Tuesday, February 07, 2012

A Tale of Two Decisions

Last week, a panel of the Court of Appeals vacated Judge Davis' order directing the GAB to undertake certain activities in connection with the Walker recall petitions. The decision does not reflect a determination that Davis was wrong on the merits*, but only that he should have let recall proponents intervene in the case before deciding. Presumably what he must do now is permit them to participate and then decide again.

Here's one for you. While I think Judge Davis was clearly right, I think that the Court of Appeals has a point on the intervention issue. It's not a point that is often recognized. In fact, what the Court of Appeals did can be criticized as inconsistent with a line of appellate decisions that do not require   intervention to parties that are essentially taking the same position as the government. In other words, these cases say that, while the trial court has discretion to permit intervention, it generally need not do so when the parties seeking to intervene will take the same position as the Attorney General - in this case, that the GAB need not take the steps that the plaintiff Friends of Scott Walker argued that it must take.

The Court of Appeals tried to distinguish these cases but its altogether  persuasive. Still I think the Court had a point. In cases of substantial public interest, those who are most immediately affected by a case (as the recall proponents undoubtedly were), justice may be served by letting those parties in along side those whose defense of a position is only officially required. If the Court means to signal a more favorable stance on intervention), then it is to be welcome. Broader public participation in these cases is a good thing.

Of course, in court cases, even if intervention is not permitted, participation as amicus curiae generally is.

Then there is the GAB's announcement that it will not consider submissions by persons other than recall proponents and the office holders subject to recall.

The idea that it may not do so (a position reported by the media) is fairly weak. Nothing in the statute governing recall (Wis. Stat. sec. 9.10) limits participation in the process to the filers of the petition and the targeted office holder. The closest the statute comes is in language authorizing (or, perhaps, requiring) the targeted office holder to file a challenge within ten days. But there is no language making this exclusive or superimposing a "system" or "process" that has no place for the broader public.

A better question, it seems to me, is whether the GAB must allow such participation. Does the public at large have a legally cognizable interest in a recall election going forward only if the requirements for a recall are met? Even if it does not (and although there is certainly some interest in not having a recall free for all), is it right - as a matter of policy - for the GAB to allow absolutely no participation on the part of the larger public?

To be clear, I do not think that GAB should "partner" with independent organizations. That would be wrong. But the merits of a decision to announce - a priori - that the board will not to listen to such groups (which is what we have here) is not self evident and certainly not articulated in Kevin Kennedy's memo to the board.

There is a certain - albeit not precise - congruity between permitting interventions in law suits and allowing public participation here. In one case, we have a decision in favor of broader public input. In another case, we see that participation rejected.

41 comments:

muttmutt said...

Sorry, Rick, not buying it and nor should anyone else.

Your assertion, "The idea that it may not do so (a position reported by the media) is fairly weak. Nothing in the statute governing recall (Wis. Stat. sec. 9.10) limits participation in the process to the filers of the petition and the targeted office holder" is hogwash.

The statute is quite clear (9.10(3)(b)): "Within 10 days after the petition is offered for filing, the officer against whom the petition is filed may file a written challenge with the official, specifying any alleged insufficiency."

These third-party groups have no standing to submit challenges. The GAB has no statutory duty to recognize them nor to provide them an avenue of redress.

Are you really an attorney?

Anonymous said...

"The idea that it may not do so (a position reported by the media) is fairly weak. Nothing in the statute governing recall (Wis. Stat. sec. 9.10) limits participation in the process to the filers of the petition and the targeted office holder. The closest the statute comes is in language authorizing (or, perhaps, requiring) the targeted office holder to file a challenge within ten days. But there is no language making this exclusive or superimposing a "system" or "process" that has no place for the broader public."


So, would it not be fair to say that is the role of the LEGISLATURE to make everything crystal clear,
rather than a judge make their own interpretation of what they think the law ought to be, i.e. judicial activism? I thought conservative jurisprudence had disdain for such expansive rulings and therefore call for judicial restraint.

Tom said...

Muttmutt, that's terrible logic.

"A may do X" does not mean that "Not A may not do X". Concluding the second from the first is a plain logical failure.

Interestingly, it's that exact type of logic that's tested in the LSAT.

On the question of whether the GAB should consider outside information, it's hard to understand why they wouldn't want to. Their job is to control the process and enforce the recall laws. The more information they have, whatever the source, the better they can do that job.

It's a sign of how messed up government is in general that there's a group of thousands of volunteers willing to help the GAB out by simply pointing out things the GAB should look at, and the GAB is refusing to look at that information. If I could draw I could make a great political cartoon about it.

Mazo Jeff said...

So, Mr Muttmutt, if I, as an individual, saw my name on the petition and I did not sign a petition, will the GAB accept my objection??

Mazo Jeff said...

So, Mr Muttmutt, if I, as an individual, saw my name on the petition and I did not sign a petition, will the GAB accept my objection??

Rick Esenberg said...

Tom's point is well taken and may be extended. Sec. 9.10(3) gives a targeted official the right to make a challenge. The question that the post addresses is whether this means that the GAB may not allow others to participate. That's a different question.
It may be that the GAB does not have to permit broader public participation but that it may do so. If that's so, then the public might reasonably ask why it will not listen to the views and consider the work of what appears to be a well organized and serious group of citizens who wish to be heard. To assert that one doesn' have to listen does not address whether or not one should listen.

As for Anon 10:4, that is one answer to the charge of judicial activism. To suggest that GAB ought to listen to the VTP people is not the same as a court ordering them to do so.

Another answer might come in the form of a constitutional command. If electors have a constitutionally protected interest that would be compromised by an improperly sanctioned recall, then excluding them from the process may be unconstitutional.

Mutt

Get serious, dude.

muttmutt said...

Tom: The law is clear in affirming who may challenge the petitions. There is no ambiguity in the phrase, "Within 10 days after the petition is offered for filing, the officer against whom the petition is filed may file a written challenge with the official, specifying any alleged insufficiency."

The law affords room for no additional legal challengers.

To extend your argument,

"Doctors and those licensed to do so may prescribe drugs" does in fact mean that "Not doctors and those not licensed to do so may not prescribe drugs."

The logical confusion is all yours.

Anonymous said...

"On the question of whether the GAB should consider outside information, it's hard to understand why they wouldn't want to."

It's not at all hard to understand. It is because the GAB would therefore have to evaluate 50 separate "outside" challenges to the same petition line entry on the same grounds (many of which challenges would be entirely without merit, as demonstrated by the Milwaukee Journal Sentinel's invitation to its readers to check the petitions).

If Mr. Esenberg's affiliate obstructionists and mischief-makers wish to challenge signatures then they should contact the targeted officeholder, who is the only party contemplated by and authorized by the statute to file formal challenges. Even Scott Fitzgerald understands this.

Anonymous said...

And I thought that Rick and other true conservatives were for smaller government and against activist judges -- and agencies -- who/that exceed the laws as stated, quite clearly stated in this case.

I stand corrected. Rick and other true conservatives are all for activist and expansionary interpretations of the law by non-legislators, if and when it suits them.

William said...

Outside groups that want to make a challenge DO have an avenue to do so. They can easily bring whatever irregularities they find to the person undergoing the recall. That person would presumably want all the help they could get so nothing the independent group found would be turned away unless the person actually benefitting from it deemed it less than credible. There really isn't an access issue here.

John Foust said...

I think the Professor's point is that the Walker campaign should be asked to do less and less, and the GAB do more and more, and the GAB should be forced to do the busy-work of dealing with "irregularities" found by anonymous volunteers for a political organization, who followed an unknown process for their determinations.

When it favors an incumbent Republican, sometimes the government works just fine.

The Verify The Recall / True The Vote group is collecting two mailing lists – one of people who’d like to volunteer, one of people who claim they didn’t sign – as well as generating a third list of all people who signed.

Nowhere do they explain what they’ll do with the lists. I think they'll be sold at a profit to enhance the quality of "likely voter / non-voter" lists.

And what's with paying a Janesville firm $75,000 to enter the names? I'm sure we could've found some folks in China or India who'd do it for less.

George Mitchell said...

Those who dispute Rick appear indifferent to the increasingly obvious fact that many petitions are flawed and/or fraudulent.

While they're gonna get the recall they so badly want, should they not also want a systematic examination of the flawed and fraudulent petitions?

muttmutt has an appropriate tag

Anonymous said...

George Mitchell--Those who dispute Rick appear indifferent to the increasingly obvious fact that many petitions are flawed and/or fraudulent.

You must enjoy putting words into people's mouths. Where has anyone stated they are indifferent to fraud? How "many" is many? Any facts before us to ponder, or just typical talking points? If there is fraud, the authorities ought to investigate and bring the culprits to justice.

There is a system in place to vet the petitions. The GAB is meeting, and will meet, its obligations. The statute, as muttmutt, pointed out, is crystal clear.
The Waukesha judge overstepped his bounds. The proper venue to make changes in the law is the legislature, not activist judges. At least that's what I hear constantly from conservatives.

Rick Esenberg said...

Mr. Mutt

I understand that you are reflexively opposed to anything that you think helps Scott Walker but the teacher in me compels one more try.

The example that you use does not reflect the law. In fact, state statutes expressly prohibit practicing medicine without a license.

More fundamentally, you fail to comprehend the distinction between granting a right to challenge which the GAB must consider and a limitation on the GAB's authority to consider the input of anyone else. The language that you cite does the former. It says nothing about the latter.

To infer exclusivity, there has to be something about the context of the law that implies it and there's not. In fact, courts and agencies listen to intervenors and friends of the court all the time. By analogy, there is no reason that the GAB is not free to do the same.

So, the statute does not require the GAB to listen to VTP. But it doesn't prohibit it either and, under those circumstances, it is fair to ask why the GAB won't listen and suggest that it should.

(Again whether there is some constitutional right to be heard is another question entirely. If there is, it doesn't matter what the statute says.)

I understand that you hate Scott Walker and dislike me, but being a blogger and political partisan does not make you a lawyer. I've been doing this stuff for 30 years at a very high level and I never say anything on this blog that I don't think is true. Maybe you - whoever you are - know better, but the record says you don't.

Rick Esenberg said...

Foust

Wrong, wrong and wrong.

While I have argued elsewhere that the GAB's duty of facial review requires it to more than they have done in the past, we are, for the most part, discussing verification of the signatures that goes beyond facial review here. GAB does not have an obligation to do that. It does have an obligation to consider such challenges should they be brought by others. The issue here is which "others" it should listen to.

I did not say that the GAB should be "forced" to "work with" anyone. I suggested that it ought to consider whatever credible evidence is brought to its attention.

So the question becomes whether the VTP process is credible and whether it can be considered in an orderly fashion. While you think that VTP follows an unknown process, that is incorrect. My understanding is that it follows a fairly comprehensive and well described process but, if it doesn't, recall proponents can certainly point that out. If considering its information and allowing it's participation turns out to render the process unwieldy, that would be a reason to exclude them.

But they are going to vet the petitions no matter what the GAB does and the agency is going to have to explain why it ignored their results. To do so on a summary basis is not wise. To suggest that the GAB lacks the authority to hear them is wrong.

Whether any of this will matter much is, of course, unclear in that it doesn't look like the invalidity rate will he high enough to avert a recall.

Anonymous said...

What the teacher in Mr. Esenberg fails to point out is that it's also a Class I felony to "assume to act in an official capacity or to perform an official function, knowing that he or she is not [a] public officer or public employee." Because if the teacher in Mr. Esenberg did point that out, then his bitterly defensive criticism of muttmutt would utterly collapse.

Anonymous said...

More to the point.

9.10(3)(b) - Within 10 days after the petition is offered for filing, the officer against whom the petition is filed may file a written challenge with the official.

946.69(2)(b) - Whoever does any of the following is guilty of a Class I felony: Exercises any function of a public office, knowing that he or she has not qualified so to act.

*Any* function of a public office the second statute says, which a competent English speaker (it's immaterial whether muttmutt is a lawyer or a teacher) will understand to include that function of filing a written challenge described in the first statute.

muttmutt said...

I'm neither a lawyer nor a teacher (nor a law teacher for that matter) nor do I "hate" Scott Walker (or you). What I do dislike is shills who advance a hidden agenda. That, and people who presume they can tell me what I think and feel.

I reserve "hate" for people worthy of the word. Neither you nor Scott Walker rise to that level. I can maybe muster a good contempt for you and Scooter when I have the wind at my back, but hate? No... it's not hate.

As for the GAB, they shouldn't even be doing what they're doing. The statute does not require them to vet the signatures. If the GOP hadn't passed a law that permitted judicial forum shopping (yes, I'm talking about you J. Mac) none of this would be an issue. But they did so we're stuck with a political judge's legislation from the bench in Waukesha.

John Foust said...

I have not seen Verify the Recall / True The Vote's procedures or process. I don't think they document it for all of us to see. I once visited the VTR web site and they did not discuss it in the open. I seemed like the only way I could learn about it would be to sign up as a volunteer. Their web site did not have any disclaimers or other explanation of how my name and information would be used. If you can point me to an open and public description of their process, I'd appreciate it.

If they haven't documented their process, why should the GAB assume they're relevant and should be included or even listened to? You might as well say that the GAB should pay attention to my randomly-generated list of suspicious signatures. Why shouldn't they consider the source and my process? Should they listen to the random yahoos on the Journal's site, too?

Why doesn't VTR/TTV simply pass their info to Walker's campaign? Let them deal with the noise.

Look at what Big Fitz has done. Fitz trumpeted fraud in fundraising letters even before he'd seen the petitions. Patently ridiculous for him to make a claim without evidence, and then ever so insulting to claim Lori Compas couldn't make any assertions about her process of validation.

Once he had them, his campaign typed-up the recall petitions, entered them into a spreadsheet, and published it on their web. Fair, so far.

Just as quickly, they declared fraud was rampant. Their signature count didn't match that of the recall submission. They claimed to have found duplicates. He sent out a press release saying he's confident they'll have enough challenges to prevent his recall. They're making this claim over and over, even today, in radio and print ads.

The recall folks made an interesting discovery yesterday. They examined the petition and row numbers from Fitz's database. Hundreds of the supposed duplicates were due to Fitz's team entering some petitions multiple times. Do you think we'll hear that in his next radio ad?

George Mitchell said...

Muttmutt does not like people who "presume" they can tell him what to "think and feel."

Earth to muttmutt: No one cares what you think or feel.

John Foust said...

If you were in a school, George, I think your comment would fall under the anti-bullying rules.

Anonymous said...

George Mitchell--Seriously, an attack on mutt mutt's character is the only thing you are able to muster? Tsk, tsk, tsk.

George Mitchell said...

Anon 7:06 and Foust

That was not an attack on his character or, heaven forbid, bullying.

It was a response to muttmutt's self-absorbed statement that he "dislike[s]...people who presume they can tell me what I think and feel."

No one presumes to tell him what to think or feel (nor do they care). Exactly the same thing could be said about me and all participants here. No one "tells" anyone here what to "think or feel." They express opinions.

Anonymous said...

Q--Why didn't George Mitchell specify his line of thinking right away?

A--He thought he could get away with it.

All I am doing is pointing this out. So, George, give me a break with your playing coy routine. Perhaps mutt mutt is self-absorbed, I'm not sure, yet the mere fact that you make an effort to portray that characterization as "fact' puts you in the same category. On the contrary, expressing our opinions indeed DOES mean that we "tells anyone here what to think or feel".


Anyways, let's get back to the discussion at hand.

Professor Esenberg says, "While I have argued elsewhere that the GAB's duty of facial review requires it to more than they have done in the past..."

No, the law does NOT require the GAB to do more than they have done in the past. The GAB is compelled to adhere to that specific language and has NO STATUTORY DUTY to go beyond the intent of the law as currently stated and previously applied.

The GAB is meeting its responsibility according to the language, i.e. the letter of the law. The process the GAB had used prior to the Walker hub-bub was not questioned, as far as I know. So, all of the sudden, the GAB ought to do more because they have "duty"? Why weren't these concerns brought up in the last round of recalls?

Again, if you want to FORCE the GAB to go above and beyond the statute, the proper venue is the legislature, not activist judges. That is what conservatives tell me all of the time.


"It may be that the GAB does not have to permit
broader public participation but that it may do so."

In this particular case, wee are not talking about "perhaps" and "maybe". We are looking at the language in terms of black and white, i.e. the intent of the legislature. Is it not the contention of some conservatives that the law in this specific circumstance is to viewed in that manner? Just because the GAB "may" have the authority does not mean the GAB "does" have the authority.

Do some people simply not trust the GAB, a non-partisan body, to properly vet the signatures according to the process they have used in the past? Do those same individuals think the GAB is in "cahoots" with the recallers? If yes, where is the evidence?

George Mitchell said...

Why didn't George Mitchell specify his line of thinking right away?

Because it seems so self-evident.

Look further at muttmutt's post. He links to a laughable item to justify a claim that Rick is a "shill." Check out the various definitions of that word (given that some here have trouble understanding words) to see what muttmutt is asserting.

Following that scurrilous claim muttmutt says he dislikes people who try tell him what to think and feel. He comes to an opinionated blog on legal and political issues, accuses the blog's sponsor of being duplicitous, and then frets that someone is telling him what to "think and feel"?

John Foust said...

I'm still waiting for O.G. George to explain why public financing of incumbent campaigns is such a good conservative idea. But what do I know? I'm just an ankle-biter who doesn't know as much as he's forgotten. Case closed!

George Mitchell said...

"But what do I know? I'm just an ankle-biter who doesn't know as much as he's forgotten."

On that topic, you are exactly correct.

John Foust said...

But George! I care about you. I care about what you think. Please, tell me why the public should finance part of Walker's campaign.

Anonymous said...

George Mitchell--So, basically, you are relegated to attacking the messenger rather than addressing the message. Let me speak to you in Shepherdian language--Apparently, and I could be wrong here, but perhaps you are being a bit petulant, although it may not be the case. But, usually, my gut instinct is never wrong.

George Mitchell said...

Anon 11:51

Attacking the messenger instead of the message?

What is muttmutt's "message"? That Rick is paid to promote an undisclosed third party's agenda ("shill") and that muttmutt dislikes people who tell him how to think and feel.

But, Rick is not a shill. And, I maintain, no one is trying to tell muttmutt how to think and feel because all are indifferent to how he thinks and feels.

John Foust said...

Don't be so sad, George. Surely you don't speak for me, as I care what "muttmutt" says. You're not bullying again, are you?

Anonymous said...

George Mitchell--I don't know if the Professor is a "shill", he's one of your own kind, so you will defend him. I get that.

But, assume if the professor was a Democrat with known ties to state and local government officials and liberal foundations, who worked for those individuals and groups and received, I would imagine, monetary compensation, and wrote about issues in support of the views embraced by those individuals and groups...and makes it appear that he has no "dog in the show". What, praytell, would you call him?

George Mitchell said...

Anon 3:29

I see a basic problem with the way you frame the issue. Your criteria appear to discount the opinions of individuals based on their affiliations. It appears that you think those affiliations should trump the content of a person's stated position. Now, in Rick's case there is no mystery as to his conservative take on things. He's not hiding anything, something that would characterize a "shill." You say he claims to have "no dog in the show," but you don't explain the basis for that assertion. I think he is anything but ambiguous in demonstrating his general point of view.

So, what matters is whether his point of view is generally well-argued. To the extent people are reluctant to address what he says — focusing instead on his affiliations — they illustrate the weakness of their approach, not his.

John Foust said...

Speaking of throwing pasta against the wall, I did a little quick validation of TrueTheVote's spreadsheet as made on their web site and in declarations made via (wink, wink) Wisconsin Reporter in a press release yesterday.

For the Fitz petitions, the GAB numbered pages up to 3963. I crunched the rows in TTV's spreadsheet. The highest page number they referenced was 3624, so there's 339 pages they missed right there.

I sorted to find they did not enter any names from 964 pages, so they ignored 1,303 or 1,027 petition pages, depending on where you'd like to describe their errors in process (rows with full names for the latter, vs. pages referenced for the former).

I see hundreds of absent pages from Galloway's TTV totals, too.

You want the GAB to rely on this?
It's pure WisGOP noise.

Anonymous said...

George--"Your criteria appear to discount the opinions of individuals based on their affiliations. It appears that you think those affiliations should trump the content of a person's stated position."

I did not state explicitly nor imply your point in any of my posts. YOU have made that assertion. The professor, as well as the posters here on this blog, do make cogent points. But, of all people, you know full well that today's political world affiliations mean EVERYTHING. And, like Pavlov's dogs, those on the right and on the left are quick to label the argument as merely "liberal" or "conservative" in nature, rather than address the points on their merits. I do my best to avoid making such distinctions (regarding automatically labeling a remark conservative or liberal).

However, a person's argument, based on one's affiliations, can certainly color their judgment, and he/she is more prone to defend their position vigorously despite conflicting or contradictory evidence. Indeed, the professor has stated he is a conservative, but Mr. Esenberg seemingly has a knack to claim that he is non-partisan on certain issues, when, in fact, his points clearly have conservative undertones despite his insistence to the contrary.


"So, what matters is whether his point of view is generally well-argued."

"To the extent people are reluctant to address what he says — focusing instead on his affiliations — they illustrate the weakness of their approach, not his."

Perhaps, then, you should take your own advice rather than characterize your opponents as "ankle-biters" and labeling their opinions as "no one cares what you think or feel".

George Mitchell said...

Anon 5:35

"I did not state explicitly nor imply your point in any of my posts."

Your example about a Democrat did exactly that.

"But, of all people, you know full well that today's political world affiliations mean EVERYTHING."

No, I don't know that. If it was true, much opinion and commentary would have to be disregarded or evaluated primarily on one's affiliations.

Anonymous said...

"But, assume if the professor was a Democrat with known ties to state and local government officials and liberal foundations, who worked for those individuals and groups and received, I would imagine, monetary compensation, and wrote about issues in support of the views embraced by those individuals and groups...and makes it appear that he has no "dog in the show". What, praytell, would you call him?"


George, my Democrat example was simply posing a question for you. Some people may ignore the person's affiliations and focus on the content his/her stated position without labeling that person a "shill", while other people may automatically call that person a "shill".

So, again I ask, what do you call this person, i.e. my Democrat example?


Me--"But, of all people, you know full well that today's political world affiliations mean EVERYTHING."

George--No, I don't know that. If it was true, much opinion and commentary would have to be disregarded or evaluated primarily on one's affiliations.

I still stand by my assertion.

George Mitchell said...

anon 2:39


"So, again I ask, what do you call this person, i.e. my Democrat example?"

I have no idea what to "call" that person without reading the content of their writing.

Consider Rick's discussion elsewhere about redistricting. It stipulates that both R's and D's will try to stack the deck in redistricting (without crossing legal prohibitions). Then it discusses why courts are unlikely to undo redistricting plans. If you "white out" Rick's name and just read his analysis it appears to be a solid summary of applicable case law.

Notwithstanding that, Foust promptly posted a partisan interpretation. A perfect illustration of drawing a conclusion based on someone's affiliations rather than the content of their work.

Of course we all are vulnerable to Foust's error. I, for example, turn my radio off the moment I hear President Obama's voice. I guess I should listen, but his track record of dishonesty is just too much. I ask myself: what is the purpose of listening? In this case it is not so much his affiliation that grates, it is the dishonesty. I listen to lots of other Dems who have a less troublesome history with the truth.

John Foust said...

Foust posts what? Dishonest about what? I can't follow your logic, George.

George Mitchell said...

John Foust said...

Foust posts what? Dishonest about what? I can't follow your logic, George.

John....see your post in response to Rick's redistricting piece...unlike the interesting exchange he and Fallone are having, you put a partisan spin in it right from the get-go.

As for "dishonest about what?" I am referring to Obama and feel no need to document the obvious.

John Foust said...

Although I own several pair of Allen-Edmonds (today's pair is Darby), I am not a lawyer. I enjoy reading what Fallone has to say. Can I quote chapter-and-verse from hundreds of court cases? Of course not. The debate is interesting. If you think the Professor has a corner on the truth and isn't spinning a story for his political faith, you're in the wrong church.

It's not as if this is only a legal blog. The Professor speaks of politics all the time, and he's deeply entangled in GOP politics himself. See, the "Shark" part reflects his lawyer side, and "Shepherd" reflects what he's willing to do to the sheep. Lawyering and politics!

I'm glad to hear you are appalled with Presidential dishonesty. Presumably your interest in the subject did not start with Obama, right?

Those are some magical blinders y'all are wearing. I post something here about TrueTheVote's apparent inaccuracy to the tune of ten to thirty percent, skipping perhaps a third of all petitions in Fitz's recall, and ... no response. Their numbers don't even match what Fitz's own effort produced. Isn't TrueTheVote one of the parties that the Professor says should be taken seriously by the GAB?