WJI's Daily Reads for May 31, 2022
Milwaukee Journal Sentinel: Community members pack meeting on gun violence in Milwaukee.
Police announced they would begin enforcing the city’s juvenile curfew ordinance as it promoted summer programming for youth. The mayor’s office announced security changes for downtown, including a $2.2 million investment of federal funds from Gov. Tony Evers.
“What I’ve heard from community members is they feel a sense of inequity in terms of how response is happening,” said Arnitta Holliman, executive director of the Office of Violence Prevention. “Their feelings are valid."
Milwaukee Journal Sentinel: Three justices indicate support for permanent disbarment of attorneys as discipline.
NBC: Prime minister introduces national freeze on handgun sales in Canada.
Politico: California working on gun control legislation.
Top of mind is Senate Bill 1327 by Sens. Bob Hertzberg (D-Van Nuys) and Anthony Portantino (D-La Cañada-Flintridge), which employs the same legal mechanism used in a Texas abortion ban to create a private right of action against makers and distributors of certain firearms, in the event those weapons are used illegally. The governor wants to add an urgency clause, which would require the bill to take immediate effect upon passing, but doing so would need a two-thirds majority vote from both chambers — a heavier lift, even on a bill that has broad Democratic support. . . .
The governor’s office said Newsom is ready to sign three other bills aimed at curbing gun violence, and are hopeful lawmakers will move quickly to get them to his desk ASAP: One to crack down on ghost guns (Assembly Bill 1621 by Mike Gipson), another that would restrict marketing of firearms to minors (Assembly Bill 2571 by Rebecca Bauer-Kahan) and a third bill that would allow the state attorney general and private citizens to sue manufacturers and sellers of firearms for the harm caused by their products (Assembly Bill 1594 by Gipson, Phil Ting and Christopher Ward).
NBC: While other states remove permit requirements for concealed carry.
Daily Dot: Twitter to pay $150 million to settle charges of improper use of email addresses.
Washington Examiner: Massachusetts exonerates woman convicted of witchcraft 329 years ago.
Massachusetts lawmakers exonerated Elizabeth Johnson Jr. of her 1693 witchcraft conviction, which she was sentenced to death for, with a curious eighth grade class sparking the late move. . . .
Several convicted witches were exonerated in the years following, but Johnson was left out.
Eighth graders at North Andover Middle School didn't agree with this and sought justice for the convicted "witch." Civics teacher Carrie LaPierre's students took the time to research what steps were necessary to accomplish their goal.
WJI's Daily Reads for May 27, 2022
WPR: Rally in Madison about voting rights of the disabled.
Milwaukee resident Martha Chambers said she has been unable to use her arms or legs since she was injured in a horseback riding accident in 1995. She uses a wheelchair she controls with her mouth and is able to write using a mouth stick.
"I can fill out a ballot on my own. However, it is literally impossible for me to pick up a ballot and put it in a mailbox. So, for this new barrier that the Waukesha Circuit Court has put upon us, it is literally impossible for me to vote," Chambers said. "Not only that, but if I do choose to vote the person who put my ballot in the mailbox would become a criminal, and this is totally ridiculous."
Associated Press: Assembly Speaker Vos thinks more guns inside schools is a decent option.
Assembly Speaker Robin Vos told The Associated Press that finding ways to better protect schools, including with additional police, armed security guards and armed teachers, “should be on the table.” . . .
Democratic state Rep. Deb Andraca, of Whitefish Bay, tweeted her opposition to the idea.
“I am a licensed teacher and a gun owner with my concealed carry permit,” she said. “This is a terrible idea.”
Reuters: Federal judge calls for Supreme Court ethics code.
Senior U.S. District Judge Reggie Walton told attendees of a conference in Chicago focused on threats to the independence of the courts that it was "unimaginable that we have a segment of our federal judiciary that's not subject to an ethics code."
Salon: Five recent radical U.S. Supreme Court opinions that are not about abortion.
CNN: Republicans reject domestic terrorism bill in Senate.
Reuters: University of California Hastings Law School to change name by midsummer.
Hastings dean David Faigman on Wednesday updated the law school on the name change, authorized in November by its board of directors after a years-long debate over the legacy of namesake Serranus Hastings. Hastings was a California Supreme Court Justice who founded the law school in 1878 and who also orchestrated killings of Native Americans in order to remove them from ranch land he purchased in Northern California.
The Marshall Project: What do you know about AEDPA?
By Gretchen Schuldt
A court cannot order a private health care provider to implement a treatment that the provider believes is below the standard of care, the state Court of Appeals ruled this week in a split decision.
The District II Court of Appeals panel, in a decision written by Appellate Judge Lori Kornblum, reversed a ruling by Waukesha County Circuit Judge Lloyd Carter and said that Aurora Health Care did not have to administer ivermectin to a COVID-19 patient. Kornblum was joined in the decision by Appellate Judge Lisa S. Neubauer.
Ivermectin is primarily used as an anti-parasitic in farm animals and is given to humans to treat some parasites and scabies. It has not been approved by the FDA for COVID-19 treatment.
Appellate Judge Shelley A. Grogan dissented, saying that Carter made a reasonable ruling when he issued an injunction directing Aurora to credential a doctor willing to give the treatment to the patient, John Zingsheim.
The suit is one of several similar suits involving New York attorney Ralph Lorigo that have been filed around the country. In the Wisconsin case, Lorigo represented plaintiff Allen Gahl, Zingsheim's health-care representative. Gahl also was represented by attorney Karen L. Mueller, a far-Right candidate for Wisconsin attorney general.
"Requests for injunctive relief must be premised on the existence of a viable legal claim upon which the petitioner can show a reasonable likelihood of success," Kornblum wrote. "Gahl fails to meet this foundational requirement. ... Because Gahl has failed to identify any law, claim, or recognized cause of action under Wisconsin law by which a patient may compel a health care professional to administer a course of treatment contrary to that medical professional’s judgment, the court erroneously exercised its discretion in granting Gahl injunctive relief."
Zingsheim, 60, was admitted to the hospital in September 2021 and placed in the intensive care unit. He was intubated on Oct. 3, but his condition deteriorated. He was offered other treatments, accepting some and declining others.
"Gahl, 'losing hope for [the patient’s] survival,' searched for 'an alternative treatment' and became aware of the proposed treatment" (ivermectin), Kornblum said, adding in a footnote that there is no evidence that Gahl is a doctor "or a medical professional of any kind."
Gahl obtained a prescription for the drug from Dr. Edward Hagen, who did not examine Zingsheim but prescribed a drug for him based on talking to Gahl. The hospital refused to administer the drug, however, because officials believed that doing so would not meet the standard of care.
Gahl went to court in an effort to force Aurora to comply with his wishes.
"Importantly, Gahl initially did not submit an affidavit from Hagen or any other licensed medical professional ...explaining why the proposed treatment was necessary for this patient or within the standard of care," Kornblum wrote.
Aurora argued that there is no legal authority in the state compelling a health care provider to administer a treatment the provider believes to be below the standard of care.
Aurora also said that Hagen did not even have access to Zingsheim's medical records and "raised its concern to the court that the Wisconsin State Licensing Board had previously disciplined Hagen for prescribing medications to a person who was not his patient and whom he had not examined."
Hagen admitted to the state Medical Examining Board that he prescribed drugs, including opiates, to a neighbor for about 1½ years without examining him beforehand. He also said he did not keep medical records on the patient or consult with the patient's physician. The examining board reprimanded Hagen in 2013.
Aurora filed affidavits in support of its position, including one that described the risks that ivermectin posed. They include, according to the affidavits, heart damage, liver damage, stroke, kidney damage, hypotension, loss of bodily movement control, seizures, coma, and death.
At an October hearing, Judge Carter asked for more evidence and gave the two sides until that afternoon to supplement the record. Among the items Gahl submitted was an unsworn, undated declaration from ivermectin-supporter Dr. Pierre Kory "explaining his support for the use of the proposed treatment for COVID-19 patients," Kornblum wrote. "The declaration is conspicuously devoid of any discussion of the patient in this case."
"None of the documents Gahl filed relating to Kory establish that Kory ever examined this patient or spoke with this patient’s treating medical providers. ... At no time did Gahl submit any medical information from any health care professional who had actually examined this patient, reviewed this patient’s records, or who could give a medical opinion to a reasonable degree of medical probability about the benefits of the proposed treatment on this patient at this time," she wrote.
Carter ordered Aurora to administer ivermectin but also set a hearing for the next day to allow Aurora to give reasons why his order should not go into effect.
"While the court cited the criteria for granting a temporary injunction at the hearing, the court never applied those criteria to the facts of the case on the record or in the order," Kornblum said. "The court failed to identify which, if any, legal claim asserted by Gahl in the petition provided a basis for the injunctive relief requested, much less the legal authority supporting such a claim."
Aurora sent a letter to the judge objecting to the order and saying it was "problematic."
"I am not aware of any orders written by Dr. Hagen, but am aware of a prescription written by Dr. Hagen for [the proposed treatment] 66mg to be taken once daily," the letter said. "The prescription does not indicate from where [the proposed treatment] is to be obtained or how the tablets are to be administered to a patient who is intubated and sedated. Finally, the Order provides that Aurora is to administer [the proposed treatment] 'as further ordered by Mr. Gahl.' Mr. Gahl is not a healthcare provider."
At the hearing the next day, Aurora said the patient was improving and no longer tested positive for COVID.
"Gahl’s attorney switched his argument from using the proposed treatment as an emergency treatment for COVID-19 to giving the proposed treatment for 'COVID and the damages that come about as a result of COVID,' ” Kornblum wrote.
Carter modified his order somewhat, ruling that Gahl should find a physician willing to administer the drug and to whom Aurora could grant credentials to practice in its hospital. Once credentialed, that doctor would have permission to go to the hospital and administer the ivermectin to Zingsheim.
"At no point did the court issue an oral or written order explaining whether or how Gahl had established the ... criteria for injunctive relief. The court also did not identify any claim set forth in Gahl’s petition which supported the request for relief, much less the legal authority supporting the claim," Kornblum said.
Gahl effectively acknowledges that ivermectin treatment is below the accepted level of care, Kornblum said.
"He admits that using the proposed treatment for COVID-19 is not approved by the FDA, as it is an 'off-label use of the drug,'" she wrote.
"We do not decide the medical question of what the standard of care should be. We are not doctors. We decide the legal question, as both Aurora and Gahl agree, of whether the court has the authority to order Aurora to provide treatment that is below the currently accepted standard of care for COVID-19," she said.
"The court failed to identify any viable claim upon which the temporary injunctive relief was granted, and as such, Gahl did not show a reasonable likelihood of success on the merits," Kornblum wrote.
Injunctions are used to preserve the status quo, Kornblum said, but "the court’s order neither preserved nor restored the status quo between the parties, but instead altered the status quo and granted much, if not all, of the relief Gahl ultimately seeks in this case."
"Recognizing that he has failed to identify any legal basis for the circuit court’s action, Gahl urges us to ignore the law based on his assertions that the treatment protocols for COVID-19 are wrong. ... These criticisms do not empower us to order a private health care provider to administer a proposed treatment that does not fall within its standard of care when there is no legal authority upon which to do so. Our role is to interpret and apply the law as written. We are bound by the law, and the law in this case does not provide a basis for judicial intervention," she said.
In dissent, Grogan said the issue at hand was not, as Aurora argued, whether a court could order a provider to offer care below the standard of care; it was, instead, whether Carter erroneously exercised his discretion in granting the injunction.
"Based on the record," she wrote, "it is clear the circuit court’s decision was reasoned and based on the record and applicable law."
Patients have rights in Wisconsin, she said, including the right to make their own health care decisions, the right to informed consent, and the right to request and receive medically viable alternative treatments.
"Although Wisconsin law does not afford a patient the right to demand any treatment the patient desires, it does recognize a patient’s right to request and receive medically viable alternative treatments," Grogan wrote. "The fact that the circuit court was presented with differing opinions about what treatment is proper for Zingsheim suggests the jury is still 'out' as to whether there is only one particular and established 'standard of care' in treating this novel virus. Time will eventually reveal what the standard of care or reasonable alternative treatment is for people in Zingsheim’s position. What is important here is that the circuit court had before it information from two independent physicians (one indicating he was the world’s foremost expert on treating COVID-19) who both agreed that a protocol different than that which Aurora had administered, without success, would be proper and could be beneficial to Zingsheim."
WJI's Daily Reads for May 26, 2022
Milwaukee Journal Sentinel: Milwaukee County Circuit Judge Janet Protasiewicz announces candidacy for state supreme court.
CNN: Marquette Law poll shows fast drop in Supreme Court's approval rating following leaked draft.
The Marquette Law School poll findings represent a dramatic change from how Americans viewed the court in March, the last time the survey was conducted. Then, 54% of respondents said they approved of the nine justices and 45% said they disapproved. Now, only 44% approve.
Taken a week after the nation learned of a draft opinion authored by conservative Justice Samuel Alito that showed the high court was poised to overturn Roe v. Wade, the landmark 1973 decision that legalized abortion nationwide, the survey underscores the deep opposition to the possible move.
Slate: How the U.S. Senate and federal judiciary are enabling mass shootings.
Think about the justices, already shielded from actual danger by taxpayer-funded security, and ask yourself why they swiftly and without drama received extra protection from picketers this past month. The immiseration of women and children that comes at the end of this Supreme Court term—not just from reproductive health and gun rulings, but from the gutting of environmental protections and public health measures—should not surprise us, even if it shocks our consciences. Nor should the failure of the Senate to do a single thing to prevent the next Sandy Hook, or the next Buffalo, or the next Uvalde.
Above the Law: What if the Supreme Court's gun opinion leaked right now?
Despite knowing exactly how this is going to turn out, the Supreme Court is likely to sit on this opinion now. We could have seen it as early as Tuesday, but the conservative majority that brands itself as “just calling balls and strikes” is sufficiently cowardly that it won’t risk declaring a concealed carry free-for-all one week after a school massacre.
Which is why, if we’re going to start leaking opinions anyway, this would be a good time to send this one out. Because I think we’d all be interested in hearing the Court’s take on this right now rather than a month from now when the nation has moved on to another shiny object distraction. Reading the Court explain just how “weak” they feel a state’s interest in curbing violence is would provide a genuine service to the country that depends on the institution’s credibility.
Reuters: President Joe Biden nominates three women to federal appellate courts, including the Seventh Circuit.
(Doris) Pryor, a former prosecutor and public defender who is Black, would be the first judge of color on the 7th Circuit from Indiana.
POGO: Protecting yourself from surveillance while receiving reproductive health care.
WJI's Daily Reads for May 25, 2022
Milwaukee Journal Sentinel: Wisconsin Supreme Court dismisses challenge to delays in prosecution; man held in pretrial custody for 847 days.
Supreme Court Justices Rebecca Dallet and Ann Walsh Bradley disagreed with the majority decision. In a dissenting opinion written by Dallet, the two said there are systemic issues with the process for appointing lawyers for indigent defendants.
The judicial system failed Lee twice and, by dismissing the case, the Supreme Court failed him again, according to the dissenting opinion.
WPR: Wisconsin Supreme Court hears challenge to Madison schools' transgender policy.
The policy, which has been in place since 2018, states that students "will be called by their affirmed name and pronouns regardless of parent/guardian permission to change their name and gender." The policy also states that school staff "shall not disclose any information that may reveal a student's gender identity to others, including parents or guardians."
WILL attorney Luke Berg told justices that this violates the constitutional rights of parents to raise their children the way they think is best, urging the court to block the entire policy.
Politico: President Biden addresses country following school shooting.
“For a year, we’ve called on the president to name a national gun prevention director, and we’ve called for him to declare a national emergency. The White House has acknowledged our pleas but has repeatedly rebuffed us,” said Zeenat Yahya, policy director for March for Our Lives. “That’s unacceptable. Last week, Buffalo. This week, Uvalde, Texas. Everyone in power needs to do absolutely everything they can to fight for our lives. Children are dying. Frankly, we’re livid that the president hasn’t fought harder, and we aren’t the only ones.”
Insider: Texas Republicans who say the answer to school shootings is more guns.
In a Tuesday interview with the conservative Newsmax TV channel, Texas Attorney General Ken Paxton said the right response was to ensure more people had access to firearms to stop shootings.
"People who are shooting people, who are killing kids, they're not following murder laws so they're not going to follow gun laws," he said.
Sen. Ted Cruz of Texas also rejected calls for tighter gun laws, suggesting that more armed police should be stationed at schools instead.
Slate: U.S. Supreme Court reins in mandatory arbitration in unanimous decision.
Why were all nine justices so receptive to (Attorney Karla) Gilbride’s advocacy? The likely answer is that SCOTUS’ entire arbitration jurisprudence is built on an egregiously atextual and ahistorical reading of the FAA (Federal Arbitration Act). Whether you look at the plain text of the law or the congressional intent behind it, it’s impossible to justify the court’s massive expansion of mandatory arbitration. Savvy progressive litigators can occasionally exploit this foundation of sand, centering real text and history to limit the damage of indefensible precedents.
Above the Law: Group of Duke law students and alumni ask school to drop visiting professor Justice Samuel Alito.
Sometimes, there are consequences to actions. Alito decided that an opinion unmoored from sound legal reasoning was worth it for his political ambitions. That’s his decision, but a law school doesn’t have to ram its head in the sand and keep treating him as a scholar when he does it.
WPRI.com12: Rhode Island legislature approves recreational marijuana.
Associated Press: Delaware governor vetoes recreational marijuana bill.
“I recognize the positive effect marijuana can have for people with certain health conditions, and for that reason, I continue to support the medical marijuana industry in Delaware,” (Delaware Gov. John) Carney said in returning the bill to the state House. “I supported decriminalization of marijuana because I agree that individuals should not be imprisoned solely for the possession and private use of a small amount of marijuana — and today, thanks to Delaware’s decriminalization law, they are not.
“That said, I do not believe that promoting or expanding the use of recreational marijuana is in the best interests of the state of Delaware, especially our young people. Questions about the long-term health and economic impacts of recreational marijuana use, as well as serious law enforcement concerns, remain unresolved.”
The SCOW docket: Citing Marsy's Law, court OKs drugging pretrial defendants against their will
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: State of Wisconsin v. Joseph G. Green
Majority opinion: Justice Patience D. Roggensack (24 pages), joined by Justices Rebecca Grassl Bradley, Brian Hagedorn, and Annette K. Ziegler; Justices Ann Walsh Bradley, Rebecca F. Dallet and Jill J. Karofsky joined in part
Concurrence / dissent: Walsh Bradley (7 pages), joined by Dallet and Karofsky
We conclude that because the State's significant pretrial interests in bringing a defendant who meets each one of the factors set out in Sell v. United States to competency for trial and providing timely justice to victims outweigh upholding a defendant's liberty interest in refusing involuntary medication at the pretrial stage of criminal proceedings . . . (the) automatic stay of involuntary medication orders pending appeal does not apply to pretrial proceedings.
On December 27, 2019, the State filed a criminal complaint charging Green with first-degree intentional homicide with use of a dangerous weapon. Pretrial, defense counsel raised reason to doubt Green's competency to proceed. The circuit court ordered a competency examination, which was completed by Dr. Craig Schoenecker and filed with the court. At the competency hearing, Dr. Schoenecker testified that Green was not competent but could be restored to competency through anti-psychotic-type medication within the 12-month statutory timeframe. ...
After the hearing, the circuit court found Green incompetent. Accordingly, the court entered an order of commitment for treatment with the involuntary administration of medication. Following this determination, Green appealed and filed an emergency motion for stay of the involuntary medication order pending appeal, which was automatically granted by the circuit court pursuant to our decision in (State v) Scott.
The State responded with motions to lift the automatic stay and to toll (pause) the statutory time period to bring a defendant to competence, both of which were granted by the circuit court. Green appealed. He moved for relief pending appeal, which included reinstatement of the temporary stay. The court of appeals reversed the circuit court's involuntary medication order and its order lifting the automatic stay of involuntary medication. In addition, the court of appeals determined that the circuit court lacked authority to toll the statutory time period to bring Green to competency. We granted the State's petition for review.
Upon granting review, the parties submitted briefs addressing the circuit court's ability to toll the limits on the maximum length of commitment for competency restoration. However, following oral argument, additional briefing was ordered to answer whether the automatic stay required by Scott applied to pretrial proceedings. We determine: (1) whether Scott's automatic stay applies to pretrial competency proceedings and (2) whether Wis. Stat. § 971.14(5)(a)1. permits tolling the 12-month limitation provided to restore a defendant to competency.
If a defendant is found to be incompetent, a court may allow the government to confine and involuntarily medicate the defendant if certain criteria are met.
In Scott, the court ruled that involuntary medication orders are subject to an automatic stay pending appeal to preserve the defendant's 'significant' constitutionally protected 'liberty interest' in 'avoiding the unwanted administration of antipsychotic drugs.'
In Sell, the Supreme Court set forth criteria for determining when the government may be allowed to involuntarily medicate a defendant for the purpose of making the defendant competent to stand trial. In short summation, a court must find that: (1) there are important government interests at stake, including bringing a defendant to trial for a serious crime; (2) involuntary medication will significantly further those state interests; (3) involuntary medication is substantially likely to render the defendant competent to stand trial; and (4) administration of the drugs is in the patient's best medical interest in light of his medical condition. However, postconviction circumstances that call for governmental involuntary medication are "rare."
As with (a prior defendant's) concern in a postconviction context, significant, competing interests underlie our consideration of the involuntary administration of medication in a pretrial context. The defendant holds the same substantial liberty interest in refusing involuntary medication, regardless of the stage of proceedings. Once a defendant is subject to involuntary medication, irreparable harm could be done. On the other hand, the State has a significant interest in bringing a defendant to trial. The State's power "to bring an accused to trial is fundamental to a scheme of 'ordered liberty' and prerequisite to social justice and peace." Further, unlike postconviction proceedings, in pretrial proceedings, the State has yet to employ a significant portion of the criminal justice process to try to achieve justice and uphold the considerable victim and community interests at stake. For example, victims are guaranteed a right to "justice and due process," as well as a "timely disposition of the case, free from unreasonable delay." Wis. Const. art. I, § 9m(2)(d). The "unreasonable delay" phrase is part of the "Marsy's Law" amendment to the state constitution approved by voters last year. And while treatment to competency is not always necessary for postconviction proceedings, the State is required to bring a defendant to competency before a defendant can be tried.
The terms of (state law) limit the treatment time for an incompetent defendant to "a period not to exceed 12 months, or the maximum sentence specified for the most serious offense with which the defendant is charged, whichever is less." As soon as a defendant is in custody for treatment, the statutory time during which he or she may be held before trial begins.
If the State is unsuccessful at restoring competency for trial, the likelihood of which is increased if treatment is prevented by the automatic stay of Scott, a defendant must be discharged from commitment and released unless civil commitment proceedings are commenced. . . .
Since our decision in Scott, the State has been trapped on both ends of the pretrial competency process. On one hand, (statute) permits a defendant to be held for 12 months to be brought to competence. On the other hand, Scott's automatic stay of the involuntary medication order keeps the State from starting the treatment that has been ordered by a court. While the State was given some leeway in the form of a modified Gudenschwager test, this is a high burden, and when employed, can use up the entire 12-month maximum commitment period that is permitted for treatment. And, if the State is not able to satisfy this Gudenschwager test and the time during which treatment can be required expires, the State is without recourse for prosecution. This is an unexpected consequence of the automatic stay that we created in Scott.
WJI's Daily Reads for May 24, 2022
Wisconsin Examiner: In Wisconsin, same-sex marriage is not immediately in danger if Roe falls, but there still are concerns.
In Wisconsin, the end of Roe means that a law still on the books from 1849 will take effect making it illegal for someone to get an abortion unless the mother’s health is at risk. The state similarly still has a provision in its constitution outlawing same-sex marriage, but it wouldn’t be immediately triggered if Obergefell were overturned, according to Larry Dupuis, legal director at the Wisconsin chapter of the American Civil Liberties Union (ACLU).
Slate: Pay attention: Ginni and Clarence Thomas are telegraphing how the 2024 election will be subverted.
What Thomas was emailing was a prefabbed piece of legal advocacy that urged Arizona state officials to “Please stand strong in the face of political and media pressure. Please reflect on the awesome authority granted to you by our constitution. And then please take action to ensure that a clean slate of electors is chosen for our state.” That isn’t just words. It’s actually a theory underlying the subversion of an entire presidential election. It’s also a theory her husband has endorsed as a matter of constitutional law. It didn’t work in 2020 because the legal and political structures to support it weren’t in place at the time. Those pieces are being put into place as we type this.
SCOTUSblog: Supreme Court severely restricts use of ineffective-assistance-of-counsel claims in federal reviews of state convictions.
Despite such apparent qualms, (U.S. Supreme Court Justice Clarence) Thomas wrote for the majority endorsing the state’s position, and all five of the other conservatives joined him. Thomas spent the first 11 pages of his 22-page opinion recounting the grisly facts of the murders the defendants were convicted of, extolling the states’ authority to enforce criminal laws, and emphasizing the importance of the finality of convictions. Finally arriving at the issue at hand, Thomas cited cases holding that defendants are generally held responsible for their attorneys’ errors, and noted that while that general rule does not apply when counsel is constitutionally ineffective, the Sixth Amendment does not guarantee a right to counsel at the post-conviction stage – therefore, at this stage, the defendants were “at fault.”
Vox: Because the Supreme Court's new rule restricting ineffective-assistance-of-counsel claims, a man who may be innocent could be executed.
NPR: Federal court tosses Florida's social-media law.
A Florida law intended to punish social media platforms such as Facebook and Twitter is an unconstitutional violation of the First Amendment, a federal appeals court ruled Monday, dealing a major victory to companies who had been accused by GOP Gov. Ron DeSantis of discriminating against conservative thought.
The Hill: Little-used ethics criminal law might apply to Donald Trump and associates.
The Hatch Act prohibits electioneering by executive branch officials, including the promotion of the president’s political interests, during the course of their formal duties. . . .
While the ethics law has been used almost entirely administratively since it was passed in the 1930s, experts say a rarely used criminal provision of the law could be a novel and relatively straightforward strategy to ensure consequences for Trump in what is sure to be a challenging atmosphere.
WJI calls for enforcement and accountability measures for Milwaukee curfew crackdown
By Gretchen Schuldt
The Wisconsin Justice Initiative on Tuesday called for Milwaukee officials to develop and adopt enforcement guidelines and accountability measures for the recently announced stepped-up use of the city's curfew ordinance against juveniles and their parents.
"We have seen in the past valid concerns raised about police practices by the ACLU’s stop-and-frisk lawsuit," WJI President Craig Johnson said in a letter to Mayor Cavalier Johnson, Police Chief Jeffrey B. Norman and the Common Council. "Any policy that increases the number of police-citizen encounters and places too much reliance on police discretion raises concerns that these practices will again prove problematic to certain groups."
The ACLU suit resulted in the Milwaukee Police Department and the city agreeing to reforms in pedestrian and vehicle stop and search procedures. The ACLU presented strong evidence of racial disparities in who was stopped and searched.
Mayor Johnson and Chief Norman announced the increased curfew enforcement last week, in the wake of the mass shooting near the Deer District after a Bucks' game. No juveniles have been arrested in connection with the shooting, and Norman said the stronger curfew enforcement was meant to protect them.
WJI's Johnson said the move could worsen police-community relations unless "the city adopts and publishes accountability measures and enforcement guidelines."
"Curfew enforcement guidelines should make clear how police will enforce the curfew and who is at risk of receiving citations," Craig Johnson wrote. "Is a 16-year-old making their way home from a Brewers’ game going to get a ticket? How about a youth waiting at a bus stop after work?"
The city's primary curfew ordinance makes it illegal for anyone 16 or under to "congregate, loiter, wander, stroll, stand or play in or upon the public streets, highways, roads, alleys, parks, public buildings, places of amusement and entertainment, places of employment, vacant lots or any public places in the city either on foot or in or upon any conveyance being driven or parked thereon." Violations can bring forfeitures of $100-$200.
Parents and guardians can be cited if they "suffer or permit or by inefficient control to allow" violations by minors.
There are exceptions to the prohibitions. A youth can be out and about while with a parent or guardian or when "exercising first amendment rights protected by the United States constitution or the Wisconsin constitution, including freedom of speech, the free exercise of religion, and the right of assembly," according to the ordinance. A parent or guardian will not be held liable for any violation if they have filed with the police a missing persons report regarding the youth.
"How will an officer determine whether a young person qualifies for one of the exemptions in the ordinance?" Craig Johnson asked, adding, "What are the standards for deciding what parents are cited and when?"
Craig Johnson cited the city's "contributing to truancy" ordinance as an "object lesson in the need for enforcement standards."
In 1995, when lobbying for such an ordinance, then-Police Chief Philip Arreola said he was concerned about adults and businesses who "were responsible for contributing to the students (sic) absence from school by hosting parties and/or allowing students to congregate/loiter on their premises.”
The contributing to truancy ordinance, since then, however, has been used mostly against Black women, Johnson said.
"From 2015 through September 2020, according to Municipal Court statistics, 94% of contributing-to- delinquency citations were issued to women, 62% to Black people, 25% to Hispanic people, and 11% to Whites," he wrote. "That disproportionate caseload suggests inequitable enforcement."
"How will MPD ensure that police equitably enforce the curfew ordinances?" he asked. "Is MPD willing to publicly report the demographics and ages of those cited?"
He also asked whether businesses would be subject to curfew ordinances that apply specifically to them. One ordinance, for example, requires venues with a public entertainment license to announce an approaching curfew 20 minutes before it takes effect.
"All entertainment shall cease for the 20-minute period prior to curfew," the ordinance says.
Violations carry forfeitures of $500 to $2,000.
It also is generally illegal for a business to allow anyone under 17 to enter or stay on the premises after curfew, and hotels, motels, and rooming houses are prohibited from allowing anyone under 18 to "visit, loiter, idle, wander or stroll in any portion of such" business from 10 p.m. to 7 a.m.
Violations of that ordinance carries forfeitures of $100 to $200.
WJI's Daily Reads for May 23, 2022
Waupaca County News: Although court of appeals denies sheriff's petition to withdraw finding of a constitutional violation, sheriff claims vindication.
According to the report sent to the district attorney’s office, “It was also decided that Peter’s red Pontiac would be towed and taken to the Manawa evidence garage to be inventoried and searched.”
(District Attorney Veronica) Isherwood later learned that Stephens’ original report read that the vehicle was searched “for any possible evidence related to past thefts with Peter.”
Such a search would be unconstitutional and failure to report it would violate the Brady Rule.
Milwaukee Journal Sentinel: Wisconsin Supreme Court holds that conviction under disorderly conduct statute does not cause disqualification for concealed carry license.
Writing for the majority, Justice Brian Hagedorn said a disorderly conduct conviction in Wisconsin can’t disqualify someone from holding a concealed carry license in the state.
“In short, the crime of disorderly conduct ... does not require the use or attempted use of physical force or the threatened use of a deadly weapon as an element, even if that conduct could serve as the basis for a disorderly conduct conviction,” Hagedorn wrote. “It is therefore not a misdemeanor crime of domestic violence under federal law.”
Wispolitics.com: Daniel Kelly angling toward another Supreme Court race.
Kelly, who lost a bid two years ago to retain his seat on the bench, has been working toward another run for the court in 2023, when fellow conservative Pat Roggensack is leaving the bench.
Kelly was at the GOP state convention on Friday working the crowd.
Wisconsin Examiner: Republican legislators see more police as only solution for violent crime.
Republican lawmakers are continuing to hammer gun violence and homicide rates in the southeastern Wisconsin cities of Milwaukee and Racine. Disregarding calls to tighten gun laws and support violence prevention strategies, the GOP has anointed law enforcement as Wisconsin’s only solution.
CNN: How Donald Trump's lawyer Cleta Mitchell now advises a government elections commission.
The emails, obtained by CNN through a Freedom of Information Act request, show conservatives were working even before the 2020 election to gain a seat for an ally on the advisory board of the Election Assistance Commission, an independent government agency that provides voluntary election guidelines for states.
The story of how Cleta Mitchell -- the legal adviser who took part in Trump's phone call where he asked Georgia's secretary of state to "find" enough votes for him to win -- was appointed to that board underscores how a core faction of Republicans has focused on pushing unsupported claims of widespread voter fraud even before Trump convinced much of the Republican Party to buy into his election lies that the 2020 election had been stolen.
Reuters: How U.S. Soccer's new chief legal officer helped the federation settle players' labor disputes.
The new collective bargaining agreements call for the men's and women's teams to pool their 2022-2023 and 2026-2027 World Cup winnings, which will then be divided equally, minus a cut for U.S. Soccer. The U.S. women's team has won four World Cup titles, including in 2015 and 2019. The men have never won.
Still, the pooling arrangement is a big deal, given the sharp disparity in men's and women's World Cup prize money, which U.S. Soccer can't control.
Slate: More thoughts on the leak and one justice's activities since then.
(Justice Clarence) Thomas understands, I believe, that when he dumps all over the chief justice, or the current members of the court, or all liberal protesters, he is polarizing and undermining. He is destroying the reputation of the court as a neutral institution that operates above political partisanship. So does whoever leaked the Dobbs draft. So does whoever offered more leaks in the wake of the Dobbs draft. So does every justice who agrees to speak at a partisan political event in the present moment. This is the opposite of shoring up the court’s prestige. Any justice, any leader, any leaker, and any public figure who genuinely worries about “how long we’re going to have these institutions at the rate we’re undermining them” doesn’t pick up a shovel to joyfully begin digging at the same time.
And yet they do. And so the real underlying mystery of the Dobbs leaks, and the speeches that followed? They stand as irrefutable proof that despite the chief justice’s best efforts, despite the justices’ own rhetoric to the contrary, some of the members of the current court actually prefer airing grievances and scoring points in public, and in the press, to bolstering their own fading authority. But if the court can’t be bothered to fight for its own legitimacy, it’s hardly a surprise that there will soon be nothing left to protect.
WJI's Daily Reads for May 20, 2022
Wisconsin Public Radio: Judge threatens to fine Assembly Speaker over Michael Gableman's failure to comply with court order.
"What you're telling me is Mr. (Robin) Vos hired a contractor who should be under his control, and he's just run amok and is flatly refusing to follow any of the court's guidance or orders," (Dane County Circuit Judge Valerie) Bailey-Rihn said. "That leaves me to think that they're hiding something."
Bailey-Rihn told (attorney Ronald) Stadler that she wanted a sworn affidavit from (Michael) Gableman answering several questions about the records request from American Oversight, including who worked for Gableman from June 1, 2021 until Aug. 30, 2021, where they stored digital records, what attempts they took to produce those records, and which records had been destroyed.
"I'm really skeptical when I can't get an answer from the person who has the answers," Bailey-Rihn said.
Slate: Mark Joseph Stern (who spoke at our event last night!) on some states' quick expansion of abortion protections.
The Supreme Court is poised to overturn Roe v. Wade this summer, transforming a constitutional right into a policy dispute subject to the whims of each state’s political process. Republican-controlled legislatures—as many as 22 of them—have already teed up abortion bans that will spring into effect once Roe falls. But what about blue and purple states, where a majority of the country resides? These states are about to become the chief battleground for reproductive freedom. And while the post-Roe future is not even here quite yet, progressives are doing a remarkably good job preparing for the next phase of the fight.
Indeed, one irony of Roe’s demise is that it has prompted many of these states to make abortions easier and cheaper to obtain. The Supreme Court’s hard-right turn has had the unintended consequence of making abortions much more accessible in many parts of the country.
U.S. Department of Justice: Attorney General appoints director of Office for Access to Justice.
CNN: ATF Report shows that U.S. yearly gun production has nearly tripled since 2000.
The report is part of an ongoing efforts from the Biden administration to address the gun violence epidemic in America.
"We need to know who is using guns in crimes so we can focus our enforcement efforts on those individuals, And this data does just that. It helps us tailor our approach at the most significant drivers of gun violence and take those shooters off the streets," Deputy Attorney General Lisa Monaco said Tuesday, speaking to federal and local law enforcement officials from around the country to mark the beginning of a two-day national summit focused on reducing violence.
San Francisco Chronicle: Federal appeals court rules that 2018 legislation allows hemp form of cannabis.
The court said Delta-8 THC has “psychoactive and intoxicating effects” like those of marijuana, but is not a marijuana product, was not explicitly banned by laws against marijuana and other drugs, and became legal when Congress allowed the growing and marketing of hemp, an action spearheaded by then-Senate Majority Leader Leader Mitch McConnell, R-Ky.
“Regardless of the wisdom of legalizing Delta-8 THC products, this court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher said in the 3-0 ruling. If the legalization was inadvertent, he said, Congress can change it.
Above the Law: Fifth Circuit essentially destroys SEC.
The Fifth Circuit gutted the Securities and Exchange Commission yesterday, deciding that the Seventh Amendment demands that the SEC can’t use Administrative Law Judges and must send every minor securities infraction to an Article III court to get dragged through a jury trial.
Because Thomas Jefferson never thought about credit-default swaps.
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