Wednesday, June 30, 2010

Marriage Amendment Was Validly Enacted

The Wisconsin Supreme Court has held that the amendment to Wisconsin's constitution defining marriage as the union of one man and one woman and prohibiting the recognition of any substantially similar status (Art XIII, sec. 13) was properly enacted. Justice Michael Gableman wrote for a unanimous Court.

The question before the Court was whether the amendment complied with a requirement in the state constitution that voters must be able to vote separately on separate amendments.

Justice Michael Gableman wrote that the legislature may "submit several distinct propositions as one amendment if they relate to the same subject matter and are designed to accomplish one general purpose." The marriage amendment, in the view of the Court, had one general purpose:
"The first sentence preserves the one man-one woman character of marriage by so limiting marriages entered into or recognized in Wisconsin. The second sentence, by its plain terms, ensures that no legislature, court, or any other government entity can get around the first sentence by creating or recognizing "a legal status identical or substantially similar to that of marriage."

By way of full disclosure, I filed an amicus brief supporting the state's position.

Having said that, the decision seems fully consistent with the (admittedly few) prior cases that have addressed the issue and with our constitutional practice. Our state consitution is full of amendments that consist of multiple propositions aimed at accomplishing a general purposes. That a voter may agree with some, but not all, of these propositions has not rendered these amendments improper.

It is important to keep in mind, however, that this was a decision about the procedure by which the amendment was passed. It did not address the consistency or inconsistency of the Amendment with the federal constitution (McConkey lacked standing to bring such a claim) and did not address the proper interpretation of the amendment.

Cross posted at Marquette University Law School Faculty Blog.

Saturday, June 26, 2010

It Takes an Awful Lot of Nerve

I have no idea whether the tragedy at the O'Donnell Park parking structure is attributable to deferred maintenance and neither, as far as I can tell, does anyone else. To reach that conclusion one would have to know why the accident happened and then identify some particular proposed action that would have prevented it or uncovered the flaw that caused it. To simply note that O'Donnell Park has had problems or that there are proposed repairs to the structure that have been deferred tells us exactly nothing about the connection of these matters to the accident. Scott Walker says the County was aware of no needed repairs or existing problem that could have caused such a collapse. While the investigation is just beginning, no one has pointed to a single fact suggesting otherwise. It may turn out to be so, but we don't know yet.

But that doesn't mean that the political ghouls have held their fire. The Recess Supervisor seem to have jumped on it before the next of kin could be informed. The latter seems to acknowledge that there is no proof that deferred maintenance contributed to the tragedy but, the political arts being what they are, it doesn't matter. He's not exploiting anything, just providing us with a political science lesson. Tom Foley allows that while it is "perhaps" tasteless to inject politics into such a tragedy, it is inevitable so ... what the hay. He might as well get in on it.

But the worst person in the world in this regard is former Milwaukee County Supervisor Jim McGuigan - one the Board members who brought us the County pension scandal. Having been recalled by the voters for the gross stupidity that may ultimately cost a government already overly burdened with legacy costs a billion additional dollars, you'd think he'd be wandering around Brown Deer in sack cloth and ashes. But no, he authors a blog with the ironic title of "Watchdog Milwaukee." A bit late on that, Jim, don't you think?

McGuigan's defends himself by blaming others. Who would have thought to question claims that, since the stock market had gone up, it would never go down? Who would have doubted that the way to address the potential for early retirements prompted by the County's already ridiculously generous pension plan would be to make it even more generous?

I am perfectly willing to believe that at least some of those responsible for the pension mess were clueless rather than cunning. The Board may well have gotten poor advice from its human relations manager and actuaries, although the idea that one could promise the world to employees without risk to the taxpayers seems - as we say in the law - frivolous on its face.

Still, we ought to be chastened by our mistakes. One would think that, having blundered into a first class mess, McGuigan might display some humility and generosity in questioning the judgment of others.

Not for a minute. McGuigan accuses Walker of "killing off constituents to satisfy a craven lust for power." He says that "[t]onight there are two parents who have lost a son because Walker has decided that politics is more important than safety." He doesn't know - he couldn't possibly know - whether there is any truth to these allegations.

I suppose that one shouldn't be surprised that someone who voted to financially hollow out County government would not be overly concerned about whether he knows what he's talking about. What we do know is that Thursday night two parents lost their child and Jim McGuigan couldn't wait until after the funeral to politicize their loss.

Monday, June 21, 2010

Reflections on the World Cup

Every so often, we have this debate about soccer. Real Americans, we hear, don't like soccer. Even my own son says that he thought ESPN was running binary code (0010011110)but it turned out to be soccer scores.

There are some conservatives who want to say that it is a liberal's game or that there is just something, I don't know, French about it - even though the French don't seem to have the hang of it during this World Cup.

If we want to ruin sports by politicizing it, I can make an argument that soccer is, in fact, a conservative game. The overwhelming difficulty in scoring reflects an understanding that we live in a fallen world. The fact that plays are made on the fly against a changing geometry of play rather than called in the huddle or signalled from the dugout reflects the spontaneous creativity (Hayek's catallaxy)of the market and stands against the Progressive faith in the administrative state. Its unchanging - even archaic rules - reflect a Burkean commitment to tradition.

I don't like the South African vuvuleza horns either, but it is wrong to say that they are being blown "when nothing is happening." In soccer, there is never such a time. A goal can come quickly - either because of a great play or a defensive lapse - and one goal can determine - often does determine - the outcome of a match. For this reason, there is a tension throughout the game. It could be decided at any moment. Or if one team is ahead, that lead is, on the one hand, a huge obstacle but, on the other, one that might be overcome at any moment. I think the purpose of the horns - annoying as they are - is to magnify that tension.

The important thing is that the US team controls its destiny. It is through if it beats Algeria on Wednesday.

Reflections on Father's Day

I had a nice Father's Day. Had you walked into my kitchen at the right time yesterday, you would have come across three generations of Esenberg males imitating the buzz of the vuvuzela. No, I don't know why (no alcohol was consumed by either adult),but Caleb (almost 2) sure seemed to like it.

Via Kathryn Jean Lopez, President Obama had the following to say about Father's Day:

Nurturing families come in many forms, and children may be raised by a father and mother, a single father, two fathers, a step father, a grandfather, or caring guardian.

Literally, this is true. But as an endorsement of the value of family diversity, it is not. Alternative family forms can be nurturing. But the idea that these forms are "just as good" as a family headed by a child's mother and father in a low conflict marriage is not true. Social science is highly politicized but, notwithstanding elite resistance to this idea, the empirical evidence is pretty overwhelming.

The consequence of our refusal to acknowledge this is a devaluation of fathers with devastating consequences. The President recognizes the consequences of that in his own life saying that he still feels the weight of his father's absence. My own Dad left my life when I was around six and, even though I had - and, thank God, still have - a wonderful stepfather, it's something that you never get over.

The President, typically, wants to have a national dialogue on fatherhood. Good idea. Let's hope its candid and not circumscribed by political correctness.

Thursday, June 17, 2010

Shark on Wisconsin Eye

Yesterday, I had the privilege to join retired Judge David Deininger (a current member of the Government Accountability Board) and host Steven Walters (former chief of the Journal Sentinel's Madison Bureau) on Legally Speaking, a production of Wisconsin Eye. We discussed the division on the Wisconsin Supreme Court and related issues, including recusal and the disciplinary proceeding involving Justice Gableman. You can watch it here.

We can expect to see a lot from the Court in the coming weeks. It generally tries to wrap up its term by the end of June or the first part of July and generally will decide all cases argued during the term.

There are over forty cases that have been argued this term and have yet to be decided. While they are all important in their own way, some address major unresolved legal and policy questions, including the validity of the Wisconsin marriage amendment, Milwaukee's sick pay ordinance,* and the legislature's $ 200 million dollar "raid" on the Patients Compensation Fund. It will address the Gableman case and a number of interesting criminal cases.

* Over at the law school blog, one of Justice Gableman's outgoing clerks reminds me that the Milwaukee sick pay case, although accepted for review, has not yet been argued. We won't see it decided this summer.

Cross posted at Marquette University Law School Faculty Blog.

Indicted for Blogging?

The local political blogs are (can't really say "atwitter" any more) but interested in an apparent investigation of the left blogger Chris Liebenthal by the Milwaukee County District Attorney's office. The investigation may have been undertaken in response to a complaint by Citizens for Responsible Government suggesting that Liebenthal, who works for Milwaukee County, has been blogging on government time.

It's not clear that this is true. It may well be that the examples that CRG has made public were posted on days that Liebenthal was on furlough or had a paid day off. CRG looks sloppy on this, although it is possible that there are other examples or that there is a question whether the posts were actually written at the time they posted. (That may be why the DA wants to look at this computer.)

But here's my point. I don't know that this is worth the DA's time. I understand that one may be able to make political blogging on government time fit into an extant criminal statute, but I don't think we ought to. If Liebenthal blogged on company time (and I am not suggesting that he did or that the public evidence suggests that he did), it ought to be a personnel matter.

I thought that about the caucus scandal. I think it about this.

Of course, there is a distinction between this and the caucus scandal. Unlike legislative caucus employees, Liebenthal does not work for legislators who are inextricably involved in politics. But, in the absence of evidence, that some one has turned whatever department he works in into a political operation, I just don't see this as something warranting treatment as a crime.

And maybe the DA will agree.

But Liebenthal ought not to be surprised that some people are happy at his troubles. You play nasty (and he does), you make enemies.

UPDATE: CRG lists additional dates.

Tuesday, June 15, 2010

Critical Announcement !!!!

My son Christopher is a trainer for M & I Bank. He is also one of the finalists for the august title of M & I Idol. (It's a very big company!) The competition will take place at 12:30 on the M & I Classic Rock Stage at Summerfest on July 4.

And if you ever need a live band reprising the alternative rock of the 90's, book his band SuperOpus. I can hook you up.

Curb Your Enthusiasm

I've met Mike Tate and I have to confess that I like the guy. He's bright and funny and not quite the zealot that he (and most other politicos) seem to be. I have the same impression of Scot Ross.

I appreciate that the boys and girls that do this kind of work (on my side as well) aren't playing beanbag. As a consultant on my side told me, we can't play nice when the other guys play nasty. I couldn't argue with her, it is a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.

But the attacks on Mark Block as a "convicted criminal" or "criminal fundraiser" are another matter and may themselves have legal consequences.

The statements are false. Block was never convicted of a crime. He was never charged with a crime. The matter in which he and the Wilcox campaign (and, incidentally, blogger James Wigderson in an earlier life) were respondents was a civil action. It was not adjudicated on the merits but settled. The settlement did not amount to a finding of wrongdoing on the part of Block who expressly denied any wrongdoing. He was not fined but agreed, as part of the settlement, to a civil forfeiture. (The complaint as to Brother Widgerson was dismissed.)

As a complaint filed by my friend Mike Dean on behalf of James Zeiler points out, Russ Feingold's campaign agreed to a similar resolution (and paid $ 9000 in forfeitures) in response to allegations of legal violations in his 1998 re-election campaign.

Russ Feingold is, of course, not a convicted criminal or criminal fundraiser. Neither is Mark Block.

The irony is that the statement about Block may itself be a crime. Wis. Stat. sec. 12.05 makes it unlawful for any person to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election." Violations may result in a fine of not more than $1000, imprisonment of not more than six months or both.

There is, I think, a question on the constitutionality of the statute with cases considering similar statutes in other states going both ways. To be clear, moreover, the Zeiler petition to the Government Accountability Board is not a criminal complaint, but itself seeks only civil remedies. Criminal charges would have to be brought by a prosecutor.

Now I don't think that Mike Tate should be criminally charged. Nor would I encourage Mark Block to sue him for defamation. He would have to show that Tate acted with knowledge of the falsity of his statement or in reckless disregard of its truth or falsity. A defense might be - literally - that Tate (who is not a lawyer) was not venal; he was clueless.

I do not expect Mike Tate or other political consultants to discover the value of civility. This is a war in which the deterrent effect of mutually assured destruction has largely broken down.

But I do think Mike should be careful. This was several bridges too far.

Cross posted at Marquette University Law School Faculty Blog

Monday, June 14, 2010

The Obama Administration's War on Scientists

Let's say that the Bush administration had consulted with a group of biologists on stem cell research. Imagine that it had placed summarized that consultation and made some policy recommendations in a memorandum that had then been approved by these scientists. The report went on to stated that the report's recommendation had been peer reviewed by the listed scientists.

But before it was released, administration officials - oh, let's say a Cabinet level secretary - added a recommendation that there be a blanket moratorium on stem cell research. It retained the language that the scientists had "peer-reviewed the recommendations, but the scientists never saw that recommendation for a blanket recommendation. They did not "peer review" it. They do not agree with it.

It'd be another example of the Bush administration's so-called "war on science."

This very thing just happened but not, obviously, in the Bush, but in the Obama administration. A peer reviewed report on off shore drilling was modified - after it was reviewed by its scientists - to include Secretary Ken Salazar's call for a blanket moratorium on off shore drilling. The scientists have now said that they never saw the language on a blanket moratorium (they had only approved the recommendation for a more limited moratorium) and do not agree with it. They say that the "[t]he Secretary should be free to recommend whatever he thinks is correct, but he should not be free to use our names to justify his political decisions.

Secretary Salazar has apologized. Secretary Browner, apparently unable to understand that there is a difference between acting on information provided by others and stating that the others have reviewed your action, has said that they did nothing wrong.

Glenn Reynolds says he is beginning to lose confidence in there people.

Thursday, June 10, 2010

If it's a Diet, it's Atkins

There are millions - even billions - awaiting the creation of the first truly effective painless diet. If someone can follow Drs. Melik and Aragon in Sleeper and figure out how to lose weight on steak, cream pies and hot fudge, there is serious money to be made.

Tom Barrett is giving the political equivalent a try. He's going to put Madison on a diet, but it won't hurt a bit. It's not that his plan doesn't have some good ideas but what they have in common is that no one (save prisoners, persons engaged in "fraud" and "waste" and some unidentified middle managers)must make the slightest sacrifice. Turn off the computers at the end of the day, go paperless, provide something called "accountability in state contracting training" and there's a billion dollars for you.

Count me skeptical. Politicians have been promising easy savings to avoid addressing spending cuts or tax increases for at least as long as I have been sentient. I've got no problem with most, if not all, of Barret's ideas but I wouldn't count the money just yet.

Wednesday, June 09, 2010

The President Apparently Has Standards After All

During the election campaign, the President famously said that he would meet with our enemies. He'd talk to anyone. Since the election, he has proved that he will bow to anyone.

But he has his limits. He apparently has not spoken to BP CEO Tony Hayward. You know, they guy who controls technology that the federal government does not have and whose neck our boot is supposed to be on while we kick his ass?

Of course, I don't think that Tony Hayward and Barack Obama would hop on a boat and git 'er done. It is the particular conceit of guys like this to suggest that they can do things like that (or at least make them happen). But a few well placed words from the most powerful man on earth at the right time (it's really too late now)might have helped - both practically and politically. It may have concentrated the mind much sooner than events did.

Monday, June 07, 2010

Back From DC

Blogging has been glacial as I've been working on four law review articles and just returned from a talk at the annual meeting of University Faculty for Life at Catholic University Law School in DC.

Some random observations:

I didn't do anything touristy in DC, but I did notice an absence of hagiographic Obama merchandise for sale compared to the last time I was there (November). I suppose that stuff has a limited shelf life, but still ....

My former partner Fred Geilfus has a column in the BizTimes discussing Accountable Care Organizations, a concept that is to be tested under the Obama health care bill - although I would be surprised if it hasn't already been tested in other contexts. The idea is to move away from fee for service on the theory that this creates incentives to provide more service. As Fred knows, this is an issue with lawyers as well. Hourly fees create an incentive to run the clock. Folks in the legal community talk all the time about moving to different fee structures and sometimes they do. But it's not easy and comes with its own costs. My impression is that, for twenty five years or so, it is far more talked about than implemented. I don't know that ACOs are a bad idea but I think, as with so much of ObamaCare, it falls into the trap of thinking that we can get something for nothing. Nor is it clear why, if they work, they wouldn't develop in a true market.

Dan Bice points out that Ron Johnson opposed the proposal to remove the limitations period for suits against organizations claimed to be responsible for the crimes of child sex abusers. Good for Ron Johnson. The bill was a bad idea and opposition to it does not imply a lack of sympathy for victims or lack of revulsion for perpetrators (who are almost never the ones who have to pay civil judgments).

Responding to Johnson's opposition to the bill, Peter Isley of SNAP had a moment of candor - otherwise known as a gaffe - when he said that ""It's interesting they send a Lutheran down to fight a Catholic cause." He wonders "what would Martin Luther say?" The idea that Isley thinks Lutherans should be hostile or indifferent to the concerns of Catholics says more about Isley than it does about Johnson.

It has been my impression that the only studies available show that Catholic priests are no more likely to engage in pedophilia than other groups that work with children. (I was surprised by this.) Those who work for the state generally will not cause litigation to be brought against it because the government is generally immune from that form of liability. Those who work for non-episcopal or hierarchical churches won't cause lawsuits to be brought because their employers are not deep pockets. There have been lawsuits against other churches with episcopates like the Lutherans but the Catholic Church is so much larger that it is always going to seem like a predominantly Catholic problem.

This is not to say that the Church's response hasn't often been disgraceful. But whether to bankrupt a charitable organization for the sins of the dead and retired is another question.

Finally, via Richard Dudley Martin and Bill Tyroler, my attention is drawn to this.