Tuesday, May 31, 2011

More on Ozanne

My further remarks on Judge Sumi's decision and response to Ed Fallone can be found at the Marquette University Law School Faculty Blog.

Thursday, May 26, 2011

One Reason Why Ozanne is Wrong Decided

It should as no surprise to anyone that I disagree with Judge Sumi's decision in Ozanne v. Fitzgerald for all of the reasons that I have given here and elsewhere. The outcome was predictable but there is at least one part of the opinion that is notably odd.

Judge Sumi writes that "the Supreme Court's decision in Milwaukee Journal Sentinel v. Dept of Administration, 2009 WI 79, answers the precise question raised in this case, whether and under what circumstances a court may bvoid a legislative act for failure to abide by a statutory directive." The case involved legislative ratification of a collective bargaining agreement that, by it terms, prohibited the release of information of certain information regarding public employees that would otherwise be required to be released by the open records law. An existing statutory provision said that the open records law could not be amended by the adoption of a collective bargaining but only be a separately introduced bill. The question was whether adoption of the agreement did in fact modify the open records law so that the subShe goes on to elliptically describe Milwaukee Journal Sentinel saying that, in that case, the Court "went on to invalidate 2003 Wisconsin Act 319 adopting the collective bargaining agreement and amending the Public Records Law."

No, it did not. The collective bargaining agreement remained in force. All the Court did was decided that it did not have the effect of amending - sub silentio - the collective bargaining law. You can read the majority opinion as many times as you want and you will never find any language or mandate that would invalidate all of any part of the act.

A midnight blue friend argues that, well it's as if they did because they refused to give effect to that part of the Act which "purported to" amend the Public Records law, citing (because that's the kind of thing he does), the latin maxim pro tantum brutem fulmen. But the problem in Milwaukee Journal Sentinel was that the Act in question did not purport to amend anything. The argument was made that it did so inferentially by adopting the agreemen. The court concluded that the Act - fully valid - had no such fact, relying on a constitutional requirements for the passage of legislation and reading the statute in question to be, at least for relevant purposes, a legislative statement in compliance with (i.e., restating) those requirements. The Court expressly disavowed any suggestion that it was acting due to a mere failure to comply with a statutel

In fact, the Court's analysis was intitially constitutional. The act was not a bill amending the public records law under Article IV, sec. 17 of the Constitution. Only after it reached that conclusion did it consider 111.92(a)(1) which it interpreted to be consistent with the Constitution, i.e., it did not provide for the amendment of laws in some way other than that specified by the Constitution.

Judge Sumi could have said that the two hour notice provision adopted by the open meetings law was constitutionally mandated, but she did not - for at least two reasons. First, the Dane County District Attorney would seem to lack standing to attack the constitutionality of the collective bargaining bill and the claim would be without merit. The Open Meetings law expressly states that the legislature may exempt itself from its requirements (by the mere adoption of a rule) belying any suggestion that even the legislature that passed the bill thought that it enacted constitutional requirements. (And, of course, even had the enacting legislature thought so, it's view could not bind subsequent legislatures.)

It is quite a stretch to say that a constitutional requirement that the legislature's proceedings be open to the public requires some particular period of notice and room requirements. To say so would be without precedent and would fly in the face of 150 years of practice.

Here's an interesting coda. Chief Justice Abrahamson dissented in Milwaukee Journal Sentinel for reasons that would make it very hard to vote to uphold the circuit court's decision here. It is completely possible that this decision gets one or no votes of support on the state Supreme Court.

There are a host of other problems as well. But it is not clear that this or any of them will ever be reached by the Court. As I understand it, the collective bargaining bill must be in effect for the budget to work. The budget must be passed by the end of June. There may now be no choice but to reenact it.

Tuesday, May 24, 2011

Unrestricted Concealed Carry is a Bad Idea

I support concealed carry but the notion that it ought to be extended without the requirement of a license and training is to carry a sound principle too far. Let's compare, of all things, the recently passed voter ID bill. People have a constitutional right to vote. But that doesn't mean that the state may not place reasonable regulations on the manner in which that right is exercised to protect the rights of others.

To be sure, the restrictions normally placed on concealed carry may be more onerous than simply requiring a photo ID but the state interests justify them. It would be a different matter if the registration and training requirements were used to frustrate concealed carry rights but sufficient unto the day is the evil thereof.

Friday, May 20, 2011

Shark on Dead Tree

My Journal Sentinel op-ed on the recount is here. I understand the Kloppenburg campaign has been claiming that I "work for" Prosser. Not true. I have nothing to do with the Prosser campaign or the recount effort. I was asked to get involved in the latter and declined.

Sunday, May 15, 2011

Capitol Security

It appears that the trip down memory lane that gripped the state Capitol for a month or so did cost north of 7.5 million dollars, although not as a result of damage.

I am struck, though, by the Democrats' suggestion that the GOP has placed the Capitol in some type of security lockdown. I have had meetings at the Capitol twice in the past month or so. It is no harder to get into the Capitol than it is to enter the federal or county courthouses in Milwaukee.

A Sunday in May?

Hard to tell by stepping outside today.

The cold wind blows. The Gods look down in anger.

If these guys would have been from Wisconsin, they would have to have started this song two months later.

And this guy would have had to wait a month. Or at least he could have.

Recount Follies Continue

As our Supreme Court recount sloshes on, there is absolutely no chance that counting of the ballots will change the result. Moving forward seems to be more about exciting the base, sustaining anger and raising money. I understand how hard it must be to let go, but we passed the point of tolerance long ago. Even if Ms. Kloppenburg somehow feels obligated to move forward, she should cut out the empty insinuations.

Of course, she may be contemplating asking a court to throw out thousands and thousands of votes in Waukesha County. I can't believe that she would have the temerity to do it or that it would have the slightest chance of success. And, if she were to win, the victory - both for her and the left in this state - would by pyhrric. If this is actually being contemplated, it is a spectacularly stupid idea. Let's hope that there are grown ups in the Kloppenburg camp.

Why is it such a bad idea? Why can't it succeed. Let's start with the latter. If the problem is bags that are not properly cinched, there are all sorts of ways to assure oneself that they were not tampered with including examination of the chain of custody and comparison of what is in those bags now with what was counted on election night. Beyond that throwing out bags of ballots in Waukesha because they are not completely cinched, raises a serious constitutional challenge. Note that this constitutional problem exists whether or not the Prosser campaign "could have" made similar objections in other counties. It is a denial of the rights of the voters in Waukesha County no matter what the Prosser campaign did or do not do.

Here's why - or at least one reason why. In her public comments, Joanne Kloppenburg has suggested that the ballot bags in Waukesha were unusual. They are not. Such bags existed in Milwaukee County but were not remarked upon until the last day. They undoubtedly exist throughout the state. If the Kloppenburg now suggests that the ballots in these bags be tossed in Waukesha - and only Waukesha - it would require counting votes in Waukesha in a materially different way than the way they were counted in other counties.

This presents an equal protection problem pursuant to the United States Supreme Court's teaching in ... Bush v. Gore.

Looks like that case may have had legs after all.

Why is it a bad idea? Let's suspend disbelief and imagine that the Court of Appeals in Dane County would buy such a challenge - something that I don't regard as likely. Let's further assume that, with Justice Prosser recused, the "liberal" wing of the state Supreme Court would buy it and that the Court would split 3-3 allowing the Court of Appeals decision to stand. (I regard that as even more unlikely.) Let's further assume that the United States Supreme Court allows the theft of an election to stand by denying cert. (This is also unlikely.)

Whatever momentum the left has in Wisconsin would be gone. The anger on the right would make Madison's recent Days of Rage look like a picnic. No Democrat would win a recall and Obama will be an immediate underdog in Wisconsin. You can't toss out legitmately cast votes and not pay a huge price.

Friday, May 06, 2011

A Reverse Gore

In 2000, Al Gore's gambit in Florida was to put the vote in heavily Democratic counties in Florida in order to pick up enough votes to go over the top. Voting technology in Florida was such that it was reasonable to hope that there would be enough spoiled ballots that could be called Democratic to make up what was a very small margin.

That strategy would have no chance of success in the Supreme Court recount. Improved voting technology makes the count far more accurate. To win here, you have to throw out votes and, if you are Joanne Kloppenburg and want to throw out votes, you go to somewhere in which the votes were for your opponent, i.e., Waukesha County.

But she's got another problem. The margin is so large that you can't win through ballot by ballot examination. You need to throw out bags of ballots. Lots of bags. So you look for a flaw - any flaw - that will take the election from the voters and put it in the courts.

The latest seems to be the claim that some ballot bags weren't completely closed such that someone could have taken some out (or put some in) after the fact. But, if the ballots in the bag, correspond to the count and results on election night, it will be pretty clear that no one did.