August 25, 2006

The 7th Circuit does not appreciate the State of Wisconsin's tone.

The Seventh Circuit has a new opinion today -- Toeller v. Wisconsin Department of Corrections (PDF) -- dealing with an issue we talked about at the time of the Alito hearings: whether the Family and Medical Leave Act is capable of abrogating sovereign immunity with respect to leave taken for self-care (as opposed to the care of others, which the Supreme Court dealt with in Hibbs). The question is the scope of Congress's power under §5 of the Fourteenth Amendment, which is limited to remedying the violation of a Fourteenth Amendment right. The self-care provisions don't relate to sex discrimination the way the family care provisions do, which is the basis for distinguishing Hibbs. This isn't about whether the FMLA is constitutional, because it's supported by the commerce power, only about whether Congress can subject the states to suits by individuals for retrospective relief. Like then-Judge Alito, the court upholds state immunity.

But what's really notable is footnote 1, which follows a long paragraph summarizing the relevant Supreme Court cases:
These cases, taken as a whole, demonstrate that the Court has taken care to draw important, and sometimes subtle, constitutional lines in this area. Both for that reason, and for reasons requiring basic courtesy to the courts, we find much of the rhetoric in WDOC’s brief to be entirely out of line. It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making “remarkably intransigent statements,” or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about “polarizing declarations.” The tradition of writing dissenting opinions has existed in the United States Supreme Court since the beginning of the Republic, and every Justice on the Court avails himself or herself of that privilege when he or she deems it appropriate. Counsel’s brief is also less than helpful where it draws bizarre analogies to opinions about the current presence of American troops in Iraq, which has absolutely nothing to do with this case. We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court.
I haven't seen the brief, but that's really harsh!

Peg Lautenschlager, you should know, is running for reelection right now, with the primary on September 12th:
A WISC-TV poll showed incumbent Attorney General Peg Lautenschlager faces high unfavorable ratings but challengers have even higher "no opinion" ratings.

Thirty-four percent of those surveyed also have "no opinion" of Lautenschlager, despite her four years in office. Thirty-four percent view her as favorable, and 32 percent rate her as unfavorable. University of Wisconsin political science professor Charles Franklin believes the high negative rating is due to her drunken-driving conviction.

Lautenschlager faces a Democratic primary challenge from Dane County Executive Kathleen Falk. And despite a reasonable showing in a crowded primary for governor four years ago, two-thirds of those surveyed have no opinion on the challenger.

The situation is even worse for the Republicans. Seventy-six percent of those polled don't know Waukesha County District Attorney Paul Bucher, and 89 percent don't know former U.S. Attorney J.B. Van Hollen.

The poll was sponsored by WISC-TV and conducted from Aug. 14 though 16 by the firm Research 2000. Six hundred likely voters were selected at random and questioned over the phone.
So we haven't been paying much attention, and now along comes this juicy nugget of a footnote.

Can you do much with this politically? I think you can. People normally don't have much to go on when they think about how the attorney general's work is done. Thus, they revert to interesting but not all that relevant material: the drunk driving conviction. And now here's a hot, pithy paragraph that is precisely about how she does her work representing the people of Wisconsin, and it comes from the 7th Circuit, whose opinion of her work couldn't be more important.

Let's see how effectively Lautenschlager's opponents exploit this -- as well they should!

IN THE COMMENTS: I love this one from J:
...I think your respect for and deference to the court is exponentially higher than that of the general public. Not being a lawyer myself, my understanding of your excerpt is that she basically said the court was full of it, and they're hitting back here.

"It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making 'remarkably intransigent statements,' or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about 'polarizing declarations.'"

Actually, anyone who wants to can do those things (watch ANY episode of "The O'Reilly Factor", f'rinstance). Yes, I recognize that it might be considered inappropriate in this context, and I have no problem at all with the court hitting back, but this "it's not up to", along with the final sentence -- "We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court" -- sound almost comically arrogant to me. The effect of bringing this up might be the opposite of what you expect.
Well, perhaps the court wasn't so much slamming the attorney general as signalling deference to the Supreme Court. And not just signalling, but hamming it up big time. In any case, if the judges are arrogant, the lawyer has to account for that in writing a brief. The 7th Circuit isn't an Al Pacino movie.
Mr. Kirkland you are out of order!

You're out of order! You're out of order! The whole trial is out of order! They're out of order! That man, that sick, crazy, depraved man, raped and beat that woman there, and he'd like to do it again! It's just a show! It's a show! It's "Let's Make A Deal"! "Let's Make A Deal"! Hey Frank, you wanna "Make A Deal"? I got an insane judge who likes to beat the shit out of women! Whaddya wanna gimme Frank, 3 weeks probation?

DAMMIT!

You, you sonofabitch, you! You're supposed to STAND for somethin'! You're supposed to protect people! But instead you rape and murder them! You killed McCullough! You killed him! Hold it! Hold it! I just completed my opening statement.
Brilliant! We love it! But we're not electing him attorney general.

JohnR did a nice job of finding the references in the brief (which you can read here):
Here are the context and the quotes referred to in footnote 1:

First: "intransigent statements." The Appellant is going on about what you can or can't rely on from a Supreme Court decision where, as in Hibbs, there are many viewpoints expressed by the Justices in what is called a "splintered opinion." In describing what the Appellant referred to as an "analytical abyss" involving Eleventh Amendment jurisprudence between Justices Breyer, Ginsburg, Souter and Stevens on the one hand, and the rest of the Court on the other, the Appellant said, " Indeed, Justices Breyer, Ginsburg, Souter and Stevens even refused to recognize the Seminole Tribe line of decisions as a legitimate subject of discussion, much less precedental. The depth and permanency of this gulf was openly declared through the remarkably intransigent statements made in Kimel v. Florida Bd. of Regents...." (Appellant's Brief at 17....)

Second: "polarizing declarations." The Appellant is continuing to discuss the divide in the Court over Kimel, and quoted Justice O'Connor in that case saying, "...dissenters' refusal to accept the validity and natural import of ... [cite omitted]... makes it difficult to engage in meaningful debate...." The brief gives some more details, and then says (page 18), "These polarizing declarations startled many seasoned Court watchers [cites omitted].

Third: Iraq. The brief (page 19): “Given those ‘steadfast’ positions [cite omitted], was there a detectable meeting of the minds between either Justices Breyer, Ginsburg, Souter or Stevens on the one hand and Chief Justice Rehnquist and Justice O’Connor, on the other…? By analogy, if the current administration were to decide, sometime in 2006, to withdraw all American troops from Iraq, and that decision was supported by persons who were always unalterably opposed to the Iraq invasion, the administration and its opponents would hardly have reached a consensus on their rationales on how the United States should handle Iraq simply because both sides agreed with the ultimate result.”

My take, for what it is worth, is that this section of the brief should have been in some form of commentary rather than in something for a court. It is too gossipy and unlawyerly. At the same time, the writing is hardly offensive, and appears actually to be a fair description of the strength of the Justices’ opinions referred to, however inappropriate it may be to find this in a brief. I think the 7th Circuit’s footnote was an overreaction. Though I must say the Iraq thing was not the best analogy the State might have used.
I found another analogy, which I think is definitely the sort of thing that is going to make a real-world judge roll his or her eyes. In support of the assertion that the Justices in Hibbs had "two mutually exclusive analytical and philosophical cosmologies":
[N]ative American tribes and federal officials indisputably entererd into various treaties over many years, but each side unquestionably did so based on widely different cosmologies. [Citations omitted.] While treaties were the result, the divergent reasons each side entered those treaties would preclude any conclusion that there were controlling rationales that both sides actually adopted.
That's something you might expatiate about in a law school seminar, but it's not going to play with a judge who is likely to see that as embarrassingly pedantic and a waste of time. And it's weirdly political, suggesting that the writer wanted to take the time to air an irrelevant grievance. I'm thinking footnote 1 is the tip of an iceberg of ridicule that took place in chambers.

16 comments:

SteveR said...

She might need some ointment for that burn.

Wurly said...

When judges show the same degree of respect to coordinate branches of government that they expect to be shown to them, (see Judge Taylor) then the footnote in the Seventh Circuit's opinion would seem reasonable to me.

I've routinely come across federal judges who treat executive officers who are performing their duties in good faith with less respect than convicted criminals. It is not difficult to find judicial opinions that are intemperate in their derision of a legislature's or executive officer's (whether state or federal) sincerity, competence and motives.

I'm not sure how it would play in Wisconsin, or how wise the A.G.'s choice of language was, but in many places, I would think that taking an oppositional tone to the judiciary would play well with the electorate--just as Judge Taylor's opinion seems to have been crafted to appeal to certain constituency.

MadisonMan said...

I think how well it plays depends on who she's running against. In the Democratic Primary, she could just ask Kathleen Falk if she agrees with it. And what could Kathleen say to that?

As for the Republican candidates, they seem hell-bent on self-destruction. Maybe things will change after the primary. For now, though, they act like their pilot lights have been extinguished.

JP said...

Great! Let's replace Lautenschlager with Van Hollen, who is much more dignified in his language.

Mike said...

I haven't put much thought into this race yet, but I think this speaks of unprofessional conduct which makes me less likely to vote for her.

Ann Althouse said...

I'm looking at the brief now and I think the criticism is overstated, especially based on what I know about how much Hibbs screwed up the doctrine.

Mike said...

Ann - Does it bother you that 99.9% of the people voting in this election aren't qualified to render an opinion on these candidates (and I certainly include myself)?

It has come to bother me a lot that many of the people who vote haven't taken any time to consider the issues. I've come to the point that I think we ought to have a very basic, little exam prior to letting someone vote (like, "without looking at the ballot, name the candidates", or "name the incumbant"). I know we can't do that, but it seems that we are better served by poorly informed citizens not voting(in defense of the voters, campign ads make a thoughtful choice difficult). I find comfort in the oft decried low voter turnout.

And it seems to me that judicial elections are especially difficult in this respect.

JohnF said...

Here are the context and the quotes referred to in footnote 1:

First: "intransigent statements." The Appellant is going on about what you can or can't rely on from a Supreme Court decision where, as in Hibbs, there are many viewpoints expressed by the Justices in what is called a "splintered opinion." In describing what the Appellant referred to as an "analytical abyss" involving Eleventh Amendment jurisprudence between Justices Breyer, Ginsburg, Souter and Stevens on the one hand, and the rest of the Court on the other, the Appellant said, " Indeed, Justices Breyer, Ginsburg, Souter and Stevens even refused to recognize the Seminole Tribe line of decisions as a legitimate subject of discussion, much less precedental. The depth and permanency of this gulf was openly declared through the remarkably intransigent statements made in Kimel v. Florida Bd. of Regents...." (Appellant's Brief at 17; available on the 7th Circuit website, http://www.ca7.uscourts.gov/)

Second: "polarizing declarations." The Appellant is continuing to discuss the divide in the Court over Kimel, and quoted Justice O'Connor in that case saying, "...dissenters' refusal to accept the validity and natural import of ... [cite omitted]... makes it difficult to engage in meaningful debate...." The brief gives some more details, and then says (page 18), "These polarizing declarations startled many seasoned Court watchers [cites omitted].

Third: Iraq. The brief (page 19): “Given those ‘steadfast’ positions [cite omitted], was there a detectable meeting of the minds between either Justices Breyer, Ginsburg, Souter or Stevens on the one hand and Chief Justice Rehnquist and Justice O’Connor, on the other…? By analogy, if the current administration were to decide, sometime in 2006, to withdraw all American troops from Iraq, and that decision was supported by persons who were always unalterably opposed to the Iraq invasion, the administration and its opponents would hardly have reached a consensus on their rationales on how the United States should handle Iraq simply because both sides agreed with the ultimate result.”

My take, for what it is worth, is that this section of the brief should have been in some form of commentary rather than in something for a court. It is too gossipy and unlawyerly. At the same time, the writing is hardly offensive, and appears actually to be a fair description of the strength of the Justices’ opinions referred to, however inappropriate it may be to find this in a brief. I think the 7th Circuit’s footnote was an overreaction. Though I must say the Iraq thing was not the best analogy the State might have used.

J said...

"And now here's a hot, pithy paragraph that is precisely about how she does her work representing the people of Wisconsin, and it comes from the 7th Circuit, whose opinion of her work couldn't be more important"

But will that resonate with the public? As a lawyer, I think your respect for and deference to the court is exponentially higher than that of the general public. Not being a lawyer myself, my understanding of your excerpt is that she basically said the court was full of it, and they're hitting back here.

"It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making “remarkably intransigent statements,” or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about “polarizing declarations.”"

Actually, anyone who wants to can do those things (watch ANY episode of "The O'Reilly Factor", f'rinstance). Yes, I recognize that it might be considered inappropriate in this context, and I have no problem at all with the court hitting back, but this "it's not up to", along with the final sentence - "We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court" - sound almost comically arrogant to me. The effect of bringing this up might be the opposite of what you expect.

That said, if she has a DUI conviction she should be in jail, not public office.

Gerry said...

It won't hurt her in the primary. In fact, she undoubtably presented what she did to the Supreme Court specifically to score points with Democratic primary voters.

And odds are that by the general election, Republicans will not be able to make much hay in a state that, while competitive, is still very tolerant of strong liberalism.

And liberals elsewhere will be further enboldened.

Ann Althouse said...

The notion that everyone with a DUI conviction belongs in jail is ridiculous. The legal limit is so low that we're not talking about people who are any more impaired than someone who's a bit sleepy or daydreamy. I think at night the roads are full of people over the limit. You can't wish them all in prison. I wouldn't want to pay for it. The only reason the legal limit is as low as it is here in Wisconsin is because the feds using the spending power crammed it down our throats. It wasn't our choice.

If you go to dinner and have two glasses of wine, can you drive home?

WisJoe said...

First,the A.G. probably never saw the brief. I've dealt with Atty. Moriarty and am not surprised by his brief. I think the criticism is overstated, as the US Sup's 11th Amendment jurisprudence is messy. Maybe it is the 7th Circuit judges who are acting politically here.

I agree wholeheartedly with the good prof's sentiments on the feds highway fund force-feeding of the .08 limit on every state. I do a fair amount of criminal work, and, honestly, I always take a cab so I don't lose my job.

J said...

"The legal limit is so low that we're not talking about people who are any more impaired than someone who's a bit sleepy or daydreamy."

"I agree wholeheartedly with the good prof's sentiments on the feds highway fund force-feeding of the .08 limit on every state. I do a fair amount of criminal work, and, honestly, I always take a cab so I don't lose my job."

I know we're risking some serious thread creep here, but I'm interested in these two comments. Several years ago I had an administrative (again, I'm not a lawyer) job that dealt, among other things, with this issue, and I routinely saw people over the limit plead to something considerably less serious than DUI. This was in the state of Texas. I'll concede the possibility of sampling error because I work in a profession with extreme adverse consequences for getting a DUI (re: the two glasses question, I would never, ever take that risk) that make spending a lot of money on legal help quite valuable. Are you guys generally seeing people get convicted for being over .08, or are they usually able to plead to something less?

WisJoe said...

RE: J

Here goes the thread creep.

I regularly see people plead to .08 and over OWI/OWI PAC counts. Lots of times there is video of terrible field sobriety tests. Oftentimes, you may be able to argue a "curve defense" theory if the accused is smart enough not to admit anything about his/her drinking on the night in question. It can be expensive to take these to trial with an expert, so most folks admit the offense. When there are serious collateral consequences (loss of job/licensure), people are then willing to pony up for an expert. Another federal mandate that has come down is that truck drivers (those with CDL's) who get an OWI in their own private vehicle will lose their CDL for a draconian length of time even for a 1st offense (I think it is 10 years).

dreamingmonkey said...

Gerry wrote:


It won't hurt her in the primary. In fact, she undoubtably presented what she did to the Supreme Court specifically to score points with Democratic primary voters.

And odds are that by the general election, Republicans will not be able to make much hay in a state that, while competitive, is still very tolerant of strong liberalism.

And liberals elsewhere will be further enboldened.


This comment makes no sense.

The AG was arguing in favor of sovereign immunity, which is traditionally considered to be a conservative cause. How does this score points with Democratic voters?

The Supreme Court language that the AG maligned, and that the Seventh Circuit defended, was made by Althouse (and I'm sure Gerry's) favorites Stevens, Souter, Ginsberg and Breyer. If you had the foresight to read the opinion, or even the comment section, before leaping in to bash a Democrat qua Democrat, you would have reversed your opinion entirely, celebrated the appellant's characterization and proceeded to burn Posner in effigy. WTF.

dreamingmonkey said...

seriously, isn't there a conservative equivalent to BDS? Call it LDS?