On another widespread misinterpretation of the significance of a legal development, I know that there are some lefty bloggers who think Ozaukee County Judge Paul Malloy's dismissal of a lawsuit by development partnership Prism alleging impropriety in the award of the Kenilworth Building contract shows that those allegations were "baseless" and that no one acted improperly. Jay Bullock is one.
The allegations may have been baseless, but it is simply not possible to draw that conclusion from Judge Malloy's decision. As Sean Hackbarth suspected in an e-mail query to me on Thursday, the decision had nothing to do with the merits of those allegations.
Malloy was ruling on a motion to dismiss. Essentially, a motion to dismiss says, even if all the allegations in the complaint are true, the plaintiff can't win and, therefore, the case should be dismissed. By definition, it does not pass upon the truth or falsity of what is alleged.
In this case, Malloy found that the matter was "moot." In our legal system, judges generally don't pass upon the legality of things that can no longer be fixed. The case brought by Prism was review of an agency decision under Chapter 227 in which damages are unavailable. All you can do is reverse the agency or tell it to act again.
In this case, however, that wasn't possible because the Kenilworth contract had already been let. In other words, the pork was out of the pen and could not be put back in. Under those circumstances, Judge Malloy concluded, the case is moot. There was, he believed, nothing he could do to fix what had happened (if, indeed, it merited fixing), so there was no reason to proceed.
Although Judge Malloy apparently made some statements from the bench on the irregularity of the process, you can't read much into that either. There was not a full exposition of the merits of the underlying allegations.
In short, the decision means Prism is out of luck. It doesn't tell us a fig about whether there was something wrong with the way in which the Kenilworth contract was awarded.
BONUS OBSERVATION: Nor does it mean anything that the State Department of Justice is arguing that the State Election Board was correct in forbidding Mark Green's transfer of federal funds to his state account. It is the AG's job to represent state agencies. Had the SEB gone the other way, so would the DOJ.
This is a nice attempt at obfuscation:
ReplyDelete"BONUS OBSERVATION: Nor does it mean anything that the State Department of Justice is arguing that the State Election Board was correct in forbidding Mark Green's transfer of federal funds to his state account. It is the AG's job to represent state agencies. Had the SEB gone the other way, so would the DOJ."
Why don't you comment on the new legal theory espoused by the DOJ, namely that current FEDERAL law also forbids the complete transfer?
That doesn't amount to an independent finding by the Justice Department either. Its just part of representing the state's position. That doesn't mean its not right, it just means that it makes no sense to say, as Dem blogger Seth Zlochota did, that "you can add the Wisconsin DOJ to the list of groups and people who think the use of unregistered PAC money by Congressman Green in a state election is illegal." That's like saying, in 1994, that you could "add Johnny Cochrane to the list of people who think OJ is innocent."
ReplyDeleteAs far as the argument from newly enacted federal law, I haven't done the work to say whether that makes sense or not, althoughit does not seem to be obvious.
"As far as the argument from newly enacted federal law, I haven't done the work to say whether that makes sense or not, althoughit does not seem to be obvious."
ReplyDeleteAgain, you dodge. If there is recent federal law which makes the transfer illegal, Green has made a major tactical error by appealing.
Anon
ReplyDeleteNo, I'm not dodging; I'm saying its another question. My point was that the fact that DOJ defends the SEB means nothing. That's its job.
As for the argument from federal law, I assume you are not a lawyer. There is no federal law that expresly prohibits this. What DOJ is arguing is that a federal statute that lists some uses for federal contributions sub silentio (without saying) outlaws federal to state conversions. That may be, but it's hardly self evident. If it turns out that Green is wrong and it does prohibit conversions, then Green will have taken a legal position that a court did not accept. Happens all day. It is not the moral equivalent, as Doyle suggests, of being caught in the Louvre at midnight dressed in black with a flashlight.
And where, oh where, did Green's argument go that the money already was spent? That argument was enough in itself for me to realize that the man is just . . . well, a fool. You can't take that argument to the bank that holds your mortgage, and that much certainly was obvious to every voter.
ReplyDeleteNow, with the court's chastisement that he was wrong to not put the money in escrow within the 10-day deadline of the EB, it seems that -- voila! -- Green has the money and meekly will escrow it as ordered weeks ago.
I can hardly wait for the next sign of floundering in the Green campaign, the next silly argument. . . .