The Supreme Thrill

For Friebert, 68, arguing before the U.S. Supreme Court hasn’t been a once-in-a-lifetime experience, or even a twice-in-a-lifetime experience. Friebert has done it four times.

 

“I’m very fortunate to have had those experiences,” says Friebert, a versatile Milwaukee-based attorney whose practice areas include administrative, appellate, business litigation, civil, criminal and constitutional law. “There’s a certain amount of serendipity that you had the right case at the right time.”

 

Dorszynski v. U.S. was the first such case, in 1974. It involved the question of due process rights in sentencing under the Federal Youth Corrections Act; Friebert represented Douglas Dorszynski and won, 9-0 (5-4 on the reasons). Friebert won another unanimous vote from the Supreme Court justices in 1974, when he argued Withrow v. Larkin. He lost 6-3 in his next two appearances: Hortonville Joint School District No. 1 v. Hortonville Education Association in 1976, and Democratic Party of U.S. v. Wisconsin in 1980.

 

Hortonville — a case in which Friebert represented teachers in Hortonville, Wis., who were discharged for engaging in a strike — particularly stands out for the veteran attorney because of the interplay he had with Justice Potter Stewart. The justice gave Friebert the question he had been waiting for throughout his arguments, and he hit it out of the park:

 

Stewart: “Look, Mr. Friebert, you agree that there’s no dispute that the teachers were striking, so what difference does it make if [the school board members] were biased or not? There’s no factual dispute.”

 

Friebert: “That’s true, as far as the violation, but then there’s a penalty phase. And firing in the state of Wisconsin is not automatic. There are various degrees of punishment, and on the punishment phase, the fact that they were biased was critically significant. They could not be the proper decision-maker for imposing the sentence.”

 

Friebert’s answer didn’t result in a win, but it did help to sway Justice Stewart. “He looked at me, and I could see in his eyes that I had him,” Friebert says. “He leaned back, and I didn’t get another question from him. And I was right — I did get his vote. He was in the dissent, and he dissented on the exact grounds of that question.”

 

What else does Friebert remember about his four performances in the law’s grandest theater? Mainly the stage fright he felt right before the curtain went up. Friebert points to Withrow v. Larkin as a prime example.

 

“My parents were there,” Friebert says. “Counsel gets reserved seats, so they were sitting on the aisle. As I was coming in before the start of court, my mother grabbed my arm and said, ‘Bob, I hope our presence here doesn’t make you nervous.’ I said, ‘Naw, those nine people are going to take care of that.’”

 

Friebert had good reason to be nervous: For the next 30 minutes, those nine people would pepper him with difficult questions.

 

“The preparation for the Supreme Court is the same as for any appellate court argument,” Friebert says. “You have to know the record very well. You prepare by trying to anticipate every question that could conceivably be asked and determine what your answers will be. It’s a half hour, but it’s a long half hour.”

 

Actually, make that four long half hours.

Kelly’s moment of Supreme Court glory is still fresh in his mind. It was only two years ago — in October 2004 — that the Madison-based criminal defense attorney argued U.S. v. Booker.

 

The case didn’t start out as a headline-grabber: Freddie Booker was charged with delivery of crack cocaine and possession of an additional quantity of crack cocaine, and Kelly represented him at trial and lost. Kelly’s case got legs, however, in June 2004, when the U.S. Supreme Court decided a different case, Blakely v. Washington. The justices opined that Ralph Blakely’s sentence for kidnapping and assault violated his right to a fair jury trial because the factors determining the sentence had not been decided by a jury.

 

“The Booker case was pretty routine up through the first brief I filed in the Court of Appeals,” says Kelly, 51. “A week or so before the oral argument in the 7th Circuit, Blakely was decided. It struck me, as I’m sure it did every other lawyer, that the Blakely suit should apply to the federal sentencing guidelines and should essentially invalidate the guidelines. Blakely dealt with sentencing guidelines out of the state of Washington. They certainly weren’t identical to federal guidelines, but the basic concept was the same.”

 

Kelly’s life became a whirlwind as U.S. v. Booker rose to the Supreme Court in a matter of months. “The federal courts were in turmoil because no one was sure how to sentence anymore,” Kelly says. “Nobody was sure if they should follow the guidelines, if they should be required to or not. That was why the government was trying to expedite things.”

 

Kelly had argued in front of the Supreme Court one other time — Chapman v. U.S. in 1991 — but it was a relatively obscure case that in no way prepared him for what awaited him in U.S. v. Booker. He could deal with the long hours of preparation, the lack of sleep and not seeing his wife much. What threw him for a loop was the media onslaught.

 

“I was getting interviewed by CNN and all sorts of AP reporters — constant media calls,” Kelly says. “It was exciting for my wife to see my picture on CNN and all of that. But to me, it was more irritating than exciting. It caused a lot of anxiety. By the time I got to Washington, I was pretty high-strung.”

 

Kelly’s anxiousness only increased when it came time to state his case.

 

“The whole stage is kind of overwhelming,” Kelly says. “You have these folks in robes up there with a plush velvet curtain behind them. They’re elevated, so that it’s like looking up at an altar. It’s a very intimidating environment.”

 

In the end, Kelly made his mark on the criminal justice system. Although the court ruled against his proposed remedy — to make juries decide all the facts in sentencing — it agreed that the Blakely case applied to federal sentencing guidelines and that the right to a fair jury trial had been violated in the Booker case.

 

“The result is that the judges still can find these facts and still base a sentence on those facts and still follow those guidelines, but they’re not required to follow the guidelines,” Kelly says. “It certainly opened the door for judges to give sentences that I hope are more rational than what the guidelines call for. That’s what appellate lawyers work for — we try to have a broader impact and try to make the criminal justice system operate more fairly, at least from our standpoint. It’s always gratifying to achieve that result.”

When Rottier arrived at the steps of the Supreme Court building in 1991 to argue Molzof v. U.S., he had no idea he would be part of history. “I thought the press outside the building was there for me,” Rottier says with a laugh, “but apparently not.”

 

Unbeknownst to Rottier, the press was there to see Justice Clarence Thomas. This was Thomas’ first day on the bench following his tumultuous confirmation hearings.

 

“I should have been aware that it was his first day, but I wasn’t,” says the Madison-based personal injury lawyer. “He ended up being the author [of Molzof v. U.S.], so it was his first written decision as well. The courtroom was pretty full. His wife and family were in the first row. There was that sort of backdrop, but it didn’t impact the argument.”

 

Rottier’s case centered on whether future medical expenses should be awarded to military veteran Robert Molzof, who was a victim of malpractice at a veterans hospital in Madison.

 

“There was a bit of humor going on between [Justices Antonin] Scalia and [David] Souter,” says Rottier. “One of the issues had to do with an award for pain and suffering, and they were talking about how stoic New Englanders are and that they don’t really have much pain and suffering. They were going back and forth. It was fun.”

 

Rottier’s Supreme Court experience grew even more pleasurable when he won the case in a unanimous decision. The verdict served to increase the possible liability of the federal government for damages caused by the negligence of federal workers. It was a moment Rottier thought might never materialize.

 

“In my kind of work, which is personal injury law, it’s almost impossible to get a case to the Supreme Court because that’s state law,” Rottier says. “But this happened to be a Federal Tort Claims Act [case, which allows people to bring damage claims against the government].”

 

Knowing this might be his only appearance in the Supreme Court, Rottier made sure to soak it all in.

 

“It was a very satisfying experience as a lawyer,” he says. “Just the pomp and circumstance was fun. It’s a matter of thinking straight and trying to anticipate how they would craft their decision and helping them filter through various arguments until there is a very clear basis on which their decision can rest.”

On the surface, Farrey v. Sanderfoot was a squabble over $30,000, but it wound up taking Williamson all the way to the U.S. Supreme Court in 1991. Williamson believes it clearly showed the U.S. justice system at work.

 

“This seemed like a small-potatoes case, but it establishes some very important principles about how federal law and state law interact,” says Williamson, 61, who works out of Madison as a constitutional and corporate litigator. “It was a divorce case that became entangled in a bankruptcy case. It illustrates the proposition that the Supreme Court makes the law, or interprets the law, in this country, sometimes in cases that don’t seem very significant, except to the parties.”

 

Williamson represented Jeanne Farrey, who had been given a court-mandated note for approximately $30,000 by her ex-husband as part of their divorce settlement. Farrey’s ex-husband then filed for bankruptcy, which, it was argued, absolved him from paying the $30,000.

 

“The whole case was litigated over a pretty obscure provision of the bankruptcy code, but there was an important principle at stake: Can bankruptcy be used to undo an equitable state court award and lien?

 

“My client won in the bankruptcy court, but then her former husband went from there to the Federal District Court and the U.S. Court of Appeals. After the U.S. Court of Appeals, we became involved and petitioned the Supreme Court to hear the case. I argued it, and we ended up winning.”

 

Farrey v. Sanderfoot wasn’t Williamson’s only brush with the highest court in the land. In the past three years, his firm has filed five amicus briefs in the Supreme Court for a variety of clients, including AARP.

 

“Amicus briefs can have a significant effect on the outcome of a case,” Williamson says. “Even though you don’t argue, you nevertheless have an opportunity to really influence the outcome. So it’s only part of the question to ask, ‘Who’s argued in front of the Supreme Court?’ It’s also, ‘Who has participated in Supreme Court cases?’ The amicus brief, I think, is an increasingly important tool.”

 

Still, Williamson—as well as Friebert, Kelly and Rottier—all agree that there’s nothing quite like seeing the nine Supreme Court justices in the flesh.

 

“You’re in front of these nine justices, and for probably the first 30 seconds, you’re terrified,” says Williamson. “But after the first 30 seconds, there’s an implicit realization that these are judges and that you probably know more about the case than they do. You’ve got the remaining 29:30 to make your case, so you’d better get on with it.”