Milwaukee Journal Sentinel: Milwaukee County Circuit Judge Michelle Havas changes sentence of deputy who killed Ceasar Stinson.
Techdirt: Florida's new law against blocking roads during protests ignored when it is politically convenient.
The Brookings Institution: The shaky pillars of American democracy.
The Washington Post: U.S. drops charges against five Chinese nationals researchers accused of hiding ties to Chinese military.
Above the Law: Judge rejects weed-sniffing claim of cop who said he could smell pot sealed in bags in a car from his own traveling cruiser.
Reuters: Mississippi asks U.S. Supreme Court to overturn Roe v. Wade.
CNN: President Biden signs crime victim fund replenishment bill.
The Washington Post: Suit argues that masking requirement hides faces made in God's image.
Attorneys for Resurrection School in Lansing and two parents will tell the U.S. Court of Appeals for the Sixth Circuit that Catholic doctrine holds that every person is made in God’s image.
“Unfortunately, a mask shields our humanity,” the school argued in its lawsuit. “And because God created us in His image, we are masking that image.”
ABA Journal: New Mexico Supreme Court rules gas stations can be held liable for selling gas to drunk people.
Reuters: U.S. Senate committee approves appeals court nominee after Republicans complain about his objections to laws adopted in the early 1900s.
Democrats and Republicans on the Judiciary committee were divided over (Gustavo) Gelpi's criticism of a series of rulings in the early 1900s by the Supreme Court that many legal experts contend created a "subclass" of U.S. citizens living in unincorporated territories without full constitutional protections....
"Both liberal and conservative legal scholars have criticized the insular cases," Senate Judiciary Chairman Dick Durbin (D-IL) said on Thursday. "This is a line of Supreme Court decisions, from over 100 years ago, which held that U.S. citizens living in unincorporated territories like Puerto Rico may lack some of the same constitutional rights as U.S. citizens living in the states."
Reuters: U.S. Department of Justice issues new guidelines for communicating with the White House.
(U.S. Attorney General Merrick) Garland said in a statement that the new policies further "longstanding Departmental norms of independence from inappropriate influences" and "the principled exercise of discretion.”
SCOTUSblog: Term limits for U.S. Supreme Court justices a popular option at latest court-reform meeting.
Mother Jones: The federal prison population is growing under President Biden, who said he would cut it in half.
The Trace: Helping victims and survivors is harder when they are your friends.
WPR: Legislator proposes lifetime restraining orders to protect sexual assault survivors.
By Gretchen Schuldt
An appeals court judge on Tuesday ordered a new hearing on whether a juvenile accused of shooting eight people at Mayfair mall in November should be waived into adult court.
The ruling by District I Court of Appeals Judge Timothy G. Dugan reversed Milwaukee County Circuit Judge Brittany Grayson's finding that the case should remain in juvenile court.
The court record Grayson established "does not reflect that the court set forth a reasonable basis for its conclusions," Dugan wrote.
The juvenile, identified as Xander in Dugan's decision, was charged in a November delinquency petition with eight counts of first-degree reckless injury with use of a dangerous weapon and one count of possession of a dangerous weapon by a person under 18.
The state Division of Division of Youth and Family Services recommended the boy, then 15, remain in juvenile court and Xander's psychologist also testified on his behalf.
Grayson found that the state did not show that services available through the juvenile system would not adequately protect Xander and the public, according to the Milwaukee Journal Sentinel.
The Mayfair shooting occurred while Xander was serving a sentence from an earlier incident, where he ran from a car pulled over by police. Officers later found cannabis in a backpack the boy threw away while fleeing. Xander had several violations of his community supervision, Dugan said.
Xander allegedly shot the Mayfair victims after he and a friend, Eric Garcia, got in an argument there with some people they knew. Xander allegedly shot three people from the group, four bystanders, and Garcia.
He was arrested a few days later with the gun in his possession, Dugan wrote.
During a later investigation, "police discovered text messages between Xander, his parents, and his sister, in which they devised a plan to help Xander flee to Florida via airplane and stay with his adult sister," he wrote.
Grayson, during the waiver hearing, "admitted and then relied on hearsay statements from Xander contained in the psychologist’s testimony and, in effect, allowed Xander to present an alternative version of events that contradicted the facts set forth in the delinquency petition," he said.
The psychologist testified that Xander “came across as anxious” based on the information that Xander gave to the psychologist. The psychologist also said that Xander was suffering from post-traumatic stress disorder on the day of the shooting, a diagnosis based on Xander's statement that the people in the group had shot at him and a friend a month earlier.
"The psychologist testified that Xander told him that he 'felt threatened' that day at the mall and that Xander said that 'when he shot – his eyes – he closed his eyes and shot,'" Dugan wrote. "He then testified that 'what it tells me is that he – he was simply reacting…. [H]e wasn’t trying to – trying to hit someone…. [H]e was just reacting.'”
That testimony directly contradicted eyewitness accounts submitted by the state. Those witnesses said Xander appeared to target the group and fired at one person in particular as she tried to flee.
Xander did not challenge the description of the alleged crimes as outlined in the delinquency petition, Dugan said.
"Allowing a contradictory version of events through the testimony of the psychologist would be absurd," he said.
Grayson also erred, Dugan said, when she "described the unique and dangerous nature of this shooting of eight people, including innocent bystanders, in a crowded mall but then merely stated that the juvenile court handles serious cases like this 'all the time' and stated that the public interest is best served by allowing this case to proceed in juvenile court without further explanation."
"As the juvenile court recognized, it is a miracle that no one died and that there were not more people injured when Xander opened fire (or, as the State described, 'empt[ied] the entire clip') in a crowded public place..." he wrote.
Grayson did not adequately explain why keeping the case in juvenile court was not contrary to the public's best interest, Dugan said. She also failed to state on the record how the juvenile code would protect the public, given the seriousness of the crime and Xander's record of failing to comply with the rules of his previous supervision.
E&E News: Rulings on standing could keep big environmental issues from the courts.
The Hill: U.S. Department of Justice objects to Purdue Pharma bankruptcy settlement that lets the Sackler family walk away from its role in the opiate epidemic.
Marijuana Moment: Congress could vote next week on measure that would end public housing denials for marijuana use.
Politifact: Wisconsin Supreme Court Justice Jill Karofsky doesn't know her (cow) sh-t.
AP: Family of former Police Officer Joseph Mensah's first victim files suit.
Talking Points Memo: "Democracy is in trouble," judge says at Capitol attacker's sentencing hearing.
The New York Times: Biden administration agrees people released from prison during pandemic must return.
Vice: ShotSpotter sends armed police into neighborhoods; critics question its accuracy.
“The system is telling police that every time they go out in response to a ShotSpotter alert they should assume that anybody in the vicinity is armed and they’ve just fired a weapon,” Jonathan Manes, an attorney with the MacArthur Justice Center at the Northwestern Pritzker School of Law who has studied ShotSpotter in the city, told Motherboard. “The system is telling police officers that anybody in the area is a mortal threat. Following up on those alerts is creating a dangerous situation, and it’s happening 61 times a day in the city of Chicago.”
Milwaukee Journal Sentinel: Bills would lower concealed carry age to 18.
Reuters: U.S. Attorney General Merrick Garland issues broad ban on seizing journalists' records.
Pew Charitable Trusts: Many people in jail can vote, but for many it isn't easy.
The Badger State does not permit a jail ID as an acceptable form of identification to vote. People in jail who want to register to vote or request an absentee ballot must ask corrections personnel to make a copy of their confiscated driver’s license or other state-issued ID.
“This hasn’t been at the forefront of the discussion around voter accessibility,” said Shauntay Nelson, the Wisconsin state director for All Voting is Local. “This is the responsibility of the county jails, as well as election officials, administrators and the legislature. We have to work collaboratively.”
Forbes: Clarence Thomas slams qualified immunity for college officials(!) in First Amendment case.
That case centered around Ashlyn Hoggard, a student at Arkansas State University, who was blocked from tabling outside the student union and promoting a new student organization in 2017 by university administrators. Instead, she could only engage with her fellow students in a specially designated (and oxymoronic) “Free Expression Area,” which required prior permission from the university.
Hoggard sued. The Eighth Circuit U.S. Court of Appeals ruled that the university’s unwritten tabling policy, which appeared to have “simply emerged from the bureaucratic aether” was “unreasonable and unconstitutional” when applied to Hoggard. But because the university officials “may reasonably have not understood this at the time,” Hoggard’s First Amendment rights were not "clearly established." That led the Eighth Circuit to upheld qualified immunity for the defendants, a decision the Supreme Court declined to overturn.
BIG (newsletter): How big law attorneys help their clients break anti-trust laws.
UPI: U.S. Department of Justice to appeal judge's ruling that DACA is illegal.
Marijuana Moment: U.S. surgeon general calls for end to jailing of marijuana users.
By Gretchen Schuldt
When Kathleen Rose Harney married Joseph Michael Kruzel in 1971, she kept using her own name. And there the trouble began.
Her employer, Milwaukee Public Schools – Harney was a first-year art teacher – told her that she either had to use her husband's name or go to court and legally change her name to "Harney" if she wanted to add Joseph Kruzel to her health insurance policy.
The marriage, after all, meant that her name was no longer hers, according to her employer. MPS was not alone in that belief. Harney's wedding announcement in The Milwaukee Journal referred to her as "Mrs. Joseph Michael Kruzel" and the "former Miss Kathleen Rose Harney."
Even Harney herself believed she gave up her name.
"I didn't really want to," she said in an interview. "I thought you had to."
Harney went to court. She appeared before Milwaukee County Circuit Judge Ralph J. Podell in December 1972 and asked the judge for permission to use the name that was hers since birth and that she had used on her marriage certificate. Technically, she asked to "change" her name from one she had never even used.
"That's when things snowballed," said Harney, who now lives in Wauwatosa.
She was called to the stand during the hearing she thought would be routine.
"All they asked is, 'What's your name and are you pregnant?'" she said. Then the judge told her to sit down, she said, and the men in the room discussed what her name should be.
The judge denied her request for the good of any future children she might have. Having parents with different names would be bad for the young ones, he said.
If two people getting married can't agree on a single name, he said, "it would be better for them, any children they may have, and society in general that they do not enter into the marriage relationship."
Podell also said that he "feels very strongly that family unity also requires that all members thereof bear the same legal name" and "this court feels she should carry her husband's name."
Harney said her lawyer told the judge he rather agreed with him.
The February 1973 ruling made the newspapers. "Maiden Name Plea Rejected By Court," the Journal reported.
"My in-laws saw it in the paper," Harney said. "It didn't go over well."
It took a while for her in-laws to speak to her again, she said.
Attorney Priscilla Ruth MacDougall, who specialized in women's issues, found out about the ruling and contacted Harney. The naming precedent was bad and should not stand, MacDougall said. Would Harney consider an appeal?
"We just got married and we're buying furniture," Harney, then 22, told her. "We can't afford an attorney."
MacDougall said she and others would find the money. Harney appealed; the state Supreme Court accepted the case.
Harney's appellate lawyer was a rookie attorney named Joan Kessler, who took the case pro bono.
"I was just young and out of school and what did I know?" said Kessler, who would later serve as U.S. attorney for the Eastern District of Wisconsin and a state appeals court judge.
"Everyone was astounded" at Podell's decision," she said. It already was clear that a person's name was a matter of choice, she said. There simply was no law on the books requiring a woman to take her husband's name.
Kessler drafted a brief for the state Supreme Court. Since she was headed to New York for an American Bar Association meeting, she thought she would seek help from a more experienced lawyer – ACLU attorney Ruth Bader Ginsburg, who filed an amicus brief in Harney's support.*
Ginsburg invited Kessler to her apartment.
"I got to meet Ruth," Kessler said. Ginsburg read the younger lawyer's brief "while I was sitting there," Kessler said.
Kessler liked a William Shakespeare quote that Ginsburg used in her ACLU brief. With Ginsburg's permission, Kessler used it in her own as well:
"[H]e that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed."
"Why, as a condition of marriage," Kessler asked in her brief, "should this state compel one party to the marriage to exact from the other party so dear a price as one's own name? No rational answer suggests itself."
Podell's lawyer, Bruce O'Neil, argued that Podell did not abuse his discretion in refusing to allow Harney to use her own name. He told the court that Podell's decision was "neither sexist nor chauvinist," the Journal reported.
"It is submitted that whatever doubt may have existed in the trial court's mind vanished, when the appellant and her husband informed the court that, if they had children, they would give them surnames composed of a hyphenation of their two surnames," he said in his brief. "The trial court may well have asked what surnames they anticipated their grandchildren would bear, if one of their hyphenated children married the hyphenated child of two other parents bearing different legal surnames. And if they lived to see their great-grandchildren, they might well encounter a child listing under the burden of a hyphenated surname made up of eight different surnames."
The court rejected O'Neil's arguments.
Podell's points "could well be valid under proper circumstances, but only if proof were adduced to support the conclusions," Justice Nathan Heffernan wrote for the majority. "The reasons given for the denial of the change of name are completely conclusory and without any evidence of their applicability to the situation before the court....Unsupported generalizations do not constitute a cause shown to deny a change of name."
The court also made a broader, more significant finding: "We conclude...that the common law in Wisconsin has never ossified to the point of a holding that a wife is required to take her husband's name. The implicit assumption is to the contrary."
*The National Organization for Women joined with the ACLU to submit the brief. Also submitting an amicus brief on Harney's behalf were the University of Wisconsin Women Law Students' Association and the Olympia Brown League.
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Politico: Health costs of gun violence exceed $1 billion a year, GAO says.
Above the Law: We should be so proud! Wisconsin's suspended, gun-toting judge makes ATL!
Marijuana Moment: Biden remains opposed to marijuana legalization.
Reuters: Seventh Circuit backs government in pole camera surveillance case, but with hesitation.
While holding the surveillance did not amount to a search here, "we are not without unease about the implications of that surveillance for future cases," the court said, a concern that presents an "obvious line-drawing problem."
"Beyond the line-drawing issues, we conclude by sounding a note of caution regarding the current trajectory of Fourth Amendment jurisprudence," the court said. "As technological capabilities advance, our confidence that the Fourth Amendment (as currently understood by the courts) will adequately protect individual privacy from government intrusion diminishes."
The Washington Post: Ex-cop gets four years for beating black undercover colleague during protests.
Watch the video with staff attorney Rob Lee and attorney / Equal Justice Works Fellow Rob Lundberg of the Midwest Environmental Advocates. The event was June 23, 2021 and covered a range of environmental and legal topics, with a focus on the challenges and risks posed by existing and proposed pipelines.
Help WJI advocate for justice in Wisconsin