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.


Anonymous said...

"It will hurt the Dems in November."

Says the disinterested observer.

What was it you said a couple of weeks ago about framing blog posts as political science lessons in order to avoid calling out crap politics since it happens to suit your preferences?

Anonymous said...

You're aware, aren't you, that the Republican-controlled Assembly went along with the fund raid when it was enacted in the 2007 Budget, weren't you?

That's why you didn't see folks like former Speaker Mike Huebsch and former Majority Leader Jeff Fitzgerald issuing press releases today.

Remember also that the Supreme Court slapped down former Governor Thompson when he rammed through a pension fund transfer a number of years ago.

It's popular to pile on an unpopular Governor these days, but turkeys from both parties have used this stunt over the past 10-15 years.

Anonymous said...


Yup, Tommy got slapped down for trying the same thing.

The question is - shouldn't Doyle, the former AG, have learned something from it?

To your second point, true, Republicans agreed to it and voted the provision out of conference in a late, final deal, as Doyle dangled the threat of government shutdown in front of them.

But, in the end, a minority of Republicans in the Assembly voted for the crappy budget.

It was a bipartisan failure, pushed by a very bad and dishonest governor.

Rick Esenberg said...

I fail to see the parallel between criticizing a budgetary gimmick and blaming someone for a child's death on the basis of exactly no evidence.

I am aware that the GOP still had the Assembly in 2007 and the post noted that the raid attracted a few GOP votes. But that doesn't make it a bipartisan initiative.

Nor do I claim that the GOP would never do such a thing. I bet they have. But this particular one is going to be salient because the money has to be put back and it is the Dems who own it.

Dad29 said...

Yes, BOTH parties have been guilty of theft, chicanery, fraud, and gimmicks.

Perhaps you've heard of the TEA Party?

Anonymous said...

I fail to see the parallel between criticizing a budgetary gimmick and blaming someone for a child's death on the basis of exactly no evidence.

The parallel is that you're saying Barrett will pay at the polls for Doyle's and the 07-09 legislature's budgetary move, while criticizing people for saying Walker will pay at the polls for the O'Donnell incident.

Anonymous said...

Unless, of course, when you wrote "It will hurt the Dems in November" you weren't talking about the top Dem on the state ticket.