Is Manure a “Pollutant” in Wisconsin?

The Wisconsin Supreme Court will decide.

I read with great interest the excellent article “Wisconsin Supreme Court May Decide Whether Farm Fertilizer is a Pollutant,” as featured in the May 19, 2014, issue of WisBar InsideTrack.

Things are not as arcane in the insurance business for pollution and contamination losses as the conflicting court cases mentioned in the article would imply.

There are environmental insurance policies readily available for purchase that have been designed to cover exactly these types of losses. The constraint in the insurance market place is not coverage availability for contamination risks; it is the cost of the environmental insurance policy.

Needlessly complex legal arguments regarding pollution exclusions come into play when desperate policyholders seek coverage for contamination losses under general liability insurance policies that contain what are commonly referred to in the insurance industry as the “absolute pollution exclusion,” or the “total pollution exclusion.”

If the terms “absolute” or “total” are given their normal plain English meaning, it would be clear to a sixth grader that an insurance company offering a policy with these exclusions does not intend to pay for pollution losses.

There is no reason for the Wisconsin Supreme Court to be determining whether or not manure is a pollutant. In both cases under consideration by the court, environmental insurance that would have covered the pollution events in question was readily available.

Because of the conflicting case law on the effects of pollution exclusions in property and liability insurance policies, it is very difficult for insurance agents to educate themselves on the subject. If agents are not knowledgeable, they are unable to advise their customers about what kinds of environmental insurance may be needed. It certainly doesn’t help agents to determine which clients need environmental insurance if it takes the supreme court to interpret the absolute or total pollution exclusions.

 From a practical standpoint, the insurance coverage solution for pollution or contamination losses is simple:

• The intent of absolute and total pollution exclusions is to exclude pollution and contamination losses.
• To insure pollution and contamination losses, insurance buyers should purchase one of the more than 100 different forms of environmental insurance currently available.

Environmental insurance is far more reliable than hoping that lawyers can convince the Wisconsin Supreme Court that manure is a product and not a pollutant in order to get around the absolute or total pollution exclusions found in most insurance policies.

Brian Hansen
American Risk Management Resources Network LLC, Middleton

Mourning the Loss of Joe Melli, Trusted Advisor and Moral Compass

Our firm, and the Madison legal community, lost a giant of a man when Joe Melli passed away in June.

Anyone reading his bio on our firm’s website would know that Joe founded our firm in 1958 and enjoyed a stellar career representing management in labor and employment matters, business law, and litigation. The bio also speaks of Joe’s service as the management co-chair of the Constitutional Law Committee of the ABA’s Committee on State and Local Government Labor and Employment Law; his term as president of the U.W. Law School’s Alumni Association; and that he served as a director of the State Bar’s Labor and Employment Law Section. He was proud of his Martindale-Hubbell “AV” rating.

Readers could see that he’d been recognized with various awards, including the “Lifetime Achievement Award” and “Leaders in the Law” from the Wisconsin Law Journal; the Leonard Loeb Award from the State Bar of Wisconsin Senior Lawyers Division; and the naming of the Dane County Bar Association’s mentorship program as the “Joseph A. Melli Mentorship Program” in honor of his work in co-founding that program. Other bar associations across the state have used that model for their own programs.                           

It’s also easy to see how active Joe was in the community he loved. He served as trustee and a member of the Executive Committee of the Madison Museum of Contemporary Art, a member of the Board of Directors of Tandem Press through the U.W.-Madison Department of Education, and on the Board of Visitors of Edgewood College. Joe and his wife Margo, a respected member of the Bar herself, not only generously shared their financial resources, but also gave their time and expertise to the legal and cultural communities.

What isn’t so evident from the printed words is the tremendous legacy Joe Melli left for our firm, and for current and future generations of Madison attorneys. In his printed obituary, Joe’s family called him a “trusted source of advice and moral compass,” and those of us who worked with him at Melli Law certainly agree with that characterization. Joe was a strong advocate for his clients and enjoyed nothing more than a good legal argument, but he treated everyone with courtesy and respect. He both modeled and expected the highest in ethical conduct. When he was leading our firm, he was known as tough, but always fair. He expected no more from others than the hard work he put forth himself.

As we receive condolence messages from Joe’s friends, clients, and fellow members of the Bar, we consistently hear the phrase “class act” and “true gentleman.” His work with the mentorship program will ensure that current and future generations of lawyers will be touched by Joe’s passion for the law. His leadership of our firm and the time he spent in mentoring the attorneys here at Melli Law made us not only better lawyers, but better people as well. Joe was both loved and respected, and he will be dearly missed.

Tom Crone and Phil Bradbury
Managing partners, on behalf of Melli Law S.C., Madison
TRC@mellilaw.com

Term-Limit Proposal Attacks the Wrong Problem

Amending constitutions is serious business. A State Bar of Wisconsin committee is proposing an amendment creating a 16-year “term limit” for Wisconsin Supreme Court justices. (See “A Conversation on Supreme Court Limits,” March 2014 Wisconsin Lawyer.) When we change fundamental rules about the way we do things, we need to ask hard questions. What is the problem that requires such serious medicine? Does the medicine really cure the affliction?

Our supreme court has been around – mostly leading the nation in judicial analysis – for 173 years. Now, apparently, there is a problem, both serious and permanent, that requires this constitutional amendment. I’m not convinced.

The Judicial Election Steering Committee’s report is some 6,000 words. This letter allows me 500 words for rebuttal. So, I’ll have to distill down the main points. But, briefly, the proposal is based on an unrealistic understanding of politics.

The problem, the committee says, is public confidence in the court. They claim their “proposal will improve confidence in the independence of the Wisconsin Supreme Court.” The committee predicts that with term limits “campaigns are less likely to generate unfair attacks on sitting justices.” But, if we look at how campaigns are actually run, that is simply not true. Any campaign, even for an open seat, could generate – and likely will generate – attacks on sitting justices. Political campaigns are waged like that all the time. Using politicians from other electoral districts as punching bags has elected many candidates. For example, Republicans rail against Nancy Pelosi and Democrats demonize Michele Bachmann in nearly every congressional district. To assume sitting justices won’t be punching bags in the next ruthless battle for an open court seat is clearly unrealistic.

The committee also claims a “candidate who wins is instantly freed from political pressures that might ... work to undermine judicial independence.” This argument assumes most candidates do not plan to have a job after sitting on a “term limited” court – a job that might undermine their independence while on the court. Apparently no such candidate would feather his nest for the next job. This also assumes that, once elected, our candidate automatically gives up his political biases – even though he was probably chosen and funded by powerful special interests precisely because of those political biases. That’s unrealistic.

The committee rejected the ABA’s own well-researched proposal – a form of merit selection with a follow-up retention election. Why? They say, “Politics plays a role in the selection panel.” However, the committee cannot deny that political pressure groups would, and do, play a much more powerful role in picking candidates for judicial elections. Term limits would not change that. In fact, this proposal creates a huge incentive for such groups to amp up the nasty politics for a one-shot 16-year electoral prize.

The committee admits, because of federal law, they really can’t propose campaign finance reform. That is the real problem. Obscenely powerful special interest money is destroying democracy. At least the ABA plan addresses that problem. If anything, this proposal makes it worse. If the body politic is sick – give it the right medicine or go home.

Daniel D. Hannula
Hannula & Halom S.C., Superior

Response: The Judicial Selection Steering Committee thanks Attorney Hannula and all bar members who have taken the time to read and comment on the Task Force’s report. It is true that constitutional amendments should be reserved for serious problems. But the public’s negative perception of the Wisconsin Supreme Court is a serious problem and one that warrants action from the State Bar. From discussions with bar members around the state, it is clear that most agree. The State Bar Board of Governors likewise agreed and endorsed the Task Force’s proposal nearly unanimously.

Far from being “unrealistic,” a hallmark of this proposal is its inherent practicality. The proposal was crafted by a Task Force that was intentionally bipartisan and whose members came up with a pragmatic solution – Wisconsin could, by constitutional amendment, start electing its justices to single 16-year terms so that no sitting justice, once elected, would ever have to worry about reelection again. A key advantage of this approach was that it would not politically advantage or disadvantage any viewpoint, thus making it politically viable. As proof of that point, the proposal was endorsed overwhelmingly by the Board of Governors, a politically diverse body that includes Republicans and Democrats, members of both the plaintiff and defense bars, and both criminal and civil practitioners.

The proposal should not be characterized as merely one of “term limits.” It is much more nuanced than that. If enacted, any elected justice would stay in office through four gubernatorial terms and eight different legislatures. Because there would be no reelection, the elected justice would be insulated from the perception that his or her decisions are impacted by political concerns about getting reelected. This is far more than a simple term-limits approach.

The proposal is not a cure-all, nor would it eliminate politics entirely from the supreme court. But rather than lament our inability to achieve some theoretical utopia, the State Bar instead proposes at least a significant step in the right direction. The perfect should not be the enemy of the good. Indeed, all of the asserted political criticisms raised against the proposal apply – with even more force – to the existing system. While the proposal might not eliminate them entirely, it cannot but help.

On the subjects of merit selection and campaign finance, the report discusses why both are not practical. Merit selection was considered and rejected in this state 40 years ago. And one need only look at the recent retention election campaigns in other states, like those of our neighbors in Iowa for example, to see that merit selection does not remove negative politics from the judicial selection process. As for campaign finance, many people have understandable concerns about the amount of money being spent on judicial elections. But any effort in that area would fall flat given the current state of First Amendment law as applied to campaign expenditures by the U.S. Supreme Court.

This is an example of the “Wisconsin Idea” at work – that our state is a laboratory of democracy, boldly looking for new solutions to problems as they arise. The Task Force’s report remains available on the State Bar’s website. If you have not done so, please read it and continue the discussion. If you are interested in getting behind the State Bar’s efforts, please contact the Judicial Selection Task Force.

Judicial Election Steering Committee members
judicialselection@wisbar.org; http://wisbar.org/judicialelections

Court Rejects State Bar Bylaw Amendment

Last summer I wrote to tell State Bar members how the Board of Governors at its June 12, 2013, meeting elected a delegate to the American Bar Association who was not a member of the ABA – contrary to the requirements of a State Bar bylaw.  At the same meeting the Board of Governors adopted a bylaw allowing it to remove one of its own members from office for “conduct contrary the best interest of the State Bar.” An amendment offered by me to protect a Board member’s First Amendment rights of advocacy, association, and speech was soundly rejected on a 34-3 vote.

Then came news that the State Bar had hired a private law firm to defend that bylaw – including the Board of Governors’ right to remove one of its own members for the exercise of his or her First Amendment rights – in a rulemaking proceeding before the Wisconsin Supreme Court. The law firm’s bill for a 21-page brief (plus appendix), associated work, and an appearance before the court: $27,688.70. (For the sake of full disclosure, I was one of the 27 State Bar members who petitioned the Court to review the bylaw, and I wrote two briefs against it. My bill to State Bar members: $0.0.)

Fortunately, the Wisconsin Supreme Court rejected the bylaw on a 7-0 vote. At the court’s conference discussing the bylaw, one justice labeled it as “insane” – a description with which a second justice concurred. At its meeting of April 26, 2014, the Board of Governors discussed this fiasco and its cost, but it did so only after closing the meeting to the public and press, lest Board members be embarrassed by a frank discussion of the truth in public – and your knowledge of it.

Then – to add insult to injury – the Board of Governors voted at the same April 26 meeting to raise your annual mandatory dues by $30. Disregarding its own bylaw; adopting a bylaw which allowed the Board of Governors to remove a board member for exercising his or her First Amendment rights; wasting almost $28,000 of your State Bar dues on a private law firm to defend the bylaw; then, raising your dues. The State Bar and its Board of Governors have sadly run far off the track. When is this going to end? When will we have a voluntary-membership State Bar?

Steve Levine
Madison, WI

Response: I’d like to respond to Mr. Levine’s letter regarding the State Bar’s proposed bylaw to remove officers and members of the Board of Governors. This was not an amendment to discourage freedom of speech. We are all lawyers and understand the need to hear both sides of an argument.

The Board spent years of careful study and consideration before adopting the bylaw, modeled the removal provisions on those existing in other bar associations, and was motivated by a desire to avoid problems it observed in other state bar associations that led to questions about how the State Bar would handle similar situations without appropriate provisions in its bylaws.

Suppose a member of State Bar leadership misappropriates funds or is convicted of an inexcusable crime. Fortunately, the State Bar has not encountered these situations. But, they are behaviors for which the Board of Governors has no recourse but to hope the officer involved resigns. You don’t have to imagine it because that is exactly what happened in other bar associations around the country and the procedural dilemma currently in existence for the State Bar of Wisconsin. Under our existing rules and bylaws, an officer or member of the Board of Governors cannot be removed for even the most egregious acts. These situations experienced in other states are also the reason the Board of Governors, by a vote of 38-2, acted to protect the integrity of the association by adopting a bylaw that would give it the authority to remove officers in extreme cases. The bylaw also provided for a super majority vote, 75 percent of those serving on the board, as a very high hurdle to bringing a removal action. Members of Congress can be removed upon a two-thirds vote for the same behavior. They represent hundreds of thousands of people in their districts across the nation.

While the Wisconsin Supreme Court ultimately disagreed with the wording of the proposed bylaw, the ability of the elected leadership of the State Bar to act to uphold the integrity of the organization remains a key concern for the leadership, one worthy of defending then and going forward. The Board of Governors’ Committee on Governance will redraft a proposed bylaw for consideration during this next year. The supreme court formed the State Bar of Wisconsin, “to foster and maintain on the part of those engaged in the practice of law high ideals of integrity … and high standards of conduct.” (SCR 10.02 (2).)

To be clear, this issue is not a mandatory or voluntary issue. We believe that our membership would agree that if an elected member of our leadership commits an egregious act, we should have the ability to address the issue to protect the organization. I would invite Mr. Levine to continue working with us in drafting a revised bylaw that would address this issue.

Bob Gagan
President, State Bar of Wisconsin, Madison

Restore Dignity to Profession

Bob Dylan famously sang that quote, “times they are a changing.”

They certainly are, in many ways, good and bad.

When I graduated from the U.W. Law School in 1960, there weren’t any women in that class and when I was admitted to the Wisconsin Bar two months later, there weren’t any women there either. Today, about half of law school graduates are women, a remarkable change in a relatively brief period of time. Bravo.

In 1960, lawyers were deemed professionals and rarely, if ever, advertised; ergo, lawyers are not merchants of commerce or makers of goods.

Law, a discipline and calling is esoteric, compelling, and rampant with intangibles, much like life itself, and worthy of more than ongoing cheap advertisements and self-serving commercials.

We are now bombarded from morning to night by TV ads regarding personal injury, tort, and automobile accident law firms or what consumers occasionally refer to as “ambulance chasers.”

The frequency of these commercials has been escalating at a feverish pace, resembling a frenzy of sorts, essentially an embarrassment of riches. Reasons for the activity include increased competition, lucrative contingent-fee agreements, liberal tort-liability laws, greater willingness of insurers to settle claims, increased opportunity for punitive-damage awards, and the ease with which attorneys can now commercially advertise their wares.

Hopefully, this growing and disturbing public aggrandizement will significantly diminish and thereby restore some of the respect the legal profession deserves.

Sheldon B. Sepstead
Emeritus Attorney, Grafton

Here’s What You May Have Missed

Not connecting with us online? This month we highlight readers’ comments posted to online articles. Let’s hear what you have to say. Post comments to WisBar.org, InsideTrack, and Wisconsin Lawyer articles or respond to Facebook, LinkedIn, and Twitter posts. Or simply email the editors at wislawmag@wisbar.org.

G. Lane Ware Leaves Legacy of Mentorship and Leadership

On June 5, 2014, we sadly marked the passing of our good friend and former State Bar President G. Lane Ware. Lane held many roles in his life. As news of his sudden passing travels the legal community, the common theme is he was a mentor and leader to many.

Responses: Lane will long be remembered as a shining star of our profession. A fine lawyer; a gentleman who was always ready to offer help and sterling advice when I was Bar president. – Tom Basting

Lane was one of my mentors and a person whose great personal warmth and capacity for growth was a real inspiration. – Hon. Gary Sherman

Lane was such a great leader and so willing to teach and help. He has been a mentor to me in my practice and in establishing my own firm as well as in my bar leadership. – Michelle Behnke

Lane was a kind and generous person. It’s no wonder, then, that he was a mentor to so many of us. He was an excellent lawyer and an equally excellent person – and that’s quite a legacy. – Gretchen Viney

To say Lane Ware was a class act would be an understatement. From the time he filled in at the U.W. Law School placement office during his law school career to the time of his death he was a lawyer’s lawyer – the best. God’s speed, Lane. – Keith Johnston

Settlement Marks Win for LSAT Takers with Disabilities, State Bar of Wisconsin Supported Changes

A recent settlement means organizations administering the Law School Admissions Test (LSAT) can no longer deny testing accommodations to individuals with qualifying disabilities and must end a policy of “flagging” score reports to law schools if a test taker received an accommodation, such as more time to take the test. (WisBar InsideTrack, June 18, 2014.)

In 2011, Richard Brown, chief judge of the Wisconsin Court of Appeals, had urged the State Bar of Wisconsin to co-sponsor a resolution supporting the changes that were ultimately outlined in the settlement agreement arising from the litigation against LSAC, the Law School Admissions Council. The State Bar Board of Governors voted to co-sponsor a resolution promoting equality for disabled individuals who apply for and take the LSAT.

Responses: I read with amazement the length of time it has taken the LSAT folks to get their act together.

In 1977, in anticipation of applying to law school at Ohio State, I requested a large-print version of the LSAT on account of poor eyesight. I was informed that a large-print version could be provided, but that it would have to be administered separately from other test-takers because there would be no time limit on the exam. I said I did not want extra time, just something I could read. They would not budge. The law school said that it would not accept the results of the large-print exam because it had nothing to measure the test results against if the test was not timed. Ohio State let me in anyway. Miraculously, I managed to graduate, moved to Wisconsin to clerk for a federal judge, and thereafter started practice at the firm where I remain today.

Sometimes people with disabilities need a hand, not because they are incapable, but because of a limitation. I have met few people who do not have a limitation of one kind or another. At the end of the day, irrespective of our limitations, as lawyers we must serve our clients and support our colleagues. If we do this while in a wheelchair, with hearing aids, or using a magnifying glass, certainly that does not matter (as to those for whom it does matter, well, that is what I would call a limitation). – Philip Halley

Kudos to Judge Brown and [the State Bar of Wisconsin] for supporting this long-overdue leveling of the playing field. As sworn officers of the court we have a duty to work toward justice for all …, and there is no place in that obligation for indiscriminate gate-keeping. – Kathryn Bullon

Should Trial Lawyers Handle Their Own Appeals?

No. Providing good client service may include finding other attorneys who concentrate in appellate work to take on clients’ cases that are appealed after trial. Author Kimberly Alderman’s explanation why the answer to that question generally is no, prompted some readers to post comments online. (June 2014 Wisconsin Lawyer)

Responses: There is also a middle ground that may be available if you are not a sole practitioner: have the trial lawyer work with someone else in the firm that focuses more on appellate work than trial work. This worked well in my former firm. – Kathryn Bullon

I read this article and have to disagree. While some trial lawyers have tunnel vision on appeal, or are wedded to trial court arguments, no one knows the case better than the attorney who tried it. If a different attorney does the appeal, you are paying more. – Nick Zales

Yes, I agree with Kathryn – that’s a far better way to save a little money. It can be cheaper to have the trial lawyer draft an appeal, but for the reasons discussed in the article (and in the judicial opinions referenced), it’s in almost all instances better to spend the money on a specialist. I agree that appellate lawyers have to relearn the case, but that process can be streamlined via appropriate consultation with trial counsel. Also, just by the nature of psychology, trial counsel are loathe to point out their own errors (are they going to call themselves ineffective, for instance?), which in some instances (or many, such as in Wisconsin criminal appeals) is the best path to relief. Just food for thought! – Kimberly Alderman

Tweets from the State Bar Annual Meeting and Conference

Attendees at the AMC held in Lake Geneva in June enjoyed an unexpected visit from Green Bay Packers head coach Mike McCarthy, who served as emcee during the presidential swearing-in ceremony for his friend Bob Gagan. Attendees enjoyed the plenary and CLE offerings as well as all the social and networking events. Here are a few of their tweets:

Goldenrail: Judge says we are put on earth for 2 purposes: 1) service 2) have a lot of fun. I think WI lives by these #sbwamc #ILoveWI.

Amesia: #sbwamc trial advocacy session before packed audience: so far more exciting than #USAvGermany world cup game.

Jesse Dill: Couldn’t have been more impressed w/closing keynote at #sbwamc & esp neat to share a laugh with Robert Gibbs in the hallway beforehand!

Amesia: #sbwamc dems and repubs finally agree! Karl Rove: NSA, are you reading this? Robert Gibbs: Trust me, they’re reading everything!

Erica Lopez: At my first Annual Meeting and Conference. Looking forward to all the CLEs.

Anthony J. Gray: Just bumped into @StateBarofWI president elect, Ralph Cagle at #sbwamc. Congrats Ralph, we are lucky to have you!

Johanna R. Kirk: Who knew coach McCarthy was so funny? He did a great job at #sbwamc.

StateBarofWI: A HUGE thank you to all #sbwamc tweeters! Hope you had fun and we’ll see you again next year and at future SBW events.