Was the GAB justified in petitions delaying the release of recall ? It's hard to see how.
Let's start with some recent case law. In an 8-1 decision, the United States Supreme Court recently held that persons who sign petitions to place an initiative on the ballot have no privacy interest against public disclosure of the petitions. Doe v. Reed, 561 U.S. __ (2010)
Reed involved a federal constitutional challenge to Washington state law compelling disclosure. The GAB, should it decide to withhold signatures, would presumably rely on Wisconsin law (which the Reed case, of course, does not address) which does permit personal identifying information in public records to be withheld "if the the public interest in allowing a person to inspect, copy or receive a copy of such identifying information outweighs the harm done to the public interest by providing such access. " Sec. 19. 36(8)(b)
Reed is instructive on this issue, holding that there can be no privacy interest when people have committed what is essentially a legislative act. This increases the public interest in learning their identity (so that the validity of the legislative act can be verified) and the reasonableness of any expectation of privacy (because signatories know - or should know - that they have undertaken an act that must be publicly verified.)
The same reasoning applies to the "balancing exemption" referred to above which must, in any event, be applied in light of the open records law's strong presumption in favor of disclosure. See sec. 19.31 ("The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied.")
I do have some sympathy for the argument that state laws compelling disclosure may need to be constitutionally curtailed when they facilitate harassment and retaliation. But the idea that people who want to recall Governor (who constantly tell us they embody the will of the "people of Wisconsin") will be subject to harassment or retaliation to an extent that defeats the public interest in open verification of the recall is ridiculous.
Concern has also been expressed about the potential threat to victims of domestic abuse whose address will now become public. Perhaps that might justify a short delay to mask the identifying information of those few individual although, in the internet age, the likelihood that anyone's address is truly private is small. In any event, this would not seem to be a sufficiently strong interest to keep one million signatures seeking recall of the state's highest elected official from public scrutiny.
Update: Bill Christofferson suggests that there is a difference between open records and online records and that's true. He is wrong, however, to suggest that this makes an open records request for these petitions a non issue. The GAB has presumbably scanned these petitions into a searchable electronic data base. That is now a "record" subject to production under the open records law. They don't have to put them on line. They do have to produce them as they have them.
Tuesday, January 31, 2012
Monday, January 30, 2012
A limit to politics
An extremely well written and poignant piece by Jan Riordan regarding the illness of her dog Reggie. My guess is that her husband had to go through it a few times before he could read it on the air.
I find it moving in part because I have heard Jan talk about that dog and I know how much she loves him. But, even more so, because I suffer from - and glory in - the same attachments. We had to put down a couple of Goldens within several months of each other in 2010. On the way to the vet, I stopped and bought the big guy, Derry, a hamburger. He couldn't stand up anymore but he enjoyed that burger.
He trusted us to the end. I wish we deserved it.
I think she's right in that there is a sense in which these guys are better than we are. They can't take care of themselves but there is a very real way in which they take of you. They require something from us that requires a deeper understanding of who we are.
Not a bad life if you can do that.
I find it moving in part because I have heard Jan talk about that dog and I know how much she loves him. But, even more so, because I suffer from - and glory in - the same attachments. We had to put down a couple of Goldens within several months of each other in 2010. On the way to the vet, I stopped and bought the big guy, Derry, a hamburger. He couldn't stand up anymore but he enjoyed that burger.
He trusted us to the end. I wish we deserved it.
I think she's right in that there is a sense in which these guys are better than we are. They can't take care of themselves but there is a very real way in which they take of you. They require something from us that requires a deeper understanding of who we are.
Not a bad life if you can do that.
A question about the John Doe charges.
So here's an interesting legal question regarding last week's charges.
Kelly Rindfleisch was charged with four counts of violating sec. 9.46.12(3) which prohibits using a discretionary power possessed in one's capacity as a public employee or official to obtain a dishonest advantage for another. This is the statute that was at issue in the caucus scandal and, as noted in my previous point, the Wisconsin Supreme Court split on whether it could be applied to the political activity undertaken by legislative employees at issue there. Violations of sec. 946.12(3) are class I felonies and may be punished by up to 3.5 years incarceration and/or a fine of up to $ 10,000.
The problems with applying sec. 946.12(3) in the caucus cases were Due Process, Notice and unconsitutional vagueness, i.e., did the charged parties have fair notice that their conduct was prohibited by the statute. The Court of Appeals rejected the defendants' argument but, as noted above, the Supreme Court split. That left the Court of Appeals decision standing but the issue open for future cases.
As I've posted before, this defense may not work for Rindfleisch because she is charged with a specific form of conduct, fundraising, that is specifically prescribed by statute. Sec. 11.36(4) prohibits soliciting or receiving contributions from a public building. Sec. 11.36(2) prohibits a public employee from soliciting or receiving contributions during established working hours. There is a bright line between asking for money and other types of arguably "political" work. In limiting the charges to this type of activity, the DA deserves some credit.
But can she be charged with a felony? Maybe not and here's why. Sec. 11.61 specifies the criminal penalties for conduct prohibited elsewhere. Ss. 11.61(1)(a) and (b) specify that some of these things can be class I felonies but the activities allegedly engaged in by Rindfleisch - soliciting contributions from a public building (or even during established working hours) - are not among them. To the contrary, it is included in sec. 11.61(1)(c)'s catch all provision providing that all other intentional violations of Chapter 11 "may be fined not more than $1,000 or imprisoned not more than 6 months or both." In other words, Chapter 11 both prohibits what Rindfleisch is allegeed to have done and makes clear that it is a misdemeanor. (This is what Wink was charged with.)
Does this suggest that sec. 946.12(3) ought not be construed to apply to Rindfleisch's behavior? Does it reflect a legislative judgment that what she did is not a felony and ought to be penalized only to the extent provided for in sec. 11.61?
To be sure, the same conduct may violate more than one criminal statute but I don't know that this commonplace observation answers the question. Here we have a specific prohition that the legislature has expressly said is not a felony but a misdemeanor. There appear to be no additional elements involved in charging a violation of sec. 946.12(3). Indeed, it's not clear that sec. 946.12(3) could be properly applied to this conduct without the bootstrap of sec. 11.36. Shouldn't the specific provisions of the chapter 11 control ?
I don't practice criminal law and I haven't researched the matter beyond what is set forth above. But I know some pretty good criminal defense lawyers read this blog from time to time. I wonder what they think. Is there a potential defenses along these lines?
Kelly Rindfleisch was charged with four counts of violating sec. 9.46.12(3) which prohibits using a discretionary power possessed in one's capacity as a public employee or official to obtain a dishonest advantage for another. This is the statute that was at issue in the caucus scandal and, as noted in my previous point, the Wisconsin Supreme Court split on whether it could be applied to the political activity undertaken by legislative employees at issue there. Violations of sec. 946.12(3) are class I felonies and may be punished by up to 3.5 years incarceration and/or a fine of up to $ 10,000.
The problems with applying sec. 946.12(3) in the caucus cases were Due Process, Notice and unconsitutional vagueness, i.e., did the charged parties have fair notice that their conduct was prohibited by the statute. The Court of Appeals rejected the defendants' argument but, as noted above, the Supreme Court split. That left the Court of Appeals decision standing but the issue open for future cases.
As I've posted before, this defense may not work for Rindfleisch because she is charged with a specific form of conduct, fundraising, that is specifically prescribed by statute. Sec. 11.36(4) prohibits soliciting or receiving contributions from a public building. Sec. 11.36(2) prohibits a public employee from soliciting or receiving contributions during established working hours. There is a bright line between asking for money and other types of arguably "political" work. In limiting the charges to this type of activity, the DA deserves some credit.
But can she be charged with a felony? Maybe not and here's why. Sec. 11.61 specifies the criminal penalties for conduct prohibited elsewhere. Ss. 11.61(1)(a) and (b) specify that some of these things can be class I felonies but the activities allegedly engaged in by Rindfleisch - soliciting contributions from a public building (or even during established working hours) - are not among them. To the contrary, it is included in sec. 11.61(1)(c)'s catch all provision providing that all other intentional violations of Chapter 11 "may be fined not more than $1,000 or imprisoned not more than 6 months or both." In other words, Chapter 11 both prohibits what Rindfleisch is allegeed to have done and makes clear that it is a misdemeanor. (This is what Wink was charged with.)
Does this suggest that sec. 946.12(3) ought not be construed to apply to Rindfleisch's behavior? Does it reflect a legislative judgment that what she did is not a felony and ought to be penalized only to the extent provided for in sec. 11.61?
To be sure, the same conduct may violate more than one criminal statute but I don't know that this commonplace observation answers the question. Here we have a specific prohition that the legislature has expressly said is not a felony but a misdemeanor. There appear to be no additional elements involved in charging a violation of sec. 946.12(3). Indeed, it's not clear that sec. 946.12(3) could be properly applied to this conduct without the bootstrap of sec. 11.36. Shouldn't the specific provisions of the chapter 11 control ?
I don't practice criminal law and I haven't researched the matter beyond what is set forth above. But I know some pretty good criminal defense lawyers read this blog from time to time. I wonder what they think. Is there a potential defenses along these lines?
More John Doe
There has been an interesting comment thread following Friday afternoon's post on the Rindfleisch and Wink indictments.
I agree generally with Ed Fallone's comments on prosecutotial discretion but "generally" is the operative word. This is not garden variety white collar crime. They are offenses arising from political activity charged against the partisans of one side by a partisan of another. There is no way to avoid that but I think it suggests few cautionary points.
First, it is not a good idea to give prosecutors broadly framed statutes that can be applied to common place behavior. Even if these laws are not intentionally abused, there is the potential for uneven application, disproportionate consequences and the use of criminal law as a political weapon - if not by the prosecutor, then by complainants and commentators.
This concern is not as salient as it might otherwise be here because, at least so far, the charges involve conduct - fundraising on government property - that is clearly prohibited. (There may be a legal question regarding the DA's ability to charge a felony for such conduct. But that's a separate post.)In this regard, it is interesting to note that no charges have been filed with respect to the conduct that supposedly prompted the investigation - comments posted to the Journal Sentinel website by Darlene Wink. The DA deserves credit for not charging that.
Second, even if there are not notice and vagueness problems, we still have concerns about disproportionate consequences and uneven application. Let's take the former first. As Ed points out, the offense here is malum prohibitum (wrong because prohibited) rather than malum in se (intrinsically wrong). (Someone might argue that it is malum in se to deprive taxpayers of a full day of work, but that is not an element of the offense that has been charged and it is unclear whether that happened.)
Ed is right that people get punished for crimes that are mala prohibitum, but we can't stop there. Offenses that are wrong only because prohibited generally are punished less severely than those that are wrong in and of themselves.
There are at least two reasons for that. The first is that the offender is less morally culpable. As Jay Heck points out, Rindfleisch and Wink may have been arrogant and stupid but they have not have not committed a horrendous crime. Don't believe me? Consider this.
Both women were absolutely free to raise funds for political candidates. Had both picked up their laptops and walked over to the Public Library or the coffee shop at the Hilton, they wouldn't be in trouble today. (They might also have to do so "outside established work hours" if they had established work hours. I'd be astonished, though, if we started to prosecute politicians and political appointees for leaving work to attend to fundraising.)
Of course, they didn't leave the building and now they have to pay a price for that. But the notion that the failure to do so should draw felony charges and prison time does not track for me. I felt the same way about Chvala, Burke, Foti and Jensen.
The other reason that we tend to treat crime that are mala prohibitum differently is that the absence of intrinsic moral wrong tends to result in more frequent and widespread violations. We know that there will be more violations by people who are otherwise law abiding and this restrains prosecutorial and sentencing practices. We can't throw the book at everyone and this has a mitigating impact with respect to those people who do manage to get caught. It's not that we decide that breaking the law is OK, it's just that we know there are a lot of people who have done the same thing and have not been caught and that influences what consequences are fair.
My problem here may be more with the law than prosecutorial discretion. Fourteen years for sending some e-mails on fundraising from the office? Defend it if you want. I wish you luck.
This takes us to the problem of uneven application. The problem here is not necessarily with the DA. Local prosecutors address local problems and the Milwaukee County DA would not typically have jurisdiction to investigate the Dane County Executive or the Governor. (One might wonder if the same effort was - or should have been - expended on investigation of the Mayor's office but I don't pretend to have the answer.)
If nothing else, decentralization of decision-making has resulted in a twenty months of turning the activities of a single politician's office inside out. At this point, that effort seems to have found relatively little but my larger point is that only one politician has been subjected to this withering scrutiny and, given the nature of political appointees, it is highly likely that, were the same exhaustive examination applied to the offices of other politicians, we'd find more or less the same thing.
Of course the fact that "others are doing it" is no excuse. That would be more reassuring if our public discourse maintained a scrupulous care about who and what has been charged and what has and has not been proven.
But we don't. Partisans are going to distort and misrepresent these charges. They are going to run ads that grab newspaper heads that are, at best, incomplete and, at worst, misleading. That's politics but it ought to be kept in account when we craft laws concerning political behavior and as we enforce them.
I agree generally with Ed Fallone's comments on prosecutotial discretion but "generally" is the operative word. This is not garden variety white collar crime. They are offenses arising from political activity charged against the partisans of one side by a partisan of another. There is no way to avoid that but I think it suggests few cautionary points.
First, it is not a good idea to give prosecutors broadly framed statutes that can be applied to common place behavior. Even if these laws are not intentionally abused, there is the potential for uneven application, disproportionate consequences and the use of criminal law as a political weapon - if not by the prosecutor, then by complainants and commentators.
This concern is not as salient as it might otherwise be here because, at least so far, the charges involve conduct - fundraising on government property - that is clearly prohibited. (There may be a legal question regarding the DA's ability to charge a felony for such conduct. But that's a separate post.)In this regard, it is interesting to note that no charges have been filed with respect to the conduct that supposedly prompted the investigation - comments posted to the Journal Sentinel website by Darlene Wink. The DA deserves credit for not charging that.
Second, even if there are not notice and vagueness problems, we still have concerns about disproportionate consequences and uneven application. Let's take the former first. As Ed points out, the offense here is malum prohibitum (wrong because prohibited) rather than malum in se (intrinsically wrong). (Someone might argue that it is malum in se to deprive taxpayers of a full day of work, but that is not an element of the offense that has been charged and it is unclear whether that happened.)
Ed is right that people get punished for crimes that are mala prohibitum, but we can't stop there. Offenses that are wrong only because prohibited generally are punished less severely than those that are wrong in and of themselves.
There are at least two reasons for that. The first is that the offender is less morally culpable. As Jay Heck points out, Rindfleisch and Wink may have been arrogant and stupid but they have not have not committed a horrendous crime. Don't believe me? Consider this.
Both women were absolutely free to raise funds for political candidates. Had both picked up their laptops and walked over to the Public Library or the coffee shop at the Hilton, they wouldn't be in trouble today. (They might also have to do so "outside established work hours" if they had established work hours. I'd be astonished, though, if we started to prosecute politicians and political appointees for leaving work to attend to fundraising.)
Of course, they didn't leave the building and now they have to pay a price for that. But the notion that the failure to do so should draw felony charges and prison time does not track for me. I felt the same way about Chvala, Burke, Foti and Jensen.
The other reason that we tend to treat crime that are mala prohibitum differently is that the absence of intrinsic moral wrong tends to result in more frequent and widespread violations. We know that there will be more violations by people who are otherwise law abiding and this restrains prosecutorial and sentencing practices. We can't throw the book at everyone and this has a mitigating impact with respect to those people who do manage to get caught. It's not that we decide that breaking the law is OK, it's just that we know there are a lot of people who have done the same thing and have not been caught and that influences what consequences are fair.
My problem here may be more with the law than prosecutorial discretion. Fourteen years for sending some e-mails on fundraising from the office? Defend it if you want. I wish you luck.
This takes us to the problem of uneven application. The problem here is not necessarily with the DA. Local prosecutors address local problems and the Milwaukee County DA would not typically have jurisdiction to investigate the Dane County Executive or the Governor. (One might wonder if the same effort was - or should have been - expended on investigation of the Mayor's office but I don't pretend to have the answer.)
If nothing else, decentralization of decision-making has resulted in a twenty months of turning the activities of a single politician's office inside out. At this point, that effort seems to have found relatively little but my larger point is that only one politician has been subjected to this withering scrutiny and, given the nature of political appointees, it is highly likely that, were the same exhaustive examination applied to the offices of other politicians, we'd find more or less the same thing.
Of course the fact that "others are doing it" is no excuse. That would be more reassuring if our public discourse maintained a scrupulous care about who and what has been charged and what has and has not been proven.
But we don't. Partisans are going to distort and misrepresent these charges. They are going to run ads that grab newspaper heads that are, at best, incomplete and, at worst, misleading. That's politics but it ought to be kept in account when we craft laws concerning political behavior and as we enforce them.
Friday, January 27, 2012
John Doe skirts the edges
A couple of things about the charges emerging from the John Doe yesterday.
First, it is harder to make the type of legal objections (due process, fair notice, vagueness) to allegations grounded in fundraising activity. The statutory prohibition of fundraising is clear and the line between fundraising as political work and other activities such as developing policy or engaging in certain forms of outreach and advocacy. The one thing that Wink and Rindfleisch should have been clear on is not raising political money on government time.
Second, as with the caucus scandal, I continue to dislike dealing with this type as a criminal matter. I understand the theory - you don't want to give incumbents the advantage of having people campaign on taxpayer time. But it seems to me that to ask political appointees to stop being political is like expecting a dog to give up a bone. Of all the advantages that incumbents have, a few political appointees doing political work from the office would seem to be pretty far down the list.Even if criminal charges are appropriate, charging these things as felonies and exposing people to a potential of fourteen years in prison strikes me as overkill.
More fundamentally, it leads to the threat of partisan use of the prosecutorial process. If you spend eighteen months scouring through the activities of any elected official with substantial appointed staff, you are probably going to find a few Winks and Rindfleischs. Who gets tagged with scandal is largely a function of whose opponents are willing to invest (public) resources to find one.
What would you find if you subjected the offices of Tom Barrett, Jim Doyle or Kathleen Falk to this kind of scrutiny?
Third, the timing (and, to a lesser degree, the composition) of the the complaints have a partisan tinge. There could be an explanation for the fact that the DA spend eighteen months to produce what really are two relatively simple complaints, but the timing - on the eve of a recall election - prompts one to raise the question. What took so long? Why now?
I also find it odd that the complaint goes to substantial length to suggest that the candidate that Rindfleisch raised money for - Brett Davis and not Scott Walker - was "preferred" by certain people in Walker's campaign. Why does that matter? The implication that some will draw is that she was doing this "for" Walker. While I may be overly sensitive, it is, strictly speaking, unnecessary to support the charges - if she was obtaining a dishonest advantage for Davis it doesn't matter who else supported Davis - and one would ordinarily not place extraneous matter in a criminal complaint.
If an implication was intended (or if others draw it), was it fair? If the DA could link Walker to this activity, he would have charged him. If, as apparently is the case, he cannot, then perhaps he should stick to knitting. This would have been particularly prudent given the outsized resources devoted to a John Doe that has thus far produced very little, the foregoing questions about timing and the extraordinary leakiness of the entire operation. Why appear to be partisan when you don't need to?
Fourth, as suggested by the last point, there is still nothing that implicates the Governor in anything. Walker's only appearance in this complaint is to tell his people to cut out anything that might look like political activity. To be sure, partisans are going to use that to suggest that he "just didn't want to get caught" or that he "knew" what was going on, but here's the bottom line. After eighteen months and God knows how many tax dollars, we have precisely no wrongdoing by Governor Walker - only two people who worked for him.
Fifth, as scandals go, this is small ball. If Wink and Rindfleisch raised money on county time in county facilities, they acted foolishly but there are a lot of fools in the politics. It is not clear from a perusal of the complaint, for example, whether they spend more time fundraising than a lefty blogger spent "weblogging" or reading blogs or doing whatever it was he was doing instead of his job.
Sixth, the allegations regarding a "secret e-mail" system are interesting although a bit of a misnomer. Apparently certain people were using laptops for political work and the accessing the internet through means other than the county's ISP provider to communicate with each other. According to the complaint, some of these communications were related to county business.
I wonder how many public officials use this or other tactics in an attempt to engage in communications that won't be subject to open records requests. How many of these officials do these things in an attempt to comply with the law, i.e., to keep political and government business separate?I also wonder how many even stop to think about whether there are other reasons not to do it?
Finally, while I don't think it's necessarily illegal to create such a system, I also don't think that the records created on it - if they relate to official business - are immune from open records requests.
First, it is harder to make the type of legal objections (due process, fair notice, vagueness) to allegations grounded in fundraising activity. The statutory prohibition of fundraising is clear and the line between fundraising as political work and other activities such as developing policy or engaging in certain forms of outreach and advocacy. The one thing that Wink and Rindfleisch should have been clear on is not raising political money on government time.
Second, as with the caucus scandal, I continue to dislike dealing with this type as a criminal matter. I understand the theory - you don't want to give incumbents the advantage of having people campaign on taxpayer time. But it seems to me that to ask political appointees to stop being political is like expecting a dog to give up a bone. Of all the advantages that incumbents have, a few political appointees doing political work from the office would seem to be pretty far down the list.Even if criminal charges are appropriate, charging these things as felonies and exposing people to a potential of fourteen years in prison strikes me as overkill.
More fundamentally, it leads to the threat of partisan use of the prosecutorial process. If you spend eighteen months scouring through the activities of any elected official with substantial appointed staff, you are probably going to find a few Winks and Rindfleischs. Who gets tagged with scandal is largely a function of whose opponents are willing to invest (public) resources to find one.
What would you find if you subjected the offices of Tom Barrett, Jim Doyle or Kathleen Falk to this kind of scrutiny?
Third, the timing (and, to a lesser degree, the composition) of the the complaints have a partisan tinge. There could be an explanation for the fact that the DA spend eighteen months to produce what really are two relatively simple complaints, but the timing - on the eve of a recall election - prompts one to raise the question. What took so long? Why now?
I also find it odd that the complaint goes to substantial length to suggest that the candidate that Rindfleisch raised money for - Brett Davis and not Scott Walker - was "preferred" by certain people in Walker's campaign. Why does that matter? The implication that some will draw is that she was doing this "for" Walker. While I may be overly sensitive, it is, strictly speaking, unnecessary to support the charges - if she was obtaining a dishonest advantage for Davis it doesn't matter who else supported Davis - and one would ordinarily not place extraneous matter in a criminal complaint.
If an implication was intended (or if others draw it), was it fair? If the DA could link Walker to this activity, he would have charged him. If, as apparently is the case, he cannot, then perhaps he should stick to knitting. This would have been particularly prudent given the outsized resources devoted to a John Doe that has thus far produced very little, the foregoing questions about timing and the extraordinary leakiness of the entire operation. Why appear to be partisan when you don't need to?
Fourth, as suggested by the last point, there is still nothing that implicates the Governor in anything. Walker's only appearance in this complaint is to tell his people to cut out anything that might look like political activity. To be sure, partisans are going to use that to suggest that he "just didn't want to get caught" or that he "knew" what was going on, but here's the bottom line. After eighteen months and God knows how many tax dollars, we have precisely no wrongdoing by Governor Walker - only two people who worked for him.
Fifth, as scandals go, this is small ball. If Wink and Rindfleisch raised money on county time in county facilities, they acted foolishly but there are a lot of fools in the politics. It is not clear from a perusal of the complaint, for example, whether they spend more time fundraising than a lefty blogger spent "weblogging" or reading blogs or doing whatever it was he was doing instead of his job.
Sixth, the allegations regarding a "secret e-mail" system are interesting although a bit of a misnomer. Apparently certain people were using laptops for political work and the accessing the internet through means other than the county's ISP provider to communicate with each other. According to the complaint, some of these communications were related to county business.
I wonder how many public officials use this or other tactics in an attempt to engage in communications that won't be subject to open records requests. How many of these officials do these things in an attempt to comply with the law, i.e., to keep political and government business separate?I also wonder how many even stop to think about whether there are other reasons not to do it?
Finally, while I don't think it's necessarily illegal to create such a system, I also don't think that the records created on it - if they relate to official business - are immune from open records requests.
Tuesday, January 24, 2012
Perpetual recalls as constitutional amendment
Wisconsin used to elect governors to two year terms. We amended our constitution in x to extend the gubernatorial term to four years, presumably because we think it takes at least that long to give an administration a fair shot at implementing its vision of state government.
But I guess we're going to back to two. Bill Kraus (who people have finally stopped calling a Republican) wonders if this season's recalls will be followed by a return to sanity:
I don't think that the Democrats and public employee unions will remove Scott Walker from office, but, if they do, they can expect the threat - and perhaps the fact - of recall to become the new normal.
The problem is this: There is no argument for recalling Governor Walker other than a dislike for his policies. He hasn't committed a high crime or misdemeanor. He has used the power that voters gave him and angered the party of government. he has been no less peremptory and partisan than Jim Doyle. Notwithstanding what appears to be a year and a half long proctological examination by the Milwaukee County District Attorney, we have yet to see any allegation of wrongdoing by the Governor. (And, no, even the charges that Dan Bice's scofflaw sources think are coming won't amount to that unless he himself is involved. Give me eighteen months and I can find campaigning by political appointees in any one's administration.)
While one might think that the Democrats' success in collecting lots of signatures is indicative of a belief that this is special, I'm not so sure. Given the right policy decision by a Democratic (i.e., one that outrages the conservative base), I think that Republicans could do the same thing. Look at the way that they matched unprecedented Democratic turnout efforts in the Supreme Court and summer recall elections. The public employee unions are good at this type of organization, but technology has not only made this type of mobilization easier, it has also leveled the playing field.
I don't see it happening immediately if a Democrat unseats Walker and a sufficiently conservative Democrat (think Tim Cullen) might avoid it altogether because he or she won't do anything that arouses opposition (and satisfies the left), Even someone further to the left who will rally the Republican base in opposition (think Kathleen Falk) is unlikely to face recall in what will essentially be a two year term.
But imagine a new Democrat elected in 2014 who, like Scott Walker, attempts to implement significant and substantive policy changes. Don't think for a moment that recall will be off the table.
Escalation is a game that everyone plays.
If you don't want perpetual recalls, vote for Walker.
Or support a return to two year terms.
But I guess we're going to back to two. Bill Kraus (who people have finally stopped calling a Republican) wonders if this season's recalls will be followed by a return to sanity:
Will, when this is all over, the combatants come to their senses and take a pass on the use of recalls to protest misguided (subjective) votes and procedures instead of high crimes and misdemeanors as reasons for impeachments and recalls, and revert to the more traditional representative government remedy for incumbents’ bad policies and votes--the next election?Not a chance.
I don't think that the Democrats and public employee unions will remove Scott Walker from office, but, if they do, they can expect the threat - and perhaps the fact - of recall to become the new normal.
The problem is this: There is no argument for recalling Governor Walker other than a dislike for his policies. He hasn't committed a high crime or misdemeanor. He has used the power that voters gave him and angered the party of government. he has been no less peremptory and partisan than Jim Doyle. Notwithstanding what appears to be a year and a half long proctological examination by the Milwaukee County District Attorney, we have yet to see any allegation of wrongdoing by the Governor. (And, no, even the charges that Dan Bice's scofflaw sources think are coming won't amount to that unless he himself is involved. Give me eighteen months and I can find campaigning by political appointees in any one's administration.)
While one might think that the Democrats' success in collecting lots of signatures is indicative of a belief that this is special, I'm not so sure. Given the right policy decision by a Democratic (i.e., one that outrages the conservative base), I think that Republicans could do the same thing. Look at the way that they matched unprecedented Democratic turnout efforts in the Supreme Court and summer recall elections. The public employee unions are good at this type of organization, but technology has not only made this type of mobilization easier, it has also leveled the playing field.
I don't see it happening immediately if a Democrat unseats Walker and a sufficiently conservative Democrat (think Tim Cullen) might avoid it altogether because he or she won't do anything that arouses opposition (and satisfies the left), Even someone further to the left who will rally the Republican base in opposition (think Kathleen Falk) is unlikely to face recall in what will essentially be a two year term.
But imagine a new Democrat elected in 2014 who, like Scott Walker, attempts to implement significant and substantive policy changes. Don't think for a moment that recall will be off the table.
Escalation is a game that everyone plays.
If you don't want perpetual recalls, vote for Walker.
Or support a return to two year terms.
Monday, January 23, 2012
On the John Doe: Curb Your Enthusiasm
A couple of things to keep in mind regarding Dan Bice's story concerning coming charges against people who worked for Scott Walker.
First, these "sources" are probably breaking the law by talking to Bice. John Doe proceediings operate under orders of nondisclosure directed ti witnesses and lawyers. In other words, anyone in a position to know these things is under a duty not to disclose them. While you can imagine more benign explanations, Bice's sources are either speculating or violating their legal obligations. Whether or not the former are wrong or the latter lack credibility, only time will tell.
In the meantime, if John Chisolm is not beside himself, he should be. If these "sources" truly know what they clain to know, it is highly likely that they are in his office.
Second, assuming that the charges here are a variation on the "caucus scandal' cases invovling Republicans like Scott Jensen and Steve Foti or Democrat Chuck Chvala and Brian Burke, the legal validity of those charges is uncertain. In other words, it is not clear that doing political work from government offices is a crime.
Indeed, in the Chvala and Jensen cases, the Wisconsin Supreme Court split 2-2 on whether the prosecutions could go forward. The political activities in question were clearly contrary to the legislature's rules (although not its bipartisan conduct), but the Justices split on whether it could be criminally prosecuted. Justices Wilcox, Prosser and Butler did not participate. Justices Crooks and Roggensack apparently would have found that the prosecutions were unconstitutional for due process, fair notice and vagueness concerns. Chief Justice Abrahamsons and Justice Bradley would have allowed them to go forward.Because the court of appeals had held for the state, the decision below remained standing and both prosecutions went forward.
Of course, we don't know what will be charged (or if it will be charged) but, even when we do, we may not know whethter it's really a crime.
First, these "sources" are probably breaking the law by talking to Bice. John Doe proceediings operate under orders of nondisclosure directed ti witnesses and lawyers. In other words, anyone in a position to know these things is under a duty not to disclose them. While you can imagine more benign explanations, Bice's sources are either speculating or violating their legal obligations. Whether or not the former are wrong or the latter lack credibility, only time will tell.
In the meantime, if John Chisolm is not beside himself, he should be. If these "sources" truly know what they clain to know, it is highly likely that they are in his office.
Second, assuming that the charges here are a variation on the "caucus scandal' cases invovling Republicans like Scott Jensen and Steve Foti or Democrat Chuck Chvala and Brian Burke, the legal validity of those charges is uncertain. In other words, it is not clear that doing political work from government offices is a crime.
Indeed, in the Chvala and Jensen cases, the Wisconsin Supreme Court split 2-2 on whether the prosecutions could go forward. The political activities in question were clearly contrary to the legislature's rules (although not its bipartisan conduct), but the Justices split on whether it could be criminally prosecuted. Justices Wilcox, Prosser and Butler did not participate. Justices Crooks and Roggensack apparently would have found that the prosecutions were unconstitutional for due process, fair notice and vagueness concerns. Chief Justice Abrahamsons and Justice Bradley would have allowed them to go forward.Because the court of appeals had held for the state, the decision below remained standing and both prosecutions went forward.
Of course, we don't know what will be charged (or if it will be charged) but, even when we do, we may not know whethter it's really a crime.
Newt's Love Life
There is an argument that the circumstances regarding Newt Gingrich's marital history is relevant My own view is that, in terms of assessing character, other people's marriage circumstances are almost always nonjusticiable. Relationships are normally complex and we almost never can know enough about someone else's life to assign "blame" (or even to know whether there is "blame") for martial woes. This is not moral relativism. It's a moral humility that recognizes that this is an area of life that outsiders can't really know enough about to judge.
Still, family break-up is an enormous problem for children and, in particular, children of low income parents who often lack the resources and social capital to handle the consequences. Some conclude that the "bad example" offered by Gingrich (who, you have to admit, has a tough history) is appropriately counted against his candidacy.
A good argument for that point of view. alneit from a Catholic perspective, is offered by Ramesh Ponneru. But the argument - as Ramesh recognizes - goes only so far. It suggests that Newt's marital past is a negative factor, but not a dispositive one.
Here's an historical question and a thought experiment. First, the historical question. Which of the following group of Presidents was stronger: Teddy R., Harding, FDR, Ike, JFK, LBJ, Reagan and Clinton or Taft, Coolidge, Nixon, Carter and the Bushes, There are, I think, good and bad in both groups but most people on both sides of the aisle would probably chose the first. I think you know what divides them.
Here's the thought experiment. Imagine that you are a committed supporter of Barack Obama (perhaps you are) and believe that his re-election is critical to the future of the country. In a tearful press conference, Michelle Obama announces that her husband has has an affair and proposed that she allow him to continue on with his mistress. She refused and he has decided to divorce her and marry the other woman.
Are you going to vote Republican?
The answer, for most liberals that I know is "of course, not" and I don't blame them. As much as they might disapprove of the President's conduct, the fate of their country (as they see it) trumps whatever judgment they might form (if they can form a judgment) about his behavior as a husband.
But what about that cardinal sin of a morally agnostic society, hypocrisy? Aren't the Republicans the party of family values? I have at least two problems with that. First, are we now to presume that the Democrats oppose family values? I know that they get accused of that, but I haven't heard them accept the criticism. Second, there is a difference between fostering an ideal and recognizing that it cannot always be achieved. This is one of the reasons that concern about marital dissolution and its impact on kids (for what it's worth, the children of Gingrich's first marriage were older at the time of his first divorce and he had no children with his second wife) does not imply the prohibition of divorce. The promotion of an ideal does not require us to ignore human fallibility or the nature or real world relationships.
Interestingly, the Marianne Gingrich story seems to have had no impact in deep red South Carolina where Gingrich handily carried both evangelicals (itself a nice trick for a Catholic) and married women.
I am not a fan of Newt Gingrich and I'm not supporting him for the nomination. He is a man with enormous gifts and enormous flaws (these things often go together). He's got more problems than serial monogamy, But if the choice is between Newt and Barack Obama, the public good requires, in my view, voting for Newt.
Still, family break-up is an enormous problem for children and, in particular, children of low income parents who often lack the resources and social capital to handle the consequences. Some conclude that the "bad example" offered by Gingrich (who, you have to admit, has a tough history) is appropriately counted against his candidacy.
A good argument for that point of view. alneit from a Catholic perspective, is offered by Ramesh Ponneru. But the argument - as Ramesh recognizes - goes only so far. It suggests that Newt's marital past is a negative factor, but not a dispositive one.
Here's an historical question and a thought experiment. First, the historical question. Which of the following group of Presidents was stronger: Teddy R., Harding, FDR, Ike, JFK, LBJ, Reagan and Clinton or Taft, Coolidge, Nixon, Carter and the Bushes, There are, I think, good and bad in both groups but most people on both sides of the aisle would probably chose the first. I think you know what divides them.
Here's the thought experiment. Imagine that you are a committed supporter of Barack Obama (perhaps you are) and believe that his re-election is critical to the future of the country. In a tearful press conference, Michelle Obama announces that her husband has has an affair and proposed that she allow him to continue on with his mistress. She refused and he has decided to divorce her and marry the other woman.
Are you going to vote Republican?
The answer, for most liberals that I know is "of course, not" and I don't blame them. As much as they might disapprove of the President's conduct, the fate of their country (as they see it) trumps whatever judgment they might form (if they can form a judgment) about his behavior as a husband.
But what about that cardinal sin of a morally agnostic society, hypocrisy? Aren't the Republicans the party of family values? I have at least two problems with that. First, are we now to presume that the Democrats oppose family values? I know that they get accused of that, but I haven't heard them accept the criticism. Second, there is a difference between fostering an ideal and recognizing that it cannot always be achieved. This is one of the reasons that concern about marital dissolution and its impact on kids (for what it's worth, the children of Gingrich's first marriage were older at the time of his first divorce and he had no children with his second wife) does not imply the prohibition of divorce. The promotion of an ideal does not require us to ignore human fallibility or the nature or real world relationships.
Interestingly, the Marianne Gingrich story seems to have had no impact in deep red South Carolina where Gingrich handily carried both evangelicals (itself a nice trick for a Catholic) and married women.
I am not a fan of Newt Gingrich and I'm not supporting him for the nomination. He is a man with enormous gifts and enormous flaws (these things often go together). He's got more problems than serial monogamy, But if the choice is between Newt and Barack Obama, the public good requires, in my view, voting for Newt.
Friday, January 20, 2012
PolitiFact Flubs on Falk
Further to the quirkiness of PolitiFact, this rating of Kathleen Falk's statement that she saved Dane County about ten million dollars by agreeing to wage and benefit "reductions" is bizarre.
The union agreed to trade off higher co-pays and deductibles for protection against the need for higher pension reductions. That is trading one benefit for another.
The union also traded pay reductions for increased personal leave. Unless you think that the county gets nothing for a day of work from a unionized employee, then reducing work in return for reducing pay entails a cost. The same can be said for trading pay reduction for the ability to bank additional sick pay or a commitment to make no layoffs.
These may or may not have been good ideas but they were not "reductions" that "saved" ten million dollars. They were paid for at a real cost to taxpayers.
Perhaps a false rating would not be in order. There were reductions in wages and benefits even if they cost the taxpayers in other ways. In response to an earlier version of this post, my colleague at WILL, Tom Kamenick (calling out the boss ! - good for him) argues that we'd say that layoffs "saved" money. That thought had occurred to me and it doesn't surprise me that Tom would be smart and candid enough to point it out.
He has a point but a politician who had laid off employees would have to justify the cost associated with they layoffs and we wouldn't say that employees wages and benefits were "reduced."
Falk offered this in response to a claim that Walker's reform saved taxpayers money. She claimed that her "reductions" were an example of her doing the same thing through negotiation. As PolitiFact points out, she was trying to argue that she could do the same thing as Walker in a way that public employee unions would like.
But it wasn't the same thing. Walker reduced state expenditures by a lot in exchange for more modest service reductions. Falk seems to have given up as much as she gained. Maybe that's a good thing but, by failing to point out the ways in which the agreements cost the taxpayers money would seem to be, in PolitiFact's terms, either an accurate statement that "leaves out important details or takes things out of context" ("half true") or a statement that "contains some element of truth, but ignores critical facts that would give a different impression." (mostly false).
The union agreed to trade off higher co-pays and deductibles for protection against the need for higher pension reductions. That is trading one benefit for another.
The union also traded pay reductions for increased personal leave. Unless you think that the county gets nothing for a day of work from a unionized employee, then reducing work in return for reducing pay entails a cost. The same can be said for trading pay reduction for the ability to bank additional sick pay or a commitment to make no layoffs.
These may or may not have been good ideas but they were not "reductions" that "saved" ten million dollars. They were paid for at a real cost to taxpayers.
Perhaps a false rating would not be in order. There were reductions in wages and benefits even if they cost the taxpayers in other ways. In response to an earlier version of this post, my colleague at WILL, Tom Kamenick (calling out the boss ! - good for him) argues that we'd say that layoffs "saved" money. That thought had occurred to me and it doesn't surprise me that Tom would be smart and candid enough to point it out.
He has a point but a politician who had laid off employees would have to justify the cost associated with they layoffs and we wouldn't say that employees wages and benefits were "reduced."
Falk offered this in response to a claim that Walker's reform saved taxpayers money. She claimed that her "reductions" were an example of her doing the same thing through negotiation. As PolitiFact points out, she was trying to argue that she could do the same thing as Walker in a way that public employee unions would like.
But it wasn't the same thing. Walker reduced state expenditures by a lot in exchange for more modest service reductions. Falk seems to have given up as much as she gained. Maybe that's a good thing but, by failing to point out the ways in which the agreements cost the taxpayers money would seem to be, in PolitiFact's terms, either an accurate statement that "leaves out important details or takes things out of context" ("half true") or a statement that "contains some element of truth, but ignores critical facts that would give a different impression." (mostly false).
Silly Job Narratives
Wisconsin had robust job growth in the first six months of last year and suffered a decline in jobs during the last six months. The net has been an increases in both private (13500) and total nonfarm (3200) employment during 2011. Compared to a total work force of 2.74 million in the state, it's safe to say that employment has remained flat.
So what do we make of this?
Partisans on the left want to say that Scott Walker's budget is to blame for the decline in employment over the past six months. This argument will become increasingly important to them as it becomes clear that their earlier claims that the Walker budget would devastate public services turn out to be hysterical.The argument is that it "sucks demand" out of the economy.
If you give this claim more than superficial attention, it proves too much, doesn't it. It suggests that government creates demand that would otherwise not exist by spending money. How can that be?
In the national context, classic Keynesian stimulus has said that we can "inject" money into the economy by borrowing it during recessionary periods. Whatever the merits of this, the analysis is different on the state level. The state can't borrow money to finance current operations so it's choices are limited to shifting money from the pockets of taxpayers to the recipients of government spending. It can neither inject money into or "suck it out of" the economy. All it can do is move money from one pocket to another. (This criticism is not entirely inapt to national economic policy as well but it's not as simple.)
So, for Walker's budget to be blamed for sluggish job growth, the argument has to be that the money will be more productively spent by those to whom the government will give it than by the taxpayers, e.g., that it is better to let public employees pay little or nothing for their health insurance than it is for homeowners to pay lower property taxes.
If Democrats want to make that argument to recall Scott Walker then God bless them.
Of course the fact that this claim would be a political nonstarter doesn't disprove it. Maybe its true but it's not self evident. The job numbers don't prove it because there are far more substantial items affecting the state's economy than the state budget and the impact on the recipients of state funds and the taxpayers may be timed differently, i.e., state workers see an immediate reduction in take home pay but taxpayers don't see lower property tax bills until December. It is also not clear that the most productive uses of funds will have an impact at the same time as less productive uses. If, for example, it is better to encourage investment than current consumption, the benefits may take longer to realize. We may have to accept a sluggish short term for a more robust long term. (This is one of the criticisms of the argument that "austerity"doesn't work. It might well work depending on how it is executed.)
My own sense - formed after years as both a Democrat (I was once chair of the North Shore Democrats) and a Republican is that our expectation that the government can "create" jobs or fine tune the economy are overstated. Neither the President nor the Governor sits in the basement mouse clicking and turning dials to run the economy. We should assess public policy more modestly and ask whether it has or has not provided a needed public service at the lowest possible cost. If a train makes sense, build it. If schools are underfunded, increase their funding. But do neither of these things because we think that spending the money will create jobs without regard to whether the expenditures make sense, i.e., are superior uses of the money.
On that basis, the Walker reforms look pretty good.
So what do we make of this?
Partisans on the left want to say that Scott Walker's budget is to blame for the decline in employment over the past six months. This argument will become increasingly important to them as it becomes clear that their earlier claims that the Walker budget would devastate public services turn out to be hysterical.The argument is that it "sucks demand" out of the economy.
If you give this claim more than superficial attention, it proves too much, doesn't it. It suggests that government creates demand that would otherwise not exist by spending money. How can that be?
In the national context, classic Keynesian stimulus has said that we can "inject" money into the economy by borrowing it during recessionary periods. Whatever the merits of this, the analysis is different on the state level. The state can't borrow money to finance current operations so it's choices are limited to shifting money from the pockets of taxpayers to the recipients of government spending. It can neither inject money into or "suck it out of" the economy. All it can do is move money from one pocket to another. (This criticism is not entirely inapt to national economic policy as well but it's not as simple.)
So, for Walker's budget to be blamed for sluggish job growth, the argument has to be that the money will be more productively spent by those to whom the government will give it than by the taxpayers, e.g., that it is better to let public employees pay little or nothing for their health insurance than it is for homeowners to pay lower property taxes.
If Democrats want to make that argument to recall Scott Walker then God bless them.
Of course the fact that this claim would be a political nonstarter doesn't disprove it. Maybe its true but it's not self evident. The job numbers don't prove it because there are far more substantial items affecting the state's economy than the state budget and the impact on the recipients of state funds and the taxpayers may be timed differently, i.e., state workers see an immediate reduction in take home pay but taxpayers don't see lower property tax bills until December. It is also not clear that the most productive uses of funds will have an impact at the same time as less productive uses. If, for example, it is better to encourage investment than current consumption, the benefits may take longer to realize. We may have to accept a sluggish short term for a more robust long term. (This is one of the criticisms of the argument that "austerity"doesn't work. It might well work depending on how it is executed.)
My own sense - formed after years as both a Democrat (I was once chair of the North Shore Democrats) and a Republican is that our expectation that the government can "create" jobs or fine tune the economy are overstated. Neither the President nor the Governor sits in the basement mouse clicking and turning dials to run the economy. We should assess public policy more modestly and ask whether it has or has not provided a needed public service at the lowest possible cost. If a train makes sense, build it. If schools are underfunded, increase their funding. But do neither of these things because we think that spending the money will create jobs without regard to whether the expenditures make sense, i.e., are superior uses of the money.
On that basis, the Walker reforms look pretty good.
Wednesday, January 18, 2012
This was no peppercorn
In Sunday's Milwaukee Journal Sentinel, community columnist Chuck Baynton, who is a physician and a self-described "peace activist" (normally a synonym for "left wing" activist), tries to play the lawyer's game of hypotheticals to show that Justice Michael Gableman's arrangement with Michael Best was a gift.
He plays it like a guy who went to medical school.
But, in fairness to Dr. Baynton, he's not the only one. Others ahve done the same thing, essentially arguing that Gableman should be subject to professional discipline - (and perhaps even criminal charges under chapter 19) - because the deal that he cut with Michael Best was "too good." The firm didn't, in the view of these two, get "enough" for its services to be something other than a gift.
Think about that for a minute. The argument is that people's careers should be ruined because of a subjective after the fact determination that the deal was just wasn't good enough for the firm.
Dr. Baynton supports this with the reductio ad absurdum suggesting that we'd call it a gift if Michael Best worked for a dollar or a Megabucks ticket. Maybe we would.
Although there is a presumption in the law against requiring that consideration necessary to support a contract to be more than illusory (hence the famous reference to a "peppercorn" being sufficient), we might want to interpret the Judicial Code and Chapter 19 a bit differently. (In fact, I suggested that in one of the first posts I wrote about this.) Perhaps there are some forms of consideration too obviously insubstantial to support the provision of services to a judge or other public official. Maybe a dollar or a Megabucks ticket would fall into that category.
But that's not this case.
This case involved a contingency arrangement in which a lawyer agreed to accept fees only if he won and, even then, only those fees that might be awarded to him on application to the state claims board.
How do we tell if that could be adequate consideration?
Well, one thing we might do is look to see if lawyers ever enter into such arrangements in other contexts where there is no suggestion of a gift. When we do that, we see arrangements that look an awful lot like this. Lawyers in civil rights and class actions cases do it all the time. They agree to accept fees only if they win and, even then, to limit themselves to whatever fees might be awarded on application to a tribunal, usually the court that decides the case.
That is this case.
In almost a month of public discussion of this matter, I have only heard two responses to this. The first is a non sequitur. It says that those arrangements are different because they almost always involve representation of a plaintiff.
But that doesn't tell us why the client's position in the caption ought to matter. These contracts are almost always with the plaintiff because the governing law generally permits - at least in the great run of cases - only plaintiffs to recover. Not true here. The governing statute expressly permits awards to prevailing respondents (the equivalent of a defendant in an ethics case).
A better - but still insufficient argument - focuses on the likelihood of fees being awarded. Note that this argument can't rest on the fact that fees are awarded only if the client (Justice Gableman) prevails. That's true of all contingency arrangements.
Instead, one must argue that it should have been clear to Justice Gableman and Michael Best that it was improbable that the state claims board would award fees even if he won.
But why would they have thought that? The statute is on the books and clearly permits the payment of fees. The fact that it has only been used - and could only have been used - one time reflects nothing more that ethics complaints against judges are rare, not that this type of arrangement is unusual or that fees were unlikely to be awarded. That they were not fully paid in the only case in which the statute has been - or could be - used doesn't tell us much about what would happen here.
The best thing that this argument has going for it is that it was likely that the legislature would have had to approve a fee award. That does make the recovery of fees improbable. Why would we assume that the state claims board and legislature would not honor the fee request of a sitting Supreme Court justice?
To be sure, there were reasons - including political reasons - for the firm and Justice Gableman not to enter into such an arrangement. If I were in the place of either, I might have chosen not to do it. But it's quite another matter to say that the arrangement was unethical or illegal.
I have yet to read an effective and thorough response that supports the claim of illegality. I have seen references to "smell tests" and "gut checks" and I respect that. But we don't send people to jail or remove elected officials from office for misconduct based on olfactory or gastrointestinal disruptions. I have seen off the cuff ipse dixits from out of state law professors (although Professor Gillers apparently agrees with me that the arrangement was not improper.). But mostly I have seen sneering and snarking - accompanied by legal analysis that is the equivalent of holding up a sign at a football game. I have seen mischaracterization of the arguments that I and others have made and a failure to engage that is more consistent with cheerleading than discourse.
Again, recusal is another matter. More to follow.
He plays it like a guy who went to medical school.
But, in fairness to Dr. Baynton, he's not the only one. Others ahve done the same thing, essentially arguing that Gableman should be subject to professional discipline - (and perhaps even criminal charges under chapter 19) - because the deal that he cut with Michael Best was "too good." The firm didn't, in the view of these two, get "enough" for its services to be something other than a gift.
Think about that for a minute. The argument is that people's careers should be ruined because of a subjective after the fact determination that the deal was just wasn't good enough for the firm.
Dr. Baynton supports this with the reductio ad absurdum suggesting that we'd call it a gift if Michael Best worked for a dollar or a Megabucks ticket. Maybe we would.
Although there is a presumption in the law against requiring that consideration necessary to support a contract to be more than illusory (hence the famous reference to a "peppercorn" being sufficient), we might want to interpret the Judicial Code and Chapter 19 a bit differently. (In fact, I suggested that in one of the first posts I wrote about this.) Perhaps there are some forms of consideration too obviously insubstantial to support the provision of services to a judge or other public official. Maybe a dollar or a Megabucks ticket would fall into that category.
But that's not this case.
This case involved a contingency arrangement in which a lawyer agreed to accept fees only if he won and, even then, only those fees that might be awarded to him on application to the state claims board.
How do we tell if that could be adequate consideration?
Well, one thing we might do is look to see if lawyers ever enter into such arrangements in other contexts where there is no suggestion of a gift. When we do that, we see arrangements that look an awful lot like this. Lawyers in civil rights and class actions cases do it all the time. They agree to accept fees only if they win and, even then, to limit themselves to whatever fees might be awarded on application to a tribunal, usually the court that decides the case.
That is this case.
In almost a month of public discussion of this matter, I have only heard two responses to this. The first is a non sequitur. It says that those arrangements are different because they almost always involve representation of a plaintiff.
But that doesn't tell us why the client's position in the caption ought to matter. These contracts are almost always with the plaintiff because the governing law generally permits - at least in the great run of cases - only plaintiffs to recover. Not true here. The governing statute expressly permits awards to prevailing respondents (the equivalent of a defendant in an ethics case).
A better - but still insufficient argument - focuses on the likelihood of fees being awarded. Note that this argument can't rest on the fact that fees are awarded only if the client (Justice Gableman) prevails. That's true of all contingency arrangements.
Instead, one must argue that it should have been clear to Justice Gableman and Michael Best that it was improbable that the state claims board would award fees even if he won.
But why would they have thought that? The statute is on the books and clearly permits the payment of fees. The fact that it has only been used - and could only have been used - one time reflects nothing more that ethics complaints against judges are rare, not that this type of arrangement is unusual or that fees were unlikely to be awarded. That they were not fully paid in the only case in which the statute has been - or could be - used doesn't tell us much about what would happen here.
The best thing that this argument has going for it is that it was likely that the legislature would have had to approve a fee award. That does make the recovery of fees improbable. Why would we assume that the state claims board and legislature would not honor the fee request of a sitting Supreme Court justice?
To be sure, there were reasons - including political reasons - for the firm and Justice Gableman not to enter into such an arrangement. If I were in the place of either, I might have chosen not to do it. But it's quite another matter to say that the arrangement was unethical or illegal.
I have yet to read an effective and thorough response that supports the claim of illegality. I have seen references to "smell tests" and "gut checks" and I respect that. But we don't send people to jail or remove elected officials from office for misconduct based on olfactory or gastrointestinal disruptions. I have seen off the cuff ipse dixits from out of state law professors (although Professor Gillers apparently agrees with me that the arrangement was not improper.). But mostly I have seen sneering and snarking - accompanied by legal analysis that is the equivalent of holding up a sign at a football game. I have seen mischaracterization of the arguments that I and others have made and a failure to engage that is more consistent with cheerleading than discourse.
Again, recusal is another matter. More to follow.
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