Eminent Domain

I am proud to be a resident of the Seventh Circuit. I think that we have some of the best appeals court judges in the nation. I also love the fact that the judges take their jobs very seriously. They demand that lawyers are well-prepared and that their briefs strictly follow court rules. The judges suffer no fools.

Enter Wisconsin Attorney General Peg Lautenschlager. Our esteemed AG is in a tough spot right now. She faces a tough challenger in the Democratic primary, and (if she wins) may be facing another tough challenger in the general election. I won't mention the car incident, but that doesn't do much to help the situation. Things aren't great right now. Could it get worse?

Yes, it can. The Wisconsin Department of Corrections is involved in a case that has made its way to the Seventh Circuit Court of Appeals. This case, which involves the Family Medical Leave Act, concerns a fairly boring legal issue, at least in my opinion. However, footnote 1 is very interesting. The judges have taken issue with the quality and demeanor of the brief submitted by AG Lauthenschlager. Here is Judge Diane Wood writing for the three-judge panel...

These cases, taken as a whole, demonstrate that the Court has taken care to draw important, and sometimes subtle, constitutional lines in this area. Both for that reason, and for reasons requiring basic courtesy to the courts, we find much of the rhetoric in WDOC's brief to be entirely out of line. It is not up to Attorney General Peggy A. Lautenschlager or Assistant Attorney General Richard B. Moriarty to accuse Justices of the Supreme Court of making "remarkably intransigent statements," or to use a disrespectful tone in criticizing dissenting Justices merely for the fact that they wrote a dissent, or to opine about "polarizing declarations." The tradition of writing dissenting opinions has existed in the United States Supreme Court since the beginning of the Republic, and every Justice on the Court avails himself or herself of that privilege when he or she deems it appropriate. Counsel's brief is also less than helpful where it draws bizarre analogies to opinions about the current presence of American troops in Iraq, which has absolutely nothing to do with this case. We trust that the State of Wisconsin will adopt a more appropriate tone in future briefs filed with this court.

Many thanks to the attorney general's office for embarrassing the entire state with their unhinged brief.


Judge Wood is a Clinton appointee (as is Judge Evans, also on the panel), so this isn't just some partisan sniping. It makes me proud when judges are above the my-team political mentality and just act like judges. Hopefully, our attorney general will stop using briefs to take cheap political shots and actually argue the law.