Note: We are crunching Supreme Court of Wisconsin decisions down to size. The rule for this is that no justice gets more than 10 paragraphs as written in the actual decision. The "upshot" and "background" sections do not count as part of the 10 paragraphs because of their summary and very necessary nature. We've also removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. Italics indicate WJI insertions except for case names, which also are italicized. The case: Clean Wisconsin, Inc. v. Wisconsin Department of Natural Resources Majority/Lead Opinion: Justice Jill J. Karofsky (25 pages), joined by Justices Ann Walsh Bradley, Rebecca F. Dallet, and Annette K. Ziegler Concurrence: Dallet (3 pages), joined by Walsh Bradley and Karofsky Dissent: Justice Patience Roggensack, joined by Justice Rebecca Grassl Bradley Dissent: Grassl Bradley (6 pages) Justice Brian Hagedorn did not participate. First, a footnote from Karofsky: Although the caption of this case is Clean Wisconsin v. DNR, that is a misnomer. Clean Wisconsin and the DNR are now aligned in view, and the Legislature and Kinnard are likewise aligned. Kinnard Farms Inc. and the state Legislature are intervenors in the case opposing Clean Wisconsin and the five named petitioners: Lynda Cochart, Amy Cochart, Roger DeJardin, Sandra Winnemueller, and Chad Cochart. The upshot This case is about whether the Wisconsin Department of Natural Resources (DNR) had the explicit authority to impose an animal unit maximum condition and an offsite groundwater monitoring condition upon a Wisconsin Pollutant Discharge Elimination System (WPDES) permit it reissued to Kinnard Farms, Inc. for its concentrated animal feeding operation (CAFO). The circuit court decided that the DNR had the explicit authority to do so, and the court of appeals certified this appeal to us. We conclude that the DNR had the explicit authority to impose both the animal unit maximum and off-site groundwater monitoring conditions upon Kinnard's reissued WPDES permit pursuant to Wis. Stat. §283.31(3)-(5) and related regulations. Accordingly, we affirm the order of the circuit court. Background
Kinnard operates a large CAFO in the Town of Lincoln. In 2012, Kinnard wanted to expand its dairy operation by building a second site and adding 3,000 dairy cows. (A CAFO has at least 1,000 animals.) The petitioners launched an appeal with the DNR of the WPDES permit the agency granted for the expansion, which was a quarter-mile away from the original facility. The petitioners alleged that the reissued WPDES permit was inadequate because, among other failings, it did not set a "maximum number of animal units" or "require monitoring to evaluate impacts to groundwater." The case was heard by an administrative law judge. The ALJ conducted a four-day evidentiary hearing during which Town of Lincoln community members who lived and worked near Kinnard's CAFO testified about the contamination of their well water and the impact of that contamination on their businesses, homes, and daily lives. The community members conveyed their belief that Kinnard's CAFO was the source of the well water contamination. The ALJ also heard testimony from a number of experts who established that up to 50% of private wells in the Town of Lincoln were contaminated and that 30% of wells tested positive for E. coli bacteria Additionally, an expert testified about the particular features of the land underlying Kinnard's CAFO which made that land extremely susceptible to groundwater contamination. According to the testimony, pollution could travel over half a mile through groundwater into wells in 24 hours. Based on the evidence presented, the ALJ concluded that the "level of groundwater contamination including E. coli bacteria in the area at or near the [second] site is "very unusual." Additionally, the ALJ identified "what could fairly be called a groundwater contamination crisis in areas near the site." The ALJ further found that "[t]he proliferation of contaminated wells represents a massive regulatory failure to protect groundwater in the Town of Lincoln." Of import to this appeal, the ALJ determined that, based on the facts presented, the DNR had "clear regulatory authority" to impose the two conditions disputed in this action upon Kinnard's reissued WPDES permit. The ALJ directed the DNR to set a maximum number of animals allowed at the facility and to establish an off-site water monitoring program. The DNR asked the state Department of Justice in August 2015 to opine on the DNR's authority to impose the ALJ's conditions on Kinnard in light of §227.10(2m), which limits the regulatory powers of agencies. The DOJ opined that the DNR did not have the authority. The DNR reversed the directives to set the animal maximum and establish a groundwater monitoring program. The five individual petitioners and Clean Wisconsin contested the decision in two separate court actions, which were consolidated in Dane County Circuit Court, which reversed the DNR's decision to cancel the directives. The DNR and Kinnard appealed, and the Court of Appeals sent the case to the Supreme Court. The court granted the Joint Committee on Legislative Organization permission to intervene.
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USA Today: Qualified immunity protected the cop who sexually assaulted me and his boss.
WFPL: Kentucky sheriff is grabbing millions in dubious civil asset forfeitures. Among factors the sheriff’s detectives consider suspicious: expedited shipping, excess tape, person-to-person packages and addresses from drug “source states” like California, Colorado, Texas, Florida and Nevada, according to search warrant affidavits filed with the Jefferson Circuit Court Clerk. WUWM: Redistricting lawsuits – what they can and cannot address. AP: U.S. launches mass deportations of Haitian migrants. More than 320 migrants arrived in Port-au-Prince on three flights, and Haiti said six flights were expected Tuesday. In all, U.S. authorities moved to expel many of the more 12,000 migrants camped around a bridge in Del Rio, Texas, after crossing from Ciudad Acuña, Mexico.... The rapid expulsions were made possible by a pandemic-related authority adopted by former President Donald Trump in March 2020 that allows for migrants to be immediately removed from the country without an opportunity to seek asylum. President Joe Biden exempted unaccompanied children from the order but let the rest stand. The New York Times: Legal defense network established for election workers. The Guardian: Women can say no to sex if Roe falls, lawyer says.
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Restraints use also would be limited to situations where there were no less restrictive alternatives "that will prevent flight or physical harm to the child or another person, including the presence of court personnel, law enforcement officers, or bailiffs," according to the petition.
The rule would prohibit use of restraints "that are fixed to a wall, floor, or furniture," the petition says. Submitting the petition were Milwaukee County Circuit Judge Laura Crivello, Eau Claire County Circuit Judge Michael A. Schumacher, La Crosse County Circuit Judge Ramona A. Gonzalez, Dane County Circuit Judge Everett Mitchell, and Marathon County Circuit Judge Suzanne C. O'Neill. Attorneys Diane R. Rondini and Eileen A. Hirsch also signed. "Some Wisconsin counties, including La Crosse, Eau Claire, Marathon, Milwaukee and Dane, have successfully implemented county-level juvenile court shackling rules that, like the proposed rule, establish a presumption against shackling, which can be overridden by a court finding, on the record, that the child is likely to flee, or to cause harm to self or others," Hirsch wrote in the supporting memo. "Approximately 20 additional counties rarely shackle children in court. However, at least 25 counties practice indiscriminate shackling of children in juvenile court." Thirty-three states and Washington, D.C. have implemented statewide presumptions against shackling children in court, though judges can order shackles when necessary, Hirsch wrote. The shame and humiliation that results from shackling "is especially damaging to adolescents, who are in the developmental process of forming their own identities and who are intensely concerned with how others perceive them," she said. Those emotions can lead to defensiveness, avoidance, and aggression, she said. Shackling can also hurt a child's ability to communicate with counsel. One assistant state public defender "described her shackled clients as being 'distracted and embarrassed...They crouch down. Sometimes they have to sign papers, but it's hard for them to sign with cuffs chained to their waists,' " Hirsch wrote. Another assistant public defender said "she has had 'numerous clients who are physically harmed by the use of shackles. I have seen red marks and indentations on my client's wrists and legs.' " Children with mental illness or a history of trauma suffer more harm from shackling, Hirsch said. Shackling can lead to worsening of symptoms and make daily functioning more difficult. Hirsch cited court decisions from around the country that limit juvenile shackling. "In each of these cases, the court concluded that a presumption against shackling during juvenile court proceedings is consistent with the rehabilitative purposes of the juvenile justice system," she said. The state Supreme Court has not yet set a public hearing date on the petition. Wisconsin Examiner: Wisconsin Attorney General Josh Kaul joins challenge to Texas abortion law.
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The suit contends offenders from urban areas wait longer — perhaps indefinitely — for releases that get approved much easily in rural counties. Tech Stream: Data-driven policing's threat to our constitutional rights. The New York Times: U.S. Justice Department imposes limits on monitors of local police. He said the department would immediately put in place 19 actions to address police concerns, including placing caps on monitors’ fees and assessing their work after a set term to determine whether their contracts should be renewed or whether the consent decree should be terminated. And the department will restrict monitors from serving on multiple cases at the same time. CNN: The Justice Department also restricts chokeholds and no-knock warrants. Vox: The U.S. Supreme Court is drunk on its own power. More links and stories on our Facebook page! WJI's guest speaker at its Sept. 8 Virtual Salon was Allan M. Foeckler, a partner in the Cannon & Dunphy law firm. Foeckler spoke about the increasing legal hurdles individuals who are wronged face in pursuing cases in civil court. Laws that shield bad actors from liability, allow mandatory arbitration requirements, and impose limits on recovery are benefiting business while squeezing individuals right out of the courtroom. Foeckler was instrumental in exposing the corners that were cut during the construction of the O’Donnell Park parking structure, which resulted in the tragic death of 15-year-old Jared Kellner. As a result of his work on this case, Foeckler earned the 2017 Robert L. Habush Trial Lawyer of the Year award from the Wisconsin Association for Justice. He also has earned other notable awards, including being named to the list of Super Lawyers every year since 2012 and recently being nominated and elected to the International Society of Barristers. You can watch Foeckler's discussion below. Verdict: Would overruling of Roe v. Wade revive abortion zombie laws?
But what happens if the Supreme Court changes its mind and overrules a line of cases that had earlier been used to invalidate some set of laws? In a 1993 article in the Columbia Law Review, (current Georgetown Law Center Dean) Bill Treanor and (current Senior Advisor to President Biden) Gene Sperling argued that previously invalidated laws should not necessarily be revived. Ordinarily, we can interpret a legislature’s failure to repeal a law as reflecting contemporary agreement with or at least acquiescence in the old law. However, Treanor and Sperling argued, a court ruling deeming a law unenforceable can sap the political strength of a repeal movement. Thus, a judicially invalidated law that remains on the books lacks the democratic pedigree enjoyed by other unrepealed laws. The argument that Treanor and Sperling offered against automatic revival was subtle and careful. Yet their view has never been the conventional wisdom. Instead, there is good reason to think that if the Supreme Court overrules or substantially weakens the abortion right in the case from Mississippi currently on its docket, states with restrictive abortion laws that were previously invalidated will succeed in reviving and enforcing those laws. Marijuana Moment: Mayors push President Biden and Congress for federal marijuana legalization. The Trace: Four under-the-radar cases that could reshape U.S. gun laws. Politico: Biden begins clemency process for some released from federal prisons due to Covid. Those who have been asked for the applications fall into a specific category: drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences. Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset. But it did confirm that the president was beginning to take action. Milwaukee Journal Sentinel: Wisconsin Department of Corrections weighs closing Milwaukee's Felmers O. Chaney Correctional Center to accommodate new juvenile prison. More links and stories on our Facebook page! The New York Times: Should police officers be held accountable for lying? Too often, they are not.
“If a federal law enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages?” the U.S. Court of Appeals for the Eighth Circuit wrote of Officer Weyker, whose investigation ultimately resulted in no convictions. The answer was no. More than 20 civil lawsuits have been filed against Officer Weyker, a former vice officer who is still the subject of an internal department investigation. Some of the suits failed because she was granted qualified immunity, a doctrine created by the courts that shields officers from lawsuits unless they violate a “clearly established” right. Brennan Center for Justice: Prisons were not designed for women. The Columbus Dispatch: Jarrett Adams, who spent 10 years in prison on a wrongful Wisconsin conviction, has written a book. Q: Persistence is a theme in your book. How did you keep going when you faced so many obstacles? Did you become bitter? Adams: I did become bitter. I’ve got to be as real as I was in the book about this. I was angry and I was upset and that’s OK. But the issue is what do you do with that? For me, my response was to keep fighting and to go forward. The Oregonian: Former death row inmate, exonerated by DNA after 16 years in prison, dies of COVID-19. “It’s so unfair,” said Steve Kaplan, a retired Minneapolis attorney who helped free (Damon) Thibodeaux after he spent 16 years behind bars, 15 of them on death row in Louisiana. “I’m struggling to make peace with it, but you can’t.” Thibodeaux, who moved to Minnesota to restart his life and eventually settled with his family in Texas, died Sept. 2 of complications from COVID-19. He was 47, but a third of those years were spent behind bars for his wrongful conviction. Talking Points Memo: U.S. Supreme Court Justice Amy Coney Barrett appears at Republican Sen. Majority Leader Mitch McConnell event to insist the court is not political. More links and stories on our Facebook page! |
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