Day: May 7, 2015

SCOTUS Cases to Watch this Summer

Posted on by Hamilton

King v. Burwell

This summer, the U.S. Supreme Court will decide on a case that could almost entirely dismantle President Obama’s most significant legislation of his presidency. In King v. Burwell, the high court could refuse subsidies for those on the federally-operated exchanges, making premiums unaffordable for those using the federal health care exchange and potentially resulting in enrollees fleeing the program for more affordable, privately-provided health insurance.

The lawsuit was brought forward when challengers argued the plain text of the Affordable Care Act limits federal subsidies to states who establish their own exchanges, which only includes 14 states and the District of Columbia; Wisconsin does not have its own exchange.

Oral arguments were held in early March, and high court watchers say the case could be decided in either direction. Chief Justice John Roberts is expected to be the swing vote, having written the decision that upheld the Affordable Care Act in 2012, however the Chief Justice was quiet during oral arguments.

Should the court decide in favor of the plaintiffs, the IRS will have to stop disbursements of subsidies in the 36 states using the federal exchange.

The court’s decision is expected to be released in late June.

Obergefell v. Hodges

The U.S. Supreme Court is poised to make what could be the final legal decision on same-sex marriage in the United States this June. In Obergefell v. Hodges, the court will decide whether state bans on same-sex marriage, specifically in Kentucky, Michigan, Ohio and Tennessee, are constitutional. Currently, same-sex marriage is legal in 37 states and the District of Columbia, including Wisconsin.

Court observers believe Justice Anthony Kennedy will cast the deciding vote in the case, as he wrote the majority opinion in Untied States v. Windsor, which called the federal ban on same-sex marriage unconstitutional in 2013.

The court’s decision is expected at the end of June.

Roggensack elected new Chief Justice

Posted on by Hamilton

Within hours of state elections officials certifying the April 7th referendum results, four Wisconsin Supreme Court Justices elevated Justice Patience Roggensack into the role of chief justice. The vote was taken via email with four justices – Gableman, Prosser, Ziegler, and Roggensack – taking part and voting for Roggensack. The other three justices on the court – Abrahamson, Bradley, and Crooks – did not cast votes in the election.

Justice Abrahamson filed a lawsuit the morning after the referendum passed in which she argues that she should remain chief justice until the end of her term in the spring of 2019.  In a letter to the U.S. District Court, Abrahamson’s attorney argued that she still holds the position of chief justice. Also in the letter, Abrahamson contests the procedure used for electing the chief justice. She argues the court should have conferenced to decide on a procedure before electing the chief justice. However Roggensack’s attorney, who is also the attorney for every other justice on the court but Justice Bradley, contended that once the election results were ratified the justices had the ability to elect a new chief justice at any time.

Chief Justice Roggensack stated in an interview this week “there’s no doubt about it,” she’s the new chief justice. The state supreme court website lists Roggensack as chief justice, and features a welcome message from her. She also plans to meet with staff to discuss the transition.

Bradley has stated the election of a new chief justice was premature. She noted that the issue of whether the constitutional amendment is to be applied “retroactively” (before Abrahamson’s term is up) needs to be decided in federal court. Therefore the court does not yet know if a vacancy exists to fill.

However, Justice Gableman argues the vote was not premature. He has told the media that when the federal judge denied Abrahamson’s request for a temporary restraining order to stop the members of the court from electing a new chief justice, the judge stated that when and how to implement the amendment was a question of state law. Therefore since the judge did not restrain the court from enacting the amendment, the members of the court were able to elect a new chief justice at a time of their choosing.

Justice Prosser, who voted in favor for Roggensack, says he does not think the court should install the new chief justice until the beginning of the court’s next term in the fall.

Chief Justice Patience Roggensack stated in a press release that as chief justice she intends to repair the damage done to the reputation of the state supreme court and broaden the involvement that justices, and judges around the state, have in the administration of the court system. Chief Justice Roggensack also intends to donate the addition $8,000 of her salary to the Access to Justice Commission which arranges civil legal services for those individuals who are unable to afford them. She has not indicated when she believes her term will begin.

Joint Committee on Finance Approves Creation of the Office of Solicitor General

Posted on by Hamilton

Governor Walker’s budget recommendation provides the Attorney General authority to appoint, in the unclassified service, a Solicitor General and no more than three deputy solicitors general.  Further, the Governor’s recommendation provides the Attorney General authority to assign assistant attorneys general to assist the Solicitor General.  In executive action on Thursday, May 7, the Joint Committee on Finance approved creation of this office.  In a slight revision to the Governor’s recommendation, the committee voted to eliminate four vacant positions in the agency in exchange for creating these four new appointed positions.

The Wisconsin Civil Justice Council supported the Governor’s recommendation and argued creating a Solicitor General’s office will:

  • Allow the Attorney General to provide more direction to and supervision of litigation.
  • Allow the Attorney General to help ensure the state’s legal arguments, litigation strategy, and representation reflect his or her priorities.

Such an office is a well-established practice within the United States. The Legislative Fiscal Bureau, in its analysis of the Governor’s recommendation, noted that “[a]ttorney general offices in 42 states, as well as the District of Columbia, Puerto Rico, and the Virgin Islands, had [in March of 2014] a person appointed to oversee their offices’ civil appellate practice, and in some cases criminal appellate practice.”

Related news coverage: Committee OKs Solicitor General Office for DOJ.