You'd think it has something to do with gardening, but it doesn't. (Interesting Judicial Comments)

Insurers in Wisconsin need not be mulcted by extortionate or questionable claims if they adhere to the standards of care which we have set forth above.

-- Anderson v. Continental Ins. Co., 271 N.W.2d 368, 85 Wis.2d 675 (Wis., 1978), discussing why the rules Wisconsin adopted for bad-faith insurance claims won't lead insurers to pay claims they otherwise would rightfully have rejected.

What's interesting is that the sense in which the Supreme Court of Wisconsin used that word is only the 2nd or 3rd most common definition of the word mulct:

tr.v. mulct·ed, mulct·ing, mulcts
1. To penalize by fining or demanding forfeiture.
2. To acquire by trickery or deception.
3. To defraud or swindle.

(Source.) The picture is one of the many images that come up if you google image search mulct.

You have the right to remain... sexy?

Pay-for-play, unless by "Pay" you mean "pay the fees for the lawyer of the people you ripped off." (Consumer Law Matters)

This is a shared post between Publicus Proventus and Family and Consumer Law: The Blog.

How much does justice cost? That depends on who's doing the selling. If you're a Wisconsin court, justice can cost as much as $150,000. If you're a Wisconsin legislator, "justice" goes at the bargain basement price of $10,000.

Recently, the Wisconsin Assembly introduced a bill that would limit attorney's fees to a maximum of 3 times the award of compensatory damages awarded to a plaintiff in a case. The bill, in its current form as SB12, creates a new statute that incorporates the traditional factors that go into determining an attorney fee award in fee-shifting cases, and would apply the 3x-limit only to cases in which compensatory damages are awarded. In a case where only injunctive or declaratory relief is awarded, a plaintiff could still get a full award of fees, while if you get an award of damages and injunctive relief, the court must merely presume that the 3x cap is reasonable.

On its face, this statute is absurd. It applies across the board, meaning that mortgage brokers under chapter 224, negligent banks under section 138.052, lenders who don't provide notice to tenants, landlords who fail to make promised repairs or rent life-threatening apartments, and, last but not least, murderers, cannot be hit up for attorney's fees.

That's right: The Republicans want to make sure murderers and thieves don't pay more than a nominal amount of fees. Section 895.446, the "treble damages" statute, allows for an award of compensatory (or "actual") damages, plus tripling of those, plus actual fees, for people who are (among other things) victims of theft by fraud and crimes against bodily security. This bill would help immunize people like that from getting sued by making it harder for people to pay their lawyers.

Most consumer cases, of course, are over relatively nominal amounts of money -- with the attorney's fees/fee shifting being used to encourage attorneys to take on these cases and enforce consumer protection laws. With an attorney general who's more interested in letting the governor off the hook than enforcing consumer protection laws (J.B. "Van" Hollen once said most consumer complaints amount to people crying about not getting enough Chicken McNuggets) that type of private enforcement...

...private enforcement, Republicans, by private businesses like mine, which employs 33 people in our office alone...

... would seem important, unless it's more important to you -- "you" being "Republicans" -- to sell a little "justice" old-school style, by taking money to pass laws:

Republicans in the Legislature are trying to pass a bill to cap attorney fees that can be awarded in response to a case in which a firm owned by a GOP donor had to pay more than $150,000 in legal costs. The legal fees were included in a settlement after a man who bought a car from John Lynch Pontiac-Chevrolet alleged he had to pay nearly $5,000 for repairs he never approved. In response, Rep. Robin Vos (R-Burlington) has written a bill that would limit the amount of attorney fees that could be paid in such cases to three times the amount that is disputed in a case. In the Lynch case, the attorney fees would have been limited to $15,000 because the case centered on $5,000 in repairs. The Burlington dealership is owned by David Lynch, a Vos constituent who has made 36 contributions to Republicans totaling $10,650 since 2008. He gave nothing to Democrats during that time.

(S0urce.) Lynch, of course, is mad that he had to pay $151,000 in legal fees in the case he got sued in. Those are fees he agreed to pay, in a settlement, but why should a good, cash-carrying businessman be held to his agreement when there are legislators to be bought and sold?

Should Lynch be mad? Should he be able to buy a change in legislation that will let him rip people off in the future? Before you decide, consider the actual opinion and the background facts of the case that got Lynch so mad he decided to buy himself some "justice," Republican-style.

The case in question is captioned Kaskin v. John Lynch Chevrolet-Pontiac, 767 N.W.2d 394, 2009 WI App 65 (Wis. App., 2009). Kaskin was a guy who bought a brand new truck and when it hit 3300 miles, developed some troubles with it. So he took it to John Lynch, which provided him an estimate of one penny to repair it -- because John Lynch, owned by a major Republican contributor, assumed that the truck was under warranty.)*

*What was that thing my third grade teacher said about assuming things?

A week later, John Lynch, owned by a Good Republican, called Kaskin and said that bad fuel had ruined the injectors and they'd replaced them all. Oh, and, they added, You owe us $5,000 smackeroos.**

**Not a direct quote from the Good Republican.

Kaskin didn't think he should have to pay; after all, he'd been estimated one penny as a cost, hadn't been asked whether they should go ahead, and now owed $5,000 smackeroos. But John Lynch, owned by a Good Republican, would not release this truck.***

***I note that by repairing the truck before telling Kaskin what the problem was -- the claimed bad fuel -- John Lynch, owned by a Good Republican, may have done the car manufacturer or the gas dealer a favor there. If "bad gas" really had ruined the fuel injector, a questionable proposition given that "bad gas" typically requires buildup to ruin a fuel injector and the car had only been driven 3300 miles so far, then Kaskin could have maybe figured out where he bought the bad gas and tried to hold them liable for the $5k. If, on the other hand, it was a fuel injector problem, Kaskin might have had remedies against the manufacturer under laws like the lemon law. But by repairing the problem without even telling Kaskin, John Lynch, owned by a Good Republican who was no doubt watching out for other "small" (giant) corporations, might have spoilt the evidence, which in turn could eventually have prohibited Kaskin from making a claim against those other potential culprits.

Hmmm.

So Kaskin paid the $5,000 smackeroos -- I promise that's the last time I'll use that word in this post -- and sued, ultimately losing in the circuit court because, the court reasoned (siding with John Lynch, owned by a Good Republican and therefore entitled to special treatment in the legislature, if not the Court of Appeals, as we'll see) Kaskin hadn't suffered any pecuniary loss: He'd paid $5,000, and gotten $5,000 worth of repairs.

Not so fast... the Court of Appeals didn't say, but should have. The circuit court said that it didn't matter if Kaskin authorized the repairs or not -- remember, he'd said that John Lynch, Good Republican Car Company, could go ahead with repairs if they cost no more than a penny -- but the Court of Appeals thought otherwise because they did something I like to call "reading the law."

In fact, they began their opinion by making everyone else do just that:

WISCONSIN ADMIN. CODE § ATCP 132.09(1), (4)(e) (Oct.2004) states, in pertinent part, that "[n]o shop may ... [d]emand or receive payment for unauthorized repairs, or for repairs that have not been performed." We hold that a major purpose of this provision is to prevent either unexpected repairs, unexpected expense or both. Therefore, if the work done here was unauthorized, then the harm to the consumer, Randy W. Kaskin, was that he was deprived of his prescribed right to be informed and his concomitant right to consent or refuse consent. The remedy for a violation of this right is that the repair shop must forego being paid, even if the shop did, in fact, satisfactorily repair the vehicle.

If you're John Lynch, owned by a Good Republican, that's not starting off on the right foot for an appellate opinion in case accusing you of doing unauthorized repairs. It's always easier for people who want to rip off consumers if you don't, you know, read the law, the requirements of which the Court of Appeals said are both "clear cut" and "stringent."*4

*4 Don't you just hate it when you're subject to a clear cut and stringent law that says "Maybe you should call your customer and let them know you're going to charge them five thousand simoleons [I made no promises about other slang] before you actually hold their brand new truck hostage?

But, I mean, what's the big deal with telling consumers what you're going to do and what it's going to cost? That is, can't you trust a company owned by a Good Republican?

Apparently not, as the Court of Appeals found reason to explain. The idea of requiring authorization is to have informed consent for repairs, and

The "informed consent" concept is an integral part of consumer protection law, not only here, but across the nation. Many states have adopted stringent rules regarding motor vehicle repair. See Jay M. Zitter, Annotation, Automobile Repairman's Duty to Provide Customer with Information, Estimates, or Replaced Parts, Under Automobile Repair Consumer Protection Act, 25 A.L.R.4th 506 (2008). These states have crafted statutes or rules requiring disclosures by automotive repairers before work is begun, just as this state does. Why? Washington State's automobile repair law provides an answer. Its code "is a consumer protection statute designed to foster fair dealing and to eliminate misunderstandings in a trade replete with frequent instances of unscrupulous conduct." Bill McCurley Chevrolet, Inc. v. Rutz, 61 Wash.App. 53, 808 P.2d 1167, 1169 (1991).

A trade replete with frequent instances of unscrupulous conduct? How DARE the Court of Appeals imply that John Lynch, owned by a Good Republican, would do something unscrupulous. He hadn't even tried buying a change in the law to immunize him from further consumer protection lawsuits based on him scamming customers yet!

But to make up for implying that sometimes car repair shops might act less than scrupulously, the Court of Appeals gave John Lynch, owned by a Good Republican, a Good Idea:

The repair shop ...believe[s] this construction to be unfair, especially if, as they claim is undisputed in this case, the repairs made actually fixed the vehicle in a satisfactory manner such that the consumer received a valuable benefit. We understand that and commiserate with the repair shop and amicus curiae to the extent that the repair shop acted in good faith in not engaging in excessive and unnecessary repair. But to paraphrase an oft-repeated and now trite expression, the law is what the law is. If the association feels that the statutory damage provision is out of proportion to the harm done by the lack of authorized consent, its recourse is through the legislature.

That was back in 2009 when the Court of Appeals issued that opinion. April, 2009, in fact. So, one might ask, why didn't John Lynch, owned by a Good Republican, go immediately to the legislature to demand that the law not be what the law is?

One might ask.

Perhaps, one might then theorize, John Lynch didn't go running to the legislature because John Lynch went on to read what else the Court of Appeals said:

And frankly, our view is that the requirement of a written repair estimate with an estimated price is a simple procedure that does not impose a great economic burden on repair shops. This is important because the policy makers in this instance obviously weighed that insignificant cost to the marketplace against the need to curtail the persistent practices of exploitive merchants bent on targeting the unknowledgeable motor vehicle owner. The policy makers no doubt intended to protect consumers against misunderstandings arising from less-than-clear estimates and the legal disputes and litigation that result from the fait accompli nature of claims for repair work already done.

I'm sure that was it. I'm sure that John Lynch, owned by a Good Republican, was not just lying in wait and contributing only to Republican causes until the Republicans captured the legislature and he could buy himself a law that would make it okay to engage in persistent practices ... bent on targeting the unknowledgeable motor vehicle owner.

In fact, I bet that it was simply a change in the market. Economic downturn and all that, right, that made the insignificant cost of "asking a customer to approve a repair before doing it" no longer insignificant.

That was probably it.

Even then, the case wasn't over: the Court of Appeals simply remanded for the circuit court to determine whether Kaskin had actually authorized the repairs... and Lynch promptly settled, paying the $150,000 in fees plus damages.

Now, keep in mind, that John Lynch, owned by a Good Republican, had many many options. They could have

(a) called the manufacturer to ask if the repairs were under warranty.
(b) called the customer to ask if he had determined that the repairs were under warranty
(c) called the customer to say "Repairs'll be $5,000, want us to do them?"
(d) once they realized the customer was mad, they could have refunded some or all of his money, losing only $5,000.

They didn't do any of that. They chose to litigate, and litigate so strenuosly that they and their opponents racked up a presumed $300,000 plus in lawyers' fees -- suing over whether the customer should or should not have paid $5,000.

In other words, John Lynch, owned by a Good Republican, felt it was worth spending $150,000+ in lawyers' fees to defend his right to keep $5,000 -- but felt it was unfair that Kaskin got to spend $150,000+ in order to not pay $5,000.

In other other words, John Lynch, owned by a Good Republican, wanted an uneven playing field. He wanted to force a consumer, who doesn't know about repairs and wasn't given a choice in this case to litigate against a well-heeled car dealership, with the outcome being at best the consumer would get $5,000. Which means that absent the fee-shifting provision built in to the statutes, Kaskin would never have sued.

Never.

And the consumer protection laws requiring that repair shops get your permission before charging you $5,000 and then holding your car hostage until you pay it would be meaningless.

THAT is what your Republican Party stands for nowadays. Your right to get ripped off by people who know more than you and can't be bothered to make a phone call to get your permission.

Ironically, I'm WRITING this at work.

This is a Sponsored post written by me on behalf of Net10 for SocialSpark. All opinions are 100% mine.

 

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Credit where credit is due... (Interesting Judicial Comments)(My Actual Case results)

Judge Richard Niess, Branch 9 of the Dane County Circuit Court, is the judge I ran against last year. But, as evidenced by the hearings I attended this morning (October 26, 2011), Judge Niess not only gets it about mortgage foreclosures, but also has a colorful way of ruling -- and I'd quote him anyway because I liked the way he put these phrases, but it helps that he was ruling in my favor on the one case.

The first case was one in which BAC Home Loans Servicing had moved for default judgment, and the borrower had objected and filed an affidavit of excusable neglect as well as a proposed answer. In denying the default judgment and accepting the answer, Judge Niess noted that Bank of America, not BAC, had moved for judgment, but wasn't yet a party, and also noted that BAC had, apparently sometime after serving the borrower but before the answer was filed, contacted the borrower to attempt to work something out with her:

"That was a head-fake,"

said Judge Niess, and ruled that BAC's possibly-not-for-real modification offer justified the defendant in not having yet filed an answer.

Then it was on to my case, where the lender (an assignee of the original lender) had filed an affidavit with an uncertified assignment of mortgage, among other deficiencies. We responded by citing to Palisades v. Kalal, HSBC v. Griswold, and PHH v. Kolodziej, and asking that summary judgment be denied; we also filed a motion to dismiss the complaint, without prejudice, on equitable grounds, for filing a motion that was knowingly insufficient.

Judge Niess asked Aurora's attorney, at the outset, for a reply to our response, and before she could begin, he said (of my response to summary judgment) that it appears

"He's got you by the short hairs."

Aurora's lawyer got as far as admitting that the assignment wasn't certified and Judge Niess cut her off, saying that

"The triumvirate of cases from Judge Vergeront [that I cited]... are the most-cited cases in the Dane County Circuit Court... They don't publish these cases because they deem the conclusions are so obvious..."

And denied summary judgment. He denied the motion to dismiss, too, but warned opposing counsel that she ought to tell her fellow lawyers that "more and more of the court's time" is being taken up with insufficient motions and that these cases have been around for six months or longer and are dead on.

So it was win-win for me, and kudos to Judge Niess for making a quick and correct decision, as well as for pointing out to the mortgage lender that it better start actually reading the cases the Court of Appeals is issuing.

Lessons in unpublishing and bad lawyering (Mortgage foreclosure)

Oh what a tangled web we weave,
When first we practise to deceive!

I hate starting anything with a quote; it's lazy writing, and while I'm a lazy guy, I'm not a lazy writer, but I couldn't think of a better way to start off a discussion of Black River Country Bank v. Gerdes, a case that combines so many things near and dear to my heart, like:

1. Mortgage banker regulations.
2. Foreclosures.
3. Credit card debts,
4. Child support liens,
5. Bad lawyering.
6. Bad judging.

This case has everything! And then some.

Black River Country Bank decided one day to foreclose on Duane Gerdes, seeking to recover money owed on a note and mortgage and also money owed on a Visa credit card; and, as foreclosure cases tend to go, they won, and then, also, as foreclosure cases tend to go, they bid on the property and bought it for $109,000.

Black River, though, forgot one small detail: they didn't actually name all the proper defendants, including failing to name a junior lienholder, Duane's ex-wife, Julie, who had a lien to secure delinquent child support.

So Julie got herself a lawyer who got himself some information and then objected to the confirmation of the sale, on the outrageous (as Black River viewed it) grounds that the Bank wasn't owed everything it said it was owed.

I mean, is that any reason to not pay a Bank? Just because you don't owe them that money? What is this world coming to, when lawyers can keep banks from just taking anything they want?

So Julie's lawyer objects and says it looks like maybe the Bank wasn't owed everything the Bank claimed it was owed, and the Bank says, well, sure, maybe we included a few extra thousand that we never actually paid out, but, hey, it's all fun and games, right?

Or, as the Court of Appeals put it:

A second hearing on the surplus issue was held on January 6, 2010. At this hearing, an attorney for BRC Bank admitted that three items were incorrectly included in the amount the Bank alleged it was owed on the notes. The three items were amounts BRC Bank had not actually paid: real estate taxes ($3,000.00), a transfer fee ($327.00), and an insurance premium ($137.50). Thus, the Bank admitted, in effect, that it had obtained from the proceeds of the sheriff's sale a sum totaling $3,464.50 relating to amounts that it was not owed under the notes.

At this second hearing, the parties debated the status of Duane's credit card debt ($2,493.97) and whether that debt was properly included as an amount recoverable by the Bank in the foreclosure action. The Bank's president testified, and credit card documents were admitted. The president testified that the credit card debt was "secured" by Duane's real estate. However, nothing in the credit card documents executed by Duane indicated that the Bank had any right to collect money from Duane with respect to credit card debt. Rather, the credit card documents indicated an agreement between Duane and Elan/Visa. Under a separate agreement between the Bank and Elan/Visa, the Bank was entitled to share a portion of the collections and losses.

"Details, shmetails," as I always (never) say. That little hearing led to the Circuit Court ruling that the Bank had violated section 224.77*

*which might mean I have to stop saying I had the first trial in Wisconsin on mortgage banker violations, except that I'm not sure that this was a trial. Might have just been a hearing. Mine was a trial.

and that the 224.77 violation was a violation of section 100.20(5), Stats., which, I must admit, confused me:

Section 100.20(5) Any person suffering pecuniary loss because of a violation by any other person of any order issued under this section may sue for damages therefor in any court of competent jurisdiction and shall recover twice the amount of such pecuniary loss, together with costs, including a reasonable attorney's fee.

I don't know what the authority for DFI-Bkng 43.01 was, so it's hard for me to tell if DFI-Bkng

DFI-Bkg 43.01 Improper, fraudulent or dishonest dealing. The following conduct, without limitation because of enumeration, constitutes improper, fraudulent or dishonest dealing by a mortgage banker, mortgage loan originator or mortgage broker prohibited by s. 224.77 (1) (m), Stats.:

(1) Using or permitting the use of any document which contains erroneous or false information.


(2) Making or causing to be made any false, deceptive or misleading statement or representation in regard to services being offered by the licensee.

was an "order" under section 100.20(5), but I doubt it was, as the "Department" for 100.20(5) (I always thought) was DATCP (or maybe DOJ) but didn't ever seem to be DFI, and I'm also certain that section 224.77 itself isn't an order under section 100.20 because it's a statute, not an order, and also-er, section 224.77 has it's own penalty provision under 224.80, Stats.

But, you know, Black River's lawyers, who didn't seem to be too on the ball here, didn't make that argument (or at least it wasn't addressed in the Court of Appeals' opinion)**,

**The Bank did appear to argue that its misconduct wasn't causally related to Julie's losses:

BRC Bank contends that the court's reliance on Wis. Stat. § 100.20(5) was in error because an award doubling the loss plus attorney's fees under this statute requires an "unfair trade practice" and a "pecuniary loss" flowing from the unfair trade practice. BRC Bank cites Tim Torres Enterprises, Inc. v. Linscott, 142 Wis. 2d 56, 70, 416 N.W.2d 670 (Ct. App. 1987), for the proposition that a claimant under § 100.20(5) must show a "causal connection" between the unfair trade practice and the pecuniary loss suffered. BRC Bank argues that it follows that "there must be some evidence that the claimant was in fact damaged by the conduct."

But did not appear to argue that there was no order issued under section 100.20 that prohibited its conduct.

so if Julie got away with arguing that a violation of section 224.77 is punishable under section 100.20 because Black River's lawyers didn't care, that's the way it goes (and the case is an unpublished per curiam opinion anyway, so it's not like anyone can use it, which makes no sense because all this effort went into producing an opinion that is of no value to anyone outside of the case itself.)

So: the circuit court awarded Julie what it found to be the surplus that should have existed; Black River (actually a subsidiary, but whatever) had bid about $109,000 on the property but it wasn't owed $109,000:

As to damages, the court awarded Julie three amounts that the court determined were improperly held by the Bank, rather than being paid as surplus. The three amounts were: $3,000.00 (representing the real estate taxes not paid), $327.00 (representing the transfer fee not paid), and $2,493.97 (representing the credit card debt the court concluded that the Bank was not entitled to recover in the foreclosure action). The court, relying on authority in Wis. Stat. § 100.20(5), also doubled the $2,493.97 award relating to credit card debt based on its conclusion that the Bank had engaged in unfair trade practices....

In effect, the circuit court determined that, regardless how BRC Bank arrived at its bid/purchase price, the Bank could retain only the amount it was owed under the notes. The court determined that that amount was $103,679.03 ($109,500 - $3,000 - $327 - $2,493.97). And, the circuit court determined that, as a sanction for the underlying unfair trade practices, BRC Bank should pay Julie the attorney's fees and costs and double the amount relating to the credit card debt.

I just have to say again that I believe that the latter ruling about the credit card debt is completely unsupported by any statute I know of, so if someone reading this thinks otherwise, let me know.

But Black River, which then had to pay Julie about $9100 (plus about $7100 in attorney's fees) decided that it was no way going to sit for this, and appealed, because of course it makes far more sense to file an appeal than to pay $16,000...

... unless you lose on the appeal. For fun, I counted the number of times Black River didn't even seem to be trying:

BRC Bank does not seriously dispute that, based on the amount it actually bid for Duane's property at the sheriff's sale, there was an amount the Bank should have paid to the sheriff as a surplus.


BRC Bank's arguments are not developed. The Bank cites several cases, but does not meaningfully explain why they should govern here


The Bank does not, however, bother to identify the elements of claim preclusion, much less apply them to the facts here


BRC Bank seemingly assumes that, if the credit card debt was "secured" by Duane's residence, then it is obvious that the Bank was permitted to recover that debt in the foreclosure action. It is not obvious.


BRC Bank's argument in this respect is both short and unpersuasive


Similarly, the Bank states, without elaboration,


BRC Bank did not object at the time, and we discern no reason why it could not have done so.


The Bank appears to argue that, any time a circuit court obtains information through an ex parte communication, reversal is required. But the Bank does not back up that claim with a fully developed argument.


BRC Bank does not reply to Julie's arguments as to why she suffered a loss. We are uncertain what BRC Bank thinks with respect to the circuit court's view of why the entire course of dealing with Duane harmed Julie.


BRC Bank does not reply to Julie's arguments as to why she suffered a loss. We are uncertain what BRC Bank thinks with respect to the circuit court's view of why the entire course of dealing with Duane harmed Julie.


BRC Bank does not reply to these assertions.


Julie requests attorney's fees and costs relating to this appeal. She contends that such fees are authorized by Wis. Stat. § 100.20(5), as interpreted in Shands v. Castrovinci, 115 Wis. 2d 352, 340 N.W.2d 506 (1983). We agree that Shands supports this proposition. See id. at 354, 359. BRC Bank's reply brief is silent on the issue.


BRC Bank does not attempt to demonstrate that the circuit court did not confuse the two cases.

Whew!

Two other issues of import, here: First, the circuit court engaged in some prohibited ex parte contact that the Court of Appeals appears to say wasn't exactly okay, but was understandable; the Court called an attorney who heads the Wisconsin Bankers Association, anonymously, to ask about whether Black River could include this credit card debt in the mortgage. The answer the Court got is complicated, because the issue is complicated: apparently, Black River had some agreement that it would let its customers get a Visa, and then would get paid money by Visa, not by the customers, which meant that the Visa wasn't really a card included in the dragnet clause, and that may have left you all in the dust here if you didn't read the opinion, so don't worry too much about it, just focus on this. The Court called the expert, got an answer that did not favor Black River, Black River didn't object at the hearing where the Court announced that it had done this thing (which is apparently prohibited by the ethics rules), and the Court of Appeal summed it up this way:

In essence, the court was looking for a legal answer to a question it believed the parties had not sufficiently addressed. So far as the court's statements reveal, the court was interested in the correct answer to this question, not an answer that favored one party or the other. Thus, we find no basis for a conclusion that the Bank was denied an impartial decision maker.

...The circuit court was interested in the answer to a legal question, and the court believed it obtained the answer to that question from a reliable source. The question then is what BRC Bank would have done had it had an opportunity to respond. The Bank does not tell us.

We observe that the answer to the question the circuit court posed to a third-party expert remains in dispute on appeal. In the preceding section, we explained that BRC Bank does not, even at this late date, present a developed argument on the topic. So far as we can tell, the circuit court was faced with essentially a bald assertion by the Bank that it was entitled to recover the credit card debt in the foreclosure action because the debt was "secured" by the residence, and Julie's response that nothing in the documentary evidence supported that assertion. So far as we can tell, Julie is correct that nothing in the documents supports the conclusion that the credit card debt could be recovered in the mortgage foreclosure action.

We conclude that there is no reason to suppose that the court's consultation with a third-party expert without advance notice to the parties improperly changed the outcome of the proceeding.

Here's what I have to say about that:

First, Courts exist to answer legal questions that the parties themselves cannot answer. When a court say "so far as we can tell" something is something else, that's a legal ruling. The Court of Appeals (and the circuit court) unnecessarily hedged their bets. For cryin' out loud, just RULE ON THE ISSUE and try to get it right.

Second, consider this quote more closely:

So far as the court's statements reveal, the court was interested in the correct answer to this question, not an answer that favored one party or the other.

Courts should always be interested in the correct answer to the question -- but that quote (a) implies that the "correct" answer is one which doesn't favor one party or the other and (b) undermines the adversarial system on which our entire judicial process is based.

We have not set up a system where judges act as investigators and determine the correct answer. We have set up a system where the parties, as adversaries, put their best foot forward and the Court must rule on the questions before it. Each side generally does give the interpretation that favors that party.

That's the way the system is set up.

So to approve of a court going outside the boundaries of the system ex parte and answering a key question in the case by shrugging and saying "Meh. You two were always bickering so I asked this other guy" undermines the validity of our system.

Especially when this was available:

907.06(1), Stats.  Appointment. The judge may on the judge's own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The judge may appoint any expert witnesses agreed upon by the parties, and may appoint witnesses of the judge's own selection. An expert witness shall not be appointed by the judge unless the expert witness consents to act. A witness so appointed shall be informed of the witness's duties by the judge in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness's findings, if any; the witness's deposition may be taken by any party; and the witness may be called to testify by the judge or any party. The witness shall be subject to cross-examination by each party, including a party calling the expert witness as a witness.

I mean, was anyone involved in this case familiar with the statutes? The Circuit Court, if it had all these questions, could have appointed this lawyer as its expert and complied with the statutes, but it didn't because... well, I don't know why, except that because Black River didn't object the circuit court got away with it and the Court of Appeals just shrugged and said okay, well, whatever.

You know, courts aren't required to buy one side or the other. Both the circuit court and the Court of Appeals could've said "You're both all wrong about everything and here's how the law rules" and done it right, so it's probably a good thing this case died before it ever got going, being unpublished and all, except that maybe unpublishing something lets you be sloppy like this. (Per curiam opinions are typically drafted by staff attorneys which is one reason they're not citable, but judges still have to sign off on them, and if they're not paying attention then staff attorneys are acting essentially as unelected appellate judges. Anonymous ones, at that.)

That was one of the two things remaining; the other was an agreement that Black River's failure to name Julie as a party didn't limit her to remedies set out in the Buchner ruling, a case in which the Court held that a junior lienholder's rights couldn't be expanded simply because they weren't named in the case; the Court of Appeals' Unnamed Appellate Judge Staff Attorney who wrote this opinion got that one right, holding that foreclosures are equitable cases and that this was a reasonable equitable remedy.

Hey, one of out of a zillion isn't bad, right? So in the end, what did we learn? I'd say it's: If you're not good at lawyering, hope that the courts are even worse.

Wisconsin Representative Joel Kleefisch thinks it's okay to have defrauded your future husband or wife -- in the past! (Family Law Matters)

... and wants to make it the law that it's okay to do that. Or, more accurately, to have already done that!

Currently, under Wisconsin law, a prenup -- or, as it's actually, legally, called, a marital property agreement, is not binding on a divorce court at all unless the parties agree that it should be; in the event that they agree that a marital property agreement (or pre-divorce agreement, as the case may be) should be considered at divorce, the terms of that agreement are binding on the court with only limited exceptions.

One exception that allows a court to set aside a marital property agreement/predivorce agreement is whether the agreement was fair, and the law puts the burden on the party trying to prove the agreement is unfair:

767.61(3)(L) Any written agreement made by the parties before or during the marriage concerning any arrangement for property distribution; such agreements shall be binding upon the court except that no such agreement shall be binding where the terms of the agreement are inequitable as to either party. The court shall presume any such agreement to be equitable as to both parties.

Another situation in which the legislature has determined a court can set aside a marital property agreement is when it would leave the spouse a public ward:

766.58(9)

(a) Modification or elimination of spousal support during the marriage may not result in a spouse having less than necessary and adequate support, taking into consideration all sources of support.

(b) If a marital property agreement modifies or eliminates spousal support so as to make one spouse eligible for public assistance at the time of dissolution of the marriage or termination of the marriage by death, the court may require the other spouse or the other spouse's estate to provide support necessary to avoid that eligibility, notwithstanding the marital property agreement.

That's not enough protection for Representative Joel Kleefisch, who recently introduced a bill to let future spouses defraud each other without consequence:

2011 Assembly Bill 235 would create section 767.345 of the statutes, which would not actually eliminate the consideration of a pre-nup as a factor in property division and maintenance, but which would have the same effect. The bill reads:

767.345 Approval of premarital agreements.
Notwithstanding s. 767.61 (3) (L), if the parties in an action for an annulment, divorce, or legal separation executed a written agreement before the marriage concerning any issue arising in the event of the dissolution of the marriage, the agreement is binding on the court with respect to any of the following:

(1) A division of property.

(2) Maintenance payments.

SECTION 2.0
Initial applicability.
(1) This act first applies to actions for annulment, divorce, or legal separation
that are commenced on the effective date of this subsection.

That is a far reaching bill -- note the part about what actions it applies to, a part that didn't get any mention in this article about the bill. What that part means is that if you entered into a prenup at any time, and then filed for divorce after this section became law, the pre-nup would be binding on you with no recourse even for fraud.

Kleefisch's (stupid) argument is that people can protect themselves against fraud, in part by hiring an attorney, saying:

"It's caveat emptor in this case....

Obviously, someone entering upon a prenuptial agreement should be consulting with an attorney.

....Unfortunately today we often see people marrying for money or for other notorious purposes rather than love, if you will... so I brought this bill forward to say that if someone enters into a premarital agreement, that is binding in the courts so someone doesn't have the motive to marry someone based on money and based on the fact that they can get a good attorney...to come in later and change the prenuptial agreement in bad faith.

(Side note: Republicans blather on about protecting the sanctity of marriage, and then go and say something like that, showing what they really think of marriage: it's mostly gold-diggers trying to get Joel Kleefisch's constituents' money.)

Note that Kleefisch is arguing that bad faith in entering into the agreement would not allow you to set it aside, a move he says is justified by people trying to in bad faith later on set aside agreements.

Here's an actual exchange about the bill when it was debated:

Hebl: "If a person does act in bad faith, there's no question that their action is protected by this law."

Kleefisch: "Which is why someone entering into a prenuptial agreement should be very careful."

Hebl, visibly shocked: "Well my God...It justifies illegal, immoral, unfair behavior."

What Hebl said is practically a rallying cry for the Republican party these days, but even with that, I don't expect the bill go very far.

Michigan wants to make things more confusing for you, more lucrative for unemployed consumer lawyers. (Consumer Matters)

On September 1, the Michigan "New Scanner Law" went into effect, allowing retailers to stop marking the price of an item on the item itself, and instead display the price of the item somewhere kind of nearby. From the Michigan AG's office:

In March 2011, the Michigan Legislature passed the Shopping Reform and Modernization Act ("Scanner Law"), with an effective date of September 1, 2011. While the new Scanner Law retains many provisions of the former Pricing and Advertising of Consumer Items Act ("Item Pricing Act"), the most fundamental change is that retailers are required to display the price of items offered for sale in the store at the place where the item is located, but are no longer required to individually mark the price on the item itself. The new Scanner Law permits the price to be displayed by signage, electronic reader, or any other method that clearly conveys the price to a consumer when in the store at the place where the item is located.

Take that for what it's worth; the Michigan AG's office disclaims its own authority to tell you what it thinks about the laws it enforces.*

*From the site: "The Attorney General provides Consumer Alerts to inform the public of unfair, misleading, or deceptive business practices, and to provide information and guidance on other issues of concern. Consumer Alerts are not legal advice, legal authority, or a binding legal opinion from the Department of Attorney General."

How's the law working out? One local blogger couldn't figure out how much the discounted shirts he wanted really were going to cost:

While it's probably too early to blame it on the New Scanner Law — which lets retailers display the price of items at the place where the item is located but no longer requires prices on the items themselves — I had a terrible time figuring out how much some items cost this weekend.

At one store, the sign on a shelf of polo shirts read that they were on sale for $7.48, which was a great deal considering their usual price of $12.99. But when I checked out the price rang up as $10 — still a good deal, but not as good as $7.48.

The cashier did a check on the price and said that only the polo shirts on the shelf that had $7.48 clearance stickers on the tags were actually that price; the rest were $10. But from reading the sign, you'd never know that until you checked out.

At another store, a set of Disney princess dolls was marked down to $9 from $16.99. The price wasn't marked on the packaging but was on the shelf directly below the items. When we checked out, however, the dolls rang up at $11.89 — still a good deal, but not as good as $9.

The law provides a bounty of sorts for the consumer who actually was ripped off. Again, from the nonbinding, "don't take our word for it" office of the Michigan Attorney General:

If an automatic checkout system (scanner) charges you more than the displayed price of an item, and: 1) the transaction has been completed, and 2) you have a receipt indicating the item purchased and the price charged for it. Then: You must notify the seller that you were overcharged, within 30 days of the transaction, either in person or in writing. Within two days of receiving your notice, the seller may choose to refund you the difference between the amount charged and the price displayed plus a "bonus" of ten times the difference, with a minimum of $1.00 and a maximum of $5.00. If the seller refuses to give you both the refund and the bonus, you may bring a lawsuit to recover your actual damages or $250.00, whichever is greater, plus reasonable attorney fees up to $300.00.

Ten times the difference in price!

Um, up to $5.00.

Consumers, and their lawyers, can't be blamed for hoping the store refuses the refund and the bonus -- at least, those lawyers who feel like taking on a case for a total of $300 in fees.

Let's say a retailer -- hypothetically, we'll call them something like, I don't know, Mal-Mart, mismarks a t-shirt as costing $5, and then charges you $10 at the cash register. The consumer, no dummy, says, "Hey, you overcharged me, and I'd like my $5 plus my $5 bonus."

Mal-Mart, which, hypothetically speaking, has $419,000,000,000 in revenues in 2011 alone and has a 95-page document outlining how outside lawyers can bill it for services, then refuses, after which a consumer hires a savvy (?) consumer lawyer, who files suit to get that sweet, sweet, $250... plus $300 in attorney's fees...

... and Mal-Mart, hypothetically, will then... what? Settle? Or file multipage answer filled with so many objections and hyperbole that it's like their lawyers are being paid by the character?

My Generically-Titled Autism Post: Today, sleep disturbances, and why maybe melatonin isn't right for your kids.

I used to call this "Autism Works," but then I found out there's a group called that already. (Find them here; I'll talk more about them in the future.) So while I think up a new title, I'll just go with the generic title. Click here for more posts like this with information about businesses, apps, people, and other aspects of raising a child with autism.)

It's 5:53 a.m., and I'm awake and working on my blogs instead of sleeping until... well, I'd usually only sleep until 6 a.m., so it's not that bad that I'm up, but still, I don't like losing that last 15 minutes of sleep on days like today, which began with Mr F and Mr Bunches both waking up at about 5:45 a.m.

Or, at least, that's when they woke me up. Mr Bunches woke me up by yelling "Dad!" and getting me in there to restart the movie he's currently watching ad infinitum ("Lilo & Stitch"), while Mr F had likely been awake for a lot longer, given that he was wide awake and tapping a stick against a wall to kill the time.

Mr F doesn't sleep. Or at least, not like we sleep. Sweetie and I joke that Mr F only sleeps every fourth day, and that's about right: Most nights, we can hear him in his room (which we keep locked to avoid him wandering around or getting out of the house at night) until well after we fall asleep, and many nights we can hear him around 2 or 3 a.m. wake up and begin his day. Then, about every fourth day, that catches up with him and he can't be woken up, as happened this past Sunday when he fell asleep on the couch from 4 to 5, then, after I gave him a bath to wake him up, he fell asleep again and then fell asleep in the car while we were driving around until finally we let him go to bed at 7 p.m.

So sleep is on my mind this week: Sleep and autism.

This study, "Sleep Problems In Autism: Prevalence, Cause, and Intervention", looked at just that problem. It noted that as many as 89% of autistic children exhibit some form of sleep disorder at one point, and summarized the types of problems:

Studies of sleep in children with autism have generally reported severe problems associated with sleep onset and maintenance. Irregular sleep–wake patterns, problems with sleep onset, poor sleep, early waking, and poor sleep routines have been found at all developmental levels, with increasing severity at lower developmental levels.

Additionally, shortened night sleep, alterations in sleep onset and wake times, night waking and irregular sleep patterns (with the presence of a free-running rhythm in one case) have been reported.

That's Mr F right there: all of them. The study concluded that autistic kids are more likely than any other group of children to have sleep problems and also concluded that it's likely due to something specific in the kids.

And it doesn't just cause dads to be awake before 6 a.m.; it also leads to problematic behavior during the daytime, including communications delays. Or, perhaps, the study notes, communications delays lead to sleep disturbances:

A relation between social and communication difficulties and sleep problems is possible. The sleep–wake cycle is a circadian rhythm and there is evidence to suggest that, as well as the light–dark cycle, humans use social cues to

entrain circadian rhythms.

Routine and social cues are thought to help young infants develop stable sleep–wake patterns with the longest sleep occurring during the night hours. Children with a primary social-communication deficit may therefore find it difficult to use such cues to entrain their rhythms, resulting in problems with their sleep–wake schedule.

See? You didn't know that you know when to go to sleep because society tells you, did you? And autistic kids may not pick up on that.

The study also noted that melatonin deficits may be a problem, about which more in a minute. Another possible cause of sleep disturbance was increased anxiety, which makes me sad -- I don't like to think of Mr F and Mr Bunches being too nervous to sleep, but it seems to fit at least Mr F's personality. And, finally, there was some stuff about EEG's in sleep and REM sleep patterns.

Bottom line: We don't know why autistic people don't sleep well, which makes it kind of silly to recommend cures or interventions, but, then, we do lots of silly things, and the paper goes on to recommend some cures and interventions for something that we don't know the cause of.

To editorialize for a moment: Suggesting a solution for a problem without knowing the root cause of the problem is stabbing in the dark, or treating only a symptom, and either one may or may not be better than doing nothing. Consider an old joke:

Man: Doctor, my arm hurts when I go like this.

Doctor: Don't go like that.

That solves the problem, right? But it's not medical care. Or suppose a person shows up at the ER with a gunshot wound, and the doctor removes the bullet fragments and sews up the wound and sends the person on his way. Would you consider that an effective treatment? Or should the doctor have inquired how the bullet got there?

Just some thought experiments. Now, on to the solutions for the unknowable problem!

The study begins by noting that medications were the most common form of help for autistic kids with sleep problems -- but that about half of the parents questioned thought behavioral interventions worked just as well as medications. In our house, we've talked about medications at times for Mr F, and I downloaded the Autism Speaks Medication Decision Kit, a helpful packet that helps provide information and questions to guide you in a decision on whether or not to medicate your child-- for whatever problem. (Get it here.)

Using it, I decided (with Sweetie's help) that we wouldn't medicate Mr F, at least not yet -- because most of the medications listed don't have any clearcut effects on Mr F's conditions and some of them can have severe side effects. It seemed wrong to me to put a 5-year-old on strong antipsychotic medicines when he's not that much trouble.

If your child is on medication, or you've considered it, you should definitely get the kit and read it through. It raises a bunch of issues that I hadn't considered at all, and has helpful questions to ask your doctor, and yourself, about the medications.

Another attempted treatment was faded bedtimes, or moving bedtimes gradually to get the kids to sleep at the appropriate times. This was found to have little effect on the autistic children in the study, something I could've told them. (Currently, our routine is to begin bedtime at about 7:15, with the boys getting medicine, then a story read to them, then a bath, then bedtime with a movie on their TV. The movie on their TV is imperative: they will not sleep without a movie on, and we've learned to put movies in that have a continuous play feature, because the movie ending will frequently wake Mr Bunches up, and you haven't lived until you've been woken up every 87 minutes to restart a movie.)

Then there was parent training: Teach parents how to properly encourage good behavior (sleep) and discourage bad (not sleep.) Although only one family completed the 6-week program, that family reported reduced stress and slightly better sleep routines; I suspect the reduced stress came from parents being more able to cope with the stress through the training, but that's the cynic in me.

Then there's the one I might try: Light intervention:

Two additional treatments for sleep disorders which involve adjustment of the circadian sleep–wake cycle, are light therapy and chronotherapy. Light therapy may be used to treat a variety of rhythm problems, including sleep problems. Bright light suppresses the secretion of melatonin.

Additionally, it has been shown that periods of bright light treatment in the morning will advance the melatonin and sleep–wake rhythms, while bright light treatment in the evening has a delaying effect.

That is, show kids a light box in the morning to get them to sleep better at night, which might work for kids (like ours) who routinely wake up at 3 or 4 a.m., when it's dark out and then have trouble getting to sleep at night.

Finally, melatonin, which almost everyone we talk to treats as a panacea for this problem. At the boys' 5-year-checkup, Sweetie asked the doctor whether it was okay to take melatonin for their sleep, and he approved it: 1 mg each night, he said.

The first melatonin we were able to find was tablets, which is a problem, because the boys won't take pills -- they won't even take medicine from a spoon or those little plastic cups; we have to put it in a syringe and squirt it into their mouths.

We addressed that by pounding the pills into a powder -- literally, I hammer them into a powder, because I'm not a 15th century chemist and don't have a mortar-and-pestle -- and then mix them in with some other liquid, ordinarily some ibuprofen or water; it works better with ibuprofen because they (oddly?) like the flavor of that. (Lately, they've had a cold, so they get the melatonin mixed in with their nighttime cold medicine.)

That worked okay until Mr Bunches saw me scraping the pills into the medicine and then didn't want to take the medicine, at all -- because he now knew it had pills in it and it grossed him out. So for a week we had to wrestle him into the medicine and risk him spitting it back out, until he cut his foot one day and I began telling him the medicine was to make his foot feel better, after which he took it.

(So at night, Mr Bunches will say "Medicine!" and when I say "Yes," he still sometimes says "My foot!" even though his foot is long since healed.)

We also got some of the Natrol liquid melatonin, which we thought would be easier to use than the crushed-powder pills, but the boys hated the flavor of it -- spitting it back out each time, so we've foregone that and every night I get out my hammer, medicine, tablets, and syringe and go to it.

But here's the thing:

I don't think it's working.

Mr F has been on melatonin for a month now, and so has Mr Bunches, and I've seen no real changes in their sleep patterns, at all. I'm not ready to call it quits yet, but I suspect that the melatonin is like the gluten-free diet and other fad remedies: Not exactly the catalyst for change, but it gets the credit for change when it happens, like an ineffective quarterback who wins the Super Bowl in spite of himself.

And here's the other thing: I'm not sure melatonin is a good thing, because I took it for a week or two; I've also suffered from insomnia most of my life and have had sleep problems off and on for the last few months, and so I took the same dose that the boys took for a few weeks, and I didn't like it: My sleep felt less restful, and I had more realistic dreams that left me feeling tired -- it was like I never slept, at all, even though Sweetie would swear I did.

So after two weeks, I stopped taking it entirely, and I won't go back.

Which makes me wonder about why I'm giving it to the boys, if it doesn't seem to work and I didn't like it. But I'm not ready to declare it a failure yet, because a month seems too short to really test it out... for the boys? I don't know what effect it's having on them; Mr F can't tell me "It gives me vivid waking dreams that make it feel like I never sleep," so I have to guess whether it's doing good, or bad, or nothing. 2 out of 3 of those say don't give it to them...

...These are the kinds of decisions you never even suspect you'll have to make. I'll let you know what I decide.

Emotional Distress and Parenting, Part 4: Here's an example of courts doing what courts do WORST. (Family Law Matters)

Can the exercise of a constitutional right also be grounds for a tort suit?

No, said the Wisconsin Court of Appeals, and it only took them 10 paragraphs to say it. And they didn't even write one of those paragraphs. Talk about an easy day at the office!

In Pryzybyla v. Przybyla, a husband sued his wife for getting an abortion while they were married, an abortion he alleged was done "maliciously and deceitfully," claiming that

through the malicious acts of the defendant, the plaintiff was denied the enjoyment of fatherhood and the companionship and care of his child and family; and that the plaintiff suffered great emotional anguish and mental distress caused by the malicious deceit of the defendant, all to his injury.

The husband was seeking $1,000,000 in damages from the wife, who admitted that she'd had the abortion but defended on the grounds of "you can't tell me what to do with my body."

Interestingly, to me, but not to the Court, which relegated this to a footnote, the parties were, in fact, husband and wife when the child was conceived (Awkward Deposition Questions, #1!) and were separated but not yet divorced when the wife had the abortion (which, technically, meant that they were still husband and wife, something the Court didn't comment on), but were maybe not yet divorced at the time of the opinion?

The present marital status of the parties is unascertainable from the record.

They couldn't just ask the lawyers? CCAP not existing back then, I know it would be hard to just go online and find out, but it seems to me that might have been an important fact to consider, given the Courts' longstanding reluctance to intervene in intact families.

The Circuit Court denied the wife's motion for summary judgment, setting the stage for what presumably would be a jury trial, but the Court of Appeals got to intervene, first, in what also presumably was an interlocutory appeal, because a denial of summary judgment doesn't end the issue... unless the husband won summary judgment? The opinion doesn't say:

Defendant concedes that she was pregnant as alleged and that she procured an abortion on April 22, 1977, in a medically-accepted manner nine weeks after conception without the permission or consent of her husband. Her concession is not disputed by the plaintiff husband. Although the defendant has denied the allegations [of the complaint pertaining to malice, etc.] the parties concede that the issues presented are legal, not factual, and thus may be reached upon summary judgment. Thus, we construe the defendant's position as a concession of the facts as alleged and as supplemented by the moving papers, but a contention that the conceded facts, as a matter of law, do not constitute a claim upon which relief may be granted.

The defendant, in furtherance of that position moved for summary judgment denying that an issue of material fact existed and claiming entitlement to judgment as a matter of law. The circuit court denied summary judgment and this appeal followed.

You would think a case that raises a constitutional question would at the least have a better explanation of the procedural and factual issues underpinning it, but this is, after all, the Wisconsin Court of Appeals, where dollar amounts are always set out down to the last penny while procedural backgrounds are glossed over.

The Court then went on to adopt a critical paragraph from the then-just issued United States Supreme Court in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 69-71, 96 S.Ct. 2831, 2841-2842, 49 L.Ed.2d 788 (1976) to the effect that the State could not (and still can't, I assume, the U.S. Supreme Court not having gotten around, in their originalist zeal, to gutting this precedent yet) delegate the decision about whether to have an abortion to the State:

Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.

The Wisconsin Court of Appeals appeared to be quoting the part of Danforth which adopted a dissenting judge's opinion, in Danforth, that

the State cannot "delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy."

Which is sort of precedential-by-loophole: A dissenting judge, somewhere, said something, and the U.S. Supreme Court adopted the viewpoint of that dissenting judge in ruling on a slightly different question, which allowed the Wisconsin Court of Appeals to re-adopt the dissenting judge's opinion vis a vis mad dads and abortions... I'm a little dizzy now.

The Court then proceeded to decide the question presented here by changing the question to a different one that it wanted to answer, instead:

We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right.

Which is not what the husband here was asking for. He wasn't asking that husbands be allowed to keep wives from having abortions, even if that may have been an effect of this decision. He was asking to be allowed to sue when a wife intentionally inflicts emotional distress on a husband by having an abortion maliciously and willfully.

That's a different question, isn't it? Again, the facts here might have just mattered a little bit: Suppose wife asked husband to have another child with her as part of a deal to stay married, and husband, who didn't want to stay married, had agreed, only to then have his wife change her mind, have an abortion, file for divorce, and taunt him with it?

You may agree with the right to an abortion, but should it be used as a weapon? That's a question the Court didn't decide, and by not delving into the facts of this case, what the Court said is that there is no set of circumstances under which a mother could be sued for intentionally inflicting emotional distress by having an abortion.

Maybe you're okay with that; as a rule it's certainly one way to go. But if you're going to reach that rule, reach it the right way: discuss the various rights at stake here and the circumstances under which those rights are affected. Don't pawn it off as "delegating authority." Had the husband won here, women could still have abortions -- they'd just run the risk that they might be sued for doing so, and have to justify their actions as not being intended to inflict emotional distress.

And that's already a risk spouses run in marriage: being sued for making marital decisions. Wives have sued husbands for embezzlement, and the legislature has decided to allow intra-marital suits over disposal of marital property. A husband who wanted to sue for intentionally inflicting emotional distress via abortion would still have to prove that he would have been a good and devoted dad, that the mom acted maliciously and not out of some legitimate concern, and a host of other factors. I don't doubt that there would have been a potential chilling effect on women seeking abortions, for fear that a vengeful husband might sue them, but that potential chilling effect seems to carry no weight when it comes to letting wife-beaters and child-abusers seek placement and custodial rights; how often do courts say "If we let someone who was convicted of a violent crime seek placement, we might be infringing on the rights of women to be free of fear of retribution from potentially violent people?"

Those are all questions raised by this opinion... and ignored.

I'm more of an originalist than the actual "originalists," when it comes right down to it; I tend to believe that constitutional rights are enumerated or they likely don't exist -- because we can amend the Constitution to put them in if we want, so we don't have to "find" them, with the "finding" being done by an unelected superlegislature that also holds the veto power over attempts to undo that finding.

Imposing constitutional rights by fiat wasn't a power the Founding Fathers imagined giving to the minority -- and for everyone who celebrates the Court's power to find a right to abortion, you should be mindful that the same power lets the Court "find" a corporation's right to contribute to presidential campaigns. What's good for the goose...

But this is the system we have -- and so we have a messy situation when family dynamics run into constitutional rights, something that exists everywhere. You don't clean up a messy situation by cutting through the Gordian knot like this; that just decides a family situation one way rather than the other. The Court of Appeals had a chance here to get down into the mud and really dig into what was going on in this family and decide how much courts can, and should, intervene into decisions that intimately affect families, and it dropped the ball by the sleight-of-hand-three-card-Monty decisionmaking, rephrasing the question and adopting a ruling that adopted a dissent, and now you've got another area of law that's completely untouchable by anyone.

Whether that's a good or bad thing, as it affects the right to abortion, is up to your own opinion of the right to abortion. But judicial legislation without proper consideration of the facts, using bait-and-switch reasoning, is terrible for our society.