Monday, March 14, 2011

Being Garvey Means Never Having to Say You're Sorry

We are all familar with the mantra "by any means necessary." On the budget repair bill that has meant

1)elected public officials flouting their plain constitutional duty to attend sessions of the legislature,

2)engaging in illegal work stoppages,

3)obtaining fraudulent doctors' excuses to avoid accepting responsiblity for participating in those unlawful actions,

4)attempting to intimidate public officials on the "wrong" side of the issue,

5)trying to physically prevent the legislature from acting, and

6)engaging in secondary boycotts of businesses who have owners or employees who disagree with one's position (or even those who wish to remain uninvolved.)

There's a lot to be proud of there. We might add the convenience of ignoring the truth. Fighting Ed Garvey falsely stated that WMC had given six million dollars to Justice Prosser's campaign and "bought" him. I asked that the statement be substantiated. It has not and it can't be. Prosser ran unopposed in 2001. No one spent much of anything on his campaign.

It is certainly possible that independents may participate in the Supreme Court race over the next three weeks. But it hasn't happened yet and, unless Mr. Garvey is clairvoyant, he cannot possibly know how much it will be or who it will come from.

I have informed Garvey of his error. So has leftie blogger Tom Foley. On this blog, if I get something wrong, I fix it, Most responsible participants in public discourse do the same

And then there's Ed Garvey.


Anonymous said...

Now that you've run Ed through the grinder, will you address the Hopper Hysteria?

George Mitchell said...

Folkbum's delight in Hopper's personal matters is not impressive.

As for Garvey, he has the rare distinction of having being personally rebuked by the Wis Supreme Court for his attacks on a member of the court.

Anonymous said...

And Rosa Parks sat illegally on that portion of the bus reserved by validly enacted Montgomery ordinance for white people.

Where exactly do you get this "plain constitutional duty to attend sessions of the Legislature"? Experience teaches that when legal writers say something is "plain" or "clear," it is generally neither. Nothing in the Wisconsin Constitution, that I can see at least, imposes a duty on legislators to attend. Article IV, section 7, gives each house the authority to compel absent members to attend, in the context of establishing rules for quorums. But it does not, ex proprio vigore, compel attendance; and as a practical matter Wisconsin legislators, much like Congressmen (as C-Span teaches), are frequently absent from the floor of the Legislature when it is in session.

Anonymous said...

Your point number 5 is slander. Show me any proof any meeting of either house was so much as delayed by the protests. (Political calculations by the Fitz brothers in response to the protests don't count.) As for the rest, people get a little upset when politicians try to ram through radical crap they didn't campaign on in less than a week. I think Walker either thought he'd pass the bill quickly or be able to bask in public approval for his war on the dirty hippies. He miscalculated on both fronts (although he did obviously pass the union-busting part of the bill eventually). I'm sure he appreciates your very modest help in slandering the opposition. If you'd bothered to check out the scene instead of relying on Fox News to tell you about it, you might have noticed the large number of children among the crowds. People don't bring their kids to riots.

Rick Esenberg said...

Anon 3:05

Two things. First of all, Art. IV, sec. 7 empowers the body to compel attendance. They have the authority to require that absent members come in. The power to compel implies a duty to comply. There is no way - absolutely none - to argue that quorum requirements are authorization for a sort of filibuster in disquise. Thus, Judge Conley, in the action we filed in Oconto County, found that there was a plain duty to attend. Second (if that weren't enough and it is), the Senate rules require attendance unless excused.

And to compare this to Rosa Parks is offensive. Having the government's authorization to collectively bargain to a level that is equal to or greater than that provided in roughly half the states and for most federal employees is nothing like segregation. If you believe that, you need to get some rest.

Anonymous said...

Article IV, section 7 says: "Each house shall be the judge of the elections, returns and qualifications of its own members; and a majority of each shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and may compel the attendance of absent members in such manner and under such penalties as each house may provide." This provision delegates to the Senate and the Assembly the discretion ("may") to enact such rules as they desire to compel attendance. They could compel legislators to attend a certain number of days only. They could grant excuses from attendance in categories of cases. They could enact a whole body of law governing when attendance was mandatory and when it was not. The point is, absolutely nothing in Article IV, section 7 mandates attendance, or even mandates that the Legislature mandate attendance. The power to legislate on this topic is delegated exclusively to the houses of the Legislature. Any duty to attend arises from their rules (e.g. Senate Rule 16) and not from the constitution: there simply is no constitutional duty of attendance -- much less a "plain" constitutional duty.

Judge Conley did not rule there was a constitutional duty to attend. He didn't even hold that there was a plain duty to attend. He said, in dicta, that the senator in question "does appear to be violating" the duty of attending -- UNDER SENATE RULE 16.

To be quite clear: The Wisconsin Constitution doesn't mandate legislators to attend sessions of the Legislature. It gives each house of the Legislature the power to legislate on this topic. They have, and there are rules in effect. But a violation of a rule is not a violation of the constitution.

As for Rosa Parks, my point is that civil disobedience is sometimes justified. The way that Scott Walker and the Republican-controlled Legislature attempted to ram through a law on virtually no notice whatever, destroying a collective bargaining right that had been settled law in Wisconsin for decades, justified, at least, a violation of Senate Rule 16. The good Lord will not mention that one when the Democratic senators are held to account on Judgment Day. As for the people of the State of Wisconsin, their judgment will come a lot sooner.

George Mitchell said...

Looks to me like the Constitution authorizes the Senate to compel attendance and that the 14 who fled violated a Senate rule implementing its Constitutional authority. So Anon says the Constitution does not in and of itself "mandate" attendance. Such semantical hairsplitting is laughable. I doubt any of the Ds who might face recall will rush to the pulpit to claim they have no Constitutional obligation to be present.

As for "ramming through the law on virtually no notice," get real. Everything in the bill was subject to hours/days of hearings and floor debate.

Anonymous said...

George: Were you to go to law school, you would learn that there are statutes, constitutional provisions, and rules of court or other tribunals. Law profs don't usually think that the distinctions between these are "semantic hairsplitting." Matter of fact, if you were asked on a law school exam to spot constitutional violations of some sort, and identified violations of rules or statutes as such, you'd flunk.

Shark has on more than one occasion criticized the 14 Dems who fled to Illinois for violations of their "plain constitutional duty." I'm just pointing out that he's making this up. It is not a semantic distinction. Especially, perhaps, in a column that targets Ed Garvey for making something up, let's not just make things up and say that doesn't matter, OK?

George Mitchell said...


one ? at a time..

is rick correct that the constitution empowers the body to compel attendance?

that requires a yes or no answer

then, even though i did not attend law school, i will ask my next ?

Rick Esenberg said...

Anon 2:20

I think that the point you are trying to make turns out to be either incoherent or meaningless. It can't be that the framers of the state constitution simultaneously intended to grant the legislature the power to compel attendance and legislators the right to ignore a call to attend. If that's your point, it's incoherent.

If, as I suspect is the case, you are trying to argue that the legislators have committed some "lesser" offense because there is no explicit constitutional command to attend, it is both wrong and meaningless. It seems to me that, if the constitution empowers the legislature's to compel attendance and if the legislature has done so, then an official sworn to uphold the constitution has, by dint of that commitment, an obligation to attend. The analogy is not perfect but think of an executive who refused to faithfully execute the laws. We'd have not problem saying that she was ignoring her constitutional duty.
Even if that were not so, I fail to see the significance of saying that the senators "only' failed to obey a constitutionally authorized rule of the body to which they belong as if this somehow means that it is not binding. To so argue would be to render Art. IC, sec. 7 meaningless and "if you went to law school" you'd kinow that we are taught not to do that. In any event, Sens. Chvala and Burke, among others, went to jail, in part, for failing to abide by the rules of the legislature. (The court of appeals relied on those rules, among other things, to conclude that using state resources for political purposes was the pursuit of personal advantage and not part of the legislative function.)

It is, I think, poor form to assert some specialized knowledge by telling George what he would have learned had he gone to law school. The implication is that you went to law school but of course we don't know that because you don't identify yourself. In any event, your understanding of the issue would merit, at best, a low C.

Rick Esenberg said...

To conclude, the analogy to Rosa Parks remains offensive. A modification of collective bargaining rights to make them roughly equivalent or still more robust than those enjoyed in half of the states or by most federal employees is nothing like being subject to state sanctioned apartheid. Nor is the fact that the Walker wanted a vote on the proposal shortly after he introduced it. That may have been a bad idea but it is hardly equivalent to living in the Jim Crow south. It justifies breaking no laws.

Marc Eisen said...

I'm struck at how selective people are in their outrage. At how they create these elaborate narratives in which non-conforming facts and opinions are completely ignored. I guess this is what's meant by political polarization. Somebody will have to explain to me how it's a good thing that we're floating off in a handbasket.

Brew city brawler said...

I'm sure Rosa Parks would have been outraged.

Anonymous said...

Here's why the analogy is not perfect. Article II, Section 2 of the U.S. Constitution SAYS that the president "shall take care that the laws be faithfully executed." We have no problem saying that a president who refused to faithfully execute the laws was ignoring her constitutional duty because HER DUTY IS IN THE CONSTITUTION.

For whatever rhetorical purpose, you have said, repeatedly, that the Democratic Senators violated their "plain constitutional duty." This sounds worse than saying that they violated Senate Rule 16. If you drive 56 or 57 in a 55 mile an hour zone on a daily basis, one could say of you, you violate the law of the land on a daily basis. That sounds worse than saying you drive 56 or 57 in a 55 mile an hour zone on a daily basis. But at least the former statement has the virtue of being true. You are violating the law of the land. If you went further and said you are violating the constitution on a daily basis (because of the speeding), that statement would not be true.

I did not say Senate Rule 16 is not binding. To the best of my knowledge it is. Hold those Rule 16 violators in contempt. Lash them fifty times with a wet noodle. Fine them. Mandamus them, if you can. Arrest them and bring them to the Senate. Just don't say that they violated a "plain constitutional duty."

Because they didn't.

Anonymous said...

George: Yes.

Rick Esenberg said...

Your grade is not getting any better. Wisconsin legislators swear an oath to support the constitution of the United States and the constitution of the state of Wisconsin, and faithfully to discharge the duties of their respective offices to the best of their ability. By refusing to attend, they impede the ability of the legislature to function as the Constitution clearly intended it to function. I have no problem with characterizing that as a violation of a clear constitutional duty. Indeed, the caption for Art. IV, sec. 7 refers to "compulsory attendance." Not in the section itself, of course, but illustrative of its clear implication.

In fact, it's you who want to minimize the violation by referring to Senate Rule 16 as if what happened here is tantamount to failure to get something notarized. It's not. It involves frustrating the way in which our framers intended the legislature to function.

Anonymous said...

Where is Justice Scalia when you need him. There's one "clearly" in there, two "clear's" in there, two "intended's," and one "implication." Notwithstanding whatever the drafters of the Constitution may have had in their minds, or insinuated or hinted at, nothing in the text of Article IV, section 7 compels the attendance of legislators. They gave the Senate and the Assembly the discretion to enact such rules. You just won't admit you're wrong.

In any event Judge Sumi has enjoined publication of the law. Let's see what happens next.