I AM THE LAW

With all due respect to Judge Dredd, I am the law, by the looks of it. I've mentioned a case I'm working on involving challenges to the constitutionality of some state statutes before; first we made a challenge to Wisconsin's defamation statute for being overbroad, both facially and as-applied, by infringing on our client's First Amendment rights. I wrote a brief and an addendum setting forth our arguments, and submitted it to the DA and the Attorney General's office. The AAG stepped in to review the issue, and decided that we were right, at least on the as-applied challenge, and he recommended that the DA dismiss that charge. He did, and it was awesome.

Then, against all common sense, we tried to use the exact same attack on the identity theft statute. Again, the task of writing a brief fell to me, and I did my best. As mentioned previously, I felt the whole thing was ridiculous, and that we had no shot in hell. My argument did have a logical progression to it, but ultimately made a huge leap to suggest that the same issues from defamation law would apply here, and that somehow the conduct regulated in this statute implicated our client's rights to free speech. After submitting that brief, I felt a little amazed at the prospect a judge could actually agree with our argument, and that that would actually be the state of the law.

Then the AAG submitted a reply brief, which it seemed to me burst our collective bubble by essentially pointing out that the statute has nothing whatsoever to do with speech. There is no case law even remotely approaching the issue we argued (which, to me, seems perfectly appropriate), so the AAG cited one case that drew an analogy where the court basically looked at a statute and said it regulates conduct, and the speech involved is incidental. I figured the exact same thing would happen to us. I did find one important way to distinguish these cases, but I didn't think it mattered.

Well sportsfans, yesterday hell froze straight the fuck over. We had the hearing on our motion to dismiss, and I got to tag along. My employer let me sit at the table and even introduced me on the record as his "able associate and law clerk," which was cool. Even though I got to sit at the big boys' table all summer with the DA's office and got some first-chair experience, I never sat in on any issue that was this big. The DA was there, and the AAG even made a personal appearance to argue.

My employer went first, giving a pretty thorough and persuasive rundown of our argument. The judge asked him a question or two, then let the AAG speak. But first he asked the AAG some questions, and this was where shit started to get real for real. First he asked about the standard of review, which was that, since this was a First Amendment issue (supposedly), the State had the burden to prove it constitutional beyond a reasonable doubt. The AAG basically agreed with that - score one for us.

The next questions the judge asked were about specific points of our argument, and whether the AAG agreed with them. Those points just happened to follow the logic of my brief - the key points that I thought were correct leading up to the conclusion. The AAG agreed with each point, which, to be honest, he probably should have. I started to get a tingle - what was going on here? Was the judge actually buying it?

Then he asked another question, basically whether the element of the statute we were challenging was the same thing as defamation. I never thought to suggest that; I thought they were clearly distinguishable. The AAG, however, conceded that they were basically the same. What what? I mean, I suppose, but you could at least make the argument that they weren't. No offense to the AAG, because he was clearly very intelligent and was much more interested in the legal question than winning, but I was expecting a more fiery attack on his part. Something along the lines of "this is fucking ridiculous," which would probably have been my fallback argument in his position.

It was about this point where I started thinking "oh my god oh my god oh my god." I was smiling uncontrollably; I kept having to look down, bite my lip, clench my teeth, anything to stop from smiling. This was all pretty unbelievable. I thought we'd get laughed out of court. Now it was all I could do to keep from laughing - we were WINNING.

The AAG made his argument, and it was pretty strong. Then the judge went into his decision. First he went through all of his reasoning, and he basically tracked my brief and my employer's argument point for point. He acknowledged that, although the statute was clearly geared toward regulating conduct, not speech, it still had an element that the state had to prove that involved protected speech. And since the State had the burden beyond a reasonable doubt - -

At this point, my employer and I were both losing it. The judge was going to rule for us, and we knew it. This little motion that could was about to conquer the fucking mountain. And then it happened - the judge dismissed the charge. He assumed it would get appealed, and he was interested to find out how it would turn out, because it was a very close call. The judge and the AAG both found this to be a fascinating question of law. I was just dumbstruck.

After it was over, my employer and I talked briefly with the DA and the AAG. They are going to appeal, of course, which they really should. It was pretty cool - the AAG asked if I wrote the briefs, and said that the defamation brief in particular was really, really good. He said if I was his intern, he would hire me immediately.

For those of you keeping score, the scoreboard looks like this:

Me 2, Attorney General 0.

It was absolutely incredible. Sitting up at that table, after I realized what was going to happen - it was like a 15 minute mental orgasm. The best part was how hopeless it had seemed, and how suddenly we were victorious. I think that feeling was even better than winning the jury trial, just because the odds were so stacked against us. We're still going to have our hands full on appeal, and probably won't win it. But for one brief, shining moment...