The Wisconsin Supreme Court Quietly Rewrote the Legal Standard Governing Stays Pending Appeal, Leaving Circuit Courts Effectively Powerless to Enjoin Unconstitutional Statutes By Jeffrey A. Mandell
When a Wisconsin court deems a state statute unconstitutional, it enjoins the government from enforcing the statute. Even if the court makes that determination in the form of a temporary injunction, before full consideration of the merits or issuance of a final judgment, the government has an immediate right to appellate review. In such cases, the government frequently asks that the injunction be stayed—that is, prevented from taking effect—pending resolution of the appeal.
Sexual Misconduct, Employment References, and Hiring in Higher Education: Is it Time for the Duty or Care to Evolve? By Neal Schlavensky
In March 2016, the University of South Florida (USF) received striking news. A current professor, Samuel Bradley, was under investigation for allegations of sexual misconduct2 with former students at the university where he had previously worked. Bradley had resigned during the investigation and USF failed to discover any of this information during the hiring process. When USF became aware of the allegations, which had been disclosed by news media, the university placed Bradley on administrative review and eventually terminated him.
Closer To The People Is Better: A Response To Professor Miriam Seifter’s Article Further From The People
Closer to the People Is Better: A Response to Professor Miriam Seifter’s Article Further From The People Daniel R. Suhr* PDFINTRODUCTIONUniversity of Wisconsin Law Professor Miriam Seifter believes “state agencies are, on the whole, less transparent than their federal counterparts, less closely followed by watchdog groups, and less tracked by the shrinking state-level media.” 1 This adds […]
The Sisk-Leiter rankings of scholarly impact use a Westlaw search to determine a scholar’s citation count. However, the search does not review the citations to determine if they actually are citations to a scholar’s work rather than other hits such as blog posts (whether authored by the scholar or by another on the scholar’s eponymous blog), citations to works by others in books that the scholar edited, citations to the work of other scholars who only mention the scholar under study (such as a citation in a work to the work of a scholar that had reviewed the book of the scholar under study), media mentions, or author acknowledgements for comments not eliminated by the search term, such as those that appear in footnotes or the body of the article. I use citations to Brian Leiter’s work to show that the Sisk-Leiter Westlaw citation count is overstated by about 40% in Leiter’s case, with 398 of 557 attributed cites being to citations to Leiter’s academic work. While Leiter’s case may be more upwardly biased than others because of his popular industry blog, the fact is that media mentions, citations to the works of others in edited volumes, and citations to works that discuss the scholar under study but are not cites directly to that work have an unknown bias that cannot be assumed away easily. Moreover, by ignoring cites in judicial opinions to scholarly work, the method as applied by Sisk undervalues the impact of scholars in some fields of more practical importance and, therefore, likely the scholarly impact and ranking of faculties with strong scholars in antitrust, bankruptcy, corporate and securities law. A combination of Westlaw (with judicial citations) and Google Scholar would provide more reliable results.
In his article, Scott Cummings proposes that there existed an “old canon” concerning how to be a lawyer for progressive social justice causes, which has been replaced by a different “new canon” that envisions the role of movement lawyers quite differently. According to Cummings, old canon lawyering places courts “at the heart of the canonical stories.” New canon lawyering, on the other hand, involves using legal institutions other than courts and focuses on the intersection between law and politics. Cummings gives examples of the old and new ways of lawyering and also draws conclusions about what causes the momentum of social movements to slow. One of Cummings’ central arguments is that the critique of what he calls old canon lawyering is in many respects misplaced.
I wholeheartedly agree with Cummings’ thesis that much of the critique of the “old” way of engaging in social movement lawyering is misplaced; here I offer some additional or alternative reasons why. To sum up my argument, I do not believe there is much of a difference between old versus new perspectives on the range of appropriate strategies for social movement lawyering. Historically as today, social movement lawyers understood that sometimes courts are useful but sometimes they are not. Looking in the long view, so-called “old canon” lawyers have understood this just as “new canon” lawyers do. Instead, the most significant difference between the lawyering styles Cummings labels “old” versus “new” canon involves lawyers’ heightened sensitivity to the ethical problems that arise in social movement lawyering. I briefly develop these arguments below.
- Miriam Seifter, Further from the People? The Puzzle of State Administration, 93 N.Y.U. L. Rev. 107, 110 (2018).
- Id. at 128.
- Id. at 109.
- Id. at 128.
- See id. at 144–45.
- Id. at 130.
- Id. at 131.
- Id. at 132–34.
- Colin Wood et al., How Digital is Your State?, Gov’t Tech. (Sept. 18, 2016), available at https://www.govtech.com/computing/Digital-States-2016.html [https://perma.cc/3XHG-FBG9].
- Id. at 131–34. In fact, the National Freedom of Information Coalition, one of the organizations that Seifter relies upon, highlights a similar scorecard by OpentheGovernment.org showing the secrecy prevalent across the federal government. See generally Patrice McDermott & Amy Bennett, Secrecy Report Card 2010, OpenTheGovernment.org (2010), https://www.openthegovernment.org/wp-content/uploads/other-files/otg/SecrecyRC_2010.pdf [ttps://perma.cc/E4DD-8FDL]. On the same page, NFIC also points to a report by another organization showing that sixty-two out of ninety-nine federal agencies had failed to comply with an administration directive to update their information transparency policies. Outdated Agency Regs Undermine Freedom of Information, The Nat’l Sec. Archive, (Dec. 4, 2012) https://nsarchive2.gwu.edu/NSAEBB/NSAEBB405/ [https://perma.cc/B9X7-G85G].
- Wis. Dep’t of Justice, Wisconsin Public Records Law Compliance Guide 2 (2015), https://www.doj.state.wi.us/sites/default/files/dls/2015-PRL-Guide.pdf [https://perma.cc/87Y3-2GT2].
- Compare Wis. Dep’t of Justice, Wisconsin Open Meetings Law Compliance Guide (2018), with General Services Administration, Secretariat James L. Dean, Public Access To Records (2000).
- Wis. Exec. Order No. 189, Wis. Admin. Reg. No. 723A3 (Mar. 11, 2016); Wis. Exec. Order No. 235, Wis. Admin. Reg. No. 735A2 (Mar. 9, 2017).
- See OpenBook Wisconsin, www.openbook.wi.gov [https://perma.cc/MX57-4U3V].
- Public Meeting Notices & Minutes, Wis. Public Meeting Notices & Minutes, publicmeetings.wi.gov [https://perma.cc/VHB7-99YE].
- Miriam Seifter, Gubernatorial Administration, 131 Harv. L. Rev. 483, 504 (2017). It has also increased gubernatorial and legislative responsibility, which is representative of a trend Seifter has documented elsewhere. See id. at 488, 503.
- 2011 Wisconsin Act 21, 100th Wis. Leg., Jan. 2011 Special Sess., https://docs.legis.wisconsin.gov/2011/related/acts/21.pdf; see also Jessica Karls-Ruplinger & Pam Shannon, Wis. Legis. Council Act Memo, 2011 Wis. Act 21: Administrative Rules (2011).
- 2017 Wisconsin Act 57, 103rd Wis. Leg., 2017 Reg. Sess.
- Wisconsin REINS Act Signed Into Law, Godfrey & Kahn, S.C. (August 10, 2017), http://www.gklaw.com/NewsUpdatesPressReleases/Wisconsin-REINS-Act-signed-into-law.htm [https://perma.cc/B4JE-5CV5].
- Eric Bott, Reining In Wisconsin’s Regulatory State, Forbes (July 31, 2017 1:50 PM), https://www.forbes.com/sites/realspin/2017/07/31/reining-in-wisconsins-regulatory-state/#9b2f16e45137 [https://perma.cc/62U4-A2T4].
- Though others would characterize them as reducing the independence of nonpartisan career agency experts and increasing political control in response to special interests. See, e.g., Kathleen Vinehout, REINS Act—New Power for Leaders to Stop Public Protections, Kathleen Vinehout People First, https://www.kathleenvinehout.org/_reins_act_new_power_for_leaders_to_stop_public_protections [https://perma.cc/G5GW-56TX].
- Seifter, supra note 1, at 116.
- Id. at 119.
- Id. at 136.
- See Miriam Seifter, Gubernatorial Administration, 131 Harv. L. Rev. 483 (2017) (documenting growth in state administration).
- Id. at 137–38 (citing Jason Webb Yackee & Susan Webb Yackee, A Bias Towards Business? Assessing Interest Group Influence on the U.S. Bureaucracy, 68 J. Pol. 128, 128 (2006)).
- Id. at 138 (indicating 86% business lobbying at state level versus 75–84% at federal level).
- Id. (referring several times to “business-oriented” lobbying).
- See, e.g., James Hohmann, The U.S. Chamber Wants To Disentangle Its Brand From The GOP And Hopes To Rebuild The Center, Wash. Post (April 25, 2019), https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2019/04/25/daily-202-the-u-s-chamber-wants-to-disentangle-its-brand-from-the-gop-and-hopes-to-rebuild-the-center/5cc08e551ad2e52459e24671/?utm_term=.eb2e0243c083 [https://perma.cc/TDB3-P7CL] (reporting on a disagreement between the Koch network and the U.S. Chamber of Commerce over infrastructure policy).
- See Laurel White, Medical Society, Business Group Clash Over Proposed Workers’ Compensation Changes, Wis. Public Radio (Oct. 3, 2017) https://www.wpr.org/medical-society-business-group-clash-over-proposed-workers-compensation-changes [https://perma.cc/66WB-SFBB]; Without Government Fee Schedule, Work Comp Rates Drop 8.46%, Wis. Hospital Ass’n (Oct. 2, 2017) https://www.wha.org/WisconsinHospitalAssociation/media/WHANewsLetters/2017PDF/nr10-2-17workerscomp.pdf [https://perma.cc/YN6Y-BCFD] (joint press release by Wisconsin Hospital Association, Wisconsin Chiropractic Association, Wisconsin Medical Society and the Wisconsin Physical Therapy Association); WMC Launches Coalition of 46 Employer Associations to Support Worker’s Compensation Medical Cost Containment, Wis. Mnfgs. & Commerce, (Sept. 27, 2017) https://www.wmc.org/news/press-releases/wmc-launches-coalition-of-46-employer-associations-to-support-workers-compensation-medical-cost-containment/ [https://perma.cc/U5YS-EY6L].
- 2015 Assembly Bill 874, Wis. Ethics Comm’n: Eye on Lobbying, https://lobbying.wi.gov/What/BillInformation/2015REG/Information/13373; 2015 Senate Bill 239, Wis. Ethics Comm’n: Eye on Lobbying https://lobbying.wi.gov/What/BillInformation/2015REG/Information/12244 [https://perma.cc/VX6Q-EW6Y].
- See, e.g., Justin Kendall, Wisconsin Brewers, Wholesalers At Odds Over Proposed Changes to Alcohol Laws, Brewbound (June 7, 2017), https://www.brewbound.com/news/wisconsin-brewers-wholesalers-odds-proposed-changes-alcohol-laws [https://perma.cc/573D-XVQE].
- Jessie Opioen, Wisconsin Fire Officials Ask Gov. Walker to Adopt Proposed Safety Measures, Capital Times (Feb. 13, 2017), https://madison.com/ct/news/local/govt-and-politics/election-matters/wisconsin-fire-officials-ask-gov-walker-to-adopt-proposed-safety/article_778adbba-cffd-5e5f-870d-2496454aaa91.html [https://perma.cc/5VYZ-MGF3].
- Seifter, supra note 1, at 166–68.
- See, e.g., Jenni Bergal, A License To Braid Hair? Critics Say State Licensing Rules Have Gone Too Far, Pew: Stateline (Jan. 30, 2015) https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2015/1/30/a-license-to-braid-hair-critics-say-state-licensing-rules-have-gone-too-far [https://perma.cc/35AW-25BJ].
- Josh Bivens, et al., How Today’s Unions Help Working People, Economic Policy Institute (Aug. 24, 2017), available at https://www.epi.org/publication/how-todays-unions-help-working-people-giving-workers-the-power-to-improve-their-jobs-and-unrig-the-economy/ [https://perma.cc/T2VJ-JR5W].
- Worker’s Compensation Advisory Council Membership List, State of Wis. Dep’t of Workforce Development https://dwd.wisconsin.gov/wc/councils/wcac/wcacmembers.htm [https://perma.cc/GV7J-Q22C]; Unemployment Insurance Advisory Council (UIAC) Members, Wis. Dep’t of Workforce Development, https://dwd.wisconsin.gov/uibola/uiac/members/ [https://perma.cc/L4M7-MD8C].
- Wisconsin Apprenticeship Advisory Council, Wis. Dep’t of Workforce Development, https://dwd.wisconsin.gov/apprenticeship/advisory_council.htm [https://perma.cc/A6DE-DDE3]. Other examples include the Wisconsin national and community service board and the Prison Industries Board. Wis. Stat. § 15.105(24)(c)6 (reserving one seat on the Service Wisconsin board for a representative of organized labor) and Wis. Stat. 15.145(2) (reserving three seats for representatives of private labor organizations).
- See, e.g., WNA Legislative and Regulatory Update April 13, 2018, Wis. Nurses Ass’n (April 13, 2018), available at https://wisconsinnurse.wpengine.com/wp-content/uploads/2018/04/WNA-Legislative-and-Regulatory-Update-April-1.pdf. (discussing nurses’ union engagement with Wisconsin Nursing Board over proposed rules).
- See, e.g., Wisconsin Ass’n of State Prosecutors v. Wisconsin Employment Relations Commission, 907 N.W.2d 425, 428 (two public employee unions file challenges to administrative rules and administrative actions of a state agency).
- Sometimes this is as an appointee like Mount Mary University Professor Tammy Scheidegger, Chair of the Joint Board for Marriage and Family Therapy, Professional Counseling, and Social Work, Bruce Vielmetti, The Wisconsin Senate Approved 82 Scott Walker Appointees in the Lame Duck: Here’s the Full List, Milwaukee J. Sentinel, Dec. 5, 2018, available at https://www.jsonline.com/story/news/politics/2018/12/05/lame-duck-session-81-walker-appointees-senate-approved/2214006002/ [https://perma.cc/85MZ-SLDY], and other times this is by law. E.g., Wis. Supreme Court Rule 30.01(1) (designating seats for faculty of the state’s law schools on the Board of Bar Examiners).
- Joanne M. Haas, WDNR Wardens, State Patrol & University of Wisconsin Train Together to Assess Drone’s Role in Investigations, Wis. Dept. of Natural Resources (Dec. 6, 2017), https://dnr.wi.gov/topic/WardenWire/WardenWire_Lookup.asp?id=470.
- Hope Kirwan, Environmental Law Experts Weigh In On DNR Lawsuit Over CAFO Permits, Wis. Public Radio (Aug. 7, 2017), https://www.wpr.org/environmental-law-experts-weigh-dnr-lawsuit-over-cafo-permits [https://perma.cc/Z33A-7562].
- Paul Kent & Tamara Dudiak, Wisconsin Water Law: A Guide to Water Rights and Regulations (2d ed. 2001).
- See Clinical Programs, UW L. Sch., https://law.wisc.edu/clinics/ (listing clinics that may intersect with state administrative law issues such as the Center for Patient Partnerships, Consumer Law Clinic, Government and Legislative Clinic, and Neighborhood Law Clinic).
- See, e.g., Scott Gordon, Not All ‘Waters Of The State’ Are Alike In Wisconsin Law: High-Capacity Wells Lawsuits Hinge On Distinctions Between Surface and Groundwater, WisContext (Oct. 25, 2017), https://www.wiscontext.org/not-all-waters-state-are-alike-wisconsin-law [https://perma.cc/AS3Z-TQT8] (quoting a UW Law Professor who is a board member of an environmental group that filed an amicus brief in a regulatory case).
- See The Wisconsin Idea, U. Wisconsin-Madison, https://www.wisc.edu/wisconsin-idea/ [https://perma.cc/GFX9-8294] (“[UW President Charles Van Hise] also took advantage of his friendship with Governor Robert M. La Follette, a former classmate at the university, to help forge closer ties between the university and state government; during the early part of the 20th century, faculty experts consulted with legislators to help draft many influential and groundbreaking laws, including the nation’s first workers’ compensation legislation, tax reforms and the public regulation of utilities.”).
- See Seifter, supra note 1, at 110, 119 (mentioning state agencies’ “complex relationships with local governments” and listing “groups . . . representing levels of government” as part of civil society).
- Wis. Counties Assn. (#4), City of Milwaukee (#7), Wis. Assn. of School Boards (#9), League of Wis. Municipalities (#10), Wis. Assn. of School Business Officials (#11), Wis. Assn. of Towns (#12), Wis. Council for Administrators of Special Services (#13), Wis. Assn. of School Administrators (#14), Wis. Assn. of School Personnel Administrators (#15), Wis. Assn. of School District Administrators (#16), Outagamie County (#18), Milwaukee Public Schools (#23), and Milwaukee County (#24). The other three came in at numbers 26, 27, and 28: Wis. Restaurant Assn., Wis. Bankers Assn., and Wis. State AFL-CIO. , 2015 Regular Session: Total Lobbying Expenditures, Wis. Ethics Comm’n (sorted by total hours), https://lobbying.wi.gov/Reports/Report.aspx?ReportPath=/GAB/Lobbying/Public&ReportName=TotalLobbyingExpenditures&SessionID=2015REG&SortField=TotalHours&OutputFormat=PDF [https://perma.cc/G2G4-27FT].
- Wis. Const. art. XI, § 3(1).
- See, e.g., Adams v. State Livestock Facilities Siting Review Bd., 820 N.W.2d 404 (Wis. 2012) (deciding a case based on a town’s defense of its zoning ordinance on home-rule grounds).
- See 2015 Regular Session: Total Lobbying Expenditures, Wis. Ethics Comm’n, available at https://lobbying.wi.gov/Reports/Report.aspx?ReportPath=/GAB/Lobbying/Public&ReportName=TotalLobbyingExpenditures&SessionID=2015REG&SortField=TotalHours&OutputFormat=PDF [https://perma.cc/J2WK-Y7Y4]. Environmental: Wis. League of Conservation Voters, Wis. Wildlife Federation, Clean Wis., Rivers Alliance of Wis., Wis. Assn. of Lakes Inc., The Nature Conservancy, Gathering Waters: Wis. Alliance for Land Trusts, General public interest: AARP, Citizen Action of Wis., Legal Action of Wis., Wis. Community Action Program Association, Common Cause in Wis., Wis. Democracy Campaign, Wis. Council on Children and Families.).
- WLCV (#17), WFBF (#21).
- Charles S. Bullock, III and Karen Padgett, Partisan Change and Consequences for Lobbying: Two-Party Government Comes to the Georgia Legislature, 39 State & Local Gov’t Rev. 61 (2007) (tracking how lobbying expenditures fluctuate based on the party in power).
- Matea Gold, Wealthy Donors on Left Launch New Plan to Wrest Back Control in the States, Wash. Post (April 12, 2015) https://www.washingtonpost.com/politics/wealthy-donors-on-left-launch-new-plan-to-wrest-back-control-in-the-states/2015/04/12/ccd2f5ee-dfd3-11e4-a1b8-2ed88bc190d2_story.html; see also Andy Kroll, This Is the Left’s Confidential $100 Million Plan to Win Back the States, Mother Jones (Nov. 14, 2014) https://www.motherjones.com/politics/2014/11/committee-on-states-democracy-alliance-redistricting-2020/ [https://perma.cc/BF8Q-VQFB].
- Seifter, supra note 1, at 141.
- Margaret Sullivan, Washington-Based Regional Journalism Is Crucial. It’s Also In Serious Trouble, Wash. Post (March 14, 2019), https://www.washingtonpost.com/lifestyle/style/washington-based-regional-journalism-is-crucial-its-also-in-serious-trouble/2019/03/14/431c65be-45a6-11e9-8aab-95b8d80a1e4f_story.html?utm_term=.f656ccf5e89f [https://perma.cc/B22J-CLE5].
- See Seifter, supra note 1, at 141–42.
- See id. at 133.
- Meet Tony, Tony Evers, https://tonyevers.com/meet-tony/ [https://perma.cc/G5AN-X958].
- Matt Defour, DPI Hasn’t Revoked Teacher’s License In 1 Out Of 5 Immoral Conduct Cases, Wis. State J. (Aug. 24, 2018), https://madison.com/wsj/news/local/govt-and-politics/dpi-hasn-t-revoked-teacher-s-license-in-out-of/article_3dff3633-42c8-580b-894d-d546c7e0aab4.html [https://perma.cc/G4U4-CBGR] (reporting on research disclosures and advertising by the Republican Party of Wisconsin); Laurel White, Walker Campaign Doubles Down, Attacks Evers On Teacher License Case: Governor’s Campaign Launches Its First Attack Ad of Election Cycle, Wis. Public Radio (Sept. 5, 2018) https://www.wpr.org/walker-campaign-doubles-down-attacks-evers-teacher-license-case [https://perma.cc/5LMR-7TLC] (reporting on TV ad by opponent’s campaign).
- Dan Bice, Four Pedophile Ex-Priests Had Their Professional Licenses Granted Under Gov. Scott Walker’s Administration, Milwaukee J. Sentinel (Nov. 2, 2018), https://www.jsonline.com/story/news/investigations/daniel-bice/2018/11/02/four-defrocked-priests-had-professional-licenses-renewed-awarded-under-walker/1856197002/ [https://perma.cc/VXZ9-W6EZ].
- Jessie Opioen, Republican Leaders Say Tony Evers Didn’t Take Lead On Bill To Punish Problem Teachers, Capital Times (Sept. 5, 2018), https://madison.com/ct/news/local/govt-and-politics/election-matters/republican-leaders-say-tony-evers-didn-t-take-lead-on/article_d7f42689-38fd-5834-9fdc-ee9fcb484028.html [https://perma.cc/VZP4-JDNG];Scott Walker Gave Pedophile Ex-Priests Professional Licenses: Breach in Public Safety Overseen By Scott Walker Puts Sex Predators In Positions Where They Could Strike Again, One Wis. Now (Nov. 2, 2018), https://onewisconsinnow.org/press/scott-walker-gave-pedophile-ex-priests-professional-licenses/.
- Seifter, supra note 1, at 144–45.
- See “Separation Of Powers—Legislative Oversight,” Nat. Conf. of State Legis., http://www.ncsl.org/research/about-state-legislatures/separation-of-powers-legislative-oversight.aspx [https://perma.cc/TV2E-JMVC].
- Robert D. Boerner, Nat’l Conference of State Legislatures Legisbrief, Legislative Oversight in the States (2005).
- See Oversight and Insight: Legislative Review of Agencies and Lessons from the States, 121 Harv. L. Rev. 613, 623–24 (2017); see generally SBA Office Of Advocacy, Research on State Regulatory Flexibility Acts, Microeconomic Applications, Inc., For The Small Business Administration, (2013).
- Wis. Stat. § 227.26(2)(d) (2017–18).
- Id. § 227.26(3).
- Id. § 227.26(2)(b).
- Id. § 227.137(4m).
- Danielle Kaeding, Rules Committee Scraps Provision Restricting Movement Of Harvested Deer: Committee Votes To Keep Additional Deer Farm Fencing Requirement, Wis. Public Radio (Oct. 1, 2017), https://www.wpr.org/rules-committee-scraps-provision-restricting-movement-harvested-deer [https://perma.cc/EGS9-FN3F].
- Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue,914 N.W.2d 21 (Wis. 2018).
- Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).
- Auer v. Robbins, 519 U.S. 452 (1997).
- See Daniel R. Suhr, Interpreting Wisconsin Administrative Law (2017), available at https://ssrn.com/abstract=3025085.
- Tetra Tech, 914 N.W.2d 21; Wis. Bell, Inc. v. Labor & Indus. Review Comm’n, 914 N.W.2d 1 (Wis. 2018); Dep’t of Workforce Dev. v. Labor & Indus. Review Comm’n, 914 N.W.2d 625 (Wis. 2018).
- See Chicago, B. & Q. Ry. Co. v. Illinois, 200 U.S. 561, 592 (1906) (“[T]he police power of a state embraces regulations designed to promote the public convenience or the general prosperity, as well as regulations designed to promote the public health, the public morals, or the public safety.”).
- Seifter, supra note 1, at 174.