Tuesday, April 8, 2014 Wisconsin Governor Scott Walker signed 2013 Senate Bill 223 into law (now 2013 WI Act 208) creating Wis. Stat. § 995.55. The statute relates to three categories of social media privacy (incidentally, it is curious that the term “social media” is not used in the statute):

1) employer access to, and observation of, the personal Internet accounts of employees and applicants for employment;

2) educational institution access to, and observation of, the personal Internet accounts of students and prospective students; and

3) landlord access to, and observation of, the personal Internet accounts of tenants and prospective tenants.

The bill created Wis. Stat. § 995.55 which prohibits employers, educational institutions, and landlords are prohibited from requesting or requiring disclosure of “access information” for your “personal Internet accounts.” By using the verb “request,” the statute prohibits these entities from even asking you for this information. In other words, unless you voluntarily walk up to your boss and say, “hey you should follow me on Twitter- my username is "Mngmnt_stinks,” your boss will have to resort to more intensive research if he or she wants to find out who you are in the online universe. The statute says that the employer, educational institution, or landlord may not request or require you to “otherwise grant access to or allow observation of that account.” Wis. Stat. §§ 995.55(2)(a)(1), 995.55(3)(a)(1), 995.55(4)(a)(1). So if your boss demands that you accept her friend request on Facebook, this statute now provides you with the perfect, plausible excuse to say no.

Another key term under the statute is “access information.” The statute places restrictions on the ability to obtain information necessary to access a personal Internet account. The statute defines access information as “a user name and password or any other security information that protects access to a personal Internet account.” Thus, information such as “your mother’s maiden name” and “the street you grew up on” that may be relevant to retrieving a password also is protected. So an employer can’t skirt the new law by asking for the employee’s security questions and then making some educated guesses. The statute says that the employer, educational institution, or landlord may not request or require you to “otherwise grant access to or allow observation of that account.” Wis. Stat. §§ 995.55(2)(a)(1), 995.55(3)(a)(1), 995.55(4)(a)(1). So if your boss demands that you accept her friend request on Facebook, this statute now provides you with the perfect, plausible excuse to say no.

However, an employer can still request or require you to disclosure your personal email address. Wis. Stat. § 995.55(2)(b)(7). Employers and educational institutions may require an individual to disclose information to access a device, account, or service they provide to the individual. Although this exception allows access to a tablet, laptop, or smartphone that the employer or educational institution provides to an individual, a personal social media account accessed through the device is still protected.

The statute also defines “employer” broadly. If you employ at least one individual, you may be an employer. The state and municipalities are employers, as are the legislature and the courts. Wis. Stat. § 995.55(1)(c). the statute also defines “educational institution” broadly to encompass both public and private schools and to span grade school through college level education. Wis. Stat. § 955.55(1)(b).

Individuals who allege violations of the Act against employers or landlords will proceed with the same Wisconsin Department of Workforce Development (DWD) complaint, investigation, and hearing proceedings that are already in place for charges of discrimination under the Wisconsin Fair Employment Act (WFEA), Wis. Stat. §§ 111.31-.395, and the Wisconsin Fair Housing Act (WFHA). Wis. Stat. § 106.50. Students, prospective students, and educational institutions will proceed down the same administrative path established by the WFEA.  Wis. Stat. § 995.55 (6)(b). Individuals must file a complaint against an employer or educational institution within 300 days, Wis. Stat. § 111.39 (1), or against a landlord within one year, or their claims will be barred. WIs. Stat. § 106.50 (6)(a)1.

According to Wis. Stat. § 995.55(6), a violation will result in forfeiture of not more than $1,000. If the violation involves wrongful discharge, discipline, discrimination, etc., the person wronged may file a complaint with the department of workforce development and the complaint will be processed like an employment discrimination complaint.

Under the statutory scheme applicable to employment discrimination complaints, if wrongful discharge or discrimination occurred, the department examiner may award compensation of at least “500 times the hourly wage of the person discriminated against when the violation occurred” but not more than compensation of “1,000 times the hourly wage of the person discriminated against when the violation occurred.” Wis. Stat. § 111.39(4)(c). So for an employee making $10 an hour, a violation could cost $10,000 and perhaps back pay.

Employers investigating allegations of an existing employee’s workplace misconduct that involve social media accounts must establish “reasonable cause” to review private social media content. The Act does not provide any help to define reasonable cause. Employers may attempt to establish reasonable cause to investigate protected content through public social media content, statements or information volunteered by employees, or employee testimony received through interviews. An employer should document its basis for reasonable cause to support further inquiry by the DWD.

Once an employer establishes reasonable cause to review an employee’s private social media content, the permitted parameters of the employer’s investigation still are limited. The Act only allows an investigating employer to request the employee login to an individual’s account for the employer to review or for the employer to observe while an employee navigates the account. Wis. Stat. § 995.55 (2)(b)2. If review of profile content takes place on an employer’s devices, an employer might want to take additional steps to further limit the potential for liability based on information the employer could arguably retain as part of such review. These steps include disabling, explaining, and documenting any computer or network settings that could retain password information on the employer’s devices.

In a ruling written by Judge Alex Kozinski, the U.S. 9th Circuit Court of Appeals on August 14, 2015 held that a Los Angeles County sheriff's deputy may be held liable for wrongfully arresting Deputy Public Defender Florentina Demuth after she failed to respond to a judge's demand to come to court.

In that memorandum decision, Demuth v. Los Angles County, http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/14/12-57197.pdf, A Los Angeles County sheriff’s deputy who responded literally to a deputy public defender’s sarcastic suggestion that he arrest her if he wanted her immediate presence in court is not protected by qualified immunity, the Ninth U.S. Circuit Court of Appeals ruled Friday.

 

The panel said U.S. District Judge Michael Fitzgerald of the Central District of California erred in concluding that Deputy Wai Chiu Li acted reasonably in arresting Deputy Public Defender Florentina Demuth after she made the comment.

 

Demuth sued Li and the county after the 2010 incident, which occurred when the defense lawyer was running late for a hearing at Los Angeles’ Los Padrinos Juvenile Courthouse and did not respond to several pages.

 

Then-Referee Heidi Shirley, juggling a calendar, declared:

 

“I order Ms. Demuth to court. If she refuses, then call Ms. [Patricia] DeLaGuerra-Jones [a supervising deputy public defender] to explain why Ms. Demuth isn’t here.”

 

Li went to the public defender’s office in the courthouse and repeatedly asked Demuth to come to the courtroom, to which Demuth responded, “‘Just a minute,’ or something to that effect,” Judge Alex Kozinski explained in the opinion. Li then raised his voice and demanded that Demuth come immediately.

 

Demuth, Kozinski explained, was in the process of completing an assignment given her by the DeLaGuerra-Jones, and told the deputy: “If you want me to come right now, you’ll have to arrest me.”

 

Li then handcuffed the lawyer, escorted her to the courtroom, and removed the cuffs.  She was under arrest for 11 minutes, according to testimony.  Fitzgerald found that the arrest violated the Fourth Amendment, but that the deputy was entitled to qualified immunity because the invalidity of the arrest wasn’t clearly established by the case law prior to that time.

 

The appeals court disagreed.  Noting that it was “not unusual” for deputy public defenders to be out of the courtroom when their cases were called, that it “typically took some time—and a few pages—to get them there,” Kozinski concluded:

 

“Li could not reasonably have believed that he had one of the usual Fourth Amendment justifications for the arrest. He had no warrant; Demuth was not suspected of a crime; he was not in hot pursuit or performing a community caretaking function, etc. No reasonable officer could have understood the referee as ordering that Demuth be forcibly brought into court.”  While “challenging someone equipped with a badge, handcuffs and a gun to ‘arrest me’ was unwise on Demuth’s part,” the comment was legally irrelevant because “Demuth was obviously employing a literary device known as sarcasm,” the judge said.  Importantly, Judge Kozinski than makes an important statement:

 

“[Demuth] could not have authorized her own arrest.”

A growing body of public health research has been dedicated to studying the impact of experiences of racial discrimination on outcomes ranging from mental disorders such as depression and anxiety, to chronic illnesses such as heart disease and breast cancer. Studies have consistently found that experiencing discrimination is associated with poorer health outcomes overall, but findings on the specific factors have been mixed. Much depends on the health problem in question as well as different approaches to studying these issues, highlighting the need to further understand existing controversies in the field.

A recent example of this research is a 2015 paper published in the Annual Review of Clinical Psychology, “Self-Reported Experiences of Discrimination and Health: Scientific Advances, Ongoing Controversies, and Emerging Issues,” Tené T. Lewis of the Rollins School of Public Health at Emory University, Courtney D. Cogburn of the Columbia University School of Social Work, and David R. Williams of the Harvard T.H. Chan School of Public Health examine this issue and make some fascinating observations.  Key points highlighted in the review include:

• While many interpreted the election of Barack Obama as being indicative of a new “post-racial” America, discrimination based on race or ethnicity continues to be a persistent experience for people of color in the United States across numerous domains, including housing, community policing, and health care treatment.
• Experiences of discrimination are a form of stress that can have serious implications for mental and physical health, ranging from depression, anxiety and post-traumatic stress disorder to all-cause mortality and hypertension. Research has also found discrimination to be associated with, “silent indicators of poor health and premature aging,” like allostatic load and cortisol dysregulation.

Lewis and colleagues conclude that the “overwhelming body of research on discrimination and health indicates that self-reported experiences of discrimination are an important risk factor for poor mental and physical health.” However, to adequately address these disparities, “significant inroads need to be made in order to dismantle the institutional policies, structures, and processes that underlie societal inequality and race-related discrimination. As research documenting the adverse effects of discrimination on health continues to grow, these efforts will become critically important as a means of improving health in societies shaped by racism and other forms of discrimination.”

 

Supreme Court Justice Oliver Wendell Holmes was traveling by train to Washington, D.C., one morning nearly a century ago when a conductor asked for his ticket. Holmes searched high and low for it until the conductor reassured him, “Don’t worry about your ticket, Mr. Holmes. We all know who you are. When you get to your destination, you can find it and just mail it to us.”

“My dear man, the problem is not my ticket,” quipped Holmes, who was renowned for his quick wit. “The problem is…where am I going?”

I have always wondered where judges are going when they decide a legal issue in a case.  I used to believe when I was a young lawyer that judicial opinions were examples of scientific reasoning.  Instead of a preconceived answer, when presented with a legal question in a case, I imagined a judge would sit among piles of law books, reading past opinions written by Olympians like John Marshall Harlan I, Oliver Wendell Holmes, Benjamin N. Cardozo, Louis Brandeis, Felix Frankfurter, Thurgood Marshall, Robert Jackson, Tom C. Clark or William Brennan.  Only after this time consuming legal research would an answer be arrived at with a legal decision written.

Now when I read new judicial appellate opinions, I just look at the name of the judge who wrote the opinion.  That usually tells me how the case is going to be decided.  The belief that a judge actually had no preconceived notion of what the answer should be to a legal question posed in a case has long since been lost by me.  To use the words of Justice Frankfurter (a conflicted judge who wrote an article shredding the case of Sacco and Vanzetti, helped found the American Civil Liberties Union, hired William Thaddeus Coleman as a law clerk, the first African American to serve as a Supreme Court law clerk, but had no toleration for Justices Black and Douglas and turned down Ruth Bader Ginsburg for a clerkship position because of her gender) judges too often start with a result to achieve so as to end up writing an opinion that is "shoddy," "result-oriented," and "demagogic".

With this view in my mind, I just read an interesting article in the July/August 2015 Wisconsin Lawyer entitled, “Ditch the Canons of Construction” which advocates getting rid of the legal rules used to interpret ambiguous statutes.  Eric G. Pearson, an experienced appellate lawyer, correctly determines that “[t]he well-documented problem with cannons is that it’s often possible to find one to support any position.  And frequently they conflict, so that their use seems opportunistic.”

 Now that is a mouthful!!  I am no sophisticated appellate lawyer like Mr. Pearson, but it seems to me that if you accept his legal reasoning, a recent decision by the Supreme Court is in deep trouble.  The rule which Mr. Pearson lays down is that if there are two or more legal principles that can support any position and conflict, their use is opportunistic and they should be “ditched.”

Before going further, indulge me for a bit of American history.  As the American colonies grew in importance and profitability the British government attempted to make American trade profitable to British merchants by interfering in the government of the colonies. The colonists disobeyed the navigation laws and Britain 'turned a blind eye' due to its policy of Salutary Neglect. However, the benevolent period of Salutary Neglect all changed after the French and Indian War (aka Seven Years War 1755-1763) when the British were left with a massive war debt. To pay the war debt the British ended their policy of Salutary Neglect in the colonies. The British intended to end illegal trading, enforce the Navigation Acts and impose new taxes and the Writs of Assistance, or search warrants, would help them to do this.

With the death of King George II in October 1760, all Writs of Assistance were set to expire on 25 April 1761 and new writs had to be obtained from the new king. The legality of the hated Writs of Assistance and the search and seizure powers of the King were challenged by a group of 53 Boston merchants, represented by James Otis. A countersuit was filed by a British customs agent called James Paxton, and together these are known as "Paxton’s case". The case was heard on Tuesday, February 24, 1761.  James Otis argued that British custom officials armed with a Writ of Assistance:

  "...may enter our houses when they please - may break locks, bars and every thing in their way and whether they break through malice or revenge, no man, no court, can inquire..."

At the trial James Otis argued that the Writs of Assistance were a form of tyranny. He coined the phrase "A man's home is his castle" to describe the sanctity and privacy that a citizen deserved from his or her government.

"...one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle..."

James Otis lost the case relating to the Writs of Assistance but he impressed the colonists and prominent leaders such as John Adams. John Adams later said that the role of James Otis in contesting the British sovereign’s power and the Writs of Assistance was:

   “...the spark in which originated the American Revolution .... breathed into the nation the breath of life”.

Fast forward to 2015 and Walter Fernandez.  Walter Fernandez flatly told Los Angeles police that they could not search his home without a warrant, saying, “You don’t have any right to come in here. I know my rights.”

Nonetheless, our United States Supreme Court ruled Tuesday that Fernandez’s right to keep police out ended when he left the premises — even though that was only because police had arrested him and taken him to the station. 

Justice Ruth Bader Ginsburg dissented in Tuesday’s ruling, and was joined by Justices Sonia Sotomayor and Elena Kagan.  Ginsburg quoted the late Justice Robert J. Jackson’s observation that the warrant requirement ranks among the “fundamental distinctions between our form of government, where officers are under the law, and the police-state where they are the law.”  She added, “Instead of adhering to the warrant requirement, today’s decision tells the police they may dodge it, never mind ample time to secure the approval of a neutral magistrate.”

Recall Mr. Pearson rule that if there are two or more legal principles that can support any position and conflict, their use is opportunistic and they should be “ditched.”  This leads me to conclude that the US Supreme Court’s Tuesday opinion is "shoddy," "result-oriented," and "demagogic" and the Supreme Court’s opinion should be ditched.

I stand by the Fourth Amendment and its history, however, even if the Supreme Court does not.

On August 3, 2015 I was excited to be on FOX 6 Real Milwaukee for Pewaukee Night Out discussing positive thinking not drug use.  See the television clip at http://fox6now.com/2015/08/03/paul-ksicinski-has-some-tricks-up-his-sleeve-for-national-night-out/

It always surprises me how many people are outraged that I would defend someone accused by the police of a crime – particularly of drunk driving. Arrest increasingly means guilt, and there is a public perception of criminal defense attorneys as being obstructionist, nefarious and somehow unethical. Certainly, every defense attorney tires of the ubiquitous cocktail party question: “How can you defend them?”

The answer to that question is complex, involving issues of possible innocence, inaccurate evidence, overcharging by the prosecutor, guarding constitutional rights, false or untrustworthy testimony, ensuring a fair trial, protection from unfair laws and harsh/illegal punishment — and just keeping the government honest.

One of the better answers was provided some years ago by United States Supreme Court Justice Byron White in the landmark case of United States vs. Wade, 388 U.S. 218 (1967):


Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.

Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth. Undoubtedly there are some limits which defense counsel must observe but more often than not, defense counsel will cross-examine a prosecution witness, and impeach him if he can, even if he thinks the witness is telling the truth, just as he will attempt to destroy a witness who he thinks is lying. In this respect, as part of our modified adversary system and as part of the duty imposed on the most honorable defense counsel, we countenance or require conduct which in many instances has little, if any, relation to the search for truth.


Some fine day, you or someone close to you will be arrested and charged with a criminal offense. That person may or may not be innocent, but you will pray that he or she is defended against the overwhelming forces of the government by a competent attorney.