Milwaukee Journal Sentinel: Republicans ask U.S. Supreme Court to halt Wisconsin redistricting lawsuit.
Lawyers for the Republican legislators told the U.S. Supreme Court it should toss aside the challenge in federal court because there's no basis for a lawsuit at this stage. Federal courts have tight rules for when they allow cases to proceed and the Republicans contend there isn't sufficient conflict for the lawsuit to be considered now.
Wisconsin Law Journal: Ceremonial swearing in for U.S. Supreme Court Justice Amy Coney Barrett is Oct. 1.
Reuters: Abortion providers ask U.S. Supreme Court to intervene in Texas case.
In their petition to the Supreme Court, the abortion providers including Whole Woman's Health and other advocacy groups said that the justices should decide if the state can "insulate" its law from federal court review by delegating its enforcement to the general public.
The Philadelphia Inquirer: Improvements in infant mortality being overtaken by gun violence.
Reuters: Federal appeals court rules woman can sue Facebook for using unauthorized phot.
In a dissent, Judge Robert Cowen vigorously disagreed. Cowen bemoaned the majority’s “drastic” ruling, which, he said, had opened the door to chaos, in the form of liability risk under state privacy laws that may -- or may not! -- be fairly defined as intellectual property claims. That’s exactly the sort of unpredictability that Congress was trying to avert when it adopted Section 230 to encourage “unfettered” free speech and innovation on the internet, Cowen said.
Facebook’s amici from the Electronic Frontier Foundation and other groups were even more dire in their predictions of the consequences of the theory that the 3rd Circuit majority just adopted: “It (will) upend the legal landscape that has promoted a flourishing internet for decades,” the amici’s brief said. Online sites and services, the brief hypothesized, will be thrown into a panic by their risk of exposure to meritless state-law claims. Some will adopt “draconian measures” to avoid liability, EFF said. Many others, the brief said, “will simply refuse to host user-generated content at all -- and we will all be the poorer for it.”
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A story in charts: New report shows continuing bias in Milwaukee police stops, frisks, and interviews
By Gretchen Schuldt
Milwaukee police are still stopping Black and Hispanic people at a far higher rate than they stop White people, a new report shows.
The same is true of police conducting field interviews and frisks.
The disparities are getting worse, according to the ACLU of Wisconsin.
The new report was prepared by the Crime and Justice Institute as a result of the 2018 settlement of a lawsuit by nine Black and Hispanic/Latino Milwaukee residents alleging that Milwaukee police unlawfully engaged in racially biased stop-and-frisk practices. The nine were represented by the ACLU of Wisconsin, national ACLU, and the law firm of Covington & Burling.
As part of the settlement, the Police Department, the Fire and Police Commission, and the city agreed to undertake a number of reforms, including an end to race-based pedestrian and traffic stops.
“We’re at a critical moment where the Milwaukee Police Department, three years into the settlement, has failed to achieve compliance for even a single year and continues to over police Black and Latinx people at an alarming, unacceptable, and worsening rate,” Karyn Rotker, senior staff attorney with the ACLU of Wisconsin, said in a prepared statement. “We are also deeply concerned by the lack of adequate supervision and discipline to impose the accountability that this agreement requires.”
The Fire and Police Commission also issued a statement that said the city and police department have more work to do to comply with the settlement.
"The FPC is fully committed to this essential work, as well as to exercising its critical oversight function to support MPD and hold the Department accountable to meet its settlement obligations," the commission said.
The charts below are from the CJI's report. The full report is here.
WTMJ: Milwaukee Common Council opposes changes in concealed carry laws.
This comes as lawmakers in the State Capitol push to lower the minimum age to get a concealed carry license to 18 years old. Proposals also call for license holders to be able to have guns in vehicles on school grounds.
MedPage Today: COVID vaccines no match for prison Delta outbreak.
Axios: Texas restricts access to medical abortion pill.
Driving the news: The new bill, Senate Bill 4, prevents physicians or providers from giving out abortion-inducing drugs after seven weeks of pregnancy.
Electronic Frontier Foundation: Stop military surveillance drones from coming home.
A federal statute authorizes the Pentagon to transfer surveillance technology, among other military equipment, to state and local police. This threatens privacy, free speech, and racial justice.
So Congress should do the right thing and enact Representative Ayanna Pressley’s amendment, Moratorium on Transfer of Controlled Property to Enforcement Agencies, to H.R. 4350, the National Defense Authorization Act for Fiscal Year 2022 (NDAA22). It would greatly curtail the amount of dangerous military equipment, including surveillance drones, that could be transferred to local and state law enforcement agencies through the Department of Defense’s “1033 program.” It has already placed $7.4 billion in military equipment with police departments since 1990.
CBS: Amazon says it's time to legalize cannabis. (So does WJI!)
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WPR: Milwaukee County mentorship program would help incarcerate individuals with their reentry into the community.
Individuals being released from the Milwaukee County House of Corrections could be paired with community members who have had their own experiences with the justice system.
The mentorship is part of a county reentry pilot program local officials are considering to lower recidivism rates in Milwaukee County for young adults leaving the jail.
County Supervisor Sequanna Taylor said barriers to finding housing and a job often cause people to commit another crime. She believes connecting people who are leaving the Milwaukee County House of Corrections with community members who have similar experiences will keep them out of the justice system.
"Reentering the community is incredibly difficult for individuals who do not have access to necessary support both while incarcerated and as they transition back into life outside a correctional facility," Taylor said. "There is so much more that we can do to prepare people to successfully come home and make sure that they stay home."
The Daily Beast: U.S. Attorney General Merrick Garland is letting predecessor William Barr make a mockery of justice.
Slate: The judicial crusade to revive Trump's border policy isn't going so well.
Donald Trump’s judges share many traits, but a devotion to the truth is not one of them.
The Washington Post: The case of Chrystul Kizer, a teenage sex-trafficking victim who killed her abuser, is headed to the Wisconisn Supreme Court.
At the heart of the debate is whether Kizer, now 21, should have access to a law known as the affirmative defense. In June, an appeals court ruled that Kizer should indeed have the chance to present evidence that her crime was a “direct result” of the trafficking she experienced. If a judge, and then a jury, ruled in her favor, Kizer could then be acquitted of some or all the charges against her in the death of Randall Phillip Volar III.
But prosecutors appealed the June ruling, arguing that the affirmative defense law was never intended to provide a complete defense to someone accused of committing a homicide.
The Gazette: Sen. Chuck Grassley doesn't see support for ending powder cocaine / crack sentencing disparity.
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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.
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.
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.
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.
The legal architect of the Texas abortion ban has argued in a supreme court brief that overturning Roe v Wade, the landmark decision which guarantees a right to abortion in the US, could cause women to practice abstinence from sexual intercourse as a way to “control their reproductive lives.”
Former Texas solicitor general Jonathan Mitchell, who played a pivotal role in designing the legal framework of the state’s near-total abortion ban, also argued on behalf of anti-abortion group Texas Right to Life that women would still be able to terminate pregnancies if Roe was overturned by traveling to “wealthy pro-abortion” states like California and New York with the help of “taxpayer subsidies.”
“Women can ‘control their reproductive lives’ without access to abortion; they can do so by refraining from sexual intercourse,” Mitchell wrote in the brief. “One can imagine a scenario in which a woman has chosen to engage in unprotected (or insufficiently protected) sexual intercourse on the assumption that an abortion will be available to her later. But when this court announces the overruling of Roe, that individual can simply change their behavior in response to the court’s decision if she no longer wants to take the risk of an unwanted pregnancy.”
Politico: Illinois' cannabis business equity efforts messy, slow.
The Washington Post: Jurors should know what the penalties might be if they deliver a guilty verdict.
Waupaca Now: Case before State Supreme Court could force counties to appoint lawyers in criminal cases sooner.
Library of Congress: Happy Constitution signing day!
Post Crescent: WILL sues to block town's voter-approved transportation utility fee.
The suit alleges the town's transportation utility fee is an illegal tax that violates state levy limits and the uniformity clause of the Wisconsin Constitution.
WILL is asking the court to declare Buchanan’s transportation utility fee illegal and issue an injunction to prevent it from levying, enforcing or collecting the fee.
Since Buchanan voters approved the transportation utility fee in 2019, the additional money collected caused the town to exceed its property tax levy limit of $2.4 million in 2020.
The New York Times: U.S. Justice Department will review enforcement of anti-discrimination clauses in federal grants to police.
In a memo on Wednesday written by Vanita Gupta, the associate attorney general, and obtained by The New York Times, the Justice Department announced a 90-day review that will examine whether it was doing enough to ensure that federal funds were not distributed to law enforcement organizations that engage in discrimination.
Approximately $4.5 billion in federal funding flows through the department to police departments, courts and correctional facilities, as well as victim services groups, research organizations and nonprofit groups. All of these organizations, not just police departments, could be affected by this review. The department sought to increase that amount in its latest budget request to $7 billion for the next fiscal year.
The results of the review could allow the department to re-evaluate which groups receive federal grants or to ask the courts to require recipients to change their policies or procedures in order to continue receiving the funds.
The Hill: U.S. Supreme Court hits new low in job-approval ratings.
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By Gretchen Schuldt
Five judges from around the state are asking the Wisconsin Supreme Court to adopt a new rule restricting the use of shackles on juveniles in court.
"Every weekday, children ages 10 to 17 are brought into Wisconsin juvenile courtrooms in shackles," a supporting memo filed with the petition says. "A few are shackled because a judge or court commissioner has found them likely to flee, or likely to be disruptive in the courtroom. But most are shackled simply because it is routine – sometimes based on a sheriff's policy, sometimes because it is the way it has always been done."
Under the proposed new Supreme Court rule, children could not be restrained during a court proceeding unless a judge found one of the following:
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.
Wisconsin Attorney General Josh Kaul is one of 24 attorneys general filing an amicus brief Wednesday supporting the U.S. Department of Justice’s challenge of Texas’ extreme new abortion ban that starts at six weeks of pregnancy. The group of AGs seeks a temporary restraining order and a preliminary injunction of the law, which deputizes citizen vigilante enforcers, making it more difficult to challenge the near-ban on abortions in that state in court.
The brief asserts that the Texas law, which took effect on Sept. 1, bans “nearly all previability abortions within Texas’s borders” as well as violating “nearly 50 years of Supreme Court precedent affirming the constitutional right to terminate a pregnancy before viability.”
The law has drawn additional scrutiny in Wisconsin as Republican gubernatorial candidate Rebecca Kleefisch stated this week that she wants Wisconsin to have a similar law. “I will sign a heartbeat bill,” Kleefisch told conservative radio host Mark Belling, using the misnomer reference to a heartbeat, which is not present in the embryo that early in a pregnancy. “I have a long history of being pro-life and I will fight for every human being with a heartbeat.”
Texas Tribune: Migrants left at bus station after their trespassing cases are dismissed.
Slate: The real problems with Justice Amy Coney Barrett's comments about the U.S. Supreme Court go deeper than their silliness.
The court has been so busy being partisan these past few weeks—it functionally ended legal abortion in Texas, reinstated the “Remain in Mexico” policy, and struck down the eviction moratorium—that it should have been hard for any of its members to find the time to give fatuous speeches about being nonpartisan. And yet, listening to Supreme Court justices busily instruct us on how to think about Supreme Court Justices seems to have occupied an outsize amount of judicial time this past summer. The terrible optics and annoying sophistry of Barrett’s specific remarks aside, there is real harm suffered when justices—and here Barrett is hardly alone—take it upon themselves to blame the press for things they have brought upon themselves. That, and not the cynicism, was the real problem with Barrett’s Kentucky foray into media criticism.
Axios: Racial equity in the cannabis industry remains elusive.
CNN: Federal judge denies Trump effort to halt E. Jean Carroll's defamation suit against him.
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