Thursday, August 19, 2010

McCabe's "Dark Comedy" is Neither.

It's always dicey to comment on a case in which one serves as co-counsel, but I ought to at least correct the numerous errors in Mike McCabe's description of the state Supreme Court's actions in Wisconsin Prosperity Network v. Myse. These errors are quite apart from the merits of the claim.

First, it is not quite right to say that a federal court had taken the case and "started hearing it." It might have done so, but the status at the time of the Supreme Court's action is that the federal judge had declined to proceed, i.e., had refused to enter a stipulated order settling the case, until the parties had addressed certain concerns about his ability to proceed. I described those concerns here and, as someone who teaches Civil Procedure, I can tell you that they are not "mere" technicalities and are not readily dismissed.

Second, it is flat out false to say that the Supreme Court "overlooked a proposed settlement of a federal lawsuit ...." It did not. It expressly asked the parties to address how the pendency of two federal lawsuits affected the petition for original jurisdiction and both parties addressed the significance of those cases and the proposed settlement. We also addressed the fact that Judge Conley has declined to enter the stipulated order.

Third, it is flat out false to say that the Court's majority ignored "principles of comity" (although it is absolutely true that McCabe has little understanding of what those principles mean in this context). As noted above, it asked the Court to address the pendency of other cases. Beyond that, state courts do not defer to federal courts on matters of state law. It is, in fact, the other way around and one of the reasons that Judge Conley declined to enter the stipulated order was his concern that principles of comity required that the federal court stand down. (Without getting into the inside legal stuff, there is a doctrine called abstention that may well require the federal courts to step aside.)

Fourth, it is flat out false that the petitioners did not request a preliminary injunction. We did. Read our petition. The controversy was whether the Court might enter an injunction before deciding to exercise its original jurisdiction. Judge Prosser's concurrence explains why it may do so.

Fifth, it flat out false that the Court went "above and beyond the relief sought by the petitioners." Our supplemental memorandum made clear to the Court that we did not believe that the proposed settlement resolved our claims.

Sixth, it is flat out wrong to suggest that any member of the Court has a conflict of interest. There is absolutely no authority for the proposition that a justice must recuse herself from a free speech case because she might, in a subsequent election, might expect to benefit from the challenged speech. Beyond that, the type of expenditures that McCabe does not like were made on both sides of the last three campaigns and there is no reason to expect that any particular Justice would, on balance, benefit or be harmed by such speech. (In fact, one could as readily argue that all seven Justices enjoy the advantages of incumbency and would be personally served by as little campaign speech as possible.)

Seventh, it is misleading to suggest that, in not deferring to a proposed settlement that may or may not be entered, the Justices are siding with "big interest groups." The settlement was agreed to by two of the biggest advocacy organizations around (who, in my view, were clearly entitled to the relief they requested. While such groups might certainly have problems with those portions of the rule that the settlement did not touch, it could be argued that the remaining regulations really hurt small grass roots speakers who will be engaged in forms of communication other than mass media adverts.

Eigth, it is shabby and classless to impugn the motives of any member of the Court. Each of these Justices (and I include those who dissented from the order enjoining enforcement of the rule) are just doing their jobs. Some of them may get it wrong (even spectacularly so)but there is no evidence that any of them are acting for their personal benefit.


Real Debate said...

McCabe having issues with the truth?

You must be joking.

George Mitchell said...

And yet McCabe and his partner in purity, Jay Heck, will continue to be treated by the MSM as independent voices on the issue of "campaign finance reform."

Cammie Novara said...

The moment I saw the unbelievable hilarious Yes We Scam! B.S. We Can Believe In! Obama Approval Plummets article on Hubpages I decided that Shark and Shepherd's commentators totally should be able to express their opinions on this!

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Anonymous said...

Odd that the Professor has apparently walked away from the discussion on Perry. I challenged him to draft a bill which contains the protections he believes that gay couples are entitled to. He did not respond. He may not be a liar -- the jury is still out-- but he surely is a hypocrite.

Anonymous said...

Professor wants to restrict rights of same sex couples he has no interest in drafting any bill for them

Anonymous said...

It was Supreme Court Justice Ann Walsh Bradley, not McCabe, who said the court majority went above and beyond the relief sought by the petitioners. McCabe just reported what Bradley wrote in her dissent.

Anonymous said...

I agree with the previous comment. Rick, if you disagree with Bradley's contention that her colleagues ignored the rule of comity, say so. Don't pin that on McCabe. And if you similarly disagree with Bradley's claim that her colleagues went above and beyond what the plaintiffs were requesting, say that too. Don't hold McCabe up as the bogeyman. Furthermore, it was the Milwaukee Journal Sentinel who raised the question of conflict of interest in this case. McCabe noted the Journal Sentinel's point in his blog. If you don't think any of the justices have a conflict of interest because they have benefited from undisclosed spending by outside groups or stand to gain from such spending in the future, then take issue with the Journal Sentinel's editorial. Don't try to make it seem like it's only Mike mcCabe who is saying this.