Vol. 77, No. 2, February 2004

Letters

Ruling by Moral Force?

In his November "President's Message," George Burnett claims that the "organized bar must rise to defend the judicial branch of government." Mr. Burnett was responding to a Wall Street Journal editorial that criticized the Wisconsin Supreme Court's 4-3 decision in Trinity v. Tower Insurance. While an individual member of the Wisconsin Bar has every right to critique the Wall Street Journal's critique of Trinity, Mr. Burnett, as president of the State Bar, should have restrained himself. His defense of Trinity as an exercise of the court's "moral force" is humorous given that the subject matter of the case is punitive damages; an issue, it seems to me, that has little to do with morality, and a lot to do with preserving what, for the plaintiff's bar, is the golden goose. Not so humorous is the fact that Mr. Burnett, on behalf of the Wisconsin Academy of Trial Lawyers, authored an amicus brief in Trinity. Mr. Burnett should have disclosed that fact when purporting to speak on behalf of the "organized bar," and he should have made an effort to defend the decision on its merits, rather than claim the court deserves respect as a "moral force."

The preservation of that "moral force," Mr. Burnett claims, requires that the bar defend the judiciary from criticism. He writes that "[w]e recognize that it is only in the third branch of government where a citizen possesses the right to address his or her government directly." This is an astonishing characterization of the judicial function, and any court that subscribes to it rightly invites scrutiny of its decisions for "political" bias. A court of law is not where citizens "address" government, directly or indirectly. It is a forum for the resolution of differences pursuant to laws that, in a democracy, have been established by our elected representatives.

Mr. Burnett cites Alexis de Tocqueville's Democracy in America as recognizing the judiciary's "moral force" and presumably, therefore, its immunity from political influence. But de Tocqueville did not assert that the judiciary is a "moral force," separate and apart from the "political." In fact, the phrase appears in Chapter 8 within his discussion of the "Political importance of the judiciary in the United States." Specifically, de Tocqueville was explaining how the federal judiciary serves the federal government's claim of authority over individual states by associating the federal government's threat of physical force with "the idea of law." "Moral force," as used by de Tocqueville, means the application of legal reasoning, as distinct from physical force.

Which brings us to the point. When the judicial branch abandons "the idea of law," it forfeits the right to claim that its decisions are imbued with a "moral force." I have no view about whether Trinity is "political" or based on "the idea of law." I do, however, think it silly to claim that the Wisconsin Supreme Court is a "moral force" - and therefore beyond criticism - regardless of the answer to that question.

Gordon P. Giampietro
Elm Grove

While I appreciate the obvious thought and time spent analyzing my November 2003 column about an independent judiciary, the critique misinterprets several key points made there.

First, the column does not defend the Wisconsin Supreme Court's Trinity decision. Rather, the column describes the question there as a "difficult and controversial one, one on which reasonable minds can disagree." The purpose of the article is not to evaluate a recent supreme court decision, but to discuss the danger of political attacks on an independent judiciary.

Nor does the column say that our court is "beyond criticism." To the contrary, I said that "The public acts of public officials deserve careful scrutiny. Judicial decisions merit no exception."

Our courts rule by moral force, just as de Tocqueville observed. I believe that when one ascribes political motives as a substitute for a legal critique of judicial decisions, one undermines public confidence in our judiciary.

George Burnett
President, State Bar of Wisconsin

State v. Merten Corrected

In State v. Merten (2003 WI App 171), which was reported in the October "Court of Appeals Digest," the court of appeals affirmed the circuit court's denial of a motion for plea withdrawal, based on the defendant's claim that his plea was unknowingly and involuntarily made because the circuit court failed to inform him that his conviction would result in ineligibility for federal health care programs under 42 U.S.C. section 1320a-7(a)(4). The court of appeals held that a defendant does not have a due process right to be informed of the collateral consequences of his or her plea and therefore, the refusal to permit a plea withdrawal creates no manifest injustice.

Criminal law practitioners might be interested to know that 42 U.S.C. section 1320a-7 does not, in fact, disqualify a recipient of federal Medicaid or Medicare benefits from eligibility. This statute only applies to health care providers who are disqualified from participating in federal health care programs if they have been convicted of any program-related crimes, such as health care fraud, patient abuse, or distribution or prescription of controlled substances. Of course, once a defendant is incarcerated in a jail or prison, she or he will be ineligible for Medicaid until released. Even inmates who have Huber law privileges are ineligible for Medicaid. In Wisconsin, the Department of Corrections is responsible for the health care of inmates in state facilities, while counties are responsible for the health care of inmates in county facilities.

Shirin Cabraal
Legal Action of Wisconsin, Milwaukee

Remembering Justice Rosenberry as a Parent

I enjoyed reading Justice Bradley's insightful, analytical, and scholarly article in the October magazine on Chief Justice Rosenberry's large contribution to Wisconsin law.

I think Rosenberry also deserves to be remembered as a parent. His son Samuel more than filled his father's large footprints in the profession, although not in Wisconsin. I believe that Samuel Rosenberry was a powerful and influential partner in the blue chip Manhattan law firm of Milbank, Tweed, Hadley & McCloy. He also was the long-time, outside legal counsel to the New York Stock Exchange. My understanding is that he was a prominent and highly respected lawyer, working at the nexus of law and finance in New York.

It was obvious from reading the article that Marvin Rosenberry was a very positive role model for Justice Bradley. Although Rosenberry's son Sam surely did not realize it, as a Wisconsin boy who made it big in the Big Apple, he was also a role model for at least one young lawyer from Wisconsin in the 1960s.

Roy Stohlman
Appleton

Wisconsin Lawyer