Wednesday, October 10, 2012
Tuesday, June 19, 2012
Over the past decade, Wisconsin’s Swiss Turners Gymnastics Academy had a pervasive sexually charged atmosphere where coaches and instructors engaged in sexual conduct with students, the students’ parents, and other staff members, according to a lawsuit recently filed in federal court in Milwaukee. The suit was filed by a former instructor at the gym that is best known as the training home of Olympians Paul and Morgan Hamm. At the center of the suit is the Hamm’s former coach, Stacy Maloney.
Maloney, who is identified on the Swiss Turner's website as a member of the USA Gymnastics Hall of Fame and Swiss Turners' gym manager and director, is alleged to have made repeated sexual advances towards the gym’s Preschool Program Director. As described in the complaint, Maloney’s actions began soon after he learned that the plaintiff broke up with her boyfriend, leading to countless personal conversations and phone calls between Maloney and the plaintiff. Maloney, who identifies himself on his Facebook page as the lead singer, guitarist and songwriter for the band 2MorroW EvR AfteR, is alleged to have also recorded a song for the plaintiff. The plaintiff states she consistently rebuffed Maloney’s requests that he join her for drinks, but she eventually agreed to celebrate his birthday with him in June of 2009, mistakenly believing that others would be joining them at Hotel Metro in Milwaukee.
During that evening, the plaintiff contends that Maloney asked her numerous inappropriate intimate questions and requested the plaintiff not tell his wife they were out together. As the evening ended, Maloney insisted on walking the plaintiff to her car and once there, he put his arms around her and repeatedly tried to kiss her.
Following this incident, the plaintiff alleges that she was repeatedly passed over for promotions and was regularly confronted with comments from Maloney that she interpreted as suggesting that if she yielded to Maloney’s sexual advances, her employment situation would improve.
In January of 2011, the plaintiff asked to speak with Maloney about her employment and arrived for a scheduled appointment accompanied by her father. Instead of discussing her concerns, Maloney handed the plaintiff a letter terminating her employment and told her she was no longer welcome on the premises. The plaintiff states she was so shocked by being fired that she nearly fainted.
The plaintiff is represented by Heins Law Office and seeks unspecified compensatory and punitive damages for pain and suffering, emotional distress, loss of wages and other employment benefits, and other damages.
Tuesday, March 27, 2012
Why Aren't Those Upset About Government-Mandated Health Insurance Also Upset About the Government's Mandate We All Have Children?
Wednesday, March 21, 2012
As expected, the Washington County District Attorney has refused to charge the homeowner that took the life of 20-year-old Bo Morrison after Bo drunkenly stumbled into his home. This homicide was the first to arise after the GOP legislature passed and Governor Walker signed into law the ALEC-backed shoot-first law commonly referred to as the Castle Doctrine. While the outcome would have likely been the same absent the newly passed Castle Doctrine, WI's new statute eliminated all doubt as to the outcome. But what stands out is just how far the Washington County DA was willing to stretch the Castle Doctrine. The Castle Doctrine is applicable only if a person (1) unlawfully and (2) forcibly enters a home. But the Washington County DA essentially read the element of forcible entry out of the statute, which should be a troubling proposition to every Wisconsinite.
Every battery entails a touch, and it is impossible to touch someone without applying some force, if only a smidgeon. Does it follow that every battery comes within § 16(a)? No, it does not. Every battery involves "force" in the sense of physics or engineering, where "force" means the acceleration of mass. A dyne is the amount of force needed to accelerate one gram of mass by one centimeter per second per second. That's a tiny amount; a paper airplane conveys more. (A newton, the amount of force needed to accelerate a kilogram by one meter per second per second, is 100,000 dynes, and a good punch packs a passel of newtons.) Perhaps one could read the word "force" in § 16(a) to mean one dyne or more, but that would make hash of the effort to distinguish ordinary crimes from violent ones. How is it possible to commit any offense without applying a dyne of force? Section 16(a) speaks of "physical force against the person or property of another" (emphasis added). Cashing a check obtained by embezzlement requires lots of dynes to move the check into an envelope for mailing. Suppose someone finds a set of keys that the owner dropped next to his car and, instead of taking them to a lost and found, turns the key in the lock and drives away. One would suppose that to be a paradigm non-violent offense, yet turning the key in the lock requires "physical force" (oodles of dynes) directed against the property (the auto) of another.
To avoid collapsing the distinction between violent and non-violent offenses, we must treat the word "force" as having a meaning in the legal community that differs from its meaning in the physics community. The way to do this is to insist that the force be violent in nature—the sort that is intended to cause bodily injury, or at a minimum likely to do so.
The Washington County DA took the absurd, hyper-technical scientific view rejected by the Seventh Circuit in Flores. There were no signs of forced entry at the home Bo entered and thus the door Bo walked through was likely unlocked. But the Washington County DA nonetheless concluded that Bo Morrison "forcibly" entered the residence because he must have exerted some degree of "force" (in a scientific sense) when he opened the door.
Tuesday, January 03, 2012
Monday, December 19, 2011
'Tis the Season for Controversy: Understanding the Constitutional Boundaries in the Elementary School Christmas Concert
Monday, October 31, 2011
Wisconsin Republicans Recognize Obtaining Attorneys’ Fees Vital to Ensure Justice (at least when it comes to rich litigants)
Wisconsin's Republican legislators recognize that often times the price of legal action will deter an aggrieved party from pursuing justice. Even if a person can afford to hire a lawyer and pay all the attendant costs of litigation, the personal economic benefit of taking some sort of legal action might not seem sufficient to justify the expense. But certain types of cases involve compelling public interests even though they might not involve a lot of money for the individual plaintiff. Therefore, in an effort to avoid having these wrongs go unprosecuted, the legislature made it so that plaintiffs that win certain types of other cases will have the losing party pay its attorneys' fees and other costs.
This includes certain actions such as challenges to administrative decision-making where the state is the defendant. The rationale for cost shifting in these sorts of cases is to rebalance the scales and prevent a plaintiff from being dissuaded by the state's superior resources.
But the state's resources are limited and paying an opponent's attorneys' fees and costs can be quite expensive, particularly given the frequency that the state is a party to litigation. Therefore, in an effort to balance the competing interests of encouraging aggrieved parties to pursue justice and to protect scarce public dollars, a compromise was struck resulting in the state agreeing to pay the costs and attorneys' fees for the all but the richest individuals and businesses who are presumed to be able to bear the costs on their own.
While repeatedly expressing alarm over the state's dire fiscal state, the state's Republicans have recently shown that ensuring access to justice is a priority worth expending scarce resources, so much so that it is given priority over other such vital matters such as fully funding health care for the state's most vulnerable citizens or providing adequate funding for the education of the state's children.
But wait. Aren't the Republicans the ones who have imposed draconian and arbitrary caps upon the amount of attorneys' fees that a plaintiff might recover in cases such as consumer fraud, making it so that these vital consumer protection laws will go unenforced and disreputable businesses may scam consumers with impunity? That sure doesn't sound like it is making justice more accessible for Wisconsinites.
Yes, this is all true. Republicans have decimated consumer protection laws in response to a major campaign donor being upset that he was held accountable for defrauding a customer. Yet at the exact same time that Republicans have effectively eliminated the ability for average consumers to have their costs paid by a disreputable business, Republicans have introduced a little-noticed provision that would repeal the income cap to be eligible to receive attorneys' fees and costs for certain actions against the state. This means that taxpayers could now be paying the legal fees of even the richest litigants. Even when the private business' resources, with its $500 / hour retained lawyers and bottomless litigation budget, dwarf those of the state, with its $25 / hour attorneys and cut-to-the-bone operating budget, the state may end up subsidizing the rich.
This proposal results in the state giving money it claims it does not have to wealthy private individuals and businesses that do not need it. In other words, it bears all the hallmarks of a banner Republican proposal.
Not only does this proposal result in a state that Republicans regularly claim is broke paying the legal bills of the richest among us, this proposal provides deep-pocketed private individuals and businesses with a strong incentive to run up the tab. The mere threat of the state having to pay hundreds of thousands, if not millions, of dollars in attorneys' fees gives the state an incentive to settle even the strongest cases rather than fight. And the more the private party runs up the tab, the greater the incentive for the state to settle a case. Even if the state perceives its chance of winning is 95%, if the payoff for winning is not great, the mere 5% possibility of having to pay to the plaintiff an inflated $500,000 bill that just keeps growing, it might make it worthwhile to compromise. The result is that a party with deep enough pockets is able to effectively extort the state, and the interests of all Wisconsinites, which the state's lawyers are supposed to represent in litigation, are compromised.
If Republicans now believe that income eligibility caps are no longer good public policy, I would not object to a consistent implementation of new philosophy. Eliminate income eligibility caps for BadgerCare, Section 8, Wisconsin Shares, WIC, and the Energy Assistance programs. But I think it is safe to say that no Wisconsin Republican will be introducing a proposal like this.
To roll back an income eligibility cap that effectively results in a government handout to the richest businesses and individuals under circumstances that are likely to undermine the interests of the state's citizens as a whole is inexcusable. To then do this at precisely the same time that Republicans are using the "we're broke" refrain as an excuse to cut programs for the state's most vulnerable is indefensible. And finally, to do this while cutting the ability for average citizens to obtain attorneys' fees for the injustices they suffer as a result of the fraudulent acts of corrupt businesses is downright unconscionable.
Wednesday, October 19, 2011
The most maligned portion of the Patient Protection and Affordable Care Act (PPACA) is the requirement that all individuals obtain health insurance. Proponents contend that it is essential to ensure the effectiveness of the overall scheme; now that insurance companies can no longer deny coverage based upon illness, absent the individual mandate people will simply wait until they become sick to purchase insurance, thus vitiating the basic principle that allows insurance to be effective. Opponents contend that the government requiring a private individual to purchase anything is historically unprecedented and downright un-American.
Although oft-repeated and infrequently challenged, this assertion is patently false. The truth is that such government mandates are as old as the Republic and in recent times, those on the furthest extremes of the political right have been their most ardent supporters.
Just two years after the constitution became the law of the land, the nation's Second Congress, a body that included influential founders such as Aaron Burr and Rufus King, along with the aptly named James Gunn of Georgia, passed the nation's first individual mandate in 1792. Like the individual mandate at issue in the health care overhaul legislation, Congress passed this early mandate in realization of the fact that the health and safety of all Americans requires individuals relinquishing a modicum of personal freedom for the benefit of themselves and their neighbors. But obviously, the Second Congress did not require Americans to buy health insurance (a product that wouldn't exist as we know it for more than 150 years) but rather, the federal government required Americans to purchase firearms, ammunition, and the essential accessories required for military service.
Congress required that essentially every white male between 18 and 45 years old purchase
a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder . . . .
Even today, long past the era of universal and mandatory militia service, government mandates for gun ownership remain. In some of the reddest of red states, areas where the condemning cries of an "oppressive government" are heard loudest, governments have passed laws mandating firearm ownership.
Amidst the outcry over the individual mandate in the heath care overhaul, legislators in South Dakota proposed a law requiring every adult in the state to own a firearm. But unlike the earlier federal law and laws in other parts of the country, South Dakota's legislature did not actually wish to mandate an armed citizenry. Instead, the legislators claimed their doomed-to-fail proposal was a stunt aimed at highlighting what they perceived as the over-reaching of the individual mandate in the federal health care law. The irony, if not hypocrisy, of their action was apparently lost on the South Dakotan legislators. In a misinformed attempt to highlight what they perceived as government overreaching, they actually highlighted how the core of the main argument against the health care law was entirely inconsistent with the nation's history.
In light of this history, even those ideologues who insist that the Constitution's meaning was frozen at the time of the founding would be hard-pressed to contend that the Constitution prohibits the federal government from requiring an individual to purchase anything. That is, of course, unless their constitutional originalism is merely a front for political ideology, which they will casually brush aside when it does not get them to their desired ends.
Friday, August 26, 2011
UPDATED, the audio from the over-two-hour interview has been released and is available here. Listening to it is quite amazing. Justice Prosser spends the first 20 minutes babbling about wholly unrelated nonsense apparently in a desperate attempt to defend his outrageous actions or distract (or bore) the investigators. At one point it gets so bad that his own attorney has to jump in and say "get to the point;" it doesn't help. It's a full 40 minutes of Prosser trying to rationalize why he got enraged by referring to long-ago disputes on case management issues before he even starts to approach anything even remotely relevant. But amidst all the nonsense, Prosser does make an outrageous admission--he got the facts he relied upon to make his decision from newspapers rather than the record produced in court like any jurist must do. Just imagine if a juror decided a defendant's guilt by relying upon what was presented in the media rather than what was presented in court, but apparently that would be fine to Prosser. And although it is patently clear that Prosser is struggling to be on his best behavior, there are hints of the acerbic personality that Prosser's colleagues referenced. For example, he insults the Chief Justice and Justice Bradley for seemingly being surprised to learn that Prosser was writing a concurring opinion. Prosser states, referring the the Chief Justice and Bradley, "I think anyone with any brains would have known I was writing [a concurring opinion]." Prosser raises his voice and becomes agitated at the media's reporting of this incident at 1:15; note, the same media he condemns for being inaccurate in their reporting of this incident is the same media Prosser relied upon to decide this exceptionally important case. Prosser also contradicts himself, at times denying being angry while at at others admitting being angry at the time of the incident.