Wisconsin Voter ID: Plaintiffs' Emergency Application to Justice Kagan Lacks a Key Element


The plaintiffs in Wisconsin’s Voter ID case yesterday filed an emergency application with Justice Kagan, the Circuit Justice assigned to the Seventh Circuit, seeking an order vacating the Seventh Circuit’s September 12 stay of Judge Adelman’s injunction against enforcement of the law, 2011 Wis. Act 23. Justice Kagan has called for a response from the state by next Tuesday.

We have written several times already about the argument in the Seventh Circuit on the merits; that court’s stay of the injunction the same day (here); and the plaintiffs’ ultimately unsuccessful effort (for failure to get a sixth vote among the court’s ten active judges) to have the full court hear their motion for reconsideration of the stay (here). The plaintiffs have now turned to the last place from which they can hope for relief, to prevent the Voter ID law from taking effect for the November elections.

The application for stay, like the plaintiffs’ motion for en banc hearing in the Seventh Circuit, makes a strong case as to two of the traditional criteria for a stay—likelihood of success and irreparable harm. Other commentators, focusing on these elements, have gone so far as to predict success for the application before Justice Kagan or the full Court, to which she is likely to refer it.

We’re not in the prediction business, but we note the weakness of the application’s showing on what is always a key factor in obtaining emergency relief from a Circuit Justice or the entire Supreme Court while the case is still pending in the lower court (recall that the Seventh Circuit panel has not yet issued a decision on the merits of the case). In asking a Circuit Justice to vacate a stay entered before the court of appeals’ decision, it is necessary to show that the “case could and very likely would be reviewed [in the Supreme Court] upon final disposition in the court of appeals.” Coleman v. Paccar Inc., 424 U.S. 1301 (1976) (Rehnquist, J. in chambers).

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After the Bank Forecloses, Must It Actually Sell Your House?


The Wisconsin Supreme Court will answer this question in Bank of New York v. Carson, No. 2013AP544. It heard argument in this case last Tuesday.

The case began more than 3 1/2 years ago when a widow—physically and financially unable to care for her house—vacated her house and did not answer or dispute foreclosure. During the redemption period, the property fell into disrepair and was burglarized. (The court of appeals blamed the bank for failing to keep up the property.) The bank decided not to sell the property in its dilapidated state.

The owner then moved to amend the judgment, arguing that the circuit court should order the bank to sell the property within 5 weeks of the amended judgment, pursuant to Wis. Stat. § 846.102(1) (“In an action for enforcement of a mortgage lien if the court makes an affirmative finding upon proper evidence being submitted that the mortgaged premises have been abandoned by the mortgagor and assigns, judgment shall be entered as provided in s. 846.10 except that the sale of such mortgaged premises shall be made upon the expiration of 5 weeks from the date when such judgment is entered. . . .”). Continue reading this entry

7th Cir. Explains What Same-Sex Marriage and Voter ID Have in Common


What do cases involving challenges to same-sex-marriage and voter ID laws have in common?

The answer, according to a per curiam opinion issued today by a panel of judges from the U.S. Court of Appeals for the Seventh Circuit in Frank v. Walker, Nos. 14-2058 & 14-2059 (7th Cir. Sept. 30, 2014), is that both involve “laws enacted through the democratic process” that should “remain in force pending final decision by the Supreme Court.”

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7th Cir. Upholds Springfield's Panhandling Ordinance, Using a Historic Twist


It can’t have happened often (if at all) that a retired Justice would decide a new case based on his reading of an opinion in which he dissented.

Yet that is precisely what happened in Thayer v. Worcester, 755 F.3d 60 (1st Cir. 2014) (Souter, J.), a First Circuit decision from earlier this year in which the now retired Justice Souter, writing for that court, upheld Worcester’s panhandling law using Justice Kennedy’s analysis from International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)Lee was the latest decision (in a series of three) from the Supreme Court dealing with anti-panhandling laws and one in which Justice Souter had dissented.

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Wisconsin Supreme Court 2013-2014 Term Summary Part 3: Recap of Cases Affecting Wisconsin Businesses

wis sup ct

This post is the third in a series of posts analyzing the 2013-14 term of the Wisconsin Supreme Court. For our previous posts click here and here.

This post provides in a nutshell what businesses need to know about the cases from last year’s term of the Wisconsin Supreme Court.

We already have written about a number of the key business-related cases on our blog:

In Data Key Partners v. Permira Advisors LLC, the court adopted the federal courts’ heightened pleading standard from Twombly and reaffirmed the importance of the business-judgment rule in shareholder litigation. (Post here.)

In Dow Family, LLC v. PHH Mortgage Corp., the court declared that the equitable-assignment doctrine is alive and well, and it held that the doctrine applied to the widely used (and controversial) electronic mortgage-registration system, more commonly known as MERS. (Posts here and here.)

In Associated Bank N.A. v. Collier, the court effectively overruled In re Badger Lines, Inc. and limited the lien that attaches in supplementary proceedings under Wis. Stat. ch. 816. (Post here.)

In Kimble v. Land Concepts, Inc., the court used its discretionary reversal power to reverse an award of punitive damages, holding that the award was unconstitutional. A statutory limit on punitive damages exists now, found in Wis. Stat. § 895.043(6). But if that statute is ever repealed, the court’s constitutional analysis in Kimble will substantially limit the availability of punitive damages in Wisconsin. (Post here.)

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