The Pew Charitable Trusts: More states allow people to carry concealed guns without permits.

Wisconsin’s permitless carry bill, which received a public hearing in the state Senate in October, also would prohibit local governments from banning weapons on public transportation. It’s unclear when the legislation will get a vote, but gun rights advocates are confident it will pass.

Eliminating the permit requirement would be a welcome change for gun owners uneasy about being on a government list, said Nik Clark, president of Wisconsin Carry, a Milwaukee-based gun rights organization. It also would allow people who want a gun for self-protection to acquire one without having to wait through the permitting process, which Clark said is important in cases of domestic abuse or in situations such as the civil unrest of 2020.

“We have a human right to self-defense,” Clark said. “To say that you need permission from the government to do that is crazy. It’s anti-American.”

Milwaukee Journal Sentinel: Conservative group sues in Wisconsin to strike down campaign finance laws.

Above the Law: Colorado appeals court says that dog alerts for legal weed are not probable cause for a search.

The Hill: U.S. Supreme Court Justice Neil Gorsuch's terrifying paragraph.

Now here is the paragraph. In October, the court declined to block Maine’s requirement that health care workers be vaccinated against the coronavirus notwithstanding their religious objections. Gorsuch, dissenting (joined by Thomas and Alito), wrote the following:

"I accept that what we said 11 months ago remains true today — that '[s]temming the spread of COVID–19' qualifies as 'a compelling inter­est.' At the same time, I would acknowledge that this interest cannot qualify as such forever. Back when we decided Roman Catholic Diocese, there were no widely distributed vac­cines. Today there are three. At that time, the country had comparably few treatments for those suffering with the disease. Today we have additional treatments and more appear near. If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency."

CNN: U.S. Justice Department closes investigation into Emmett Till murder.

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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.

Billie Johnson v. Wisconsin Elections Commission

Majority/Lead Opinion: Rebbecca Grassl Bradley (47 pages), joined by Justices Annette K. Ziegler, and Patience D. Roggensack, and partially joined by Justice Brian Hagedorn 

Concurrence: Hagedorn (6 pages)

Dissent: Rebecca F. Dallet (19 pages),  joined by Justices Ann Walsh Bradley and Jill J. Karofsky

The upshot

The Legislature drew redistricting maps this year, but they were unconstitutional because of shifts in the state's population.  Gov. Tony Evers vetoed them.

Hagedorn did not join in the paragraph below.


​We hold: (1) redistricting disputes may be judicially resolved only to the extent necessary to remedy the violation of a justiciable and cognizable right protected under the United States Constitution, the VRA (Voting Rights Act), or Article IV, Sections 3, 4, or 5 of the Wisconsin Constitution; (2) the partisan makeup of districts does not implicate any justiciable or cognizable right; and (3) this court will confine any judicial remedy to making the minimum changes necessary in order to conform the existing congressional and state legislative redistricting plans to constitutional and statutory requirements. 

Background

We have been asked to provide a remedy for that (district population) inequality. Some parties to this action further complain that the 2011 maps reflect a partisan gerrymander favoring Republican Party candidates at the expense of Democrat Party candidates, and ask us to redraw the maps to allocate districts equally between these dominant parties, although no one asks us to assign districts to any minor parties in proportion to their share of Wisconsin's electoral vote. 

The United States Supreme Court recently declared there are no legal standards by which judges may decide whether maps are politically "fair." We agree. The Wisconsin Constitution requires the legislature——a political body——to establish the legislative districts in this state. Just as the laws enacted by the legislature reflect policy choices, so will the maps drawn by that political body....

​Claims of political unfairness in the maps present political questions, not legal ones. Such claims have no basis in the constitution or any other law and therefore must be resolved through the political process and not by the judiciary.  

The guts

The simplicity of the one person, one vote principle, its textual basis in our constitution, and its long history stand in sharp contrast with claims that courts should judge maps for partisan fairness, a concept untethered to legal rights. The parties have failed to identify any judicially manageable standards by which we could determine the fairness of the partisan makeup of districts, nor have they identified a right under the Wisconsin Constitution to a particular partisan configuration. Because partisan fairness presents a purely political question, we will not consider it....

(U.S. Supreme Court) Chief Justice (John) Roberts noted at the outset the Court has never struck down a map as an unconstitutional partisan gerrymander and acknowledged that several decades of searching for a judicially manageable standard by which to judge maps' partisan fairness had been in vain. 

                                                                                     ***

The simplicity of the one person, one vote principle, its textual basis in our constitution, and its long history stand in sharp contrast with claims that courts should judge maps for partisan fairness, a concept untethered to legal rights. The parties have failed to identify any judicially manageable standards by which we could determine the fairness of the partisan makeup of districts, nor have they identified a right under the Wisconsin Constitution to a particular partisan configuration. Because partisan fairness presents a purely political question, we will not consider it....

The people have never consented to the Wisconsin judiciary deciding what constitutes a "fair" partisan divide; seizing such power would encroach on the constitutional prerogatives of the political branches....

if Democrats and Republicans are entitled to proportional representation, so are numerous minor parties. If Libertarian Party candidates receive approximately five percent of the statewide vote, they will likely lose every election; no one deems this result unconstitutional. The populace that voted for Libertarians is scattered throughout the state, thereby depriving them of any real voting power as a bloc, regardless of how lines are drawn. 

                                                                                     ***
Nothing about the shape of a district infringes anyone's ability to speak, publish, assemble, or petition. Even after the most severe partisan gerrymanders, citizens remain free to "run for office, express their political views, endorse and campaign for their favorite candidates, vote, and otherwise influence the political process through their expression...."

Parties urging us to consider partisan fairness appear to desire districts drawn in a manner ensuring their political speech will find a receptive audience; however, nothing in either constitution gives rise to such a claim. "The first amendment's protection of the freedom of association and of the rights to run for office, have one's name on the ballot, and present one's views to the electorate do not also include entitlement to success in those endeavors. The carefully guarded right to expression does not carry with it any right to be listened to, believed or supported in one's views." 

                                                                                     ***

The constitutional confines of our judicial authority must guide our exercise of power in affording the Petitioners a remedy for their claims. The existing maps were adopted by the legislature, signed by the governor, and survived judicial review by the federal courts. Treading further than necessary to remedy their current legal deficiencies, as many parties urge us to do, would intrude upon the constitutional prerogatives of the political branches and unsettle the constitutional allocation of power....


(Hagedorn did not join the paragraph below.)

Because our power to issue a mandatory injunction does not encompass rewriting duly enacted law, our judicial remedy "should reflect the least change" necessary for the maps to comport with relevant legal requirements....Using the existing maps "as a template" and implementing only those remedies necessary to resolve constitutional or statutory deficiencies confines our role to its proper adjudicative function, ensuring we fulfill our role as apolitical and neutral arbiters of the law....

A least-change approach safeguards the long-term institutional legitimacy of this court by removing us from the political fray and ensuring we act as judges rather than political actors. 

The dissent

Now that we have stepped out of our traditional judicial role and into the "the political thicket" of redistricting, it is vital that this court remain neutral and nonpartisan. The majority all but guarantees that we cannot. First, the majority adopts 2011's "sharply partisan" maps as the template for its "least-change" approach. And second, it effectively insulates future maps from being challenged as extreme partisan gerrymanders. The upshot of those two decisions, neither of which is politically neutral, is to elevate outdated partisan choices over neutral redistricting criteria. That outcome has potentially devastating consequences for representative government in Wisconsin....

Although no court in Wisconsin, state or federal, has ever adopted a least-change approach, the majority/lead opinion would have you believe that other jurisdictions commonly use such an approach when starting from legislatively drawn maps. But the cases it cites provide virtually no support for this approach. One simply involves a state's supreme court approving the trial court's selection of a congressional map. All but one of the remaining cases began with court-drawn maps or involved local maps drawn for county boards and commissions. The bottom line is that the least-change approach has no "general acceptance among reasonable jurists" when the court's starting point is a legislatively drawn map....

Reuters: Manslaughter charges against parents of alleged Michigan shooter break new legal ground.

AP via Denver Post: As the U.S. Supreme Court ponders abortion, both sides plan state-by-state battles.

Wisconsin State Journal: Group asks judge to fine Robin Vos for not releasing records related to Gableman election investigation.

“At the same time that his hand-selected Special Counsel is trying to have local officials detained for failing to comply with his contradictory and ridiculous subpoenas, Speaker Vos is flagrantly defying an actual court order to release records to the public,” American Oversight executive director Austin Evers said in a statement. “This shell game demands accountability and needs to end.”

Law360: Right to a fair trial could hinge on this U.S. Supreme Court ruling.

Now, their fate — and whether those findings will offer them a reprieve — lies with the U.S. Supreme Court. The justices will weigh this week whether the high court's 2012 decision in Martinez v. Ryan allows the prisoners to use new evidence to support their ineffective counsel claims in federal court, despite a federal law barring such a move.

The New York Times: Prosecutors enjoy too much protection.

Prosecutors are among the most powerful players in the criminal justice system. They can send a defendant off to years in prison, or even to death row. Most wield this power honorably. Yet, when prosecutors don’t, they rarely pay a price, even for repeated and egregious misconduct that puts innocent people behind bars.

Why? Because they are protected by layers of silence and secrecy that are written into local, state and federal policy, shielding them from any real accountability for wrongdoing.

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Wisconsin Watch via WPR: Child abuse findings by a Wisconsin doctor are questioned, rejected.

The baby left the hospital with a cast on his leg for a break that it turns out he never had.

Portage Daily Register: The role of bail in Wisconsin is not fundamentally flawed.

It is the judge or the court commissioner who has the responsibility of setting cash bail. The district attorney and the defense attorney merely make their recommendations. When I was a judge, I always handled my own bail hearings rather than assigning them to a court commissioner. I believed that next to sentencing, the setting of bail was the most important decision made in a criminal case.

The Guardian: Surprise! The U.S. Supreme Court is coming for women's rights after all!

The Washington Post: Some states weigh laws to punish parents if kids fire unsecured guns.

That is why some state legislatures have stepped in to make safe storage a legal requirement, and gun safety groups say the need for them has never been greater — particularly as it relates to school shootings that have spiked after schools reopened this year.

There have been more school shootings in 2021 — 34 — than in any year since at least 1999, according to a Post database.

“When adults don’t prevent their children from accessing guns, this is the sort of devastation that can happen,” said Shannon Watts, founder of Moms Demand Action, part Everytown for Gun Safety.

Jurist: Georgia poll workers sue far-right website over fraud claims.

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Wausau Pilot & Review: COVID cases soar in Marathon County jail.

WDJT: Democrats introduce legislation to fix Rittenhouse gun 'loophole.'

Milwaukee Journal Sentinel: Milwaukee County District Attorney John Chisholm and Chief Judge Mary Triggiano explain how such a low bail got set for Waukesha Christmas parade suspect.

Chisholm added: "I want to make it clear that there are explanations for what happened. There are no excuses."

Reuters: Seventh Circuit Judge David Hamilton is taking senior status, giving President Biden another appointment to the federal appellate court that hears cases from Wisconsin.

Courthouse News Service: Gun makers immune in Las Vegas massacre, Nevada Supreme Court rules.

"Under today’s ruling, a gun manufacturer or distributor has complete immunity even if it knowingly and intentionally violates federal and state law by engaging in the illegal sale of a machine gun with knowledge that it will be used to inflict harm upon innocent people," said Matt Sharp, a Reno lawyer for the Parsons, in a statement to Courthouse News. "This ruling is at fundamental odds with the intent of the Nevada Legislature and the safety of the public at large."

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By Margo Kirchner

First of two parts

The capture and escape of Joshua Glover in southeastern Wisconsin in 1854 sparked an abolitionist outcry and an attempt by the Wisconsin Supreme Court and Legislature to nullify federal slavery law.

Two years earlier, Glover had escaped from slavery in St. Louis and established a life in freedom in Racine, but federal deputy marshals captured him in his home under the Fugitive Slave Act of 1850. Outraged citizens of Milwaukee and Racine broke Glover out of jail and sent him on the Underground Railroad. Glover eventually reached safety in Canada.

Although Glover departed Wisconsin by mid-April 1854, his legal impact here had just begun. His escape from custody led to a struggle between state and federal authorities and the state’s defiance of the U.S. Supreme Court. 

Benammi Stone Garland purchased Glover, then known only by his first name, on January 1, 1850, on the steps of the St. Louis Courthouse. In May 1852, Glover escaped from Garland’s farm and crossed the Mississippi River to Alton, Illinois. Garland placed a reward notice in a Missouri newspaper on May 19, 1852, and ran the notice for about two weeks.

Glover traveled about 350 miles to Racine, arriving in late spring or early summer. Racine was a bustling community of 5,000 people due to its trading post, harbor, and plank road to Janesville. About 60 Black or mixed-race adults were recorded in the city’s 1850 census.

Glover found a job at a sawmill on the Root River a few miles out of town. He chose his last name and had his own home, where he lived freely for two years. 

Wisconsin’s antislavery movement was active by the early 1850s. The Burlington Liberty Association, the first antislavery society in the state, had been around since 1844. Sherman Booth published an abolitionist newspaper in Milwaukee called the Free Democrat. Chauncey Olin published the abolitionist American Freeman newspaper in Waukesha. The Underground Railroad (UGRR) stopped in Waukesha and elsewhere. And, as described by authors Ruby West Jackson and Walter T. McDonald, Racine was a “hotbed of abolitionist sympathizers.”*

Clayborn Benson, executive director of the Wisconsin Black Historical Society, said in a recent interview that abolitionists were motivated by several reasons. Some opposed slavery on religious grounds, while others opposed slavery for political purposes as part of the developing Republican Party. Some were European immigrants with ancestors who had been enslaved, while “free-soilists” did not want to compete against the South’s unpaid labor when it came to agriculture. 

Although Wisconsin’s antislavery movement was vigorous, Blacks nevertheless were not close to being treated equally with Whites. They had the right to assemble and act as jurors, said Benson. But Blacks were still denied the right to vote, and Whites did not want Blacks living nearby. In 1850 Milwaukee, about 100 Blacks lived in a city of 20,000.

Political battles raged in the nation over slavery in territories and newly formed states. Sentiment ran strongly in Wisconsin against slavery and its reach northward, and there was strong opposition  to returning  escaped slaves who had become Wisconsin residents. Many people in Wisconsin wanted “no part of enslavement,” said Benson.​

Slavery’s reach from the South, however, found support in the U.S. Constitution and federal law.
Article IV, section 2 of the U.S. Constitution provided that a slave in one state would not be discharged from service by escaping to another state and would be delivered back to his or her owner on demand. The Fugitive Slave Act of 1793 established a process for slave owners to reclaim runaway slaves, but in southern eyes it did not have teeth.

As part of the Compromise of 1850 between northern and southern states, a new fugitive slave act beefed-up the rights of slave owners to recover escaped slaves. A slave owner could obtain a court order in his home state confirming the status of a slave, then proceed to find and arrest the escapee with the assistance of federal marshals. A U.S. commissioner, rather than a regular district judge, could determine the fate of the person. Notably, the commissioner received a larger fee for sending a fugitive to slavery than for releasing him or her. The alleged fugitive slave was denied a jury trial or any other opportunity for testimony or defense. Moreover, the act created criminal penalties for citizens who helped escaped slaves or interfered with their return.

This is the first of two posts about Joshua Glover. Read the second one here.


The Fugitive Slave Act of 1850 “brings fire” to northern abolitionists and made them determined to help fugitives reach Canada, said Benson. Wisconsin politics included disagreements regarding whether the state had to defer to the federal government’s efforts to enforce the 1850 act. From 1850 to 1860 “there is turmoil,” Benson said. 

Garland remained intent on reclaiming Glover under the 1850 act. He somehow learned that Glover was in Wisconsin and provided a St. Louis court with proof of his ownership and Glover’s escape. The court ordered Glover’s removal from Wisconsin. 

Garland arrived in Milwaukee in early March 1854 with a St. Louis police officer and the Missouri court order. He swore out an affidavit and presented his paperwork to U.S. District Judge Andrew G. Miller, who issued a warrant for Glover’s arrest. 

Deputy U.S. Marshal Charles Cotton accompanied Garland and the St. Louis police officer to Racine, where they were joined by another federal deputy marshal.

Garland and the officers surprised Glover at his home on Friday, March 10, 1854. After a physical struggle the officers subdued Glover and led him away in shackles. Several reports indicate that Glover was bruised and bloodied during the capture.

Possibly because of the small size of the Racine jail or the abolitionist forces in Racine, the captors transported Glover to Milwaukee County’s larger and stronger jail located in Courthouse Square (now Cathedral Square). ​

Milwaukee Journal Sentinel: Milwaukee County prosecutors erred in the Darrell Brooks case. But the bail assessment tool worked.

In short, the risk tool worked, but it wasn’t followed. Brooks should have had high cash bail, but that doesn’t mean that another person charged with (and presumed innocent of) a serious offense can’t be safely released if other risk factors are not present.

The New York Times: The U.S. Supreme Court seems ready to embrace new abortion restrictions.

Slate: SCOTUS will gaslight us until the end.

Perhaps it would be refreshing if the conservatives on the U.S. Supreme Court no longer felt the need to lie to us.

BuzzFeed: SCOTUS justices publicly ponder their legitimacy.

As much as the justices have insisted they don’t make decisions based on public opinion or partisan politics, on Monday they openly discussed their awareness of the legitimacy problem they faced and the perception that they function as an arm of whichever party elevated them to the bench.

The three members of the court’s liberal wing issued an urgent plea to their colleagues that rolling back or outright reversing Roe v. Wade, the court’s landmark decision establishing the right to an abortion, would shred what remained of the public’s faith in their status as a nonpartisan branch of government.

Justice Brett Kavanaugh — one of three justices confirmed under former president Donald Trump — countered that the existence of Roe itself was what forced the court to be a political player, and suggested that removing the court from the debate by getting rid of Roe and leaving it up to states to decide whether to ban or allow abortion could be the best way forward.

The Marshall Project: A man who refused to be an informant for the FBI was apparently really punished for it.

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Milwaukee Journal Sentinel: State Supreme Court hands Republicans a big win in redistricting case.

Reuters: Ban on high-capacity gun magazines upheld by federal appeals court.

The majority opinion by Circuit Judge Susan Graber called the 2017 ban a "reasonable fit for the important government interest of reducing gun violence" that interfered "only minimally" with the right to self-defense.

Marijuana Moment: Credit Unions seek adoption of marijuana banking reform through defense bill.

“We take no position on legalizing or decriminalizing medicinal or recreational cannabis at either the state or federal level,” the associations said in a letter to key committee leadership. “However, credit unions operating in states where it is legal have members and member businesses involved in the cannabis market who need access to traditional depository and lending services, the absence of which creates a significant public safety issue.”

Milwaukee Journal Sentinel: How the bail system works in Wisconsin.

The Hill: U.S. Supreme Court (as expected) seems ready to consider new limits on abortion rights.

“If you think that the issue is one of choice, that women should have the choice to terminate their pregnancy, that supposes that there is a point at which they’ve had the fair choice, the opportunity to choice. And why would 15 weeks be an inappropriate line? Viability, it seems to me, doesn't have anything to do with choice. But if it really is an issue about choice, why is 15 weeks not enough time?” Chief Justice John Roberts asked.

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