WJI is providing summaries of justice-related laws enacted during the 2019-20 state legislative session.
2019 Act 16 – Creates a definition related to child pornography.
948.01 (1t) “Lewd exhibition of intimate parts” means the display of less than fully and opaquely covered intimate parts of a person who is posed as a sex object or in a way that places an unnatural or unusual focus on the intimate parts."
The law originated as SB 68. The companion Assembly bill was AB 71. It was signed by Gov. Tony Evers on July 10, 2019.
State Sen. Andre Jacque – Predators are using limited definitions of what is a sexually explicit video or image of children as a loophole, as present child pornography statues only apply when the child is engaged in a sexual act. Investigators are now very commonly seeing predators taking images of nearly naked children in see-through clothing that are suggestively posed and inappropriately sexualized and intended for sexual gratification in order to get around charges for possession of child pornography....
Finally, a few committee members expressed concern that sexts or innocent, 'baby in the bathtub' photos may be prosecuted as a result of enactment of SB 68. While those concerns are well-founded, we would like take the opportunity to reiterate and emphasize that sexts and 'baby in the bathtub' photos may be subject to child pornography charges under current law. The bill...(does) not affect the prosecutorial discretion district attorneys currently enjoy.
ACLU of Wisconsin – This bill is unnecessary because possession and distribution of child pornography is already illegal. Under 948.12, it is illegal for a person to knowingly: (1m) possesses, or accesses in any way with the intent to view any visual representation of a child engaging in sexually explicit conduct. "Sexually explicit conduct" is specifically defined by statute in 948.01 (7)....
We have seen children in other states prosecuted under the current child pornography definition when minors take pictures of themselves with their cell phones and share them with each other. This bill would compound those problems further by increasing the universe of images people are prohibited from "possessing or accessing," and could affect the lives of countless minors who are foolishly sending one another images that fall within this overly broad definition. The way in which young people use social media like Facebook, Snapchat, or Instagram make them easy venues to inadvertently snare them in the criminal justice system....
Child pornography and obscenity are unprotected and rightfully so; however, this bill would criminalize speech that is neither pornographic nor obscene. Under the so-called Miller test developed in the 1973 case Miller v. California, three elements must be satisfied for a work to be deemed obscene and therefore unprotected under the First Amendment: (i) the average person, applying contemporary community standards, must find that the work, taken as a whole, appeals to prurient interest; (ii) the work must depict or describe, in a patently offensive way, sexual conduct or excretory functions as specifically defined by applicable state law; and (iii) the work, taken as a whole, must lack serious literary, artistic, political, or scientific value. This bill would, on its face, criminalize publications that do not fit this definition, as it would include publications that (i) are not patently offensive, (ii) do not depict sexual conduct, and (iii) do not lack serious literary, artistic, political, or scientific value.
The City of Milwaukee and the Wisconsin Chiefs of Police Association Inc. registered in support of the bill.
The main authors of SB 68 were Jacque (R-DePere) and Lena Taylor (D-Milwaukee).
Its two main co-sponsors were Representatives Ron Tusler (R-Harrison) and David Crowley (D-Milwaukee).
By Gretchen Schuldt
A police office’s testimony that victims of Somali-on-Somali crimes tend to lie about them was unduly prejudicial to a man accused of participating in a Hudson shooting that injured three people, the State Court of Appeals has ruled.
"We also generally agree with (defendant Ahmed Farah) Hirsi’s argument that the racial and ethnic aspect of (Officer Tracy) Henry’s testimony raises heightened prejudice concerns, as such a notion is firmly supported by our case law," the District III appeals panel wrote in an unsigned opinion.
The error was "fundamental, obvious and substantial," said the panel that included Appeals judges Lisa K. Stark, Thomas M. Hruz, and Mark A. Seidl.
The panel, in overturning a ruling by Circuit Judge James M. Peterson, sent the matter back to Circuit Court for further proceedings. Peterson, a Dunn County judge, presided over Hirsi's St. Croix County trial.
Hirsi was convicted by a jury of multiple felonies stemming from a January 2014 shooting in a liquor store parking lot. Witnesses told police a passenger in a tan Cadillac fired multiple gunshots into an Kia SUV. Three of the six occupants were hit, and three were not. All six are Somali, as is Hirsi.
Hirsi was arrested later that day, along with a co-defendant.
The state's theory of the case was that Hirsi, recognizing one of the people in the car, referred to her in a derogatory manner. The woman responded in the same manner, and Hirsi began to shoot indiscriminately into the Kia.
Hirsi denied involvement and the woman said she did not know anyone in the Cadillac. She denied the derogatory term was aimed at her and said the shooting occurred about an hour after the name-calling. The woman did not identify Hirsi when shown a photo array that included him.
The Kia's driver testified that Hirsi was not the shooter and that he told law enforcement before the trial that "they had the wrong man in custody and that the man that shot me is out there and free."
Four victims did not testify, but one of them told police she did not know who did the shooting and another said she was asleep and did not see the shooting. Two declined to cooperate.
Only one person, a co-defendant, identified Hirsi as the shooter. The co-defendant had a plea deal with prosecutors under which he agreed to testify "truthfully" and plead guilty to two felonies. In exchange, 15 charges would be dismissed and prosecutors would recommend a two-year prison sentence, according to a brief filed by Hirsi's appellate lawyers, Cole Daniel Ruby and Albert T. Goins, Sr.
Hirsi was sentenced to 50 years in prison and 35 years of supervised release.
By Gretchen Schuldt
Two organizations representing public health officials around the state called Tuesday on Gov. Tony Evers to reduce jail and prison populations to reduce the spread of coronavirus.
"Incarcerated individuals have much greater health concerns than the general public for many reasons, including the trauma and chronic stress that goes along with being incarcerated - - because chronic stress is a potent immune-system suppressant," they wrote. "As a result, people who are incarcerated are at high risk of not only contracting COVID-19, but also for suffering serious complications (or even death) from the infection."
The two groups, the Wisconsin Public Health Association and the Wisconsin Association of Local Health Departments and Boards, represent about 1,200 public health professionals in the state, the letter said. It was signed by Linda Conlon, co-chair of WALHDAB's Public Affairs Committee, and Maureen Busalacchi, who holds the same position with the Public Health Association.
"Wisconsin’s prisons and jails are already overcrowded, so it is not possible in these settings to practice the social distancing that is recommended by you, and by public health experts, to stop or slow the spread of COVID-19," they wrote.
While officials in some counties have moved to reduce their jail populations to reduce disease spread, DOC has been extremely slow to respond.
On Feb. 21, the state's adult prison population was 23,590, according to Department of Corrections figures. During the following month, the dangers posed by the coronavirus became increasingly obvious and well known. But on March 20, the state's adult prison population was 23,416, a decrease of just 174, or 0.7% from the February number.
"It is not surprising that one correctional staff member at Waupun has already tested positive," the organizations wrote. A staff member at Columbia Correctional Institution also has tested positive..
More people in the prisons will test positively, and the virus will spread rapidly, they said.
"From a public health perspective, safe and rapid decarceration is one of the most effective preventative measure that can be taken to reduce the spread of COVID-19 within jails and prisons and reduce hospitalizations and deaths from jail- and prison-acquired COVID-19 infections," the groups wrote. "Decarceration reduces population density and allows for increased social distancing."
Older and chronically ill incarcerated people are especially at risk of dying, they said.
"Therefore, decarceration steps should particularly emphasize those groups (i.e., over 65, and those 50-64 with chronic medical conditions)," the organizations said. People in the over-50 age category pose little risk of committing violent offenses, they said, "so targeted decarceration among those age groups (as well as younger individuals who do not pose a threat to society for other reasons) can be done safely."
"Not only will reducing overcrowding in prisons reduce staff exposure, but seriously ill inmates are a significant drain on correctional resources, including staff time of guards, prison medical staff, and others," they said.
Assistant District Attorney Rebecca Kiefer is challenging incumbent Daniel Gabler in the Branch 29 Milwaukee County Circuit Court judicial race.
The election is April 7.
WJI asked both candidates to respond to a series of questions designed to better inform voters about their candidacy. Kiefer did; Gabler did not.
WJI, however, has previously written about Gabler, who was appointed to the bench in December 2018 by former Gov. Scott Walker. Gabler's "Walker's judges" profile is here; a story about his judicial application and building code violations is here.
Kiefer, a Wisconsin native, is a graduate of Marquette University Law School. After graduating, she practiced for a time with her father, also a lawyer, before she became a Milwaukee County assistant district attorney, a position she has held for more than 15 years. Her full resume is here.
Gabler also is a Marquette Law grad. He was a Milwaukee County assistant district attorney and served under Walker as chair of the State Parole Commission. The resume he submitted with his judicial application to Walker is here.
Here are Kiefer's responses to the WJI questionnaire as she submitted them.
Why do you want to become a judge?
I want to be a judge because I have the qualifications, experience, and values to serve. I believe that all people deserve a fair hearing under the law and everyone deserves respect in the courtroom.
I’m also concerned with leadership in the community and the courtroom. As an attorney and ADA, I’ve traveled statewide to train attorneys on issues regarding children and the law. My goal is always to gain more experience and tools to make a positive difference. As a judge, I can continue that effort from the bench and have a larger impact. Kids’ issues are central to everything that I do.
I am deeply concerned with keeping our community safe, and I’m also insistent on issues of equality and equity. Milwaukee County needs judges who can fairly apply the law, ensure we care about the needs of working people, kids, and victims, and treat everyone with respect. I intend to be that judge. In my current position in the District Attorney’s office, I help children get placed in permanent, loving homes. It is work that is both challenging and rewarding. As a judge, I will be able to affect positive change at a higher level.
Name one of the best United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.
One of the best Wisconsin Supreme Court decisions in the past thirty years is State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986). This case deals with how to evaluate a plea after the fact to decide if the plea was done freely, voluntarily and intelligently, with a full knowledge of the consequences of the plea. This case establishes a common-sense approach where the court will look at the entire record to determine what the individual understood at the time the plea was entered. This framework allows a court to examine all of the facts relevant to show what the individual did or did not know at the time the plea was entered, carefully preserving the rights of that individual while ensuring the public’s interest in swift and sure justice. The guidance of the Wisconsin Supreme Court in this case strikes a careful balance, which tends to encourage careful, conscientious plea colloquies, while also not permitting an individual to game the system by taking advantage of judicial mistakes.
Name one of the worst United States or Wisconsin Supreme Court opinions in the last thirty years and explain why you feel that way.
One of the worst United States Supreme Court cases of the last thirty years is Kelo v. City of New London, 545 U.S. 469 (2005), which deals with the Takings Clause of the Fifth Amendment of the United States Constitution. I believe this is the worst United States Supreme Court Case as it condones the government taking people's homes and transferring them to a private developer. This taking of personal property that was not blighted or otherwise a nuisance to the community, merely to increase the city’s tax base, worked to the benefit of a private corporation at the expense of individual homeowners. This is not what the Takings Clause the Fifth Amendment is meant to do, as it is not a true "public use" under the law.
Wisconsin has addressed this issue. In 2006 the legislature prohibited this type of taking, and established procedures designed to protect property owners. See 2005 WI Act 233 and 2005 WI Act 208.
Describe your judicial philosophy.
My judicial philosophy is to understand what everyone in the courtroom needs and ensure that people are treated fairly. I do not think judges should have an agenda. Generally, I agree, judges should approach their role with restraint and deference to the rule of law. Of course I believe that the role of a circuit court judge is to interpret the laws of the State of Wisconsin, and not to legislate new policies from the bench -- the role of legislators is to legislate.
I believe it is the role of a circuit court judge to listen, without bias or prejudice, to the case before them, and adjudicate the matter fairly using the applicable law as their guide, without bringing any outside agenda into the courtroom.
I am a servant of the law. A servant of the law has no interest in the outcome of the case, but to see that justice be done. The twofold interest of a servant of the law is that guilt shall not escape nor innocence suffer. These are the beliefs I hold as an assistant district attorney for the State of Wisconsin, and I would continue to employ as a circuit court judge. The cornerstone of this belief is fairness to all parties, to allow all litigants the time to be heard and advance their case, while at the same time moving cases along so that all may receive the finality of judgement in a reasonable time.
I know that judges can’t make all parties happy, nor should we try. But every litigant should feel heard, and have the opportunity to be heard. I don’t think we need assembly-line justice in civil or criminal court. We need judges who will adhere to the law, and ensure that agendas are set aside.
Finally, I think the Constitution is a living document. Judges must apply the law to today’s world, not some mythical view of how our Founders might have addressed issues they could not have foreseen more than 240 years ago.
The circuit court judge is a servant of the law. I believe the role of a circuit court judge is to look at each individual case, apply the applicable law to the facts, and render a decision that is fair, reasoned, and clearly supported by the record.
By Gretchen Schuldt
Advocacy groups on Tuesday called on Gov. Tony Evers to expand the compassionate release program to allow the release of more aged and infirm incarcerated people from state prisons.
"The prison health system cannot handle a massive outbreak of COVID-19. State officials must work to keep our communities safe without putting those serving prison sentences at unnecessary risk," the groups said in a letter to Evers. "You and the DOC (Department of Corrections) must act now to release some of those imprisoned. Lives really are at stake."
The letter was signed by the Wisconsin Justice Initiative; the ACLU of Wisconsin; the Milwaukee Turners Confronting Mass Incarceration Committee; the National Lawyers Guild, Milwaukee Chapter; and WISDOM.
The groups requested Evers to direct DOC to "aggressively" use the program to release qualified, low risk-people from "our overcrowded, understaffed prisons."
"Wider use of compassionate release will reduce prison crowding and help prevent the spread of coronavirus," the groups wrote. "It will reduce stress on prison medical staff and take a long overdue step toward making the compassionate release program an effective and useful tool. The risks posed by coronavirus to too many incarcerated people are greater than the risks these people pose to the public. "
By Gretchen Schuldt
A successful Milwaukee program to provide defense lawyers to indigent defendants in Municipal Court is over because the city ended funding for it.
Legal Action of Wisconsin, in the one-year, part-time pilot program, won or negotiated dismissal of 40% of citations issued in cases it defended, according to a report prepared by the agency.
"The system works better if all parties are represented," said Kori Ashley, a Legal Action lawyer who worked on the project.
Now that the program has ended, she said, "we're back to the same old, same old."
The city pays police to issue tickets and the city attorney's office to prosecute cases.
Indigent defendants in Municipal Court, though, are not entitled to court-provided lawyers, meaning that most indigent defendants who show up represent themselves, often not very well.
Municipal Court is a money-maker for the city. In 2018, the court cost $3 million but brought in $5 million, according to city budget figures.
The Common Council in November 2016 approved a budget amendment by Ald. Michael Murphy that allocated $45,000 to the defense lawyer project. Due to city delays in getting the paperwork done, however, the project did not launch until last year. Funding ran out at the end of 2019.
Legal Action has applied for Community Development Block Grant funding to continue the program, and the council will vote on that in late spring or early summer.
Murphy said he is "fully supportive" of the Municipal Court project. If it is not funded this year, he said, "I will certainly put it in the budget for next year."
Some results, according to the Legal Action report:
Many clients don't have permanent addresses because of chronic homelessness.
"These are individuals who absolutely need legal representation," Ashley said.
Some clients had mental health issues with "very stark competency issues....These individuals should not be getting citations," Ashley said.
Both the city attorney's office and Municipal Court judges were receptive to Legal Action's work, she said.
Sometimes, mental health issues result in a client receiving multiple citations for offenses such as loitering or disorderly conduct, Ashley said.
The agency cited in its report an example – a woman with severe mental health issues "routinely cited for retail theft from various stores for behavior that simply is out of her control."
Legal Action represented her in four cases that that were dismissed because those issues, saving the woman $1,500 in court charges.
In another case not related to mental health, a woman's identity was stolen by a relative, who then received several traffic tickets under the victim's name.
"LAW successfully obtained the dismissal of the citations and significantly, the client's driving privileges were not suspended," Legal Action said in the report.
In yet another instance, a woman for whom English is a second language was accused of shoplifting "and was unable to explain a simple misunderstanding due to the language barrier," LAW said.
"This client's story was particularly impactful, because she is an elderly woman who came to this country 25 years ago and had previously no contact with law enforcement. She endured a tremendous amount of stress and felt an immense amount of shame because of the ticket."
By Gretchen Schuldt
A lawyer on Thursday called for an investigation into a Milwaukee deputy city attorney's suggestion to a jury that the African American plaintiff in an excessive force lawsuit would be irresponsible to have children if police injured him as badly as he claimed.
Deputy City Attorney Jan Smokowicz's comments were racist or close to it, attorney Nathaniel Cade said.
“Now you’re saying a black man should not have children because he’s injured," Cade said. "Would you say that to a veteran of a war?”
“Maybe he (Smokowicz) should not be handling these civil rights case if he harbors these views,” Cade said.
The investigation should be ordered by City Attorney Grant Langley or by challenger Tearman Spencer if he wins the April 7 general election, Cade said.
Smokowicz said Cade's recollection of his comment "is not accurate and understanding my actual remarks requires the context of the testimony provided by the plaintiff in the case.
"Mr. Harris testified that his shoulder injury from the incident with the police was so severe that he could not even help change his child’s diapers," Smokowicz said. "In my closing argument, I asserted that the jury should conclude that Mr. Harris was embellishing the degree of his injuries. I said, in particular, that I was certain he was not the type of person who would be so irresponsible as to leave to the mother of two of his children, born after the incident, the sole responsibility for their care.
"There was no racism in this statement—implicit or explicit. Mr. Cade’s demand for any inquiry is completely unfounded," he said.
Cade represented Jimmy Harris, 47, in a federal court lawsuit alleging police used excessive force and violated Harris' constitutional rights when they arrested him after a traffic stop in November 2010.
A jury found in Harris' favor Wednesday and awarded him $1.67 million in damages. (Previous WJI stories about this case and derogatory remarks made by an officer involved are here, here, and here.)
Harris alleged in his lawsuit, among other things, that Officer Froilan Santiago injured Harris' recently operated-upon rotator cuff during the arrest, which led to long-term medical problems that plague him to this day.
The Harris case is just the latest in a series of lawsuits against the police that have cost the city millions of dollars in settlements and verdicts.
“I would hope the city council would go into a closed session and make some decisions on how they want to handle this case and other cases because that’s reflective of the police force they have,” Cade said.
Updated 3/5/2020 to correct employment history. Live by the cut and paste, die by the cut and paste.
"Evers' judges" is our effort to present information about Gov. Tony Evers' appointees to the bench. The information is taken from the appointees' own judgeship applications. WJI also will continue to profile former Gov. Scott Walker's appointees who are still in office.
Name: Jeffrey O. Davis
Appointed to: District II Court of Appeals
Appointment date: Sept. 4, 2019. (Election scheduled for April 2021)
Law School – Ohio State University, Columbus, OH
Undergraduate – Miami University, Oxford, OH
High School – Nicolet High School
Chagrin Falls High School, Chagrin, OH
Recent legal employment:
1987 - present – Quarles & Brady law firm
Bar and Administrative Memberships:
U.S. Supreme Court
Wisconsin Supreme Court
U.S. Court of Appeals for the Seventh Circuit
U.S. Court of Appeals for the Eleventh District
U.S. Court of Appeals for the Federal Circuit
U.S. District Courts for the Eastern and Western Districts of Wisconsin
General character of practice before becoming a judge: Member of Quarles & Brady commercial litigation and dispute resolution group; coordinating partner for pro bono practice. Focused on insurance, commercia and appellate law, unfair competition. Gained experience in criminal, family, landlord/tenant, misdemeanor and domestic abuse matters through court appointments and pro bono work.
Describe typical clients: Businesses involved in disputes with their insurance carriers; also employees and employers in matters involving covenants not to compete, trade secrets and unfair competition matters.
Number of cases tried to verdict or judgment: Six cases to a jury verdict.
List up to five cases in which you participated as a judge or lawyer in the past seven years:
Menasha Corp. v. Continental Insurance, et al. – This was a complex insurance coverage case involving multiple insurers, pertaining to defense and coverage issues surrounding the Fox River clean-up. I represented Menasha as lead attorney on the case.
Harley-Davidson, Inc. v. Traveler's Insurance, et al. – This was another complex insurance coverage action, for asbestos liability, involving multiple insurers and numerous coverage issues. The case settled following a series of favorable summary judgment rulings. I represented Harley-Davidson as lead attorney on the case.
Foxwood Estates Homeowners Associationn v. Foxwood Estates, LLC – This was a three week jury trial tried to verdict in 2001, but with the verdict sealed due to a contingent settlement. The settlement fell through, the verdict was opened and judgment entered in favor of the plaintiff Homeowners Ass'n. The case went up on appeal to District II where the verdict was affirmed in 2015. I was lead attorney for the plaintiff Homeowners Ass'n at trial and on appeal.
Menasha Corporation v. Pratt Industries, et al. – This was an action for an injunction and damages against multiple former Menasha employees for breach of restrictive covenants and against their current employer for tortious interference and unfair competition. Following issuance of an injunction the case settled. I was lead counsel for the plaintiff Menasha.
Anderson v. Aul – This was a case involving the issue as to whether Wis. Stat. sec. 632.26 (the notice prejudice statute) required a showing of actual prejudice before coverage would be lost for late notice under a "claims-made and reported" insurance policy. I was lead coverage counsel for the Andersons, who were seeking coverage in an attorney malpractice case under the direct action statute.
Experience in adversary proceedings before administrative bodies: None.
Previous runs for political office: Ran unopposed for Fox Point village trustee in 2006.
Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization: None listed.
All judicial or non-partisan candidates endorsed in the last six years:
Lisa Neubauer, Wisconsin Supreme Court and Court of Appeals.
Andrew Jones, Milwaukee County Circuit Court.
Rebecca Dallet, Wisconsin Supreme Court.
Michael Fitzpatrick, Wisconsin Court of Appeals.
Professional or civic and charitable organizations:
State Bar of Wisconsin, Appellate Practice Section, chair, member, treasurer
State Bar of Wisconsin, high school mock trial, Milwaukee regional coordinator
Milwaukee Bar Foundation, Board member
Big Brothers/Big Sisters of Milwaukee, Board member
Milwaukee Tennis & Education Foundation, Board member
COA Youth and Family Centers, Board member
Fox Point Foundation, Treasurer and Board member
Elected or appointed public offices:
Fox Point Village Board, March 2007-January 2009 – elected
Fox Point Board of Ethics, approximately 2009-present – appointed
Fox Point Board of Appeals (alternate), approximately 2016-present – appointed
Significant pro bono legal work or volunteer service:
Pro bono has been a significant part of my practice and for the past several years I have been the pro bono coordinating partner for Quarles' Milwaukee office. My most significant pro bono matter was a death penalty case that I litigated for 21 years (1992-2013), including a week long evidentiary hearing, two appeals to the Florida Supreme Court, two appeals to the Eleventh Circuit Court of Appeals, and multiple certiorari petitions to the United States Supreme Court. Aside from coordinating the firm's MiIwaukee pro bono efforts, which are extensive, I am personally involved In a number of our pro bono programs, including the Eviction Defense Project, the Parent Mediation Conferences, the Pro Se Appellate Help Desk, and numerous court appointments, including many taken by appointment from the Appellate Division of the State of Wisconsin Public Defender's Office, the Seventh Circuit and the Eastern District of Wisconsin.
Involvement in business interests:
Why I want to be a judge –
Taking on the role of a judge would take the concept of service to a new and different level, one where I would have the privilege to serve our state, and its system of justice as a whole, on a daily basis. I believe I would find that aspect of the position highly rewarding....
So why an appellate court position, rather than, say, a trial court position? I think the answer lies in a completely different aspect of my personality – which is a deep and abiding fascination with the law itself, the process by which it is made and applied, and the intellectual challenge presented by grappling with legal issues....
As I’ve thought about this question (which of course I carefully considered for my own purposes long before seeing it on this application) the fundamental property law principle of “highest and best use” comes to mind. People are not property, but there are, I think, some appropriate parallels. I believe most people are fundamentally happiest when they can put their skills and abilities to their highest and best use. For me, at this point in time, I believe that use to be a judicial position on an appellate court.
Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had the greatest positive or negative impact on the people of Wisconsin or our democracy.
I wish I could say that Obergefell v. Hodges, 135 S.Ct. 2584 (2015), tops this list, and indeed it would be my top choice for decisions that have had the most positive impact, as I cannot think of a decision in the past 25 years that has done more to bring such a large segment of the population so firmly into the mainstream of society. But, unfortunately, my vote for overall most significant decision falls on the negative side of the ledger, as it goes to a decision – ironically authored by the same justice who penned the majority in Obergefell, Anthony Kennedy – that presents a threat to the proper workings of, and at the very least the people’s confidence in, the democratic system through the power of money. That decision, of course, is Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Citizens United not only squelched Congress’s burgeoning, laudable, and improbably bi-partisan attempt to put controls over big money spending on elections, but mostly ends such controls for as long as the decision remains on the books. I am not a Constitutional scholar, and will not (and cannot in a 500 page essay anyway) get fully into the weeds of the First Amendment dimensions that led to the majority decision other than to say that arguments can be made on all the various sides of this issue, as demonstrated by the various majority, concurring, and dissenting opinions in the case, as well as the precedent that the case overruled. The bottom line is that the decision has had a destructive effect on the democratic process, as it perpetuates a less than level playing field that, in my opinion, Congress had every right to, and did address within the confines of the First Amendment as construed by decades of precedent. I recently heard Justice Kennedy speak and he warned about the fragility of democracy. He’s right. Unfortunately, at least in this case, the uniquely powerful position he was in to protect this amazing institution was, in my view, misapplied.
Identify two or three judges or justices whom you admire and explain why –
Honorable John Reynolds. The late John Reynolds was a former attorney general, governor, and federal district court judge for 37 years who I appeared before many times, including a week long jury trial I handled on my own early in my career. While Judge Reynolds possessed a fine intellect, and very good legal mind, more than anything else he exemplified the value of pragmatism, common sense and empathy that a judge also needs in order to be truly successful. The example set by Judge Reynolds should be a reminder to judges and justices at every level that the decisions they make affect real people and have real consequences.
Justice John Marshall Harlan. About a year ago, I had occasion to read, for probably the first time since law school, Justice John Marshall Harlan’s famous dissent in Plessy v. Ferguson, 163 U.S. 537 (1896), and it caused me to consider again just how remarkable it was, made all the more so by the fact that Justice Harlan was a one-time slaveholder and no model of racial equality, in some sense a man of his time. While I am not a historian, I am fascinated by how the world’s moral order has evolved over the course of time, and in particular how that evolution has, with notable fits and starts and only over the long run, inexorably veered toward a more progressive and tolerant society. A Martin Luther King Jr. quote, recently invoked by President Obama, captures this sentiment perfectly: “The arc of the moral universe is long, but bends towards justice.” Obviously as society changes, as the arc bends that way, the law will inevitably change with it. But for those living at any given time, it takes prescience, a mind that is open to change, and very often great courage, to be a force for this change. The first Justice Harlan, the “great dissenter” (he actually had several other dissents that over time were proven the better view), has become a magnificent example of this and the circumstances of his life make his example all the more compelling, as it shows how a judge can rise above his or her inherent biases and contemporary societal mores to “do the right thing.” Of course, doing the “right thing” is not a mere morality play – the other justices in Plessy no doubt believed they were doing the “right thing” in ruling that “separate but equal” was Constitutionally acceptable. What seems obvious today, but was not then, was the insight that “separate” was not, and could never be, Constitutionally “equal”, and the idea of it highly destructive to a well-functioning and cohesive society. While “separate but equal” has long been condemned as wrong, the qualities it took for a Supreme Court Justice to say so in 1896 cause the Plessy dissent to remain aspirational for all of us, and especially judges, today.
Describe the proper role of a judge –
I’ve heard it said that the role of a judge is to “apply the law as written” – almost as if a judge’s job could be reduced to something as simple as saying what the law is, stamping it to the dispute before him or her, and moving on to the next case. Perhaps there are cases that can be disposed of that easily, but most – at least those where parties have expended the time and resources necessary to take an appeal – are more complicated than that. The “apply the law” mantra is, frankly, a bit of a cop out – a judge is not a bureaucrat. That is because there are always nuances and shades of gray, which of course is what makes the process so fascinating....
A better answer, at least to me, is to say that a judge’s role is to “dispense justice”, but of course that’s not really satisfactory either. Only by answering the question what does “dispense justice” mean can one get to a philosophy that begins to be helpful. For me, dispensing justice means being faithful both to the law (whether one agrees with it or not) and the record before the court, understanding that this will inevitably require judgment calls as to the meaning of a term in the statute or instrument before the court, a passage in a case, or reading of testimonypoints that are not always easily judged. In making those judgment calls dispensing justice means being intellectually honest, thoughtful and thorough, cognizant of public policy and long term consequences, and most of all independent and neutral, so as not to base one’s decision on the party or position that is more popular, or more likeable.
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