the state, to secure a respectful hearing for his views and to arrive at an understanding by which a division in the party could be avoided and the harmony that had resulted from Gov. La Follette’s nomination, but which was threatened by the exasperating circumstances attending the incubation and final hatching of the primary bill, might be saved from total wreck.

On his return to Milwaukee, Mr. Warren wrote, in a railway coach, an editorial which, although the meeting with Gov. La Follette is not mentioned, speaks plainly as to the result of that attempt on his part to arrive at an understanding. He said:

In its present form the Stevens primary election bill can not become a law because Wisconsin is a loyal republican state.

The objections to the bill, as drawn, are specifically too varied and self-evident to call for enumeration. In general terms, it may be fairly characterized as radical to a populistic degree and revolutionary in the worse sense of the word.

The obliteration of all caucusses and conventions means the temporary destruction of all party organization in Wisconsin, and that is the chief end and aim of the experimental measure.

The only logical argument in favor of the bill is that its salient features were indorsed by the republican state convention. It is an interesting coincidence that this proposed legislation should have derived its chief excuse for existence from one of the ‘corrupting conventions’ which it was designed to wipe off the face of the earth. It is not at all certain that this same convention did not extend its powers when it passed the platform which contained the pith of the Stevens bill in one of its planks. The legitimate function of a committee on resolutions is to enumerate principles and not to make laws. According to the republican platform adopted in Milwaukee on Aug. 8, 1900, by the republicans of Wisconsin in convention assembled, some such legislative enactment as the primary election bill was undoubtedly outlined and demanded. That convention, however, had not the authority to draft any specific bills or to insist on any particular scheme of individual action on legislative measures.

Conditions today must guide the legislators at Madison when they vote for or against the Stevens bill. The friends of the measure will not submit to any amendment or alteration in its provisions, nor will they consent to restrict its operations for two years to a few counties to test its efficacy.

Every senator and every assemblyman must gracefully swallow the Stevens bolus or have it forced down his throat. This is the dictum of the political iconoclasts who must rule or ruin.

These are some of the many reasons why the conservative, self-respecting republicans of Wisconsin will not dare to stain the statute books with the Stevens primary election bill.

This was the first editorial to appear in The Sentinel in which definite, unequivocal objection to the program of the governor was made. In point of fact, it may be said that this was the first editorial to appear in any paper in the state in which Gov. La Follette or his administration measure were criticised severely. As has already been said, the Daily News was supporting him loyally and advocating the passage of the primary election bill; the Evening Wisconsin was friendly to him; the Journal was not disposed to support the primary bill, but it had not printed any editorial criticisms that the governor could take exceptions to; The Sentinel had been his personal organ, doing his bidding as completely as it would were he in control of a majority of the stock of the company that owned it. And he had then been in office forty-six days. Surely this does not indicate that there was a conspiracy against Gov. La Follette on the part of the conservatives when he was inaugurated.

Supreme Court Rules Hearing March 8, 2010

9:45 a.m. In the Matter of the Definition of the Practice of Law and the Administration of a Rule Defining the Practice of Law (07-09)

State Bar takes aim at unlicensed practice of law, by Bruce Vielmetti, Milwaukee Journal Sentinel

See prior posts on unauthorized practice

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

Privileges or Immunities

Randy Barnett arguing for incorporation of the Second Amendment to the states via the Privileges or Immunities Clause, rather than the Due Process Clause.

"For example, apart from personal liberties in the Bill of Rights, we know that the Civil War-era congressional Republicans were trying to constitutionally protect the rights enumerated in their Civil Rights Bill of 1866. This legislation listed the rights 'to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property.' Yet these are now considered 'economic' liberties, which the Court has been loath to protect since the New Deal. This may also explain why yesterday it wanted to ignore text and history."

The Incorporation Doctrine

An excerpt from David Bernstein's "Rehabilitating Lochner."

Supreme Court arguments March 3, 2010

9:45 a.m. Hocking v. City of Dodgeville (2008AP2812) review of the Court of Appeals decision, 2009 WI App 108, 770 N.W.2d 761 (2009) granted on the issues:

Whether a municipality’s representations concerning water drainage qualify as an exception under the statute of repose, Wis. Stat. §893.89(4)(b).

Whether a municipality’s alleged negligence qualifies as an exception to Wis. Stat. §893.89(4)(c).

Synopsis at Supreme Court accepts seven new cases


10:45 a.m. Roehl Transport, Inc. v. Liberty Mutual Ins. Co. (2008AP1303) certification by the Court of Appeals accepted on the issues:

Whether Wisconsin law recognizes an insured’s bad faith claim against its liability insurer for failing to reasonably defend the insured’s high deductible.

Whether attorney fees in a bad faith action must be decided by the jury or whether they may be awarded post-trial by the court.

Synopsis at Supreme Court accepts seven new cases


1:30 p.m. Tatera v. FMC Corporation (2008AP170) review of the Court of Appeals decision, 2009 WI App 80, 768 N.W.2d 198 (2009), granted on the issues:

Do the facts of this case fit within one of the two “narrow exceptions” to the general rule (confirmed in Wagner v. Continental Cas. Co., 143 Wis. 2d 379, 421 N.W.2d 835 (1988)) that a principal employer is not liable in tort for injuries sustained by an employee of an independent contractor?

Whether Wisconsin law permits the application of Restatement (Second) of Torts §402A (1965) against a corporation that provided an unreasonably dangerous product to a machine shop for alteration that caused injury to a worker at the machine shop?

Does an “affirmative act of negligence” as defined in Wagner include a failure to warn claim premised upon Restatement (Second) of Torts, §388?

Does “abnormally dangerous or extrahazardous” work as defined in Wagner include machining asbestos containing friction disks?

Synopsis at Supreme Court accepts seven new cases

Meeting of the Wisconsin Judicial Council January 15, 2010

Minutes approved at the February 19, 2010 meeting and posted.

Next scheduled meeting was March 19, 2010.

On appeal, week of March 1, 2010

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

Wisconsin Supreme Court Oral Argument Schedule for March 2010 (posted December 7, 2009), and April 2010 (updated March 1, 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)

Supreme Court arguments March 2, 2010

9:45 a.m. State v. Hess (2008AP2231-CR) review of the Court of Appeals decision, 2009 WI App 105, 770 N.W.2d 769 (2009) on the issue:

Did the good-faith exception to the exclusionary rule (see State v. Eason, 2001 WI 98, 245 Wis. 2d 206, 629 N.W.2d 625) apply when evidence of a crime was discovered by a law enforcement officer while executing an arrest warrant that was improperly issued by a circuit court?

Synopsis at Supreme Court accepts seven new cases


10:45 a.m. State v. Sveum (2008AP658-CR) review of the Court of Appeals decision, 2009 WI App 81, granted on the issues:

Does a warrantless placement of a Global Positioning System (GPS) tracking device on a vehicle and its subsequent 24-hour monitoring of the vehicle’s location on public roads by police violate the Fourth Amendment to the United States Constitution?

Does the Wisconsin Electronic Surveillance Control Law (Wis. Stat. §§968.27-.37) require judicial approval for the police to place a GPS tracking device on a vehicle to record its travel?

1:30 p.m. Mercycare Ins. Co. v. Wisconsin Commissioner of Insurance (2008AP2937) certification by the Court of Appeals accepted on the issues:

Whether Wis. Stat. §632.895(7) permits an insurer to exclude maternity coverage for an insured acting as a surrogate mother.

What level of deference, if any, should be accorded by the court to a decision issued by the Office of the Commissioner of Insurance?

Synopsis at Supreme Court accepts seven new cases