My Super Id

Governor, It's called due diligence

2009-08-07T20:08:00.000-07:00

Dear Jim,

The Journal Sentinel has now reported that your senior legal adviser has resigned because she was unlicensed to practice law. That's gotta be embarrassing, how are you going to explain this one? Perhaps send a spokesman out to explain the error. You've now done that. Your spokesman has now explained that:

Jim Doyle assumed his senior legal adviser was licensed to practice law because he understood she had passed the state bar exam.

Sensenbrenner further explained:

It's not known why, if she passed the exam, her license application would have been rejected -- or if she ever even formally applied.

Actually, it's very easy Jim. Go to www.wisbar.org. See that little box on the right hand corner asking for first and last names? You were an attorney general, try it, type your name into the little box. Hey, what do you know, you're still in good standing. Congrats on getting all those CLE requirements done.

Ok now enter Chandra Miller Fienen's name into that box. Uh oh, why did this come up ... Why is there no attorney by that name in the state? Perhaps, it's because she has not been admitted to the Wisconsin State Bar?

Now, if she did pass the bar exam and is still not licensed, why might she not be admitted into the state bar? As every Wisconsin and Marquette law grad should know, you still have to pass the ethics background check. I guess in your administration ethics don't matter.

Cheers,

Super Id.

A Lawsuit that is not going anywhere and that's the point

2009-07-27T21:11:00.000-07:00

A Chicago landlord sues a tenant, Amanda Bonnet for tweeting:

"Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it's okay."

Well, is it a moldy apartment?

Since, mold is generally everywhere it will be impossible to prove the statement false. But, my interest is not the tweeting. Instead, I want to illustrate what I suspect to be a proactive defense lawyer tactic of suing first. Typically, contingency fee lawyers do not provide a defense and if our tweeter threatened suit, a preemptive strike by the landlord will makes a tenant suit more difficult. So while other commentators will inevitably claim this is a frivolous suit... I say nice move.

Cheers,

P.s. In any event, I do note that the Tweet is down.

Cheers

Private Clubs and Public Hypocrisy

2009-06-20T15:01:00.000-07:00

I personally find it amusing that Sotomayor quits women's club after GOP criticism. Why should there be GOP criticism? Any GOP criticism to Sotomayor comes from within a glass house--that can be broken by a sliced drive. Fore, the conservative National Review fully supports keeping Augusta National all male. Also, Burning Tree, a golf course in the Washington D.C. area, has an exclusive all male membership. Yet Ford, Nixon, and Bush have all played a few rounds there.

This mock criticism stuff just looks the GOP look petty and hypocritical. If there's criticism of Sotomayor, it should be on her record, and not which knitting club or golf course a justice belongs to.

cheers.

Getting Suhrly

2009-04-10T18:35:00.000-07:00

Perhaps just one question has separated me from from GOP3 commentator Daniel Suhr. Our backgrounds are similar as best as I can tell (I've never met him). We both grew up in conservative and religious families. We both attended Jesuit law schools within several years of each other, we are both eagle scouts, and we even have enough of the same LinkedIn connections that he occasionally comes up as a recommended connection.

So how did I become an atheist asshole when he became the GOP poster boy?

I asked the question "why" and wasn't afraid of its answer. You see, that question threatens to destroy one's entire being. When you ask that question you have but two options. You can either answer it within your existing framework or you can let the answer destroy your world view.

Now, I don't mean this post to be disrespectful to Dan in any way. I respect him. He is well-spoken, erudite, and intelligent. But he choose to answer the question "why" within his framework. And I let the answer destroy mine.

Take, for example, the issue of religion. Why do we accept it as "truth" that 2000 years ago someone named Jesus was crucified, died and was buried and then rose from the dead? What is our evidence, the Bible? A book written decades after the purported resurrection, yet we have direct quotes from Jesus. You know what it's called when a witness claims that someone said something? It's hearsay and it has no evidentiary value. Take the "virgin birth"--what is our evidence? Nobody that wrote about it was there. Yet people are afraid of the answer, so we refuse the answer logic dictates and respond to it with faith. Then, we hail faith as if it were a virtue. But, in reality it's just Semantics. Faith is just another term for ignorance.

Politics is no different. Conservatives adopt the views they believe conservatives should have and liberals do the same. The problem is that the views they adopt are logically inconsistent. Take Mr. Suhr, for example, whose profile states:

Daniel Suhr is an attorney in Washington, D.C. He’s a big fan of small government, judicial restraint, strong national defense, and a culture of life and virtue.

Small government. Sounds great, but how exactly is that consistent with a "strong national defense" or "a culture of life and virtue"? From Mr. Suhr's other posts we can surmise that he is pro-life and against gay marriage. Yet he wants small government. But making abortion illegal necessarily makes government bigger. The more acts that are illegal, the more powerful government becomes. Yet it is small government Dan wants to determine the definition of marriage. Dan's views are conservative, they are also but they are also inconsistent. Perhaps he is afraid to ask the question--"why"?

RYAN IS RIGHT

2009-02-19T19:19:00.000-08:00

Rep. Paul Ryan was interviewed after the fall elections. He hit the nail on the head:

We have too many politicians afraid of embracing change and big ideas in our own party. What matters most is not whether we can come up with great sound bites or have soothing rhetoric. What matters is that we come up with the best ideas, based upon our principles that solve our problems.

So what are the Wisconsin Republican’s big ideas? Here’s the platform from the Republican Party of Wisconsin:

1. We believe that keeping the reference to “One Nation Under God” in the Pledge of Allegiance is very important.

That’s going to stimulate the economy, fix the budget, alleviate our energy independence? We have problems as a country, but this “big idea” ain’t fixing them.

2. We will hold true to our values and traditions that strengthen families, builds moral character and protects the innocent.

I realize that this is a verbose way of saying we’re against gay marriage and abortion. But when we're relying on traditions we’re in trouble because it means we don’t have new ideas.

3. We believe that English should be the official language of government.

Sounds like protectionism to me. Shouldn’t the party who promotes the free market welcome an open competition for the official language?

4. We believe we have an obligation to be good stewards of God's creation for future generations, and we will do so while safeguarding our property rights.

If you know what this one means let me know. Does this mean we are now the party of environmentalist or did we just want to say were god’s party?

5. We believe taxpayers should be given the option of a single rate system that will give them the convenience of filing their taxes with just a single sheet of paper.

Are we getting rid of deductions? Let’s be bold. Let’s just have a sales tax and then we won’t need the convenience of filing our taxes with a single sheet of paper.

6. We believe that The United States should only grant citizenship to those who want to embrace and defend American values and culture.

More protectionism. Nor is it a big new idea. News flash:

“In the United States political debate on immigration has flared repeatedly since the US became a nation”

7. We believe that every worker should continue to have the right to a federally supervised secret ballot election when deciding whether to organize a union.

Do we really care? Secret supervised ballot elections aren’t going to win us any votes from workers. IMO, the only reason we have taken this position is that we believe that this will take strength away from unions, which typically support the other guys. Instead, why don’t we get some ideas that win us some union votes?

8. We will defend our right to protect family and home while defending America and her allies and defeating America's enemies.

Has potential. Let’s protect family and home by not bankrupting the country chasing after America’s enemies.

9. We will demand accountability in all public institutions and at all levels of government.

Until we get back into power.

10. We will lead our state into a new era of prosperity, innovation and opportunity for all.

Great. Shouldn’t this one lead our list? I’m afraid by the time we get through the first 9, we’ll forget about this one.

11. The changes we propose in government have to occur in all 513,000 elected offices throughout the country and will start here in Wisconsin.

Oh do tell. This will requires a major change of the constitution so that the other 49 states must do what Wisconsin proposes.

We not only lost the election, we lost our ideas. And we wonder why we lost the election. We'll necessity is the mother of innovation. We are now in need.

Cheers.

From Monkey to President.

2009-02-19T17:15:00.000-08:00

Now, its Obama's turn to get the Chimp comparison. But now it becomes a racist thing sparking protests. Even the the Rev. Sharpton gets on a soap box (not that he needs much encouragement):

"I guess they thought we were chimpanzees,"

But in this mock outrage, let's remember that Bush received the same comparisons:

Perhaps its a presidential thing. Or a human thing. After all, as much as, Pat Robertson and Rev. Sharpton would like to deny it, we are all chimps--its called evolution:

So, let's just get off our soap boxes. We have much more important things to worry about.

Cheers

Rethinking Med-Mal Caps: Judicial Activism or Judicial Surrender

2009-02-14T20:51:00.000-08:00

Judge Koschnick cites the med-mal caps case as an example of Justice Abrahmson’s “judicial activism.” The case Koschnick refers to is Ferdon.

Although damage caps sound nice in theory, in practice there is little evidence that they are effective. As observed by the Street.com’s Weiss ratings:

There is no doubt that the implementation of non-economic damage caps has resulted in lower claim payouts for insurers. For caps to be considered successful, however, the lower payouts would need to translate into lower med mal premiums for medical professionals. Unfortunately, that has not been the case.

In other words, the only parties benefiting are the insurance companies. Not the doctors, not the patients seeking access to more doctors, and certainly not the individuals injured by malpractice.

In Ferdon, the Wisconsin Supreme Court held that a $350,000 cap on non-economic damages is a violation of the equal protection clause and is unconstitutional. None of the parties disputed that the cap did not apply equally. It was more detrimental to the young and more seriously injured victims. Thus, the Court concluded, as other researchers have, that there was no rational basis because the caps simply didn’t enable the stated objective. In other words, the legislature exceeded its authority in passing such a cap.

Wisconsin Courts are hardly alone in making such a ruling: For example, Illinois appellate courts have struck down a $500,000 cap and Georgia ruled that a $350,000 cap was unconstitutional. Other courts have held that caps were constitutional.

We hear a lot about the separation of powers. Courts are accused of judicial activism when their actions encroach on the powers of the legislature. But this presents an interesting question:

Does the legislature have the power to cap damages? Or is the determination of damages inherently the role of the judiciary?

The Georgia case raises this interesting question. Judge Bessen’s opinion states:

In effect, the statute completely disregards the jury’s deliberations and findings in determining the amount of damages which, in their sole discretion, fairly compensates the plaintiff. Instead, in all cases to which it applies, the cap substitutes a predetermined amount of noneconomic damages which the legislature has deemed appropriate. Moreover, it does so arbitrarily, without any consideration of the specific facts and circumstances of the case. Equally importantly, it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law.

So when we hear a “judicial conservative” claim that striking down med-mal caps is judicial activism, perhaps we should be asking why he wants to surrender the judiciary’s power to the legislature.

Cheers.

Endorsed by Law Enforcement & The People That Kill Them

2009-02-14T15:26:00.001-08:00

Today, Ted Oswalt has endorsed Randy Koschnick for Supreme Court Justice:

"in a letter sent from prison to The Associated Press, notorious cop killer Ted Oswald endorsed Judge Randy Koschnick's candidacy for the Wisconsin Supreme Court. Oswald said Koschnick did "exceedingly productive and good work" as his defense lawyer in 1994 and 1995 and his background as a public defender would be valuable on the court."

That endorsement should resonate well with law enforcement.

Think all the fun we could have: Koschnick says Chief Justice Abrahamson favors criminal defendants but criminal defendants favor him.

Cheers,

Judge the facts--not the statistics

2009-02-14T13:03:00.000-08:00

One Wisconsin Now claims that Koschnick gets reversed in a quarter of his decisions. This claim is misstated, as Koschnick was not reversed in a quarter of all of his decisions. Koschnick was only reversed in a quarter of the decisions that were appealed.

In response to Ross' claim, Koschnick supporters point out that Koschnick has handled 40,000 cases during his reign over the Jefferson County Circuit Court. They then attempt to claim that Koschnick has only been reversed in 7 out of the 40,000. But this claim is even more misleading than Ross's claim

Many of Koschnick's 40,000 inevitably involved creditor actions or traffic forfeitures. These types of cases are usually unopposed. Thus, these cases provide no framework for analyzing the skill of a particular judge. To suggest otherwise and then attach significance to them is misleading at best. Additionally, we would also need to acertain how many of the filed cases were resolved by plea bargains or civil settlements. If the parties settled there would be little opportunity for a judge to correctly (or incorrectly) apply the law. In other words, the number of filings in a judge's court tells you nothing about the quality of the judge.

You have to look at the cases where he was challenged. The cases that were appealed. In the 27 cases that were challenged, he was wrong a quarter of the time. But even that percentage tells you very little. (Although if it were 27 out of 27, it may be informative) To get a sense of a judge's capabilities you have to read the decisions. In the cases where the judge was wrong, were they tough cases? was the status of the law uncertain?

To get a sense of a judge's capabilities you have to read the decisions. In the cases where the judge was wrong, were they tough cases? Was the current status of the law unclear? Split in nationwide authorities? If a judge is wrong in the tough cases, I'm all for cutting him or her some slack. But as I've pointed out, Koschnick has blown what most legal commentators would call the easy ones.

Channeling Gableman

2009-02-04T18:36:00.000-08:00

Koschnick must have spent the $9,995, which he raised, from himself, for his own campaign, to purchase Justice Gableman's playbook. (On an unrelated note, why is it that Koschnick's father-in-law only donated $200 to his campaign? Just seems a bit low for family.)

In any event, Koschnick's website now declares: Chief Justice’s Campaign Using Public Website to Obtain Campaign Staff. Sounds like trouble for the Chief Justice until you realize that it is just a link to Rep. Steve Nass' press release. The Nass press releases accuses the Chief Justice of misappropriation of state funds. The problem is that Nass completely misstated (or fails to state) the law as this blog has shown.

Ironically, the Nass press release appears just two entries above headline stating "Candidates to Run Cleaner Supreme Court Race." Personally, I'm not sure that having one of your supporters make false accusations that are highlighted on your own website is much different than making them yourself. As Koschnick should know, if you cite something, it better be true:

SCR 20:3.3 Candor toward the tribunal

(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.

Shouldn't a lawyer or judge running for a public office owe the public the same duty of candor?

Cheers

The Alabama Slammer

2009-02-03T17:07:00.001-08:00

Koschnick's most recent attack on Chief Justice Abrahamson is based on her involvement in the majority decision in Thomas v. Mallett, which addressed the liability of lead paint manufacturers for personal injuries. Based on this decision, Koschnick is now claiming that Abrahamson has turned Wisconsin into "Alabama North," comparing it to one of the worst states for tort liability. Perhaps he should check his facts, as Wisconsin is ranked in the top half of states having the best climates for business ("climates" not referring to the weather, of course). In actuality, Alabama does not even take the worst spot. West Virginia takes the distinction of having the bottom spot (I guess "West Virginia North" doesn't have the same ring to it).

West Virginia also has the distinction of having the most corrupt state supreme court. If you thought the last Wisconsin Supreme Court election was purchased, compare it to West Virginia's last election. Massey Energy gets hit with a $50,000,000 verdict against it in a West Virginia trial court and then spends millions supporting the judicial campaign of West Virginia Supreme Court Justice Brent Benjamin, who then casts the deciding vote in Massey Energy's favor on appeal, despite requests for his recusal. The SCOTUS will hear the case.

Back to Wisconsin . . . it is apparent that Koschnick faults the Thomas v. Mallett decision for the "Alabama North" distinction with which he has condemned Wisconsin. The majority in Thomas reached its holding based on the precedent of the DES cases. Thomas is a complex and difficult case, with a Wisconsin Supreme Court decision that spanned 310 paragraphs (including the dissent).

I'm not sure that Koschnick is qualified to comment on Thomas, especially because he hasn't fared too well when the civil cases he decided were appealed to higher courts. For instance, in Mertz v. Waldoch, Koschnick managed to get reversed in a mere 8 paragraphs over a claim preclusion issue. And I thought getting reversed on a traffic citation was bad.

So to make things easier for the Koschnick crowd, let's think about it in a criminal law sense. Imagine 4 gunmen each shooting into a house, each uses the same type of gun. One bullet hits Mr. Thomas, who is inside the house. The evidence does not establish that anyone of the 4 gunmen were responsible for shooting Mr. Thomas. Would they all escape criminal liability? Of course not, they all intended to put their lead bullets into the house.

Similarly, all of the lead paint manufacturers intended to put their product into the stream of commerce. The Wisconsin Supreme Court held that the manufacturers couldn't escape liability merely because the defendant points a finger at the other guy. Causation did not cease to be an issue in this or other lead paint cases in Wisconsin. In fact, once Thomas went to trial, the plaintiff (the injured party) lost. The plaintiff was unable to show that the lead paint caused his injuries, so the manufacturers were off the hook.

Koschnick should pay better attention to his facts if he wants to take Chief Justice Abrahamson's seat on the Wisconsin Supreme Court.

Cheers

Meet Shamless Seamus

2009-02-02T17:28:00.000-08:00

The Koschnick Campagin has been busy accusing Justice Abrahamson of being "Pro-Criminal" and a "judicial Activist."

Fortunately, under the Sixth Amendment, you have the right to confront your accuser. So Let's find out a little about the accuser:

Seamus Flaherty is Judge Koschnick's senior campaign advisor:

Let's get to know a little about the man running Koschnick's campaign. (Although you can't really say he's doing a great job of getting the word out when Illusory Tenant comes up before the Koschnick Campaign's own website on google.)

Might that have something to do with educational background? Seamus is a Graduate of Ave Maria Law School. Ave Maria makes Hamline look like Harvard. It was not even an accredited law school until 2005--2 years after Seamus graduated.

Still Koschnick saw it fit name Seamus as his senior advisor. And why shouldn't Seamus be a senior advisor for a man trying to obtain a seat on the Wisconsin Supreme Court. He's been licensed in this state for over 1 and half years and has handled two cases in the State. I'd say with all that experience we would be wise to pay attention to Seamus' and Koschnick's characterizations of Wisconsin Law. Or, maybe not.

Cheers,

IT'S TOOL TIME!!

2009-01-30T18:37:00.001-08:00

EXHIBIT A:

EXHIBIT B:

Koschnick: qualified for S.Ct.?

2009-01-27T18:26:00.000-08:00

Given my preference I'd prefer a judge in the model of John Roberts. Although candidate Randy R. Koschnick claims to share Roberts' judicial philosophy, he is no Roberts.

Incredibly, Koschnick managed to get reversed in presiding over a traffic citation. In County of Jefferson v. Demler, Judge Koschnick determined that the County's failure to subpoena a witness was excusable neglect. Now, the standard for excusable neglect is well-known and long established. But Koschnick gave the County a free pass, without explanation, when the County was negligent in failing to subpoena a witness. (If you're a judicial conservative, you don't make the law up, you follow the gosh darn standard.)

In finding that Koschnick erred, the Court of Appeals noted that Koschnick failed to provide any legal basis for his decision. The Court of Appeals then held:

Therefore, we conclude that the trial court erroneously exercised its discretion because it applied the wrong legal standard.

As a result of Koschnick's error, the traffic citations were dismissed.

And still he thinks he is qualified to join the Wisconsin Supreme Court? I'd say he needs some more time in traffic court. But then again, I've watched American Idol, and some of those clueless hopefuls think they have talent. The same delusions must accompany some judges in their quixotic quests for glory.

Cheers

Intern Job posting: Violation of Law or Just Hot Air?

2009-01-27T15:53:00.000-08:00

State Rep Steve Nass has alleged that the Abrahamson Campaign is violating state law. Despite Nass' bold allegation, he provides no statutory authority for his charge. Yet the sheep take up the charge without questioning whether Nass is correct.

Is he? Several Wisconsin court decisions have discussed the misuse of a public office. See State v. Jensen and State v. Chavala. In Jensen, the court determined that Wis. Stat. 946.12(3) was violated. Wis. Stat. 946.12(3), states:

"(3) Whether by act of commission or omission, in the officer's or employee's
capacity as such officer or employee exercises a discretionary power in a manner
inconsistent with the duties of the officer's or employee's office or employment
or the rights of others and with intent to obtain a dishonest advantage for the
officer or employee or another."

The court determined that this statute was violated when State Assembly caucus staffers performed campaign-related work on behalf of a state legislator's campaign committee while being paid as state employees.

Similarily, in Chavla, this same statute was violated after Chavala hired wokers (with state funds) to work on his campaign.

Here, there have been no allegations that Abrahmason used state funds to pay for the post. Nor are there allegations that she was misusing her office. Thus, I conclude there is no violation of state law. My answer, of course, would be different if Abrahamson's law clerk was posting the internship opportunity while being paid by the state. But I have yet to see that allegation.

Nass needs to be careful. His own press release may violate the same law he accuses Abrahamson of violating. Arguably, his press release is a "political activity" and not "legislative activity." As noted in Jenson, "The assembly rules prohibit any "political activty" using state time on state resources." Thus, if Nass' staff was on State time when the press release was drafted . . . Damn glass houses.

Cheers

Charlie Sykes: Supporter of Judicial Activism

2009-01-25T09:21:00.000-08:00

Charlie Sykes again has his judicial panties in a bunch. Mr. Sykes has a "worst Judge" update. This of course, follows the "Baby mama" drama, which has already been discussed at length.

Now, Sykes goes back to another Kessler decision, which "beats common sense on the head." I wasn't aware that "common sense" was a judicial restraint philosophy. Nor is it a proper method of reaching a decision. My friends, when you attempt to reach a desired outcome regardless of the law, that is judicial activism. But apparently, Sykes and Wagner, have no problem with such activism.

The particular Kessler opinion that is so outrageous is the backpack taping case. At issue was whether a bus driver's (tape-recorded) threats to a handicapped child were admissible as evidence. The admissibility of the taped conversation depended on whether the threats were "oral communications" as defined by the Wisconsin Statutes. If there was a reasonable expectation of privacy, the threats would be an oral communication, and thus, inadmissible. The Court of Appeals held that the threats were an "oral communication" because they were made on a bus with only the speaker and the listener. Thus, there was an expectation of privacy.

The Supreme Court disagreed. However, the Supreme Court did not fault Judge Kessler's analysis. Like Judge Kessler, the Supreme Court also determined that the controlling issue was whether the conversation was an "oral communication" as defined by the statute. In a Justice Roggensack opinion, the Supreme Court resorted to reviewing the legislative history to determine the legislature's intent. Yet Justice Roggansack claims to be a Judicial conservative.

But what would Scalia say about using the "legislative intent" to reach a decision?:

Scalia, however, attacks proponents of "legislative intent" (by whom, we gather, he means a great number of the judges currently on the bench) with vigor. Basing interpretation on "intent" is not merely misguided, it is "tyrannical," for it threatens the American ideal of "a government of laws, not of men." Moreover, "legislative intent," far from being an objective standard to which judges must conform, is in fact a amorphous jumble of evidence from which a judge can produce his own desired interpretation of the law in question.

In other words, it's the favored means of judicial activism. Yet Sykes and Wagner don't seem to have a problem with it when it leads to "common sense" outcomes. Respectfully, anyone who uses common sense as an argument does not have legal precedent on her side. Unless, of course, we want to consider the legislative history.

Cheers

The Puppet Show Begins

2008-08-01T15:28:00.000-07:00

Gableman was sworn in today.

Gableman's response:

"It was just a sweet day"

What a display of his english acumen. The next coming of Scalia to be sure. I can't wait until his first decision:

The respondent's argument was "totally awesome." That stuff he
said wasn't even covered at Hamline but it was still totatlly sweet so he
wins.

As Gableman describes his position:

my new role as I perceive it is going to be to apply the law fairly and
consistently and to treat everyone I encounter with respect.

Based on his show of respect during the election, I'd say we have nothing to worry about, right?

Cheers

Judicial Conservatism : What a Fraud!

2008-07-01T17:46:00.000-07:00

In Below v. Norton, the alleged judicial conservatives, (Crooks, Roggansack, Prosser, and Ziegler) held that the judge-made economic loss doctrine bars intentional fraud claims--tort claims that have been recognized in Wisconsin since the late 1800s.

Below involved a residential real estate transaction where the buyer alleged that the seller falsely represented the condition of the property (a sewer line was not connected the property). The buyers alleged that the sellers knew that the sewer line was not connected and intentionally withheld this information from the buyers.

Apparently, our friendly judicial "conservatives" don't believe lying is wrong. The majority held that a home buyer cannot bring a tort claim against a seller when the seller has intentionally misrepresented the condition of the home.

A scathing dissent by Justice Bradley followed:

According to the majority, a person selling a home can look the buyer in the eye, lie about the condition of the home, and escape legal consequences in tort for the lie because of the economic loss doctrine.

Surely, our conservative justices must have felt compelled to reach this result because of nationwide case law, or even hornbook law . . . but no:

Wisconsin has the dubious distinction of being the only state in the entire country to have expanded this judicially created doctrine in such a fashion. The majority has taken a doctrine that originally applied in a very narrow context——commercial transactions for products under warranty——and has now used it to prevent homebuyers from recovering damages in tort caused by the misrepresentations of fraudulent sellers.

Remember the judicial "conservatives" often defend their decisions by claiming "we apply the law, we don't make it." In fact, this was the platform on which Judge Gabelman ran. From Judge Gableman's own website:

Lawmaking should be left to the legislative and executive branches. I believe that justice comes from administering the law with an understanding that its source is the consent of the governed, not one’s one personal ideology

Yet, our "conservative" justices did not adhere to Gablelman's philosophy. According to Justice Bradley:

Contrary to its protestation, the majority is not compelled to reach this unfortunate result. No legislature enacted a law compelling this conclusion. The majority is applying its own judge-made doctrine.

Wow! Justice Bradley--one of those alleged judicial activists on the Court--telling the conservatives that they need to administer the law instead of making it.

I wonder . . . will Charlie Sykes denounce this decision? I doubt it, his ex-wife started us on this path. Will the Shark denounce Wisconsin's so-called conservative justices? Will WMC now support Justice Abrahamson in next year's election for refusing to partake in this judicial activism? Or, is judicial activism all a matter of politics?

Cheers,

Confession: Catholicism's Greatest Sacrament

2008-06-11T18:15:00.000-07:00

Apparently, not all of the sex in chuch involves the clergy. An Italian couple was caught copulating in a confessional. I think it must have been the "oh my god" prayers that gave them away.

Cheers

My type of Judicial Conservative

2008-06-11T17:52:00.000-07:00

The LA Times had this piece about Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals--a Regan appointed judicial conservative with a national reputation as a brilliant legal mind. Apparently, Justice Kozinski has quite the taste in pornography:

The sexually explicit material on Kozinski's site earlier this week was extensive, including images of masturbation, public sex and contortionist sex. There was a slide show striptease featuring a transsexual, and a folder that contained a series of photos of women's crotches as seen through snug fitting clothing or underwear. There were also themes of defecation and urination, though they are not presented in a sexual context.
Another report noted
"the material was on a home server that was maintained "for use by his family" and that it made up only a "small percentage" of the items, which also included pictures and documents of "personal family interest."
What a family man. Unfortunatly, our judicial conservative, family values Judge has now limited access to his website. Such a pity, I was hoping to find the video for two girls one cup.
If this is what judicial conservatives are doing on the web, I am really curious to see what might be contained in the emails that Justice-elect Gableman refuses to release.
Cheers.

The ultimate in Irony

2008-06-05T08:02:00.000-07:00

It seems that a couple of gold diggers have lost their own gold. A homeless man listed posing as a millionaire subscribed to a dating service where women can meet millionaire men. The women were then swindled out of their own money by false investment opportunities.

While unfortunate, it begs the question: how much money were these gold diggers hoping to get from a millionaire boy friend? perhaps A few fancy dinners, some jewelry, and some nice vacations. Tricks on them.

Cheers.

Gay Marriage, Why the Outrage?

2008-05-16T15:14:00.000-07:00

This week the California Supreme Court legalized gay marraige. Gay rights activists cheered and conservatives claim judicial activism.

Civil Union is a fancy term for "seperate but equal." Thus, I see no logical reason or constitutional reason for upholding a ban on gay marriage. Further, I fail to see why some conservatives are upset. If your not gay how does banning gay marriage help you? Is your own marriage so insecure that it would be weakned if Adam and Steve tied the knot? So for the objectors, what's the harm? How is this any different from laws which banned inter-racial marriage?

One of the arguments for banning gay marriage is that it will be a slipperly slope, which will lead to polygamy. This argument ignores that the slippery slope would work both ways. If we are only going to permit marriage for procreation purposes do we not also have to ban marriage for individuals that are unable to procreate?

In the secular sense, marriage is a contractual matter. As a believer in the free market, I can think of no reason to distrub parties' abilty to enter into contracts. That State's obligation is to view and recognize the Marriage Contract.

Obama's 57 States of America

2008-05-10T13:22:00.000-07:00

Blogasphere is all aghast about Obama's statements that he had been to 57 states. Obviously, he misspoke. While I won't be voting for Obama, I can find more substantive faults with his candidacy than a speaking error. Heck, I voted for a bumbling idiot twice. Besides most of the people criticizing him, don't even know the correct number of states in this country?

If you answered 50, you are wrong.

There are 46 states. Kentucky, Massachusetts, Pennsylvania, and Virginia are not States--they are Commonwealths.

Cheers

McAdams: Roe Supporter?

2008-05-09T18:14:00.000-07:00

The good professor authored this piece, which discussed racial disparity in prison sentencing. McAdams came to the conclusion that "Incarceration is good." In fact, he states

University of Chicago economist Steven Levitt, for example, says that increased imprisonment is one of the reasons crime decreased sharply in the 1990s:

[T]he increase in incarceration over the 1990s can account for a reduction in crime of approximately 12 percent for the first two categories [homicide and violent crime] and 8 percent for property crime, or about one-third of the observed decline in crime.

I find it curious that McAdams would use Levitt's arguments to make his point because it takes him to places he probably does not want to go.

Steven Levitt is the author of the book Freakonomics. In chapter 4 of the book, Levitt also attributes the decrease in crime to abortion. In fact, Levitt has authored a separate paper on the subject. Levitt concludes that if incarceration is good for decreasing crime and saving costs to society, abortion is even better.

How do you feel about your argument now, Associate Professor?

Cheers.

Calling Pascal

2008-05-08T20:30:00.000-07:00

17th century mathematician, Blaise Pascal formulated the following argument for believing in God.

If you erroneously believe in God, you lose nothing (assuming that death is the absolute end), whereas if you correctly believe in God, you gain everything,But if you correctly disbelieve in God, you gain nothing (death ends all), whereas if you erroneously disbelieve in God, you lose everything (eternal damnation, Hot Damn!).

Call.

So we're supposed to believe in God, just because he might exist? Well the same logic would apply to leprechauns and their pots of gold. You should believe because that's the only way you would get the gold. You lose no gold by believing and gain no gold by disbelieving. Shucks. Try as I might, I just can't get into lucky charms.

Further, if we chose to believe in God, which one, which version. What if we choose Catholicism and God only saves Buddhists, then we are no better off than the non-believers or the Devil worshippers. But your confident that you have picked the correct religion out of the thousands out there, clearly you are smarter than all of the people in the world that have chosen the wrong religion, and God will reward you for your correct belief in the one true religion. Drink up that purple kool-Aid.

Further, Pascal's bet fallaciously assumes there are no chips on the table by disbelieving. How about, intellectual integrity, the joys in life, free thought, and freedom from the cages of Divine worship.

Heck, I'll raise the bet afterall. Some of the things that religion won't let you do are just plain fun: Eating meat with cheese, wearing linen clothes, bearing false idols, using Buddha's name in vain, coveting my neighbor's wife--really she's quite hot, and missing out on the 7 times a day we're required to pray to be saved.

>Cheers,

Living on a prayer; Living without logic

2008-05-07T18:37:00.000-07:00

At its core, prayer is inconsistent with belief in God as described by classical theism. Prayer cannot be remedied with the notition that God is all powerful and all knowing.

If God is all powerful, he gains nothing from being worshiped. By telling him you are thankful, you are telling him that you think he needs to be thanked, that it would help his ego. In other words, that he is weak. But, if God were all knowing, you wouldn't have to stoop to your knees to tell him what you think. If he his is all powerful, you aren't going to change his mind so why do you ask him to change your situation. By asking him to change your situation, you are challenging him. Wasn't it good enough the way he created it? Apparently not.

Ye of little faith builds cages of divine worship and attempts to capture God for an hour while you sing songs and hold hands.

Cheers,

Hurricane of Injustice

2008-04-30T19:45:00.001-07:00

I just got around to watching the movie The Hurricane. Much to my good fortune, it had nothing to do with Katrina. Instead, it was the dramatically sensationalized story of Rubin the "Hurricane" Carter.

Mr. Carter was a professional boxer who was convicted of murder based on trumped up charges in a racially charged environment. Eventually, the case worked its way up the to the Court of Appeals, in a split 4-3 decision the Court of Appeals upheld the verdict but acknowledged that the prosecution would have withheld evidence.

Mr. Carter's attorneys then moved to federal court , which was a risky strategy because they risked losing the ability to ever use the newly discovered evidence. In a stunning display of judicial activism the Federal Court Judge examined the evidence and concluded that the conviction was based on racism rather than reason and concealment rather than reason. The verdict was overturned, and Carter was freed. The State of New Jersey took the matter all the way up to the SCOTUS and lost.

What I took from the movie is that the U.S. Constitution is strongest when we apply it to the worst of the worst. If the rights of the criminally accused are protected, we have powerful document. However, when we deprive our criminals of their due process rights we send a message that our Constitution only applies when it is convenient or easy. In those cases, the innocent are condemned.

During his debate with Justice Butler, Justice Gableman indicated that he believes in "victims Rights." Personally, I am perplexed by the concept of "victims rights" in Criminal cases. Where in the Constitution are the victim's rights listed? Perhaps, Justice Gableman is more of a judicial activist than he would like to believe.

Finally, in honour (hell, I'm an elitist) of tonight's posting, I'll leave you with Dylan. Cheers

Clintonomics-- Why I vote Republican

2008-04-26T14:22:00.000-07:00

I realize that much of what I have previously written would seemingly cast me as a lefty. But I'm not. I just prefer a competent judiciary. I also prefer a competent economic policy. Much to my two failed George Bush votes' chagrin, we have not had either a competent or a conservative economic policy. But a return to Clinton is not the answer:

[Bill Clinton] ... promised the crowd that if elected, the former first lady would restore federal payments to timber dependent counties.

Gosh, what pal. Let's help the lumberjacks by giving money to nations that might use the funds to buy wood from the United States. Of course, they might decide to buy their wood elsewhere. But worse, these payments generally only help the corrupt and tyrannical upper classes of these third world nations. In turn, the rest of the country's population views the U.S. as an enabler for these despots.

Ask yourself which nations are "timber dependent?" I happen to know a certain region of this planet that is mostly desert and full of corruption, perhaps it is lumber dependent?

As John Perkins, pointed out in his book, Confessions of an Economic Hitman, it is the United State economic policy that the fundamentalists despise. For Buddha's sake, we propped up the Shah to get cheap oil. Rest assured, planes did not crash into the world trade center because it was full of infidels, but rather, because it was the domain of this country's money changers.

Yet Clinton wants to send more money overseas. I can't wait to see who will hate us now.

Cheers.

Rewarding Incompetence

2008-04-26T07:59:00.000-07:00

I have no problem with rewarding CEOs with massive salaries when the companies they run do well. Angelo Mozilo, Countrywide's CEO did well last year. $10.8 Million in total compensation with another $121.5 million in stock options. The company? not so well losing $704 million last year. Perhaps some of that should go back to the shareholders who placed their trust in Mr. Mozilo. But we wouldn't want that, we would have to file a lawsuit, and the common consensus is that all lawsuits are frivolous.

Can we cap the pay of CEO's of money losing companies? It should work just fine, since our friendly pundits consider caps being overturned to be a form of judicial activism.

Cheers.

Med Mal Caps-- Another Reason to Appoint Judges

2008-04-25T19:31:00.000-07:00

I found this gem in the April 18, 2008 Wall Street Journal. Apparently, Neil Sjulson of Mequon Wisconsin, had a gripe with WAJ's support of Justice Butler. In fact, Mr. Sjulson felt that was enough reason for him and his son to support Gableman:

My oldest son turned 18 last year and was excited to be able to vote in his first election. His question to me was, "Who do I vote for?" I told him to ignore all the ads and do his research. He returned and said, "Did you know that the trial lawyers support Butler and the majority of the sheriffs and district attorneys support Gableman?" Enough said!

I for one fail to see how listing a judge's supporters counts as "research." But Mr. Sjulson and his son stop there. Read any Supreme Court decisions? hardly. Mr. Sjulson was all up in arms (pun intended, as we will see later) about the malpractice cap being overturned:

[Butler] managed to overturn the legislated state malpractice caps which benefited the trial lawyers greatly

I know we've all heard all the rhetoric about how rejecting Med Mal caps on constitutional grounds is judicial activism and why Wisconsin's medical system will collapse if noneconomic damages are not capped. But how many have actually taken the time to read the actual case?

In Ferdon, a child's arm was destroyed during his delivery. With the cap, Matthew Ferdon was awarded $5,900 a year (based on his life expectancy) for all the things that come with not having a functional arm, no high fives, hand shakes, or trying to get to second base after the prom. We all know 6k isn't worth what is was even a year ago. But the damage cap did not adjust for inflation.

Would these people not object if the cap was $1.00? Clearly, there is a point where a cap would become unconstitutional. If not, let's cap physician's income, oil profits, rent, etc... The free market does not work unless both the rewards and the risks remain uncapped. Otherwise, there is an incentive to be negligent and reckless. But we can save Posner's law and economic theories for another day.

Personally, I do not want the government telling me what my arm is worth. And I would gladly pay $5,900 a year for the use of my arm. Heck, it would be worth at least $5000 for the joy I would get out of giving Mr. Sjulson a one finger salute, for inferring that my arm should only be worth $5900 a year. And I'll blow the other $900 on some other fun stuff that you can do with appendages, like raising a glass to say:

Cheers.

Alabama North? Not really

2008-04-25T14:49:00.000-07:00

The institute for legal reform proposes tort reform has ranked the States for what it calls "lawsuit climate." I found its rankings very interesting. All through this recent judicial election we have been hearing about how bad the litigation climate is in Wisconsin.

So where does Wisconsin place: 24th Putting Wisconsin in the top 50 percent, which is more than we can say about Gableman's 4th tier law school.

Cheers.

Just a bit of Hypocrisy?

2008-04-22T16:34:00.000-07:00

I found it somewhat amusing that a blog called www.stoptheaclu.com/ would be affiliated with an organization called "bloggers against red China"

Sure, let's be against an organization that supports freedom of speech in the United States, (which I believe is still supported by the First amendment, for all you judicial conservatives out there) and then support free speech in China. Have fun distinguishing that one.

Cheers,

Activism is what Stupid does

2008-04-21T17:08:00.000-07:00

My little blog has been noticed. Illusory Tenant enjoyed my post taking Deb Jordahl to task for being an uninformed mouth piece of the anti-Butler movement. At the risk of letting my hubris roam, I enjoyed it as well.

Lesson being, if you're going to comment on case law--don't rely on the Milwaukee Journal's description. And please, don't use Patience Roggensack's dissents to prove your argument it just makes you look silly.

Alright going walking with Johnny Black.

Cheers,

Super Id.

Is God Negligent?

2008-04-18T17:04:00.000-07:00

The Catholic God of my youth is supposed to be all powerful and all knowing; knowing the past, present, and future.

Why is there evil?

The usual response was mankind's freewill. But if God knows all the choices that everyone will make, including the exercise of their freewill. God can hardly be exonerated for creating a world where people will choose evil by letting it happen. Imagine a landlord who knows that there are electrical problems on his property but chooses to do nothing. When the property starts on fire and his tenants die, would anyone exonerate the landlord?

Yet, God gets a pass when he is the landlord. Freewill.

Cheers

Thank god for Butler: Stuart v. Weisflog

2008-04-16T19:25:00.000-07:00

In the days proceeding the supreme court election, Gableman supporters were in heat for any fodder they could use to Justice Butler. The week before the election Stuart came down in a 4-3 decision with Justice Butler in the majority.

Commence with the spin:

Conservative Columnist Deb Jordahl, boldly declares that Stuart is a "wet sloppy kiss on the State Trial Bar" in her piece on Stuart case. First, it should be pointed out that Attorney Roy Wagner of Von Brieson & Roper represented the Stuarts. Von Brieson is one of the largest firms in the state and is hardly considered part of the state trial bar.

Second, Ms. Jordahl is extremely mistaken in her facts. She claims "the court determined that ANY business entity or person providing a home improvement could be sued for twice the amount of damages caused by simple negligence on the part of contractor." WRONG!

In Wisconsin, contractors cannot be sued for negligence, thanks to another Roggensack expansion of the economic loss doctrine. See Linden v. Cascade Stone Co., 2005 WI 113.

Instead, Stuart concerned Fraudulent Misrepresentations, which violated the home improvement practice act. Among other things, the contractor represented that he knew building codes, could do architect quality design work, but in actuality he was not a licensed architect. Notably, it is illegal to represent that you are an architect if you are not licensed. Worse, the contractor represented that he was familiar with building codes but had never looked at the codes. That is not negligence it is fraud. Lo and behold the house was not built to code and was destroyed by a mold problem.

The Stuarts were successful at trial in proving the fraud and under the home improvement practice act, were entitled double damages and attorney fees. Ms. Jordhal's claim that awarding attorneys fees is somehow judicial activism is false-- it is exactly what the legislature requires the court to do. The majority even noted “We must give effect to statutory enactments by determining the statute’s meaning, especially through its language, which we presume expresses the intent of the legislature.”

Ms. Jordhal then poses the following question:

Will the Stuart decision encourage reluctant consumers to become private attorney generals and fight unfair trade practices which will deter future contractor malfeasance and promote the public good, as the majority asserts?

Or, will it place an unwarranted burden of possible criminal prosecution on the building trades and have far-reaching impacts throughout Wisconsin, as Justice Roggensack predicts in her dissent."

Of course the answer is irrelevant, the court was required to apply the law. Personally, I have no problem with punishing contractors who commit fraud. And it should also be noted that the Attorney General filed an Amicus brief in support of the home improvement practices act.

More troubling is her citation to Justice Roggensack's dissent, which would have effectively invalidated the legislature's home improvement practice act by applying the judicially created created economic loss doctrine. That's the real judicial activism in Stuart.

But when your mission is to hack apart a competent judge, the facts do not even matter. Congrats WMC you won your puppet, now can you live with him?

Cheers.

Patience has lost her virtue

2008-04-13T19:15:00.000-07:00

In reference to Justice Roggensack, others have commented that "if the court is representative of the public, the mediocre are now represented.” While she is often certain, she is seldom correct.

Periodically, I will discuss her comments and decisions in a series of posts.

Here is Patience's latest butchering of Wisconsin law:

During oral arguments of Below v. Norton, Justice Roggensack made the ridiculous assertion that "money is not property" for purposes of Wis. Stat. 943.20(1)(d), which is the theft-by-fraud statute. Personally, I was struck by her confidence in her views. In any event, those views are plainly incorrect. The statute states:

obtains title to property of another person by intentionally deceiving the person with a false representation which is known to be false, made with intent to defraud, and which does defraud the person to whom it is made. "False representation" includes a promise made with intent not to perform it if it is a part of a false and fraudulent scheme.

However, what Justice Roggensack has overlooked is that Money IS property. Under the definitions of Wisconsin's theft statute:

"Property" means all forms of tangible property, whether real or personal, without limitation including electricity, gas and documents which represent or embody a chose in action or other intangible right

That dollar bill in my wallet looks pretty tangible to me. The statutory intent refers to the distinction between intellectual property and real or personal property.

Despite the fact that Justice Roggensack likes to talk tough on crime, if Justice Roggensack's interpretation were correct we would have to free all imprisoned individuals who had the fortune to steal money. Fortunately, Wisconsin punishes individuals who steal money whether it is through traditional stealing or misrepresentations. In fact, the department of agriculture, trade, and consumer protection explicitly states that money is property on their website. Individuals violating these laws are prosecuted.

Of course, the larger issue is that Justice Roggensack is engaged in a serious and reckless expansion of the economic loss doctrine, and is undeterred by statutes and pre-existing case law that is inconsistent with her views. And yet, she is called a judicial conservative.

Book List

2008-04-13T17:02:00.000-07:00

One of My favorite hobbies is collecting a random collection of books from my local library. The following are on my night stand:

My Life as a traitor by Zarah Gharhamani
Summits (Six Meetings that shaped the Twentieth Century) David Reynolds
Law Makers, Law Breakers and Uncommon Trials by Robert Aitken and Marilyn Aitken
Atheism Explained (From Folly to Philosophy) by Davide Ramsay Steel
Teach Yourself Visual Basic. Net in 21 Days.

I have finished #3. It was so-so. It certainly was not the best legal history book that I have read. I enjoyed the chapter about the Oscar Wilde trial. Edward Carson's cross-examination is considered one of the best Cross-examinations in history.

The story is that Wilde's special male friend's father accused Wilde of being a sodomite. Wilde sued for liable. One defense for liable is to prove that the statement was true. So hence, the following cross:

"Q. Did you know Walter Grainger?
A. Yes.
Q. Who was he?
A. A servant at Lord Douglas's rooms in Oxford.
Q. Did you ever kiss him?
A. Oh, no, never in my life; he was a peculiarly plain boy.
Q. he was what?
A. I said I thought him unfortunately--his appearance was so very ugly--i mean--i pitied him for it
Q. Very ugly?
A. Yes.
Q. Do you say that in support of your statement that you never kissed him?
A. No, I don't it is like asking me if I kissed a doorpost; it is childish.

The inference created by the cross is that only a sissy boy, such as Mr. Wilde, would mention a male companions attractiveness. The strategy worked and the jury verdict reflected that there was no libel because the statements were true.

The Pope Is An Atheist

2008-04-13T10:13:00.000-07:00

Perhaps the most sacred of beliefs is the belief in a deity, which we'll call god for a lack of better terms. Yet, the concept of god is amorphous. Moreover, the god concept is subjective and open to multiple interpretations. A cursory search reveals that there are over 4200 world religions. Each with a differing concept of god.

There are approximately 10 recognized qualities describing god in classical theism (god is a person, a spirit, all powerful, all knowing omnipresent, we are all god, interested in humans, necessary, etic.) However, we will not discuss them at this time, other than to point that there is a distinction between the Abrahamic religions--Judaism, Christianity, which are monotheistic and religions such as Hinduism and Buddhism , which are polytheistic.

While severely truncated, my point is simple: monotheists, such as the Pope, do not believe in other gods, or godlings and are thus, atheists when confronted with inconsistent interpretations of the god concept.

But a god concept must be defined (and preferably explored) before a belief in that god can exist. Yet, I would wager that the most pious among us have yet to define their own god concept. After all isn't it hersey to question a system of belief? Instead, they rely on hearsay, such as "the Bible tells us so." However, the Bible is not a self-authenticating document. The foundation must be laid. And I would suggest that skepticism is a better foundation for belief than ignorance or faith.

Cheers

Welcome

2008-04-12T19:18:00.000-07:00

As a psychology major, I studied Freud's structural model of the psyche--Id, Ego, and Super Ego. The concept of Id represents the inner desires. In other words, it is the amoral and pursuit the staples of life and the destruction. The dive to obtain food, shelter, aggression, and sex.

I present this blog to develop the tongue- in-cheek concept of Super Id. My Super Id will present the intellectual pursuit of life's primordial needs. Yet, I have little inter st in developing or advancing the psyche. Rather, I'll entertain the destruction of beliefs, dogma, and spurious arguments and opinions.

I am a moderate, a republican, a speculator, an arbitrageur, an advocate, an agnostic, an asshole, and apparently an aficionado of alliterations. No opinion is safe, especially my own. Super Id destroys all.

That is my Super Id. Who is yours

Cheers