Vol. 77, No. 2, February
Letters to the editor: The Wisconsin Lawyer
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Ruling by Moral Force?
In his November "President's Message," George Burnett claims that the
"organized bar must rise to defend the judicial branch of government."
Mr. Burnett was responding to a Wall Street Journal editorial
that criticized the Wisconsin Supreme Court's 4-3 decision in
Trinity v. Tower Insurance. While an individual member of the
Wisconsin Bar has every right to critique the Wall Street
Journal's critique of Trinity, Mr. Burnett, as president
of the State Bar, should have restrained himself. His defense of
Trinity as an exercise of the court's "moral force" is humorous
given that the subject matter of the case is punitive damages; an issue,
it seems to me, that has little to do with morality, and a lot to do
with preserving what, for the plaintiff's bar, is the golden goose. Not
so humorous is the fact that Mr. Burnett, on behalf of the Wisconsin
Academy of Trial Lawyers, authored an amicus brief in Trinity.
Mr. Burnett should have disclosed that fact when purporting to speak on
behalf of the "organized bar," and he should have made an effort to
defend the decision on its merits, rather than claim the court deserves
respect as a "moral force."
The preservation of that "moral force," Mr. Burnett claims, requires
that the bar defend the judiciary from criticism. He writes that "[w]e
recognize that it is only in the third branch of government where a
citizen possesses the right to address his or her government directly."
This is an astonishing characterization of the judicial function, and
any court that subscribes to it rightly invites scrutiny of its
decisions for "political" bias. A court of law is not where citizens
"address" government, directly or indirectly. It is a forum for the
resolution of differences pursuant to laws that, in a democracy, have
been established by our elected representatives.
Mr. Burnett cites Alexis de Tocqueville's Democracy in
America as recognizing the judiciary's "moral force" and
presumably, therefore, its immunity from political influence. But de
Tocqueville did not assert that the judiciary is a "moral force,"
separate and apart from the "political." In fact, the phrase appears in
Chapter 8 within his discussion of the "Political importance of the
judiciary in the United States." Specifically, de Tocqueville was
explaining how the federal judiciary serves the federal government's
claim of authority over individual states by associating the federal
government's threat of physical force with "the idea of law." "Moral
force," as used by de Tocqueville, means the application of legal
reasoning, as distinct from physical force.
Which brings us to the point. When the judicial branch abandons "the
idea of law," it forfeits the right to claim that its decisions are
imbued with a "moral force." I have no view about whether
Trinity is "political" or based on "the idea of law." I do,
however, think it silly to claim that the Wisconsin Supreme Court is a
"moral force" - and therefore beyond criticism - regardless of the
answer to that question.
Gordon P. Giampietro
While I appreciate the obvious thought and time spent analyzing my
November 2003 column about an independent judiciary, the critique
misinterprets several key points made there.
First, the column does not defend the Wisconsin Supreme Court's
Trinity decision. Rather, the column describes the question
there as a "difficult and controversial one, one on which reasonable
minds can disagree." The purpose of the article is not to evaluate a
recent supreme court decision, but to discuss the danger of political
attacks on an independent judiciary.
Nor does the column say that our court is "beyond criticism." To the
contrary, I said that "The public acts of public officials deserve
careful scrutiny. Judicial decisions merit no exception."
Our courts rule by moral force, just as de Tocqueville observed. I
believe that when one ascribes political motives as a substitute for a
legal critique of judicial decisions, one undermines public confidence
in our judiciary.
President, State Bar of Wisconsin
State v. Merten Corrected
In State v. Merten (2003 WI App 171), which was reported in
the October "Court of Appeals Digest," the court of appeals affirmed the
circuit court's denial of a motion for plea withdrawal, based on the
defendant's claim that his plea was unknowingly and involuntarily made
because the circuit court failed to inform him that his conviction would
result in ineligibility for federal health care programs under 42 U.S.C.
section 1320a-7(a)(4). The court of appeals held that a defendant does
not have a due process right to be informed of the collateral
consequences of his or her plea and therefore, the refusal to permit a
plea withdrawal creates no manifest injustice.
Criminal law practitioners might be interested to know that 42 U.S.C.
section 1320a-7 does not, in fact, disqualify a recipient of federal
Medicaid or Medicare benefits from eligibility. This statute only
applies to health care providers who are disqualified from participating
in federal health care programs if they have been convicted of any
program-related crimes, such as health care fraud, patient abuse, or
distribution or prescription of controlled substances. Of course, once a
defendant is incarcerated in a jail or prison, she or he will be
ineligible for Medicaid until released. Even inmates who have Huber law
privileges are ineligible for Medicaid. In Wisconsin, the Department of
Corrections is responsible for the health care of inmates in state
facilities, while counties are responsible for the health care of
inmates in county facilities.
Legal Action of Wisconsin, Milwaukee
Remembering Justice Rosenberry as a
I enjoyed reading Justice Bradley's insightful, analytical, and
scholarly article in the October magazine on Chief Justice Rosenberry's
large contribution to Wisconsin law.
I think Rosenberry also deserves to be remembered as a parent. His
son Samuel more than filled his father's large footprints in the
profession, although not in Wisconsin. I believe that Samuel Rosenberry
was a powerful and influential partner in the blue chip Manhattan law
firm of Milbank, Tweed, Hadley & McCloy. He also was the long-time,
outside legal counsel to the New York Stock Exchange. My understanding
is that he was a prominent and highly respected lawyer, working at the
nexus of law and finance in New York.
It was obvious from reading the article that Marvin Rosenberry was a
very positive role model for Justice Bradley. Although Rosenberry's son
Sam surely did not realize it, as a Wisconsin boy who made it big in the
Big Apple, he was also a role model for at least one young lawyer from
Wisconsin in the 1960s.