De Novo
Date
Published by the Appellate Practice Section of the State Bar of
Wisconsin
Jeff Davis' Term as Appellate
Practice
Section's Chair:
A Busy Year of Accomplishments for the Section
Susan R. Tyndall, CMT Legal Group Ltd.
Jeffrey O. Davis, a partner at Quarles and Brady LLP, was recruited by Appellate Practice Section founder and former chair Colleen Ball to join the fledgling section six or seven years ago. Jeff not only joined, he led. Since his recruitment, he has been elected to the board, serving as the Treasurer, Program Chair for a couple of years, then as Chair-elect, and finally, Chair. Under Jeff's leadership this past year, the section has been involved with a number of high-profile activities, involving educational opportunities for Bar and section members as well as shaping appellate practice and procedure in Wisconsin. The section's board acknowledged its appreciation for Jeff's leadership and hard work during his term.
Jeff's focus during his term was upon educational opportunities. "One of the things I think it is important for a section to do, and I try to do this, is quality programming," says Jeff. During his term, the section did just that. Last fall, the section organized and presented "Appellate Practice in Your District," featuring District II. This seminar was extremely well attended, in large measure due to Jeff's unflagging efforts to encourage attendance. Then, during this year's Annual State Bar Convention, the section presented: "An Ever-changing Legal Landscape: Frequently-litigated Issues at Trial and on Appeal," with distinguished speakers such as retired Wisconsin Supreme Court and Court of Appeals Judges William Bablitch and William Eich, among others. Jeff himself spoke on the subject of the economic loss doctrine.
This successful program was followed by the 2005 Appellate Advocacy Workshop held at Marquette University Law School, co-sponsored by the Seventh Circuit Bar Association. Jeff was the idea man who brought the Seventh Circuit Bar Association and the section together and, as with the other seminars presented during his tenure, Jeff was a very hands-on Chair, assisting in the planning and volunteering his time at the Workshop as well. The Workshop featured not only speeches by luminaries such as Cornelia Clark, clerk of the Wisconsin Supreme Court and Court of Appeals, and Andrew Kohn, chief deputy clerk of the Seventh Circuit Court of Appeals, Wisconsin Court of Appeals Judge Ralph Adam Fine, and Staff Attorney Ron Hofer, as well as prominent local attorneys, but also a distinguished panel of judges who donated their time to "judge" oral arguments by the participants.
In addition to guiding the section through these activities, Jeff oversaw the section's participation as an amicus party in Howell v. Denomie, 2005 WI 81, in which the section's amicus brief, authored by Michael Halfenger and Michael Heffernan, and edited by Jeff, helped persuade the Wisconsin Supreme Court that an award of frivolous costs on appeal required procedural due process, including notice and an opportunity to be heard. Jeff proudly notes that Mike Halfenger was allowed to argue the case before the Supreme Court, an unusual role for amicus counsel. "Mike Halfenger and Mike Heffernan did a really nice job," Jeff explained. The amicus brief "really put a nice face on the section."
Jeff's background and appellate experience clearly shaped his leadership this term. Jeff, a 1987 graduate of Ohio State University Law School, began working at Quarles and Brady as a new graduate. There, Jeff has honed his practice, roughly two thirds litigation and one third appellate litigation. Jeff's primary practice areas include insurance coverage as well as non-compete and trade secret cases.
Jeff has handled numerous appeals in state and federal courts. He has also assisted, with Colleen Ball, in the pro bono committee of the Appellate Practice Section, assisting on the pro bono appeals committee of the section, which seeks appellate counsel to handle pro bono appeals in both Federal and State courts, including Wisconsin.
Jeff has spent years litigating a pro bono case, seeking relief for a prison inmate sentenced to death for his role as an accomplice in a prison breakout in which a fellow inmate shot and killed a prison guard. Jeff has litigated numerous issues in that case, including ineffective assistance of both trial and appellate counsel, resulting in written and oral arguments in the Florida Supreme Court as well as the Eleventh Circuit court of appeals. In fact, Jeff has prepared six separate petitions for certiorari to the United States Supreme Court in this case. Although the court ordered the record in response to one of the petitions, certiorari was ultimately not granted.
Jeff has also participated in high-profile Wisconsin cases, including the recent decision changing Wisconsin law regarding insurance coverage for environmental pollution, Johnson Controls v. Employers Insurance Company, 2003 WI 108, 264 Wis. 2d 60, 665 N.W.2d 257 and Tietsworth v. Harley-Davidson, Inc., 2004 WI 32, 270 Wis. 2d 146, 677 N.W.2d 233, which delineated the scope of the remedies, including the further refinement of the economic loss doctrine, in a class action suit where the plaintiffs claimed only a diminished value of the potentially defective motorcycles.
Jeff "is one of the finest appellate lawyers I know - with just the right blend of scholarship, thoughtfulness and street-smarts; and when someone like that also has a wonderful, if understated, sense of humor and a high level of writing ability and communicative skills, it's quite a package. Jeff put all those talents to work as Chair of the Appellate Section Board of Directors and, as Board Secretary, taking all those notes on him, I quickly learned that he also runs a darn good meeting," said retired Appellate Court Chief Judge and Section Secretary, William Eich.
Colleen Ball agrees. "It isn't easy to keep a meeting of 16 lawyers and judges on topic and on schedule, but Jeff ran a tight ship. More than that, over the past seven years Jeff has donated literally hundreds of non-billable hours to the improvement of appellate practice in Wisconsin. He has served as treasurer and chairman of the section, acted as producer, moderator and/or speaker for many CLE programs, authored numerous De Novo articles, volunteered for pro bono appeals, and headed up several committees to boot. Few lawyers are willing to devote that amount of time to a nonprofit cause. He deserves a standing ovation." Section Chair Michael Heffernan commented, "Jeff's diligent stewardship as Chair, including overseeing three major CLE programs and co-authoring an amicus brief on behalf of the Section, makes him a hard act to follow."
Thanks, Jeff, on behalf of the entire section, for your hard work and dedication during your term as Chair of the Appellate Practice Section.
Chairperson's Report
Michael S. Heffernan, Foley & Lardner
When asked to explain why they choose to belong to a particular section of the State Bar, most practitioners would simply note that it is their primary area of practice and point to the CLE programs sponsored by the section. It could be argued, however, that the most important role played by a section is to represent the unique concerns of its membership not only within the State Bar, but in the legislature and the courts. Although the Appellate Practice Section is not a lobbying section per se, we regularly take positions on matters of appellate procedure and policy and, I am pleased to say, our views are, generally, well received.
Usually this consists of appearances by members of your board before the Board of Governors or in Supreme Court rule proceedings. As many of you already know, however, the section recently participated as amicus curiae in a case decided by our Wisconsin Supreme Court in a matter raising the question of what procedures should be followed by the Court of Appeals before it determines an appeal to be frivolous. Howell v. Donomie, 2005 WI 81. I am pleased to report that the Supreme Court found the position expressed by your section to be persuasive:
The Appellate Practice Section of the State Bar in its amicus curiae brief opined that there should be notice and an opportunity to respond whenever the Court of Appeals is considering ruling that an appeal is frivolous. We agree with the Appellate Practice Section of the State Bar's position and conclude that in order to determine that an appeal is frivolous, the Court of Appeals is required to give notice that it is considering that issue. It must also give an opportunity to respond to the issue before a determination is made.
Howell at ¶ 18.
Now, any party wishing to raise frivolousness on appeal must do so in a separate motion to the Court; the claim cannot be hidden in the brief. Moreover, the Court of Appeals, itself, can no longer raise and decide the issue of frivolousness in its dispositional order by imposing sanctions. A finding of frivolousness is serious business, and the requirement that the basics of due process - notice and hearing - be afforded as a prerequisite should be welcome news for all appellate practitioners.
The section's amicus brief was authored by past chair Jeff Davis and Mike Halfenger, with Mike appearing for the section at the oral argument. Congratulations to both of you on a job well done!
Of course, the Howell decision does not answer all of the questions surrounding frivolous appeal procedure. The section proposed that this issue be more fully explored and resolved in rulemaking proceedings. If, and when, that and other issues of appellate interest come up, your section will be there on your behalf. I will keep you posted.
Editors' Note: Mike Heffernan also assisted in writing the Howell brief. See Susan Tyndall's article on Jeff Davis' term as Appellate Practice Section chair elsewhere in this issue.
In Chambers
Nicholas C. Zales, Zales Law Office
Justice Jon P. Wilcox, Wisconsin Supreme Court
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Justice
Jon P. Wilcox |
Justice Jon P. Wilcox, is a true old-fashioned gentleman lawyer whose extraordinary Wisconsin legal career spans five decades. He is legendary for his thoughtfulness, graciousness and kindness on the bench and off. A scholar, conservationist and avid fly fisher, he sets a modern standard for judicial civility and public service to the Court, State Bar and people of the State of Wisconsin. As he noted with his typical understated pride, "I have been in public service for 35 years. Two in the military (as an ROTC 1st Lieutenant from Ripon College), a year and half as a court commissioner, 6 years as a State legislator, 13 years as a trial court judge and it will be 13 years I have served on the Wisconsin Supreme Court as of September 1, 2005." Jon Wilcox, 68, is married to Jane Ann and they have two children, Jeffrey and Jennifer. Jeffrey and his wife, Deborah, are both lawyers in Ohio; Jennifer and her husband, Shaun, are Wisconsin residents and the parents of Jon and Jane Ann's two granddaughters, Alexandra and Jaina.
Growing up in Wild Rose
Justice Wilcox was born in Berlin, Wisconsin and raised in Wild Rose, Wisconsin. Wild Rose was a town of about 500 people in his youth and 750 today. Wild Rose is located about 50 miles West of Oshkosh and 80 miles North of Madison in Waushara County. Jon enjoyed the small-town lifestyle of a sharing and neighborly community. As he said with a wry smile, "Growing up in Wild Rose, you knew everybody and you did not have any enemies because you could not afford to, because there are so few people. I know it gave me a unique viewpoint of looking at life and being able to work with people, and that is what I think I have been doing ever since. It is all about realizing that the real mark you make is of leaving people with good memories about the good works you did for them. You try to do the right thing and I follow that in my judicial philosophy."
Growing up in the country, he became fascinated with nature and began his lifelong passion for conservation and the outdoors while exploring the region's lakes, rivers, lush fields and forests. An early scholar, he was class valedictorian of the Wild Rose High School Class of 1954. Following his interest in public service, he attended Ripon College where he earned his B.A. in 1958 majoring in political science and minoring in history. When asked if the B.A. instead of a B.S. degree meant he had studied a foreign language, Justice Wilcox replied in Spanish, "Si, pocito." Who knew Justice Wilcox spoke Spanish?
Following his military service, he attended the U.W. Law School and graduated in 1965. As a new lawyer he was engaged in private practice with a La Crosse law firm. Later, he moved to Wautoma, Wis., his wife's hometown and near Wild Rose, to start his own firm. Only four years after becoming a lawyer Jon Wilcox was elected to the Assembly where he served three terms (1969- 1975) representing the 72nd District. As he related:
"They asked me to run for the Assembly in 1968. My law partner was not happy about that but he accepted it after I won. I loved it. The legislature was a wonderful experience. Still, after six years my partners wanted me to come back and work full time. Back then, they paid us $9,900 a year to serve in the Assembly. So I came back. My firm by then had five lawyers and there were only about eleven in all of Waushara County. We liked to think we had half the county's legal business. I truly loved the private practice of law. I was focused on litigation and real estate matters, and even did some criminal law defending a quadruple homicide case. That was very interesting. I enjoyed it all very much."
Write-in Election to the Circuit Court
Jon Wilcox won his first election to the Waushara County Circuit Court as a write-in candidate. As he related this unique story, "Gov. Martin Schreiber had appointed my friend Atty. James Poole to the bench in 1978. On January 2, 1979, at the filing deadline, he came down to Madison to file his nomination papers. As he had no opponent, after filing his papers, he went across the street to have a celebratory libation with some friends and when he got there, he collapsed and died of a heart attack. In the election, four of us ran, all as write in candidates, and my opponents were all very good candidates. I was fortunate enough to win. I did not covet the bench because I enjoyed the private practice of law so much, but once I began to serve, I found being a circuit judge in a rural county is a wonderful job; one that I enjoyed waking up to every day."
In addition to his service to the State Bar as a member of the Wisconsin Law Foundation and the Bench and Bar Committee, and serving as a Waushara County circuit judge from 1979-1992, Jon Wilcox served as chief judge of the Sixth Judicial District from 1985 to 1992, and chaired the Wisconsin Committee of Chief Judges from 1990 to 1992. He chaired the Wisconsin Sentencing Commission from 1987 to 1992 and taught at the Wisconsin Judicial College for 12 years.
From Waushara County to the Wisconsin Supreme Court
The retirement of Justice William Callow in 1992 created a vacancy on the Court. Jon Wilcox was at a judicial seminar in La Crosse at the time. "I remember it very well. I received a phone call asking if I was interested in an appointment, and I said, no, I would not be, I am really not interested." And why not? "Because I enjoyed being a circuit judge so very much. I was close to my relatives and would not look forward to traveling back and forth to Madison. My home is Waushara County. I enjoyed 'riding the circuit' as chief judge in those rural and beautiful counties and that was judicial travel enough. There is no quick and easy way to travel from Wautoma to Madison. It is a 1:45 minute drive - in good weather. Still, I thought more about it, and talked to some friends and I decided to toss my hat in the ring. There were about 18 people interviewed and the three finalists were Judge Harold Froelich, Atty. Larry Bugge, and myself. Governor Tommy Thompson appointed me to the Court in 1992. I sat next to him for two years when we served in the legislature together. Justice Nathan Heffernan was the Chief Justice at the time. And so I have now served under three chiefs, Heffernan, Roland Day and Shirley Abrahamson, all fine people and jurists. In 1997 I won a contested election and my current term runs through July 31, 2007."
After a month of making the drive from Wautoma to Madison Jon Wilcox and his wife purchased a condo near Madison but still kept their Wautoma tree farm for really getting away from it all. With great pride, Justice Wilcox notes that in the past 55 years he has personally planted more than 250,000 pine trees, "either driving or sitting on the planter or planting by hand." With great pleasure he notes that "it's amazing to see these trees I planted back in 1955 which are now 50-60 feet tall. I think 'oh, my gosh they are big.' It's something I take great pride in. Conservation is very important to me." I love Waushara County because I love trout fishing and fly fishing is my hobby. I learned it from my father before it became fashionable. He would tie flies and he taught me how to do it myself. I live in Madison out of necessity, but my real home is in Waushara County." Carrying on his tradition of loving nature and conservation, he was elected to the Wisconsin Conservation Congress from 1975 to 1980.
Changes in the Legislature
How has the Wisconsin legislature changed since the early 1970's?
"It was much less partisan in those days. You would have friends on both sides of the aisle. The arguments were not so personal and the cost of running for office not so high. The partisanship is so much greater today than when I served and I am not sure why. It could be that the stakes are higher and that technology plays a role. I often like to reflect on how much things have changed and how we can adapt to it to make the system work for the people. It used to be the Assembly Judiciary Committee was made up of all lawyers. I served on the committee with Gov. Tommy Thompson and Federal Judge John Shabaz, but today you will not find many lawyers who will serve because of the time commitment and pay. In my day, the pay was $9,900 per year, [and] that was part of the reason my partners wanted me to come back to Wautoma and practice law; and I also believed in a part-time, citizen legislature not the full-time body that exists today."
Changes at the Court
How has the Court changed over the years?
"We have expanded our established roles in almost every way and taken on new ones. One big change is our successful 'Justice on Wheels' program. In 1993 the court went on the road. We go out once each session to a different city and hear oral arguments. I think it has worked out very well, because it gives us an opportunity to meet people out in other areas and let them see how the court works. They seem to be fascinated by what we do. We have filled many courtrooms around the state and the people are enjoying seeing us conduct oral arguments and hearing us individually speak at receptions that are held when we meet out state. Public perception of the court is very important to me and I want to show the people that no matter who you are you will receive fair and impartial treatment. It is very nice to get out and talk to people who we would not see otherwise."
"Another great change is technology. The computer, Internet, and cell phones have changed how the court operates. We have so much more information at our instant disposal. I can reach my staff almost anytime from anywhere via cell phone or email. We all have computers and laptops and so we do not always need to be at the court to do our work. We have CCAP now, and when you want to find out something about a case, you can go find it out now. I did not have a computer until 1980 or 1981 when I was a circuit judge and so I practiced law for 14 years without one. They have really changed the practice of law. Some days I receive 30-40 email messages and while I enjoy the instant communication, I miss the personal touch and I think email misses the nuance, the expression, the personal touch that is required for some meaningful communication."
And what do you do with all these email messages? "Just keeping track of them is a lot of work and something I never imagined as a young lawyer. Now they are an integral part of judicial communication. I enjoy using my desktop and laptop computers to listen to our archived oral arguments and conduct some research. The computer complements the bound law volumes which I think are still important, because I can see several cases at a time with the books on my desk whereas with the computer it is only one case or screen at a time. I like to use them together."
"In the past, we would send out an opinion to West Publishing and they would check it and we would still have a couple of weeks to make any final corrections. Now, with our opinions posted on the Internet the day we release them, once the opinion leaves the clerk's office, it is out there for everybody to see and use, and there is simply no delay anymore. That is good and bad. The good is instant access for the public, the bad is the possibility that, as closely as we review these decisions, there still might be a mistake and once a case is out today it is too late to do anything about it. Any opinion I write I review with my staff about 12 times, but still, that is the difference and the time for correcting mistakes is gone. I must say the office of the Clerk of the Supreme Court does an excellent job in reviewing our decisions for errors before posting them on our Web page. Of course, with six other justices reviewing my work I sometimes feel like I am back in English class because I do get them back with comments on them. I do not mind that because we are trying hard to put out the best product we can."
"Today's court is more open to the public and much more involved in administrative work. Some of our oral arguments are broadcast live and archived on the Internet. The supervisory work we do is time-consuming and we are unique in that we conduct our administrative business in public. That has helped the court but requires more time. The court has of late been taking more cases; we used to take about 75 cases a year but recently we have been up in the 90s. Plus we each read about 100 petitions for review every month. Just the justices read those. We also supervise judicial and lawyer discipline and must be careful to take our time and do it right. I do not have any clerks or others read petitions because I just do not have time for that back and forth. So each justice reads every petition for review and that is a lot of work, because there are more of them today than when I began my service. In opinion writing, technology makes it much easier for me to look at all my old opinions so I can try to be consistent in decision making if it makes sense. Stare decises is an important legal rule, because it creates a needed consistency that allows the public to order their affairs and business accordingly."
What concerns Justice Wilcox most about the future of the Court?
"Whether we appoint or elect the judiciary, judicial independence is important. I was appointed to co-chair the State Bar Judicial Independence Commission by former State Bar president Pres. David Saichek. We went around the state and took testimony, issued a report and that may have been a forerunner to what is occurring today. I think the judiciary has kind of gotten beaten up in the last year, and while directed at the federal judiciary, it still transfers itself down to our state level. We need to ensure our judiciary remains independent to fulfill its role of applying the law fairly and evenly to all our citizens, no matter where they live or who they are without unfair pressure. Ours is a well-respected court and I hope I have done my part to make it that way and serve the public."
What does Justice Wilcox enjoy most about serving on the Court?
"I personally enjoy the give and take between the justices, the cooperation towards a common goal. Considering the other justices' ideas interests me. I also enjoy oral arguments. Oral argument is very important. It often has a great impact on the members of the court. I would say that in 15 to 20% of the cases answers from counsel at oral argument swayed the votes of some justices. It is extremely important, because we now hear all cases with oral argument. When I began in 1992, we decided some cases just on the briefs. Counsel should be clear, know the facts, and answer the questions asked directly, because if we ask, it is something we want to know. I also enjoy getting out to see and speak to the public, and I enjoy my service to the State Bar of Wisconsin very much. As much as I enjoy being outdoors hiking or fishing, I enjoy the intellectual stimulation of serving on the court just as much."
Changes in Supreme Court Commissioners Office
June 2005 saw a changing of the guard in the Wisconsin Supreme Court Commissioners office with the departure of its two senior lawyers. Joe Wilson, who joined the Commissioners office when it was created in 1972, retired and will be traveling with his wife (their first trip was an Alaskan cruise) and spending more time with his grandchildren. Greg Pokrass, who was appointed in 1981, accepted an appointment as a federal administrative law judge handling social security appeals. He will be based in Milwaukee.
Newly appointed commissioners are Coleen Kennedy and David Runke. Coleen served as district staff attorney for the Wisconsin Court of Appeals District III in Wausau since 1985. Coleen is a graduate of the University of Wisconsin Law School and prior to her work at the court of appeals she was in private practice in Wausau for several years. In her spare time, Coleen enjoys training race horses on her farm near Antigo and is excited about the prospect of entering her favorite quarterhorse, "Charge on Impressive," in next year's Kentucky Derby. David is a graduate of the University of Minnesota Law School and served as a law clerk in the United States Court of Appeals for the Eighth Circuit. Prior to his appointment as a commissioner, he was a partner at Michael Best & Friedrich LLP, in Milwaukee. David is looking forward to a trip next summer, when he hopes to do some trekking in the mountains of Nepal. Coleen and David join colleagues Nancy Kopp and Julie Rich.
By the Numbers
Wisconsin Supreme Court
From April 1, 2004 through March 31, 2005, 881 petitions for review were filed with the Wisconsin Supreme Court. One hundred seven were granted. Thirty-four petitions to bypass were filed, and four were granted. The Wisconsin Court of Appeals certified 23 appeals to the supreme court and 26 were accepted.[1]
During the 2004-2005 term, the supreme court heard oral argument in 99 cases.[2] In two cases additional briefing was ordered and the matters have been scheduled for a second oral argument during the 2005-2006 term. One case was dismissed as improvidently granted. In one case a petition for a writ was granted and rights were declared. Forty-four cases were reversed and in 51 cases the lower court's decision was affirmed at least in part.[3]
Wisconsin Court of Appeals
From January 1, 2004 to December 31, 2004, the Wisconsin Court of Appeals received a total of 3,296 filings. Of these filings, 1,711 were civil and 1,588 were criminal. Ninety-six percent of the cases were decided on briefs without oral argument.
The court of appeals affirmed 75 percent of the civil cases and 86 percent of the criminal cases. Three hundred and thirty three opinions were considered for publication. Sixty-eight percent were published. Seventy-five percent of the published cases were civil.
[1] The disparity in the number of certifications filed versus the number accepted is that not all cases are disposed of during the month they are filed and some cases are carried over to succeeding months.
[2] This number does not include attorney disciplinary cases.
[3] The mandates in some cases are more complex than a simple affirm or remand, i.e. affirmed in part, reversed in part and remanded. The numbers cited above indicate whether the Supreme Court's decision substantially affirmed or reversed the lower court. More specific data may be obtained from the office of the Supreme Court clerk.
Court Jesters: The Lighter Side of Appellate Practice
Nancy A. Kopp, Wisconsin Supreme Court Commissioner
Judges Helping to Stamp out Legal Redundancy, Surplussage and Unnecessary Verbiage
In Ranieri v. Monfort Supply, 159 Ohio App.2d 140, 823 N.E.2d 76 (2005), Judge Mark P. Painter of the Ohio Court of Appeals encouraged lawyers to eschew redundant language, while at the same time presenting a short history lesson.
The legal issue presented in the case was whether Monfort had the duty to defend and indemnify third party plaintiffs in a dispute involving a real estate conveyance and a longstanding easement. The trial court answered the question in the affirmative and granted summary judgment in favor of the third party plaintiffs. In affirming, Judge Painter wrote:
Monfort contends, "Although a 'clear title' is one that is not subject to any restrictions, the case at bar involved a 'free and clear' title, which is the same as a marketable title." So, according to Monfort, a free and clear title is worse than a clear title. Say what? ¶13
Would that Harold had not lost the Battle of Hastings. ¶14
Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the Old French cler. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last 900 years. ¶15
So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here - an assertion that they somehow have different meanings. ¶16
The Norman Conquest was in 1066. We can safely eliminate the couplets now. ¶17
More Animal Tales
In Commonwealth v. Gosselin, 2004 Pa. Super. 426, 861 A.2d 996. Judge Hudock of the Superior Court of Pennsylvania showed sympathy for an elderly squirrel and its human keepers. The opening line of Judge Hudock's opinion got right to the heart (or perhaps the nut) of the matter:
This appeal revolves around the life and times of Nutkin the squirrel.¶1
Nutkin's early life was spent in the state of ferrae naturae, in the state of South Carolina and, as far as we can tell, in a state of contentment. She apparently had plenty of nuts to eat and trees to climb, and her male friends, while not particularly handsome, did have nice personalities. Life was good. ¶2
Nutkin's carefree life was disrupted when she fell from her tree nest. She was rescued by the Gosselin family, which nursed her back to health and built a large room sized enclosure for her to life in. Judge Hudock noted, "Nutkin's captivity and domestication were perfectly legal in South Carolina, possibly a reflection of that state's long tradition of hospitality to all." ¶5
The legality of Nutkin's captivity changed when the Gosselins moved to Pennsylvania. A wildlife officer investigating a claim that a deer had been illegally shot on the Gosselins' property spotted Nutkin in her enclosure and advised the Gosselins that it was a violation of the law to keep a squirrel in that manner. Judge Hudock commented:
The Game Officer acknowledged that the squirrel was too old and too tame to be released to the wild (A situation akin to that of an old appellate judge, like the undersigned, attempting to return to the boiling cauldron of the trial court after being tamed by years of peace and quiet above the fray. Chances of survival of both species are poor.) . . .¶7
Nutkin would then learn the shocking truth that the cheery Pennsylvania slogan "You've got a friend in Pennsylvania" did not apply to four-legged critters like Nutkin. . . . [T]he Wildlife Conservation Officer issued a citation . . . for . . . "Unlawful taking or possession of game or wildlife." ¶9
The Gosselins were convicted of the offense and fined $100. They were subsequently vindicated and Nutkin returned to her contented state by the appellate court's interpretation of a provision in the Pennsylvania statutes saying that Pennsylvania residents were not prohibited from possessing wild animals lawfully taken outside of the state if the animals were tagged and marked in accordance with the laws of the state from which they were taken. Since South Carolina had no marking and tagging requirements for wild animals, Judge Hudock reasoned that Nutkin's lack of tagging and marking was in accordance with South Carolina law and, therefore, not violative of Pennsylvania law.
