State Bar of Wisconsin

Message from the Chair – Section Numbers Increase

By Susan R. Tyndall, CMT Legal Group Ltd.

Despite the recent March snow, I am convinced that spring is on the way. The tulips have peeked through the dirt and the sandhill cranes and robins are back, all signs that spring really is on the way. I am looking forward to warmer weather, spring flowers, and green grass.

Spring brings renewal in other ways, too, like the spring election of new leadership and members to the Section board. Anne Kearney, chair-elect of the Section and chair of the Section’s Nominating Committee, has done the difficult job of determining which seats are open and has nominated excellent candidates to fill them. She deserves our thanks for her hard work and our good wishes for her upcoming term as chair of the section. She has been so effective in every task she has undertaken for the section, and I am sure that under her leadership, our section will continue to thrive.

Spring brings new growth, and our section has new growth, thanks in large measure to Betty Eberle’s efforts in pursuing new members. Not only do we have new members, but we have members who have volunteered to work on committees or serve on the board. The growth of our section during economic hard times is particularly heartening to me.

So, too, is the generosity of our members. Lawyers continue to volunteer to write briefs for our section’s pro bono appeals effort, headed by Colleen Ball. Colleen has recently taken a new job at the State Public Defenders’ Office in Milwaukee, but she has agreed to continue to chair our Pro Bono Committee. Thanks, Colleen, and thanks to all who have volunteered to write briefs.

Particular thanks is due to Barb Janaszek and Don Wall, the most recent past chairs of the section. Both could have rested on their laurels but they have both volunteered with our program committee, Barb serving as head of the program committee and Don chairing the section’s program for the State Bar convention. Under their leadership, we have served up our first webinar and have an excellent program lined up for the convention.

Although spring brings many changes, one thing has stayed the same – and we are all the better for it! Salud Garcia, our State Bar liaison, continues to provide guidance to our section. Her gracious suggestions for improvement of our section (and sometimes for our newsletter articles) and good humor have made my job as chair immeasurably easier and more pleasant. At the beginning of my term, Salud told me that I would not singlehandedly bring about the demise of the section. So far, so good, Salud. Thanks for all of your help!

I look forward to seeing all of you at our excellent program at the State Bar Annual Convention on May 6!

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In Chambers with Wisconsin Supreme Court Justice Annette Kingsland Ziegler

By Nicholas C. Zales, Zales Law Office

Annette Ziegler

Twenty five years ago Annette Kingsland Ziegler was a junior at Hope College in Holland, Michigan, studying Business Administration and Psychology. A legal career was the farthest thing from her mind. Today she sits at the pinnacle of state judicial power as a justice of the Wisconsin Supreme Court. A lawyer of 20 years this May, she has devoted her legal career to public service. Of those 20 years she has spent more than half of them on the bench. Dynamic, stylish, intellectual, and very personable, it is easy to see how this self-professed “country girl,” transformed herself from a business student at a tiny Michigan college into a well-respected Washington County Circuit Court Judge and Justice of the Wisconsin Supreme Court.

Once she decided on a legal career, her aptitude for it was obvious. At Marquette University Law School she wrote her way onto the Law Review as a staff editor, and won a Dean’s Award for academic excellence. After earning her juris doctor degree in 1989, she went into private practice, met her husband, well known West Bend businessman J.J. Ziegler, and moved from Milwaukee to Washington County. J.J. and Annette Ziegler have three children, two boys, Charlie (12) and Drew (10), and J.J.’s daughter, Keller (19).

At age 33, after six years of general civil practice in Milwaukee and two years as a federal prosecutor in the Eastern District of Wisconsin, Annette Ziegler was appointed to the bench as Washington County’s first woman Circuit Court judge. She ran for reelection twice in 1998 and 2004 and was unopposed both times. Elected to the Wisconsin Supreme Court at age 44 in 2007, Justice Ziegler is in the second year of her term which runs through July 31, 2017. She is the 6th female justice and the 80th justice since statehood. In early March, 2009, a few days before her 45th birthday, she was kind enough to sit down at her satellite office in the West Bend courthouse and share her thoughts on her life and being a justice of the Wisconsin Supreme Court.

Growing up in Michigan

So you were born and raised in Michigan? Yes, I grew up just outside of Grand Rapids, Michigan. We did not live in the city. We lived in the rural Cascade area, and I went to public high school, Forest Hills Central High School. My bus ride was about one-hour each way. I have always liked sports. I was lucky enough to make the varsity tennis team as a freshman. I also was a cheerleader and so I played tennis in the fall and was a cheerleader for basketball in the winter. In the summer I enjoyed playing softball. Softball carried over to Wisconsin, as I used to play on several softball and volleyball leagues.

You are the first lawyer in your family? Definitely. My family is very down to earth. They are not politically active. I am the only lawyer in the family. My mother grew up on a farm in Evart, Michigan, about two hours North of Grand Rapids, and the farm is still around in her family. It is a ‘Century farm,’ a dairy farm that has been around for over 100 years. She received a nursing education through the Air Force during the war, but eventually gave up nursing to help dad start a business. My father grew up in Grand Rapids, in the city, and, like my mom, he did not have two nickels to rub together. My mother and father worked day and night and saved every penny they had to start the family hardware store. In fact, when my parents started dating, my grandfather wondered what kind of guy she was dating, because dad could not even afford a second seat in his car for my mother to sit on. Instead, she sat on a milk crate. My parents did not have a lot, but they worked very hard and were successful.

I have three siblings. I am the youngest and was a bit of a surprise. The closest sibling to me is nine years older. At one point, before I came along, the family lived in the back of the hardware store. After a few years, they were able to buy a house and then they moved a little farther out into the countryside and that is where I grew up. I have always been a “country girl.” As for my siblings, my oldest sister, was a public school teacher, she and her husband have two great children. My other sister, was a dental hygienist and now she is busy raising two children that she and her husband adopted from Romania. My brother runs the hardware store. He and his wife have two terrific sons, one who is training to be a Navy seal.

What did you do after high school? In 1982 I went to Hope College in Holland, Michigan. At Hope, I earned two bachelors’ degrees; one in psychology and one in business administration. When it came time to graduate, I did not know what exactly I should pursue. I debated the merit of obtaining an M.B.A., and I thought about studying to be an industrial psychologist. I spoke to a Hope guidance counselor and took aptitude tests, and the results kept coming back that I should be a lawyer. I had not thought of the law. We did not have lawyers in our family. I did not know if my parents would approve. However, when I asked them, as staunch supporters of education, they immediately agreed and were not surprised that I might have the characteristics of an attorney. However, initially when I went to law school, my intent was not to practice as a lawyer; it was to enter into the business world with a law degree.

Making the Move to Milwaukee

You are a graduate of the Marquette University Law School Class of 1989, why did you choose Marquette? I applied and was accepted by a number of law schools but, with my parent’s permission, I decided to attend Marquette. I liked Milwaukee the first time I set foot here. I feel that my education at Marquette prepared me well for my career path. I am proud to be the only current member of the supreme court who is a Marquette Law School graduate. In between my first and second years of law school I had a great clerking position working at then, Samster, Aiken & Mawicke, S.C. It was because of my experience with working there, that my thoughts about being a practicing lawyer fundamentally shifted. Seeing Paul Scoptur and Tim Aiken or Susan Rosenberg work up their personal injury cases, to help people, using their incredible legal minds, truly inspired me. It was that experience which caused me to think that I should practice as a lawyer rather than go into the business world. I still, however, wanted to be involved in business law because of my background with our family business and my business degree from Hope College. As a result, starting my second year of law school I clerked at O’Neil, Cannon & Holman, S.C., which is now O’Neil, Cannon, Hollman, and DeJong S.C. Once again, I was fortunate to work with really talented lawyers at that firm, such as, Bill Wiseman, Tom Cannon, Dean Laing, and Bill Drew, to name a few.

What kind of legal work did you do there? Just before I began my third year at Marquette, the firm offered me an associate position. I largely practiced in the area of corporate and business litigation, but I also performed real estate transactional work, tax work, and litigated some personal injury, products liability, and family law cases. The beauty of that experience was that I had the opportunity to work on a wide range of legal matters. I vigorously represented many diverse clients from small mom-and-pop businesses to large corporations. I was fortunate to work in the trial and appellate courts, and both state and federal courts. In 1992, I served as a special prosecutor with the Milwaukee County DA’s office. I tried numerous cases to a jury and handled thousands of criminal matters. It was because of that program that criminal law and public service got into my blood. In 1995 I was offered a position by then U.S. Attorney Tom Schneider, who was appointed by President Bill Clinton. I accepted the position. I spent the next two years working as a federal criminal prosecutor doing everything from grand jury investigations to trial and appellate work. In 1996, I again had the opportunity to work as a special prosecutor with the Milwaukee District Attorney’s Office on a joint federal/state project.

Public Service in Washington County

You became a Washington County Circuit Court Judge at 33, eight years out of law school, how did that come about? Washington County Judge James Schwalbach, a highly respected judge, passed away in 1997. About eight or nine of us applied to fill the vacancy. The other applicants were largely from the Washington County area and practiced locally. Being that I practiced in Milwaukee, I was a bit of an unknown quantity to the local culture. At my interview with then Governor Tommy Thompson, I was very pregnant with our first son, Charlie. In fact, I went into labor several days after the interview. The governor’s intense questioning had nothing to do with Charlie’s early entry. Less than a month later, I was at home with my brand new baby and my mother answered the phone. In a hushed voice she said, “It’s the governor on the phone.” That was something that certainly never happened in our household in Michigan. I took the phone, was holding my baby and thinking, “Holy Cow, I’m talking to the Governor of the State of Wisconsin.” He offered me the circuit court judge position and asked how quickly I could start. I started within two weeks, which actually was Charlie’s due date, April 21, 1997. Maybe Charlie has a future in politics as he came into this world and simultaneously accommodated the governor’s schedule.

Did you enjoy being a Washington County Circuit Court judge? I loved sitting on the circuit court bench! I simply loved it. It allowed me to help people in very basic ways. Most people who come to court are incredibly intimidated by the experience. They are usually not at the peak of their game. As a judge, I could really help people move forward in their lives. A judge touches so many lives in so many ways. During my campaign for the Wisconsin Supreme Court, I would routinely meet people who would thankfully say ‘you presided over my case’ or ‘you did my child’s adoption,’ and that was really nice and touching. Being a circuit judge is a really hands-on job. You are on the front lines of justice. It may seem like a cloistered position, but a judge at that level deals with a lot of people and conducts an incredible amount of business in the court. Unlike in some larger counties, in Washington County each judge presides in a court of general jurisdiction. I heard all case types: civil, criminal, family, juvenile, probate, and so on. For me, that provided a solid base of knowledge in virtually every area of the law. In the 10 years I was on the bench I was assigned over 32,000 cases. I worked very hard, and I enjoyed it very much. I am thankful to have had that experience. It is very useful at the supreme court level.

You were the first woman judge in Washington County. How did the lawyers respond to you? Well, initially, there was a bit of skepticism, but I think that had more to do with the fact that I was “Milwaukee” lawyer than the fact that I was female. Although the vast majority of lawyers in Washington County are men, I did not see it as a male versus female thing. Washington County lawyers are a close-knit community. I was a young female taking the bench. They were probably concerned over whether I was going to come in and do things differently than they were accustomed to or whether I would have unusual ideas. In a very short period of time, any such concerns were dispelled. I took to them, and they took to me. It is a very warm and welcoming community, and I have tremendous respect for the lawyers in the community and the courthouse staff. We worked together to fine tune the existing system and implement many efficiencies and changes. I took great pride in my work as a circuit court judge.

I have always wanted to know how you pronounce your last name. Is it “Ziegler” like “Zig-Zag” or “Ziegler” like “Zebra?” You know, I have heard it pronounced both ways, and I’ll answer to almost anything. I usually pronounce it Ziegler, like zig-zig, but my husband’s cousin pronounces it the other way. So I guess either is quite acceptable.

Did it take you a while to get used to not being called Annette Kingsland? Yes, initially when I got married, I was not going to change my name. On the day of our marriage, I decided that I would. My husband did not pressure me one way or the other. I had been a lawyer and lived my whole life as Annette Kingsland, and I did not intend to change my name. I guess it turned out to be kind of a wedding present to my husband. I like his name. It’s a good one. I love the family. I moved my maiden name to my middle name. It’s kind of funny, but when I won the election to the supreme court, my parents were so proud, that they asked if I could use my maiden name too. I had to check and see if it would fit on the door. It did and seeming like a reasonable measure to take for the people who brought me into this world, my name now appears in court work as “J. Annette Kingsland Ziegler.” 

From the Circuit Court to the Supreme Court

When did you start thinking about sitting on the Wisconsin Supreme Court? I was a circuit judge in Washington County for 10 years (1997-2007). In my early years on the bench, some judges mentioned to me that I should consider running for a seat on the supreme court. Initially, I was not enthusiastic. First, I loved my position as circuit court judge. I had developed a good reputation for being hard working, ethical and fair. I was proud to be a trial judge. I enjoyed trying cases as a lawyer, and I loved the courtroom as a judge. Why would I want to leave that? Second, I thought that I should have more judicial experience before considering such an endeavor. When Justice Jon Wilcox announced that he would retire at the end of his term in 2007, I received more phone calls from judges who urged me to consider running. By then, I had been on the bench for 10 years and thought that I could make a valuable contribution to the court and the citizens of this state. I could impart a different perspective; that of a trial court judge. This time, I agreed with my colleagues and believed that this was the right opportunity. I thought, let the voters decide. I had never been in a contested race before, so why not go big? Sometimes when we hit the ski slopes, a friend of mine and I say … "Go big or go home.” I guess that carries over to more than just the slopes.

The 2007 election for the Wisconsin Supreme Court turned out to be very contentious. Did you expect that would happen? Honestly, No.

If you knew then what you know now, would you have still run? Absolutely, I would have run. I think how contentious the race became, signified how important the court is to our state. And, certainly, my opponent and I offered voters a choice of different backgrounds and philosophies. As I said then and I believe today, there are some aspects to campaigns that aren’t all that enjoyable – especially some of the television ads. But, the tough times on the campaign were far over-shadowed by the opportunity I had to travel the state and meet with so many wonderful people. We really are blessed to call Wisconsin home. I was honored and humbled to receive about 60 percent of the vote in both the primary and the general election. I’ve been working hard ever since to make the whole state proud that they elected me. I enjoy my work a great deal. The work of the court impacts the people of this state in very fundamental ways. Politically, economically, socially, what we do is important. I care very much about the future of our state, what it will be like for my children, other people’s children, and the people who live here. Wisconsin has been good to me, and it is a great honor and my pleasure to serve the people. It is a very important job, and I am going to do my best to get it right.

People say you are highly organized, why is that important to you? I have to be. I have a lot of moving parts in my life. Between my children, my family, and my husband, our outside interests, community interests, and my work on the court, keen organization makes it happen. To keep all those balls in the air you must be an organized person.

Tell us about working at the Wisconsin Supreme Court. What kind of staff do you have? I have a judicial assistant and a law clerk. My judicial assistant, who is just wonderful, is Mary Roderick. She helps field the mail, phone calls, and scheduling. She is a genius when it comes to the final formatting of our opinions, which must be just so. My law clerk is currently Attorney Andrew Hitt, who is a Marquette Law School graduate. We work together very well. He has been with me for almost two years now and two years is the maximum. I will have a new clerk for the next term. Having a hardworking, smart, law clerk is important. Andrew has been a great help with legal research, double-checking the record, drafting memoranda and other materials, and being a sounding board. He works long and odd hours, and he has to. As I am no stranger to “burning the midnight oil,” so too he must be. My staff works very hard and the job is intense, but we also inject a dose of humor when possible. Being balanced is essential.

What kind of technology do you have? Here at the court we have PCs. I have a laptop. I have a dictation program, which allows me to dictate at home and it send to Mary to type. We use Westlaw for research and, of course, we still have bound volumes of books. We have pretty basic technology.

What kind of technology do you have at the circuit court? In Washington County we have fabulous very high-tech courtrooms. The courtrooms are state-of-the-art. For a trial lawyer, it is heaven! The courts have computer stations and monitors. The jurors have monitors in the jury box. Any document could be shown to a witness, the jury, counsel, or to all in the courtroom. Documents can be displayed on a screen and annotated in different colors by a witness. Real-time transcription of testimony can be displayed instantly on the monitors. At the supreme court it is quite different. We are not a trial court. We do not create the record, we review it. I do not take a computer on the bench with me, at least at this point. When a justice has a computer on the bench, it is for note taking. Everything we need at oral argument is in binders we prepare ahead of time, the briefs, the appendix, or the record itself. I have the pertinent documents at my disposal during oral argument and take notes the old fashioned way.

What was it like writing your first opinion? It was very exciting. This court has very high standards, and I wanted to meet them. I try to write opinions in a way that makes common sense. You could say that I am a plain language kind of gal.

Practice Tips for Appellate Lawyers

Can you give the members of the Appellate Practice Section any advice on filing better Petitions for Review? The supreme court is not an error correcting court. Consequently, error below will not hold the day in a petition for review. The court primarily looks at whether the petition meets the criteria set forth in 809.62, including whether the law that needs to be resolved is of statewide significance. If a lawyer is crafting a petition for review, the best tip I could give them is to try and have their arguments follow the criteria for review. To that end, we are better able to evaluate whether it is a case that should be taken or not. It seems obvious, but sometimes the obvious is worth repeating.

Do you read all the petitions for review yourself? Yes. The court commissioners do a superb job preparing a memo on the matter as well. In fact, I will get a trunk-load to bring home with me on my birthday this Friday. The good news is that if I cannot sleep at night, I always have something to read. Unlike at the trial court where matters are in court at a particular time, much of the work at the supreme court can be done at any hour of the day. For me, that comes in handy.

Do you have any suggestions on better brief writing? The number one turn-off, if you will, is when a lawyer just misses a case that is right on point or stretches the truth. I can understand missing the “needle-in-the-haystack” case, but the lawyer who is arguing points of law and fact that are of statewide significance, should know his or her case. When a lawyer misses law that is directly on point or misstates the facts, I question the remainder of the work. It is best to just call something as it is, put forth the best arguments you have, bone up on the case law, and put your best foot forward … do not stretch it.

Tell us About Oral Arguments, are you asking more questions than you did before? The court prepares for oral arguments. When we take the bench we generally have some unanswered questions that we would like answered. Unfortunately for the lawyers, they usually do not get through much of their argument before a justice will pipe up and start asking questions. It often happens within the first minute. The lawyers need to be comfortable with sand shifting under their feet during the questioning process. To a certain degree, I feel sorry for counsel because they are out there and never really know what they are going to be asked. I remember that feeling from when I argued appellate issues. You do not get to argue the way you set out to argue. Every lawyer has several pages of notes they anticipate getting through, and I am sure they practice that to perfection.

At oral argument, counsel probably get through a paragraph of their pristine remarks before they are bombarded with questions. To answer your question, I do not know that I am asking more questions now versus last year. I have felt comfortable on the bench from the beginning. If I do not have questions, I do not feel any great compunction to hear myself speak. I try very hard not to ask unfair questions and I try to be nice. I think people function better when they are comfortable. I felt that way as a lawyer and as a trial court judge and the same holds true as a supreme court justice. There is no benefit to be gained by trying to make someone look bad or feel uncomfortable. My best advice is to know your own case, listen carefully to the questions and answer them directly.

What do you and your family like doing when you are not working? Our family is extremely busy, but family is number one! My husband and I are active in some charitable organizations. As a family, we make food for the homeless and deliver it a couple times a year. It is good for us to be reminded of how lucky we are. We are outdoors people. We like to ski, snowboard, travel, scuba-dive, snowshoe, hike, exercise, and play tennis and golf. I enjoyed doing a sprint triathlon last year, and I plan to do it again. I teach Sunday school at our church when time permits. We like good food, good friends, and good laughs.

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Webinar Recap: Appealing Administrative Agency Decisions

By Eric Barber, Perkins Coie LLC

On Feb. 19, 2009, the Appellate Practice Section conducted its first “webinar” on the vitally important, but often-neglected topic of appealing from administrative agency decisions under, primarily, Chapter 227 of the Wisconsin Statutes. The webinar was a 90-minute program conducted at the State Bar Center in Madison, where live under hot lights and three cameras, an exceptional panel of practitioners discussed the ins and outs of Chapter 227 for online viewers.

I had the honor of “moderating” the discussion with panelist Judge Burnie Bridge (Dist IV Court of Appeals), Assistant Attorney General Jennifer Sloan Lattis, and Attorney Cynthia L. Buchko (shareholder at the Madison office of Whyte Hirschboeck Dudek S.C.). Moderating is in quotation marks because my role primarily constituted pointing them in a direction and then getting out of the way. All three have extensive experience with Chapter 227 and provided valuable information and pointers for those emerging from administrative agency review, whether they won or lost below.

In some ways, judicial review of an administrative agency decision is just like any other appeal, but in other important ways it is not. The webinar highlighted a number of those important differences. Chapter 227 is often the exclusive remedy for seeking judicial review of an administrative agency decision. As one might expect, Chapter 227 contains important provisions, from the time period a party has to request additional review (30 days to serve and file, Wis. Stat. § 227.53(1)(a)2) to deference to an agency’s findings of fact (if the findings are reasonable, they will likely be upheld). The key is to be familiar with Chapter 227 and check it at each and every stage of your time before the agency and as you contemplate moving forward or responding to a party’s attempts to seek judicial review.

Deference to the administrative agency’s findings of facts was emphasized by all three panelists. All pointed to Wis. Stat. § 227.57(8) as one of the most commonly used bases for review, and Judge Bridge reminded viewers that even as you move up the appellate ladder, a court will review the agency’s decision, not the lower court’s, yet at each stage the same deferential standard will apply. Bunker v. LIRC, 2002 WI App 216, ¶¶13, 18, 257 Wis. 2d 255, 650 N.W.2d 864.

Deference on questions of law has not been so uniformly embraced, and Justices Prosser and Roggensack have both questioned the rule that a combination of factors would allow a court to give either due-weight or great-weight deference to an agency’s legal conclusion. See UFE Inc. v. LIRC, 201 Wis. 2d 274, 285, 548 N.W.2d 57 (1996); Hilton v. DNR, 2006 WI 84, 293 Wis. 2d 1, 717 N.W.2d 166 (Prosser, J. concurring); Racine Harley-Davidson, Inc. v. State Div. of Hearing & Appeals, 2006 WI 86, 292 Wis. 2d 549, 717 N.W.2d 184 (Roggensack, J. concurring).

In spite of the significant deference given to administrative agency decisions, it is not entirely clear that appeals from those decisions are affirmed or reversed at a much different rate than normal, more traditional type appeals.

Of critical importance, all agreed, was getting a complete record for appeal while you are still at the administrative agency level. The record you form before the agency is, with few exceptions, the one you will be stuck with throughout the judicial review process. Attorney Buchko noted that the statutes for contested hearings require presenting all necessary witnesses and admitting all documentary evidence, Wis. Stat. § 227.44(3), but more than that, a party may want to consider paying for a court reporter for contested case and public hearings if it looks like that judicial review is in everyone’s near future. Where your opponent attempts to supplement the agency record before the circuit court, review the rules and consider moving to strike. Any such supplementation, if critical to the case, should be done before the agency (the circuit court can remand for additional fact-finding, Wis. Stat. § 227.56(1)).

With the factual record complete, one must not also forget to raise before the administrative agency all the legal arguments and objections that are relevant to the case. There are circumstances where failure to raise an issue before the agency will operate as a waiver of that argument – much like would be the case if one failed to raise an issue for the first time in an appellate court. See, e.g., Bunker, 257 Wis. 2d 255, ¶ 15.

There was, of course, much more, but this should give you just a hint of how useful this webinar was for practitioners that do not often have to seek judicial review of administrative agency decisions. Thanks to the three great panelists, who made a less-traveled topic interesting, the Appellate Practice Section’s first-ever webinar was a great success. Look for more webinars in the future, including one on the new electronic filing procedures that will go into effect later this year.

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ABA Appellate Practice Committee Offers Programs; Assistance to Appellate Attorneys

By Susan R. Tyndall, CMT Legal Group, Ltd.

The American Bar Association’s Appellate Practice Committee is reaching out to the appellate sections of the state bar associations, including our section. Kevin Newsom of Bradley Arant Boult Cummings, LLP, located in Birmingham, Alabama, the Co-Chair of the Bar Liaison Subcommittee of the ABA’s Appellate Practice Committee, has contacted our Section in order to foster a stronger relationship.

Attorney Newsom’s introductory letter explained the purpose and function of the committee, as well as some of the programs and benefits the committee offers. The ABA’s Appellate Practice Committee, part of the Litigation Section, is the principal committee devoted to appellate litigation. The committee hosts programs relevant to appellate practitioners and committee members monitor developments in the case law, amendments to procedural rules, and legislative proposals. The committee publishes a quarterly newsletter, The Appellate Practice Journal, which contains feature length articles, and maintains a website with articles, case notes, and updates. A variety of links is also provided. ABA membership is not required to search this website but access to newsletters is limited to members.

The committee also holds two meetings each year, one at the Litigation Section Annual Conference (to be held this year in Atlanta April 29 - May 1, 2009) and another at the ABA’s annual meeting (to be held this year in Chicago July 30 - Aug. 2, 2009). These meetings feature seminar topics for appellate practitioners. For example, at the Litigation Section meeting in Atlanta in late April, the committee will stage panel discussions about oral advocacy, waiver and preservation, and other issues. At the July meeting in Chicago, Attorney Newsom will moderate a panel about the United States Supreme Court’s preemption jurisprudence (timely in light of recent Wyeth decision). There will be other appellate-related programs as well.

The ABA Appellate Practice Committee appears to be an excellent resource for appellate practitioners. Of course, the committee’s outreach efforts serve not only to inform appellate practitioners of these resources but also to encourage membership in the ABA and the committee itself. Appellate practitioners may want to bookmark the website and consider whether membership would be beneficial.

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ABA National Appellate Advocacy Competition

By Thomas Worsfold, Marquette University Law School

This spring, I was fortunate enough to compete in the ABA’s National Appellate Advocacy Competition (NAAC). The 2009 NAAC included 187 teams competing in six regional tournaments, with only 24 teams advancing to the national finals in Chicago. While the competition topics vary year to year, the 2009 problem was especially interesting, and it presented a unique challenge as it was truly a matter of first impression. Prior to NAAC, my moot court problems were from circuit splits, which gave me strong, ready-made arguments on both sides of the issues. Courts had already addressed those issues, so it was a matter of advocating for the better approach. The NAAC problem was a different animal.

Anybody who hasn’t lived in a cave since 2003 would be familiar with the facts of our problem (and anybody familiar with the HBO series “The Wire” will recognize the principal actors). After the 9/11 attack on the World Trade Center, U.S. intelligence revealed that Al Qaeda had been operating out of West Baltizstan. In October of 2003, Congress issued a Joint Authorization to use force in West Baltizstan, granting President Thomas Carcetti the authority to use the U.S. military as he deemed “necessary and appropriate” to remove West Baltiztani Dictator C.V. Royce from power and install a democratic government. After 10 months of failed diplomacy, President Carcetti invaded West Baltiztan.

The initial military effort was an immediate success. The West Balstiztani government was quickly deposed, but the continued political and military effort was met with fierce opposition and insurgency. Public support waned as the war effort continued over the course of several years. Finally, public opposition to the war came to a head when the West Baltiztani insurgency attacked the U.S. “Green Zone,” inflicting heavy casualties including several U.S. and West Baltiztani officials.

In response to the public outcry, Congress passed the Timetable Act, which directed President Carcetti to remove all U.S. military forces from West Baltizstan over the following 18 months. President Carcetti vetoed the legislation, but Congress easily overrode the veto with a two-third majority vote in each house. Although the Timetable Act was enacted and on the books, President Carcetti refused to recognize its authority, declaring the Act as an unconstitutional infringement on his powers as Commander in Chief. In response to the President’s failure to faithfully execute the Timetable Act, Sen. Clayton Davis and Rep. Nerese Campbell sued for a declaratory judgment that the President was in violation of the Timetable Act and that he must comply with the terms of the Act.

The two issues presented to the Supreme Court were whether Sen. Davis and Rep. Campbell had standing to bring the suit, and whether the Timetable Act was a proper exercise of Congress’s war powers.

I did not argue about the standing issue, but the issue turned on whether President Carcetti had effectively nullified Congress’s votes by refusing to execute their legislation. On the one hand, it is difficult to conceive of congressional votes being given any effect if the law is not being implemented. On the other hand, there is authority that states once a bill becomes a law, legislators’ interest in the execution of that law is no different than any other American citizen

My issue for the competition was the scope and extent of the constitutional war powers. What made this issue so difficult was nature of the authority. Whenever a conflict has occurred between Congress and the President in the past regarding their respective war powers, either Congress has gotten in line with the President or vice versa; it has seldom been addressed in court. There is, however, precedent, some dating back to the turn of the 19^th century, for Congress’s ability to limit the scope of a war in its initial authorization. But can Congress limit the scope of a war four years into military operations? Should it even be able to as a matter of policy?

I relied on Justice Jackson’s framework from his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), which stated that the President’s war powers fluctuate depending on how Congress exercised its war power. If Congress exercised the full scope of its power, then the President was limited to only those powers that remain beyond the reach of Article I. With that premise, I attempted to characterize Congress’s powers as broadly as possible, which would negate any argument that it was infringing on presidential power; according to Justice Jackson, if an exercise of power falls under Article I, then the President can’t have that same power.

Unfortunately, it was somewhat of a stretch to argue that Congress had the power to direct the withdrawal of troops as it did in the Timetable Act because the Commander in Chief directs and employs the armed forces. However the Supreme Court held in Flemming v. Page, 50 U.S. (9 How.) 603, 615 (1850), that the President is limited to direction of the troops that Congress places by law at his command. I argued that the Timetable Act was nothing more than a law that removed troops from the President’s command. But from where does that power derive? I relied on the power to raise and support the armed forces as the core of my argument. If Congress has the power to declare war, logically it must have the power to end a war; if Congress has the power to appropriate funds to the military, logically it must have the power to limit military funding; if Congress has the power to raise armies for the President to Command, logically it must have the power to remove troops from the presidents command.

The other side of the argument was that the President has the sole power and discretion as Commander in Chief to direct and employ the armed forces in a manner he deems best. There were a couple different approaches to take for this argument ranging from the broadest Presidential power to a more modest conciliatory conception. I opted for a more modest approach in this competition. I did not deny that Congress had some authority to bring the war to an end. What I did argue was that the means that Congress chose was beyond its Article I powers. I noted that Congress is limited to the legislative powers that are expressly enumerated in the Constitution, and nowhere does that list include the power to withdraw troops from a theater of war. What Congress could have done, and should have done if it wanted to achieve the same end, was enact an appropriations bill that gradually decreased funding for the West Baltizstani military effort over the course of its timeline. Any legislation that directs which troops can fight where and for what mission, as the Timetable Act did, goes too far and directly infringes on the President’s ability to direct and employ his troops.

Ultimately the outcome would have to be somewhere in the middle. It seems to me that to give the President unchecked military authority after a declaration of war goes too far. The People rely on our Constitution’s checks and balances to prevent just that sort of unilateral power. On the other hand, Congress was never meant to meddle in specific troop deployments, and such a timetable act would appear to be a micromanagement of the war effort. If Congress did want to end a war, I think it could implement some sort of troop withdrawal legislation, but it would have to be far less restrictive that the Timetable Act in our problem. It would have to give the President the ability to replace fatigued units with fresh ones and the ability to react to emergencies and complications with the withdrawal. There is something disconcerting about leaving only 20,000 troops in a war zone that had occupied 150,000 just one year ago. I also think that Congress could enact a carefully crafted piece of legislation that reduced appropriations over a timeline. That might never happen, however, because it would be very unlikely that Congress could ever raise the political capital necessary to cut off funding (even if at a reduced level) for our military and to override a presidential veto. I suppose, as one of my coaches intimated, that is just another external check on Congress’s power.

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