Saturday, October 31, 2009

More on the recusal rules

I didn't have a lot of time to explain why I think the state supreme court seems to have gotten it right in rejecting a proposed rule changes advanced by the League of Women Voters and retired Justice William Bablitch and in adopting changes advanced by WMC and the Wisconsin Realtors Association.

The LWV proposal was always a nonstarter. It would have required recusal whenever a party or a lawyer in a case had made a contribution in excess of $1000.00 or engaged in a "mass communication" on behalf of a judicial candidate. A mass communication could have consisted of as few as 50 phone calls, letters or e-mails. That would have made it impossible to raise a meaningful sum of money in judicial campaigns in all but the smallest counties. It was a massive assault on public participation and it is proposals like this that have rendered groups like Common Cause, the LWV and the WCD largely irrelevant in making public policy.

A proposed amendment by former Justice William Bablitch was more reasonable. It would have required recusal for direct or indirect contributions amounting to $10,000or more(cash or in kind) by an attorney or party with a direct or indirect interest in the case.

I think this still goes too far - particularly in large counties and definitely for state wide races. Because it applies to "in kind" expenditures, I would think that it would require recusal for any significant GOTV effort or any significant communication of an endorsement by an advocacy organization. It would, again, make it extremely difficult for their to be significant public participation in judicial elections and would strongly tilt the playing field in favor of incumbents.

This is not to say that a $10,000 contribution or expenditure might not create a circumstance in which recusal is appropriate. It might - particularly in a circuit court race. But I don't think it is fair to say that such a contribution would always create a potential for bias such that recusal should be warranted notwithstanding a judge's subjective determination that she can decide the matter impartially.

But the largest problem, I think, is the suggestion that an "indirect interest" might create cause for recusal. While I would be reluctant to say that can never be so, I am concerned that - without further definition - it may be read to imply a broad duty to recuse based upon supporter's ideological interest. Without getting into the details, this might be at odds with the what I believe to be the best application of first amendment jurisprudence to this area of the law, i.e., that the predispsotion to a particular legal position is not improper bias.

Justice Bablitch himself conceded that the term "indirect support" was problemantic and in need of further definition. But I think there is a problem with the endorsement of recusal standards that read more broadly than they can or should be applied. They permit unwarranted attacks on the legitimacy of the courts and the integrity of judges.

And that brings us to the rule changes that the Court did adopt. They most certainly do not amount to the Court "thumbing its nose" at the United States Supreme Court decision in Caperton. Although they might be improved, I think that the are properly read as perfectly consistent with that decision. They do not mean that contributions and independent expenditures can never create a potential for bias such that recusal is in order.

Rather, they make clear that recusal cannot be required "solely" due to lawful endorsements, contributions and independent expenditures. That seems right to me and saying so may have been necessary given some of the irresponsible calls for recusal made by groups like the WDC and OWN. The idea that Annette Ziegler ought to have recused herself because WMC filed an amicus brief in a case was wholly without merit and would have created an unworkable precedent.

I don't think that the rule means that contributions and expenditures are to be ignored in assessing a question of recusal or that there cannot be circumstances in which they do create a potential for bias in which recusal is necessary. But the mere fact that contributions and expenditures have been made cannot, without more, require recusal.

Having said that, it's not clear to me that the adopted rules could not be improved. They could be clarified to, for example, more clearly state what, at least in my view, they are intended to mean (e.g., making clear that they do not say lawful expenditures can never warrant recusal). They might be extended to offer more guidance. But they are, I think, better rules than the alternatives before the court.

Cross posted at Marquette University Law School Faculty Blog

Conference on the Wisconsin Supreme Court: Review and Preview

At the beginning of this semester, I proposed that the law school host a conference on the Wisconsin Supreme Court. Dean Kearney lent his support and we were fortunate enough to obtain the co-sponsorship of the Appellate Practice section of the State Bar of Wisconsin.

So yesterday we hosted a sold out gathering of over 100 lawyers for "Conference on the Wisconsin Supreme Court: Review and Preview." Our meeting began with a plenary panel discussing the question of judicial recusal predicated on campaign contributions and speech. The discussion was moderated by the Hon. Diane Sykes (L'84) of the Seventh Circuit Court of Appeals and the panelists included Attorney Robert Henak (who has filed motions to recuse Justice Michael Gableman is connection with certain campaign ads and support), along with our own Chad Oldfather and me. Much of the discussion focused on the implications of the recent decision in Caperton v. A.T. Massey Coal Co. and the recent consideration by the Wisconsin Supreme Court of competing rules on recusal.

This discussion was followed with breakout panels discussing business and criminal law cases, respectively. The business discussion was chaired by Professor Ed Fallone and the panelists were Foley & Lardner partner and adjunct professor Thomas L. Shriner, Jr., and prominent bankruptcy lawyer Len Leverson. Our criminal panel was moderated by Dean Michael O'Hear and featured DOJ lawyer Greg Weber (L'87), Madison defense attorney and adjunct professor Dean Strang and former circuit judge Michael Brennan.

The group then came together for a plenary session to discuss the ongoing debate over th role of the judiciary in the context of the court's recent history. This panel was moderated by Michael Brennan and consisted of Lester Pines, an experienced supreme court advocate, the Hon. Lynn Adelman of the United States District Court of Wisconsin and me. The group tried to clarify terms like "activism" and "restraint" and considered their use in relation to judicial campaigns.

Break our sessions followed lunch. A great discussion of the court's cases in the civil rights area, largely focused on Coulee Catholic Schools v. LIRC, was moderated by Dean Strang and included Reinhart Boerner shareholder Dan Kelly and ACLU lawyer Karyn Rotker. At the same time, a panel on the court's liability cases was chaired by our own Jack Kircher (L'63) and featured two adjunct professors, Habush partner Tim Trecek (L'93) and Ralph Weber of Gass Weber Mullins. The group engaged in a lively discussion of the movement toward adoption of the Third Restatement in product liability cases.

The group came together one last time to preview cases on the Court's docket for the '09-'10 term. Panelists were Tom Shriner, Lester Pines and adjunct professor and chair of the Appellate Practice section, Anne Berleman Kearney, principal of the Appellate Consulting Group. Cases selected by the panelists illustrated the incredible breadth of the court's work.

In addition to Dean Joseph Kearney who generously and enthusiastically supported this project, I would like to thank our participants and all who helped put it together including Christine Wilczynski-Vogel, Carol Dufek, Ryan Rau, Kay Amhaus and Debbie Moore. I would also like to thank chair Anne Kearney and her colleagues on the board of the Appellate Practice section for their generous co-sponsorship and support.

To all who participated or attended, we'll see you next year in Eckstein Hall!

Cross posted at the Marquette University Law School Faculty Blog.

Thursday, October 29, 2009

SCOWIS Conference Sold Out

If you snoozed, you lost. Tomorrow's conference on the Wisconsin Supreme Court at Marquette University Law School is sold out. Unfortunately, it cannot be podcast due to some technical problems. But you can read the highlights here.

The Supreme Court Gets It Right

It won't surprise anyone that I think the state Supreme Court did the right thing yesterday in rejecting the recusal standard proposed by the League of Women Voters and clarification of what, in and of itself, should not require recusal. The latter was, I think, required by what I think has been wildly irresponsible - and ideologically imbalanced - allegations and hints of bias from groups like the Wisconsin Democracy Campaign and One Wisconsin Now.

So I am also sympathetic to Justice David Prosser's impatience with Michael McCabe. The problem is not simply Justice Prosser's understandable irritation at the partisan way in which WDC pushes its "reform" agenda, but the way in which WDC itself undercuts public confidence in the court by its cynical promotion of extremely naive notions about the way in which the process works.

There may be judges who would sell themselves for the price of a lawful campaign contribution or endorsement but I have yet to meet one. It is certainly the case that elected judges worry about reelection. One judge has famously referred to the subject as a crocodile who sits in the bathtub while you're shaving. You try to ignore him, but you can't.

But nothing proposed by LWV would change that. If it worked the way folks like McCabe want it to, it would hand judicial elections to incumbents and insiders. What it would really do is complete the process of handing them to independent groups.

Monday, October 26, 2009

Shark Music: I won't stop

As I have shamelessly promoted here earlier, this Friday we are holding a conference on the past and future term of the Wisconsin Supreme Court at Marquette University Law School. If you are a lawyer in need of CLE or some one interested in the court or Wisconsin constitution, please come. I am in awe of the great lawyers who have agreed to participate.

This week I'll post a little on the state constitution, but will also offer some pertinent musical selections. (Music about the Wisconsin Constitution? Some would shrink from the challenge. Not me.)

Our state's constitution has an oft amended internal improvements clause, restricting the ability of the state to "contract any debt for works of internal improvement, or be a party in carrying on such works." There are lots of qualifications and judicially approved "work arounds" of this provision and, for reasons that my students can recite, I don't think it has much meaning today. But its genesis was in concern over the way that other states (as of the mid 19th century when our constitution was adopted) had gotten into financial difficulty over what we would call public works projects. One oft cited example was New York's construction of the Erie Canal. Bruce Springsteen has recently done a fantastic version of Thomas Allen's 1905 composition:

Sunday, October 25, 2009

Halloween Is Here

It's the Season of the Witch

Welcome to My Nightmare

Well, honey, it's no rock and roll show

But the beat is coming nearer

So watch out for the boogie man

Friday, October 23, 2009

Obama's Fox Folly

Obama's war on Fox News is just plain stupid. It is, of course, utterly without merit. Fox News offers reportage and shows featuring opinion journalism and interviews hosted by conservatives. The news hours are fairly straightforward and even the opinion shows tend to feature a diverse set of guests. In this, I fail to see any distinction between Fox and, say, MNBC where the hosts tend to be liberal. Keith Olberman and Rachel Maddow are not any more "mainstream" or "objective" or "civil" than the Fox hosts.

But put that aside. You have a reputation for being coddled by the media. You are increasingly obtaining a reputation for being prickly when challenged? Why would you underscore those impressions by picking a fight with a news network who is "too critical"?

And why would you create a martyr? People in the TV news business will tell you that the Fox audience is far more politically diverse than that of the other cable news networks. Maybe that's why the administration feels the need to marginalize it, but isn't the greater danger that you will simply seem paranoid and imperious. Maybe "Nixonian" doesn't have the freight it once did, but the character flaws that it stood for are still very unattractive.

Wednesday, October 21, 2009

The court is split, but on what?

I am not sure what Ed Garvey thinks he knows in suggesting that Mike Gableman's colleagues are split three to three.

Split on what?

What to do with the recommendation in the pending disciplinary action? It hasn't been made yet.

Whether to require him to recuse himself in criminal cases? It would surprise me if there are even two votes for that. And, if I'w wrong, how many votes will there be for the proposition that the Chief Justice who ran an ad in which she was promoted as "law enforcement's ally" ought to step down in criminal cases?

Whether to recuse himself in what Garvey calls "cases involving WMC?" If, by that, he means cases in which WMC has taken a position or filed an amicus brief, I doubt there would be even one vote. And, if there is, then how many cases will require require recusal because of the interests of public employee unions, casinos, plaintiffs lawyers, etc.? Who needs a Supreme Court anyway?

Ed seems to think that the Gableman campaign's now infamous "loophole" ad won the election. I doubt that. It was, as I understand it, a very small buy (the campaign had little money) and most of the times that it was ever ran was in the context of the controversy around it. I suspect that hurt Gableman (some politicos have told me that they think it stopped his momentum and almost beat him)in that the average voter simply apprehends that a candidate has been accused of doing something wrong.

Garvey finishes with the white whale of "reform." We should have public financing. But, as I explain in a forthcoming piece in the Harvard Journal of Law & Public Policy, public financing schemes are not likely to work because independent money will swamp the publicly funded candidates (just as it has swamped the privately financed campaign of the candidates under our present system).

If you want to hear a better discussion of these issues (from the perspective of both the right and left) come to Marquette University Law School on October 30.

In fact, maybe Ed should come too.

First Annual Conference on the Wisconsin Supreme Court

Pne of the many reasons blogging has been light to nonexistent here is that I have been organizing a CLE seminar on the Wisconsin Supreme Court which will take place at Marquette University Law School on October 30. If you are a lawyer, we're applying for five CLE credits for 40 bucks - lunch included. If you haven't signed up yet, now is the time.

Conference on the Wisconsin Supreme Court:
Review and Preview
Sponsored by
Marquette University Law School and
Appellate Practice Section of the State Bar of Wisconsin

Friday, October 30, 2009
Marquette Law School – Sensenbrenner Hall, 3rd floor
8:15 a.m., registration and coffee
8:45 a.m., program begins
3 p.m., program ends

$40 per person
Lunch will be provided

Limited space
Reserve your spot by October 16.
5 CLE credits applied for

This conference will review the 2008-09 term of the Wisconsin Supreme Court, preview the term just begun, and address ongoing matters concerning the role of the Court and the impact of campaign speech and finance on its work.

Panels will address the Court’s past term in the areas of business law, torts, and product liability; substantive and procedural criminal law; and public law. Separate panels will address the ongoing debate concerning the Court’s jurisprudence and questions of judicial independence in the context of recent election cycles and the United States Supreme Court’s developing jurisprudence on due process and free speech, including the 2009 decision in Caperton v. A.T. Massey Coal Company. The tentative schedule follows here.

8:45 a.m., Welcome, Dean Joseph D, Kearney

Session 1—Plenary

Speak Up and Stand Down?
Judicial Elections and Independence After Caperton

Hon. Diane S. Sykes, L’84
United States Court of Appeals for the Seventh Circuit

Richard M. Esenberg
Marquette Law School

Robert R. Henak
Henak Law Office, S.C.

Chad M. Oldfather
Marquette Law School

Session 2—Concurrent Sessions

Business Cases During the 2008-09 Term

Edward A. Fallone
Marquette Law School

Thomas L. Shriner, Jr.
Foley & Lardner
Adjunct Professor of Law

Leonard G. Leverson
Leverson & Metz SC

Criminal Law Cases During the 2008-09 Term

Michael M. O’Hear
Marquette Law School

Michael B. Brennan
Gass Weber Mullins LLC

Greg Weber
Wisconsin Department of Justice

Session 3—Plenary

Whither Activism and Restraint: Has the Court Changed and How?

Michael B. Brennan
Gass Weber Mullins LLC

Hon. Lynn S. Adelman
United States District Court for the Eastern District of Wisconsin

Richard M. Esenberg
Marquette Law School

Lester A. Pines
Cullen Weston Pines & Bach LLC

LUNCH (noon, to be provided)
Session 4—Concurrent Sessions

Liability Cases in the 2008-09 Term

John J. Kircher
Marquette Law School

Timothy S. Trecek, L’93
Habush Habush & Rottier SC
Adjunct Professor of Law

Ralph A. Weber
Gass Weber Mullins LLC
Adjunct Professor of Law

Civil Rights and Liberties

Dean A. Strang
Hurley Burish & Stanton
Adjunct Professor of Law

Daniel R. Kelly
Reinhart Boerner Van Deuren S.C.

Karyn L. Rotker
American Civil Liberties Union Foundation of Wisconsin

Session 5—Plenary

A Preview of the 2009-10 Term

Richard M. Esenberg
Marquette Law School

Anne Berleman Kearney
Appellate Consulting Group
Adjunct Professor of Law

Lester A. Pines
Cullen Weston Pines & Bach LLC

Thomas L. Shriner, Jr.
Foley & Lardner
Adjunct Professor of Law

Wednesday, October 14, 2009

When the Answer is No: Constitutional Protection for Faith Healing?

The tragic case of Kara Neumann highlights one of the problems with robust protection for the free exercise of religion. Kara died of untreated diabetes because her parents chose to pray rather than take her to the doctor. Both have been convicted of second degree reckless homicide. How does their prosecution square with robust protection of religious freedom?

The difficulty with strong free exercise protection is not simply how to cabin the freedom (by saying that the state may restrict it only if necessary to serve a compelling state interest) but how to define what constitutes a religious claim and to assess the strength of the religious claim asserted. The problem is that the notion of religious freedom cuts against the evaluation of the strength or reasonableness of religious claims and that leaves us with a potential universe of claims that is limited only by Revelation or imagination. That is no limit at all.

This is, I think, one of the reasons that the United States Supreme Court has not afforded generous protection to free exercise, holding that neutral laws of general applicability not aimed at suppressing religious exercise are not subject to heightened scrutiny. But Wisconsin interprets the protection of religious belief and freedom of conscience included in its Constitution differently. It does afford strict scrutiny to the substantial burdens on the free exercise of religion.

State law prohibits charges of child neglect based solely on healing by prayer. But it provides no such exemption for more serious charges such as reckless homicide. There are, I think, two principal questions.

First, must the state permit parents to heal by prayer? My own view is that the state has a compelling interest in protecting life and that interest can justify interfering in parental prerogatives.

Second, does a more robust protection for religious free exercise require any - or a broader - exemption from criminal prosecution? It is, after all, one thing to say that one has no right to deny medical treatment for one's child and another to say that, if one does so, one should be prosecuted. Not everything that can be prohibited (or prevented) ought to be criminalized.

Perhaps Wisconsin has it right. Maybe the state's interest in prosecuting such conduct does not become compelling until it inflicts the more substantial injuries that support a charge other than child abuse, such as reckless homicide or the infliction of substantial bodily injury.

Cross posted at Marquette University Law School Faculty Blog.

Sunday, October 11, 2009

Sunday Music - Nobel Laureates Division

The nominees:

And the winner (because the 15 year old Shark had a crush on her):

Nobel is same old

Although the award itself was bizarre and self destructive, the debate following Obama's Nobel Day is of a piece with what we've been seeing for quite some time.

First, there is still the effort - diminishing but still breathing - to hang on to the Transcendent Obama - the figure who is salvific by virtue of who he is rather than what he does. The DNC trotted that out, repeating the tired notion that opposition to the President is opposition to the nation. We have to feel pride in the President's honor or be accused of "throwing our lot in" with the Taliban and placing politics above patriotism.

We have to take pride in an award that everyone agrees (and the Nobel Committee concedes) was given to the President not for his accomplishments, but because the Norwegian leftists who hand it out want to encourage what they understand to be his policies. Whether or not we believe that the policies that the Committee sought to endorse would be disastrous for the nation and the world, we have to celebrate the award.

We have to - at the risk of suggestions of treason - because ... why? We have to celebrate Obama and his policies (for there is nothing to be "proud of" here but the policies)because Obama is America? Geez, if you don't want to encourage over the top Hitler references, that's not a good approach to take.*

The second theme is ... see ... the world loves us now. No, they don't. We are the same as we always were. What they would love is an America that does not use its power in support of its interests. What they would love is an America that, if it offers its power in support of world peace, does so at the direction of and in service to a mythical international community.

Maybe that would be a better America but whether it would or would not has nothing to do with whether European socialists think so.

The third - advanced by conservatives - is that this shows that Obame is headed in precisely the wrong direction. Think of it as the mirror image of the second theme. When Scandanavian socialist internationalists love us, something is very wrong. Again, the truth of the matter is or is not in its substance and not in the company it keeps.

Finally, it advances the current political theme that Obama is a joke. It isn't merely that he has not accomplished anything. There is, after all, still a long way to go. The theme has power because he became President without really accomplishing anything of Presidential stature and (this is critical) he and his supporters repeatedly act like he is ready for Mount Rushmore. Never has so much been claimed by so many for so little.

And this brings me to a point of speculation. Are the folks in Oslo really that clueless? This prize does not help Obama. Couldn't they see that? Did they really bestow this award without any communication with the White House? Are they that impressed with themselves?

*Die Partei ist Hitler - und Hitler ist Deutschland, gerade da Deutschland Hitler ist! - Rudolph Hess (1934)

Friday, October 09, 2009

Norway loves Obama

At least President Obama had the grace (or at least the political instinct) to acknowledge that he had not really done anything to earn the Nobel Peace Prize. The Prize has been largely devalued by the tendency of the Norwegian politicians who award it to use it for political purposes. This year they made that intention quite explicit. They wanted to "respond" to what they see as Obama's change in US foreign policy.

But what is that change? I guess that Obama has made clear that he would not have wanted to waterboard those three Al Qaeda operatives. He has given some speeches that, depending on your perspective, present either a "kinder and gentler" America or a weaker one unwilling to assert its moral authority and military power in service of its own interests or those of democracy - at least in a way that is not endorsed by an international "consensus."

It is possible, I suppose, that this approach might lead to a greater degree of world peace. But there is not much historical reason to think so. And there is reason to believe that it will lead much injustice to go undeterred. As Jonah Goldberg observes, there is an irony to today's announcement:

The only thing that really bothers me is that this comes just days after
the Obama administration turned a blind eye to the Dalai Lama and told the world
that it's at least considering a separate peace with the Taliban. That's
grotesque. Meanwhile, there are real peace activists and dissidents out there
whose dungeons will stay just as cold and dark for another year because of this.
Indeed, this news comes during a year when the Iranian people rose up against
tyranny and were crushed. Surely someone in Iran — or maybe the Iranian
protesters generally — could have benefited more from receiving the prize than
a president who, so far, has done virtually nothing concrete for world

And what is - precisely - that this "response" or statement of support is supposed to accomplish? Is the President supposed to be guided by the sentiments of those who honored him? Are world leaders supposed to be more favorably disposed to Obama initiatives (if there any) as if Iran would have developed a nuclear weapon but, since a Nobel laureate asked it not to ....

Friday, October 02, 2009

Throat clearing at the Times

Other responsibilities have kept me off the blog, so here's some catching up.

In a recent column, National Review's Jonah Goldberg observes that one of the political advantages for conservatives is that the left will never take us seriously. They will never try to understand what we are saying and formulate a response. While that certainly isn't true across the board, it is - and always has been - a large part of the progressive response to political challenge.

New York Times columnist Thomas Friedman is worried about the tone of our political debate and frets that political opposition has become so hyperbolic that the outs can't recognize the legitimacy of the ins. This makes impossible the unity that he believes is necessary to solve urgent problems. He exploits our fear of political violence.

This would come a little easier if Friedman, now so concerned about intemperate criticism or disturbed rantings against the President Obama had expressed similar concern about the same things directed at President Bush. Joe Wilson should have listened to the President in silence. So should the Democrats (note the plural) who booed the State of the Union Speech in 2005. Obscure facebook pages that discuss assassination are disgusting. But remember that Michelle Malkin had enough material during the Bush 43 administration to fill an ongoing thread on "assassination chic."

Friedman's paean to unity would be a bit more convincing from someone who hadn't just written a column suggesting that one party rule ain't all bad. When you are upset that others are criticizing your side for its statist and technocratic tendencies, you ought to avoid feeding their fears.

Paul Krugman has been on this case all summer and, earlier this week, suggests that conservatives hate Obama more than they love America because of the schadenfreude that greeted the President's failure to capture the 2016 Olympics for Chicago. People at the Weekly Standard cheered the announcement and Rush Limbaugh was gleeful. But the comment that he referred to at the Standard was a bit tongue in cheek, claiming that they cheered Obama's "jingoist" privileging of imperialistic America's grab for the Games. Although Krugman doesn't say so, Limbaugh said he was "gleeful" because he does not want Obama to succeed (that again) in putting into place policies that will hurt the country. If he loses political capital over a failed effort to score points on something as unimportant as Chicago's Olympic bid (over which even Chicagoans were sharply divided), then Limbaugh's glee is understandable.

In any event, had Bush been foolish enough to invest the same political capital in New York's bid for the 2012 games, I suspect that we could have found comparable reactions on the left.

The stunning cluelessness and hypocrisy of those who are claim to have discovered a "disturbing new vitriol" in our political debate is uncontestable. While Friedman says he has concerned about the delegitimization of the President, he is himself engaged in delegitimization of opposition to the President. In that project, he's part of the crowd at the Times.