Monday, June 21, 2010

Court: Party membership is First Amendment right - WISCONSIN LAW JOURNAL

Court: Party membership is First Amendment right
by David Ziemer

Wisconsin’s judges may join political parties.

Writing for the Seventh Circuit on June 14, Judge John D. Tinder concluded, “The state does not have a compelling interest in preventing candidates from announcing their views on legal or political issues, let alone prohibiting them from announcing those views by proxy.”

However, the court reversed in part the lower court opinion by Judge Barbara Crabb. The court held that the state may prohibit judges from endorsing partisan candidates for office and from personally soliciting campaign contributions.

Erik Guenther and Larry Dupuis authored a brief in support of the American Civil Liberties Union of Wisconsin as amicus curiae, in Siefert v. Alexander, No. 09-1713, 2010 WL 2346659 (7th Cir., 2010).

The full article is available here.

Friday, June 18, 2010

Vollbrecht awaits word on appeal - BARABOO NEWS REPUBLIC

By Christie Taylor / News Republic

Defense lawyers and state prosecutors have completed hearings presenting more evidence this week in the case of Terry Vollbrecht, who was convicted of murdering 18-year-old Angela Hackl more than 20 years ago, and who is appealing with the argument that his conviction was purely circumstantial.

If Vollbrecht is to get a new trial it could be several months before that determination is made.

Dodge County Circuit Court Judge Stephen G. Bauer presided over the hearings this week and in February which will determine whether the decades-old case is brought to the Wisconsin Court of Appeals. Vollbrecht's team must convince the judge they have uncovered significant new evidence for a new trial, or that the prosecution withheld evidence from the defense during Vollbrecht's first trial in 1989.

Hackl disappeared in June of 1987, after spending an evening drinking with friends in Sauk City, and was found several days later hanging from a tree in a lover's lane west of the village. Court records state she had been shot several times in the back.

Before Hackl's body was found, Vollbrecht had freely admitted leaving the bar with Hackl and having consensual sex with her. Law officers focused on him in the months of investigation which followed, and he was charged in October of 1989.

Innocence Project attorneys and law students spent most of this week and a week in February presenting evidence they say casts suspicion on others, including Kim Brown, who was convicted of a similar murder in Adams County the same summer. They also point to former Sauk Prairie Patrol Officer Tom Perschy, who allegedly had a history of sexually harassing women, as a potential suspect in the Hackl case,

On Tuesday, Innocence Project attorney Ion Meyn testified a variety of potentially-important reports from the Wisconsin Department of Criminal Investigation had not been provided to Vollbrecht's attorneys until April of this year, including an account from Portage resident David Kenevan.

Kenevan, a co-worker of Kim Brown, had said he heard second-hand that Brown had mentioned tying up and sexually abusing women.

Ultimately, Bauer said, the defense would have to prove the evidence had not been available at the time of the original trial.

Also this week, state prosecutors brought forth witnesses whose testimonies, they said, countered these contentions, including veteran Sauk Prairie Patrol Officer William Richards. Richards testified that Perschy's activities on the night of the murder did not match the account of a defense witness, who reported seeing Perschy at a Sauk City gas station with a blonde woman in his car.

The hearings completed with brief presentations of evidence Friday morning. The teams will now put together briefs of their arguments for and against a new trial using the evidence presented this week and in February. That process could take more than three months, after which it will be up to Bauer to sort through the briefs, evidence, and hearing transcripts to determine whether Vollbrecht will be allowed to appeal.

All told, the lawyers presented more than 100 exhibits for consideration, including documents and physical evidence.

"The UW innocence Project and Mr. Hurley and I have been working very hard in the hopes that Terry will have an opportunity for a new trial," defense attorney Erik Guenther said. "And we think he deserves it."

Monday, June 14, 2010

Federal appeals court agrees state judges can join political parties - WISCONSIN JOURNAL SENTINEL

By Patrick Marley of the Journal Sentinel

Posted: June 14, 2010

Madison — Wisconsin judges can join political parties but cannot endorse partisan candidates or directly solicit campaign donations, a federal appeals court ruled Monday.

The decision "simply allows you to be honest and forthright about party affiliation, whereas before you had to play pretend," said Milwaukee County Circuit Judge John Siefert, who brought the lawsuit against state officials in 2008 so he could join the Democratic Party.

State judges have distanced themselves from political parties for more than a century and were explicitly banned from joining them starting in 1968. But last year, U.S. District Judge Barbara Crabb ruled in Siefert's favor and overturned the ban on First Amendment grounds.

On Monday, a three-judge panel of the 7th Circuit Court of Appeals agreed with Crabb that judges can join parties but overruled her on other aspects of the case. Crabb had ruled judges could endorse partisan candidates and make direct appeals for campaign cash, but the appeals court said the state's ban on those practices is acceptable.

The appeals court decision and Crabb's earlier ruling mean judges can join political parties and broadcast their affiliations to voters. But judges will not have their party ties printed on ballots, as happens in Illinois and 11 other states.

The decision is rooted in a 2002 U.S. Supreme Court decision that struck down a Minnesota ethics code that said judges couldn't publicly state their views on disputed legal and political issues. The appeals panel Monday said Wisconsin could not bar judges from signaling their views "by proxy" by joining political parties.

But the 2-1 decision upheld the state's ban on partisan endorsements, saying it helps prevent judges "from becoming party bosses or powerbrokers" and thus combats corruption. The state ethics code allows judges to endorse judges and others running for nonpartisan offices.

Former state Supreme Court Justice Jon Wilcox said he did not expect many judges to sign up with parties.

"In my opinion at least, it's better for a judge to exist as they best can in a nonpartisan capacity," Wilcox said. "If you have partisanship enter in, then there's always the suspicion (of partiality), and that's what's happened with the court both federally and in the state."

Siefert said he would appeal the case to the U.S. Supreme Court to try to get the court to allow him to make some fund-raising appeals.

"If you can't ask for money, then it means special interests can hijack the campaign messages," he said, referring to heavy spending in the 2007 and 2008 state Supreme Court races.

Siefert said he thought the U.S. Supreme Court would take the case because appeals courts in two other districts have said judges can make solicitations for money.

In Wisconsin, judges can sit on their campaign finance committees and appear at their own fund-raisers, but cannot ask supporters for money or even sign their own fund-raising letters. Requests for money fall to their campaign managers or other associates.

According to Monday's decision, judges in Wisconsin disassociated themselves from parties long before their party affiliations were removed from ballots in 1913.

But Siefert said the public usually knows if judges have ties to parties.

Wilcox served in the Assembly as a Republican, as did Justice David Prosser. And last month, former Rep. Gary Sherman (D-Port Wing) was appointed to the Madison-based District 4 Court of Appeals.

The ruling comes at a time when the deeply divided state Supreme Court has been roiled over how to rewrite its ethics code. In January, the court adopted a rule, 4-3, that said campaign contributions from people with pending cases are not enough, by themselves, to force judges to step aside.

Siefert filed his suit against the members of the state Judicial Commission because the group oversees the ethics code. Jim Alexander, executive director of the Wisconsin Judicial Commission, said Monday's ruling represented progress because it does not allow endorsements of partisan candidates or direct fund-raising solicitations.

Special Assistant Attorney General Kevin St. John called the decision a "partial vindication" that helps create a judiciary that "is fair and appears fair." St. John said the Department of Justice is reviewing whether to appeal the ruling on joining political parties.

Siefert, a former police officer, was elected Milwaukee County treasurer as a Democrat in the early 1990s, but he quit the party to sit on the bench, both as a municipal and circuit court judge. He rejoined the Democratic Party after Crabb issued her ruling last year, and he spent last weekend as a delegate to the party's annual state convention in Middleton.

Monday's decision was written by Judge John Daniel Tinder and joined by Judge Joel M. Flaum.

Judge Ilana Diamond Rovner dissented. She wrote that the court needed to apply a different test to reach its decision but said she likely would have reached the same conclusion as the majority.