Milwaukee Journal Sentinel: Milwaukee Fire and Police Commission sees almost complete turnover in two years.
Reuters: For new term, U.S. Supreme Court will open in-person arguments to public once again.
The Hill: Questioned sentence Justice Samuel Alito wrote eight years ago was just used to deny insurance coverage for HIV drugs.
I’ve focused at length on what Alito wrote in Hobby Lobby because O’Connor’s decision shows that it was a time bomb, one now in the process of exploding. It is available in any case where any obligation could imaginably be fulfilled by the government.
U.S. Department of Justice: DOJ files discrimination lawsuit against Milwaukee landlord and property manager.
Forbes: U.S. Bureau of Prisons interprets First Step Act narrowly, denying possible credits.
The effect will be that those prisoners with short sentences will get no reduction in their sentence, something that clearly goes against the BOP’s own experts on FSA.
Inquest: Will juries acquit in abortion prosecutions notwithstanding the facts?
Yet in prosecutions brought under this harsh new crop of abortion laws, we think nullification may have a larger role to play. Consider first that nullification only requires one juror to hold out. Criminal convictions must be unanimous, as the Supreme Court recently held in Ramos v. Louisiana. Thus, if even a single juror refuses to convict because they believe the law — as applied in the case before them — is unjust, nullification has occurred.
CBS: Federal judge dismisses Donald Trump's lawsuit against Hillary Clinton.
Judge Donald Middlebrooks wrote in his ruling Thursday the court was "not the appropriate forum" for Trump's complaints about his rivals and others. The lawsuit accused Democrats and others of a "conspiracy" to link Trump to Russia during and after the 2016 presidential campaign.
"At its core, the problem with [Trump's] complaint is that [Trump] is not attempting to seek redress for any legal harm," wrote Middlebrooks, who serves the U.S. District Court for the Southern District of Florida.
Lowering the Bar: Judge dismisses case against Nirvana brought by man who was the baby on an album cover.
By Gretchen Schuldt
A judge erred when he used new research into the brain development of young adults to grant Jan. 1, 2023, parole eligibility to a man previously sentenced to life without parole, the state Court of Appeals has ruled.
Existing case law prohibited Outagamie County Circuit Judge John DesJardins, now retired, from using the research as a “new factor” in Jonathan Liebzeit’s case “because the research and its conclusions were well known at the time of Liebzeit’s sentencing in 1997,” Appellate Judge Gregory B. Gill wrote for the three-judge District III Court of Appeals panel. He was joined in the opinion by Appellate Judges Lisa K. Stark and Thomas M. Hruz.
DesJardins sentenced Liebzeit in 1997 to life without parole for his role in the 1996 murder of Alex Schaffer.
Liebzeit, who had just turned 19, and two other men, Daniel Mischler and James Thompson, lured Schaffer into sewer tunnels where Liebzeit hit him repeatedly with a baseball bat, including in the head. The other two men held Schaffer in a pool of water until he stopped moving.
The medical examiner determined that Schaffer died by a combination of drowning and blunt force trauma.
The state Department of Corrections, in a pre-sentence report, noted Liebzeit’s long history of drug abuse, particularly with inhalants; his participation in a drug and alcohol treatment program; and his failed effort to get admitted to Winnebago Mental Health Institute due to suicidal tendencies.
In 2019, 22 years after sentencing Liebzeit, DesJardins attended a judicial education seminar, where he learned about new research on brain development in emerging adults. He later wrote to Liebzeit’s appellate counsel and the state “suggesting that a sentence modification may be appropriate based on new scientific research…that was not available at the time of the 1997 sentencing,” Gill wrote.
Liebzeit’s lawyer, Rex R. Anderegg, filed such a motion, citing both the new research and Liebzeit’s brain damage stemming from inhalant use. Information about the brain damage, included in a separate report concerning Liebzeit’s drug treatment, was not presented to the court at sentencing.
DesJardins held a hearing, Gill wrote.
“The court concluded that Liebzeit had proven by clear and convincing evidence that both the new scientific research on brain development in emerging adults, and Liebzeit’s brain damage resulting from his own inhalant use constituted new factors,” Gill wrote.
DesJardins found that “the impact the brain damage may have had on Liebzeit’s impulse control was relevant to whether Liebzeit was likely to be successfully rehabilitated,” Gill said. DesJardins also found that “new scientific research on brain development in emerging adults had found that individuals between 18 and 21 years old function closer to adolescents aged 13 to 17, than adults aged 22 to 25 years old.”
DesJardins eventually granted the sentence modification making Liebzeit eligible for parole Jan. 1. His case still would have to be considered by the Parole Commission.
The appeals court, however, agreed with the state that nothing showed that Liebzeit’s inhalant use contributed to his impulsivity.
“At best,” Gill wrote, “the (drug treatment) report shows that his brain damage might have affected his concentration. But the crimes for which he was convicted were not impulsive crimes caused by an inability to concentrate.” The crime was not impulsive, but planned, Gill said.
DesJardins found at the time of sentencing that Liebzeit could not be rehabilitated.
Liebzeit’s “new science” argument fails because under state Supreme Court precedent, Gill wrote, “the research cannot constitute a new factor…because the conclusions reached by the research were well known when Liebzeit was originally sentenced in 1997.”
WBAY: Daniel Kelly now in the race for Wisconsin Supreme Court.
Milwaukee Journal Sentinel: Legislature passes plan for $31 million opioid settlement state received.
The Republican plan still included about 85% of the Department of Health Services proposals. Those include:
Milwaukee Journal Sentinel: Federal judge says Enbridge can continue operating Line 5 pipeline through Bad River Band land until the line is rerouted.
Milwaukee Journal Sentinel: Waukesha judge says clerks can't fill in missing info on absentee ballot envelopes.
WXOW (Associated Press): Judge issues gag order for man charged with requesting others' absentee ballots.
Reuters: Senate confirms John Lee for Seventh Circuit Court of Appeals.
The New York Times: Highlighting disparities in voter fraud cases.
The high-decibel political rhetoric behind fraud prosecutions drowns out how infrequent — and sometimes how unfair — those prosecutions are, said Richard L. Hasen, an expert on election law and democracy issues at the U.C.L.A. School of Law.
“It’s hard to see felons in Gainesville getting jail terms, and then look at people in The Villages getting no time at all, and see this as a rational system,” he said.
Slate: Federal judge allows employers to exclude HIV prevention drugs from insurance.
If the higher courts accept (U.S. District Judge Reed) O’Connor’s invitation to destroy these agencies, here’s a partial list of the preventive care that insurers will no longer be required to cover: genetic testing for women with a family history of breast and ovarian cancer; medication to reduce risk of breast cancer; breast cancer screening; breastfeeding support; cervical cancer screenings; STI screening; colorectal cancer screening; HIV tests; domestic violence screening; medication for heart disease; a vast range of screenings for children and pregnant women; and, of course, PrEP.
KIRO 7: Report shows more than half of prisoners are serving sentences of 10+ years.
“That’s a big growth compared to if you look at the year 2000,” said Nazgol Ghandnoosh, a senior research analyst at the Sentencing Project. “When we invest a lot of our public resources into very long sentences, we’re not doing the more important things that we know are more effective at preventing crime in the first place.”
The Marshall Project: Determining how much of ARPA funding went to policing.
Local police agencies have used ARPA funds on law enforcement equipment and capital expenses — from tasers and rifles to cars and shooting ranges. The Marshall Project found five municipalities used funding to purchase armored vehicles. At least 38 governments across the country used ARPA funds for police tasers. Nine spent ARPA funds on police drones.
"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.
Italics indicate direct quotes from the application. Typos, including punctuation errors, come from the original application even though we have not inserted “(sic)” after each one. WJI has left them as is.
Name: Elizabeth Rohl
Appointed to: Pierce County Circuit Court
Appointment date: Dec. 22, 2020
Law School – Michigan State University, East Lansing, Michigan
Undergraduate – University of Wisconsin-Madison
High School – River Falls High, River Falls, Wisconsin
Recent legal employment:
January 2013-present – Assistant corporation counsel, St. Croix County Office of Corporation Counsel
January 2011-December 2012 – Assistant district attorney, St. Croix County District Attorney’s Office
March 2010-December 2010 – Attorney, Hammarback & Jacobson, S.C., River Falls, Wisconsin
Bar and Administrative Memberships:
State Bar of Wisconsin
State Bar of Minnesota (lapsed)
General character of practice:
I am currently Assistant Corporation Counsel for St. Croix County. I represent the County and the public interest in a variety of civil actions. My practice is split between courtroom work and transactional work. Based on the current staffing of our office, I am the primary attorney for matters involving involuntary mental commitments, termination of parental rights, and HIPAA compliance. I share responsibility for child support enforcement, contract review, open records compliance, and providing legal advice to county departments.
Describe typical clients:
Our client is St. Croix County. Depending on the circumstances of the case we may be representing the interests of the County, a particular county department, or the interests of the public. My specializations are detailed above.
Number of cases tried to verdict: Approximately 10-15 jury trials; numerous court trials
List up to three significant trials, appeals, or other legal matters in which you participated as a judge or lawyer in the past seven years:
Without a doubt the most significant cases in my legal career have been the termination of parental rights (TPR) cases. These cases may not be significant to the public--given the confidential nature of the cases, the public will likely never know anything about them. But they are significant to me and, I like to think, significant to the families involved.
Our office took over responsibility for these cases on behalf of St. Croix County in 2016 and the gravity of what is at stake is always at the front of my mind. Some of these cases end quickly, others are contested and take much longer. Regardless of which path the case takes, there is no greater feeling as an attorney than being able to attend the adoption hearing and to see the joy, relief, and excitement in the faces of the children and their "new" families.
The first TPR case I filed involved three children who had been bounced around between their parents, family members, and foster families for almost a decade before we (I represented the Department of Children Services as petitioner) filed for termination. The discovery materials required several bankers boxes and I spent months pouring over the details of the neglect these children suffered. The case was filed in April 2016 and resulted in a three-day jury trial in January 2017. The jury found grounds to terminate the parental rights of the children's mother (the only parent who participated in the proceedings). Following the dispositional hearing in February the court determined that it was in the children's best interests to terminate the parents' rights. All three children were adopted by their foster families.
With many of my other cases we see history repeat itself--we keep coming back to court with the same issues. The ability to make a lasting, meaningful change for children is the most rewarding thing I have been able to do as an attorney and therefore these cases carry great significance for me.
Experience in adversary proceedings before administrative bodies:
When the Department of Children Services substantiates a finding of child abuse or neglect the subject of the substantiation has the option to appeal that decision. Those appeals are heard by the Division of Hearing and Appeals for the State of Wisconsin. I represent Children Services in those appeals. Depending on the nature of the subject's challenge, some of these cases are resolved. Others result in an adversary hearing before the Administrative Law Judge. I have been involved in 10 such appeals.
Describe your non-litigation experience (e.g., arbitration, mediation).
Our office represents the Child Support Agency in child support enforcement. This involves establishing or modifying child support, establishing paternity, and potentially contempt for non-payment. In St. Croix County we will schedule pre-court conferences with the parties to attempt to have the parties stipulate. This involves explaining the process and the statutory arguments the parties could make as well as trying to mediate between the two parents.
Position or involvement in judicial, non-partisan, or partisan political campaign, committee, or organization:
Volunteer for Joe Boles, Pierce County Circuit Court
Volunteer for Amber Hahn, St. Croix District Attorney
Previous runs for public office: None
All judicial or non-partisan candidates endorsed in the last ten years:
Joe Boles, Pierce County Circuit Court, 2010
Professional or civic and charitable organizations:
St. Croix Valley Bar Association, 2010 to present; officer, 2010-2014
Wisconsin Child Support Association, 2013 to present; Legal Track Committee, 2020
Wisconsin Association of County Corporation Counsel, 2013 to present
Significant pro bono legal work or volunteer service:
When I was an officer of our local bar association we became interested in the hosting a Wills for Heroes event. Wills for Heroes was a program that already existed wherein attorneys would volunteer their time to draft basic wills and power of attorney documents for first responders. All clinics that were being advertised where in the southern or eastern parts of the state. Upon reaching out, it appeared that there would be hurdles in getting the program to come to our area. Instead, we worked with the State Bar and local attorneys to get donations for our own equipment to run our own clinics. … I am no longer involvement in the administration of that program, but still volunteer at clinics.
Why I want to be a judge – The court system provides a valuable service to the communities in Wisconsin—resolving disputes, safeguarding the public, and ensuring proper protections for the most vulnerable citizens. However, the court system is only as good as the judges who serve. The people of Wisconsin and of Pierce County deserve a judge who can discharge those important duties fairly, quickly, and appropriately and I believe that I have that ability. I have a background in criminal law, both as defense and prosecution. In addition to transactional work like contracts and open records requests, my work in the Office of Corporation Counsel has given me experience in unique areas of law including involuntary mental commitments, guardianships, and termination of parental rights. My diverse experience in the practice of law means that I will be able to handle all the duties of a judge in all the variety of cases before the court.
Not only do I believe I have the experience to execute the duties, but I am passionate about my community and continuing to serve the public interest. I have a strong connection to Pierce County—I grew up here, graduated from high school here, and now am raising my own family here. My father grew up here as well and then we went on to spend his career as a middle school science teacher, also here in Pierce County. The community is made of my friends, my family, my neighbors. Serving as a judge allows me to give back to a community that has given me so much in a way that not everyone is able.
Describe which case in the past 25 years by the Wisconsin Supreme Court or U.S. Supreme Court you believe had a significant positive or negative impact on the people of Wisconsin.
“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. . . Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
This closing paragraph of Obergefell v. Hodges, 576 U.S. 644 highlights the importance of the Supreme Court’s decision in the lives of many of Wisconsin citizens. Before this decision, there was a string of legislation and case law that gave tokens toward equality but each of them always kept those relationships as something “other.” However, this decision clearly holds that the Constitution dictates that States must allow same-sex couples to marry and to have those marriages recognized in other states and providing, finally, equal dignity.
The Court accurately expressed the ways in which the right to marry is fundamental, one of which is safeguarding children and families. The Court noted that without recognition of marriages between homosexual couples as the same as heterosexual couples, those children would suffer the stigma “knowing their families are somehow lesser” causing harm and humiliation.
A decision such as this will no doubt have an impact on homosexual couples in Wisconsin and their families. Moreover, a decision that precludes arbitrary differences between segments of the population also serves to solidify that all citizens, of Wisconsin and the United States, are equal in the eyes of the law. That serves to benefit everyone, not just those directly affected by the Court’s decision.
Two or three judges whom I admire and why:
It would be impossible for me to answer this question without including Supreme Court Justice Ruth Bader Ginsburg. As a woman in the practice of law, I have occasionally felt lingering sexism—being referred to a “sweetie” or clients asking when the attorney is going to show up despite being told I am the attorney. My experiences pale in comparison to what Justice Ginsburg would have faced upon entering law school and throughout her ascent to the highest court. Her tenacity alone is admirable. After being rejected for a Supreme Court clerkship because she was a woman she persisted, ultimately earning her seat on the Court. Not only is the achievement admirable, but the manner in which she earned it is as well.
Often quoted, Justice Ginsburg once said, “[f]ight for the things you care about, but do it in a way that will lead others to join you.” Justice Ginsburg was a tireless advocate for women’s rights but never asked for special treatment, only equal treatment. Her life and career can serve as an inspiration for generations of women, following her lead. Since her recent passing, there have been many articles written about her many accomplishments. Some I knew, some I’d forgotten, and some I never realized. She was a brilliant legal mind whose decisions will be cited for years to come but her legacy will continue as much more than that.
I also admire and respect St. Croix County Circuit Court Judge Scott Needham. When I started my career, there was much I didn’t know about the practice of law and I welcomed the guidance of Judge Needham. In his 26 years on the bench, Judge Needham has gained considerable expertise in the law and that is apparent in the decisions he makes. Judge Needham’s expertise led to his being named Trial Judge of the Year in 2010, recognizing his skill and accomplishment. What is readily apparent about Judge Needham is his dedication to the integrity of the court system and his service to the people of Wisconsin. Ever willing to step into leadership roles, Judge Needham is currently the presiding judge in St. Croix County and served as the Chief Judge of the Tenth Judicial District. Recently, when considering a campaign for the Wisconsin Court of Appeals, Judge Needham opted to stay in St. Croix County, stating that he thinks he found his calling in the trial court. I certainly believe that to be true.
The proper role of a judge:
I found myself struggling to answer this question and I think the reason is simple—there is no one proper role for a judge. The wide range of cases that come before a court require that the judge adapt to a number of different roles. If presiding over a jury trial, the judge must act as a referee of sorts, applying and enforcing the rules of evidence. In a court trial, the judge must as a trier-of-fact, weighing the evidence and testimony to decide the “truth.” In cases involving vulnerable citizens (guardianships and mental commitments, for example) the judge adopts almost a parental role, trying to craft solutions that are best for the individual even if they don’t like it. And, in the increasing arena of treatment courts, the judge must step down from an authoritative role to act as a collaborative team member and motivator.
No matter the role needed at the time, I believe it is of the utmost importance for the judge to maintain the integrity of the court system. In order to do so, the judge must remain impartial and apply the existing laws to the case before the court. Regardless of personal beliefs about an issue, a judge should not rule based on how the law should be, but rather what the law is. The judicial system serves as a check to ensure fair process for all litigants, not to legislate from the bench.
WPR: WJI and state defendants argue crime-victims' constitutional amendment case before Wisconsin Supreme Court.
During arguments Tuesday, Wisconsin Justice Initiative attorney Dennis Grzezinski told justices the case was about the integrity of the process of amending the constitution.
"In order for the voters to have the information that they need, the ballot question needs to be accurate," Grzezinski said. "It needs to be not misleading or ambiguous and needs to inform the voters."
Courthouse News Service: More on the SCOW oral argument in WJI's case challenging the crime victims' constitutional amendment.
Spectrum News 1: Juul settles case with 33 states; Wisconsin will receive $14.4 million as part of settlement.
The settlement also requires Juul to adhere to terms that will “severely” limit marketing and sales practices. Juul will be limited as to where they can display their product and where it can be accessed in stores. Both online and retail sales will be limited. There will be new retail protocols in place and consumers age must be verified on all sales.
Lake Geneva Regional News: Wisconsin Elections Commission approves guidance for election clerks on voters with disabilities receiving help to deliver absentee ballots.
The Washington Post: Document discussing foreign government's nuclear capabilities was found in Mar-a-Lago search.
Slate: What to do about runaway Trump judges.
Legal analysts lit up social media on Monday in response to the broad and potentially devastating order by Judge Aileen M. Cannon, a Donald Trump appointee to the Southern District of Florida, temporarily halting the criminal investigation of the former president and his alleged pilfering of classified documents. Her order further authorized a special master to identify and return the small fraction of materials seized in last month’s court-approved search of Trump’s Mar-a-Lago residence that may belong to him. One analyst after another meticulously detailed the failings of Cannon’s reasoning: It was “untethered to the law,” “a political conclusion in search of a legal rationale,” “deeply problematic,” “laughably bad.” At some point, one truly runs out of euphemisms for lawless partisan hackery.
The Conversation: How Justice Samuel Alito's selective history in the Dobbs decision ignores legal history from the female perspective.
Alito argued in the opinion that abortion has always been a serious crime, but there were no laws about abortion at all in Colonial America. Beginning in the 19th century, most states barred it only after “quickening,” when a pregnant woman can first feel the fetus move, typically around the fourth to sixth month of pregnancy.
Abortion is indeed deeply rooted in the American experience and law. American women have always tried to personally determine the size of their families. Enslaved Black women used contraception and abortion as specific strategies of resistance against their physical and reproductive bondage. . . .
Instead of examining abortion through the lens of past cases of gender law, however, Alito instead refers to the opinions of 17th-century male legal theorists, who believed in witches and the right of husbands to rape their wives. He also cites as evidence the passage of 19th-century state abortion laws by all-male legislatures, which criminalized abortion and birth control.
Pittsburgh Post-Gazette: Reviewing a profile of former Supreme Court Justice Felix Frankfurter.
Reuters: Update on Bayer's Roundup litigation.
Wisconsin Supreme Court: Listen in to SCOW oral argument in WJI's case challenging the April 2020 constitutional amendment today at 9:45 a.m.
Above the Law: Federal court in the Southern District of Florida bars attorneys from bringing in phones and computers, telling them to pay the lingerie shop next door to hold them.
The Trace: Suggesting the idea of gun insurance paid for by gun owners just as automobile insurance is paid for by drivers and car owners.
A 2017 study by researchers at Johns Hopkins University estimated that the U.S. spends $2.8 billion per year on medical treatments for gun violence survivors. Many survivors find themselves struggling with co-pays and deductibles if they are insured, and with mountainous medical bills if they are not. An insured person who has been shot can easily find that they are responsible for $20,000 of a $100,000 bill. Only 12 percent are able to pay their medical bills in full, per the study. In any case, Americans subsidize the gun industry and gun owners by picking up these unpaid bills through our taxes or increased insurance premiums.
This approach to the medical needs of gun violence survivors is cruel, irrational, and unjust. A saner, fairer model for paying such costs is staring us in the face: automobile insurance.
Balls and Strikes: Originalists' use of corpus linguistics is concerning.
But of course, we wouldn’t be talking about corpus linguistics if there weren’t serious problems with judges cosplaying as linguists. Defenders of legal corpus linguistics argue that using a database prevents a lawyer from cherry-picking historical sources or dictionaries to get the result they want. But some databases are so limited in scope that the cherry-picking is baked in to the process: For example, one analysis of COHA (Corpus of Historical American English) found that “the vast majority” of its identifiable authors are men, and that men outnumber women by “several orders of magnitude.” Another found that a whopping 30 percent of COFEA (Corpus of Founding-Era American English) was written by six people: George Washington, John Adams, Thomas Jefferson, James Madison, Benjamin Franklin, and Alexander Hamilton.
The Philadelphia Inquirer: Woman personally impacted by juvenile-court scandal in Pennsylvania urges vigilance to protect youth from the justice system.
People are so shocked by the dollar amounts involved that they neglect the awkward truth: (Mark) Ciavarella’s court practices were unethical long before he began accepting money. It is much easier for many people to accept that the judges who took advantage of a vulnerable population were unique exceptions instead of questioning the system that allowed for them to thrive. This willful ignorance is an unfortunate reflection of the attitudes our nation has toward the rights of children.
JDSupra: Failure to provide deaf person qualified ASL interpreter during criminal proceedings was disability discrimination, says Fifth Circuit.
Star Tribune: Federal case underway over Minnesota's ban on gun permits for those under 21 years old.
Milwaukee Journal Sentinel: Milwaukee Fire & Police Commission considering policy on timeframe for release of bodycam footage of officer-related deaths.
The Milwaukee Police Department does not have a standard operating procedure for voluntarily releasing such information after a death or a severe injury occurs with police involved.
Its internal practice is to release what the department calls “community briefings” – videos that include limited and redacted footage with narration from police officials – within 45 days of the incident, even with the ensuing investigation still active. The department has not always met that goal.
Mediaite: WJI's May 2022 speaker Mark Joseph Stern is the focus of Josh Hawley's and other conservatives' unwarranted Twitter attacks.
No good deed goes unpunished, the saying goes, and a Slate reporter learned that the hard way when he shared information he got from a Supreme Court email list and faced wild accusations — amplified by a U.S. Senator — that he was connected to whomever leaked the draft opinion in Dobbs v. Jackson Women’s Health Organization.
NBC: Brett Favre involved in investigation of misused Mississippi welfare funds, accepted $1 million for speeches he never gave.
Favre has repaid the fees, although not the $228,000 in interest the auditor also demanded. But the revelation by the auditor that $70 million in TANF welfare funds was doled out to a multimillionaire athlete, a professional wrestler, a horse farm and a volleyball complex are at the heart of a scandal that has rocked the nation’s poorest state, sparking parallel state and federal criminal investigations that have led to charges and guilty pleas involving some of the key players.
Favre hasn’t been accused of a crime or charged, and he declined an interview. His lawyer, Bud Holmes, said he did nothing wrong and never understood he was paid with money intended to help poor children. Holmes acknowledged that the FBI had questioned Favre in the case, a fact that hasn’t previously been reported.
Milwaukee Journal Sentinel: Racine County man charged with election fraud for requesting government officials' absentee ballots.
Election Law Blog: Georgia federal court again says Lindsay Graham must testify to grand jury about possible election interference
"As such, Senator Graham may be questioned about any alleged efforts to encourage Secretary Raffensperger or others to throw out ballots or otherwise alter Georgia’s election practices and procedures. Likewise, the grand jury may inquire into Senator Graham’s alleged communications and coordination with the Trump Campaign and its post-election efforts in Georgia, as well as into Senator Graham’s public statements related to Georgia’s 2020 elections."
The Marshall Project: Expect more prosecution of women for drug use during pregnancy.
More than 50 women have been prosecuted for child neglect or manslaughter in the United States since 1999 because they tested positive for drug use after a miscarriage or stillbirth, according to an investigation by The Marshall Project, The Frontier and AL.com that was co-edited and published in partnership with The Washington Post.
The medical community calls this legal approach harmful and counterproductive. But it’s a strategy many legal experts say is likely to become more common now that Roe v. Wade has been overturned, making it easier for states to pass laws that give fetuses and embryos the same rights as children or their mothers.
The Indiana Lawyer: Two losses for LGBTQ employees regarding claims of discrimination at Catholic schools.
By Gretchen Schuldt
A court cannot refuse the return of property based on unproven allegations in a criminal complaint that never went to trial and that the defendant never had a chance to contest, the state Court of Appeals recently ruled.
“The state had a fair opportunity to introduce evidence that (John Dean) Pleuss used the shotgun in the commission of a crime during the initial proceedings but failed to do so,” Appellate Judge Brian W. Blanchard wrote for the three-member District IV Court of Appeals panel. He was joined in his decision by JoAnne F. Kloppenburg and Michael R. Fitzpatrick.
Before Pleuss, now 78, can get his gun back, however, he must return to Monroe County Circuit Court and demonstrate that his failure to file a motion for the return of property by the statutory deadline was excusable neglect. State law requires filing within 120 days of a defendant’s initial appearance; Pleuss filed his motion 127 days after his initial appearance, according to a brief filed by Assistant State Attorney General Donald V. Latorraca opposing the return.
Pleuss allegedly pointed a shotgun at a deputy on Oct. 1, 2020, and the deputy pushed the barrel away, according to the state's brief. As the two talked, Pleuss denied pointing it at the deputy. Pleuss also refused to show the deputy his driver’s license, instead displaying his concealed carry permit, the brief said.
Pleuss was arrested later that day and charged with intentionally pointing a firearm at or towards a law enforcement officer, disorderly conduct, and operating a vehicle without carrying or displaying a license. Pleuss had an initial appearance, according to a defense brief filed by attorney Steven L. Miller, but there were no other court proceedings before the charges were dismissed.
The state said the charges were dismissed in exchange for an apology from Pleuss and his participation in a gun safety course.
When Pleuss sought the return of the shotgun, the prosecutor told Circuit Judge Mark L. Goodman that the state met its burden of establishing that the shotgun was contraband.
“I think the state has done that by the filing of the criminal complaint that demonstrates probable cause of the crimes therein,” the prosecutor said.
Pleuss objected to the state’s total reliance on the complaint, arguing that the state did not meet its “‘burden…in any way, shape, or form,’” Blanchard wrote.
Goodman ruled that Pleuss missed the deadline for seeking return of the gun and that the state had proven, based on the complaint, that the shotgun was used in a crime.
The state, on appeal, said the allegations in the complaint were “substantive evidence” and were admissible hearsay in court. The panel, though, found that the complaint did not meet the standard of trustworthiness required for admissible hearsay as a public record.
"While it is true that a police report standing alone may be admissible evidence ... the State here unambiguously relied exclusively on the factual allegations in the criminal complaint as purported evidence and did not call a witness to offer the police report as piece of evidence," Blanchard wrote.
"The factual allegations in criminal complaints have no evidentiary value unless the applicant has admitted to them or at least failed to dispute them," he said.
Pleuss never admitted in any form that the charges against him were true, Blanchard said.
“In the circuit court Pleuss consistently objected to the state’s use of the allegations in the complaint as evidence,” he said.
The state, he said, “completely failed to meet its burden of proof.”
In returning the state’s missed-deadline argument to Circuit Court, the panel ruled that a flat declaration that the deadline was mandatory could negatively affect others, such as victims, who might have property seized during an investigation and might not even learn that their property is in law enforcement custody until after the 120 days have passed.
NBC: Federal judge says federal law allows assistance for disabled voters in returning absentee ballots, notwithstanding Wisconsin Supreme Court decision banning such assistance under state law.
“Voters shouldn’t have to choose between exercising their federal rights and complying with state law,” (U.S. District Judge James D.) Peterson wrote in the final ruling in a lawsuit filed by four people in Wisconsin with disabilities.
Milwaukee Journal Sentinel: Group files ethics complaints against attorneys involved in Wisconsin litigation to overturn the 2020 election results.
The 65 Project filed the complaints Wednesday with the Wisconsin Office of Lawyer Regulation against Michael D. Dean of Brookfield and Daniel J. Eastman of Mequon.
The group, named after the number of lawsuits filed by supporters of former President Donald Trump in the wake of his 2020 election loss to President Joe Biden, also filed complaints about lawyers licensed in five other states, several of whom helped file cases in Wisconsin.
Slate: Has Donald Trump run out of arguments regarding his possession of classified documents?
The old law school aphorism holds that “if the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
With Tuesday night’s Justice Department filing in response to the search of Mar-a-Lago for classified stolen documents, it’s safe to assume we are quickly achieving peak table pounding.
Politico: Hurdles remain for prosecuting Donald Trump regarding his possession of classified documents.
Of course, one unknown ultimately looms large over all the other machinations: Does Garland view Trump’s cavalier and even defiant approach to the national security secrets at Mar-a-Lago as something of sufficient magnitude to bring the first criminal case against a former president in U.S. history?
Politico: Michigan board blocks ballot measure on abortion rights.
Governing (ProPublica): How the ghost-gun industry gets around ghost-gun laws.
The vast majority of ghost guns recovered by law enforcement nationwide are built from parts made by Polymer80, which has managed to evade laws forbidding the manufacture of unserialized gun parts.
Reuters: Conservative think tank sues Starbucks over its efforts to promote diversity.
In a complaint filed on Tuesday, the National Center for Public Policy Research objected to Starbucks' setting hiring goals for Blacks and other people of color, awarding contracts to "diverse" suppliers and advertisers, and tying executive pay to diversity.
Reuters: Former coaches oppose arbitration in their racial discrimination case against the National Football league.
According to a brief submitted on behalf of (Brian) Flores, Steve Wilks and Ray Horton, the NFL's arbitration procedure bears no resemblance to a neutral judicial forum and fails to comport with basic principles of fairness.
By Margo Kirchner
Russ Feingold and Peter Prindiville are raising concern about the movement toward a constitutional convention and progressives’ failure to take the movement seriously.
The two discussed constitutional amendments and the contents of their book, The Constitution in Jeopardy: An Unprecedented Effort to Rewrite Our Fundamental Law and What We Can Do About It, with Mike Gousha at an “On the Issues” event at Marquette University Law School on Tuesday.
Feingold is president of the American Constitution Society and a former U.S. senator from Wisconsin. Prindiville is a Washington, D.C., attorney and fellow at the Stanford Constitutional Law Center.
Article V of the Constitution sets forth two ways to amend the document: (1) a proposed amendment supported by two thirds of both houses of Congress, or (2) “on the Application of the Legislatures of two thirds of the several States,” a convention.
Either path requires subsequent ratification by the legislatures or conventions of three-fourths of the states.
Since the signing of the Constitution in 1787, only 27 amendments have been ratified, with 10 of those a part of the bill of rights in 1791. As noted by Feingold at the event, there has not been a new proposed and ratified amendment for over 50 years.
No constitutional convention has ever occurred.
However, state legislatures have been quietly passing applications for one.
The Wisconsin Legislature passed a joint resolution in January 2022 calling for a convention to curtail the federal government. Its application for a convention was the subject of a recent dispute between legislators and Secretary of State Doug La Follette about mailing the resolution to federal officials.
At the On the Issues event Feingold and Prindiville called any Article V convention dangerous for several reasons.
First, the Constitution provides no rules on how such a convention would be held, they said. The Constitution does not clearly state how delegates are appointed, they said. Nor does it indicate what the parliamentary rules would be or whether anything higher than majority vote would be required to pass new language. “There are no rules for this,” Feingold stated, while Prindiville added that there are is no prescribed forum to resolve disputes that may occur—nothing indicates that the Supreme Court would have any involvement, for instance.
Feingold and Prindiville pointed out that Article V does not provide for involvement of “We the People.” Delegates could be chosen by legislatures, with no citizen involvement, vote, or approval. Feingold noted that the governor “has nothing to do with this.” It’s just the legislatures, and gerrymandered legislatures may not reflect the will of the people, he said.
“There are no rules for this,” Feingold stated.
Also, nothing in the Constitution restricts what gets discussed or reworked at a convention. Except as to equal voting in the Senate (specifically noted in Article V), everything could be “on the table” and “fair game,” Feingold and Prindiville said. Nothing in the Constitution provides a means for reining in what gets discussed and decided at a convention, they said.
A “runaway convention” could include lawyers altering language and rights that would have a profound effect, they warned. Prindiville identified as an example possible elimination of federal-court jurisdiction over civil rights cases.
Then there is the issue of the groups currently pushing for a convention—groups that Feingold and Prindiville say are well funded and aim to gut the federal government.
In addition to state legislatures’ under-the-radar applications for a convention, various groups pushing for a convention have been holding mock events, grooming people to be convention delegates. According to Feingold, the “far right is very good at long-term planning.”
Feingold and Prindiville warned that Americans need to take this movement seriously. Progressives cannot assume that Article V will not be used, they said. Article V is in the Constitution and needs to be discussed and debated now, they said. They want to make amending the Constitution a topic of political debate and even discussion at the dinner table.
Feingold said that those who may call him alarmist have not learned from history. He pointed to the lack of importance given to the “archaic” Second Amendment for years as an example.
To progressives who may support a convention to eliminate the electoral college or proclaim that corporations are not people, Feingold again pointed to the lack of involvement by “the people” in the convention process and the likely control by legislatures and well-funded interest groups.
In addition to raising concern about the movement toward a convention, Feingold and Prindiville propose a way forward by altering Article V to make amendment easier and available to the people rather than just legislators. Feingold noted that the U.S. Constitution is one of the hardest to amend, and Prindiville noted that even George Washington admitted that the Constitution as first ratified had flaws.
Help WJI advocate for justice in Wisconsin