Tuesday, July 27, 2010

Local Blogger Succumbs to Stockholm Syndrome

The MMSD spent over two billion dollars to prevent the dumping of sewage into Lake Michigan without letting it into people's basements.

The deep tunnel was designed to withstand everything but the rare "100 year storm."

Turns out that storm turns out to be weekly.

MMSD now says it will take years to do what the deep tunnel was designed to do.*

But Cory Liebmann is so happy.

When he returned to the city after last week's storm, almost all of the water had drained from his basement. And, then, it took the city only hours to haul away all the stuff that got ruined. His heart is warmed by what his tax dollars have done for him.

Thank you, sir, may I have another?




*Don't even try to tell me that this is an new problem attributable to "leaks" into privately owned sanitary sewer lines. Every one was aware of infiltration and inflow when the deep tunnel was designed.

Monday, July 26, 2010

The Battle of Shirley Sherrod

The Shirley Sherrod fiasco has proven to be a story with legs and combines many of the dysfunctions in our conversations about race.

The clear villain in the story seems to be Andrew Breitbart or whomever edited the tape to leave out parts making clear that Sherrod got over her initial racial hostility and helped the farmer. Although Breitbart says he wanted to show that the crowd was reacting favorably to her description of that hostility, that doesn't justify what was done.

What Breitbart did was refuse to acknowledge the complexity of what Sherrod was saying. That's characteristic of conversations about race which generally end whenever someone decides to hurl allegations of racism.

And that is precisely what happened. The White House (and it was the White House) fired Sherrod with no questions asked. The NAACP denounced her without investigation.
Both undoubtedly did so because, while willing to charge others with racial bad faith, neither wants to be accused of it. Having contributed to a our general hysteria on matters of race, both were hoisted on their own petard.

The media - and not just the conservative media - did the same thing. Here is someone who seems to have said something that is racist. We don't let her explain. We don't consider the context. We jump all over her.

Fortunately for Sherrod, this time the story ended a bit differently. Most of the time one is accused of racism, the charge is practically irrefutable. Here the accusers quickly retreated.

That should be good news, but the hysteria continues. Now Sherrod - with her own participation - has become a political football. Two new narratives are developing. The first is that the improper accusations leveled at a black woman reflect a lack of racial progress. They do, but not in the way that this narrative wants to say. I am certainly am not prepared to declare America's racial wounds to be healed. Intemperate accusations of racism - including the NAACP's own attempts to smear the Tea Party Movement - are all too frequent.

But I'd say they reflect a reluctance to acknowledge the ways in which there has been racial progress and old paradigms of racial oppression are not as useful as they once were.

The second narrative - indulged by the NAACP, Sherrod and folks like Frank Rich - is that the whole affair was a product of the "conservative media" (not just Breitbart) and, in particular, of Fox News. But the facts don't support that. Fox was not the only network that ran with the story and it did not run it until after Sherrod was fired. If the White House and NAACP were "snookered," so was Fox News.

A Lawyer's Lesson on Johnson and Great Lakes Drilling

Some local bloggers just don't want to give up on the notion that Ron Johnson advocated drilling in the Great Lakes and then (horror or horrors!) "flip-flopped" when Russ Feingold ran an attack ad.

A little trial advocacy might help here. Johnson was asked the following question:


"
Do you want to open up more of the United States — the continental United States — to drilling. I mean, would you support drilling like in the Great Lakes for example, if there was oil found there, or using more exploration in Alaska, in ANWR, those kinds of things?"


Were this question to be put to a witness in a deposition or at a trial, many lawyers would object. The question is, we would say, "multiple," i.e., it asks a number of things - should we open up more of the Continental United States, drill in the Great Lakes, drill in Alaska generally, drill in ANWR specifically or do "those kinds of things" in general. In fact, the portion of the question about the Great Lakes is, additionally, hypothetical - would you support drilling in the Great Lakes if oil was found there?

Now a person can certainly answer all of those things, but the idea is that - in an oral exchange - it is unfair and untidy to combine too many questions into one. We can't be sure that the witness will answer all portions of the question and that results in ambiguity.

That ambiguity existed following the WisPolitics interview. Johnson answered generally - saying, without particulars, that we have to go where the oil is. Does that include the Great Lakes? Does Johnson contend that there is recoverable oil in the Great Lakes? We don't really know. Yes, the Great Lakes was specifically mentioned (albeit in a contingent way)but the answer did not specifically address them.

What Feingold did was to take this ambiguity and run with it. That isn't unusual in politics but it is hardly to be commended. What is hard to overlook is that Johnson has now resolved the ambiguity. He did not mean to endorse drilling in the Great Lakes. He does not believe that there is enough oil in the Great Lakes to justify it.

But Feingold continues to feature an ad claiming Johnson does support Great Lakes drilling.

I ask again - why isn't that a lie?

Tuesday, July 20, 2010

SCOWIS To Doyle: Put It Back

The merits of today's decision in Wisconsin Medical Society v. Morgan requires too much legal inside baseball for a general interest blog. The question was, essentially, whether the legislature, having said that the assessments paid by health care providers into the patient compensation fund will be held irrevocably in trust and used only for purposes of the fund and for no other purpose, can retroactively change the rules and grab the money for another reason. The immediate issue was whether this gave the providers a "property interest" in the fund that cannot be taken without just compensation.

There are, I think, doctrinal and policy reasons, based in the enacting statute and its amendments, to say that it did. I think the five justice majority got it right, although I don't think that the dissent had a few points to make.

A couple of things interest me. First, would the consequence of failing to overturn the legislative action been to justify a tax imposed only on health care providers for purpose of the general treasury. Is that OK?

Second, I am interested in the contrast between the dissent of the Chief Justice and Justice Bradley in Morgan and Justice Butler's majority opinion in Doyle v. Dairyland Greyhound Park in which both justices joined. In this case, they would have permitted the legislature to revoke an explicit legislative promise to use funds only for a specified purpose. In Doyle, they held that interpretation of a constitutional amendment to limit a right to renew gambling compacts to which neither party had any contractual right would violate the contracts clause. I am not claiming that the two opinions are irreconcilable but they suggest a tension that must be reconciled.

But these questions probably belong in another forum.

On a less esoteric level, the decision will most certainly make the legislature more skittish about raiding similar funds. And that may require a tad more honesty in the budgeting process. This would be a good thing.

And, although this foolishness, was enacted with a few GOP defections from a Republican controlled Assembly, it's going to be seen as a Doyle manipulation that came up short. Now we have another $ 200 million to make up. It will resonate because it is consistent with the public perception of the Governor. It will hurt the Dems in November.

Monday, July 19, 2010

Shark In Other Places

I never did get around to linking to my op-ed on Elena Kagan. It was another in the series of dueling op-eds with my colleague Ed Fallone. A letter to the editor last week says that I think nomininating a legal progressive is "breaking the rules." I said no such thing. It is exactly what I would expect from a liberal President. My point was simply that we ought to be clear about what is going on and, in my view, the Senate is not obligated to defer to the President's choice.

Nor did I link to my column on transit in last week's Journal Sentinel. I got a lot of e-mail on that one. The best critical points were that the economics of rail could be changed by significant increases in oil prices (agreed) and that there are reasons that rail and highways might not be privately provided. Although I agree with that too. The point is whether the benefits outweigh the cost, not whether rail is publicly or privately provided.

Finally, here is my latest Culture Con column in WI Magazine, deconstructing the President's commencement address at the University of Michigan.

Drilling, lies and videotape

It has long been my firm conviction that most political advertising is conducted in bad faith. GOP Senate candidate Ron Johnson has been drawing criticism for running an ad criticizing Russ Feingold for voting against a ban on drilling in the Great Lakes. Feingold did that, but he also voted for bans on drilling. A fair reading of his record, he claims, would show that he is an opponent of drilling. That's probably so.

But Feingold doesn't have clean hands here. He's run an ad stating that Johnson would "turn over" the Great Lakes to oil companies. The support for the claim is an answer that Johnson gave in an interview with WisPolitics.com in which he essentially said that, since we are currently dependent on fossil fuels and are likely to be for some quite time, we must extract needed resources from where those resources are. His answer did not mention the Great Lakes but the question to which he was responding is said to have used the Great Lakes as an example - although I have yet to see anyone reproduce it and it now seems to be behind WisPolitics pay wall.

It is, I think, a bit of a stretch to turn that into a stated intent to turn the Great Lakes over to oil companies. There is oil under the lakes but not enough to justify drilling for it - so they are not a place where, as a practical matter, oil "is" and so presumably not within those areas where Johnson says we must be willing to go. (Natural gas may be another matter but drilling for natural gas cannot result in oil spills which is what the Feingold ad is scaring us about.)

And even if it was fair (it is certainly legal and customary) to take an isolated remark and pack it to the ceiling, Johnson has now clarified his position. Whatever you might take from his WisPolitics interview, he's made clear that he is against Great Lakes drilling. Yet Feingold continues to feature the ad claiming that he is for it on his campaign website.

Tell me. Why isn't this a lie?

Friday, July 16, 2010

How Toxic is Thomas?

Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.
I don’t know how broad Judge Randa’s holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don’t know that.

A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa’s decision (I’ll do that later), let’s assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.

But here’s where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not “ripe” because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa’s decision is affirmed by the Seventh Circuit (also a “lower” federal court) all federal judges in the Wisconsin will follow Judge Randa.

Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court – if not reviewed by SCOTUS – would resolve it as a practical matter if it found that Thomas does violate the federal constitution.

And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.

Cross posted at Marquette University Law School Faculty Blog

Thursday, July 15, 2010

The Barrett Plan: What Isn't There

Tom Barrett’s proposal for “nonpartisan” redistricting may reduce the degree of “incumbent protection” that takes place in the redrawing of legislative districts, but I think it is more interesting for what it does not do.

There is a movement in the country to have redistricting by commission according to what are generally though to be neutral redistricting principles, i.e., the creation of compact and contiguous districts that, to the extent possible, respect municipal and county boundaries and (perhaps) geographical barriers that seperate one community from another. See. e.g., California’s Voter First Act. These principles restrict discretion in redistricting and, or so the theory goes, minimize the opportunity for political maneuvering. This doesn’t eliminate contention but the establishment of physical requirements reduces the opportunity for gerrymandering to protect incumbents or to maximize the opportunities for the party in power.

That’s not what Barrett wants to do and that’s not surprising. As a general matter, Democratic voters are more concentrated that Republican voters. Contiguous and compact districts will tend to create a smaller number of heavily Democratic districts.
So Barret wants to gerrymander to “maximize” competitive districts. Depending on your theory of representation, this may or may not be a good thing. If you see a legislator as representing people who are in what is, in some sense, an organic community, then membership in that community would seem to be a fairly important principle of districting. If you view legislators as simply a vote in a national or state wide community, then trying to reflect the political balance of that community becomes more important – although that is not the objective of the Barrett plan either.

However, you do that, once you depart from physical criteria and permit gerrymandering for “competition,” the political game is back with a vengeance. There are ikely to be many ways in which competition can be claimed to be “maximized” and these ways are probably unlikely to be politically neutral.

But, more than that, Barrett wants to make sure that districts are drawn with an eye toward creating majority minority districts and this normally results in Democrat majority districts. It would, essentially, operate as an exception to the mandate to create competitive districts by permitting the packing of Democratic voters. This may or may not be required by the Voting Act and may or not operate to the detriment to the Republicans (indeed, sometimes Republicans support it because it draws Democratic voters out of surrounding districts).

My point is that it, along with requirement of “competition,” contributes to, rather than constrains, legislative discretion in the drawing of districts and that opens the door for the political battle that has traditionally been redistricting.

Another curious feature of the Barrett plan is placing the final decision – should the politicians not agree – with the Government Accountability Board. Under current law, a legislative impasse is resolved by the courts. This is not a theoretical matter. State legislative districts in Wisconsin have not been redrawn without going to court since the 1930s. Why the GAB – which is assembled for a different purpose and consists of members appointed by the political branches – is prefereable is not obvious. Why it can be expected to have the resources or expertise to

If past is prologue, the GAB will be redistricting and, under existing doctrine, will be largely immune from judicial review.

Cross posted at Marquette University Law School Faculty Blog

How Toxic is Thomas?

Pat McIlheran has an interesting find in today's Journal Sentinel, commenting on Judge Randa's underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court's Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)


Here's a more expanded version.


I don't know how broad Judge Randa's holding is. The defendant in the case before him did not itself manufacture lead paint pigment but purchased a company who had and assumed its liabilities. It is unclear whether Judge Randa would have reached the same result for a company that had itself participated in the market. The sense I get from his opinion is that he would have, but, for now, we don't know that.


A decision limited to successors in liability would have limited effect, but, without getting into the merits of Judge Randa's decision (I'll do that later), let's assume that it means that Thomas id flat out unconstitutional. The federal constitution trumps the common law determinations of even the highest state courts.

But here's where it gets sticky. State courts are not required to follow the decisions of lower federal courts on questions of federal law. Because the Thomas Court did not consider the precise question reached by Judge Randa (they said it was not "ripe" because the defendants had not yet been found liable for any damages), it is still an open question. Lower state courts might agree with Judge Randa. They might not. If Judge Randa's decision is affirmed by the Seventh Circuit (also a "lower" federal court) all federal judges in the Wisconsin will follow Judge Randa.


Thus, as Pat writes, we may have an extended period of time in which the Thomas is applied in state court but not in federal court. That period of uncertainty could only be definitively resolved by a decision of the United States Supreme Court, although a decision by the Wisconsin Supreme Court - if not reviewed by SCOTUS - would resolve it as a practical matter if it found that Thomas does violate the federal constitution.

And, here we have another twist, the Wisconsin Supreme Court is not the same court that decided Thomas. This may eventually present an opportunity for the Court to abandon Thomas without directly overruling it.

Cross posted at Marquette University Law School Faculty Blog

Monday, July 12, 2010

Illegal Immigrants Are Deported Because They Are Illegal Immigrants

Language surrounding the question of immigration becomes increasingly odd. Today's Journal Sentinel runs a head stating that "More illegal immigrants being deported for lesser offenses, advocate says."

Well, the advocate did say that (although she did not use the term "illegal" immigrants), but she is objectively wrong. The persons in question are not being deported "for" the offenses that have brought them to the attention of law enforcement. They are being deported because they aren't supposed to be here.

The advocate, Christine Neuman-Ortiz, wants to "investigate." Investigate what?

Thursday, July 08, 2010

More Contention on the Wisconsin Supreme Court

Today, the Court finally issued opinions on the recusal rules and the sharp divisions between the majority and minority continue. I wish that would get better. I have an article on judicial recusal coming out in the Wake Forest Law Review, so it's a subject that I have been thinking about. I have the following quick observations on the Court's decision.

First, I think that the rules on the impact of contributions and expenditures are clearly correct - as far as they go. To say that a legal contribution or expenditure cannot be the sole cause of a duty to recuse seems unexceptional to me and is perfectly consistent with the Supreme Court's decision in Caperton (in which Justice Kennedy repeatedly referred to the unusual nature of the facts involved in that case.)

Of course, this is not to say that a legal contribution or expenditure cannot be a factor - perhaps even a predominant factor - leading to a duty to recuse. Caperton, for example, involved a perfectly legal (albeit it very large) independent expenditure coupled with a very significant and imminent case.

To be sure, there is much more to say about what may and may not lead to a duty to recuse - not only with respect to contributions and expenditures, but also with respect to other matters such as candidate speech and support. These are some of the things that I try to address in the Wake Forest piece, although whether and to what extent these matters should and can be addressed by rule (and who should make the rule)constitues a different set of questions.

Second, I think Justice Bradley misses the connection between aggressive recusal rules and burdens on political participation. More than Justice Roggensack, I would address, not only the right to vote, but the rights of expression and association regarding judicial elections and related issues. If the price of speech is that your candidate - if successful - can't act, then your speech has been burdened. While this may be tolerable in the case of individual litigants like the A.T. Massey Coal Co, it becomes more problematic if recusal is based upon support from trade associations and unions.

In fact, some academics have urged tough recusal standards as a way to suppress what they believe to be improper (although constitutionally protected)campaign speech in judicial elections and as a way to return judicial elections to quiet contests of low salience.

Third, the rule regarding solicitation of funds from litigants or potential litigants presents a slightly different set of concerns. While it doesn't seem that it alone should create a duty to recuse (such a rule might very well bar, for example, solicitations sent to a union's membership list or the arrangement of fundraisers in which invitations are sent based upon organizational affiliation or in which potentially interested parties attend and are then asked to contribute), I think that, as the comments suggest, there is a potential such solicitation will to the "something else" that may create a recusal issue.

Fourth, I think the emphasis on who wrote the rule is more about atmospherics than substance. If the rule is a good rule, it doesn't matter that WMC or the Realtors proposed it. It it is a bad rule, it'd be just as bad if written, in the first instance, by members of the Court.

Wednesday, July 07, 2010

One way or another, the Gableman Case Is Over

The more I look at the writings in Judicial Commission v. Gableman, the more I become convinced that the case should be over. To suggest otherwise seems to require the Judicial Commission to do something that it cannot do, that makes no sense and that cannot alter the deadlock on the Court. Here's why.

The Abrahamson group (I refer to the two groups by the name of their senior member) purports to dismiss the three judge panel and remand the case to the Judicial Commission. As a preliminary matter, it can do neither because a majority of the participating justices have not so ordered. Ties don't count as wins.

The Abrahamson group would get around this problem by treating the recommendation as a motion for summary judgment that has, by virtue of a deadlock, not been granted and that would somehow leave the matter pending below. But that is not quite right. The motion for summary judgment was directed to the three judge panel and resulted - not in a motion - but in a recommendation. That recommendation has not been accepted but that is not equivalent to the denial of a motion for summary judgment.

It might have been akin to denial of such a motion if a majority of the participating justices had remanded the case for further fact finding. But, again, that didn't happen and it is clear from their writings that neither the Abrahamson or Prosser group believes that further factfinding is necessary. More on this in a moment.

The Abrahamson group goes beyond a simple assertion that the motion for summary judgment has been denied. It tells the Judicial Commission to treat the complaint "as if were just being filed." But it cites no authority that would permit the Commission to do so. The reason that the group wants to do this is to take the matter from the three judge panel who, in its view, got it wrong and could not reasonably be expected to do anything differently should the matter be tried. (This is because, as noted below, there appear to be no factual assertions advanced by anyone that would - or, given the reasons they have given for the panel's decision - should alter the outcome.) The Abrahamson group tells the Commission that "it needs" to request a jury (and, oddly, not only a jury but a jury of twelve - something that is not required even if a jury is properly requested).

This seems to contradict the relevant statute which provides that "before the commission files a formal complaint or a petition under s. 757.85(5), the commission may, by a majority of its total membership not disqualified from voting, request a jury hearing." Wis Stat. sec. 757.87(1)(emphasis supplied) The statute goes on to say that "[i]f a jury is not requested, the matter shall be heard by a [panel ...." Id.

In this case, the Commission did not request a jury and, therefore, the matter was submitted to the three judge panel. Absent some breakthrough in quantum physics, there is obviously no way that the Commission can now go back and request a jury before the complaint was filed.

Perhaps an argument can be made to read the statute to permit a jury request at this stage in the proceeding. A realist might, after all, point out that the statute means whatever the state's highest court says it means.

And there's the rub. A majority of the participating justices has not said that the Commission may now request a jury trial. In fact, three justices have said that it may not and that alone is enough to render any such trial meaningless. Those three justices believe - and will hold - that a jury trial was unlawful and presumably will not accept any recommendation based upon such a trial.

Putting that aside, a jury trial in this case seems almost certain to accomplish nothing. No participant in the process to date - not the Judicial Commission, not Justice Gableman, not the Abrahamson group and not the Prosser group - has thought that there are any unresolved issues of material fact. What they have disagreed on is how to read the statute, its application to the undisputed facts and, in the case of Judge Fine, its constitutionality as applied to this case. If you take seriously what the Prosser group and Abrahamson group said in their writings, a jury verdict won't change anyone's mind. In fact, it shouldn't change anyone's mind.

Assume that a trial is held and a jury finds that the ad was not false. The Abrahamson group will not - and, given the rationale set forth in its writing - should not change its position. These three Justices believe that the undisputed facts establish a violation. They were willing to, in effect, grant summary judgment to the Commission because they do not believe that there is any issue of material fact as to Justice Gableman's liability. If you believe that there is no issue of material fact on the question of a violation, then the matter ought not to be submitted to a jury and any verdict that finds no violation should be set aside.

Conversely, if a jury finds that the ad was misleading, the Prosser group will not - and given the rationale set forth in its writing - should not change its position. They believe that there are no material issues of fact as to Justice Gableman's innocence. If that is what you believe, then submission of the question to a jury would be error and any verdict finding a violation should be set aside.

This is why our friend Illusory Tenant is wrong in suggesting that there are facts to be tried. The Abrahamson group tries to create an issue of fact by referring to the video portion of Mitchell's ads and three citations that appeared on the screen. These three citations were to the proceedings in Mitchell's case in the circuit court and Court of Appeals. There was no citation to the Supreme Court decision that reversed Mitchell's victory in the Court of Appeals while including citations to the proceedings below. That omission, they say, wasn't included in the stipulation considered by the three judge panel.

There are three problems with that. The first is that it is not at all clear that the video of the ad was not considered by the three judge panel. Second, the import of excluding the Supreme Court citation was addressed by the stipulation of facts before the panel, i.e., then Attorney Butler did not obtain Mr. Mitchell's release. The Supreme Court affirmed his conviction and he served his sentence. It is, at best, cumulative.

But most fundamentally, neither the Prosser or Abrahamson group found this fact to be material, i.e., they were able to resolve the case without any finding on whether the citations made the ad true (as Justice Gableman's counsel attempted to argue) or constituted some type of independent or exacerbating falsehood.

Commenting on Tom Foley's blog, Rob Henak (who brought certain of the motions to recuse Justice Gableman) offers the Abrahamson group some advice. Perhaps the problem is that the Prosser group misunderstands the impact of the First Amendment here wrongly believing that it prohibits discipline of statements that, while literally true, are misleading. Why not petition for cert and ask the Supreme Court to make clear that this is not so?

But,as Rob points out, there is no final order to appeal from and cannot be unless at least one member of the Abrahamson group crosses over and votes to dismiss - presumably because further proceedings would be futile. Beyond that, it doesn't seem like a strong case for cert. Although the constitutional issue is quite interesting, the Prosser group didn't hold the rule unconstitutional but simply construed it to avoid a constitutional problem. Construction of the rule is a question of state law and is not reviewable by the United States Supreme Court.

Even if the Court, through invocation of the rule requiring a clear statement of adequate state grounds to avoid the potential for federal review, takes the case, the most it can do is clarify what it believes the First Amendment requires and remand for reconsideration in light of that clarification. The Prosser group would still remain free to construe the statute as it has and might even invoke the state constitution in support of its construction. Given all that, it's hard to see that the U.S. Supreme Court would take the case.

I appreciate the concerns of those who have a hard time seeing why the case should be over because the Court deadlocked. The answer lies in allocation of the burden of proof. A violation cannot be established without the agreement of a majority of the Court. A majority has not agreed and, based upon the reasons given by the competing groups, never will. I think that, whatever your view of the merits, it's over.

Sunday, July 04, 2010

Shark Jr. at Summerfest

Chris Esenberg performed this afternoon at the M & I Classic Rock Stage at Summerfest. He lost to a Whitney Houston sound a like. He was robbed. I am contemplating injunctive relief.



The young man enjoying his lunch at the beginning is Caleb Richard Esenberg who will be 2 on the President's birthday.

Thursday, July 01, 2010

Gableman Agonistes

I am on deadline for a column in the Journal Sentinel so I can only make a few preliminary comments on the Wisconsin Supreme Court's actions in Wisconsin Judicial Commission v. Gableman. One group of Justices (Justices Prosser, Roggensack and Ziegler) would have accepted the recommendation of the three judge panel and dismiss the complaint. Another group (Chief Justice Abrahamson and Justices Bradley and Crooks)would have rejected it and found that Justice Gableman violated SCR 60.06(3)(c).

There is much to be said about that (and I will later), but it gets even more interesting. Normally, when the Court deadlocks, the decision below stands. But the opinion of the three judge panel is a recommendation. What happens when it is not accepted.

The Abrahamson group wants to treat review of the recommendation as review of a motion for summary judgement, i.e., a request that the Court decide the matter without trial because there are no material issues of fact. In proceeding before the three judge panel, both the Commission and Justice Gableman agreed that this was the proper way to proceed, i.e., they agreed that there was nothing to be tried because no facts were disputed. The result was a recommendation that the complaint be dismissed.

The Abrahamson group now argues that failure to accept the recommendation is tantamount to a denial of summary judgment. When summary judgment is denied, the matter normally proceeds to trial. Thus, they want to remand the matter for a jury trial.

But there are problems with that. First, the statute governing these proceedings seems to require that a jury trial be requested before the complaint is filed. That did not happen. If there is a trial, it would have to be before the three judge panel.

But, in the view of the three judge panel, there are no issues to be tried. They concluded that the complaint, either as a matter of statutory construction (for two of the judges) or as a matter of constitutional law (for Judge Fine), must be dismissed as a matter of law. Neither the Judicial Commission nor Justice Gableman believes that there any new facts that bear on the matter. If the thing that happens here is that the proceeding below continues before the three judge panel, it would presumably reach the same decision.

In saying that the Wisconsin Judicial Commission "needs" to request a jury trial, the Abrahamson group essentially wants the Commission to start all over again and do what it did not do the first time around.It is telling the Commission, "look, you lost before the three judge panel. Now that you know that, try a jury." But the rules don't seem to permit that.

Beyond that, as a practical matter, replacing the three judge panel with a jury will do not break the impasse. No member of the Court believes that the there are any material facts in dispute, so there would seem to be no reason for a jury verdict to change any one's mind. It is quite clear that three members of the Court (those in the Prosser group) believe that the complaint should be dismissed as a matter of law. A jury verdict in the Commission's favor won't change that. Conversely, there are three members of the Court who believe, as a matter of law, that the Mitchell ad violates SCR 60.06(3)(c). A jury verdict in Justice Gableman's favor won't change that.

The only way that the impasse might be broken is if the composition of the Court changes. Is it appropriate to keep the matter alive in the hope that this might happen? Is there any point in conducting a jury trial that might prolong the controversy but has little or no chance to resolve it?

More to come.


Cross posted at Marquette University Law School Faculty Blog.