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Wednesday, October 10, 2012

The Crime of Doing Nothing: The Charges in the Milwaukee Police Strip Search Scandal



It might sound like a rehash of the Seinfeld finale but in the view of Milwaukee County Assistant District Attorney Miriam Falk, witnessing a crime and doing nothing to intervene is itself a crime.

As a general notion, this actually is not anything new. Many may not know it but Wisconsin has long had a “Good Samaritan” statute that makes it a crime in certain circumstances to not render aid to a victim of a crime.

But what is truly remarkable is that according to ADA Falk, inaction upon witnessing a crime may subject the person to a liability not for the Class C misdemeanor of failure to render aid, but as a principal in the crime witnessed. Thus, witness a battery or homicide and simply by doing nothing to prevent it, you’re as guilty as the batterer or murderer.

It is on this specious legal theory that ADA Falk has charged Milwaukee Police Officers Jeffrey Dollhopf, Brian Kozelek, and Jacob Knight. According to the allegations contained in a criminal complaint filed on October 8, 2012, Milwaukee Police Officer Michael Vagnini perversely abused his authority as a police officer and brutally sexually assaulted numerous individuals with whom he came into contact, all under the guise of searching for drugs.

The complaint alleges that other police officers were involved in one of these horrific acts--an instance where two officers held a suspect’s arms, one of whom had a gun to the suspect’s head, as Vagnini sexually assaulted the suspect and subsequently planted drugs on him.

The Milwaukee Journal Sentinel notes this inflammatory allegation from the complaint right before going on to refer to the charges against officers Dollhopf, Kozelek, or Knight. Thus, it would hardly be surprising if an average reader thought that officers Dollhopf, Kozelek, or Knight were charged alongside Vagnini because they held down a victim as Vagnini brutalized him or had some sort of similar direct involvement in the crime. The Huffington Post tries to create a more direct implication that it was Dollhopf, Kozelek, or Knight who held a gun to a victim’s head as Vagnini perpetrated a sexual assault and goes so far to explicitly say that Dollhopf, Kozelek, and Knight “assisted” Vagnini, a statement wholly unsupported by allegations in the complaint. Even the Associated Press’s story states that Dollhopf, Kozelek, and Knight are charged with “conducting” illegal searches.

But the complaint is silent as to the identities of the officers who allegedly held any victim or pointed a gun to his head as Vagnini sexually assaulted him. In fact, the complaint does not allege that Dollhopf, Kozelek, or Knight ever touched a victim, encouraged Vagnini’s actions, or even witnessed what occurred. Rather, the complaint alleges only that at different incidents, according to police records, these officers were “present” and did not stop Vagnini or report Vagnini’s actions to a supervisor.

There are, of course, a variety of ways a person can be held responsible for a criminal act without directly committing the crime. Conspiracy, solicitation, or “party to a crime” theories are oft-utilized to bring people within the ambit of the criminal law even though they did not directly commit the crime (at least within the sense of how an average person would consider directly committing a crime). While a getaway driver might not be as morally culpable as a gunman, in the eyes of the law, they are equal.

ADA Falk alleges in the complaint that being “present” and not stopping a crime is enough to make a person a “party to a crime” and be as legally culpable as if he had directly committed the offense. While there should be little debate that a police officer who witnesses a fellow officer brutalize a suspect and does nothing to prevent it acts inappropriately and bears some culpability, moral culpability is not the same as criminal culpability. Just because we can all agree something is wrong doesn’t mean it’s a crime.

Wisconsin’s pattern jury instructions state that a person is a “party to a crime”

by either directly committing it or by intentionally aiding and abetting the person who directly committed it. If a person intentionally aids and abets the commission of a crime, then that person is guilty of the crime as well as the person who directly committed it.

The jury instructions continue and define what is meant by “aids and abets:”

A person intentionally aids and abets the commission of a crime when, acting with knowledge or belief that another person is committing or intends to commit a crime, he knowingly either:
·         assists the person who commits the crime; or
·      is ready and willing to assist and the person who commits the crime knows of the willingness to assist.

To intentionally aid and abet [a crime], the defendant must know that another person is committing or intends to commit the crime … and have the purpose to assist the commission of that crime.

The instructions then continue with the “bystander defense” and it is here that the state’s case appears to fail.

However, a person does not aid and abet if he is only a bystander or spectator and does nothing to assist the commission of a crime.

The criminal complaint explicitly alleges that Dollhopf, Kozelek, or Knight were merely “present” and failed to prevent Vagnini from committing the offense. As a matter of law, this allegation is insufficient to sustain a charge of conducting an illegal strip search as a party to the crime. Of course, the state almost certainly possesses more evidence than that contained in the complaint. There is no obligation that the state put every allegation into a criminal complaint. However, a criminal complaint must establish probable cause to believe that the defendants committed a crime. Ordinarily, a prosecutor would want to ensure that he or she presented sufficient allegations to easily clear this threshold. Given that the complaint in this action is so woefully deficient, one might question whether the state really has anything more in its back pocket.

But the charge of being a party to the crime of an illegal strip search is merely a misdemeanor, punishable by a maximum of a $1,000 fine and 90 days in jail. In fact, a conviction would not necessarily prohibit each officer from continuing to work as police officers. Dollhopf, Kozelek, and Knight also each face the more serious charge of felony misconduct in office, which could result in up to 3½ years in prison (Dollhopf faces two counts of each offense) and would necessarily preclude them from possessing a firearm.

Wisconsin’s “misconduct in public office” statute is an expansive prohibition against malfeasance by public employees. The law prohibits the sorts of things you might expect like taking bribes. But many would be surprised to know that the sort of slacking on the job that would bring a stern conversation from a boss in the private sector may be a felony if the employee happens to work for state or local government.

Dollhopf, Kozelek, and Knight are charged with “do[ing] an act which the officer or employee knows is in excess of the officer's or employee's lawful authority or which the officer or employee knows the officer or employee is forbidden by law to do in the officer's or employee's official capacity.”

Note the operative verbiage: “doing an act.” By its plain language, the statute requires an action and thus is necessarily inapplicable to instances where public officials simply decline to act. Likely, the state will argue that the act that Dollhopf, Kozelek, and Knight did was the illegal strip search. From a legal sense, it does not matter that they did not actually conduct the illegal strip search because by virtue of being a party to the crime, they are just as responsible as if they had.

But the traditional notion of being a party to a crime through aiding and abetting requires some sort of act. Here, none is alleged. The only “act” alleged is the officers’ failure to act, which is an obvious semantic stretch. And as a general notion, whenever a criminal law suffers from such ambiguity, it must be interpreted in favor of the defendant.

Based upon the allegations contained in the complaint, this may be an instance where the facts may be undisputed and we can all agree these officers behave inappropriately, but nonetheless no crime has been committed. Even if acquitted, Dollhopf, Kozelek, and Knight have been forever tarnished by having been associated with the despicable acts Vagnini is alleged to have committed (not to mention the mental turmoil of facing serious criminal charges that places one’s freedom, family, and professional career in jeopardy).

At a minimum, the media owes these three accused officers the decency of accurately reporting on the allegations against them. While the Journal Sentinel took the time to write a detailed synopsis of Wisconsin’s strip and cavity search statutes and the law regarding sexual assault, it never bothered to note the legal infirmities of the state’s expansive use of the party to a crime statute, much less accurately report that Dollhopf, Kozelek, and Knight are charged not because of their actions but rather their inactions. 

One should readily admit that there is a vast social stigmatic difference between being accused of violently forcing an unprotected hand into another person’s anus under the guise of retrieving contraband (as Vagnini is alleged to have done) versus being “present” when a prisoner was required to expose his buttocks (as is the extent of the involvement alleged with respect to Dollhopf, Kozelek, and Knight).

Unless and until additional adequately supported allegations emerge, every report must indicate that these officers are facing criminal charges for having been “present” during one or more of Vagnini’s alleged assaults and failed to prevent or report Vagnini’s alleged actions. 

Tuesday, June 19, 2012

Sexual Harassment Alleged at Swiss Turners Gymnastics


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?

The debate over the "individual mandate" in the Patient Protection and Affordable Care Act has been framed in terms of a requirement that all Americans buy health insurance. But is it really such a mandate? The law calls for an initial "penalty" of at least $95 but up to 1% of income. These dollar values increase over time to eventually 2.5% of income with a maximum of $2,085. But not everyone without insurance will have to pay these penalties. Other provisions of the law make it so that only those with the financial ability to do so are obligated to pay.

Would there still be this sort of outrage if the law had some minor rhetorical tweaks? What if the Affordable Care Act essentially imposed a proportional tax increase upon everyone in the nation but also established an offsetting tax credit to anyone who had health insurance? The net result is the exact same as the "penalty." A person ends up having up to $2,085 less if he has the means to purchase health insurance but choosse not to while those who purchase health insurance enjoy the benefits of the tax credit. 

If providing a financial benefit for certain conduct by way of a tax credit is a "government mandate" then many Americans will be surprised to learn that they have been mandated to do a lot of things. Far more personal and invasive than health insurance, the federal government has apparently mandated that we have children. Those who choose to ignore the government mandate and have no children are forced to pay the government-mandated penalty of up to $6,000 per year. The government has also mandated that we all buy homes. In America, there is apparently no right to rent and failure to comply with this mandate forces you to pay an $8,000 penalty. And it's hard to believe that Fox News isn't on the air with round-the-clock coverage of the government mandate that we all buy geothermal heat pumps, residential wind turbines, and solar energy systems

These are all matters for which the federal government provides a tax credit. The tax credit for each is obviously far more costly than that applicable in the health insurance context but like with the health insurance "penalty," the credits for the programs identified above cover only a small portion of an individual's actual cost. Yet inexplicably, there's no outrage or lawsuits condemning these programs and unconstitutional government overreach. 

This provision of the Affordable Care Act is referred to as a "penalty" and a "mandate" by both sides primarily for rhetorical rather than practical purposes. To those who oppose the law, it bolsters their claim that this is extraordinary government overreaching. To those who support the law, this choice of words is designed to convince people that obtaining insurance is necessary, which is essential to ensure the effectiveness of the insurance pool and to deter reluctant individuals from being guided by the raw economics of paying for health insurance versus paying the "penalty." 

In a practical sense, the individual mandate is absolutely nothing more than the government incentivising certain conduct through the tax code and thus far from revolutionary.

Wednesday, March 21, 2012

Michael Moore Could Have Been Killed Under Wisconsin's Castle Doctrine?

While the nation is focused upon the homicide of Trayvon Martin, it is important to remember that at the same time the tragic consequences of Wisconsin's own ALEC-backed license-to-kill statute are being felt in this state. The Wisconsin case, like that of Trayvon Martin, involves the death of an unarmed young black man (who also was known to wear the evil hoodie) and a prosecutor concluding that a new statute written by ALEC, rushed through by a GOP-controlled legislature, and signed by a Republican governor, bars him from prosecuting the person for taking this person's life. While there are many reasons why the Wisconsin case is not equivalent to that of Trayvon Martin (notably, no allegation that the Wisconsin shooter had any hint of a racial motivation and the Wisconsin shooter was not a vigilante who pursued his victim) both cases raise the same question of precisely how far the law should go in authorizing what can only be described as an individual Bush doctrine--i.e. authorization of a preemptive use of force.

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.

To an ordinary person, "forcibly" probably has the connotation of something along the lines of breaking and entering. When we come home, unlock the door, and walk inside, we wouldn't never think of ourselves as "forcibly" entering our homes, but if one were to use a scientific definition of "force" we would be. This debate over what "force" means in laws is nothing new. The Seventh Circuit's discussion in Flores v. Ashcroft, in an opinion authored by conservative stalwart Frank Easterbrook, is perhaps one of the most well-known discussions on this subject:

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. 

This interpretation of "forcibly" where all it takes is opening a door will undoubtedly lead to some disturbing consequences. Not only can it lead to the legally sanctioned murder of unarmed disorientated drunks like Bo Morrison who stumble through unlocked doors, but injured or endangered persons fleeing to an unlocked residence in search of help or even wayward children or the confused Alzheimer's sufferer who never utilize any degree of violent force to enter through an unlocked door can be lawfully murdered under this disturbing interpretation of the Castle Doctrine. 

Remember the scene in Bowling for Columbine where Michael Moore checks to see if Canadians really leave their doors unlocked? Yup, the doors are unlocked and more surprising is that the homeowners seem completely un-phased to unexpectedly find a overweight American opening their front door with a camera crew on their porch. But Moore had better not try that in Wisconsin; because he's "forcibly" entering a home by opening the door, he likely could be shot under Wisconsin's Castle Doctrine. But I suppose you never know; maybe the GOP legislators who pushed the Castle Doctrine had Michael Moore in mind. 

Tuesday, January 03, 2012

Why It's a Problem that Justice Michael Gableman Didn't Pay His Attorneys.

Wisconsin’s ethically-challenged, right-wing, and corporate-backed Supreme Court Justice Michael Gaeleman has found himself in a new ethical quagmire as a result of, ironically, his actions in an earlier ethical investigation. At the center of the new ethics investigation is the fact that Gableman entered into a unique fee agreement with the high-priced Republican connected law firm, Michael Best & Friedrich, that represented him in the prior ethics investigation, whereby under no circumstances would he ever have to pay for the services the law firm rendered. After receiving tens of thousands of dollars in free legal services, Gablemen never disclosed the arrangement and continued to sit on cases where the law firm appeared before the high court where he often provided a decisive vote in favor of the firm’s clients.

Although Gableman and the law firm now seek to defend the odd arrangement as merely a “contingency fee” agreement, in reality, the arrangement had few of the characteristics of a traditional contingency fee arrangement.

A contingency fee is one whereby the fee charged depends upon the result obtained. The most common is the “No fee unless you win” tagline repeated by personal injury attorneys. Rather than charging a flat or hourly fee, the attorney is entitled to a portion of any recovery, often 30%. So if a person is injured in a car accident and has $10,000.00 in car damage, $25,000.00 in medical bills, and $5,000.00 in lost wages and therefore recovered $40,000.00 from the party responsible, the injured party walks away with only $28,000.00, while the attorney pockets the other $12,000.00. Both the attorney and the injured party gamble in making a contingency fee agreement. The injured party is gambling that the attorney is going to get at least 30% more than what he would have gotten on his own to make the attorney’s fee worthwhile, and the attorney is gambling that he will not only win the case (or more likely settle) quickly enough so that he does not end up having to really put in $12,000.00 worth of work.  

Although the personal injury action is the most common, in theory, a contingency fee could take a wide variety of forms. A party in a contract dispute could hire an attorney on the basis that he would receive a portion of any award or a higher hourly rate if the case was resolved by a certain deadline.

In a different category of contingency fee cases are certain cases where an attorney is entitled to fees as a matter of law. Perhaps the most common of these sorts of cases are civil rights cases where the statutes explicitly state that the court will award reasonable attorney’s fees to a prevailing plaintiff. This scheme is designed to encourage attorneys to represent persons whose civil rights have been violated, even when the dollar amount that might be attached to any injury might be small.

The agreement between Gableman and his attorneys, broadly speaking, fell into this category. In accordance with state law, if Gableman had been cleared of all wrongdoing, Gableman’s attorneys’ fees would have been paid by the state. But because Gableman was not exonerated, and instead the court deadlocked, unable to resolve the issue, his attorneys were not eligible to be paid by the state. Thus, his attorneys received nothing and Gableman got tens of thousands of dollars in legal services for free.

So why is Gableman’s arrangement any more suspicious than a contingency arrangement in some other instance where there is a fee shifting statute? The answer lies in the specific nature of Gableman’s case, Gableman’s role as a justice of the state’s highest court, and the law firm’s role regularly representing litigants before the state supreme court.

This was an ethics case where, for practical purposes, Gableman was the defendant. At stake was not merely his reputation but his career and elected office; if he lost the case, he could have been removed from the bench. His attorneys were going to be paid only if Gableman was exonerated. Thus, in accepting the odd compensation agreement, Michael Best & Friedrich were, in effect, betting that Gableman would be cleared of any ethical wrongdoing. The contingency fee agreement was essentially the law firm giving Gableman a blank check and devoting all the firm’s resources to him upon the belief that he was innocent of any wrongdoing. It is an incredibly powerful expression of loyalty to a jurist and one that a jurist is unlikely to soon forget.

It is for these reasons that it is inappropriate for Gableman to sit on cases where the law firm of Michael Best & Friedrich represents a party. Recusal is required whenever a reasonable person might question a judge’s ability to be impartial. Pay attention to that standard; it is not a standard whereby a reasonable person must believe the judge would actually be biased in favor of one side, but rather only that the circumstances would present a question of bias. The question of bias need not be answered in the affirmative before recusal is required. Recusal is required simply if it is reasonable to raise the question, and in the case of Gableman’s relationship with Michael Best & Friedrich, the question of bias is squarely raised.

In many ways, the contingency fee agreement is similar to a criminal defense attorney entering into a fee agreement with a defendant where the attorney gets paid only if the defendant is exonerated at trial. Because of the innumerable potential problems with an attorney investing such a significant personal interest in the outcome of a criminal proceeding, such contingency fee arrangements are explicitly prohibited by the rules that govern the conduct of lawyers. But Gableman’s case is even more ethically suspect because unlike the criminal defendant, there were no circumstances where Gableman was ever going to spend a dime on his legal fees. Win, lose, or draw, Gableman’s bill was zero.

In fact, the arrangement between Gableman and Michael Best & Friedrich could arguably be prohibited by the Wisconsin Supreme Court’s Rules, which govern all aspects of the legal profession. Wisconsin SCR 20:1.5(d)(2) prohibits contingency fee agreements “for representing a defendant in a criminal case or any proceeding that could result in deprivation of liberty.” In the due process context, courts have repeatedly held that interests such as the right to hold public office or the interest in government employment are liberty interests and these were all at stake in Gableman’s ethical investigation. So was the ethics investigation against Gableman a proceeding that could result in the deprivation of liberty such that the attorneys at Michael Best & Friedrich violated the Supreme Court’s ethical rules by entering into a contingency fee agreement with Gableman? Ironically, that’s a question the Wisconsin Supreme Court would ultimately be tasked with deciding.

Monday, December 19, 2011

'Tis the Season for Controversy: Understanding the Constitutional Boundaries in the Elementary School Christmas Concert

'Tis the season for controversy. And I'm not talking about the resentment that comes with being shortchanged in the office gift-exchange. It's the time of year when government and religion most frequently collide and thus tension and controversy are unavoidable.

A front-line in this battle is the elementary school "Christmas Concert," "Holiday Concert," or "Winter Concert." Simply the title attached to a gathering of children singing in the month of December can spark visceral reactions on either side of the issue. There is no neutral position in this conflict and any action or inaction is met with controversy.

Nationally, school districts have rescheduled annual concerts to January in an effort to give the students and teachers more time to prepare and to remove any reason for an association with Christmas. Locally, the Greendale School District, in what was likely more of a public relations boondoggle than actual religious hostility, came across appearing either cowardly or biased when it pulled a Hindu song from its holiday concert in response to a single parent's complaint.

On one side are those who believe that any public acknowledgement of a holiday with religious origins is a crime against the constitution while others believe that government has an obligation to recognize religion (so long as it's Christianity) at every opportunity. As unfortunately is so often the case when the public's knowledge of complex issue comes from sound bites, both sides are wrong.

Because both sides tend to rest their arguments in the First Amendment, to understand this issue it is appropriate to begin with its relevant text: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

As a result of the 14th Amendment and hundreds of years of court decisions, the impact of this clause expanded to restrain all actions (not just formal laws) of all levels of government (not just Congress). It is also important to highlight to oft-ignored term "respecting." It is because of this word that actions short of formal and explicit establishment of religion (e.g. saying that all Americans must be Protestant or requiring church attendance) but merely approaching or touching upon the establishment of religion are prohibited. Therefore, a local public school's song selections could amount to an unconstitutional action "respecting an establishment of religion." Constitutional jurisprudence likely is not included in the ordinary training of a new music teacher, yet every year, music teachers across the country are forced to tread into this veritable minefield in an effort to create a music program that will offend the fewest number of people; pedagogical aims, if present at all, are pushed to the background.

So where is the line when it comes to an action "respecting an establishment of religion" when it comes to what songs may be sung in an elementary school concert?

Answering this question depends upon a controversial and somewhat counter-intuitive premise: Christmas isn't necessarily a religious holiday. According to the Supreme Court, led in large part by the compromise-orientated and legislative jurisprudence of Justice Sandra Day O'Connor, Christmas has a secular component, and thus government acknowledgment of that secular component is acceptable.

This conclusion is based upon the determination that to many Americans, Christmas has significance entirely divorced from its religious background. There's nothing in the Bible or Christian theology about reindeer, decorated evergreens, or Santa Claus (even Santa Claus' connection to Saint Nicholas is strained). These symbols of Christmas have been coopted as part of the holiday, but have origins largely unrelated to the birth of the Christian savior (a story which itself many argue was coopted from other traditions).

Thus, although the notion might be highly offensive to devout Christians, according to the Supreme Court, celebrating Christmas by giving gifts, decorating a tree, and telling your children that an omniscient old man will invade their house in the middle of a winter night, is just something you do as an American, akin to watching fireworks in early July, overeating on the fourth Thursday in November, or watching an over-hyped football game on a Sunday in February. Although religious in origin, it has become a part of American culture, just as you don't have to be Catholic to wear green and decorate your home with clovers and leprechauns for the Feast of Saint Patrick on March 17 or wear red and exchange candy and flowers with your significant other on the Feast of Saint Valentine on February 14.

It is only because that Christmas has lost so much of its religious meaning that public Christmas trees or Christmas carols in public schools do not offend that Constitution. Ironically, the countervailing movement to demand to get "Christ back in Christmas" are actually laying the groundwork for the removal of all public acknowledgments of the holiday; if the holiday is popularly regarded as wholly religious, government has no place endorsing it.

Nonetheless, alongside the secular aspect, there remains an undeniably religious component to Christmas, and this religious aspect is reflected in much of the music of the season. This is where the line exists for elementary school music teachers and administrators. Devotional music or music that tells the religious story of Christmas is inappropriate for elementary schools. Therefore, songs like "Away in a Manger" or "Silent Night," cannot be included in a public elementary school's curriculum for this reason. However, songs that simply discuss the aspects of Christmas that have been recognized as secular, such as "Rudolph the Red-Nosed Reindeer" or "We Wish You a Merry Christmas" are appropriate. Other songs regularly characterized as "Christmas Carols," such as "Jingle Bells," "Winter Wonderland," or "Frosty the Snowman" are entirely secular and therefore clearly acceptable for even the school districts that want to stay far away from the boundaries established by the Constitution. A simple rule of thumb is, if you'd hear the song in a church service, it's probably not appropriate for an elementary school. The issue gets more complicated for older students, particularly high school students, where the courts have recognized that it might be appropriate to include overtly religious music, such as Handel's Hallelujah Chorus, because of the educational value of incorporating such monumental works into the curriculum. But simply because a song is appropriate for a high school does not mean it is appropriate for elementary school.

It is because of this distinction between overtly religious music and secular music with religious underpinnings that Greendale School District was right to exclude a Hindu song, "Raghupati Raghav Raja Ram," while still including other songs such as Feliz Navidad and Hava Nagila in its multicultural-themed winter concert. While the district has done an exceptionally poor job explaining its rationale for the decision to remove the song after a lone parent "felt offended about a religious saying in the song," and thus one can understand reactions like Greendale parent Jason Dobbs who characterized the move as "just thinly-veiled racism from the parents." However, Mr. Dobbs, who stated that he believed that "all songs that have religious overtones should be pulled," and others who share this view, fail to understand the nuances of this thorny issue. While the district administrators conceivably could have been motivated by bigotry towards the Hindu faith (but remember, the district did initially include the song, suggesting a lack of Hindu animosity, and thus, at worst, the district could be accused of cowardice for caving to a possibly bigoted parent), I suspect that the real reason the song was pulled was because upon conducting a closer review of a translation of the Hindi lyrics, the district recognized that the song was devotional and not merely cultural. The song is sung in the exercise of the Hindu faith, akin to a traditional Christian hymn, and thus inappropriate for a public elementary school. It is for this reason, not because it was in Hindi, referred to the Hindu faith, or used the word most feared by America's right-wing evangelicals, "Allah," that the song was properly pulled. "Feliz Navidad" acknowledges only the secular aspects of the Christmas holiday, akin to "We Wish You a Merry Christmas." Hava Nagila is wholly irreligious, although many Americans mistakenly believe otherwise as a consequence of the familiar misunderstanding that Jewish culture and the Hebrew language are not synonymous with the Jewish faith.

But these distinctions are not always easy to grasp and thus there is perpetual tension between those who believe any reference to Christmas (or Hanukah) is inappropriate for public schools and those who believe that Christian hymns should be included in the curriculum. It's ironic that school districts face these controversies largely as a consequence of an ill-informed public; one should regard it as the school district's responsibility to do a better job in ensuring an educated community.

Even when a school district tries to avoid controversy by excluding any reference to Christmas from its December concert, it is met with controversy on the novel theory that its ban amounts to an "establishment" of the religion of secularism. So far, this oxymoronic theory has not gained traction in courts, but that does not stop ideologues from espousing it when convenient.

A government has absolutely no obligation to acknowledge religion, and thus excluding all hints of religion from a public school music program is entirely consistent with the Constitution. The inclusion of the secular aspects of the Christmas holiday represents simply the line that government may not cross; it is entirely free to stay well away from that line by excluding all references to religion. And it is in this direction, away from the constitutional line, that school districts are well-advised to proceed.

The time has come for an end to the December music concert. While public performance of music must remain an essential part of the public elementary school curriculum for the important skills, knowledge, and experiences imparted through these activities, arbitrarily requiring the concert to be in December and based upon a holiday theme unnecessarily curtails the educational value of these events. Music teachers must be given the flexibility to choose songs best suited to the pedagogical needs of his or her students. Music class is an opportunity for students to learn about the nation's and the world's rich cultural history expressed through music, as well as the technical aspects of reading, writing, and performing this art form. Forcing teachers to try to accomplish these goals through the limited holiday music catalog effectively ties a hand behind their backs. For the parents who believe that it's not Christmas without hearing their child lisp his way through "All I Want for Christmas Is My Two Front Teeth," there are plenty of other opportunities for that outside of school. Treating the music curriculum as merely cutesy entertainment for parents diminishes this important and under-appreciated subject. 

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 Individual Mandate: As Old as the Nation Itself

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

Justice David Prosser: Not a Criminal but More Troubled Than Thought

When a victim has finally had enough of a bully's harassment and decides to stand up, sparks tend to fly. According to the consensus of the statements made by Wisconsin's Supreme Court Justices, Justice David Prosser is a bully whose aggressive and irrational behavior is becoming more troubling. And Justice Ann Walsh Bradley is a frequent victim of his bullying who finally had enough of his misbehavior. The result was a confrontation that led to police investigating Prosser for possible criminal charges and marked a new low for the already troubled court.

As is now becoming clearer, Prosser has a long disturbing history of threatening and harassing his colleagues on the state's highest court. His conduct has gotten so out of control that his colleagues have described feeling intimidated and being forced to "walk on eggshells" because they never know when he's going to explode with anger. His colleagues have described him as becoming increasingly "unstable" and "paranoid."

The court's culture of secrecy, where court staff and the justices themselves adhere to an informal pact to never discuss what happens in chambers has led to a situation where the public knows very little about these elected officials.* But as is made clear from the police reports released today, big business and conservative extremists just bought an emotionally unstable man a seat on the bench where he'll decide the most important issues affecting the state for the next 10 years.

Prosser's disturbing conduct came to the fore when the legislature's Republicans publicly demanded that the court issue a decision related to the highly-charged collective bargaining issue on a timetable set by the legislature's leadership. Prosser, as a former Republican legislator, naturally wanted to please his fellow partisans. Prosser felt so strongly that he and his fellow Republican ideologues confronted the justices in the minority to demand that the court issue an order prematurely so as to appease the public demands of Governor Walker's extremist patsies.

When amidst trying to bully his colleagues Prosser personally insulted the court's Chief Justice, something Prosser has done frequently in the past, this was the final straw for Bradley. She literally rose to the defense of the Chief, standing up from where she was seated behind her desk, and ordered Prosser out of her office. Naturally, in the six different versions of events offered, the fact differ somewhat. But there does seem to be a general consensus:

After Prosser said he had no faith in the Chief Justice's leadership as a result of her refusal to issue a decision on the timeline demanded by Republican legislators, Bradley became upset and came from behind her desk toward Prosser at a pace that was faster than an ordinary stroll. As she approached, she looked him directly in the eye and raised her right arm, pointing towards her office door, instructing him to leave her office. In pointing to the door behind Prosser, her hand was outstretched and at a height of roughly Prosser's face. She likely had her fingers wrapped around her classes and thus her hand appeared to be a fist. At the moment Bradley came within about a foot or two of Prosser, Prosser extended his arms and his thumbs made contact with the front of Bradley's throat and his fingers wrapped around her neck. He did not  squeeze Bradley's neck Immediately, Justice Pat Roggensack intervened between her two fellow justices, ending the confrontation. Prosser left with Gableman. Bradley remained extremely distraught over the incident in the days following.

Having read the reports, I can agree with special prosecutor, Sauk County District Attorney Patricia Barrett, that criminal charges were not warranted against Prosser. But that is certainly not to say that Prosser was "cleared" as he promised he would be. Prosser most definitely behaved inappropriately in this instance and in the many other instances detailed by numerous justices in their statements to police.

But what is also very troubling are the lengths that the court's most junior justices, hardened conservative cronies who have each suffered their own well-publicized ethical lapses, will go to shield the disturbing behavior of their fellow conservative.

Justice Annette Ziegler claims she did not see the relevant events, despite the fact she was standing just to the right of Prosser in the relatively small office. But despite stating that she did not see anything, she nonetheless told investigators, "I know he didn't choke her." One would think a seasoned jurist would recognize the inappropriateness of such a statement. This sort of absurd comment would have been quickly met with, "Objection! Foundation. The witness said she didn't see anything. Ask the response be stricken and the jury instructed to disregard," if uttered in court.

Justice Michael Gableman went out of his way to claim that Prosser never raised his voice and instead spoke in a calm and matter-of-fact tone. The only problem is that Prosser himself admitted raising his voice. In fact, investigators noted Prosser raised his voice even during their interview of him, something that hopefully the public will be able to hear for themselves seeing as the interview with Prosser was audio-recorded and should be considered a public record now that the investigation is closed.

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. 

Moreover, while nearly all justices made some sort of written personal record of their recollection of the incident soon afterward, Gableman and Ziegler alone refused to provide all of their notes to police. If a suspect in a case that came before the court had refused to turn over certain documents to investigators, do you think these judges would suspect that whatever was contained in these documents was not helpful to that person's position?

Even for those who might agree with or appreciate Prosser's hyper-partisan political loyalty, it should nonetheless be plainly apparent that Prosser is an extremely troubled man whose ability to competently serve the people of Wisconsin is greatly suspect. If he refuses to seek help for his anger issues, then after Scott Walker, Prosser must be next on the recall target list.


* Judicial secrecy is not necessarily a bad thing; it fosters sound and independent decision-making. But when justices forswear that independence and choose to utilize partisan political interests rather than blind justice to decide cases, the need for secrecy is diminished and the public has an interest in knowing the role of improper influences in a judge's decision-making.