A Salute to Judge Ralph Adam Fine!

By Wisconsin State Public Defender
Dec 8, 2014

“No! Don’t ask me how I am. You already know the answer. I’m fine. I’m always Fine!”

Back in 2007, Judge Fine told De novo, the Appellate Practice Section’s newsletter: “I love every minute being on the court. It has been 19 years and yet it seems as if I joined the court just yesterday. It really does. I enjoy few things more than writing an opinion. I actually get a physical high out of doing it. I have a stand-up desk with my computer on it and I write my opinions standing up. My adrenaline pulses so powerfully when I am writing an opinion that I have to stand up. I can’t do it sitting down.”

In honor of this high octane legal mind and equal opportunity gadfly, today’s edition of On Point features tributes from around the legal community.

Chief Judge Richard Brown: “Emails I received from Ralph Adam Fine.”

Re a request for his list of pet peeves: I have so many pet peeves the humane society threatens to come out :>)

Re Bullcoming v. New Mexico: An expert who parrots an out-of court statement is not giving expert testimony; he is a ventriloquist’s dummy.

Re State v. Bons, which sanctioned a lawyer for falsely certifying that his appendix complied with 809.19(2)(a):Well done, guys :>) … to borrow from some French that I never learned, Bons is bon — even if Bons is not.

Re a Wisconsin Supreme Court decision: You and I read all our C of A and WI SC decisions, as well as many interesting federal appellate decisions–I try to at least scan the 7th, 9th, and circuits every day as well as the USSC when they issue something. Most of what we read, especially by Hamilton, Williams, Wood, and Easterbrook (and puckish Posner) and Kozinski in the 9th, are short and to the point. I read today’s WI decision in the . . . case — why all the needless and obscuring maze of words, when, as is often the case, the analysis can be simple and direct?I’m not just picking on the Majority and concurrences today–they all always seem to drown in a thrashing whirlpool of words. Why can’t they get from A to D by simply going through B and C, without also taking a tour through Z and often Z prime? OK, my rant for today

Re a colleague whose draft opinion was long overdue: I spoke with a Japanese friend several years ago about what it’s like to be a writer in Japan. She told me about this really interesting cultural practice that takes place (apparently) exclusively in Japan. If an author is under contract to write a book for a publishing house, and the writer hasn’t really produced the book by the due date of the contract, the publishing house can spirit that person away and keep them in a hotel room (effectively under house arrest) until they finish writing the book. Yes, it’s really true.” >

Re State v. Giese, the first decision to apply Wisconsin’s Daubert standard: Very nice, Rick. Short and sweet

… especially: “We conclude that the expert’s opinion about retrograde extrapolation is admissible under § 907.02 in Giese’s case because it was the product of reliable principles and methods and based upon sufficient facts and data, which is all that Daubert requires.” :). I certainly hope all the “over-thinkers” and several-hundred-paragraphs types take it to heart!!!

Re his quest to have all three of his names on the ballot: As you know, I had to sue the elections bd to get to use 3 names. When, in my argument before the bd before filing suit, I pointed out that they let Mary Lou Munts and Ernst John Watts appear on the ballot with all their names, one of the bd members, whose name I forget, said: ‘Well, we know Mary Lou.’ :>)

Re a judge not known for being lenient: ): 3 years for a 7th drunk-driving, while out on bail for a 5th?!!!!! Good god, is she waiting until the guy kills someone?

Re a Wisconsin Supreme Court decision: unbelievable!!! aren’t folks entitled to fair trials anymore :>( and the US Sup Ct just decided a case (in a pc) that is wholly to the contrary, as it should be! That’s why, sadly, I tell folks if they see a hospital, an unchained rottweiler, or a courthouse up ahead, they should turn around!

Shelley Grogan, Judge Fine’s clerk

I worked with Judge Fine for twenty years, the last five directly as his law clerk. He cared deeply about making the right decision on each case. He was intellectually brilliant and once he made a decision, he worked tirelessly to prepare a flawless draft. The speed with which he completed his work was nothing less than amazing. I think he worked 24 hours straight when he was working on something because I would get emails from him at all hours of the night.

He also spent many hours teaching. He believed strongly in a linear writing style combined with use of descriptive words. He also made every effort to interact positively with others in the office, regardless of position.

Judge Fine made an immeasurable contribution to Wisconsin case law over the years. And although he will be missed tremendously, his wisdom and analysis will continue to guide the Wisconsin legal profession for years to come.

Steve Jacobs, Reinhart Boerner Van Deuren s.c.

Trying a case in Judge Fine’s court could bring out the best in a lawyer. He was whip smart, well researched and always prepared. He expected lawyers to have done their homework, and didn’t suffer fools gladly. Softening all of the above was Ralph’s ability to also laugh at himself, which he had no hesitation to do.

Bill Tyroler, retired State Public Defender

Wisconsin has long been graced by more than its share of first-rate appellate judges, and at the top of that list is Ralph Adam Fine. “Is,” because his writing is timeless, routinely sparkling with lapidarian elegance. In the hope a very few examples suffice:

[P]ersons in our society have a right founded in deep and abiding constitutional principles ‘to dwell in reasonable security and freedom from surveillance.’ Johnson, 333 U.S. at 14… Sadly, the officers here used their ruse about wanting to check Munroe’s identification to mimic those myrmidons of King George who bedeviled the colonists with their General Warrants and Writs of Assistance, which gave the king’s agents license to search everywhere and everyone. State v. Munroe (2001).

Closing arguments are important. The State and each criminal defendant it prosecutes are entitled to the time to efficiently and sufficiently present their cases to the jury. Otherwise, we just dance a meaningless quadrille.” State v. (Roosevelt) Williams, 1/26/10 (conc/diss).

No person against whom criminal-law-type sanctions may be applied should have to wait for the judicial resolution of his or her claims as long as James E. Stokes has waited. Jarndyce and Jarndyce delays are intolerable. State v. Stokes, 2/21/07 (conc).

As a remedy, Fritz seeks reinstatement of the original plea bargain. … But such a request poses a “brook too broad for leaping.” See A. E. HOUSMAN, A SHROPSHIRE LAD, canto 54 (1932). State v. Fritz, 1997.

One of his most impressive efforts was among his last, State v. Rindfleisch, 11/12/14 (diss), released mere weeks before death. It is a spirited, eloquent dissent, that stirringly underscores his commitment to individual liberty:

The essence of our country is “that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.” Marbury v. Madison, 1 Cranch 137, 180 (1803). (Emphasis in original.) Simply put, we are governed by our Constitution, not expediency. … The Majority legitimizes a general warrant and nullifies our Constitution. …

Judge Fine’s numerous admirers will compile many more, undoubtedly better examples of his skills. No surprise, given the vast number of choices.

Marla Stephens, Appellate Division Director, State Public Defender

I will miss Judge Fine.

Because he noticed when you tried to be a good lawyer, and he hated it when you didn’t. He hated it because it made his job harder, and he hated it because it jeopardized the integrity of the judicial system, but mostly he hated it because it was less than what we owed our clients.

Because he volunteered his time to train us defenders to be better lawyers.

Because he personified judicial integrity and intellectual curiosity.

Because he made me careful about the little things.

Greg Weber, Head of Criminal Appeals, Wisconsin Department of Justice

The Criminal Appeals Unit will miss Judge Fine’s keen intellect and eye for detail. To a lesser extent, we’ll miss his critical view toward plea-bargaining. From State v. Smith, a 1995 decision:

The writer of this opinion reiterates his view that plea bargaining is a blot on the criminal justice system and everything for which it is supposed to stand. One of the concurring justices in Garcia recognizes that “ “[t]he dual aim of our criminal justice system is ‘that guilt shall not escape or innocence suffer.’ ” ” Garcia, 192 Wis.2d at —-, 532 N.W.2d at 120 (Wilcox, J., concurring) (quoting United States v. Nobles, 422 U.S. 225, 230, 95 S.Ct. 2160, —, 45 L.Ed.2d 141, 45 L.Ed.2d 141 (1975) internal citation omitted). As this writer has pointed out elsewhere in some detail, plea bargaining runs counter toboth of these worthy goals. First, it permits the guilty to avoid responsibility and just punishment for their crimes. Plea bargaining thus encourages crime. Further, criminals who get unjustified leniency as the result of their plea-bargained deals are freed from prison earlier than they would have been, or are not even sent to prison at all. Plea bargaining thus permits criminals to commit more crimes and hurt more victims. Second, plea bargaining tends to extort guilty pleas (or their equivalents) from the innocent. RALPH ADAM FINE, ESCAPE OF THE GUILTY 16-111 (1986); Ralph Adam Fine, Plea Bargaining: An Un necessary Evil, 70 MARQ. L. REV. 615 (1987). Moreover, and equally serious, plea bargaining permits many victims to believe that the legal system does not appreciate their suffering by sending the message to them and to society that some crimes simply do not count. See, e.g., Fine, 70 MARQ. L. REV. at 616-618 n. 7. In this writer’s view, the Wisconsin Supreme Court should seek to limit plea bargaining in this state, as it is empowered to do, see§ 751.12, STATS.; Adoption of Plea Agreement Rules, 128 Wis.2d 422, 383 N.W.2d 496 (1986); State v. Kenyon, 85 Wis.2d 36, 45, 270 N.W.2d 160, 164 (1978) (“Prosecutorial discretion to terminate a pending prosecution in Wisconsin is subject to the independent authority of the trial court to grant or refuse a motion to dismiss ‘in the public interest.’ ”), rather than issue panegyrics in its support. Additionally, giving a defendant what Garcia terms the “valuable option” of accepting conviction even though he or she claims innocence, Garcia, 192 Wis.2d at —-, 532 N.W.2d at 115, has an Alice-in-Wonderland ring to it. Nevertheless, as a judge of this intermediate appellate court, the writer must, appropriately, accept the rulings issued by those who sit on courts of superior jurisdiction. See Hutto v. Davis, 454 U.S. 370, 374-375, 102 S.Ct. 703, —, 70 L.Ed.2d 556, 70 L.Ed.2d 556 (1982) ( per curiam).

Mostly, we’ll miss an appellate judge who worked hard, did the necessary research, pushed the advocates to clearly articulate their points, and sought to reach decisions that did justice in the individual case.