There are at least five fairly unassailable observations to be made about the story regarding Justice David Prosser's comments to Chief Justice Shirley Abrahamson.
First, he shouldn't have said what he said. If he has not, he should apologize to the Chief (although we are talking about something that happened over a year ago). Whether she needs to apologize to him is between them. I wasn't there.
On the other hand, for those of you are about to get the vapors, grow up. If you don't think this kind of stuff isn't said from time to time, you need to get out more. David Prosser is hardly the only public official who has lost his religion with an opponent or colleague.
Second, the story raises no concerns about Justice Prosser's qualifications to serve on the Court or his abilities as a Justice. He should not have lost his temper - whether goaded or otherwise - but I guess I will leave it to the reader to ask, whether he or she is the one to cast that stone. If Prosser had a temper problem that was impairing the administration of justice in this state, I hardly think we'd need a leaked e-mail exchange about a decision conference - something that is supposed to be confidential - to let us know. I know what happens and the stories that are told about imperious and cantakerous judges. There are no such stories about David Prosser.
Third, the story does provide some insight into the personal divisions on the Court but not simply because Justice Prosser lost his temper. Members of a collegial court ought not to get involved in each other's election campaigns. It makes working together rather difficult.
Beyond that, what happens at conference is confidential and justices ought to respect that. There is no logical stopping point here. Do we really want each member of the Court running to the press in the guise of correcting public "misperceptions" about their colleagues.
Fourth, Joanne Kloppenburg's claim that her election would somehow ease the division on the court is hard to credit. I am sure that she would like that, but let's look at the facts. If Prosser loses, it will be because partisans turned the race into a referendum on Governor Walker among their base. They will have done so, moreover, with Ms. Kloppenburg's tacit consent and encouragement. Along the way, one Justice turned on another by releasing information that is normally kept within the Court. Unfortunately, the only thing that a Kloppenburg election would do is change the composition of the division.
Fifth, there is no reason to blame David Prosser for division on the court. Discord is not new to the court and it is not necessarily related to ideology. Shortly after Shirley Abrahamson became Chief Justice, four of her colleagues endorsed her opponent in her 1999 race for reelection. One of the four was her ideological cohort, the late Justice William Bablitch. Much of what causes this discord happens outside of public view and those of us on the outside, while certainly right to call and hope for an end to the bickering, should be careful about assigning blame.
Tuesday, March 22, 2011
Sunday, March 20, 2011
Sunshine Songs for Sunday
In a perhaps futile gesture toward the idea that you don't have to hate people who disagree with you (and you know who I'm talking to), let's combine the topic of open meetings (required by what may be called "sunshine" laws) with today's weather (we got no sunshine) for a Sunday musical selection.
This was on one of the first record albums I ever bought.
I actually remember when this was on MTV.
And here is more of Shark Jr. and SuperOpus.
For a bonus, this is my daughter-in-law's father's band, The Lovin' Kind, doing Sunshine Day at Harvey's in Mequon.
This was on one of the first record albums I ever bought.
I actually remember when this was on MTV.
And here is more of Shark Jr. and SuperOpus.
For a bonus, this is my daughter-in-law's father's band, The Lovin' Kind, doing Sunshine Day at Harvey's in Mequon.
Saturday, March 19, 2011
The Sumi Decision: A Closer Look
Having taken a closer look at the text of Judge Sumi's decision in Ozanne v. Fitzgerald, I am quite frankly astonished. The court seems to have managed to enjoin publication of the statutory changes in the budget repair bill without addressing any of the difficult issues that the case presents.
First, there is an issue as to whether the case is even ripe for decision. In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the Supreme Court held that judges may not enjoin the publication of a law on the basis that it is or might be unconstitutional. A bill, in the Court's view, is not enacted until it is published such that publication is part of the legislative process with which courts may not interfere. Unless the Court wants to abandon that precedent, I think that it clearly requires that the restraining order be vacated and the case be remanded with instructions to dismiss.
Of course, the case could be refiled after publication by someone with standing to address its constitutionality. But lay readers should not think that renders this objection meaningless. It implicates concerns for separation of powers, ripeness and standing and courts take these things very seriously and for very good reasons.
Second, the principal argument of the state - as I understand it - is that the open meetings law itself defers to conflicting legislative rules. I laid it out here. Sec. 19.97(2) says that "no provision of the Open Meetings Law which conflicts with a rule of the Senate or Assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule."
Judge Sumi acknowledges this but then asserts that "neither party has cited any rule that would have overridden the clear provisions of the notice requirement in sec. 19.84." But I am sure that the state did cite Senate Rule 93(2) which provides that, when the Senate is in special session (and it was), "notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published." Assembly Rule 93(3) says the same thing.
Well these sure look like rules that override the clear provisions of the notice requirements in sec. 19.84. Why doesn't Judge Sumi think so? We don't know because she didn't say.
There may be ways to reach that conclusion. The conference committee in question was a joint committee and there are separate joint rules. Maybe these mean that the Senate and Assembly rules do not apply. These joint rules do not include a counterpart to Senate Rule 93(2) or Assembly Rule 93(3). If Judge Sumi concluded that only the joint rules are applicable, then maybe the plaintiff is right after all.
But even if she did so conclude (and we don't know whether or why that is so), she wouldn't be home free. These joint rules do include a few rules that might be interpreted to incorporate those rules into the activities of joint committees. For example, Joint Rule 84(2) says that standing and special committees of one or bothy houses may:
That might be read to incorporate the notice provisions of Senate Rule 93(2) and Assembly Rule 93(3). Joint Rule 27 requires notice of committee meetings in accordance with Joint Rule 75 "if time permits" suggesting yet another standard (and a fairly lenient one) for evaluating the notice provided here. (Rule 75 itself seems to apply to the weekly schedule of meetings.) Joint Rule 10 says that each house will determine its own rules for its proceedings. Does this mean that we look to the notice provisions of each house for the meeting of a conference committee?
Maybe Judge Sumi decided that none of this cuts in favor of the legislature but there is an overlaying problem if she did - one identified Bill Tyroler in a comment to an earlier post. Shouldn't a judge defer to the legislature in interpretation of its own rules? The legislature thinks that it followed its own rules. Leg Counsel apparently agrees. Isn't it proper to defer to that determination? If not, why not?
Even assuming that the open meetings law applies, did the legislature comply? Judge Sumi says that the state gave no reason for not providing twenty four hour notice. Is that right?
And even if it is, why does the balance of equities favor invalidation of the law. Judge Sumi's rationale - that the people "own" the government and nothing can happen in secret - can't be right. That would require invalidation of an official action every time the open meetings law is violated - something that the open meetings law itself does not contemplate. It requires a further balancing of interests which require the consideration of things other than an open meetings violation. She purports to do that but her analsis ultimately reduces to the open meetings violation. Given the terms of the open meetings law itself, that can't be enough.
At first blush, this doesn't seem like a strong case for invalidation. Notice was provided. The meeting - as far as I know - was open to the public. The Democrats were there (Barca) - or if they weren't it was because they were unlawfully boycotting the legislature. My guess is that the public was as well. The measure in question has been the subject of extensive public debate and final action on it was taken with the Capitol crawling with protesters.
If Judge Sumi thinks otherwise, it requires a better explanation that this was things shouldn't happen "in secret."
Of course, this was not a decision on the merits but only the granting of a TRO. Nevertheless, the decision reads as if a violation is clear. It's not.
First, there is an issue as to whether the case is even ripe for decision. In Goodland v. Zimmerman, 243 Wis. 459, 10 N.W.2d 180 (1943), the Supreme Court held that judges may not enjoin the publication of a law on the basis that it is or might be unconstitutional. A bill, in the Court's view, is not enacted until it is published such that publication is part of the legislative process with which courts may not interfere. Unless the Court wants to abandon that precedent, I think that it clearly requires that the restraining order be vacated and the case be remanded with instructions to dismiss.
Of course, the case could be refiled after publication by someone with standing to address its constitutionality. But lay readers should not think that renders this objection meaningless. It implicates concerns for separation of powers, ripeness and standing and courts take these things very seriously and for very good reasons.
Second, the principal argument of the state - as I understand it - is that the open meetings law itself defers to conflicting legislative rules. I laid it out here. Sec. 19.97(2) says that "no provision of the Open Meetings Law which conflicts with a rule of the Senate or Assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule."
Judge Sumi acknowledges this but then asserts that "neither party has cited any rule that would have overridden the clear provisions of the notice requirement in sec. 19.84." But I am sure that the state did cite Senate Rule 93(2) which provides that, when the Senate is in special session (and it was), "notice of a committee meeting is not required other than posting on the legislative bulletin board, and a bulletin of committee hearings may not be published." Assembly Rule 93(3) says the same thing.
Well these sure look like rules that override the clear provisions of the notice requirements in sec. 19.84. Why doesn't Judge Sumi think so? We don't know because she didn't say.
There may be ways to reach that conclusion. The conference committee in question was a joint committee and there are separate joint rules. Maybe these mean that the Senate and Assembly rules do not apply. These joint rules do not include a counterpart to Senate Rule 93(2) or Assembly Rule 93(3). If Judge Sumi concluded that only the joint rules are applicable, then maybe the plaintiff is right after all.
But even if she did so conclude (and we don't know whether or why that is so), she wouldn't be home free. These joint rules do include a few rules that might be interpreted to incorporate those rules into the activities of joint committees. For example, Joint Rule 84(2) says that standing and special committees of one or bothy houses may:
(2) Public notice. In compliance with the appropriate senate and assembly rules, hold public hearings and executive sessions and conduct any other committee business on the proposals that have been referred to the committee.
That might be read to incorporate the notice provisions of Senate Rule 93(2) and Assembly Rule 93(3). Joint Rule 27 requires notice of committee meetings in accordance with Joint Rule 75 "if time permits" suggesting yet another standard (and a fairly lenient one) for evaluating the notice provided here. (Rule 75 itself seems to apply to the weekly schedule of meetings.) Joint Rule 10 says that each house will determine its own rules for its proceedings. Does this mean that we look to the notice provisions of each house for the meeting of a conference committee?
Maybe Judge Sumi decided that none of this cuts in favor of the legislature but there is an overlaying problem if she did - one identified Bill Tyroler in a comment to an earlier post. Shouldn't a judge defer to the legislature in interpretation of its own rules? The legislature thinks that it followed its own rules. Leg Counsel apparently agrees. Isn't it proper to defer to that determination? If not, why not?
Even assuming that the open meetings law applies, did the legislature comply? Judge Sumi says that the state gave no reason for not providing twenty four hour notice. Is that right?
And even if it is, why does the balance of equities favor invalidation of the law. Judge Sumi's rationale - that the people "own" the government and nothing can happen in secret - can't be right. That would require invalidation of an official action every time the open meetings law is violated - something that the open meetings law itself does not contemplate. It requires a further balancing of interests which require the consideration of things other than an open meetings violation. She purports to do that but her analsis ultimately reduces to the open meetings violation. Given the terms of the open meetings law itself, that can't be enough.
At first blush, this doesn't seem like a strong case for invalidation. Notice was provided. The meeting - as far as I know - was open to the public. The Democrats were there (Barca) - or if they weren't it was because they were unlawfully boycotting the legislature. My guess is that the public was as well. The measure in question has been the subject of extensive public debate and final action on it was taken with the Capitol crawling with protesters.
If Judge Sumi thinks otherwise, it requires a better explanation that this was things shouldn't happen "in secret."
Of course, this was not a decision on the merits but only the granting of a TRO. Nevertheless, the decision reads as if a violation is clear. It's not.
Friday, March 18, 2011
Federal Bargaining Rights
Blogger Mike Plaisted says that I deleted a comment that he left here asking me why I "lied" about the bargaining rights of federal employees.
I have not deleted a comment on this blog for well over a year. The last time I can recall doing it was when the story broke about the relationship between Ed Flynn and Jessica McBride and somebody made a sexist joke. I did not delete any comment from Mike Plaisted. I saw no comment from Mike Plaisted. I saw no comment asking about federal employee's collective bargaining rights. Mike can comment here whenever he wants.
UPDATE: In addition to not moderating, I also do not review the comments that Blogger holds as spam. In fact, until about five minutes ago, I was unaware that I could do that. I have now reviewed those and Mike's comment was held as spam. In other words, it was not deleted. It never appeared in the first place. I have marked it as "not spam." It now appears.
My goodness, if it were my practice to delete dissenting comments or comments that say I am wrong or that try to insult me, I am obviously doing a poor job.
On the substance, Mike is upset that I and others suggest that other states and the federal government restrict collective bargaining rights of public employess. But they do. Mike's point is that federal employees can bargain over things other than wages and benefits. Fine. I never said otherwise. My point is simply that it is not unusual for public employees to have their collective bargaining restricted in various ways and that folks who want to claim that the Walker bill is an existential threat to the republic might want to address that. Walker's bill would not permit bargaining over working conditions. Federal law generally doesn't permit bargaining over wages and benefits. The point is that, either way, there are restrictions on collective bargaining. (And, of course, some states completely prohibit collective bargaining by public employees.)
Well, Mike seems to claim, you shouldn't say that Wisconsin public employees would be left with collective bargaining rights greater than or equal to employees in half the states and most federal employees. Why not? It seems to me that, for most people, wages and benefits are the most important conditions of employment. But however that may be, the larger point - that there is no universal and fundamental right of public employees to collectively bargain - is correct.
I have not deleted a comment on this blog for well over a year. The last time I can recall doing it was when the story broke about the relationship between Ed Flynn and Jessica McBride and somebody made a sexist joke. I did not delete any comment from Mike Plaisted. I saw no comment from Mike Plaisted. I saw no comment asking about federal employee's collective bargaining rights. Mike can comment here whenever he wants.
UPDATE: In addition to not moderating, I also do not review the comments that Blogger holds as spam. In fact, until about five minutes ago, I was unaware that I could do that. I have now reviewed those and Mike's comment was held as spam. In other words, it was not deleted. It never appeared in the first place. I have marked it as "not spam." It now appears.
My goodness, if it were my practice to delete dissenting comments or comments that say I am wrong or that try to insult me, I am obviously doing a poor job.
On the substance, Mike is upset that I and others suggest that other states and the federal government restrict collective bargaining rights of public employess. But they do. Mike's point is that federal employees can bargain over things other than wages and benefits. Fine. I never said otherwise. My point is simply that it is not unusual for public employees to have their collective bargaining restricted in various ways and that folks who want to claim that the Walker bill is an existential threat to the republic might want to address that. Walker's bill would not permit bargaining over working conditions. Federal law generally doesn't permit bargaining over wages and benefits. The point is that, either way, there are restrictions on collective bargaining. (And, of course, some states completely prohibit collective bargaining by public employees.)
Well, Mike seems to claim, you shouldn't say that Wisconsin public employees would be left with collective bargaining rights greater than or equal to employees in half the states and most federal employees. Why not? It seems to me that, for most people, wages and benefits are the most important conditions of employment. But however that may be, the larger point - that there is no universal and fundamental right of public employees to collectively bargain - is correct.
Sumi decision leaves a long road ahead.
I would advise those who are tempted to break out the champagne over Judge Sumi's decision enjoining publication of the budget repair bill to put it back in the bucket. There are problems.
First, it is not clear that she had the authority to enjoin publication of a bill. There is some Supreme Court precedent holding that a court may not enjoin publication of a bill because of concerns regarding its constitutionality. The idea is that a law is not enacted until it is published and its constitutionality cannot be determined until it's enactment is complete and someone has been injured by its threatened or actual publication.
Second, while I don't know how Judge Sumi concluded otherwise, there is, as I explained here, serious doubt as to whether the duration of notice provisions of the open meeting law applied here. It seems to me that concluding that it did requires construing a legislative rule in a way that seems to - in conjunction with the open meetings law itself - suggest otherwise.
Third, if it applied, it may well have been complied with. If the legislature can show that twenty four notice was impractical, it may be that the two hour minimum period was complied with or that the notice was so close to two hours so as to raise any violation de minimis.
Fourth, even if the law applied and was not complied with, invalidation of the action taken is not mandatory. It is far from clear that the balance tips in favor of invalidation given the extraordinary circumstances of this bill.
Finally, in assessing all of this, it should be noted that this was not a decision on the merits but the granting of a TRO. It was, in effect, Judge Sumi ordering everything to stop until she could more fully consider the matter.
First, it is not clear that she had the authority to enjoin publication of a bill. There is some Supreme Court precedent holding that a court may not enjoin publication of a bill because of concerns regarding its constitutionality. The idea is that a law is not enacted until it is published and its constitutionality cannot be determined until it's enactment is complete and someone has been injured by its threatened or actual publication.
Second, while I don't know how Judge Sumi concluded otherwise, there is, as I explained here, serious doubt as to whether the duration of notice provisions of the open meeting law applied here. It seems to me that concluding that it did requires construing a legislative rule in a way that seems to - in conjunction with the open meetings law itself - suggest otherwise.
Third, if it applied, it may well have been complied with. If the legislature can show that twenty four notice was impractical, it may be that the two hour minimum period was complied with or that the notice was so close to two hours so as to raise any violation de minimis.
Fourth, even if the law applied and was not complied with, invalidation of the action taken is not mandatory. It is far from clear that the balance tips in favor of invalidation given the extraordinary circumstances of this bill.
Finally, in assessing all of this, it should be noted that this was not a decision on the merits but the granting of a TRO. It was, in effect, Judge Sumi ordering everything to stop until she could more fully consider the matter.
Wisconsin Democracy Campaign's "Phony Issue Post"
Wisconsin Democracy Campaign is a nonprofit corporation that promotes greater regulation of campaign finance and electioneering. It has been known, from time to all of the time, to rail against what it calls "phony issue ads" - communications made during an election that discuss issues in a way that either conveys criticism or praise for one of the candidates. A majority on the current United States Supreme Court isn't enamored of the concept, but WCD seems to be sticking to its guns. The reason: It says that regulation of campaign contributions can be evaded if unlimited amounts of money can be spent on issue ads that tend to promote or attack candidates.
So imagine my surprise when over at WCD's Big Money Blog, the group's executive director has put up not one - but two posts - criticizing Justice Prosser as a partisan and promoting the idea that David Prosser is intrinsically tied to Scott Walker. Indeed one chides Prosser for his "Scott problem." The web site, as far as I know, is not paid for by the Kloppenburg campaign or any other form of regulated campaign contributions.
Fortunately for Mr. McCabe, but no thanks to WCD, it remains perfectly legal for organizations to exercise their free speech and associational rights during an election. Hypocrisy is a human failing, but it's not illegal.
Still there may be a problem. WCD solicits tax deductible donations on its website as a 501(c)(3) organizations. 501(c)(3)s are, of course, prohibited from supporting or opposing candidates for public office.
Now, WCD may have an affiliated 501(c)(4) corporation and they are permitted to engage in some political activity. But there are limits on the tax deductibility of moneys used for that purpose. I'd be reluctant to use a website that solicits contributions for the a 501(c)(3) as a vehicle for the political activities of a c(4), but I'll leave that to tax experts.
Mr. McCabe may argue that his issue ad is not phony. How he distinguishes his high minded discussion of issues from everyone else's low and "dishonest" promotion of candidates. I can't but then again I believe in free speech. For everyone.
So imagine my surprise when over at WCD's Big Money Blog, the group's executive director has put up not one - but two posts - criticizing Justice Prosser as a partisan and promoting the idea that David Prosser is intrinsically tied to Scott Walker. Indeed one chides Prosser for his "Scott problem." The web site, as far as I know, is not paid for by the Kloppenburg campaign or any other form of regulated campaign contributions.
Fortunately for Mr. McCabe, but no thanks to WCD, it remains perfectly legal for organizations to exercise their free speech and associational rights during an election. Hypocrisy is a human failing, but it's not illegal.
Still there may be a problem. WCD solicits tax deductible donations on its website as a 501(c)(3) organizations. 501(c)(3)s are, of course, prohibited from supporting or opposing candidates for public office.
Now, WCD may have an affiliated 501(c)(4) corporation and they are permitted to engage in some political activity. But there are limits on the tax deductibility of moneys used for that purpose. I'd be reluctant to use a website that solicits contributions for the a 501(c)(3) as a vehicle for the political activities of a c(4), but I'll leave that to tax experts.
Mr. McCabe may argue that his issue ad is not phony. How he distinguishes his high minded discussion of issues from everyone else's low and "dishonest" promotion of candidates. I can't but then again I believe in free speech. For everyone.
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.
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.
Sunday, March 13, 2011
Sunday Songs for Everyone
While we wait for the brackets to be announced, why not post some Sunday music.
First, something we all should agree on. The young lads who make up SuperOpus are quite good. Here are some samples of their recent show at the BBC. (Ok, ok, the lead singer is Shark, Jr.)
I was at this show, but am not the one who took or posted these clips.
For those on the other side of politics (which is not life), I offer my favorite Irish commie band.
But for those with a different view of the Best Western 14:
First, something we all should agree on. The young lads who make up SuperOpus are quite good. Here are some samples of their recent show at the BBC. (Ok, ok, the lead singer is Shark, Jr.)
I was at this show, but am not the one who took or posted these clips.
For those on the other side of politics (which is not life), I offer my favorite Irish commie band.
But for those with a different view of the Best Western 14:
Saturday, March 12, 2011
Whoa Nelly! What's He Talking About?
I am not going to accuse Ed Garvey of lying. My impression of him - limited as it is - is that he is such a rabid ideologue that he actually believes whatever verbal gesticulation supports his position. But sometimes you just have to ask. Here is what he recently wrote about Justice David Prosser:
I have no idea what he's talking about. Ten years ago, Justice Prosser ran unopposed. I suspect that no one "poured" any nontrivial amount of money into a walkover. This year he is opposed, but it seems highly unlikely that anyone - let alone WMC - has spent anywhere near six million dollars on the race. Perhaps someone will (although there is not a lot of time left to do it), but it sure doesn't seem to have happened yet.
I have asked Garvey to substantiate his claim. If he can, I'll link to it here.
You know Prosser as the "WMC Justice." Wisconsin Manufacturers & Commerce put about $6 million into his campaign. They spent like drunken sailors on leave. But they were not drunk; they knew what they were purchasing and so do you.
I have no idea what he's talking about. Ten years ago, Justice Prosser ran unopposed. I suspect that no one "poured" any nontrivial amount of money into a walkover. This year he is opposed, but it seems highly unlikely that anyone - let alone WMC - has spent anywhere near six million dollars on the race. Perhaps someone will (although there is not a lot of time left to do it), but it sure doesn't seem to have happened yet.
I have asked Garvey to substantiate his claim. If he can, I'll link to it here.
Friday, March 11, 2011
Tracking the Budget Repair Bill
I've been down with a minor back injury for the past two days although I did crawl out of bed to talk to Channel 12 about the events of the last two days.
There is, it seems to me, a great irony about all of this. Democrats have referred to Republicans as "thugs" and "political criminals" when, in fact, the clear violation of a legal duty was the refusal of the fourteen Senate Democrats to comply with their body's own rules and the call that they return - a call that is plainly authorized by our state's constitution. If there are any "thugs" in the picture, the likely candidates are protesters who have done their best to disrupt the functioning of the legislature.
But what about the passage of a stripped down version of the bill? There are two areas of potential concern. One procedural and the other substantive. Let's start with process? Did the legislature violate the open meetings law. Sec. 19.84(3) of the state statutes requires 24 hours notice of the meeting of a governmental body "unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."
If the statute is applicable, the question becomes what good cause justified less than 24 hours notice? Assuming that good cause can be shown, was two hours notice given. There are some claims that the notice given around 4:09 and that the meeting began at 6:04. If that's so (it seems unclear when notice was posted) and if the statute applies, what is the impact of being five minutes late? Would a court really invalidate legislation for that reason? Apart from that, how did Senate Republicans manage to even create an issue. Couldn't the have scheduled the meeting for, say, 6:15? The matter seems to have been slopply handled but stating the counterfactual itself demonstrates the de minimis nature of any violation (assuming good cause to depart from twenty four notice can be shown.)
But it grows more complicated because the Republicans claim that sec. 19.84(3) does not apply at all. Sec. 19.87(3) of the statutes says that "[n]o provision of this subchapter [the open meeting law] which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule." Both the Senate and Assembly rules provide that, when in special session, the only notice required is posting on the legislative bulletin board without specification of a minimum notice period.
But we're still not done. Was the joint committee meeting itself proper? Joint Rule 3 of the legislature provides for such a meeting in the event that the Senate and Assembly disagree. The Democrats say that means that the Senate has to have voted on the bill. The Republicans say that it applies only when there is, in fact, a disagreement. No vote is required.
In any event, I can't see any of this resulting in invalidation since it requires an interpretation of the legislature's own rules. On close questions, in particular, I don't see a court upsetting the legislature's determination of what they require. This is particularly so in the event of an open meetings violation which, by law, renders an action not void but voidable. Sec. 19.97(3) says that a court should void an affectined action only it "the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken." I don't see much chance of that.
On the substance, the question is whether the legislature really stripped the bill of its fiscal provisions. A fiscal bill is constitutionally defined as one that "imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state ...." I don't think that limiting the authority of the state and local units of government to collectively bargain comes within that definition. But there is more than that in the bill that was passed. Much of it has to do with moving money around, but it is not clear that any of it is "fiscal" in this specialized use of the term. But I can't claim to have fully analyzed it.
Apart from the law, what strikes me as odd is the claim that the existence of these issues amounts to some kind of assault on democracy. This bill has been extensively debated and there is a level of public awareness concerning its terms that is unique. You may think it a bad bill but it is a product of democracy passed in the face of lawless behavior by the absconding Senators and, to a lesser extent, the childish antics of the protesters. If you're looking for an assault on the rule of law, look elsewhere.
There is, it seems to me, a great irony about all of this. Democrats have referred to Republicans as "thugs" and "political criminals" when, in fact, the clear violation of a legal duty was the refusal of the fourteen Senate Democrats to comply with their body's own rules and the call that they return - a call that is plainly authorized by our state's constitution. If there are any "thugs" in the picture, the likely candidates are protesters who have done their best to disrupt the functioning of the legislature.
But what about the passage of a stripped down version of the bill? There are two areas of potential concern. One procedural and the other substantive. Let's start with process? Did the legislature violate the open meetings law. Sec. 19.84(3) of the state statutes requires 24 hours notice of the meeting of a governmental body "unless for good cause such notice is impossible or impractical, in which case shorter notice may be given, but in no case may the notice be provided less than 2 hours in advance of the meeting."
If the statute is applicable, the question becomes what good cause justified less than 24 hours notice? Assuming that good cause can be shown, was two hours notice given. There are some claims that the notice given around 4:09 and that the meeting began at 6:04. If that's so (it seems unclear when notice was posted) and if the statute applies, what is the impact of being five minutes late? Would a court really invalidate legislation for that reason? Apart from that, how did Senate Republicans manage to even create an issue. Couldn't the have scheduled the meeting for, say, 6:15? The matter seems to have been slopply handled but stating the counterfactual itself demonstrates the de minimis nature of any violation (assuming good cause to depart from twenty four notice can be shown.)
But it grows more complicated because the Republicans claim that sec. 19.84(3) does not apply at all. Sec. 19.87(3) of the statutes says that "[n]o provision of this subchapter [the open meeting law] which conflicts with a rule of the senate or assembly or joint rule of the legislature shall apply to a meeting conducted in compliance with such rule." Both the Senate and Assembly rules provide that, when in special session, the only notice required is posting on the legislative bulletin board without specification of a minimum notice period.
But we're still not done. Was the joint committee meeting itself proper? Joint Rule 3 of the legislature provides for such a meeting in the event that the Senate and Assembly disagree. The Democrats say that means that the Senate has to have voted on the bill. The Republicans say that it applies only when there is, in fact, a disagreement. No vote is required.
In any event, I can't see any of this resulting in invalidation since it requires an interpretation of the legislature's own rules. On close questions, in particular, I don't see a court upsetting the legislature's determination of what they require. This is particularly so in the event of an open meetings violation which, by law, renders an action not void but voidable. Sec. 19.97(3) says that a court should void an affectined action only it "the public interest in the enforcement of this subchapter outweighs any public interest which there may be in sustaining the validity of the action taken." I don't see much chance of that.
On the substance, the question is whether the legislature really stripped the bill of its fiscal provisions. A fiscal bill is constitutionally defined as one that "imposes, continues or renews a tax, or creates a debt or charge, or makes, continues or renews an appropriation of public or trust money, or releases, discharges or commutes a claim or demand of the state ...." I don't think that limiting the authority of the state and local units of government to collectively bargain comes within that definition. But there is more than that in the bill that was passed. Much of it has to do with moving money around, but it is not clear that any of it is "fiscal" in this specialized use of the term. But I can't claim to have fully analyzed it.
Apart from the law, what strikes me as odd is the claim that the existence of these issues amounts to some kind of assault on democracy. This bill has been extensively debated and there is a level of public awareness concerning its terms that is unique. You may think it a bad bill but it is a product of democracy passed in the face of lawless behavior by the absconding Senators and, to a lesser extent, the childish antics of the protesters. If you're looking for an assault on the rule of law, look elsewhere.
Thursday, March 10, 2011
Shame Is Right
Yesterday I blogged about the way in which a prominent Madison attorney wants to argue that a constitutional provison designed to protect the largislature's ability to function could, in fact, be used to prevent the legislature from functioning.
Today, we have claims that acting to prevent public disription of our democratically elected legislature is an assault on democracy.
I understand how public employees would want to keep collective bargaining laws as they are now. But this law does not "kill the middle class" or take away fundamental human rigts. There are all sorts of states the have similar (or more substantial) restrictions on collective bargaining. Most federal employees are sunject to similar restrictions and the overwhelming majority of private sector employees do not collectively bargain.
So this is the battlefield on which our constitutional processes should be shredded/ There is indeed shame that should be felt. But it is the protesters and their handlers; it is the lawless senators who should be ashamed of themselves.
Today, we have claims that acting to prevent public disription of our democratically elected legislature is an assault on democracy.
I understand how public employees would want to keep collective bargaining laws as they are now. But this law does not "kill the middle class" or take away fundamental human rigts. There are all sorts of states the have similar (or more substantial) restrictions on collective bargaining. Most federal employees are sunject to similar restrictions and the overwhelming majority of private sector employees do not collectively bargain.
So this is the battlefield on which our constitutional processes should be shredded/ There is indeed shame that should be felt. But it is the protesters and their handlers; it is the lawless senators who should be ashamed of themselves.
Wednesday, March 09, 2011
Sure they can be apprehended and compelled to return
In the Losing Touch With Reality Department:
Blogging lawyer Mike Plaisted was impressed by a memo prepared by Lester Pines essentially concluding that legislators are exempt from arrest and thus the Senate has no way to exercise its constitutional authority to compel the attendance of missing members. Noting that I have consulted with lawyers who brought a petition for a writ of mandamus (indeed I was on the pleadings) and who represented the Senate in connection with the decision to hold the missing 14 in contempt, Plaisted pronounces that Lester "kicked my legal ass." Also, I'm a nut and an arrogant bastard. (Civility is not Mike's thing.}
I do lock heads with Lester from time to time and I expect I'll continue to do so. Sometimes kick my butt. Other times I'll kick his. He is a worthy opponent and I have invited him to my Supreme Court conference the last two years. He can expect an invitation this year as well.
But, in this instance, Lester (and Plaisted) are wrong - spectacularly so. There is no doubt that Senators have a duty to attend. The constitution clearly gives each house of the legislator the authority to compel attendance. Article IV, sec. 7“compel the attendance of absent members in such manner and under such penalties as each house may provide.” In the case, the Senate rules state that, when a quorum is lacking, missing members are to be identified to the Sergeant at arms who is authorized to bring them in. That resistance to a call to return is punishable by contempt is made clear in Art. IV, sec. 8.
Now there is a provision in the Constitution that exempts legislators from arrest or civil process during and immediately before or after a legislative session - subject to certain exceptions. But to apply it here is a perversion of its purpose. Historically, the immunity of legislators from arrest has been a protection against interference by outsiders with the legislative function. Art. IV, sec. 15 is designed to protect legislators in the performance of their legislative duties and prevent the executive, for example, from prohibiting the attendance of legislators through arrest or civil process. They are not intended to hamstring the legislature from the enforcement of its rules and taking those steps necessary to enable it to function. There is, then, no conflict among Art. IV, §§ 7, 8 and 15. They are complementary provisions in service of the same end. Constitutional language is to be harmonized whenever possible and should not be contrued to render one a dead letter.
Even were this not the case, general rules of constitutional construction require that the specific (enforcement of the duty to attend) control the general (immunity from arrest or civil process). Lester also relies on sec. 13.26 of the statutes which specifies when the legislature can punish a contemnor by imprisonment for disregard of its privileges or those of its members. Not applicable here. First, the legislature is not proposing to punish the missing Senator by imprisonment. Second, it is attempting to enforce its privileges. Indeed, it easier to read 13.26 as authorizing imprisonment of the missing 14 for failure to attend.
There are instances in which legislators have been apprehended and brought into a legislative chamber. For example, Sen. Bob Packwood was carried feet first into the Senate - notwithstanding the fact that there are parallel provisions in the United States Constitution regarding immunity from arrest.
And, of course, the Democrats on the run know this. It is why they are hiding. It is why they have left the state. If they really thought they were immune from apprehension, there would have been no need to go to the mattresses.
Plaisted's description of our Oconto County law suit is inaccurate. We didn't file a writ, we requested one and the case was not dismissed. What the judge did do was indicate that it was the prerogative of the Senate to enforce or not enforce its rules. That's not a surprise. I suggested as much on Fox News the week before.
I shouldn't be surprised at Mike. He closes his post with a bizarre story about this being somewhat akin to the freeing of Joshua Glover because, of course, restricting collective bargaining rights that don't exist for federal employees and in a number of states is like slavery.
I would think that Lester and Mike and others should think twice before defending this stunt. I am sure that, at some point in the future, the Democrats will be back in power. They may want to raise taxes and increase spending. Do they really want to establish the right of 14 Republican Senators to prevent that by running away?
Because this "by any means necessary" stuff cuts both ways.
Blogging lawyer Mike Plaisted was impressed by a memo prepared by Lester Pines essentially concluding that legislators are exempt from arrest and thus the Senate has no way to exercise its constitutional authority to compel the attendance of missing members. Noting that I have consulted with lawyers who brought a petition for a writ of mandamus (indeed I was on the pleadings) and who represented the Senate in connection with the decision to hold the missing 14 in contempt, Plaisted pronounces that Lester "kicked my legal ass." Also, I'm a nut and an arrogant bastard. (Civility is not Mike's thing.}
I do lock heads with Lester from time to time and I expect I'll continue to do so. Sometimes kick my butt. Other times I'll kick his. He is a worthy opponent and I have invited him to my Supreme Court conference the last two years. He can expect an invitation this year as well.
But, in this instance, Lester (and Plaisted) are wrong - spectacularly so. There is no doubt that Senators have a duty to attend. The constitution clearly gives each house of the legislator the authority to compel attendance. Article IV, sec. 7“compel the attendance of absent members in such manner and under such penalties as each house may provide.” In the case, the Senate rules state that, when a quorum is lacking, missing members are to be identified to the Sergeant at arms who is authorized to bring them in. That resistance to a call to return is punishable by contempt is made clear in Art. IV, sec. 8.
Now there is a provision in the Constitution that exempts legislators from arrest or civil process during and immediately before or after a legislative session - subject to certain exceptions. But to apply it here is a perversion of its purpose. Historically, the immunity of legislators from arrest has been a protection against interference by outsiders with the legislative function. Art. IV, sec. 15 is designed to protect legislators in the performance of their legislative duties and prevent the executive, for example, from prohibiting the attendance of legislators through arrest or civil process. They are not intended to hamstring the legislature from the enforcement of its rules and taking those steps necessary to enable it to function. There is, then, no conflict among Art. IV, §§ 7, 8 and 15. They are complementary provisions in service of the same end. Constitutional language is to be harmonized whenever possible and should not be contrued to render one a dead letter.
Even were this not the case, general rules of constitutional construction require that the specific (enforcement of the duty to attend) control the general (immunity from arrest or civil process). Lester also relies on sec. 13.26 of the statutes which specifies when the legislature can punish a contemnor by imprisonment for disregard of its privileges or those of its members. Not applicable here. First, the legislature is not proposing to punish the missing Senator by imprisonment. Second, it is attempting to enforce its privileges. Indeed, it easier to read 13.26 as authorizing imprisonment of the missing 14 for failure to attend.
There are instances in which legislators have been apprehended and brought into a legislative chamber. For example, Sen. Bob Packwood was carried feet first into the Senate - notwithstanding the fact that there are parallel provisions in the United States Constitution regarding immunity from arrest.
And, of course, the Democrats on the run know this. It is why they are hiding. It is why they have left the state. If they really thought they were immune from apprehension, there would have been no need to go to the mattresses.
Plaisted's description of our Oconto County law suit is inaccurate. We didn't file a writ, we requested one and the case was not dismissed. What the judge did do was indicate that it was the prerogative of the Senate to enforce or not enforce its rules. That's not a surprise. I suggested as much on Fox News the week before.
I shouldn't be surprised at Mike. He closes his post with a bizarre story about this being somewhat akin to the freeing of Joshua Glover because, of course, restricting collective bargaining rights that don't exist for federal employees and in a number of states is like slavery.
I would think that Lester and Mike and others should think twice before defending this stunt. I am sure that, at some point in the future, the Democrats will be back in power. They may want to raise taxes and increase spending. Do they really want to establish the right of 14 Republican Senators to prevent that by running away?
Because this "by any means necessary" stuff cuts both ways.
Thursday, March 03, 2011
Senate Orders Democrats to Return
In a brief memorandum opinion yesterday, Judge found that the respondent State Senator had violated his plain duty to attend a Senate session. He also held - and I was not surprised - that the Senate had the authority to enforce its rule of compulsory attendance.
Today the Senate decided to do just that. It has ordered the absconding fourteen to return by fourteen by 4 pm today. If they do not do so, they will be in contempt of the Senate and the Sergeant at Arms will be ordered to bring them in - with the help of law enforcement if necessary.
By way of full disclosure, I consulted with lawyers advising the Senate - again on a pro bono basis. The authority of the Senate to do this is clear. Article VII, sec. 7 gives each house of the legislature the power to compel the attendance of absent members to obtain a quorum. The Senate's own rules require attendance and provide for the Sergeant at arms to be directed to compel bring them in. Art. VIII, sec. 8 of the Constitution says that Article IV, § 8 provides that “each house may determine the rules of its own proceedings, [and] punish for contempt and disorderly behavior.”
There are relatively few precedents for this because relatively few legislators have behaved so irresponsibly for such a lengthy period of time. (In fact, the scofflaws - and that's what they are - have arguably gone beyond any prior example of this anywhere.) But there are examples of legislators being arrested and compelled to attend to obtain a forum. It has been done by the United States Senate, the Alaska Senate and the New Hampshire house.
Today the Senate decided to do just that. It has ordered the absconding fourteen to return by fourteen by 4 pm today. If they do not do so, they will be in contempt of the Senate and the Sergeant at Arms will be ordered to bring them in - with the help of law enforcement if necessary.
By way of full disclosure, I consulted with lawyers advising the Senate - again on a pro bono basis. The authority of the Senate to do this is clear. Article VII, sec. 7 gives each house of the legislature the power to compel the attendance of absent members to obtain a quorum. The Senate's own rules require attendance and provide for the Sergeant at arms to be directed to compel bring them in. Art. VIII, sec. 8 of the Constitution says that Article IV, § 8 provides that “each house may determine the rules of its own proceedings, [and] punish for contempt and disorderly behavior.”
There are relatively few precedents for this because relatively few legislators have behaved so irresponsibly for such a lengthy period of time. (In fact, the scofflaws - and that's what they are - have arguably gone beyond any prior example of this anywhere.) But there are examples of legislators being arrested and compelled to attend to obtain a forum. It has been done by the United States Senate, the Alaska Senate and the New Hampshire house.
Tuesday, March 01, 2011
Absent legislators are not heroes
One of the sillier claims made over the contretemps in Madison - and its a robust competition - was made by George Lakoff. We should, he writes, call the fugitive Senators "the Lincoln legislators" and claims that are actually fulfilling our state's constitutional design. Quorum requirements, he asserts, were designed for just this purpose. The whole point, he says, is to allow a minority to paralyze a legislative body when it is about to do some thing they think his bad. This frustration of the will of a democratically elected body is an "essential part of democracy."
Really. I did not make that up. I am just not that imaginative.
Lakoff invokes a story claiming that Abraham Lincoln, as an Illinois legislator, jumped out of a window to destroy a quorum. Perhaps he did. But that doesn't make it right.
As a matter of Wisconsin's constitutional design, the argument that our framers intended quorum requirements to be used as a device to prevent a majority from acting is not only flat out wrong, it is frivolous. It requires one to ignore the language of the very constitutional provision creating the general requirement of a quorum. It states that, if a quorum is not present, those lesser numbers of legislators who are present to compel the attendance of those who are absent. If the framers of the Wisconsin Constitution had attended quorum requirements to be a device for frustrating the will of a legislative majority, they would not have given the body the power to compel attendance.
Rather than permitting a rump of a legislative body to prevent the enactment of law by the body as a whole by deliberating staying away, they were intended to prevent a rump from enacting law without permitting the participation of those who are absent. Lincoln may have been a great man, but not everything a great man does is great.
Lakoff is, of course, known for advancing a well known trope of progressives. The idea is that Democrats lose elections because Republicans are so much better at framing the issues in ways that are perverse and false and confusing. Whatever the merits of that claim, he has certainly shown how it's done.*
* I am one of the lawyers for the plaintiff in Barthel v. Holperin, litigation filed today in the Circuit Court for Oconto County seeking to compel one of the missing legislators to return. Any work I have done or will do in the case is being done pro bono.
Really. I did not make that up. I am just not that imaginative.
Lakoff invokes a story claiming that Abraham Lincoln, as an Illinois legislator, jumped out of a window to destroy a quorum. Perhaps he did. But that doesn't make it right.
As a matter of Wisconsin's constitutional design, the argument that our framers intended quorum requirements to be used as a device to prevent a majority from acting is not only flat out wrong, it is frivolous. It requires one to ignore the language of the very constitutional provision creating the general requirement of a quorum. It states that, if a quorum is not present, those lesser numbers of legislators who are present to compel the attendance of those who are absent. If the framers of the Wisconsin Constitution had attended quorum requirements to be a device for frustrating the will of a legislative majority, they would not have given the body the power to compel attendance.
Rather than permitting a rump of a legislative body to prevent the enactment of law by the body as a whole by deliberating staying away, they were intended to prevent a rump from enacting law without permitting the participation of those who are absent. Lincoln may have been a great man, but not everything a great man does is great.
Lakoff is, of course, known for advancing a well known trope of progressives. The idea is that Democrats lose elections because Republicans are so much better at framing the issues in ways that are perverse and false and confusing. Whatever the merits of that claim, he has certainly shown how it's done.*
* I am one of the lawyers for the plaintiff in Barthel v. Holperin, litigation filed today in the Circuit Court for Oconto County seeking to compel one of the missing legislators to return. Any work I have done or will do in the case is being done pro bono.
Is Langley Right?
So is Governor Walker's budget repair bill unconstitutional? Milwaukee City Attorney Grant Langley says so. Is he right? I have serious doubts. Here are some preliminary observations.
At the outset, we should note that Langley claims only that that a particular provision prohibiting cities of the first class (a category that contains only Milwaukee) from paying the employee's portion of its retirement plan (in effect, prohibiting an automatic enhancement of wages paid in the form of a pension contribution). This is, of course, the concession that we are now told the public employee unions are willing to make. Langley says, in effect, that each employee individually must consent to this. (He would probably also say that the employees unions can consent for them, but if his opinion is generally correct, it is not clear at all that this is so.)
His opinion says nothing about the restriction in collective bargaining rights although his argument based on home rule might apply to it as well.
Having said that, the opinion's conclusions seem wrong. First, it claims that the City has home rule rights guaranteed by the state's constitution. It certainly has those rights but the law permits the state to interfere with a local unit of government's affairs when they pertain to a matter of state wide concern. The opinion simply assumes this issue away, largely relying on legislative pronouncements from the first half of the twentieth century.
What the opinion ignores - and should not have - is the Governor's stated rationale for the proposed limitations on municipal contributions. Far more than in the 1930s and 1940s, Milwaukee is a supplicant of the state. It lives on money from Madison. If that is the case, then how it spends its money arguably becomes a matter of statewide concern.
More startling is the opinion's conclusion that pension contributions (as opposed to vested pension benefits) are frozen forever at the time an employee becomes part of the city's retirement system. It seems to say that, if an employee was getting 5.5% of his pay contributed toward a pension at the time he joined the system, that he is entitled to get it until he leaves city employment.
If that's the case, then the taxpayers of Milwaukee ought to be outraged that their elected officials could ever have let such a thing happen. If that's the case, then the point that I and others have been making about the ways in which public employee unions capture their governmental employers ought to be considered an immutable law of nature.
But I'm not so sure that is the case. The authority that Langley relies upon seems just as easily - and perhaps more readily understood - to apply to an employee's vested benefits, i.e., what they have already earned in terms of pension benefits, as opposed to creating an immutable right to future contributions that can never be altered.
What is evident is that City taxpayers should hope - fervently - that Langley is wrong. And city employees should not be overly encouraged. If the state cuts municipal aid, it remains the case that - even if the city must continue to contribute 5% of salary to the pension of each employee hired before this year - there is no right (at least after the expiration of existing collective bargaining agreements) to any particular salary level. If the city can no longer afford the 5%, it can simply reduce or freeze wages. If collective bargaining makes this impossible, there is an even more sobering prospect for city employees.
There is no constitutional right to a job.
At the outset, we should note that Langley claims only that that a particular provision prohibiting cities of the first class (a category that contains only Milwaukee) from paying the employee's portion of its retirement plan (in effect, prohibiting an automatic enhancement of wages paid in the form of a pension contribution). This is, of course, the concession that we are now told the public employee unions are willing to make. Langley says, in effect, that each employee individually must consent to this. (He would probably also say that the employees unions can consent for them, but if his opinion is generally correct, it is not clear at all that this is so.)
His opinion says nothing about the restriction in collective bargaining rights although his argument based on home rule might apply to it as well.
Having said that, the opinion's conclusions seem wrong. First, it claims that the City has home rule rights guaranteed by the state's constitution. It certainly has those rights but the law permits the state to interfere with a local unit of government's affairs when they pertain to a matter of state wide concern. The opinion simply assumes this issue away, largely relying on legislative pronouncements from the first half of the twentieth century.
What the opinion ignores - and should not have - is the Governor's stated rationale for the proposed limitations on municipal contributions. Far more than in the 1930s and 1940s, Milwaukee is a supplicant of the state. It lives on money from Madison. If that is the case, then how it spends its money arguably becomes a matter of statewide concern.
More startling is the opinion's conclusion that pension contributions (as opposed to vested pension benefits) are frozen forever at the time an employee becomes part of the city's retirement system. It seems to say that, if an employee was getting 5.5% of his pay contributed toward a pension at the time he joined the system, that he is entitled to get it until he leaves city employment.
If that's the case, then the taxpayers of Milwaukee ought to be outraged that their elected officials could ever have let such a thing happen. If that's the case, then the point that I and others have been making about the ways in which public employee unions capture their governmental employers ought to be considered an immutable law of nature.
But I'm not so sure that is the case. The authority that Langley relies upon seems just as easily - and perhaps more readily understood - to apply to an employee's vested benefits, i.e., what they have already earned in terms of pension benefits, as opposed to creating an immutable right to future contributions that can never be altered.
What is evident is that City taxpayers should hope - fervently - that Langley is wrong. And city employees should not be overly encouraged. If the state cuts municipal aid, it remains the case that - even if the city must continue to contribute 5% of salary to the pension of each employee hired before this year - there is no right (at least after the expiration of existing collective bargaining agreements) to any particular salary level. If the city can no longer afford the 5%, it can simply reduce or freeze wages. If collective bargaining makes this impossible, there is an even more sobering prospect for city employees.
There is no constitutional right to a job.
Wednesday, February 23, 2011
Shark on Fox News
This afternoon I appeared on Fox News with Megyn Kelly on our lamming legislators. Nothing I haven't said here and elsewhere. It's pretty hard to justify.
Shark on WPRR
Last Friday I was a guest on Joy Cardin's show on Friday morning. The archive is here. I mention it, in part, because I got an email from an employee of the UW Hospital who said I "lied" because I denied that the bill was abolishing public employee unions and said that it restricted rather than eliminated collective bargaining rights.
I stand by what I said but it's worth qualifying. She was concerned because the bill apparently does eliminate collective bargaining for certain employees of the UW and UW Hospital. I haven't worked through all of the amendments to chapter 233 but fair enough. We were talking about the bill as a whole but she is entitled to be raise her own particular situation.
I stand by what I said but it's worth qualifying. She was concerned because the bill apparently does eliminate collective bargaining for certain employees of the UW and UW Hospital. I haven't worked through all of the amendments to chapter 233 but fair enough. We were talking about the bill as a whole but she is entitled to be raise her own particular situation.
A Fireside Chat for the Twenty-First Century
The "fireside chat" is associated with Franklin Delano Roosevelt. Scott Walker, who gave his own version last night, may share some things in common with FDR. For those of you in Dane County, stay with me.
It's not that FDR was "really" a conservative. I dislike Presidential revisionism and FDR was a conservative as much as Reagan was a liberal, i.e., not at all. FDRs was quite clearly - in American terms - a man of the left - someone whose views would probably render him unelectable today.
It's not simply that he was FDR of collective bargaining in the public sector. He wasn't but that point has been made and Walker's opponents are determined to ignore it and the reasons behind it.
No, it's that Walker - like FDR and Reagan - appears to believe that he was elected to do something other than secure another term. That's rare in a politician. (Incidentally, I give Obama credit for the same quality even as I disagree with what he wants to do.) Walker has diagnosed a problem and proposed a solution that creates the structural reform that his diagnosis calls for.
Unions are an effort to grant labor near-monopoly power and move the supply curve up. The result - in almost every case - is as follows. First, unemployment happens. Employers will hire fewer people if they must pay more. Second, for those lucky enough to keep their jobs, compensation will be higher. If you regard the world as a Dickensian place made up of greedy and powerful employers exploiting defenseless workers, this might be a good thing. If employers are earning greater than competitive profits, the job loss may be small and the wage gain may be high.
I would argue that this dark satanic world is no longer the one we live in. But it is almost certainly not the world in which public employees live. Management is unlikely to play Scrooge to WEAC's Cratchits because WEAC members pool their resources and exert a disproportionate influence on whether Scrooge stays in charge of the counting house.
Collective bargaining in the public sector simply isn't adversarial in the same way that it is in the private sector. This is why Democrats - who are elected to represent the government's "management" - support collective bargaining. You will find almost no manager in the private sector who wants anything to do with unions. Yet Democrats seem to want to pay state employers more of the taxpayer's money.
The reason is simple. There is no special interest that is more important to keeping Democrats in business. In supporting public employee unions, they are simply doing the honorable thing. Having been "bought," they are staying "bought," i.e., they are supporting the folks who put them where they are. The problem is that when you combine this with collective bargaining protection - essentially the right of employees to try to fix the price of labor, you run the risk of collusion.
Of course, these collusive results are not popular with the rest of us so they tend to be made opaque - hidden in the form of work rules, fringes and promises to retirees. Walker understands this and knows that closing the immediate budget gap is only the beginning of the fiscal challenge that Wisconsin is facing. In limiting the nature of collective bargaining agreements that states and local units of government can agree to, he is attacking the structural problem. He is actually doing something that might, for better or worse, make a difference.
It's not that FDR was "really" a conservative. I dislike Presidential revisionism and FDR was a conservative as much as Reagan was a liberal, i.e., not at all. FDRs was quite clearly - in American terms - a man of the left - someone whose views would probably render him unelectable today.
It's not simply that he was FDR of collective bargaining in the public sector. He wasn't but that point has been made and Walker's opponents are determined to ignore it and the reasons behind it.
No, it's that Walker - like FDR and Reagan - appears to believe that he was elected to do something other than secure another term. That's rare in a politician. (Incidentally, I give Obama credit for the same quality even as I disagree with what he wants to do.) Walker has diagnosed a problem and proposed a solution that creates the structural reform that his diagnosis calls for.
Unions are an effort to grant labor near-monopoly power and move the supply curve up. The result - in almost every case - is as follows. First, unemployment happens. Employers will hire fewer people if they must pay more. Second, for those lucky enough to keep their jobs, compensation will be higher. If you regard the world as a Dickensian place made up of greedy and powerful employers exploiting defenseless workers, this might be a good thing. If employers are earning greater than competitive profits, the job loss may be small and the wage gain may be high.
I would argue that this dark satanic world is no longer the one we live in. But it is almost certainly not the world in which public employees live. Management is unlikely to play Scrooge to WEAC's Cratchits because WEAC members pool their resources and exert a disproportionate influence on whether Scrooge stays in charge of the counting house.
Collective bargaining in the public sector simply isn't adversarial in the same way that it is in the private sector. This is why Democrats - who are elected to represent the government's "management" - support collective bargaining. You will find almost no manager in the private sector who wants anything to do with unions. Yet Democrats seem to want to pay state employers more of the taxpayer's money.
The reason is simple. There is no special interest that is more important to keeping Democrats in business. In supporting public employee unions, they are simply doing the honorable thing. Having been "bought," they are staying "bought," i.e., they are supporting the folks who put them where they are. The problem is that when you combine this with collective bargaining protection - essentially the right of employees to try to fix the price of labor, you run the risk of collusion.
Of course, these collusive results are not popular with the rest of us so they tend to be made opaque - hidden in the form of work rules, fringes and promises to retirees. Walker understands this and knows that closing the immediate budget gap is only the beginning of the fiscal challenge that Wisconsin is facing. In limiting the nature of collective bargaining agreements that states and local units of government can agree to, he is attacking the structural problem. He is actually doing something that might, for better or worse, make a difference.
Monday, February 21, 2011
Madison Parties Like it's 1939
There is something almost retro about the drama in Madison. If there is a future for the Democratic Party in Wisconsin (and there certainly is), I would not think that it is rooted in support for labor unions - entities that have become all but irrelevant in the economy at large for reasons that are unlikely to change. I had this vision of Pete Seeger coming to the rotunda and croaking about Joe Hill and the copper bosses. I actually saw a sign calling upon the "Workers of the World to Unite." Note to Madison: The Revolution crapped out.
Madison has all the drawbacks of a company town. People in Dane County actually think that this collective temper tantrum is working. They are proud of themselves. The rest of us are not proud of them. One of the most amazing things was to see doctors openly engaged in - it's not too strong a word - fraud and justify it on the grounds of "social activism." One of my favorites was the doctor who thought that his decision to whore out was protected by confidentiality. Lawyers famously love doctor clients. Something about them is irredeemably clueless.
Giving people sick notes is not protected by the physician-patient privilege. The privilege protects things that people intend to keep confidential. Sick notes are, by definition, not that. Read the statute. If you put your health in issue (by calling in sick), your communications with your doc are not private.
Madison has all the drawbacks of a company town. People in Dane County actually think that this collective temper tantrum is working. They are proud of themselves. The rest of us are not proud of them. One of the most amazing things was to see doctors openly engaged in - it's not too strong a word - fraud and justify it on the grounds of "social activism." One of my favorites was the doctor who thought that his decision to whore out was protected by confidentiality. Lawyers famously love doctor clients. Something about them is irredeemably clueless.
Giving people sick notes is not protected by the physician-patient privilege. The privilege protects things that people intend to keep confidential. Sick notes are, by definition, not that. Read the statute. If you put your health in issue (by calling in sick), your communications with your doc are not private.
Sunday, February 20, 2011
Sunday for Senators, part two
Take that ---- public!
We're gone
We're running
We're holed up
Cause we got debts no honest man can pay
And we're a bit confused
We're gone
We're running
We're holed up
Cause we got debts no honest man can pay
And we're a bit confused
Sunday for Senators, part one
The lam is a lonely place. Oh, it may sound romantic and exciting. Staying one step ahead of the law, matching wits with the pursuit, living on the edge, evading your oath of office and becoming a national joke. But the reality is more quotidian. Empty hours, truck stop food, boredom. Just a lot of ennui, you know?
You sit on twin beds and watch movies. In the spirit of bipartisanship and in recognition of the possibility that, all things considered, having Lena Taylor and Fred Risser in Illinois may not be all bad, here is some suggested viewing.
A friend recommends All The President's Men, Benjie Returns, Ghost Dad and Escape to Witch Mountain. All good. I add the following:
The Godfather There's that scene between Marty Beil and Jon Erpenbach. Erpenbach has not treated Beil with respect. He has not offered friendship. He does not think to call Beil "Godfather." Beil can't remember the last time he was invited over for a cup of coffee. But they patch things up. Marty puts his arm around Erpenbach. "Some day, and that day may never come, I will call upon you to do a service for me." Good stuff. Reminds you of just why you're at the Quality Inn in Peoria. Then there's the part where Michael Corleone improves negotiations with Sollozzo by shooting him in the face.
The Warriors.If only for that scene at the end where Scott Walker clicks those little bottles together. "Democrats, come out and play - yay." But Local 36 of the Riffs get him!
Downfall. It sure ends badly for Scott Walker in that bunker in Berlin!
Then there's those movies that demonstrate the successes of organized labor. Like Norma Rae. If it weren't for women like Chrystal Lee Sutton (the real life "Norma") that shirt you're wearing would probably have been made in China! There wouldn't even be textile mills in North Carolina! Or maybe they could watch season two of The Wire which shows how labor unions saved the port of Baltimore from being turned into condominiums by season four. Or that great classic On The Waterfront. Watch Johnnie Friendly give that scab Terry Malloy a one-way ticket to palookaville! Face it, Malloy, a bum is what you are!
You sit on twin beds and watch movies. In the spirit of bipartisanship and in recognition of the possibility that, all things considered, having Lena Taylor and Fred Risser in Illinois may not be all bad, here is some suggested viewing.
A friend recommends All The President's Men, Benjie Returns, Ghost Dad and Escape to Witch Mountain. All good. I add the following:
The Godfather There's that scene between Marty Beil and Jon Erpenbach. Erpenbach has not treated Beil with respect. He has not offered friendship. He does not think to call Beil "Godfather." Beil can't remember the last time he was invited over for a cup of coffee. But they patch things up. Marty puts his arm around Erpenbach. "Some day, and that day may never come, I will call upon you to do a service for me." Good stuff. Reminds you of just why you're at the Quality Inn in Peoria. Then there's the part where Michael Corleone improves negotiations with Sollozzo by shooting him in the face.
The Warriors.If only for that scene at the end where Scott Walker clicks those little bottles together. "Democrats, come out and play - yay." But Local 36 of the Riffs get him!
Downfall. It sure ends badly for Scott Walker in that bunker in Berlin!
Then there's those movies that demonstrate the successes of organized labor. Like Norma Rae. If it weren't for women like Chrystal Lee Sutton (the real life "Norma") that shirt you're wearing would probably have been made in China! There wouldn't even be textile mills in North Carolina! Or maybe they could watch season two of The Wire which shows how labor unions saved the port of Baltimore from being turned into condominiums by season four. Or that great classic On The Waterfront. Watch Johnnie Friendly give that scab Terry Malloy a one-way ticket to palookaville! Face it, Malloy, a bum is what you are!
Thursday, February 17, 2011
If You Think Scott Walker Is Like Hitler, Your History Teacher Was Overpaid
I understand that everyone from Patrick Dorwin to Charlie Sykes to Jay Nordlinger has linked to the well done GOP video contrasting liberal concern over the rhetoric of the Tea Pary with the rhetoric of opponents of the Governor's proposals on collective bargaining in the public sector. The video is well done and makes a valid point, but there is one part in particular that deserves special mention.
Comparisons of Scott Walker to Adolf Hitler are surpassing ignorant and offensive. In this case, though, it hasn't just been overwrought protesters who indulged themselves. State Sen. Lena Taylor warns us that "Hitler abolished unions in 1933" and that's "what our Governor is doing today." The implication is that the Governor's limitation of collective bargaining by public employees (something that wasn't widely permitted until the sixties and seventies and still isn't in some states)is comparable to and somehow of a piece with the dangers and horrors of National Socialism.
She is, of course, wrong as a factual matter. Twice. Walker hasn't proposed the abolition of public employee unions - much less "unions" in general - and there actually were unions in the Third Reich. In fact, the national trade union organization, the Deutsche Arbeitsfront, was run by an alcoholic and corrupt socialist sympathizer named Robert Ley. It administered a wide variety of often elaborate worker benefits as part of a program called Kraft durch Freude ("Strength through Joy"). Ley ultimately hung himself before he could be tried at Nuremberg.
To be sure, the DAF was controlled by the state. But everything in Nazi Germany was controlled by the state and party pursuant to a policy of "Gleichschaltung" - or "coordination." That's precisely why the comparison - even were it true - would be so preposterous and shameful. In a very real sense, Hitler tried to abolish or transform every institution that is familiar to us (including the family).
I hadn't appreciated that Scott Walker has proposed a totalitarian state or anything like it. I did hear that he wants public employees to pay amounts toward their retirement and health insurance that are higher than current levels but still much lower than the average for the rest of us. I guess I missed the part where people were going to be dragged from their homes and sent to concentration camps. I read that he has proposed a modification of the authority of state and local governments to enter into collective bargaining agreements and collect dues on behalf of unions, but must have overlooked the abolition of the rights of free speech and association. I saw that he wants voter approval of raises above the cost of living for unionized public employees (i.e., those represented by the unions that he hasn't abolished). But who knew that this was somehow the equivalent of forced sterilization and extermination camps?
I hadn't noticed that the budget adjustment bill sets up a WalkerJugend in which all children must be enrolled or that it establishes a paramilitary organization - maybe called the Leibstandarte SS- Rebecca Kleedfisch - to intimidate political opponents and "undesirables." I'll have to read it again.
It's funny, but it's not. All of us - across the political spectrum - are burdened by people who say foolish things. It is one thing for idiotic Hitler comparisons to be made by anonymous protesters holding homemade signs (although the probability tht they are public school teachers is frightening). After all, we on the right had to live down hairbrush moustaches drawn on President Obama.
But it's another thing for the same odious comparison to be made by someone who claims to be a community leader. Where ever she is hiding tonight, Lena Taylor should be ashamed. When she and her colleagues decide to come out and abide by their oath of office, she should apologize.
Comparisons of Scott Walker to Adolf Hitler are surpassing ignorant and offensive. In this case, though, it hasn't just been overwrought protesters who indulged themselves. State Sen. Lena Taylor warns us that "Hitler abolished unions in 1933" and that's "what our Governor is doing today." The implication is that the Governor's limitation of collective bargaining by public employees (something that wasn't widely permitted until the sixties and seventies and still isn't in some states)is comparable to and somehow of a piece with the dangers and horrors of National Socialism.
She is, of course, wrong as a factual matter. Twice. Walker hasn't proposed the abolition of public employee unions - much less "unions" in general - and there actually were unions in the Third Reich. In fact, the national trade union organization, the Deutsche Arbeitsfront, was run by an alcoholic and corrupt socialist sympathizer named Robert Ley. It administered a wide variety of often elaborate worker benefits as part of a program called Kraft durch Freude ("Strength through Joy"). Ley ultimately hung himself before he could be tried at Nuremberg.
To be sure, the DAF was controlled by the state. But everything in Nazi Germany was controlled by the state and party pursuant to a policy of "Gleichschaltung" - or "coordination." That's precisely why the comparison - even were it true - would be so preposterous and shameful. In a very real sense, Hitler tried to abolish or transform every institution that is familiar to us (including the family).
I hadn't appreciated that Scott Walker has proposed a totalitarian state or anything like it. I did hear that he wants public employees to pay amounts toward their retirement and health insurance that are higher than current levels but still much lower than the average for the rest of us. I guess I missed the part where people were going to be dragged from their homes and sent to concentration camps. I read that he has proposed a modification of the authority of state and local governments to enter into collective bargaining agreements and collect dues on behalf of unions, but must have overlooked the abolition of the rights of free speech and association. I saw that he wants voter approval of raises above the cost of living for unionized public employees (i.e., those represented by the unions that he hasn't abolished). But who knew that this was somehow the equivalent of forced sterilization and extermination camps?
I hadn't noticed that the budget adjustment bill sets up a WalkerJugend in which all children must be enrolled or that it establishes a paramilitary organization - maybe called the Leibstandarte SS- Rebecca Kleedfisch - to intimidate political opponents and "undesirables." I'll have to read it again.
It's funny, but it's not. All of us - across the political spectrum - are burdened by people who say foolish things. It is one thing for idiotic Hitler comparisons to be made by anonymous protesters holding homemade signs (although the probability tht they are public school teachers is frightening). After all, we on the right had to live down hairbrush moustaches drawn on President Obama.
But it's another thing for the same odious comparison to be made by someone who claims to be a community leader. Where ever she is hiding tonight, Lena Taylor should be ashamed. When she and her colleagues decide to come out and abide by their oath of office, she should apologize.
Senate Democrats:Down By Law?
Rumor has it that the Senate Democrats are holed up in a motel in Rockford, Illinois. If that's so, I'm disappointed. If you're going to lam it, why not head to some place fun?
What you may ask, are the legalities of the matter? Why are they hiding? Why have they left the state? Why not simply refuse to come to work?
The Wisconsin Constitution clearly authorizes each house of the legislature to compel the attendance of members in order to obtain a quorum. Each house may do so by whatever means or penalties it prescribes. In the case of the Wisconsin Senate, the Sergeant-at-arms is authorized to "bring in" absent members.
What does that mean? Can the sergeant-at-arms have them arrested? Apparently some people are taking the position that they can be "chased" but not "arrested." That's unclear. Legislators are normally immune from "arrest on civil process" during legislative sessions but that is only while they are "in actual attendance upon the duties" of their office. These legislators are in fact ignoring - actually fleeing from - the duties of their office. We are in uncharted territory, but its not clear to me that they can't be arrested, although that would be an extraordinary thing to do.
This is probably why they left the state. The Wisconsin State Police cannot arrest them in Illinois (if that's where they are) and the law enforcement authorities in Illinois are probably only too happy to stay out of this mess.
So what to do? Here's something to think about. A quorum is normally a majority of each house. The reason that the Republicans can't proceed without Democrats here is because the budget adjustment bill is a fiscal bill and the state constitution provides that, for a fiscal bill, the required quorum is three-fifths of each house.
Ironically, though, the provisions that are most objected to by the Democrats - the prospective limitation of collective bargaining rights - are not fiscal provisions. They could presumably be put in a separate bill and passed by the Republicans with no Democrats in attendance because, for that bill, a simple majority would constitute a quorum. I'm not suggesting that the GOP Senators would or should do this. But I think that they could.
What you may ask, are the legalities of the matter? Why are they hiding? Why have they left the state? Why not simply refuse to come to work?
The Wisconsin Constitution clearly authorizes each house of the legislature to compel the attendance of members in order to obtain a quorum. Each house may do so by whatever means or penalties it prescribes. In the case of the Wisconsin Senate, the Sergeant-at-arms is authorized to "bring in" absent members.
What does that mean? Can the sergeant-at-arms have them arrested? Apparently some people are taking the position that they can be "chased" but not "arrested." That's unclear. Legislators are normally immune from "arrest on civil process" during legislative sessions but that is only while they are "in actual attendance upon the duties" of their office. These legislators are in fact ignoring - actually fleeing from - the duties of their office. We are in uncharted territory, but its not clear to me that they can't be arrested, although that would be an extraordinary thing to do.
This is probably why they left the state. The Wisconsin State Police cannot arrest them in Illinois (if that's where they are) and the law enforcement authorities in Illinois are probably only too happy to stay out of this mess.
So what to do? Here's something to think about. A quorum is normally a majority of each house. The reason that the Republicans can't proceed without Democrats here is because the budget adjustment bill is a fiscal bill and the state constitution provides that, for a fiscal bill, the required quorum is three-fifths of each house.
Ironically, though, the provisions that are most objected to by the Democrats - the prospective limitation of collective bargaining rights - are not fiscal provisions. They could presumably be put in a separate bill and passed by the Republicans with no Democrats in attendance because, for that bill, a simple majority would constitute a quorum. I'm not suggesting that the GOP Senators would or should do this. But I think that they could.
Days of Rage? Why?
On Monday, I decided to write a column on Governor Walkers's proposal to restrict the collective bargaining rights of public employees. My point was to highlight the historic critique of pubic employee unionization and the insights into collective bargaining in the public sector provided by public choice theory.
The column ran in Tuesday's Milwaukee Journal Sentinel. I'll be discussing it tomorrow on Joy Cardin's show on Wisconsin Public Radio (in either the 7:00 or 7:30 segment). The basic point is that the traditional rationale for unions doesn't work well in the public sector.
Unions are supposed to empower workers in unequal bargaining situations. In economic terms, they are intended to move the supply curve for labor so that the equilibrium wage is higher than it otherwise would be.
But in the public sector, unions tend to, if not capture the employer, exert significant influence on it. This is because the interest of, say, a teacher's union on the composition of a school board and district policy - at least with respect to compensation - is far greater than that of the rest of us. Public choice theory suggests that this will result in unions having disproportionate influence on the public bodies that employ them - quite apart from labor negotiations. To put it bluntly, the officials who employ them may well owe their jobs to union support (or fear their ability to keep them without union support).
Given the absence of competititon in the public sector, this moves the demand curve as well. The distinction between management and labor which supposedly creates the unequal bargaining situation that justifies unions becomes blurred. The result is a tendency for public bodies to reward their union constituents in ways that aren't readily apparent to taxpayers. This is why collective bargaining agreements in the public sector tend to be heavy on fringe benefits and emoluments at retirement.
The response to Walker's proposal is making my point. The "uprising" at the Capitol is unlike the Tea Party. It is the yelp of a large special interest. The alarm with which Democrats are greeting the proposal is, in large part, fueled by concern over losing a large base of organizational and financial support. Walker's proposal is radical not because it is "mean" or will impoverish public workers. It will do neither. What it will do is reduce the influence of unions on public bodies and their ability to serve as political sponsors.
That's what these "days of rage" are about. The Walker proposal may be fiscally necessary but it is potentially a political game changer.
The column ran in Tuesday's Milwaukee Journal Sentinel. I'll be discussing it tomorrow on Joy Cardin's show on Wisconsin Public Radio (in either the 7:00 or 7:30 segment). The basic point is that the traditional rationale for unions doesn't work well in the public sector.
Unions are supposed to empower workers in unequal bargaining situations. In economic terms, they are intended to move the supply curve for labor so that the equilibrium wage is higher than it otherwise would be.
But in the public sector, unions tend to, if not capture the employer, exert significant influence on it. This is because the interest of, say, a teacher's union on the composition of a school board and district policy - at least with respect to compensation - is far greater than that of the rest of us. Public choice theory suggests that this will result in unions having disproportionate influence on the public bodies that employ them - quite apart from labor negotiations. To put it bluntly, the officials who employ them may well owe their jobs to union support (or fear their ability to keep them without union support).
Given the absence of competititon in the public sector, this moves the demand curve as well. The distinction between management and labor which supposedly creates the unequal bargaining situation that justifies unions becomes blurred. The result is a tendency for public bodies to reward their union constituents in ways that aren't readily apparent to taxpayers. This is why collective bargaining agreements in the public sector tend to be heavy on fringe benefits and emoluments at retirement.
The response to Walker's proposal is making my point. The "uprising" at the Capitol is unlike the Tea Party. It is the yelp of a large special interest. The alarm with which Democrats are greeting the proposal is, in large part, fueled by concern over losing a large base of organizational and financial support. Walker's proposal is radical not because it is "mean" or will impoverish public workers. It will do neither. What it will do is reduce the influence of unions on public bodies and their ability to serve as political sponsors.
That's what these "days of rage" are about. The Walker proposal may be fiscally necessary but it is potentially a political game changer.
Saturday, February 12, 2011
Fighting the Last War in Supreme Court Race
The three challengers to Justice David Prosser seem to want Justice Michael Gableman the issue. Oh, to be sure, that's not what they say. It's not Gableman, it's the fact that Justice Prosser joined two other justices in voting to affirm a unanimous three judge panel recommending that Gableman not be disciplined for his infamous Reuben Mitchell ad.
Let's look at that. Our blogging friend Tom Foley seems to think that the problem is that the Prosser three are guilty of "exonerating Gableman from any wrongdoing ...."
Well, that's not right. The three concluded only that, if the ad violated the applicable disciplinary rule, it only violated the "aspirational" part of the rule (because they thought it was only "misleading" and not literally false). The law is clear that discipline may not be imposed for violation of an aspirational rule. That's hardly exoneration from "any wrongdoing. The three did not say that there was nothing wrong with the ad. In fact, they called it distasteful.
Candidate Marla Stephens addresses the issue, criticizing the conclusion that the ad violated only the aspirational part of the rule. The court was wrong because "[y]ou don't take a statement and parse it . . . phrase by phrase. You take a statement as a whole," and then, presumably impose discipline - perhaps even overturn the results of an election - if you conclude that the statement was false.
I don't think she means it. At least I hope she doesn't. Do we want courts or legislatures (because the principle would apply in other contexts) that are often composed of hostile or interested parties to undermine the will of the voters by concluding that a campaign communication "really" conveyed a message that is false? Is she really willing to apply that standard across the board?
I hope not because there are few campaigns that do not run ads that can be characterized as objectively false.
There is another take on the Gableman ad that we don't hear as often and which is, I think, closer to the real objection. It seems to me that the problem with the Mitchell ad was not that it implied something that was false, i.e., that Butler got Mitchell released and he offended again. (In fact, he failed to get Mitchell released and the offense was committed after completion of his sentence.)
Imagine that this part was true or that the ad had made clear what actually happened. Would critics of the ad be any happier? As one of those critics, I would not. It was Butler's job to represent Mitchell and he ought not to be blamed for what Mitchell's sunsequent crimes if it turns out that he was wrongfully convicted.
There are some who would argue that Gableman should be disciplined - or at least criticized - for such an ad because it misleads the public about the nature of the legal system. But once again, it's unclear that they are willing to apply such a standard across the board. In her latest reelection campaign, Chief Justice Abrahamson ran ads in which she was lauded as an "ally of law enforcement." Not as provoctive, to be sure, but also misleading.
Let's look at that. Our blogging friend Tom Foley seems to think that the problem is that the Prosser three are guilty of "exonerating Gableman from any wrongdoing ...."
Well, that's not right. The three concluded only that, if the ad violated the applicable disciplinary rule, it only violated the "aspirational" part of the rule (because they thought it was only "misleading" and not literally false). The law is clear that discipline may not be imposed for violation of an aspirational rule. That's hardly exoneration from "any wrongdoing. The three did not say that there was nothing wrong with the ad. In fact, they called it distasteful.
Candidate Marla Stephens addresses the issue, criticizing the conclusion that the ad violated only the aspirational part of the rule. The court was wrong because "[y]ou don't take a statement and parse it . . . phrase by phrase. You take a statement as a whole," and then, presumably impose discipline - perhaps even overturn the results of an election - if you conclude that the statement was false.
I don't think she means it. At least I hope she doesn't. Do we want courts or legislatures (because the principle would apply in other contexts) that are often composed of hostile or interested parties to undermine the will of the voters by concluding that a campaign communication "really" conveyed a message that is false? Is she really willing to apply that standard across the board?
I hope not because there are few campaigns that do not run ads that can be characterized as objectively false.
There is another take on the Gableman ad that we don't hear as often and which is, I think, closer to the real objection. It seems to me that the problem with the Mitchell ad was not that it implied something that was false, i.e., that Butler got Mitchell released and he offended again. (In fact, he failed to get Mitchell released and the offense was committed after completion of his sentence.)
Imagine that this part was true or that the ad had made clear what actually happened. Would critics of the ad be any happier? As one of those critics, I would not. It was Butler's job to represent Mitchell and he ought not to be blamed for what Mitchell's sunsequent crimes if it turns out that he was wrongfully convicted.
There are some who would argue that Gableman should be disciplined - or at least criticized - for such an ad because it misleads the public about the nature of the legal system. But once again, it's unclear that they are willing to apply such a standard across the board. In her latest reelection campaign, Chief Justice Abrahamson ran ads in which she was lauded as an "ally of law enforcement." Not as provoctive, to be sure, but also misleading.
Friday, February 11, 2011
Candor in the Supreme Court Race
Yesterday I had the opportunity to appear as a guest on Charlie Sykes show, Vickie McKenna's Madison program and a morning show in Fort Atkinson discussing the Supreme Court primary. Throughout the day, I had occasion to think about how much we lawyers and legal academics try to hide the ball on questions of judicial selection.
On the one hand, we have charges of judicial activism largely hurled by conservatives at liberals. I have done it and its not all wrong. In the modern era, the development of methods of interpretation that maximize a judge's discretion, i.e., give her greater leeway to depart from unambigiuous text or some notion of its original meaning has most often been championed in the course of reaching or advocating for results that we would call "liberal" or "progressive." It hasn't always been that way and there is no ironclad rule that it has to be that way (text and original understanding will not always lead to "conservative" results), but that's been the general lay of the land.
Of course, the allegation of activism and call for something like strict construction is an oversimplification. No one - at least no one since Bill Douglas - thinks that judges can do whatever they want and no one really believes that judging (at least at the level of law development) is a technical exercise from which all value and ideological judgements can be excluded.
If that's so, we are all, to a greater or lesser degree, judicial activists. So there is some truth in the standard liberal rejoinder that charges of "activism" can be misleading. But to say that the concepts of "activism" and "restraint" are meaningless or that judges don't differ in interpretive method is also an oversimplification. Both sides draw caricatures.
But there is an ironic twist to this.
Judicial candidates who claim the mantle of restraint also tend to tell us how they will exercise whatever amount of discretion they have. They claim to be "conservatives" so that, it turns out, we know that when they feel free or compelled to make ideological judgments they will do so from a more conservative perspective. So Justice David Prosser tells us that he is a champion of judicial restraint. I think that he is. But he also tells us that he is a conservative.
Candidates who abjure charges of activism - generally because they believe that judges must resort to their own values and ideology to a greater extent than is commonly supposed - tend not to tell us what values and ideology they hold. They deny being activists. They may even say that they believe the charges of activism is meaningless.
But they don't tell us how they see things. We know, for example, that candidates such as Marla Stephens and Joanne Kloppenburg have problems with the current conservative majority on the Court. But they won't match Prosser's candor. They won't tell us that they are liberals.
This isn't because they are dishonest people or because they fail to understand how ideology matters. It is because it would be political suicide. Voters tend not to want "liberal" or "progressive" judges, largely because of concern about criminal justice issues and the left's postwar project of judicially mandated social change.
Although I dislike the word "activism," I believe that it does make some sense to talk about the degree of a candidate's commitment to judicial restraint. But I also recognize that ideology - at least at the level of the Wisconsin Supreme Court - still matters. There is often room for a judge's values to influence a decision. In fact, it is sometimes impossible to make a decision without them. So when I hear candidates say that their ideology is irrelevant, I roll my eyes. They are hiding the ball.
On the one hand, we have charges of judicial activism largely hurled by conservatives at liberals. I have done it and its not all wrong. In the modern era, the development of methods of interpretation that maximize a judge's discretion, i.e., give her greater leeway to depart from unambigiuous text or some notion of its original meaning has most often been championed in the course of reaching or advocating for results that we would call "liberal" or "progressive." It hasn't always been that way and there is no ironclad rule that it has to be that way (text and original understanding will not always lead to "conservative" results), but that's been the general lay of the land.
Of course, the allegation of activism and call for something like strict construction is an oversimplification. No one - at least no one since Bill Douglas - thinks that judges can do whatever they want and no one really believes that judging (at least at the level of law development) is a technical exercise from which all value and ideological judgements can be excluded.
If that's so, we are all, to a greater or lesser degree, judicial activists. So there is some truth in the standard liberal rejoinder that charges of "activism" can be misleading. But to say that the concepts of "activism" and "restraint" are meaningless or that judges don't differ in interpretive method is also an oversimplification. Both sides draw caricatures.
But there is an ironic twist to this.
Judicial candidates who claim the mantle of restraint also tend to tell us how they will exercise whatever amount of discretion they have. They claim to be "conservatives" so that, it turns out, we know that when they feel free or compelled to make ideological judgments they will do so from a more conservative perspective. So Justice David Prosser tells us that he is a champion of judicial restraint. I think that he is. But he also tells us that he is a conservative.
Candidates who abjure charges of activism - generally because they believe that judges must resort to their own values and ideology to a greater extent than is commonly supposed - tend not to tell us what values and ideology they hold. They deny being activists. They may even say that they believe the charges of activism is meaningless.
But they don't tell us how they see things. We know, for example, that candidates such as Marla Stephens and Joanne Kloppenburg have problems with the current conservative majority on the Court. But they won't match Prosser's candor. They won't tell us that they are liberals.
This isn't because they are dishonest people or because they fail to understand how ideology matters. It is because it would be political suicide. Voters tend not to want "liberal" or "progressive" judges, largely because of concern about criminal justice issues and the left's postwar project of judicially mandated social change.
Although I dislike the word "activism," I believe that it does make some sense to talk about the degree of a candidate's commitment to judicial restraint. But I also recognize that ideology - at least at the level of the Wisconsin Supreme Court - still matters. There is often room for a judge's values to influence a decision. In fact, it is sometimes impossible to make a decision without them. So when I hear candidates say that their ideology is irrelevant, I roll my eyes. They are hiding the ball.
Wednesday, February 09, 2011
Packers Postscript
As post Super Bowl euphoria begins to subside, I note that we are already thinking about next year. There's a certain irony in that. Teams struggle and their fans sweat blood over the course of a season in the unlikely hope that they can win it all. And then - a few days later - the question turns to the next struggle. That tells us something about life (or at least human nature) and may prompt some questions as well.
I have to admit that I didn't think the Packers could do it this year. I thought that the loss of Finley and Grant took just enough way from the offense and I couldn't get away from the fear that someone would eventually exploit a defense that had become increasingly populated by guys that were entering sales trainee programs at the beginning of the season. But I guess Dom Capers really is a genius.
People have commented to death on the idea that Brett Favre's Wisconsin star has fallen in a way that no one could have predicted. Bart Starr did not fall as far after an uninspired turn as Packer coach ended by an utter brain freeze that gave the last game of the season - and the playoffs - the Bears in 1983. My son still remembers how incensed I was. He was not to be born for another month.
But the real miracle is that we now love Ted Thompson. We know that his draft will leave us scratching our heads. He'll be reaching and passing over media favorites. He won't sign a free agent. He'll explain nothing. But, for now and for a while, we will follow.
I have to admit that I didn't think the Packers could do it this year. I thought that the loss of Finley and Grant took just enough way from the offense and I couldn't get away from the fear that someone would eventually exploit a defense that had become increasingly populated by guys that were entering sales trainee programs at the beginning of the season. But I guess Dom Capers really is a genius.
People have commented to death on the idea that Brett Favre's Wisconsin star has fallen in a way that no one could have predicted. Bart Starr did not fall as far after an uninspired turn as Packer coach ended by an utter brain freeze that gave the last game of the season - and the playoffs - the Bears in 1983. My son still remembers how incensed I was. He was not to be born for another month.
But the real miracle is that we now love Ted Thompson. We know that his draft will leave us scratching our heads. He'll be reaching and passing over media favorites. He won't sign a free agent. He'll explain nothing. But, for now and for a while, we will follow.
Wednesday, February 02, 2011
Why Do Out of State Persons Contribute to State Supreme Court Candidates?
So wonders our friend Tom Foley. After all, he says, "[i]t has no jurisdiction beyond these borders."
I don't blame Tom for blotting out memories of first year Civil Procedure (and, depending on one's practice, the question may not come up much in the daily life of a lawyer), but this is not quite true. Remember International Shoe and the rise of "minimum contacts? C'mon, say it with me. It'll only hurt for a moment. A state's courts may exercise jurisdiction over an out of state defendant who has minumum contacts with the state such that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.
So Wisconsin courts can do all sorts of things that affect persons who reside outside of the state but have the requisite contacts. Consider that wonderful Milwaukee company, Rite Hite, who I still have the privilege of serving as general counsel. We do business in every state in the union and can probably be sued in every state. Thus, those with an interest in Rite Hite have lesser or greater interests in the quality of jurisprudence in every state. I don't know that anyone associated with the company has ever contributed to a judicial campaign outside the state, but there would be nothing illegitimate and nefarious if someone did.
As for Tom's hope that the new public financing law will put an end to the influence of out of state donors, he's going to be disappointed. In many races, it will have little effect in that the public grant - at least for the general election - is more than most candidates can raise. But it is not enough to run a state wide race and is a small fraction of what the independents are willing to spend on a competitive race. So the funding for this race is going to come - on both sides - largely from out of state interests. The Impartial Justice Act makes that more, rather than less likely. Even for candidates like Marla Stephens who turn down public funding - "reform" has made it impossible for candidates to raise money for their own campaigns (It was already nearly so as Butler and Gableman's own fundraising showed) and the public grants are woefully inadequate for a state wide race. The independent groups will fill the void.
I don't blame Tom for blotting out memories of first year Civil Procedure (and, depending on one's practice, the question may not come up much in the daily life of a lawyer), but this is not quite true. Remember International Shoe and the rise of "minimum contacts? C'mon, say it with me. It'll only hurt for a moment. A state's courts may exercise jurisdiction over an out of state defendant who has minumum contacts with the state such that the exercise of jurisdiction will not offend traditional notions of fair play and substantial justice.
So Wisconsin courts can do all sorts of things that affect persons who reside outside of the state but have the requisite contacts. Consider that wonderful Milwaukee company, Rite Hite, who I still have the privilege of serving as general counsel. We do business in every state in the union and can probably be sued in every state. Thus, those with an interest in Rite Hite have lesser or greater interests in the quality of jurisprudence in every state. I don't know that anyone associated with the company has ever contributed to a judicial campaign outside the state, but there would be nothing illegitimate and nefarious if someone did.
As for Tom's hope that the new public financing law will put an end to the influence of out of state donors, he's going to be disappointed. In many races, it will have little effect in that the public grant - at least for the general election - is more than most candidates can raise. But it is not enough to run a state wide race and is a small fraction of what the independents are willing to spend on a competitive race. So the funding for this race is going to come - on both sides - largely from out of state interests. The Impartial Justice Act makes that more, rather than less likely. Even for candidates like Marla Stephens who turn down public funding - "reform" has made it impossible for candidates to raise money for their own campaigns (It was already nearly so as Butler and Gableman's own fundraising showed) and the public grants are woefully inadequate for a state wide race. The independent groups will fill the void.
Monday, January 31, 2011
Walker and wetlands
I'm not offering any opinion on the constitutionality of Gov. Walker's proposed bill exempting a parcel of land in Brown County from certain wetlands regulations. But there have been some misstatements in the blogosphere.
Blogging lawyer Mike Plaisted notes what he refers to as the state constitution's prohibition of private and local bills. Mike admits that he's a bit rusty on this. After all, he practices criminal law. But the thing is that there is no such general "prohibition" and certainly not in the provision that he cites. Art. IV, sec. 18 simply states that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." In other words, you can pass such a law in a single subject properly titled bill. (There is another provision, Art. IV, sec. 31, that does purport to prohibit certain type of special and private bills but it isn't applicable here.) Art. IV, sec. 18 is a procedural requirement, not a substantive prohibition.
Of course, Governors and legislatures have run circles around the requirement of a single subject, properly titled bill for years and it is often done as part of the budget bill. There are perfectly legal ways to do so. Mike seems to think this is a Republican trick. Actually, it's been a trick of whoever has power.
Exempting this project from the normal adminstrative review process reminded me, not of the Court of Appeals case that Mike refers to, but of Tony Earl's effort to place a prison in the Menomonee Valley. In that instance, the legislature exempted the project from normal environmental review and the Supreme Court stopped it, albeit on equal protection grounds.
As for the merits of "destroying wetlands," I can only say this. I am not an environmental lawyer but I have represented enough clients on developments to know that what the DNR thinks is a wetland would not necessarily be recognized as such by the rest of us and that wetlands protection in Wisconsin can approach a fetish as can the desire to protect things like suspected snake habitats. You may notice that large vacant parcels awaiting development are often farmed. There is a reason for that which has nothing to do with the desire to earn a few bucks while waiting for a buyer.
Blogging lawyer Mike Plaisted notes what he refers to as the state constitution's prohibition of private and local bills. Mike admits that he's a bit rusty on this. After all, he practices criminal law. But the thing is that there is no such general "prohibition" and certainly not in the provision that he cites. Art. IV, sec. 18 simply states that "[n]o private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title." In other words, you can pass such a law in a single subject properly titled bill. (There is another provision, Art. IV, sec. 31, that does purport to prohibit certain type of special and private bills but it isn't applicable here.) Art. IV, sec. 18 is a procedural requirement, not a substantive prohibition.
Of course, Governors and legislatures have run circles around the requirement of a single subject, properly titled bill for years and it is often done as part of the budget bill. There are perfectly legal ways to do so. Mike seems to think this is a Republican trick. Actually, it's been a trick of whoever has power.
Exempting this project from the normal adminstrative review process reminded me, not of the Court of Appeals case that Mike refers to, but of Tony Earl's effort to place a prison in the Menomonee Valley. In that instance, the legislature exempted the project from normal environmental review and the Supreme Court stopped it, albeit on equal protection grounds.
As for the merits of "destroying wetlands," I can only say this. I am not an environmental lawyer but I have represented enough clients on developments to know that what the DNR thinks is a wetland would not necessarily be recognized as such by the rest of us and that wetlands protection in Wisconsin can approach a fetish as can the desire to protect things like suspected snake habitats. You may notice that large vacant parcels awaiting development are often farmed. There is a reason for that which has nothing to do with the desire to earn a few bucks while waiting for a buyer.
Cap Times can' be serious about the supreme court
Recently, I chided the Cap Times for saying that "no serious observer" would doubt that Louis Butler would have been easily confirmed had he been white. The fact is that every serious observer should doubt that. Whether you think its proper or not, Butler is being opposed for his participation in a hard left swing on the Wisconsin Supreme Court during his tenure there. If he was the judicial clone of Clarence Thomas, the people who oppose him now would be falling all over themselves to support him. But the President would never have nominated him. Race, happily, has nothing to do with it.
Today it trots out that tired old phrase again, announcing that "no serious observer" would blame Chief Justice for the conflict on the Wisconsin Supreme Court. The unimaginative and (apparently) stylistically stunted editorial board pronounced themselves "taken aback" when Justice Prosser did so at a debate sponsored by the Milwaukee Bar Association. (NB: I moderated that debate.) The Cap can't understand this given that she "presided over the court when it was getting high marks for collegiality and efficiency."
The Cap Times needs to get out more. She did no such thing. In fact, no matter what you think of the Chief Justice, any "serious observer" would have to acknowledge that her tenure has been marked by conflict among the justices. It may not be her fault but she has absolutely not presided over a Court that has ever gotten high marks for collegiality.
That serious observer, apparently unlike the Cap Times, would recall that in 1999 - three years after she became Chief Justice and began to "preside" - a majority of her colleagues recruited a candidate - Sharon Rose of Green Bay - to run against her.
Not so collegial - but not ideologically based. The anti-Abrahamson group included Justice William Bablitch - a liberal who largely voted with the Chief in contested cases - and current Abrahamson ally Pat Crooks. It did not, as he pointed out in the debate, include Justice Prosser who was new to the Court.
Things quieted down - at least publicly - during the period that Diane Sykes was on the Court. This shouldn't surprise. There are few people on earth nicer than Diane Sykes. But contention flared up again after Judge Sykes was replaced by Louis Butler and the Court lurched left and into controversy.
I agree that the Chief Justice is very smart and has a strong national reputation. I have always found her to be charming on a personal level. But her tenure as Chief has been marked by extraordinary factionalism among the Justices. That's simply a fact that any "serious observer" would know.
Today it trots out that tired old phrase again, announcing that "no serious observer" would blame Chief Justice for the conflict on the Wisconsin Supreme Court. The unimaginative and (apparently) stylistically stunted editorial board pronounced themselves "taken aback" when Justice Prosser did so at a debate sponsored by the Milwaukee Bar Association. (NB: I moderated that debate.) The Cap can't understand this given that she "presided over the court when it was getting high marks for collegiality and efficiency."
The Cap Times needs to get out more. She did no such thing. In fact, no matter what you think of the Chief Justice, any "serious observer" would have to acknowledge that her tenure has been marked by conflict among the justices. It may not be her fault but she has absolutely not presided over a Court that has ever gotten high marks for collegiality.
That serious observer, apparently unlike the Cap Times, would recall that in 1999 - three years after she became Chief Justice and began to "preside" - a majority of her colleagues recruited a candidate - Sharon Rose of Green Bay - to run against her.
Not so collegial - but not ideologically based. The anti-Abrahamson group included Justice William Bablitch - a liberal who largely voted with the Chief in contested cases - and current Abrahamson ally Pat Crooks. It did not, as he pointed out in the debate, include Justice Prosser who was new to the Court.
Things quieted down - at least publicly - during the period that Diane Sykes was on the Court. This shouldn't surprise. There are few people on earth nicer than Diane Sykes. But contention flared up again after Judge Sykes was replaced by Louis Butler and the Court lurched left and into controversy.
I agree that the Chief Justice is very smart and has a strong national reputation. I have always found her to be charming on a personal level. But her tenure as Chief has been marked by extraordinary factionalism among the Justices. That's simply a fact that any "serious observer" would know.
Sunday, January 30, 2011
Lawyers Behaving Badly
Sunday morning's Milwaukee Journal Sentinel informed us that at least 135 lawyers with felony convictions are practcing law. Inside, it had the mug shots of twelve whose licenses and been suspended or revoked for criminal behavior. I looked over those mug shots and, sure enough, it seemed accurate. I was the referee who recommended that two of them be allowed to practice again. (I was initially the referee in Brian Burke's case but wound up recusing myself because I had written that no one should have gone to jail behind the caucus scandal.)
The article raised some interesting issues. Maybe we should automatically suspend lawyers upon conviction of a felony, although I will note that OLR not infrequently gets emergency suspensions pending completion of a full disciplinary proceeding. Perhaps there are certain crimes that should result in permanent suspension, although I am skeptical that we can write a rule that is better than the Court's exercise of judgment on this question. There are other issues that the reporters may want to pursue such as who gets disciplined, the resources devoted to the system and the exercise of charging discretion. I am also aware that there are a few notorious repeat offenders that the Court seems to have given a few too many chances.
But I don't believe that the system is "easy on lawyers." Reinstatement - whether from revocation or suspension (suspended lawyers are not automatically accepted back to the bar when the period of suspension is completed)- is not easy. One must retain counsel, file a petition requesting reinstatement, provide OLR with essentially any information it asks for and then have a public hearing before a referee. I recommended the reinstatement of Charlie Hausmann and Hazel Washington after evidentiary hearings in which I heard OLR's opposition and from witnesses called by both parties.
After the best deliberation I am capable of, I was convinced that both Mr. Hausmann and Ms. Washington understood what he or she did wrong, were remorseful, had paid a sufficient price and were unlikely to reoffend. When I have not been convinced of these things, I have recommended that reinstatement be denied. (My report in the Washington case was 22 pages.) The Journal Sentinel's statement that 60% of lawyers who apply for reinstatement get it does not shock me. Given the work involved, people whose cases are such that reinstatement is unlikely don't apply.
I do not believe that either attorneys Washington or Hausmann has gotten into more trouble. In fact, Mr. Hausmann later accepted my invitation to speak to law students about how he came to break the law and wind up in federal prison. He was not easy on himself. (I think he still gives this talk.)
It has never seemed to me that OLR is particularly easy on lawyers. As the paper noted, very few lawyers get charged but that's a meaningless number without knowing how many complaints the office gets. I can say that the office does not have a great deal of resources which may be one reason why more lawyers are not disciplined. It's easy to say that "lawyers should not regulate lawyers" and "doctors should not regulate doctors." But the intractable fact is that no one else can. Practicing law involves the application of professional expertise and judgment. While some cases are easy, others are not. It's hard for me to see how a system of discipline in which the decisionmakers lack the training and experience to assess the conduct of the accused would be "better."
A lot of this comes from the notorious case of Calument County DA Ken Krantz who made sexual advances upon a victim in a domestic abuse case. I don't know why OLR whiffed on that one and I am mindful of the fact that it can't defend itself. The facts as we know them (which I suspect are accurate) may not be same as the facts that were available to it. Putting that aside, he violated a number of rules and the alleged offense was serious - very serious. But one failure does not define the system.
The article raised some interesting issues. Maybe we should automatically suspend lawyers upon conviction of a felony, although I will note that OLR not infrequently gets emergency suspensions pending completion of a full disciplinary proceeding. Perhaps there are certain crimes that should result in permanent suspension, although I am skeptical that we can write a rule that is better than the Court's exercise of judgment on this question. There are other issues that the reporters may want to pursue such as who gets disciplined, the resources devoted to the system and the exercise of charging discretion. I am also aware that there are a few notorious repeat offenders that the Court seems to have given a few too many chances.
But I don't believe that the system is "easy on lawyers." Reinstatement - whether from revocation or suspension (suspended lawyers are not automatically accepted back to the bar when the period of suspension is completed)- is not easy. One must retain counsel, file a petition requesting reinstatement, provide OLR with essentially any information it asks for and then have a public hearing before a referee. I recommended the reinstatement of Charlie Hausmann and Hazel Washington after evidentiary hearings in which I heard OLR's opposition and from witnesses called by both parties.
After the best deliberation I am capable of, I was convinced that both Mr. Hausmann and Ms. Washington understood what he or she did wrong, were remorseful, had paid a sufficient price and were unlikely to reoffend. When I have not been convinced of these things, I have recommended that reinstatement be denied. (My report in the Washington case was 22 pages.) The Journal Sentinel's statement that 60% of lawyers who apply for reinstatement get it does not shock me. Given the work involved, people whose cases are such that reinstatement is unlikely don't apply.
I do not believe that either attorneys Washington or Hausmann has gotten into more trouble. In fact, Mr. Hausmann later accepted my invitation to speak to law students about how he came to break the law and wind up in federal prison. He was not easy on himself. (I think he still gives this talk.)
It has never seemed to me that OLR is particularly easy on lawyers. As the paper noted, very few lawyers get charged but that's a meaningless number without knowing how many complaints the office gets. I can say that the office does not have a great deal of resources which may be one reason why more lawyers are not disciplined. It's easy to say that "lawyers should not regulate lawyers" and "doctors should not regulate doctors." But the intractable fact is that no one else can. Practicing law involves the application of professional expertise and judgment. While some cases are easy, others are not. It's hard for me to see how a system of discipline in which the decisionmakers lack the training and experience to assess the conduct of the accused would be "better."
A lot of this comes from the notorious case of Calument County DA Ken Krantz who made sexual advances upon a victim in a domestic abuse case. I don't know why OLR whiffed on that one and I am mindful of the fact that it can't defend itself. The facts as we know them (which I suspect are accurate) may not be same as the facts that were available to it. Putting that aside, he violated a number of rules and the alleged offense was serious - very serious. But one failure does not define the system.
A Return to Sunday Songs
It's Sunday and it's January. January in Wisconsin has very few redeeming qualities and can only be endured through hope. I haven't done this for awhile but since one of my resolutions for 2011 is to return to Shark and Shepherd (I hope to), here's a hopeful song for Sunday from the energetic young Grace Potter and the Nocturnals. The song seems to be about friendship surprised by love but that' close enough enough and I really like it.
For those of you who prefer classic rock, here is Potter with Joe Statriani on Neil Young's Cortez the Killer. I love the way she drops Young's jarring lyric on human sacrifice. I get the point (the lyrical paen to Montezuma isn't to be taken literally)but it makes the song feel like multicultural sop and it has, I think, a deeper and more interesting point than that.
Finally, for a broader version of hope, here are Potter and the Nocturnals one more time with "Big White Gate."
For those of you who prefer classic rock, here is Potter with Joe Statriani on Neil Young's Cortez the Killer. I love the way she drops Young's jarring lyric on human sacrifice. I get the point (the lyrical paen to Montezuma isn't to be taken literally)but it makes the song feel like multicultural sop and it has, I think, a deeper and more interesting point than that.
Finally, for a broader version of hope, here are Potter and the Nocturnals one more time with "Big White Gate."
Wednesday, January 26, 2011
Supreme Court Race is On.
I just got off the air on WSAU in beautiful Wausau. The subject was the Wisconsin Supreme Court race and that will be the subject tomorrow at a forum sponsored by the Milwaukee Bar Association. The candidates for the Wisconsin Supreme Court and Milwaukee Circuit Court will be there. Yours truly will moderate.
One of the odd dynamics of this race will be the new public financing law. My sense is that it will result in rather anemic efforts by the candidate campaigns. The public grants are not adequate to run a statewide race and, if the race proves to be competitive, independent organizations will spend multiples of what the campaigns spend on media. Although one candidate, Marla Stephens, has "declined" public funding, correctly pointing out that, as a nonincumbent, she can't possibly run a credible statewide race on the amount provided. Nevertheless, word on the street is that she simply was unable to get her act together in time to qualify and, although she certainly is a serious and credible candidate, it is unclear that she can raise much more than the public grant. (I am unaware of her personal resources or willingness to commit them to the race.) Once again, it appears that the tenor and substance of the debate will be beyond the control of the candidates.
The new law seeks to address this by providing some additional public funding to candidates who face opposing independent expenditures (which will be, at least, both of the general election candidates.) But there are two problems.
The first is that these "matching funds" (and they are far from adequate to actually match what is likely to be spent) are only triggered by express advocacy for or against a candidate. That is easily avoided.
But there will probably be no need to do so. The "matching funds" provision is probably unconstitutional. A similar provision in Arizona is currently under review by the United States Supreme Court and that Court enjoined the operation of the law during the last election cycle. That is very likely to happen here as well so that the matching funds, even if they are triggered, will never be provided.
One of the odd dynamics of this race will be the new public financing law. My sense is that it will result in rather anemic efforts by the candidate campaigns. The public grants are not adequate to run a statewide race and, if the race proves to be competitive, independent organizations will spend multiples of what the campaigns spend on media. Although one candidate, Marla Stephens, has "declined" public funding, correctly pointing out that, as a nonincumbent, she can't possibly run a credible statewide race on the amount provided. Nevertheless, word on the street is that she simply was unable to get her act together in time to qualify and, although she certainly is a serious and credible candidate, it is unclear that she can raise much more than the public grant. (I am unaware of her personal resources or willingness to commit them to the race.) Once again, it appears that the tenor and substance of the debate will be beyond the control of the candidates.
The new law seeks to address this by providing some additional public funding to candidates who face opposing independent expenditures (which will be, at least, both of the general election candidates.) But there are two problems.
The first is that these "matching funds" (and they are far from adequate to actually match what is likely to be spent) are only triggered by express advocacy for or against a candidate. That is easily avoided.
But there will probably be no need to do so. The "matching funds" provision is probably unconstitutional. A similar provision in Arizona is currently under review by the United States Supreme Court and that Court enjoined the operation of the law during the last election cycle. That is very likely to happen here as well so that the matching funds, even if they are triggered, will never be provided.
Who Cares?
Do you pay much attention to the State of the Union Address? I don't. It's largely a poorly written litany of platitudes and promises that will not only not be fufilled, but won't even be attempted. It is nothing like the typical "State of the Company" address that one often sees in the private sector in that it makes absolutely no attempt to be candid about what the state of the union actually is. It is a campaign speech followed by another campaign speech by the opposition. The particulars of whatever the President says will bear little resemblance to what happens in the year to follow.
This State of the Union seems to be even less consequential than most years. The President is chastened. He pursued a bold change agenda in the first two years of his term and achieved some of it. At least for now, the voters don't much like it. So he has retrenched. The collectivism seems to have been toned down and the difficult choices, although acknowledged, either elided or deferred. (How any American President can continue to duck entitlement reform and call himself responsible is beyond me, but this one continues to do it. Unfortunately, his predecessors showed him the way.)
The problem is that Paul Ryan was right in his response: "We still have time . . . but not much time." I think that the President knows that, but he also fears that his preferred nostrums won't fly. So he plays small ball and temporizes. Ryan, like it or not, has a plan. The President gave a speech.
This State of the Union seems to be even less consequential than most years. The President is chastened. He pursued a bold change agenda in the first two years of his term and achieved some of it. At least for now, the voters don't much like it. So he has retrenched. The collectivism seems to have been toned down and the difficult choices, although acknowledged, either elided or deferred. (How any American President can continue to duck entitlement reform and call himself responsible is beyond me, but this one continues to do it. Unfortunately, his predecessors showed him the way.)
The problem is that Paul Ryan was right in his response: "We still have time . . . but not much time." I think that the President knows that, but he also fears that his preferred nostrums won't fly. So he plays small ball and temporizes. Ryan, like it or not, has a plan. The President gave a speech.
Thursday, January 20, 2011
The Cap Times Didn't Get the Memo
And ought to be ashamed of itself. Amidst calls by President Obama and others for greater civility in political discourse, the virtual paper from Madison decided to run an editorial on the Senate's failure to confirm Louis Butler's nomination for federal judgeship. That's certainly a salient topic and there are many interesting things to say about it.
But one of those things is not that the Butler nomination has been held because he is black. There is not a shred of evidence for that. This is not the only nomination that has been held and it is not hard to see why it is being held. While, as I have repeatedly said, Louis Butler is a smart and gifted lawyer, he espouses a judicial philosophy with which many disagree and, during his tenure on the state supreme court, he demonstrated a willingness to pursue it rather aggressively.
We can disagree about that philosophy and about the extent to which it ought to play a role in confirmation proceedings, but that is the issue in the Butler nomination.
Apparently concluding that genuine discourse would be too hard, the Cap Times has decided to play the Confederacy Card. The problem is Jeff Sessions (he's from Alabama) and those other GOP Senators - many of whom are from ... the South! The Cap Times says: "No serious observer doubts that, were Obama to nominate a white male
who was less qualified and less committed to a constitutionally based
application of the rule of law, the Senate would move quickly to
confirm the president’s pick."
Actually, I think that every serious observer doubts - or should doubt - that. Were Louis Butler white, the conservatives opposing him would be just as opposed. If Louis Butler espoused the same judicial philosophy as Clarence Thomas, they would love him (as they love Thomas; he's a rock star at conservative events).
There isn't a shred of evidence to the contrary. This is irresponsible and demagogic calumny. I'm not surprised that the piece is unsigned. If I had anything to do with it, I'd be ashamed too.
But one of those things is not that the Butler nomination has been held because he is black. There is not a shred of evidence for that. This is not the only nomination that has been held and it is not hard to see why it is being held. While, as I have repeatedly said, Louis Butler is a smart and gifted lawyer, he espouses a judicial philosophy with which many disagree and, during his tenure on the state supreme court, he demonstrated a willingness to pursue it rather aggressively.
We can disagree about that philosophy and about the extent to which it ought to play a role in confirmation proceedings, but that is the issue in the Butler nomination.
Apparently concluding that genuine discourse would be too hard, the Cap Times has decided to play the Confederacy Card. The problem is Jeff Sessions (he's from Alabama) and those other GOP Senators - many of whom are from ... the South! The Cap Times says: "No serious observer doubts that, were Obama to nominate a white male
who was less qualified and less committed to a constitutionally based
application of the rule of law, the Senate would move quickly to
confirm the president’s pick."
Actually, I think that every serious observer doubts - or should doubt - that. Were Louis Butler white, the conservatives opposing him would be just as opposed. If Louis Butler espoused the same judicial philosophy as Clarence Thomas, they would love him (as they love Thomas; he's a rock star at conservative events).
There isn't a shred of evidence to the contrary. This is irresponsible and demagogic calumny. I'm not surprised that the piece is unsigned. If I had anything to do with it, I'd be ashamed too.
Wednesday, January 19, 2011
Belling and the "Jewish" Power Structure
I don't blog much about Mark Belling. He has said and done things which I think make my side look bad and I don't much appreciate it. I rarely hear him (I must admit that, if I am in the car at that time, I am a bit more partial to the "Big Show" on 1250 AM) and did not hear the show in which he commented on the way in which certain powerful business people in Milwaukee "band together" to look out for one another. In commenting on the efforts of Steve and Greg Marcus and David Uihlein to block the Marriott Hotel project, he observed that members of this "old boys network" are friends and belong to the same country club. Inexplicably, he also noted that "[T}he fact that the majority of them are Jewish may be neither here nor there.”
My first reaction to this was that it is just screwy. Putting aside the Marcus' opposition to the Marriott (of course, they don't want a new competitor downtown anymore than the Packers welcomed the Bears' signing of Julius Peppers), I think it's safe to say that there is an old boys network (although it is less strong than it used to be). But it is also safe to say that it is predominantly not Jewish. To the extent that Belling's comments reflect bias, it is this weird trope that Jews have much more power than they do.
Perhaps Belling has imbibed that and it lead him to say something that is, at best, curious and, at worst, sort of ridiculous. But, having listened to the remark, I don't know that he consciously intended to express anti-semitic sentiment. He did present the (false)"fact" that a majority of the local power structure is Jewish as sort of a throwaway that didn't mean anything. While we could assume bad faith from the fact that he mentioned it at all, I'm not sure that accomplishes anything and may well be inaccurate. I don't know what's in his heart and I'm not going to presume that it includes anti-semitism.
By way of full disclosure, I am not Jewish in the sense that my Mother was a gentile and I was raised as a Catholic. But my father's family were ethnic German Jews. I would not have survived Nazi Germany and I suspect I have many unknown relatives who did not. My daughter-in-law is Jewish and my grandsons are being raised in the Jewish faith and tradition. So I don't take anti-semitism lightly. I'm just not willing to play that card here.
But my final reaction is that, if he's just can the distracting comment, this is what Belling does best - although I don't hear much of him doing it anymore. He is very good when it comes to sports and the inner machinations of power in the region. He is, I think, really a better reporter than an opinion guy. If he's do more of it, I might spend less time with Gary, Sparky and the gang.
My first reaction to this was that it is just screwy. Putting aside the Marcus' opposition to the Marriott (of course, they don't want a new competitor downtown anymore than the Packers welcomed the Bears' signing of Julius Peppers), I think it's safe to say that there is an old boys network (although it is less strong than it used to be). But it is also safe to say that it is predominantly not Jewish. To the extent that Belling's comments reflect bias, it is this weird trope that Jews have much more power than they do.
Perhaps Belling has imbibed that and it lead him to say something that is, at best, curious and, at worst, sort of ridiculous. But, having listened to the remark, I don't know that he consciously intended to express anti-semitic sentiment. He did present the (false)"fact" that a majority of the local power structure is Jewish as sort of a throwaway that didn't mean anything. While we could assume bad faith from the fact that he mentioned it at all, I'm not sure that accomplishes anything and may well be inaccurate. I don't know what's in his heart and I'm not going to presume that it includes anti-semitism.
By way of full disclosure, I am not Jewish in the sense that my Mother was a gentile and I was raised as a Catholic. But my father's family were ethnic German Jews. I would not have survived Nazi Germany and I suspect I have many unknown relatives who did not. My daughter-in-law is Jewish and my grandsons are being raised in the Jewish faith and tradition. So I don't take anti-semitism lightly. I'm just not willing to play that card here.
But my final reaction is that, if he's just can the distracting comment, this is what Belling does best - although I don't hear much of him doing it anymore. He is very good when it comes to sports and the inner machinations of power in the region. He is, I think, really a better reporter than an opinion guy. If he's do more of it, I might spend less time with Gary, Sparky and the gang.
Shark on Dead Tree
My latest column in the Milwaukee Journal Sentinel, commenting on the alchemy of schemes for job creation is here.
Regular readers of this blog will know that I am skeptical (actually derisive) of the notion that the President (much less the Governor) runs the economy and that the government ever "creates" jobs.
But I do part ways with some conservatives in suggesting that government can contribute to the creation of the conditions under which jobs may be created by doing something other than getting out of the way. There is infrastructure which is, at least as a practical matter, more efficient for government to provide. The set of those tasks is sunstantially smaller than the set of things that government currently does but it's not empty.
Regular readers of this blog will know that I am skeptical (actually derisive) of the notion that the President (much less the Governor) runs the economy and that the government ever "creates" jobs.
But I do part ways with some conservatives in suggesting that government can contribute to the creation of the conditions under which jobs may be created by doing something other than getting out of the way. There is infrastructure which is, at least as a practical matter, more efficient for government to provide. The set of those tasks is sunstantially smaller than the set of things that government currently does but it's not empty.
Tuesday, January 11, 2011
The Scoop on Redistricting
I'm sort of amused by the minor contretemps over whether the legislative Republicans ought to allow the legislative Democrats money to hire their own counsel for the upcoming redistricting.
The Wisconsin legislature hasn't successfully redrawn district lines in almost 80 years. The reason is that we generally haven't had single party control in a redistricting year (which, since the Supreme Court's "one-man, one vote" decisions in the '60s, has been every ten years).
As I pointed out in a pre-election column in the Milwaukee Journal Sentinel, single party control of the state house and both legislative chambers almost guarantees that this year will be an exception. Because there are relatively few ways to challenge a properly drawn plan, the redistricting this year will turn out to be what the Republicans want it to be.
This is because political gerrymandering is nonjusticiable, i.e., a plan can't be challenged in court because it is "unfair" to one party or another or was designed to protect incumbents and limit competition. Four justices of the current Supreme Court have held that this is a political matter and a fifth (guess which one) isn't sure it is but hasn't been able to imagine judicially manageable standards so, at least for now, won't entertain such challenges.
One can challenge a plan as a violation of the rights of minority voters and that is where drawing the plan raises legal questions. A plan can't improperly deprive minorities of the opportunity to elect candidates of their choice and that may require drawing supermajority minority districts (because minority voter turnout is normally lower than average).
But here's the thing. Creating such districts generally favors Republicans because it requires "packing" minority voters and, since these voters tend be overwhelmingly Democrats, that means packing Democrats. When, for example, we draw Gwen Moore's district to contain lots of minorities, we make it overwhelmingly Democratic and the surrounding districts become more Republican.
Doing this in the right way requires lawyers and that is why Fred Kessler's comments that there is no need for lawyers in redistricting and the the legislature's decision to retain Michael Best and the Troupis Law Offices could only have been a sop to lawyer campaign contributors. Jim Troupis is one of the best redistricting lawyers in the country. To say that he was hired because he gave money is one of the stupidest things I've heard a politician say on the subject.
Of course, it is true that one could (particularly if there were no minority vote dilution concerns) redistrict without lawyers. It is possible to program a computer to draw compact and contiguous districts of equal size that respect, to the extent possible, political and geographic boundaries.
But that would probably tend to favor Republicans because Democratic voters tend to be geographically concentrated. Democrats who are upset this year because of the Republicans' control over redistricting ought to be careful what they wish for.
The Wisconsin legislature hasn't successfully redrawn district lines in almost 80 years. The reason is that we generally haven't had single party control in a redistricting year (which, since the Supreme Court's "one-man, one vote" decisions in the '60s, has been every ten years).
As I pointed out in a pre-election column in the Milwaukee Journal Sentinel, single party control of the state house and both legislative chambers almost guarantees that this year will be an exception. Because there are relatively few ways to challenge a properly drawn plan, the redistricting this year will turn out to be what the Republicans want it to be.
This is because political gerrymandering is nonjusticiable, i.e., a plan can't be challenged in court because it is "unfair" to one party or another or was designed to protect incumbents and limit competition. Four justices of the current Supreme Court have held that this is a political matter and a fifth (guess which one) isn't sure it is but hasn't been able to imagine judicially manageable standards so, at least for now, won't entertain such challenges.
One can challenge a plan as a violation of the rights of minority voters and that is where drawing the plan raises legal questions. A plan can't improperly deprive minorities of the opportunity to elect candidates of their choice and that may require drawing supermajority minority districts (because minority voter turnout is normally lower than average).
But here's the thing. Creating such districts generally favors Republicans because it requires "packing" minority voters and, since these voters tend be overwhelmingly Democrats, that means packing Democrats. When, for example, we draw Gwen Moore's district to contain lots of minorities, we make it overwhelmingly Democratic and the surrounding districts become more Republican.
Doing this in the right way requires lawyers and that is why Fred Kessler's comments that there is no need for lawyers in redistricting and the the legislature's decision to retain Michael Best and the Troupis Law Offices could only have been a sop to lawyer campaign contributors. Jim Troupis is one of the best redistricting lawyers in the country. To say that he was hired because he gave money is one of the stupidest things I've heard a politician say on the subject.
Of course, it is true that one could (particularly if there were no minority vote dilution concerns) redistrict without lawyers. It is possible to program a computer to draw compact and contiguous districts of equal size that respect, to the extent possible, political and geographic boundaries.
But that would probably tend to favor Republicans because Democratic voters tend to be geographically concentrated. Democrats who are upset this year because of the Republicans' control over redistricting ought to be careful what they wish for.
Civility Is A Big Tent
The idea that the tragic shootings in Arizona over the weekend are attributable to the Tea Party, Sarah Palin, the right wing or "anti-government" rhetoric is too stupid to merit discussion. It is itself an example of the debasememnt of our political conversation.
It's not new. If, for example, you watch taped coverage of John F. Kennedy's assassination, there was an undercurrent of "blame the right wing" before Air Force One had even returned to Washington. To a large degree that bit of folk wisdom has continued to this day. Yet Kennedy was shot by a communist.
Still, I'm all for more civility in political discourse and have frequently blogged about it here. The first step in civility is to avoid the automatic presumption that your opponents are ignorant or acting in bad faith; that they are somehow not like you.
So I agree with Rep. Tammy Baldwin that we ought to find ways of deliberation and discourse that "respect difference of opinion." One place to start, of course, is to refrain from promiscuous allegations of "bigotry" and "hatred." It might continue with care about accusing others of "destroying" the government or leaving people to die.
It's not new. If, for example, you watch taped coverage of John F. Kennedy's assassination, there was an undercurrent of "blame the right wing" before Air Force One had even returned to Washington. To a large degree that bit of folk wisdom has continued to this day. Yet Kennedy was shot by a communist.
Still, I'm all for more civility in political discourse and have frequently blogged about it here. The first step in civility is to avoid the automatic presumption that your opponents are ignorant or acting in bad faith; that they are somehow not like you.
So I agree with Rep. Tammy Baldwin that we ought to find ways of deliberation and discourse that "respect difference of opinion." One place to start, of course, is to refrain from promiscuous allegations of "bigotry" and "hatred." It might continue with care about accusing others of "destroying" the government or leaving people to die.
Friday, January 07, 2011
2011 Predictions
I wanted to absorb a bit of the new year before making a few predictions. I did OK last year so I'm encouraged to try again.
1. The Packers will lose a close game to the Eagles but will edge out the Lions for the NFC North title in the fall.
2. The Brewers will be much better but not good enough to get past the Reds. They take the wild card but that's as far as they go.
3. The House votes to repeal ObamaCare. The Senate doesn't. The plan continues to be a riot of unintended consequences and unnoticed little gems.
4. Scott Walker has a historically successful legislative year that will end with public employee unions in full scale apoplexy. Here are a few: Concealed carry, Voter ID, a return to restrictions on local school spending and salaries, some significant move away from retiree health care and defined benefit plans and expanded school choice.
5. David Prosser is easily reelected to the Wisconsin Supreme Court.
6. The United States Supreme Court strikes down the matching funds provision of the Arizona Clean Elections Act. This means that the provisions in the Impartial Justice Act are gone as well. I don't think the Court cites my article but it should.
7. I have a feeling. The Supreme Court also strikes down the individual mandate in ObamaCare.
8. I have another feeling. Unemployment falls to 7%. Why? I don't know. I just think it's time.
9. There is a major move to abolish Milwaukee County as a distinct government entity and rumblings of MPS bankruptcy.
10. Watch this blog for big news.
1. The Packers will lose a close game to the Eagles but will edge out the Lions for the NFC North title in the fall.
2. The Brewers will be much better but not good enough to get past the Reds. They take the wild card but that's as far as they go.
3. The House votes to repeal ObamaCare. The Senate doesn't. The plan continues to be a riot of unintended consequences and unnoticed little gems.
4. Scott Walker has a historically successful legislative year that will end with public employee unions in full scale apoplexy. Here are a few: Concealed carry, Voter ID, a return to restrictions on local school spending and salaries, some significant move away from retiree health care and defined benefit plans and expanded school choice.
5. David Prosser is easily reelected to the Wisconsin Supreme Court.
6. The United States Supreme Court strikes down the matching funds provision of the Arizona Clean Elections Act. This means that the provisions in the Impartial Justice Act are gone as well. I don't think the Court cites my article but it should.
7. I have a feeling. The Supreme Court also strikes down the individual mandate in ObamaCare.
8. I have another feeling. Unemployment falls to 7%. Why? I don't know. I just think it's time.
9. There is a major move to abolish Milwaukee County as a distinct government entity and rumblings of MPS bankruptcy.
10. Watch this blog for big news.
Wednesday, January 05, 2011
Mayfair Need Only Avoid Unforced Errors
I agree with everyone who says that Mayfair needs to react proactively to Sunday's incident. I have long thought that it is a nonstarter to tell people that they ought not to be concerned with their security when they are concerned. Mayfair cannot let things like that happen and it's going to mean further restrictions on the use of the mall by young people. There is no point in discussing that.
My sense is that those efforts will be successful. Mayfair is not Northridge. It won't make Northridge's mistakes (if for no other reason than Northridge made them) and, more importantly, it doesn't bear the demographic burdens that Northridge came to bear. Northridge was located in an area that became increasingly ill suited for retail development both because of its distance from and inaccessibility to the residents of higher income areas and the problems that came to be posed for safety in the area from large public housing projects in the vicinity. I don't think that Northridge was ever as unsafe as many people thought it was but there is no question that the surrounding area detioriated.
Northridge may have, moreover, contributed to its own problems by moving away from retailers that would be more attractive to the more affluent shoppers to its far west and north, but that may have been a result more than a cause.
Mayfair, on the other hand, is located on the cusp between two relatively affluent suburbs and, most importantly, is easily accessible to the rest of the metropolitan area because it is at the confluence of two major freeways.
My sense is that those efforts will be successful. Mayfair is not Northridge. It won't make Northridge's mistakes (if for no other reason than Northridge made them) and, more importantly, it doesn't bear the demographic burdens that Northridge came to bear. Northridge was located in an area that became increasingly ill suited for retail development both because of its distance from and inaccessibility to the residents of higher income areas and the problems that came to be posed for safety in the area from large public housing projects in the vicinity. I don't think that Northridge was ever as unsafe as many people thought it was but there is no question that the surrounding area detioriated.
Northridge may have, moreover, contributed to its own problems by moving away from retailers that would be more attractive to the more affluent shoppers to its far west and north, but that may have been a result more than a cause.
Mayfair, on the other hand, is located on the cusp between two relatively affluent suburbs and, most importantly, is easily accessible to the rest of the metropolitan area because it is at the confluence of two major freeways.
Monday, January 03, 2011
2010 Predictions Revisted
Predictions for 2010
1. Scott Walker will become the 45th Governor of the state of Wisconsin and the first elected from Milwaukee until Julius Heil in 1939. The Democrats will continue to hold both houses of the legislature by razor thin margins.
One out of three ain't bad. Three out of three was better.
2. The Republicans pick up seven seats in the Senate and twenty in the House.
Light on the House. Remember this was before the Massachusetts Revolution.
3. The United States Supreme Court will bury a key element of the McCain-Feingold bill by holding that the funding of independent expenditures cannot be restricted unless they can be construed as express advocacy lacking any substantial component of issue advocacy - or something along those lines. You can't expect me to read five minds.
Buried deeper than I thought it would be.
4. The Wisconsin Supreme Court will hold (4-3) that Wisconsin's marriage amendment was not unconstitutionally enacted.
Yes but it was unanimous.
5. I fervently pray that I am wrong but there will be a significant terrorist attack on American soil or against an American target.
Wrong, thanks to God.
6. As I predicted last year - and was wrong, Israel will strike at a target in Iran. The Obama administration will take no action but will respond equivocally further isolating the Israelis and accomplishing nothing.
Again, not so and thank God.
7. Newly installed Milwaukee Archbishop Raymond Listecki will undertake some highly visible effort to insist that a prominent Catholic or Catholic organization not act contrary to church teaching. Tom Barrett needs to watch himself.
No and, after discussing this issue with the Archbishop, I was just wrong from the start.
8. The Green Bay Packers will edge Arizona in the first round of the NFC playoffs. They will lose a shoot out to New Orleans in the second round.
A little shorter on that pass to Jennings and I hit on this one.
9. Because I can't get over the Norv Turner factor, I think that Indianapolis beats Philadelphia in the Super Bowl.
Who dat?
10. Alabama beats Texas next week. Wisconsin makes the NCAAs but loses in the first round. Marquette doesn't make it, but goes to the NIT semifinals. UWM goes out in the Horizon League semi-finals. The Brewers rebound to take the National League Central and lose to the Dodgers in the NLCS. Look for breakout years from Rickie Weeks and Mannie Parra. Brett Favre will not retire, but the Packers will win the NFC North next fall. Wisconsin will be second in the Big Ten and go to its first BCS Bowl other than the Rose Bowl.
Alabama did win. Wisconsin and Marquette were better than I thought. The Panthers weren't. Neither with the Brewers and Manny Parra. Wisconsin came through but I didn't think they'd edge out Ohio State.
11. Nothing happens at the Mexico City climate summit.
Nothing did.
12. The individual health care mandate is not held unconsitutional but the Supreme Court grants cert.
It was. It will.
13. No significant cap and trade bill - and maybe no cap and trade bill at all - gets passed.
Correct.
14. There will be a well funded challenge (in the sense of independent expenditures) to Justice David Prosser. I will predict its failure in my predictions for 2011.
Correct.
15. This time - this year - Paul Krugman and Ann Coulter will announce their engagement. Love hopes. Always.
Love still hopes.
1. Scott Walker will become the 45th Governor of the state of Wisconsin and the first elected from Milwaukee until Julius Heil in 1939. The Democrats will continue to hold both houses of the legislature by razor thin margins.
One out of three ain't bad. Three out of three was better.
2. The Republicans pick up seven seats in the Senate and twenty in the House.
Light on the House. Remember this was before the Massachusetts Revolution.
3. The United States Supreme Court will bury a key element of the McCain-Feingold bill by holding that the funding of independent expenditures cannot be restricted unless they can be construed as express advocacy lacking any substantial component of issue advocacy - or something along those lines. You can't expect me to read five minds.
Buried deeper than I thought it would be.
4. The Wisconsin Supreme Court will hold (4-3) that Wisconsin's marriage amendment was not unconstitutionally enacted.
Yes but it was unanimous.
5. I fervently pray that I am wrong but there will be a significant terrorist attack on American soil or against an American target.
Wrong, thanks to God.
6. As I predicted last year - and was wrong, Israel will strike at a target in Iran. The Obama administration will take no action but will respond equivocally further isolating the Israelis and accomplishing nothing.
Again, not so and thank God.
7. Newly installed Milwaukee Archbishop Raymond Listecki will undertake some highly visible effort to insist that a prominent Catholic or Catholic organization not act contrary to church teaching. Tom Barrett needs to watch himself.
No and, after discussing this issue with the Archbishop, I was just wrong from the start.
8. The Green Bay Packers will edge Arizona in the first round of the NFC playoffs. They will lose a shoot out to New Orleans in the second round.
A little shorter on that pass to Jennings and I hit on this one.
9. Because I can't get over the Norv Turner factor, I think that Indianapolis beats Philadelphia in the Super Bowl.
Who dat?
10. Alabama beats Texas next week. Wisconsin makes the NCAAs but loses in the first round. Marquette doesn't make it, but goes to the NIT semifinals. UWM goes out in the Horizon League semi-finals. The Brewers rebound to take the National League Central and lose to the Dodgers in the NLCS. Look for breakout years from Rickie Weeks and Mannie Parra. Brett Favre will not retire, but the Packers will win the NFC North next fall. Wisconsin will be second in the Big Ten and go to its first BCS Bowl other than the Rose Bowl.
Alabama did win. Wisconsin and Marquette were better than I thought. The Panthers weren't. Neither with the Brewers and Manny Parra. Wisconsin came through but I didn't think they'd edge out Ohio State.
11. Nothing happens at the Mexico City climate summit.
Nothing did.
12. The individual health care mandate is not held unconsitutional but the Supreme Court grants cert.
It was. It will.
13. No significant cap and trade bill - and maybe no cap and trade bill at all - gets passed.
Correct.
14. There will be a well funded challenge (in the sense of independent expenditures) to Justice David Prosser. I will predict its failure in my predictions for 2011.
Correct.
15. This time - this year - Paul Krugman and Ann Coulter will announce their engagement. Love hopes. Always.
Love still hopes.
Subscribe to:
Posts (Atom)