Thursday, August 12, 2010

GAB Law Suit - What's Going On

Because I have joined as counsel in one of the cases challenging new GAB Rule 1.28, there is a limit to what I want to say on a blog. But recent developments around the attempt to settle one of the federal cases raise a set of issues not readily accessible to the general public. Here is where we are.

The plaintiffs in Wisconsin Club for Growth v. Myse entered into a stipulation agreeing that the judge could enter a permanent injunction against enforcement of part of the rule that essentially creates an irrebuttable presumption that ads containing certain types of communication are express advocacy. That part of the rule seems, as I have blogged, to be clearly at odds with Supreme Court precedent, although the stipulation did not include an admission of unconstitutionality, saying instead that the injunction would satisfy the plaintiffs claim that the rule was not authorized by the state legislature. The plaintiffs' consitutional claims would have been dismissed without prejudice (i.e., they could be filed later under proper circumstances).

For a variety of reasons, this outcome, while certainly welcome to our clients, did not go far enough to alleviate their concerns and we so informed the Supreme Court. But, at the same time, Judge Conley announced that he would not enter the injunction until the parties addressed four seperate concerns.

Two of these concerns are rather technical having to do with the subject matter jurisidiction of federal courts and the proper relationship between federal and state courts. The latter concern has to do with whether a federal court should act when there is a pending state court proceeding (our original action in the supreme court) in which important state interests are at stake and the pertinent consitutional claims may be litigated.

The second set of concerns are more related to the merits although Judge Conley's concerns suggest no particular view of the merits. The court expressed concern over whether it could enter an injunction against an administrative rule without a finding on its legality and whether he ought to do absent an opportunity for other parties to be heard.

Briefs on these questions are due next week. More to come.


AnotherTosaVoter said...


Do a post explaining why the base of your party apparently feels that religious liberty and private property rights don't apply to Muslims in New York. Even better, explain why they always whine about elitists from the coasts telling them what to do while simultaneously trying to tell New Yorkers which building permits to grant.

George Mitchell said...

To the extent possible, it would be helpful to have links to the briefs that are filed next week. For those who don't want the First Amendment to be eviscerated by the unelected GAB, they will not be "boring."

Anonymous said...

The Professor has now been bested by Mike Wittenwyler (who got the GAB to accept a settlement agreement now pending before the new federal judge in Madison) and Jim Troupis (who got the Wisconsin Supreme Court to act on Friday).