When the Girlfriend Consents Too Much

Usually it is a good thing when your girlfriend consents. But there are exceptions. One of those exceptions is when the girlfriend consents to a search of your house and computer after she's called the cops because she found child pornography on your computer.

That was the situation under review by the Wisconsin Supreme Court in State v. Sobczak. The specific issue was whether the defendant's girlfriend of three months had authority to consent to the warrantless search of the defendant's computer. She had been using the computer, apparently with the defendant's consent, while she was staying the weekend at his parents' house. But when the defendant went off to work, she went clicking around, found videos of child pornography, and called the cops. I think they broke up.

The court found that the girlfriend did possess the necessary authority to consent to the search. Professor Orin Kerr thinks this is the right result:

[O]vernight guests have a “measure of control of the premises” when “the host is away.” Although this passage is hardly free from ambiguity — a “measure of control” isn’t clear about how much of a measure it confers — I would think that the most basic measure of “control” of a house is the ability to invite someone to enter the common areas of the home. If I’m right about that, Podella was exercising that right by allowing the officer to enter the common area of the home when Sobczak was away. Granted, she did so in one of those “unlikely” circumstances in which the guest found evidence of the homeowner’s crime, and the homeowner would not want the guest to invite in the cops. Olson indicates that if the homeowner is present and objects, the homeowner’s veto controls. But the homeowner was not present to object in this case, so I don’t think that conflict of interest matters.

Chief Justice Abrahamson dissented. One of her disagreements with the majority was that it relied on the characterization of the houseguest as the defendant's "girlfriend," and the evidence didn't necessarily support the conclusion that they were so initimately involved. Instead, the record was that they met online, had been dating for three months, and that she'd accepted his invitation to spend the weekend at his parents' house while they were away. Then, in an apparent swipe at the majority, the Chief Justice says,

The majority apparently assumes that a 22-year-old man is having a romantic, intimate relationship with a 20-year-old woman whom he invites over for the weekend while his parents are away.

What do you think, Mr. Gillette: did the majority make a reasonable inference?

On Wisconsin

In case you thought that the Wisconsin Supreme Court is functioning better, Justice Bradley issued this order to let you know you are wrong.  Our previous coverage of the Wisconsin Supremes is here.    It is an interesting summary of events regarding Justice Bradley and Justice Prosser. 

The other shoe drops

Back in February, Mr. Torvik posted about how the Seventh Circuit disbarred Milwaukee, Wisconsin criminal defense attorney Bridget Boyle.  The Wisconsin Supreme Court suspended Ms. Boyle's law license for 60 days, effective June 27, 2012.  Ms. Boyle also had to pay at $5,000 fine.  The order is here.  One might think tht the suspension is related to the disbarrment.  Surprisingly, however, the case that prompted the Seventh Circuit to disbar Ms. Boyle is not part of the events that led the Wisconsin Supreme Court to suspend Ms. Boyle's law license.  Of course, because this is the Wisconsin Supreme Court, two justices dissent. Athough they dissent because they think the penalty is not sufficient so maybe we are ok with that.

Roggensack recuses

Justice Patience Roggensack has recused herself from the disciplinary proceedings against Justice Prosser. From the decision:

¶29  I have thoroughly researched what the law requires of me upon receipt of Justice Prosser's motion, and I conclude that I am disqualified by law from participating in the above-captioned proceeding.  In particular, I conclude that I have no choice but to disqualify myself due to the legislative mandate of Wis. Stat. § 757.19(2)(b), which requires self-disqualification when a justice is a material witness in a matter pending before the supreme court. 

¶30  Further, even though I am the first justice to respond to a motion to disqualify in this proceeding, I have investigated the common law doctrine known as the Rule of Necessity.  The Rule of Necessity provides that there are certain circumstances wherein a justice, who is otherwise disqualified because of a personal interest in the outcome of the proceeding, may participate.  However, when the disqualifying event is the status of the justice as a material witness in the pending proceeding, I conclude that the Rule of Necessity cannot trump the mandatory directive of the legislature.  In that circumstance, the justice is disqualified by law pursuant to Wis. Stat. § 757.19(2)(b).  Accordingly, I grant Justice Prosser's motion, and hereby disqualify myself from judicial participation in the above-captioned proceeding.

Justice Prosser has also filed motions requesting the recusal of other justices, and obviously he has recused himself. If at least two of the other justices consider themselves "material witnesses" and agree with Justice Roggensack's analysis, the Wisconsin Supreme Court will lack a quorum and be unable to hear the matter. In that case, the matter will have to be abandoned.

A litigator's nightmare

As the Proof & Hearsay blog reports, the Wisconsin Supreme Court today suspended two lawyers—Joe Sommers and and Paul Humphrey—for 30 days each. The suspensions arise out of their conduct in a single criminal case in which Humphrey was the prosecutor and Sommers was the defense attorney.

We civil litigators are used to cases getting kind of ugly, with accusations of discovery abuse and threats of sanctions thrown around with abandon. But my impression (based partly on a short stint as a city prosecutor) was that things were usually a little more civil (ha ha) among criminal lawyers. Apparently not.

Although each lawyer received the same punishment, their offending conduct was quite distinct.

The prosecutor, Mr. Humphrey, was alleged to have withheld evidence (some photographs) and then to have lied about it in an affidavit and in court. Mr. Humphrey denied the accusation, claiming that he did "make available" the photographs, but that Mr. Sommers did not avail himself of the opportunity to receive them.

Mr. Sommers's suspension, on the other hand, is based on outrageous in-court conduct and statements. The statements are quoted at length in the court's opinion in paragraphs 45 through 53. In essence, he leveled an accusation that the case had been "orchestrated" between the judge and the prosecutor, and, in open court, called the proceeding a "kangaroo court." He made these accusations, apparently, while yelling loudly enough that at one point nine court bailiffs ran into the courtroom assuming that some sort of altercation was occurring. Eventually, the trial judge had enough:

Can you stop, please, Joe?  Joe Sommers listen to me.  I don't think I've ever done this across the bench before.  I have read this file twice.  This is not the first time that it appears that you're an attorney that's out of control.  The record reflects that.  And it clearly does today.  Oh, it isn't going to reflect the amount of volume that you had or how totally out of control you were, that it required six, seven, eight bailiffs in here to see what was going on to protect the dignity of the Court which diminished entirely with your outrageous demeanor.  

. . .  

I understand passion.  I've seen many of the defense attorneys that are sitting here passionate -- passionate about what they do.  They don't react in the manner that you just did.  They don't -- They tend to let go.  They tend to make their case.  They tend to make their motion, and if they lose it, they know there's an appellate route.  There is a way to get someone to review this.   

I seriously question whether you've got yourself together, Joe Sommers.  I'm sorry.  But you are not in control.  I am very fearful of going forward with a jury, it's almost a certain mistrial.  It is almost impossible to get you to stop talking, and there was no stopping you minutes ago when all those bailiffs -- there was no stopping you, nothing I said or could have done.  

. . .  

And I'm trying very hard, very hard to be fair under what I consider extraordinarily difficult proceedings today.  Very difficult.   

I -- I'm just amazed at how out of control you have become.  And today kind of the last nail in the coffin, so to speak, is when you tie me into the conspiracy.  And you said oh, no, it's not quite a conspiracy, you have a good record, Judge, for all these years, but this morning there was an orchestration with these people here . . .

Of course, it wouldn't be a Wisconsin Supreme Court opinion without childish sniping between the justices. Yes, even in disciplinary cases decided in per curiam opinions. The impetus for the infighting this time is Justice Prosser's dissent in the Humphrey case, in which he argues that the suspension is an inappropriate penalty for what he terms "semantic disputes" and that a public reprimand would be more appropriate. He also objects to imposing the full costs of the proceeding against Mr. Humphrey.

But he goes further, stating that the circumstance of the case—particularly that it was tied to the case against Mr. Sommers, even though the disciplinary matters were fully discrete—were "irregular" and "seriously undermine the confidence in the in the lawyer regulation system." Among his specific complaints is that Humphrey was left "twisting in the wind" for three-and-a-half years while the Supreme Court decided the Sommers case. The underlying conduct occurred in 2004; oral argument at the Supreme Court was in 2008. The opinion came down today.

To Chief Justice Abrahamson, Prosser's dissent is full of "storm and fury and nasty insinuations about the court's actions." She admits that the case "took too long" but caustically rebuts Prosser's assertion that there was anything in the case amounting to an "irregularity" that could call into question the legitimacy of the lawyer regulation system.

On the face of it, giving both Sommers and Humphrey the same 30-day suspension seems to approach an abdication of judgment, given that Sommers's in-court comments are among the most outrageous open-court accusations I've ever heard leveled against a judge by a member of the bar. But that's debateable, I guess. What is not debateable, I think, is that the delays in this case—eight years in total, three-and-a-half years between oral argument and opinions—amount to a miscarriage of justice. Even after the Sommers case was argued in 2010, it took the Supreme Court 16 months to issue these opinions. That is just ridiculous. The Wisconsin Supreme Court has to get its act together.

It never ends at the Wisconsin Supreme Court

Back in August, Mr. Torvik and I each reported on the fact that a special prosecutor investigating the melee between Wisconsin Supreme Court justices David Prosser and Ann Walsh Bradley decided that no criminal charges will be filed. At the time I wrote "One would hope that this decision would allow the justices on the court to stop regularly embarrassing itself."  I was apparently wrong.

As the Wisconsin Center for Investigative Journalism reported on Friday. the Wisconsin Judicial Commission today filed a complaint against state Supreme Court Justice David Prosser over that incident as well as Justice Prosser calling Chief Justice Shirley Abrahamson a "total bitch."  The complaint is here. 

Interestingly, according to paragraph 13 of the Complaint, Justice Prosser essentially admitted that he touched Justice Bradley's neck. However, Justice Prosser denies that he intended to touch Justice Bradley's neck.  Justice Prosser says his actions were a "total reflex."  Justice Prosser has previously admitted that he called Chief Justice Abraham the name in question.  Since the Wisconsin Supreme Court is the court that hears these complaints, I guess Justice Prosser's coworkers will decide if he is right.

I will let Mr. Torvik inform us whether Justice Prosser's actions actually violate Wisconsin's code of judicial conduct or whether the commission is not, to quote Justice Prosser, "interested in discerning the truth.  It [the commission] has been committed to making a political statement."  I will just stick to pointing out that Justice Prosser's use of phrases like "total reflex" and "total bitch" make it seem like Wisconsin has somehow ended up with a supreme court justice that talks like someone in a mid-90s stoner comedy.

"I think it would be better if I didn’t speak."

The Wisconsin Supreme Court has decided to stop holding its meetings about administrative matters in public. The title of this post was Justice Prosser's only comment during the discussion.

I confess the idea of court administrative meetings in public seems nuts to me. But given the shenanigans on that particular court, I'm not sure now is the best time for a change.

Lawyers make big money from Menards

Devoted follower(s) of the Blog may recall my post on the Wisconsin Supreme Court's decision in Sands v. Menard, Inc.

In short, Dawn Sands became the general counsel of the Menards chain of home-improvement stores, but continued to be paid a measly $56,000 per year (though the previous, and male, GC got about twice that much). Eventually she sued under the Equal Pay Act, etc., and won an arbitration. The arbitration ordered not only back pay, but also reinstatement to her position as the company's chief lawyer.

Eventually the case went to the Wisconsin Supreme Court, which vacated the reinstatement portion of the arbitration award on the theory that it was against public policy to force a company to hire a lawyer it hates. (This raises the question of whether a company can hate, and more importantly the question of who the corporate attorney's client is—but see the previous post for my thoughts on that.)

That old post is one of my favorites because it presaged the blog's coming fixation with the turmoil on the Wisconsin Supreme Court. I stand by my original opinion that the dissent made a good argument in 25 pages that would have been better made in a single paragraph, and that the remaining 24 pages only showed how ridiculous and petty the infighting on that court had already become. Subsequents events have, ahem, proved my point quite satisfactorily.

Anyhow, in lieu of reinstatement, the Court ordered the lower courts to make an award of front pay. As I noted recently in an update at the end of the original post, the circuit court eventually awarded about $600,000 in front pay and additional $600,000 or so in attorney's fees. Not a bad payday for the plaintiff, in addition to her $1.2mm in damages from the arbitration. And so the case finally came to a close.

Not so fast!

Menards has appealed!*

We bloggers can only hope the case gets back up to the Wisconsin Supreme Court.

*UPDATE: I should note that it may be that it is actually Sands who filed the latest appeal. She is indeed listed as the appellant, although Menards is listed as a cross-appellant. So apparently nobody was satisfied with the $1.2mm award.

FUTHER UPDATE (5.11.2013): On March 26, 2013, the Wisconsin court of appeals reversed the district court's decision. Essentially, the Court found that the circuit court judge should have considered whether to hold an evidentiary hearing on the front pay issues. So the case has been remanded for the court to reconsider that issue.

David Prosser goes on the 30-day DL

As I reported shortly after he won reelection to the Wisconsin Supreme Court, David Prosser is old.  At the time, I predicted that he'd retire well before his ten-year term ended. Time will tell whether that prediction comes true, but early indications are support it.  We're just three months into his new term, and Prosser is already taking a health-related leave of absence.

UPDATE:

Justice Prosser is dealing with a nasty bout of diverticulitis.  Hopefully he gets well soon.

No charges in Prosser v. Bradley; Abrahamson proposes to make court conferences public

UPDATE: Mr. Gillette scooped me on this.  See the next post below for his remarks.

The special prosecutor appointed to investigate the Bradley v. Prosser fracas has decided not to press any charges.  (Amusingly, this story appears in the "Crime & Courts" section of the madison.com website. It is hard to think of a more appropriate section name.)

The Wisconsin State Journal has received and posted all the police reports and interview summaries (including accounts from all six of the justices who were present for the incident).

Unsurprisingly, the accounts differ.  I haven't yet read them in detail, but summaries are available here and here.  One interesting fact: the accounts appear to be anonymous unanimous that the incident did not take place in Bradley's inner office.  Instead, Prosser was standing in the office of Bradley's secretary, and the incident occurred when Bradley came out of her office to confront Prosser there.

Another tidbit.  Justice Gableman says that Bradley is taller than Prosser, that she rushed him and supposedly punched the air around his face, and that the scene reminded him of this famous photo, with Justice Bradley in the role of LBJ and Prosser in the role of Senator Green:



This reminds me of something my brother overhead someone say at a restaurant once:  "LBJ would have just killed that guy."

In other but related news, Chief Justice Abrahamson has proposed to respond to the justified crisis of confidence in her court by making court conferences open to the public.  These are the meetings where the justices argue about how to vote on individual cases.  Abrahamson's notion is apparently that making the conferences public would force the justices to be on better behavior.

Mr. Gillette, I'm curious what you think about this idea.  The first word that comes to my mind is: "ridiculous."

Special prosector attempts to save Wisconsin Supreme Court from itself.

As reported by Bloomberg, the special prosecutor assigned to determine whether criminal charges should be filed as a result of the incident between Wisconsin Supreme Court justices David Prosser and Ann Walsh Bradley, has decided that no criminal charges will be filed. One would hope that this decision would allow the justices on the court to stop regularly embarrassing itself.

However, I think that hope is forlorn. While Justice Prosser didn't respond to press inquiries regarding the decision, Justice Bradley did. Her response to the press was that her focus was on "workplace safety" and that "criminal charges alone would not have addressed our safety in the workplace and the special prosecutor’s decision not to file charges does not resolve the safety issue, either.”

My translation of Justice Bradley's response is that this isn't over. My prediction is that the Wisconsin Supreme Court is going to continue to embarrass itself for the foreseeable future.

Should Prosser have recused?

The New York Times editorial board has weighed in on the dysfunction at the Wisconsin Supreme Court.  The only interesting aspect of the editorial, to me, was the Times' assertion that Justice Prosser should have recused himself from the collective bargaining case because "his vote to uphold the law occurred shortly after his re-election campaign in which he benefited from heavy anti-union independent spending."

I think this is quite wrong. Prosser's reelection became a focal point for "left-leaning" folks around the country because it was the only thing going after Wisconsin's new Republican majority pushed through the anti-public-union measures earlier this year.  In other words, people wanted to send a message to Republicans that they'd overreached, and Prosser was their sacrificial lamb. "Right-leaning" folks responded in kind, which is why "anti-union" forces contributed to his campaign.

Prosser won. But everybody knew how he was going to vote on that particular case the moment it was filed. (Leave aside for the moment that the case was pretty clear on the merits, ideology aside.)  The fact that pro-union groups turned Prosser's reelection into a proxy war over the collective bargaining bill does not make any reasonable person question his impartiality (at least not any more than they would had the proxy war never occurred).

Moreover, the idea that Prosser is somehow beholden, or even seemingly beholden, to those campaign contributors is absurd. This is not the House of Representatives, where another election is right around the corner, and raising campaign cash is a full time job. Prosser is 68-years old and was just reelected to a ten-year term. The chances of him ever needing to raise or spend another dollar of campaign funds are nil -- even if his term isn't cut short for supposedly choking Justice Bradley.

Indeed, if it were the law that Prosser had to recuse in that case, it would only increase the partisanship and gamesmanship involved in judicial elections. It would give some issue advocates a no-lose opportunity: make an issue out of an upcoming case and (assuming the other side responds) at the very least you get rid of Justice you don't like for that particular case. The other side would have a no-win.  For example, it would have presented the anti-union forces with an impossible choice -- by seeking to participate in democracy (by influencing the likelihood of Prosser's election), they would undermine the democratic result they sought to achieve (Prosser's ability to decide the question at issue).

In short, there was an election. Deal with it.

Torvik & Gillette on Prosser v. Bradley

This post introduces a new feature:  Conversations™-- in which Torvik and Gillette discuss current events with utter seriousness.

TORVIK:  Mr. Gillette, I wanted to get your take on this bizarre Wisconsin Supreme Court fracas.  More detail – or is it spin? – is emerging.  What's your gut feeling on this?

GILLETTE:  It is clearly spin.  As for what actually happened, I assume either Prosser or Bradley is lying.  It would seem one of them has engaged in behavior that is inexplicable, either lying about being attacked by a coworker or a man attacking a 60-year-old woman.  I did agree with that hack Alex Pareene that Althouse’s take on the episode/defense of Prosser is stupid.  What is your take on it?

Just another day at the office ...

... at the Wisconsin Supreme Court.

"My prediction: a sloppy majority opinion and a sarcastic dissent."

For once, one of my predictions comes true.

David Prosser is old

So it looks like David Prosser won that contentious Supreme Court election in Wisconsin and will get to serve another 10 years on the Wisconsin Supreme Court.

Or will he?  Prosser is 68-years old, an age when most people are retiring—not signing up for another ten years of work.  No doubt Prosser will show up for work in August, when his next term starts.  But will he last the whole ten years?

Doubtful.  My guess is that he will retire in a couple years so that Republican Governor Scott Walker can replace him with another Republican -- another Republican who would then run for reelection with the nearly all-powerful mantle of incumbency.  (Though who knows—Chief Justice Abrahamson was reelected at age 75 in 2009, and there are no indications that she's considering retirement.)

This is not some devious plot.  It is par for the course.  Indeed, it's how Prosser got his seat on the Court in the first place.  An open seat in a judicial election—especially for the highest court—is a very rare event.  Usually a vacancy occurs mid-term, either because a justice gets elevated to the federal bench or because a justice retires, and the vacancy is filled by an executive appointment.  

This highlights one of the weaknesses of selecting judges by election: in practice it is usually indistinguishable from a system that selects judges by executive appointment, except that the executive-appointment systems usually have some method for ratifying the the executive's choice.  Even in states with judicial elections, most judges still ascend to the bench by appointment.  Often, as in Wisconsin, these mid-term appointments are entirely within the executive's discretion—that is, the Governor gets to appoint whomever he or she chooses, and the choice does not need to be ratified by the legislature.  Then, once benchified, it is very, very rare for a judge to be defeated in an election.  In many cases, as in Wisconsin, the judicial elections are "nonpartisan," so the only information the ballot conveys to the voter is (a) the candiate's name and (b) which of the candidates is the incumbent.  Unsurprisingly, voters tend to choose the candidate who is already a judge.  The end result is a bench that is staffed by political appointees who never even had to face a ratification hearing and who then get rubber stamped by a clueless electorate.

And when the electorate doesn't rubber-stamp the executive's selection, it's often because of issues that we'd probably prefer not to intrude upon judicial elections.  The KloppenProsser election is a good example: at best, it was a proxy battle being waged over pure politics; at worst, it was an effort to affect the outcome of a particular case (the legal challenge to the collective bargaining bill, which is sure to reach the Supreme Court).  Either way, it's beneath the ideal of what a judicial election ought to be about.

What should a judicial election be about?  In my view, it should be solely about judicial philosophy.  For example, the campaign to "unretain" the three justices who joined the Iowa Supreme Court's unanimous decision overturning the state's law banning same-sex marriage was at least focused on an issue of judicial philosophy: restraint versus activism.  You can argue the merits of the issue all day long, but at least it was an argument about judging.  Unfortunately, those are not the kind of issues being argued about in the recent Wisconsin judicial elections.

The Wisconsin Supreme Court...

is in embarrassing disarray.

My opinion is that it should be disbanded so that the citizens of Wisconsin can elect some adults to the Court.  Perhaps Mr. Vander Plaats can cross the Iowa border and get a throw-the-bums-out movement cooking in Wisconsin.  (There are plenty of good Wisconsin-based pizza joints -- like Rocky Rococo's and Pizza Pit -- from which to stage the revolution.)

Big money lost by Menards

I recently came across the very interesting case of Sands v. Menard, Inc., which was decided by the Wisconsin Supreme Court in July.  It raises a number of interesting points, and one basic one:  if an in-house lawyer—particularly a corporation’s General Counsel—is fired for a discriminatory reason, can the court order reinstatement as a remedy, thereby forcing the corporation into an attorney-client relationship with an attorney not of its choosing?  In its typical 4-3 split, the Wisconsin Supreme Court said no.