Monday, March 24, 2008

Butler: It's Only Tax Money...Let's Be Frivolous!!

Think that your tax dollars are well-spent?

Think again.

Louis (Loophole) Butler, currently a Justice on the Wisconsin Supreme Court, had no problem with getting himself a free frivolous trip to Washington DC on the taxpayer dime.

What makes this particularly loathsome is that he was defending "Frivolous" filings that he ginned up for a client (what the Hell, it was taxpayer money paying the freight.)

[CLARIFICATION: Loophole Louie argued that the US Constitution (Anders) required public defenders (like Loophole Louie) to argue frivolous cases without stating that they were frivolous EVEN IF THE PD KNOWS they are, whereas SCOWI rules mandated that a PD state the fact that the case is frivolous, along with a 'splanation as to why it's frivolous. In effect, he was arguing against the SCOWI rules. As you might imagine, SCOTUS found him to be begging the question--but it was a nice trip to DC, anyway.]

It so happens that 'frivolous' filings are a big no-no. They are a waste of time for the Courts, a waste of time and money for the other side's legal people (in this case, the State of Wisconsin's prosecutors) and are sometimes a cause of penalties to the lawyer who brings the 'frivolous' action. Look at how Scalia used the term "conscientious" in this exchange:

Justice Scalia: What we’ve got is case where the paying client, if he’s got a conscientious lawyer, would say to him you’re going to waste your money. I’m telling you that in advance. It’s not worth the five thousand dollars to file this. Of course if you want to throw your money away, I’ll file your papers for you. What you’re saying is the poor defendant is entitled to have the state waste the same amount of money.

Butler: That’s correct.

Sure, Louie. I think Scalia nailed it with the "conscientious lawyer" remark. Read between the lines, Louie.

HT: Owen.


grumps said...

Scalia is talking about two different clients and two sets of circumstances. That "conscientous lawyer" would be bound to file the claim if the paying client told him to, regardless.

The indigent client is not forced to a lesser degree of access to the justice system under the Constitution.

Anonymous said...

Dad, you should get your facts straight before repeating talking points that are absolutely, 100% ass-backwards false.

Figure it out, dad. You misquoted Scalia. The irony is .... delicious.

Dad29 said...

First off, "Charlie", it's not likely that Sykes would enjoy your ripoff of his name.

Secondly, you really ought to read the transcript. It has real good stuff in it.

MR. BUTLER: In effect, the poor defendant -- for example, in Anders, Anders tried to resolve a difficult ethical dilemma that counsel faces. When, on the one hand, you are obligated to litigate the appeal on the client's behalf to the best of one's ability, but, on the other hand, you have reached the decision that the case is wholly frivolous and without arguable merit.

Now, the client is entitled to have the appeal as a matter of right and he's entitled to a vigorous advocate to put forth issues on his behalf. At the same time, the lawyer is confronted with --

QUESTION: But he's not under Anders. He's not under Anders entitled to that.

MR. BUTLER: Under Anders, he is entitled to that.

QUESTION: No, he's not entitled to the vigorous advocacy. He's entitled to have the points identified, the colorable basis identified and then the lawyer is entitled to withdraw


MR. BUTLER: Right. I think it ties into Justice Stevens' question. I think counsel is under Anders supposed to make a vigorous argument. I think as a preface to the argument, counsel must advise the Court that, in his opinion, he believes the argument he is about to make is frivolous, but he should still argue the case on behalf of the client.

QUESTION: But that's the kiss of death in any real live court, is to say I'm going to make the following points and I intend to make them very vigorously, but I want to tell you beforehand that I think it's all a pile of junk. That's really what he's saying.


QUESTION: Yes, but you're arguing -- you say he's entitled to the undivided loyalty of the lawyer. Well, the lawyer gives him his undivided loyalty and when he says to him, I recognize you want to appeal but there is absolutely no merit to this appeal, it's a waste of time and money and everything else, and, so, I don't think you should appeal. There's nothing inconsistent with that.

MR. BUTLER: There's nothing inconsistent with that.

QUESTION: And then he goes on and he says, moreover, since it's frivolous, I have an ethical duty not to prosecute it and to advise the Court of it. Why is that inconsistent with his duty to his client?

MR. BUTLER: Because the client at that point says, I have a right to an appeal and I want the appeal, and at that point, the lawyer's duty is to protect that appeal. His constitutional duty. Because he has the right to appeal as a matter of right, not as a matter of privilege.

QUESTION: Well, Wisconsin can well look at it a different way, that the reason he's setting forth the causes for frivolousness are not to harm his client, but, rather, to justify to the Court his withdrawal from the case.

[Therein, Butler argues that it IS imperative for a public defender to take a frivolous case to appeal. You, "Charlie" say otherwise?

Immediately following, Scalia affirms that Loophole Louis is acting like a Schnauzer--popping up and yapping without apparent cause:

Now, there do arise situations where a lawyer has two obligations; one to the Court, one to the client. In justifying his actions to the Court, it seems to me he is certainly being no less loyal to the client that by the mere fact of his saying I will not take an appeal.

Reason for that, "Charlie"?

Mr. Butler, I think there is a good deal of difference between a trial situation where the burden of proof is always on the Government and any competent attorney knows that he represents the defendant by simply putting the Government to its proof, just by cross examining, and on the other hand, on appeal, you get into situations, which I daresay you've confronted some yourself having filed two Anders, where you have to -- you know, the burden of proof is no longer on the Government, the burden of proof is on the Appellant, and there just isn't much -- there's virtually nothing to complain about. Everything that you asked the trial court to do, the trial court did. The jury still returned a verdict of guilty.

[Wherein Mr. Butler is advised of the difference between TRIALS and APPEALS.]

Do you need briefing on the difference, too??

In fact, "Charlie," I would say that the REAL irony here is that Loophole Louie argues that the Wisconsin Supreme Court should not arrogate to itself a position differing from the U S Constitution--an argument which has been rejected by Screechin'Shirley, whose "New Federalism" theory is that the Wisconsin Supremes ARE able to over-rule SCOTUS interpretations.

Irony, indeed.

Jay Bullock said...

Dad29, you, like Owen, are mischaracterizing the case. Your update helps, but you're still wrong.

This case is not about a PD's right to file appeals he knows are frivolous, it's about the burden that a PD must to file a brief when he withdraws from a case that he knows is frivolous.

Both you and Owen seem to be reading Butler's arguments as to indicate that a PD ought be allowed to file frivolous appeal on top of frivolous appeal even when he knows they're frivolous without being required to say that he knows of their frivolity.

Yet that is neither what Butler argued nor what the SCOWI rule says. Butler wanted off of McCoy's case because he knew any further appeal would be frivolous. SCOWI said "Not until you tell us why it's frivolous" and Butler, thinking about the 6th Amendment rights of McCoy (hopeless though McCoy's case may have seemed), said "No," and that refusal to document the frivolous nature of the case he wanted off of was what he took to the SCOTUS.

In other words, Butler wanted the same rights for PDs as for private attorneys to drop hopeless cases without explaining why.

The case had nothing to do with the number of appeals a PD can file in a frivolous case. Nothing.

Dad29 said...

If your synopsis is correct, Jay, Butler argued that SCOWI's rules violated the 6th Amendment.

SCOTUS said he was wrong.

Butler claimed that explaining the frivolity was un-Constitutional. The argument was....uhnnnnn....stuffed by the Supremes.

If you like, you can characterize the case as serious, and dignify Butler's actions.

I cannot agree with your characterization.

Anonymous said...

Dad29- All cases the Supreme Court takes are serious. The argument was an interesting Constitutional question, and the court narrowly disagreed with Butler.

John Foust said...

I wonder who fed this one to Owen. We're supposed to be up in arms about the expenses incurred, and yoke them on Butler for doing his job?

Disclaimer: No one paid me to have this opinion or withhold this opinion.

Dad29 said...

1) The decision was not "narrow."

2) Butler conjured up a "problem" which NO OTHER PD in WISCONSIN ever saw. That accounts for the soubriquet "Loophole."

Further, unless you are willing to stipulate that every OTHER PD in Wisconsin is/was lazy, stupid, or not particularly zealous, then howizzit that NOBODY brought the question until Loophole?


And yes, John Foust, we SHOULD be unhappy about Loophole's decision to sue the State of Wisconsin's judiciary.

The decision of SCOTUS says a lot.

Jay Bullock said...

Dad29, what do you mean, "if" I'm right? Show me where I'm wrong.

Owen used the case to claim that Butler wanted to extend the right of defense counsel (PDs, in particular) to file appeals that lack merit. That's false. You quote the same section of the transcript, sans context, that Owen does to make the same point, and you are just as wrong.

This is the kind of thing that makes my head explode: Your side has argued about Knapp that Butler-as-Justice should not have exceeded the minimums set by SCOTUS in the precedent cases. Now your side is arguing that in McCoy, Butler-as-defense-counsel should have accepted rules that exceeded the minimums set by SCOTUS in the precedent case.

So tell me, is it wrong for SCOWI to exceed SCOTUS, or not?

Dad29 said...

Jay, if your head explodes, then you can no longer vote.

Mission accomplished!!!

To the point: Loophole is the one who has confusions, not me. In the instant case, he wanted to force SCOWI to change its rules and allow PDs to force the judiciary to 'make up their own minds' about the merits of an appeal--insouciant, if not silly.

IOW, he wanted to put the burden on the judiciary, not on the attorney.

He's consistent: as a justice, he's perfectly happy to take on Legislative and Executive authority (not to mention retaining advocacy).

Frankly, Jay, he's just wrong.

Now put your head back together. The Socialist Combine needs your vote!

Dad29 said...

Oh--and please note, Jay: arrogating Legislative and Executive powers into SCOWI's purview is not only confused.

It's signal of dictatorship-wannabe.

Jay Bullock said...

IOW, he wanted to put the burden on the judiciary, not on the attorney.
It seems to be a burden that 49 other states and SCOTUS (under Anders) seem content with; indeed, Justice Stevens notes in his opinion that it remains the court's place to make a final determination of merit on an appeal.

Jay Bullock said...

To be more specific:
In the instant case, he wanted to force SCOWI to change its rules and allow PDs to force the judiciary to 'make up their own minds' about the merits of an appeal--insouciant, if not silly.

The notion that the judiciary accepts withourt question whatever an appellant's attorney claims--i.e., that the judiciary with the Wisconsin Rule in place never has to "make up their own minds"--is the notion that is absurd.

Dad29 said...

Let's re-state.

Under the Wi rules, when a PD finds an appeal (ONLY an appeal) to be frivolous, he must say so (and list a few cites, reasoning, etc.) as an attachment to the brief.

This is in lieu of the Court finding the cites, reasoning, etc., on its own.

The Court may well disagree with the PD. But the work is done. THEY don't have to do the work.

Got that, Jay?

Jay Bullock said...

How sad. You've gone from
Butler Used Taxpayer Money To Enable Frivolous Appeals And Jet Off To Glamorous Washington DC On Your Dime
Butler didn't think it was fair to have to explain to the court why his own case was hopeless but a divided court told him he had to anyway.

I don't think I'm the one who lost this argument.

Dad29 said...


Butler was arguing FOR the possibility of filing what amount to frivolous appeals to the FEDERAL courts, too.

This was not limited to SCOWI filings.

Ergo, the headline and content hold water.

Jay Bullock said...

Butler was arguing FOR the possibility of filing what amount to frivolous appeals to the FEDERAL courts, too.
No, he was not. He was not arguing for the ability to file a single additional appeal! It was not about that at all! Did you read the ruling? A word of it?

And even if he had won his case, he would still be bound by Anders--not a single additional appeal would have resulted. Period.

Dad29 said...

Jay, you are still trying to make the case that ONLY Loophole Louie was a diligent and conscientious PD.

No OTHER PD in the State of Wisconsin was smart enough, or cared enough, to ask for an Anders clarification in the WHOLE history of the SCOWI rule.

Damn. He must be Superman, Batman, and Spiderman all rolled up into one.

And he enjoyed his trip to DC, too!

Jay Bullock said...

Apparently the SCOTUS thought it was worth considering. I suppose you can call them names, too. Doesn't make you any less, um, wrong. Sheesh.

Dad29 said...

Or, Folkie, another way to put it:

Butler wants to make it more likely that judges will reject motions to withdraw based on frivolous appeals because the lawyers in the case are not forced to prove their case in written format.

Just like you learned on Owen's thread.

The advance of frivolity by quashing intelligent briefing.

SCOTUS accepted the case for whatever reason--I don't care.

I will tell you that Brennan and Blackmun are political assholes who should have been sweeping up after the elephants in a parade.

Just my opinion. And by the way, the other Justice who joined them--about the same.