"The Wisconsin Supreme Court raised the prospect Wednesday of striking down part — but not all — of a law that gives same-sex couples some of the rights of those who are married."

At yesterday's oral argument.

... Austin Nimocks, an attorney for the plaintiffs, argued domestic partnerships mirror marriages and thus aren't allowed under a 2006 amendment to the state constitution that bans gay marriage and any "legal status identical or substantially similar to marriage."....

Justice Patience Roggensack noted it is rare for the court to strike down a statute in its entirety, rather than just the parts that violate the constitution. That prompted a discussion about whether the court could take out the elements of the registry law that require people to be of the same sex and not closely related.

If the court were to go that route, gays could remain in domestic partnerships, but heterosexual couples would now get the chance to form them. Family members could also enter into them, such as a woman who took care of her sick grandmother.

I haven't seen the transcript of the argument, and I can't tell if this was merely a device to open up the analysis or a real option under consideration, but it strikes me as profoundly anti-democratic for judges to rewrite a statute like that. It would be an interesting legislative innovation to allow domestic partnerships for any 2 co-habiting individuals who would like access to government benefits as a legally recognized couple. But that ought to be something the people have had some chance to contemplate and about which to have some representation in the legislature.

I support same-sex marriage and I opposed that 2006 amendment to the state constitution, but the amendment is what it is, and it seems as though the court is confronted with a statute that probably violates that constitutional amendment. I understand the urge to resist that unpleasant conclusion, but statutory and constitutional texts need to be taken seriously.

The people who oppose same-sex marriage are cynical enough already about whether texts are interpreted fairly and whether majoritarian preferences count against elite opinion anymore.

Wisconsin Supreme Court upholds reckless homicide conviction of parents who prayed instead of seeking medical treatment.

Dale and Leilani Neumann's daughter Madeline died of diabetes 5 years ago. They were convicted in 2009, sentenced to 180 days in jail, but the sentences have not yet been served.

In the majority opinion, the justices noted the 1987 law that protects faith healing states that a person is not guilty of an offense because he or she provides a child with treatment by spiritual means through prayer alone.

But the justices agreed with the prosecutor that the treatment through prayer provision applies only to charges of criminal child abuse and does not create a blanket protection from criminal prosecution for a parent....

Here's the opinion, written by Chief Justice Shirley Abrahamson. Justice David T. Prosser Jr. dissented:

The Neumanns claim that the reckless homicide statute is too murky to give sufficient notice as to when parental choice of treatment through prayer becomes illegal.  Given the nature of Kara's illness, as well as the imprecision in the statutory language, I agree.  There is a due process problem here.  On the facts before us, the statutes are very difficult to understand and almost impossible to explain.  Indeed, the statutory scheme is so difficult to explain that if a prayer-treating parent were to consult an attorney on how he or she could prayer treat and stay within the bounds of the law, virtually any attorney would be at a loss to reasonably advise the client.  The concerns stated would not have been so pronounced if the Neumanns had been prosecuted under the child neglect statute....

"Maybe there are notes in all sorts of books."

A video I made today, in the University of Wisconsin faculty library — Lubar Commons. I was sitting by the window and I idly picked up one of the earliest volumes in the books that contain the decisions of the Wisconsin Supreme Court.

"State Supreme Court Justice Patience Roggensack easily won a second term Tuesday, overcoming Marquette University law professor Ed Fallon."

For those of you who've been following the ongoing saga of the Wisconsin Supreme Court: It was  57%/43%.

Roggensack touted her experience in the race, noting she served seven years on the Court of Appeals and nearly 10 years on the Supreme Court. She had the backing of law enforcement and more than 100 judges, as well as the state Republican Party.

Fallone, who had the support of Democrats and unions, contended the high court has grown dysfunctional and said Roggensack needed to be replaced to start to improve sour relationships on the court.

What does this clear victory say about the recent struggles in Wisconsin — the protests and the "chokehold" incident? It's very hard to defeat an incumbent judge, but the liberals don't seem to have tried very hard this time. It looked like merely symbolic opposition — as if the race were more of an opportunity to criticize the court —  an inherently discordant message as Fallone both criticized and portrayed himself as somehow able to swoop in and make everyone behave better. How would he do that?

The answer — to my ear — seemed to be that the fix was to give the liberal side of the court a majority. That could never be openly articulated, however, because it's (officially) a nonpartisan election, and to put things politically is to antagonize voters who think judges should decide cases by a purely legal methodology, free from any political influence.

ADDED: It's very hard to defeat an incumbent judge, but:

An Ozaukee County judge [Tom Wolfgram] criticized by his spring election opponent for signing a petition to recall the governor has lost his seat on the bench after 19 years.

And:

Dane County Judge Rebecca St. John, a Walker appointee, lost her re-election race, getting 47.4 percent of the vote against lawyer Rhonda Lanford’s 52.5 percent of the vote with 95 percent of the vote counted, according to unofficial results from the Dane County Clerk’s office.

Note that both losing incumbents looked political, especially Wolfgram. As for St. John, you have to imagine how being a Walker appointee smells in Madison, Wisconsin.

The infamous "chokehold" incident dogs the new Wisconsin Supreme Court election.

"State Supreme Court Justice Ann Walsh Bradley in an interview ripped into Justice Patience Roggensack's recent comments that if re-elected she would find a way to resolve the June 2011 physical confrontation between Bradley and Justice David Prosser."

Ripped into? Why rip into Roggensack? Well, that's the Milwaukee Journal Sentinel's characterization. Here are the details provided:

Roggensack faces Marquette University law professor Edward Fallone in the April 2 election. The winner will secure a 10-year term on the court. Fallone has focused much of his campaign on the altercation between Bradley and Prosser, saying it is emblematic of dysfunction on the court.

On Monday at a luncheon in Milwaukee, Roggensack condemned the behavior of both Bradley and Prosser, as she has in the past, and said she should not be judged by their conduct....

Roggensack on Monday said Bradley came at Prosser with a raised fist. "I believe they (were) both out of line," she said. "I said that from the very beginning. I don't think that the conduct was appropriate by either one of them."...

Bradley also said Roggensack has mischaracterized how she acted during the incident. As she has in other recent comments, Roggensack said in Friday's debate that she got between Prosser and Bradley, separated them and "held onto Justice Bradley until she calmed down."

Bradley said Roggensack did not get between them, but rather pulled her away from Prosser when his hands were around her neck. "She didn't comfort me or calm me down," Bradley said. "What she did was instantly try to shift blame."

Said Roggensack on Monday: "I got myself between the two of them and I did hold on to her . . . because she was very upset."

Wisconsin Supreme Court debate.

Here's the complete debate that took place last night between incumbent Justice Pat Roggensack and her challenger Marquette University law professor Ed Fallone. It's quite lively and fast-moving, with a good bit of attention to the much-publicized discord that took place 2 years ago. You may remember the story of one justice rushing at another and an accusation of choking. In that scenario, Roggensack was the one who broke up the melée.

Watch 2013 Wisconsin Supreme Court Debate on PBS. See more from Here and Now.

The election is April 2d. The term to be served is 10 years.

Roggensack advances....

... along with Marquette lawprof Ed Fallone in today's primary. Wisconsin Supreme Court... in case you've been following things. There were 3 candidates and the top 2 advance. Roggensack was way out in front, so she's expected to win reelection in the April 2 election.

We almost forgot it was primary day, but we went back out into the icy darkness to perform our civic duty.

Meade amused me with his contribution to the Isthmus forum thread "Did you vote yet?"

Not yet. Where do I go? Who should I vote for? What time do the polls close? How long does it take? Do I have to show a photo ID? Or can I just show them my birth certificate? Do they take credit cards? Thanks in advance.

"Somewhere, someone needs to create a 'Ridiculous Legal Document Hall of Fame.'"

"It would proudly house the contract visitors have to sign to enter Willy Wonka's chocolate factory. And it would feature the $416 million lawsuit filed against Michael Jordan in 2006 by an old man who complained that he suffered harassment because he looked too much like the basketball star (despite being six inches shorter). Last week, Wisconsin Supreme Court Justice Ann Walsh Bradley produced a legal document so preposterous it would warrant its own wing. Bradley's recusal from a state Judicial Commission case against fellow Justice David Prosser is a nakedly partisan hit job."

Opines Christian Schneider in the Milwaukee Journal Sentinel. (Read the whole thing.)

"She comes into the conference room singing. To me, that’s very inconsistent with someone who’s afraid."

Very intra-Wisconsin-Supreme-Court stuff, but there's a judicial election coming up, and some close scrutiny is appropriate.

"Our court needs to address and solve its workplace safety issue."

"If nothing is done, I wonder what will happen next in this escalating pattern of abusive behavior."

Escalating? What has happened since June 2011 in the allegedly abusive workplace that is the Wisconsin Supreme Court?

To this day, the Chief Justice and I continue to lock ourselves inside our private offices when working alone because of concerns for our physical safety due to Justice Prosser’s behavior.

That speaks to the state of mind of the Justices who are locking their doors, but what is the ongoing reality? If nothing more has happened, isn't it time now to de-escalate the drama?

It was reported recently that when asked about how the court is operating, Justice Roggensack responded ‘We are doing just fine’ and that ‘we are working very well together.

Coincidentally, Justice Roggensack is up for reelection:

A Feb. 19 primary will pare the race to two candidates. The general election is April 2.

"It's questionable for a candidate appear on a book cover with a scantily clad woman or to crudely dismiss Jewish people in an online video..."

"... even if it's done as satire. Nor is it ideal for someone seeking statewide office to make a rude gesture to a state senator during committee testimony."

And the statewide office is...

... Wisconsin Supreme Court Justice.