Wisconsin Lawyer
Vol. 85, No. 9, September 2012

Focusing on Common Experiences Can Help Justices Mend Relationships

I find that small talk is part of each and every client meeting. This summer, the hot topic has been the weather and lack of rain. However, over the last year or so, several clients have asked me to explain to them why there is so much dissonance on the Wisconsin Supreme Court and why it is that the justices do not seem to get along. Because of our role as attorneys, we are often the closest link clients, family, and friends have with the judicial system; it is perceived that we must hold all the answers when it comes to anything involving the judicial branch.

Unfortunately, I find myself unable to provide satisfying responses to questions regarding the Wisconsin Supreme Court. It is easy to point to things such as differences in judicial temperament, interpretative styles, and personal philosophies. But, it seems that each state's supreme court justices would share in those differences, and these issues alone should not set the Wisconsin Supreme Court apart from its counterparts. The clients who posed these questions seem to agree that whatever is happening at the Wisconsin Supreme Court is caustic in nature and not befitting of the court or its history.

In sizing up the issue, I do not believe for a second that the court is a lost cause and that nothing can be done to mend the relationships of the justices. In our line of work, the supreme court justices sit at the top of the totem pole. They are the legal rock stars of the profession. Each of the seven justices, Abrahamson, Crooks, Gableman, Prosser, Roggensack, Walsh Bradley, and Ziegler, share a spot on that stage. In reality, the justices are not only on the stage, but they set the stage for judges and lawyers when it comes to civility and decorum. We cannot reasonably expect civility among lawyers and judges if it is not found at the highest level of the profession.

Moving forward, the justices need to focus on their personal and professional similarities and their common experiences. Certainly, they have a great deal in common in these areas. An example of commonality is found in a story (with Wisconsin roots) that was reported by the Associated Press a few years ago. In the 1950s, President Dwight Eisenhower appointed six individuals to serve on the Civil Rights Commission. The members of the commission came to an impasse at a meeting in Louisiana. A member of the commission, Father Theodore Hesburgh, then president of Notre Dame, invited the other members to Notre Dame's retreat on Tenderfoot Lake in the northern woods of Wisconsin. On this trip, Hesburgh learned that all six members of the commission were fishermen. With this knowledge, Hesburgh took the group on a twilight fishing trip. It was that evening of fishing that sparked the talks that ultimately led to the Civil Rights Act of 1964.

A fishing trip may or may not be the catalyst that moves the court from acrimony to harmony, but it would be a start. At a minimum, such an activity would provide the justices with an opportunity to identify and appreciate their commonalities and to remember that together they set the standard for lawyers and judges in Wisconsin.

Joshua J. Kindkeppel
President, Dane County Bar Association

Enforcement Lacuna in Statutes

I read with interest the article "Wisconsin's Concealed Carry Law" by Mark R. Hinkston (July 2012), explaining the many provisions of 2011 Act 35, which regulates the carrying of weapons. This is an issue of obvious importance to law enforcement officers, prosecutors, and the defense bar. The article mentioned that Act 35 created a number of state forfeiture offenses for certain violations of the Act. I and many other law enforcement executives attended a series of seminars held throughout the state that were sponsored by the Wisconsin Attorney General to explain the intricacies and mechanics of the concealed carry law. This Act and the Attorney General's seminar surfaced a much broader issue concerning a void in the Wisconsin statutes.

When questions arose regarding enforcement of Act 35, the assistant attorneys general present stated what had been known to only a handful of police and legal professionals: there is no general statutory authority for law enforcement officers to enforce state forfeiture violations.

While the legislature has authorized arrests for crimes (Wis. Stat. § 968.07), traffic regulations (Wis. Stat. § 345.22), and municipal ordinance violations (Wis. Stat. § 800.02(6)), there is no similar statutory authority to enforce state forfeiture violations. Without such authority, law enforcement officers cannot legally stop, detain, question, cite, or take into custody the violator of a state forfeiture offense without thereby inviting a federal civil rights lawsuit.

Why should this lacuna in the statutes concern the legal community? Simply put, without statutory enforcement authority, a significant number of state forfeiture laws are unenforceable nullities. Hence, the legal remedies created by the legislature are unavailable to clients and to the public at large. The following are only a minute number of such state forfeitures: flying aircraft while impaired by alcohol or drugs (Wis. Stat. § 114.09(1)(b)); prisoners engaged in telephone solicitations (Wis. Stat. § 134.73); disposal of records containing personal information (Wis. Stat. § 134.97); felons installing burglar alarms (Wis. Stat. § 134.59); illegal transport of weapons (Wis. Stat. § 167.31(2)); disturbance of human graves (Wis. Stat. § 157.70(10)); and refusal to obey emergency management orders during emergency situations, natural or human-caused (Wis. Stat. § 323.28). There are many other state forfeiture violations scattered throughout the five volumes of the statutes for which local law enforcement officers cannot take enforcement action.

2011 A.B. 237 would have granted Wisconsin law enforcement officers the authority to enforce state forfeitures. This bill was endorsed by the Wisconsin Chiefs of Police Association, the Milwaukee and Waukesha counties police chiefs, the Badger State Sheriff's Association, the League of Wisconsin Municipalities, and the Wisconsin District Attorneys Association. It passed the Assembly's Criminal Justice Committee on a bipartisan 9-0 vote and then died in the Assembly Rules Committee at the end of the legislative session. Unless this bill is reintroduced and passed in the next session of the legislature, expect your local police agency to tell you "there's nothing we can do" when you ask them to enforce a state forfeiture violation on behalf of your client or organization.

(The opinions in this letter are the author's alone and do not necessarily reflect those of the city of Brookfield or its police department.)

Dean J. Collins
Assistant Chief of Police, City of Brookfield

Wisconsin Lawyer