Thursday, December 06, 2007

Who cares about conflicts?

One of the interesting side stories in the virtual schools litigation is that DPI initially approved the school. WEAC then sued Libby Burmaster, in her capacity as Superintendent of Public Instruction, seeking to close the school.

DPI then reversed itself. In December 2004, Burmaster moved for summary judgement against herself.

Why the reversal? I don't know but I do know, that when Burmaster ran for relection in 2005, WEAC spent over $340,000 in her behalf.

Did she go in the tank for WEAC support? I think it's more likely that Burmaster just instinctively shares every assumption of WEAC and the educatuion bureaucracy. If I recall correctly, they supported her in 2001 as well.

But this sure looks odd. Why aren't our friends at the Wisconsin Democracy Campaign upset? Where is One Wisconsin on this?

18 comments:

Marcus Aurelius said...

Gregg Underheim in his bid for the Burmaster's job noted the same thing. The lawsuit named DPI as a co-defendant and here is the DPI filing Amicus briefs on behalf of the plaintiffs.

karl marx said...

Not to worry, Russ Feingold and Jim Doyle are very very concerned about campaign finance.
They'll fix this. Or was this already "fixed".

Anonymous said...

Re: your ego wall . . .

Dawn Eden called the article you wrote "brilliant", she didn't call you brilliant.

All the other quotes are about you personally, so by including that one without explanation, it makes it look like she was calling you brilliant, which she wasn't.

Mike Plaisted said...

Rick, I am really disappointed in this post. Leave the stupid smears to Sykes and Robinson. Is your legal position really that weak that you have to resort to this?

Burmaster probably looked at the statutes and figured DPI shouldn't have signed off on this in the first place. I mean, if you read the statutes, as the Court of Appeals did, what other conclusion could you draw?

The result would have been the same whether DPI filed an amicus or not. Stick providing legal cover for the right-wing schemes -- you're still wrong, but it's more up your alley.

Jo Egelhoff, FoxPolitics.net said...

Thanks for pointing this out Rick. Excellent. Thanks for your helpful analysis of the decision; I used it on FoxPolitics News yesterday and in the day's blog. Looking forward to your talk in Madison next week.

Jo Egelhoff, FoxPolitics.net said...

Thanks for pointing this out Rick. Good stuff. I appreciated your analysis of the decision as well - and included it in yesterday's FoxPolitics News and in the day's blog. Looking forward to hearing your talk in Madison next week.

Rick Esenberg said...

Mike

First, DPI did not file an amicus brief. It was, through the Superintendent, a defendant.

It's not a smear. As I said, my guess is that Burmaster, to paraphrase Charles Wilson, believes that what is good for WEAC is good for Wisconsin. My point is that there are folks who are up in arms that Annette Ziegler would sit on a case in which WMC is interested because they spent heavily to get her elected. This, we are told, creates the appearance of impropriety.

Yet here, the prime regulator of education in this state - someone who regularly acts on matters with direct and substantial effect on the teachers union - had that union spend a ton of money on her behalf.

I raise this - and I raised the case of Jennifer Morales - because I don't think that most of the folks who are all over Ziegler really give a fig about ethics. They just want her off the court or off cases where they think she will vote in a way they don't like.

The response - either silence or a claim that Burmaster and Morales are right (something that ought to be irrelevant to the ethics issue) proves my point.

Rick Esenberg said...

Anon 9:43

You are taking the ego wall way too seriously.

Bob Dohnal said...

Course she went in the tank for WEAC, hasn't anybody watched how politicans jump up and down for WEAC from Doyle on down.?

Anonymous said...

Rick said: "I don't think that most of the folks who are all over Ziegler really give a fig about ethics."


You're wrong about that and people won't oppose you if you help to clean up the mess rather then fight it.

Mike Plaisted said...

Since when is the elected adminstrator of an agency held to the same conflict-or-appearance-of-conflict standard as a Supreme Court justice? Not to mention a school board member? Both Burmaster and Morales make decisions every day about issues important to WEAC and MTEA, or their friends and partners. Are you saying they should recuse themselves? If so, you are putting every school board member and potential superintendent out of business.

Judicial ethics standards are necessarily different than those of elected school board members and the state superintendent. The fact that Ziegler is in the bag for the WMC -- although they are supposedly non-partisan races, she should have a (WMC-West Bend) after her name -- is not nearly the same as what Burmaster thinks is right in the performance of her duties.

But, your little post gave Sykes another reason to cite to you as a "law professor" as he spreads his bile this morning. That's what's it's really all about, isn't it?

Rick Esenberg said...

But, your little post gave Sykes another reason to cite to you as a "law professor" as he spreads his bile this morning. That's what's it's really all about, isn't it?

Well, being a "law professor" is my day job right now. I have the little office in Sensenbrenner Hall and substantially smaller paycheck to prove it. I love it and I hope they let me continue.

As for "bile," if disagreement with the court's reasoning in this case or even advocating the continuation of an educational option that seems to be working very well for those who choose it is "bile" then you have an oddly circumscribed view of what constitutes civil public discourse.

Sure there are differences between judges and legislators and regulators. That would be an interesting discussion some time. But you know as well as I do that the Judical Code of Ethics does not require either Justice Butler or Justice Ziegler to recuse themselves in the Menasha case.

Those who argue that she should recuse emphasize the appearance of impropriety. WMC spent heavily on her behalf and so she might follow WMC instead of the law.

But, of course, the exact same argument can be made with respect to Burmaster who may - or who may appear to be - regulating in the interest of the union that spent so much to get her elected.

Don't get me wrong. I don't think either one of them has to bow out. We had an election for superintendent. WEAC went all in for Burmaster as was it's right. She won. She gets to be the Superintendent of Public Instruction.

If WEAC goes all in for Justice Butler (or launders it through the Greater Wisconsin Committee) and he wins, are you going to say that Butler has to recuse himself from this case or the next education financing case? I'm not.

Rick Esenberg said...

But, your little post gave Sykes another reason to cite to you as a "law professor" as he spreads his bile this morning. That's what's it's really all about, isn't it?

Well, being a "law professor" is my day job right now. I have the little office in Sensenbrenner Hall and substantially smaller paycheck to prove it. I love it and I hope they let me continue.

As for "bile," if disagreement with the court's reasoning in this case or even advocating the continuation of an educational option that seems to be working very well for those who choose it is "bile" then you have an oddly circumscribed view of what constitutes civil public discourse.

Sure there are differences between judges and legislators and regulators. That would be an interesting discussion some time. But you know as well as I do that the Judical Code of Ethics does not require either Justice Butler or Justice Ziegler to recuse themselves in the Menasha case.

Those who argue that she should recuse emphasize the appearance of impropriety. WMC spent heavily on her behalf and so she might follow WMC instead of the law.

But, of course, the exact same argument can be made with respect to Burmaster who may - or who may appear to be - regulating in the interest of the union that spent so much to get her elected.

Don't get me wrong. I don't think either one of them has to bow out. We had an election for superintendent. WEAC went all in for Burmaster as was it's right. She won. She gets to be the Superintendent of Public Instruction.

If WEAC goes all in for Justice Butler (or launders it through the Greater Wisconsin Committee) and he wins, are you going to say that Butler has to recuse himself from this case or the next education financing case? I'm not.

Anonymous said...

You are so misreading the public and its concern about Ziegler's ethics -- or lack thereof. And that you equate an administrative agency head to a justice on the Supreme Court is just astonishing.

This blog sadly has gone the way of others that began well but just don't matter anymore. Too bad; your earlier takes on legal decisions were useful, because they were fair and balanced -- and based in evidence. And they were appreciated.

Mike Plaisted said...

Please, Rick. The difference between a Supreme Court Justice and the superintendent in terms of the effect of conflicts are wide and deep. DPI can do what they think is right, conflict or no -- but the obvious difference is they don't have the last word. The last word comes from the courts, which is why the appearance-of-conflict concept is so important.

I know WMC spent millions of dollars to get Ziegler (WMC-West Bend) elected, but they should not benefit from that cozy relationship in cases in which they are directly involved (including amicus).

There is a difference between that and my friend Louis Butler's contributions from teachers, me, etc. Those contributions, fully disclosed, affect his ability to participate on a case-by-case basis and, he being one of the most ethical guys on the planet, I trust his judgement.

Louis Butler owes his position to no one group. Ziegler can't say the same.

Rick Esenberg said...

There is a difference between that and my friend Louis Butler's contributions from teachers, me, etc. Those contributions, fully disclosed, affect his ability to participate on a case-by-case basis and, he being one of the most ethical guys on the planet, I trust his judgement.

This proves my point.

My hypothetical was not that lots of individuals make litte direct contributions but that WEAC spends lots of money on Justice Butler's behalf (it almost certainly will.

I take it that you still don't think he should have to recuse himself from cases that affect its vital interests.

I don't either. It's up to him to decide if those contributions truly influence his ability to be impartial. If he decides that they do not, I am going to give him the benefit of the doubt.

But I apply the same rule to Annette Ziegler. I don't see how you can distinguish the two cases on any basis other than that you like WEAC and Justice Butler and don't like WMC and Justice Ziegler.

But that - or the fact that someone is your friend and you trust him - can't be the standard.

Mike Plaisted said...

Louis Butler's ethical strengths can stand any test -- don't take my word for it.

There is a difference between accepting money from your natural frinds and supporters and being a bought and sold product of the WMC. WMC sought to get Ziegler elected and they did it. They get the credit (ergo the ID "Justice Ziegler (WMC - West Bend)), but they should not get the direct benefit. They should have known that when they did it, and it was Zielger's duty to know. But, as we know, she's failed that test before.

Rick Esenberg said...

Mike

I think my point is made. I am not attacking the ethics of Justice Butler (who I am sure is as honest and upstanding as you say) - or anyone else. But the standards for recusal can't turn on an assessment of the moral qualities of individual judges. You know that.

Nor can they turn on whether the contributor is a "natural ally." I agree that WEAC is a natural ally of Louis Butler. I can see why they would support him. It's rational to think that his way of approaching legal issues is going to help them in more cases than it hurts.

But why isn't WMC a natural ally of Annette Ziegler or other judicial conservatives? It may rationally concude theat their approach to legal issues is going to serve issues that they care about in more cases than it hurts.

I can't help but think that in this (and in your comments about Mike Dean), you are not allowing for the fact that people who disagree with you might also be motivated by a sincere belief that their views better serve the common good.